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Criminal Activity and Employment

Sometimes what you do outside of work can end up costing you your job. When we talk about criminal convictions, both the crime and your position matter. If you end up incarcerated that would usually be the death knell for your employment.

Regardless of the crime or your position within the company, if you become unavailable for work because you are in jail for any significant length of time the employer has the right to take the position you have abandoned your employment. Calling in daily from the cell block pay phone won’t help matters. Employers have the right to terminate employees who are significantly absent for an unjustified reason. Of course being ill is a justification or any of the 10 emergency days you can take in a calendar year in Ontario without being disciplined. Being in jail may suck but it is not an emergency. The law says you put yourself there.

Let’s imagine, however, that you are part of a maintenance staff at a private school and are convicted of drunk driving. The judge agrees that you can serve your sentence on successive weekends when you don’t work anyway. The school’s reputation is not significantly damaged by a maintenance worker having been convicted of such a crime.

Now imagine that you are the principal of that private school and the same events unfold. The employer could take the position that you have so significantly harmed its reputation and so utterly failed in being the role model you were supposed to be that the employment relationship has been destroyed.

Sometimes employees are fired not for a criminal conviction but appearing to be involved in a crime. John worked with a courier company for 10 years when a package arrived at the office addressed to him. Apparently the general manager got a whiff of what was in it and opened the package and found it contained marijuana. John said he had no idea what was in the package and later disclosed that it was his brother who had it mailed to his work. The employer terminated John but it was eventually found by the courts that there was not just cause for his termination. The circumstances may have smelled (literally) but it was not evidence on a balance of probabilities that John was involved in a crime.

But what about when you can prove illegal activity at work? Sam had been working at a small airport for 10 years with generally positive performance reviews and no significant disciplinary notes in his file. Among other things, his job was to test conditions of the runway and report on them. That meant that he had to drive around the airfield constantly.

One night Sam decided he had too much to drink to drive and fell asleep behind his wheel with the car pulled over but with the keys in the ignition. Eventually he was found by the police and given a 7-day suspension from driving any motor vehicle anywhere. The employer told him that for the next 7 days he should not drive even the baggage tug which towed the baggage trailers. The supervisor shadowed him on the first day to make sure he didn’t drive any vehicles. The next day Sam worked unsupervised and video cameras proved, and witnesses saw, that he drove the baggage tug. When Sam was confronted with this information he had no explanation. He said he did not remember driving it and could only say that when he works he is on “auto pilot”. Sam was fired.
The adjudicator hearing the case under the Canada Labour Code had the power to order Sam reinstated with back pay but he declined to do so. That appears mostly to be a result of Sam defensively failing to express any remorse for what he did. The adjudicator found that there was not just cause for Sam’s termination and ordered him to be given 10 months’ pay in lieu of notice.

Ultimately, the adjudicator decided that while Sam did not deserve an order of reinstatement, but termination without notice for a good 10-year employee was not proportionate to the “crime”.   
Ed Canning is a labour and employment lawyer with Ross & McBride LLP, in Hamilton, representing both employers and employees. Email him at ecanning@rossmcbride.com
Ed Canning
Ed Canning
P: 905.572.5809