The country had already been rocked by the shootings on Parliament Hill in Ottawa, so when word got out that a “veteran” interviewed on TV during a Remembrance Day ceremony was not who he seemed, public disgust spread quickly. Franck Gervais appeared on camera in a military uniform, alongside his wife, talking to the CBC. Four days later, he was charged with impersonating a decorated soldier.
His employer, Potvin Construction in Rockland, Ont., then announced it had suspended the 12-year employee with pay until further developments: “It has been quite a shock for the company and Potvin Construction does not endorse the type of alleged behaviour Mr. Gervais has been accused of.”
But should he be fired? Most lawyers would agree workers can be fired for criminal activity outside the workplace, said Shafik Bhalloo, a partner at law firm Kornfeld in Vancouver. But whether termination is appropriate depends on the nature of the job and the type of crime committed.
If, for example, a school bus driver is convicted of drunk driving, termination of employment may be justified, he said.
“But, in this particular case, I don’t know enough to say that termination of his employment would be justified.”
It’s reminiscent of the Stanley Cup riots in Vancouver in 2011, said Bhalloo, where people were caught on camera looting and vandalizing. One woman who worked as a receptionist, for example, was fired after she was caught stealing tuxedo pants.
“The company found out after the fact, when this hit in the media, particularly the YouTube video, and they found that that was prejudicial to their interests and they terminated the employee’s employment for off-duty conduct.”
The prominence of the employer’s name also makes a difference. If a sawmill worker is convicted of child pornography in his off-hours, said Gregory Heywood, a lawyer at law firm Roper Greyell in Vancouver, “as repugnant as the allegations were, there would be no basis to impose any discipline on him from the employer’s perspective because… it’s not related to his work and there was no association or damage to the employer’s reputation because the employer’s name was not associated with this misconduct.”
An employer in Potvin’s situation should certainly bring the employee in for an interview to find out what’s going on and make its own assessment about whether this misconduct would impinge upon his employment and the viability of his employment relationship, he said.
“If they find, for example, that he’s a patently dishonest, untruthful person that you now cannot trust and he has access to your parts inventory, or he records his time on a timesheet that isn’t verified by a supervisor or he has these positions of trust or responsibility, then you may have grounds to assess that employment relationship.”
The mere fact of a criminal conviction doesn’t in and of itself give an employer just cause for dismissal, said Kenneth Thornicroft, a lawyer who teaches at the University of Victoria.
“Criminal convictions could be anything from shoplifting to impaired driving to murder so there’s a whole range of morally culpable conduct within that,” he said.
“All criminal conduct, I suppose, is to some degree morally reprehensible but within the continuum of reprehensibility, (the Gervais case is) at the lower end.
“It would be difficult in these circumstances for an employer to justify termination on that basis alone unless it was the kind of employment where the person’s character was really an essential feature of their employment.”
And in terminating someone with a criminal conviction, the provinces offer varying forms of human rights protection, said Heywood.
“In British Columbia, the prohibition is discrimination against someone who has a criminal record that’s pertinent to your employment,” he said. “In this case, where he’s impersonating an army personnel, absent any misrepresentation on his hiring, the employer would be in a difficult spot, I think, to justify termination.”
If an employee is sentenced to jail time and then fired, the employer is not so much terminating the employee for just cause related to her conviction but for her inability to do the work, said Thornicroft.
“It’s almost like a constructive resignation or abandonment.”
And with shorter custodial sentences, arrangements can be made for the person to serve it on weekends, he said.
“Often the court is inclined to do that because they don’t want the person to lose their job.”
But you’d have to distinguish between union and non-union roles when it comes to providing a leave of absence, said Heywood.
“Case law suggests it’s something the (unionized) employers are obligated to consider and, absent some compelling reason, generally speaking, a leave up to six months if you deal with an incarceration is something that they ought to accommodate.”
However, if the person holds a key position that would be hard to fill, the employer may be able to claim undue hardship, he said.
“In a non-union world, if someone can’t come to work for six months, that’s generally grounds to say goodbye.”
Another consideration in termination of employment is employer reputation.
“As clients of Potvin, be assured that these events do not distract us from the work and services we provide you every day and we continue to focus our energy on your projects,” said the company on its website.
The Gervais situation has certainly put the construction company under scrutiny, said Bhalloo, and people may ask, “What kind of people are you hiring?”
“But is it so prejudicial that the employer is justified in this case of terminating the employee’s employment? I would have difficulty saying that in this particular case.”
But the prominence of the employer makes a difference.
“I had never heard of Potvin Construction. I’m sure they’re a reputable company but will that really influence anybody in not going to Potvin because of this individual? I have my doubts,” he said.
At this point, a paid suspension makes sense, according to Bhalloo.
“If they had suspended him without pay, that would suggest they’re already actually penalizing him,” he said.
“In this particular case, there is a report of his act but nobody knows about his intent part and whether there are some issues that mitigate in any way what he did. So it’s a little too early and that’s why I think Potvin is smart in investigating this and finding out and giving him an opportunity to respond. There may be a defence to what he’s done.”
Employers have to be careful not to do anything that would get them in hot water, he said.
“It’s important for them to investigate and find out his side of the story and what’s really going on, whether there’s a disability involved in what he’s done and not penalize him egregiously if there’s some issues here, mental health issues or what have you, that have led him to do what he’s doing.”
If there was a psychological issue involved and evidence to support it, that ties the employer’s hands to a degree in terms of terminating the employee without providing some kind of accommodation, said Thornicroft.
But if Gervais did represent as a veteran and that was a material fact in being hired then, in law, the contract becomes voidable and the employer can rescind the contract based on misrepresentation, he said.
“That’s a tough argument to make because, for misrepresentation cases, you need to show that there was a misrepresentation, that it was material and that there was reliance.”
If it’s a case where a person with a clean criminal record is hired by a daycare and then is convicted of child abuse, the employer is arguably vicariously liable for the employee’s conduct, said Bhalloo.
“How can an employer, even with background checks, divine what may happen in the future? So a lot of times, they go into a situation doing whatever due diligence that they can possibly do and yet come out on the end where the employee does something that nobody ever contemplated.”
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