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We live in a society where our criminal justice system presumes a person innocent until proven guilty. That said, the reality is that many people criminally charged are guilty. Even where innocent, it can take months – if not years – before criminal charges are resolved, during which time it is not uncommon for much irreparable negative publicity to result.

What if the person charged is one of your employees? Even worse, one of your senior employees?

Do you have cause to terminate the employee as a result of pending criminal charges?

It depends.

There are several Canadian decisions where courts have found that employers have had cause to terminate employees because of criminal charges. These cases typically involve serious crimes of moral turpitude – e.g. possessing child pornography or sexual abuse of a minor — that most members of the public would find to be repulsive and reprehensible. For example:

  • In the 2005 Ontario decision of Kelly v. Linamar, the employee involved was a mid-level manager who supervised 12 employees. His arrest was widely reported in the media and the employer was worried about its reputation, as well as the safety of its employees. The employee had also admitted to his boss that he was guilty of possessing child pornography, and would only use a Charter challenge as his defence.
  • In the 2008 Ontario decision of OPSEU v Ontario (Ministry of Natural Resources), a Conservation Officer had used his employer-provided computer to have inappropriate correspondence with minors and to download child pornography. The employee was initially put on paid administrative leave, but was then terminated for cause after the employer investigated and found the images and conversations on its computer.

In these cases, the court considered the fact that the employees held a position of responsibility and/or authority at the employer. The court also looked at the employer’s reputation and the degree to which, if at all, the employer’s reputation would likely be affected by continuing to employ the employee. However, it appeared in both of these cases that the most important factor was the independent investigation and finding of factual guilt by the employer – in short, the employer in both cases had reasonable grounds to believe that the employee in question would ultimately be convicted of the criminal offenses for which they were charged.

In contrast, the following three decisions are examples of where the court decided that an employer did not have cause to terminate an employee because of pending criminal charges.

  • In the 1990 Nova Scotia decision of Backman v. Hyundai Auto, a Regional Manager was charged with drug trafficking. The employer did not believe he was guilty and did no independent investigation. However, after a lot of bad press, the employer decided to terminate the employee. The court decided that the employer did not have cause to terminate the employee, because the only reason why he was terminated was to avoid further negative press.
  • In the 1991 Ontario decision of Re Colven Distributor Ltd[1], an employee was charged with five sex-related offenses involving young girls. The referee found no indication that the criminal charges or conviction affected the employer’s reputation or adversely impacted the employer’s performance and, therefore, the employer was not entitled to terminate the employee without notice or pay in lieu of notice.
  • More recently, in the 2016 Ontario decision of Merritt v. Tigercat Industries, a general labourer was charged with two counts of sexual assault against minors. The employer asked the employee about the charges. He declined to comment other than insist that the situation did not occur in the workplace or involve other employees. The employer did not conduct any independent investigation to assess the likelihood that the employee was guilty. No evidence was presented by the employer to show damage or even potential damage to its reputation. Based on these considerations, the court decided that the employer did not have cause to terminate the employee.

So, to recap, whether you, as the employer, will have cause to terminate an employee’s employment because of pending criminal charges will depend upon factors such as:

  • The employee’s position in your organization;
  • The nature, frequency and seriousness of the crime for which the employee has been charged;
  • The likelihood that the charges will become a matter of public knowledge via the media and/or otherwise and, if so, what impact that will have on the employer’s reputation and performance; and
  • The likelihood that the employee is guilty and/or will ultimately be convicted of the criminal charges.

These factors should not be considered in a vacuum, but rather in light of other standard contextual factors (both mitigating and aggravating) that employers are expected to consider when determining whether cause to terminate exists. These include such things as the employee’s past disciplinary record, length of service, truthfulness, acceptance of responsibility, remorseful and/or apologetic behaviour, etc.

As always, if you have any questions about what to do when one of your employees have been criminally charged, or any other work-related issue, feel free to contact any member of Siskinds’ Labour & Employment Group.

[1] [1991] OESAD No 105

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