April 6, 2016
In a recent decision of the Ontario Superior Court of Justice, the Court held that conduct resulting in criminal charges being laid against an employee does not constitute “just cause” for termination where the conduct is unconnected to work.
The employee, a 67 year old labourer employed since 1998, was terminated in February 2015 for “just cause” after being charged with two counts of sexual assault against minors. The events alleged did not occur in the workplace and did not involve any employees of the employer. When the employee was asked about the charges by his employer, he elected to rely upon his constitutional right not to incriminate himself (right to silence) and the presumption of innocence. He did tell his employer that the allegations did not involve any of the employer’s employees.
On the morning of his termination, the employee was transferred to another of the employer’s plants to fill a vacancy. One of the employer’s female employees at the new plant reported that she was very upset to see the employee in the plant because she had worked with the employee in a previous workplace when she was a minor and the employee had made very inappropriate advances and sexual comments to her. The female employee told the employer that she did not wish to interact with the employee.
The employer relied upon this information to terminate the employee for just cause later that day. The employer stated that the employee was being fired because of the impact of the criminal charges on the employer in general and on his fellow employees, in addition to a few previous performance warnings in prior years. The Court found as a fact that the female employee was not involved in the criminal charges against the employee (the employer had mistakenly asserted in the Court proceedings that she was). It also noted that no evidence was tendered regarding the criminal allegations, except that it was clearly off duty conduct which involved no other employees. Also, the employer did not conduct any independent investigations regarding the criminal charges.
The Court held that criminal charges alone, for matters outside of employment, cannot constitute just cause. There must be a justifiable connection to the employer or the nature of employment. The Court held that a justifiable connection might be found if an employer can prove that:
(i) the conduct harms the employer’s reputation or product;
(ii) the behaviour renders the employee unable to perform his duties in a satisfactory manner;
(iii) the behaviour leads to refusal, reluctance or inability of the other employees to work with him;
(iv) the employee has been guilty of a serious breach of the Criminal Code, rendering his conduct injurious to the general reputation of the employer and its employees; or
(v) the conduct renders the employer unable to properly carry out its function of efficiently managing its work and efficiently directing its workforce.
However, the Court also stated that the employee had to be a manager, professional or senior employee. This was not a factor articulated in prior decisions and the Judge gave no authority for this additional consideration.
In respect to the employer’s reputation, the Court stated that the employer must show evidence of damage, or potential damage, to its reputation. Bald allegations of general “concern” are insufficient. Further, the Court indicated that if an issue arises as to the legitimate refusal of another employee involved in the charges to work with the employee, the employer had a duty to accommodate both employees.
In finding that no just cause existed, the Court awarded a notice period of 10 months, on the basis of the employee’s rehiring in 2002 after a two year interruption of service.