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Jumping the gun

An employee who’s facing legal trouble can cause a dilemma for employer before there’s a final verdict

By Jeffrey R. Smith

When an employee gets charged with a serious offence, it’s likely the first thing that crosses the mind of the management is to get rid of that person — especially if the charges relate to the employee’s job duties, or even stems from misconduct at work.

But jumping the gun before the legal matters are resolved can result in the employer being the one who runs afoul of the law.

In such circumstances, an employer needs to follow legal developments closely — it can even ask the employee to provide regular updates, though the employee may not be able to disclose details while proceedings are ongoing — to make sure it doesn’t act too fast. If the employer’s own investigation results in a decision to dismiss the employee before a final verdict is reached in the legal case, it better be able to prove there was actual misconduct that damaged its reputation or the employment relationship beyond repair. If the employee is exonerated, there could be trouble.

Three years ago, an educational assistant at a school in northern Ontario was charged with assault after a co-worker reported she slapped a child who bit her. The educational assistant denied the charge, explaining she slapped her own hand to get the child’s attention before scolding the child.

The educational assistant was convicted of assault and the school board fired her. However, another school employee — who wasn’t interviewed by the school board or police in either of their investigations — later filed a written statement corroborating the educational assistant’s version of events. The employee who had originally reported the incident had questions of credibility and the educational assistant successfully appealed the conviction.

When the dismissal was grieved, an arbitrator had issues with the school board’s investigation, as well as its failure to take into account that the educational assistant had been employed with the board for 13 years without any problems and had a longer career before that working with and caring for students and adults, with no suggestion of any similar incidents.

The arbitrator also found the assistant consistently denied slapping the child’s face throughout the employer’s investigation and interview. Despite this, she was given less consideration than the single co-worker who had credibility issues. A more in-depth investigation likely would have revealed the other employee who agreed with the educational assistant’s version of events — which resulted in the acquittal. See Northeastern Catholic District School Board and CUPE, Local 4681 (Sylvester), Re, 2013 CarswellOnt 11490 (Ont. Arb. Bd.)

While an employee’s initial reaction to serious charges against an employee is likely to try to wash its hands of the employee and the related problems, it’s important — as with any misconduct — to be sure all the facts are unearthed and considered before a final decision is made.

Jumping the gun and determining what discipline is appropriate before those charges result in a final verdict can leave the employer looking pretty bad if the employee is exonerated.

What is the best way to handle an employee facing criminal charges — administrative suspension? Let the employee work until a resolution?

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at or visit for more information.

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Jeffrey R. Smith

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.
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