Thursday, February 7, 2013

Discipline and Discharge -- criminal convictions

the following post was submitted by Diane MacLean, formerly a member of the Human Rights Tribunal and an Industrial Relations Officer with the Ministry of Labour

Community Social Services Employers’ Assn. v. British Columbia Government and Service Employees’ Union, 

Date: May 22, 2012 Arbitrator: Vincent L. Ready

Grievance: Dismissal for sexually inappropriate conduct (summary dismissal)


The employer dismissed the grievor after investigating a report that he behaved in a sexually inappropriate way with a group home resident. In February 2012, the grievor was convicted of sexual assault relating to the same incident. As a result of the conviction, the union advised the grievor that they would not be proceeding to arbitration. However, the grievor had a right to appeal that decision, so the union applied for an adjournment of the arbitration hearing. The employer objected to the union’s application and applied to have the grievance dismissed without a hearing.

Analysis and Decision

The arbitrator commented on (Toronto (City) and C.U.P.E. Local 79, [2003] S.C.J. No. 64), a Supreme Court of Canada decision that stated it was inappropriate to re-litigate decisions of the Court. The arbitrator then applied the Wm. Scott analysis and concluded:

• The grievor’s criminal conviction, which was based on precisely the same incident, provides just and reasonable cause for discipline;

• The dismissal was not excessive in the circumstances.

In deciding that dismissal wasn’t excessive, the arbitrator stated:

The Supreme Court of Canada [in Toronto (City)] pointed out the abuse of process that would result in a situation where a convicted sex offender would be reinstated to his employment and work with the very vulnerable people he was convicted of assaulting. The parallels to the circumstances before me are striking. The current grievor … has been found guilty beyond a reasonable doubt of sexually assaulting a young woman in his care. Even without the direction of the Court, it would be unethical to expose other clients to that harm.

Board of School Trustees of School District No 48 v Canadian Union of Public Employees, Local 779
Date: October 1, 2012 Arbitrator: John Kinzie

Grievance: Termination (grievance dismissed)


The grievor, a 55 year old employee with a clean disciplinary record, had worked for the School District since 1994. His latest position was as a bus driver-custodian. He was charged with offences that predated his employment with this employer. The grievor pled guilty to two charges that he had touched two boys for a sexual purpose. He was sentenced to a community-based sentence of two years less one day, followed by two years of incarceration. During this four-year period, the grievor was not to be in any place where children under the age of 16 might reasonably be present and not to seek or maintain employment that would put the grievor in contact with children under the age of 16.

The employer terminated the grievor’s employment shortly after the sentencing, because the grievor was not capable of continuing his employment in light of its responsibility to provide a safe environment for its students. The union contended that the termination was excessive and that the grievor should be reinstated to a position where he is not exposed to children under the age of 16, for example, as a custodian in a secondary school on the graveyard shift.

Analysis and Decision

The arbitrator applied the Wm. Scott analysis. The first issue was whether there was just and reasonable cause for some form of discipline. The arbitrator referred to arbitral jurisprudence that recognized that an employer can discipline an employee for improper conduct off the job, subject to some of the following conditions:

(1) the conduct of the grievor harms the Company’s reputation or product;

(2) the grievor’s behaviour renders the employee unable to perform his duties satisfactorily;

(3) the grievor’s behaviour leads to a refusal, reluctance or inability of the other employees to work with him;

(4) the grievor has been guilty of a serious breach of the Criminal Code and thus rendering his conduct injurious to the general reputation of the Company and its employees;

(5) places difficulty in the way of the Company properly carrying out its function of efficiently managing its Works and efficiently directing its working forces.” [See Millhaven Fibres Ltd., [1967] O.L.A.A. No. 4 (Anderson)]

The arbitrator agreed with other arbitrators that there has to be a connection between the criminal offence and the performance of the employee’s duties. He concluded that the connection existed here, stating:

I am satisfied that there is a clear and direct nexus or connection between the grievor’s offences and his responsibilities as a bus driver and custodian. As the cases make clear, the grievor in those jobs was in a position of trust and responsibility vis-à-vis the students on his bus and any students in the school he was cleaning. Because of those responsibilities, a high standard of care could be expected of him in those circumstances, and, in my view, the Employer and the parents of children in the school district would be entitled to be confident in their expectations that he would lie up to that high standard of care.

The arbitrator also commented that the responsibility of providing an education included the obligation to provide a safe environment and the grievor’s conviction called into question the safety of the environment for the students. The arbitrator also felt that the nature of the criminal conduct coupled with the nature of the grievor’s duties would impact negatively on the employer’s reputation within the school community. Therefore, the grievor had given the employer just and reasonable cause to impose some form of discipline on him.

The arbitrator then considered whether the termination of the grievor’s employment excessive in the circumstances. He agreed there were a number of mitigating circumstances: the offences had been committed some 20 years ago, the grievor’s clean disciplinary record throughout the 15 years of his employment, and his remorse. However, the grievor remained silent about very serious offences for almost 20 years until he was confronted by his. In addition, the employer and parents would have lost confidence in the trust they placed in the grievor “with the result that the employer-employee relationship would have seriously impaired if not destroyed”. The arbitrator recognized the Court’s concern that there was some uncertainty regarding the grievor’s risk to reoffend and that such uncertainty must be resolved in favour of the students. Therefore, termination of the grievor’s employment was not an excessive response in all of the circumstances of the case.

[Note: Although not applicable to the above decisions, there can be a human rights aspect to a dismissal because of a criminal conviction. Section 13(3) of the B.C. Human Rights Code provides:

A person must not

(a) refuse to employ or refuse to continue to employ a person, or

(b) discriminate against a person regarding employment or any term or condition of employment

… because that person has been convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person.

In the above cases, the offences were related to the employment, in particular the jobs involved close contact with minors or other vulnerable individuals. However, if these grievors applied for jobs where they were not in such contact, there would be a human rights issue if they were not hired because of these convictions. Another example would be if someone convicted of a white collar crime (i.e, an accountant or bank employee) and was refused a janitorial or production job. ]

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