Criminal Charges for Off-Duty Conduct Not Sufficient for Just Cause Dismissal

Written on behalf of Peter McSherry

The Ontario Superior Court of Justice recently confirmed that criminal charges, in and of themselves, are not a sufficient enough reason for a just cause dismissal. In order for off-duty misconduct (such as behavior resulting in criminal charges) to provide grounds for a dismissal, there must be a “justifiable connection” to either the employer or to the nature of the employment, and clear evidence establishing that connection.

What Happened?

The employee in question was employed as a labourer at Tigercat Industries Inc. (Tigercat) earning $50,000 per year. He had worked on and off for Tigercat since 1998.

In February 2015, the employee was arrested at work and charged with two counts of sexual assault against minors. The alleged sexual misconduct had not occurred in the workplace and did not appear to involve any Tigercat employees.

The day after his arrest, the employee was presented with a letter of resignation that he refused to sign. Instead, he took a two-week leave of absence.

The employee was transferred to a different facility upon his return to work. Several hours after he began his shift, a female employee at that facility advised management that she was very upset to see the employee there. She explained that, as a result of alleged sexual advances that he had made toward her when she had previously worked at his farm when she was a minor, she was involved in the pending criminal case against him.

The employee was called into a meeting to discuss the female employee’s concerns. In response, he re-iterated management that no Tigercat employees were involved in the criminal charges.

The employee was subsequently terminated for cause. Tigercat informed him that their reasons for doing so were:

• The impact his criminal charges had on Tigercat and on his fellow employees;
• His failure to tell management the truth;
• Extensive warnings and suspensions for past misconduct.

The employee sued for wrongful dismissal.

Criminal Charges and Termination

It is well-established in employment law that criminal charges in and of themselves do not constitute just cause. Indeed, off-duty misconduct (including any that results in criminal charges) only forms grounds for just cause termination only in limited circumstances.

In situations where an employee is terminated for off-duty conduct, the “onus” (i.e.- responsibility) is on the employer to establish that the termination was justified on the basis that:

• The conduct of the employee harmed the employer’s reputation or product;
• The employee’s behavior rendered them unable to perform their duties satisfactorily;
• Due to the employee’s behavior, other employees refuse to, are reluctant to, or are unable to work with that employee;
• The employee is guilty of a serious breach of the Criminal Code, therefore harming the general reputation of the employer and other employees;
• The employee’s conduct makes it difficult for the employer to efficiently manage its workforce.

The court noted that, in this case, the criminal charges were not associated with the employee’s employment, there had been no evidence provided as to the damage (or potential damage) that his actions may have had on Tigercat’s reputation, and no independent investigation was conducted:

The only knowledge management ha[d] is that [the employee] was charged. That is insufficient to support dismissal for cause.

The Related Grounds for Termination

Dishonesty

Tigercat also claimed that the employee had been dishonest in his interactions with management after his arrest.

The court noted that:

Dishonesty is a serious allegation.  The test is whether the employee’s dishonesty gave rise to a breakdown in the employment relationship, whether the misconduct is incompatible with the fundamental terms of the employment relationship.

Sanctions for dishonesty, must be proportional. In this case, there was no evidence of dishonesty. Employees cannot be compelled to discuss criminal allegations against them. Moreover, at the time he was terminated the criminal investigation was ongoing, and there had been no conviction. He was entitled to the presumption of innocence and the right to silence.

Moreover, the employee had told management that the charges had not involved anyone at Tigercat. It cannot be said that he had been dishonest in this regard. There was no evidence to suggest that he knew that the female employee was employed at the other facility prior to his transfer there.

Regardless,

this is hardly a complaint justifying the dismissal of a labourer.  Both employees could have been accommodated given the size of the business operations.

Past Discipline

A cumulative discipline record can support just cause termination; however, as with dishonesty, the sanctions must be proportional to the seriousness of the misconduct.

The court noted that in this case, the employee did have past discipline on his record; however, this discipline had not involved inappropriate behavior and was not connected to the criminal charges.  Termination on the basis of the employee’s past record was “clearly improper” and not proportionate to the incidents.

The Court’s Final Conclusions

The court concluded that:

it is clear Tigercat terminated [the employee] due to the criminal charges even though no information was known regarding the allegations.  Other matters raised are simply at attempt to justify their decision.  Tigercat has failed to demonstrate just cause.  At best, it hopes to have evidence at trial.  But, they have had a year since termination to gather that evidence.  As Henry J. said in Pizza Pizza “the time is now” to present their case.

The employee was awarded more than $40,000 in damages for wrongful dismissal, based (in part) on the length of his employment with Tigercat, his age, his employment skills, the unlikelihood of his obtaining similar employment, and a reasonable notice period calculated at 10 months.

If you think you have been wrongfully dismissed, Guelph wrongful dismissal lawyer Peter A. McSherry can ensure that your case is handled properly and efficiently, and that you receive a fair settlement. Contact me by phone at 519-821-5465 or by e-mail to schedule a consultation