September 17, 2003by Israel Foulon LLP
Question: Can an employer dismiss an employee if, after conducting a criminal record check, the employer determines that the employee has been convicted of a criminal offence?
Answer: With respect to an employer conducting a criminal record check, it is important to be aware that a criminal background check or police records check requires the consent of the individual.
Failure to obtain consent would contravene public policy and would be a violation of the employee’s personal data protection, such that a government agency would be required to obtain consent before disclosing such information to an employer.
Second, and more importantly, if an employer requests a criminal check from an employee and makes employment decisions based on this information, it could be in violation of applicable human rights legislation.
Both the Ontario Human Rights Code and the Canadian Human Rights Code expressly prohibit discrimination in employment based on record of offences which is defined as a conviction for which a pardon has been granted.
There are two issues to be considered in relation to whether an employer can dismiss an employee after finding that she has been convicted of a criminal offence. The first is whether such a dismissal is contrary to human rights, and the second is whether such a dismissal is for just cause.
As already stated, Ontario and federal human rights legislation prohibits discrimination on the basis of a conviction for which a pardon has been granted. But there is an exception to this prohibition where the discrimination is a reasonable and bona fide qualification because of the nature of the employment.
In determining whether or not the discrimination is a bona fide qualification, the court must determine whether the conviction is related to the occupation or employment of the person. The following are some of the questions the court may consider in making this determination:
- Does the behaviour for which the charge was laid, if repeated, pose any threat to the employer’s ability to carry on business safely and efficiently?
- What were the circumstances of the charge and the particulars of the offence involved? For example, how old was the individual when the events in question occurred and were there any extenuating circumstances?
- How much time has elapsed between the charge and the employment decision? What has the individual done during that period of time? Has she shown any tendencies to repeat the kind of behaviour for which she was charged? Has she shown a firm intention to rehabilitate herself?
It is important to realize that even if a dismissal on the basis of a criminal conviction is not a human rights violation, it could still be a wrongful dismissal in that termination of employment on this basis did not constitute just cause. Generally, in order to justify summary dismissal, the activity must reveal character traits that are incompatible with continued employment. The misconduct must adversely affect the company’s operations or reputation.
Certain convictions, or even charges, involving conduct such as theft or dishonesty are considered to be more serious if the worker’s job duties implicitly require a high degree of trust or honesty. Therefore, it would be prudent for an employer to consider these factors and obtain legal advice before summarily dismissing an employee based on a criminal conviction.
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 firstname.lastname@example.org. A version of this article originally appeared in the Carswell publication, Canadian Employment Law Today