Criminal Conviction or Incarceration Does Not Justify Termination

by & Ava Z Moradi, JD, First Reference Inc.

The Administrative Labour Tribunal in Quebec recently held that an employer cannot terminate a worker with a criminal conviction for acts of sexual abuse as it constitutes discrimination based on criminal records. Moreover, the nature of the criminal offence does not automatically justify the dismissal of an employee.

What happened?

The worker was a long-service supervisor at a distribution centre and had been working for his employer for about 35 years with a clean disciplinary record. Among his duties was the supervision of about 50 employees, which was largely composed of women, migrant workers, some of whom were between 16 and 18 years old.

In August 2014, the worker was convicted of having molested his wife’s daughter when she was between five and 10 years old, and was sentenced to 20 months in prison. The worker appealed the sentence and was released pending a final decision.

When the employer became aware of the conviction, he called the worker into a meeting to find out more about what happened. At the meeting, the worker was evasive about the reasons for his convictions. Subsequently, the employer terminated the supervisor’s employment, reasoning that the supervisor’s conviction for sexual abuse was incompatible with his supervisory duties (supervising “vulnerable” employees) and that his lack of transparency had led to a breakdown in the trust relationship between employer and employee.

The employee contested his dismissal under section 124 of the Quebec Act respecting labour standards. In Quebec, an employee credited with two years of uninterrupted service is entitled to challenge a decision terminating his or her employment by presenting a complaint under section 124 LSA.

However, in the meantime, upon learning that the appeal had been dismissed and that the worker had been incarcerated in October 2015, the employer decided to dismiss him a second time alleging that the worker was unavailable to perform his work due to 14 months incarceration.

The case proceeded to a hearing in front of the Quebec Administrative Labour Tribunal.

Quebec Administrative Labour Tribunal decision

Upon review of the circumstances leading up to the first termination, the Tribunal dismissed the employer’s argument that the worker was supervising “vulnerable” employees and that he could not continue doing his work due to the charges as he had abused his position of authority over his victim. The Tribunal found that it was impossible for the worker to commit the same offence again as no child was present in the workplace when he worked, and because his relationship of authority as a first-line manager and his employees was clearly different than that between an adult and a child. As such, the Tribunal held that there was no objective and empirical connection between the worker’s job duties and his conviction for sexual abuse.

The employer then argued that maintaining ties with the worker would damage the employer’s reputation with the public. The Tribunal could not support this reasoning as there had not been any media coverage on the worker’s conviction and since the worker worked in the distribution centre, he was far away from customer relations.

In addition, the employee not being outright about his conviction during the meeting did not warrant termination, but disciplinary measures. The Tribunal considered termination to be disproportionate in view of his clean disciplinary record during his 35 years of service to the employer.
In regard to the second termination in October 2015, the Tribunal agreed with the employer that the worker was unable to perform his work because he had been fired and not because he was incarcerated. The difference is that the worker would have been capable of working upon completing his sentence. The Tribunal regarded the second dismissal as an excuse for setting aside Charter obligations.

Consequently, the worker’s dismissal on the basis of his conviction and subsequent incarceration was prohibited under the Quebec Charter of Human Rights and Freedoms and therefore, the employer’s termination of the worker based on the worker’s conviction and incarceration could not be upheld.

Source: X v. Reitmans 2018 QCTA 2357 (motion for judicial review 2018-05-16, C.S. Montréal, docket no.: 500-17-103253-186; Declaration of out-of-court settlement, 2018-06-18)

A few thoughts

So what do you do now when an employee is unavailable for work during his or her term of imprisonment? This case has put employers actions in limbo, as well as a question mark on the Supreme Court of Canada decision in Maksteel regarding dismissal for incarceration.

The Supreme Court of Canada had ruled that Human Rights legislation does not protect the job of an employee who is serving a jail term, even if the conviction is not related to his or her employment. That meant that an employee absent from work due to his or her incarceration does not constitute discrimination on the basis of a criminal conviction. Moreover, that the Quebec Human Rights legislation does not protect an employee from dismissal where the real reason is the fact that the employee is not available for work because he or she happens to be incarcerated. The Court found that the employee was dismissed because he was unavailable for work, not because of his criminal conviction. However, the Court also stated that employers cannot use a worker’s criminal past, however serious, as an excuse for firing an employee or refusing to hire a job applicant.

The SCC stated that “every incarcerated offender must suffer the consequences that result from being imprisoned, namely loss of a job for unavailability”. Dismissed employees must establish that their criminal record is the real reason for any reprisal they suffer from an employer; without such proof, an incarcerated employee cannot compel his or her employer to preserve the employment relationship. However, an employee fired despite completing a jail term on vacation time or while serving outside working hours might still be able to establish discrimination.

It will be interesting to see how this decision impacts other cases related to termination due to incarceration.

That said, having a criminal record can be a barrier, particularly with respect to employment, volunteer activities and travel, even if one has lived a crime-free life for many years. However, this does not mean that a conviction for something that happened outside of work automatically gives rise to just cause for termination.

Before jumping to termination, employers should carefully consider the justification to terminate an employee for cause since the above case illustrates that cause for dismissal is a very high bar to reach even when an employee is convicted and imprisoned for a criminal offence.

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