'Many employers assume that a criminal conviction or charge crosses the line, but it's not that simple'
“When [an employer] is determining discipline against an employee for off-duty conduct, the fact that there were criminal charges or even a criminal conviction does not necessarily give the employer the right to dismiss for cause. I think many employers assume that a criminal conviction, if not a charge, crosses the line, but it's not that simple.”
So says labour and employment lawyer Joseph Oppenheim of Carbert Waite in Calgary, after a federal arbitrator reduced the dismissal of a railway worker following criminal assault charges to a lengthy suspension.
The worker was employed with Canadian Pacific Kansas City Railway (CPKCR) in Thunder Bay, Ont., since 2008. He was considered a good employee and got along well with co-workers and supervisors.
The worker’s job was mostly unsupervised and often involved staying in bunkhouses and hotels while interacting with the public.
The worker had one instance of discipline on his record from May 2013 when he made inappropriate Facebook communications with an employee of a company with which CPKCR did business. The other company’s employee made a complaint and the worker was suspended without pay for 30 days and banned from staying at the location where the other company did business with CPKCR. The worker was also required to complete harassment and discrimination awareness and prevention training.
The worker also had a history of violent and unwanted interactions towards women in his personal life, although this didn’t generally affect his work.
Arrested, criminally charged
In 2021, the worker informed his supervisor that he was going to be arrested. Later that day, he was arrested while on duty in front of other CPKCR employees. He was criminally charged with sexual assault, failure to comply with conditions, and assault. He served 134 days in pre-trial custody and court transcripts identified CPKCR as the worker’s employer and that he was arrested while at work.
CPKCR launched an investigation into the matter. The worker said that he had been charged with assault, failure to comply with a release order, and sexual assault. However, the worker refused to answer any other questions or elaborate, on the advice of his criminal lawyer that anything he said in the company’s investigation could be used against him in the criminal trial.
On April 6, 2021, CPKCR dismissed the worker for “conduct unbecoming of an employee of Canadian Pacific and as evidenced by your being criminally charged” as well as “failure to fully participate in the investigative process.”
More than two years later, in July 2023, the worker was found guilty of assault and multiple failures to comply with conditions. He was given a 12-month probation order.
The union grieved the dismissal, arguing that the worker’s refusal to participate in the investigation was his right and wasn’t insubordination. It also pointed out that the worker wasn’t convicted for more than two years after his dismissal, so the dismissal was premature. Finally, the union argued that the worker’s conduct was “a wholly domestic matter” that didn’t affect CPKCR and its reputation.
Refusal to participate in investigation
The arbitrator noted that a refusal to answer questions during an employment investigation on the advice of criminal counsel wasn’t insubordination and shouldn’t be held against the worker. Refusing to incriminate oneself could not be considered a failure to participate in the investigative process, although the employer in such circumstances is entitled to proceed with the investigation and make decisions based on the facts it has and without input from the worker, the arbitrator said.
Legally, when you have criminal charges against you, you don't have to participate personally in an investigation that could put you at risk of incriminating yourself, according to Oppenheim.
“In the context of employment, the employee is permitted to refuse to participate personally in the investigation, and that in and of itself is not going to be considered a negative,” he says. “The employer will still have to conduct its investigation, but without the participation of the employee, and the fact that the employee didn't participate is not a factor at all.”
You can’t penalize the employee for not participating, as they’re in a difficult situation, adds Oppenheim.
“[The employee] will likely have something to say that might help their employment case, but their criminal defense lawyer will no doubt advise them not to, because anything they state in that investigation could conceivably see the light of day and form part of the evidentiary record in the criminal case,” he says.
Employer reputation
However, the arbitrator disagreed with the union that the matter was purely domestic and wouldn’t affect CPKCR’s reputation. The worker was arrested at work in front of other employees, and he got his supervisor involved. The company was also mentioned in court transcripts and Thunder Bay wasn’t a large city, so the worker’s workplace arrest, incarceration, and court proceedings would be discussed around town, said the arbitrator in finding that the matter wasn’t simply a domestic dispute.
The arbitrator also noted that it had been established in the jurisprudence that criminal acts of employees can reflect adversely on the employer, even if indirect and difficult to quantify. Even if no direct harm is evident, the risk and nature of potential harm to the employer’s reputation must be considered, said the arbitrator. As a result, the arbitrator determined that there was at least a risk of harm to CPKCR’s reputation from the worker’s conduct that warranted discipline.
As far as whether dismissal was an appropriate level of discipline, the arbitrator referred to established factors for such an assessment. In this case, the worker’s 13 years of service was “substantial” but not long-term, his conduct wasn’t isolated as he had a previous suspension, it involved multiple charges committed over a period of time, and the offence was serious and risked harming CPCKR’s reputation, the arbitrator said.
However, the arbitrator found that the employment relationship and trust did not completely break down and could be salvaged. The worker’s record, service, and the off-duty nature of his conduct led the arbitrator to determine that serious discipline short of dismissal was appropriate.
“This is a person who had a prior disciplinary issue – although it was eight years previous - and the nature of the criminal charges was very serious, so the question was how much weight you give to those things,” says Oppenheim. “[The arbitrator] said the employment relationship was strained but had survived, so it's a question of degrees – when an employer is trying to assess how serious off-duty conduct is and whether it amounts to a fireable offense, it’s difficult to predict how an arbitrator will ultimately decide.”
“I don't think that the employer made any missteps,” he adds. “They likely did the analysis and applied the same factors that the arbitrator did but gave a different amount of weight to some of the facts than the arbitrator did.”
Reinstatement with suspension
CPCKR was ordered to reinstate the worker with a five-month suspension on his record and compensation for lost wages and benefits outside of the suspension.
Oppenheim notes that, had the worker not been arrested at work, there was no strict legal obligation to inform the employer of his criminal charges – although it can be a term of the employment contract that an employee must advise their supervisor if they have been charged with a criminal offence. However, he adds that it’s a grey area.
“At law, employees have an implied duty of honesty, which includes the obligation to not conceal matters in which an employer has an interest,” says Oppenheim.
“I can imagine a case where criminal allegations are of the type that could foreseeably impact the employer’s reputation, such as a bookkeeper alleged to have committed fraud against a third party - the employer would be arguably within its rights to expect the bookkeeper to give it notice of the allegations so it can prepare for any press attention that might come its way. I could see a court or arbitrator noting the difference between disclosing the fact of a criminal allegation and disclosing particular information that could incriminate.”
See Canadian Pacific Kansas City Railway and Teamsters Canada Rail Conference (Falcetta), Re, 2024 CarswellNat 2329.
