June 7, 2016

The recent high-profile Ghomeshi case has brought increased attention to the issue of employees who engage in criminal conduct both inside and outside the workplace. An employer that doesn’t act swiftly to dismiss an employee who has engaged in criminal behaviour may be subject to both civil liability and public censure. On the other hand, the caselaw demonstrates that an employer will not always be justified in dismissing an employee charged with a criminal offence. Indeed, dismissing an employee may not be justified even when an employee has been convicted of a serious criminal offence. In this session experienced employer and union counsel will identify key legal considerations workplace parties should take into account in their responses when employees face criminal charges.

  • Offences on duty: Can an employer summarily dismiss an employee who is charged with or convicted of criminal conduct in the course of employment? In light of increased attention on workplace violence and harassment, can employers summarily dismiss employees convicted of committing a violent criminal offence in the workplace? Might an employer incur civil liability for alleging an employee committed a criminal offence if that employee is later cleared of wrongdoing? In what circumstances will the employer be civilly liable for a criminal offence an employee commits while on duty? How should a union representative respond if he or she believes a fellow bargaining unit member has committed a criminal offence while on duty? What is the extent of the union’s duty to represent an employee charged with a criminal offence in the course of his or her employment? What type of communication should the union or union counsel have with criminal defence counsel? How common are “indemnification clauses”? What is the union’s role in an employee’s criminal defence if there is an indemnification clause in the collective agreement?
  • Offenses off-duty: What type of information regarding past charges and convictions can employers ask job applicants to provide? What type of information might be contained in “criminal record checks?” Can an employer refuse to hire a candidate on the basis that he or she has outstanding criminal charges against him or her? What if the employee has been charged criminally in the past but charges were dropped or the employee was acquitted? Can employers ask current employees for updated criminal record checks? Does lying about past criminal convictions or charges justify discharge? In what circumstances, if any, can an employee be discharged for a criminal charge related to off-duty conduct? When can an employee be discharged because of a criminal conviction for off-duty conduct? Does it matter if the criminal charge or conviction relates to an employee’s conduct on the picket line?
  • From investigation to disposition: Should an employer conduct its own investigation and form its own view as to the guilt or innocence of the employee when an employee is under investigation for criminal activity or when criminal charges have been laid? Can an employee be disciplined for remaining silent during an employer’s investigation into criminal charges? Can an employer assist police in their investigation by giving them access to employer-owned devices used by the employee? Does an employer have a right to suspend an employee who faces criminal charges? Do restrictive bail conditions relieve an employer of continuing employment pending disposition of criminal charges, or must the employer consider other possible positions, or flexible work arrangements? If suspension pending trial is found to be justified, but the employee is ultimately acquitted of criminal charges, is he or she entitled to back pay? If an employee in a unionized workplace is convicted of a criminal offence and requires time off for incarceration, must the employer grant the employee unpaid time off or can the employee be fired?