March 5, 2003 by Israel Foulon LLP
Question: Can an employer summarily dismiss an employee who has been charged with or convicted of a criminal offence?
Answer: Assuming the criminal offence in question is not related to the workplace, in order for the charge or conviction to be viewed as just and sufficient cause for dismissal, the act in question must reveal a character trait which is incompatible with continued employment. Usually this means the employer must demonstrate the misconduct is such that the business would be damaged or would suffer harm by continuing to employ the worker.
For example where the employee has been charged with a criminal offence an employer might have to establish the operation or reputation of the business would be negatively affected by the publicity surrounding the criminal charge.
Alternatively if the employee is in a position which involves a high degree of trust and honesty, a conviction involving theft may provide sufficient grounds for dismissal. A part-time teacher at a university business school in Ontario was dismissed for cause after he was charged with insurance fraud. The court held just cause for termination had been established because the dishonest behaviour could impact the university’s reputation.
It is important to remember that where the employee has simply been charged but no conviction has yet been entered, the individual is still entitled to the benefit of the basic principle that a person is innocent until proven guilty. A possible solution is to suspend the employee pending the final determination of the criminal charge. But it must be noted that even if the employee is eventually convicted, the conviction will not necessarily constitute just cause for dismissal.
Termination of the employee’s employment for cause in cases of criminal convictions or charges should be carefully considered and should only be effected where it is clear that the employer’s business would suffer from continued employment of the employee.
Peter Israel is the senior partner in the Toronto law firm of Israel Foulon LLP – Employment and Labour Lawyers. He can be reached at 416-640-1550 or pi@qtw38575.mywhc.ca. A version of this article originally appeared in the Carswell publication, Canadian Employment Law Today