Murky past, just cause in present

A British Columbia worker who was fired for refusing to complete a criminal records check was not discriminated against because of a previous criminal conviction, the B.C. Human Rights Tribunal has ruled.

Paladin Security Group is a provider of security services for commercial and residential properties in B.C. as well as across Canada. Its client list includes several health-care facilities for vulnerable people. Any Paladin security guard can be assigned to any location for which Paladin provides security, including health-care facilities. The only exception is if a security guard voices a concern over a particular type of site.

Since Paladin can assign its security guards anywhere, all of them were required to complete a criminal record check (CRC) as a condition of employment with the company that included a check for working with children or vulnerable adults. This is reflected in Paladin’s contracts with health-care facilities, which states that all employees working at those sites have completed a CRC before working there.

In July 2017, Paladin interviewed Vladimir Kompaneets at a career fair it was hosting. Kompaneets, who was applying for a security guard position, agreed to undergo a CRC before starting work with Paladin. He also filled out a standard questionnaire the company gave to job applicants and indicated he had never been charged with or convicted of a crime and he had “no concerns” about submitting to a CRC and accompanying fingerprint verification.

On July 17, Kompaneets signed an employment contract with Paladin beginning with a three-month probationary period. The contract indicated that, during this period, it could terminate Kompaneets’ employment for any performance-based reason.

Kompaneets also signed a CRC consent form, including for a check “for working with children and/or vulnerable adults.”

Ten days later, the B.C. Ministry of Public Safety and Solicitor General contacted Kompaneets to inform him that it had processed his CRC, but there was a snag. While conducting the CRC, the ministry found that his personal information matched the data of a pardoned offender, so it couldn’t complete the check until Kompaneets submitted his fingerprints to the Royal Canadian Mounted Police (RCMP). The ministry emphasized that it wasn’t accusing him of criminal activity and that the fingerprints would be used only to confirm his identity.

Kompaneets wasn’t keen to submit his fingerprints, so the ministry explained that the CRC included a vulnerable sector check in which, if two of his name, date of birth and gender matched that of a pardoned sex offender, a second screening with fingerprints was necessary. The ministry stated that “fingerprinting for vulnerable sector screening is a standard procedure that has to be performed for a large portion of the adult population. The fact that your fingerprints are being requested for a vulnerable sector check does not single you out in any way.”

Paladin reminded Kompaneets that he was required to complete the fingerprint verification for the CRC, as “employees of Paladin Security may work at hospitals and other provincial facilities were vulnerable people receive care, therefore the potential for unsupervised access exists.”

While this was happening, Kompaneets was working for Paladin as a probationary employee. Some issues cropped up with his work performance, including at least two occasions when he reported for work when he wasn’t scheduled to work as a result of his repeated failure to check his shift schedule. He also had difficulty writing down his patrols, communicating on the radio, unlocking doors with the computer and not always patrolling areas assigned to him.

Worker refused fingerprint verification
On Sept. 25, Kompaneets told Paladin that he would not complete the fingerprint verification. Paladin responded by saying that, if he didn’t complete it, his employment could be terminated for not having a CRC. Kompaneets reiterated that he would not complete the verification.

On Oct. 16, Paladin terminated Kompaneets for his performance issues and his failure to complete the required CRC. The company determined that Kompaneets was still on probation at the time of his dismissal.

Kompaneets filed a human rights complaint, claiming that Paladin discriminated against him by terminating his employment on the basis of a criminal conviction — the B.C. Human Rights Code prohibits discrimination by refusing to continue to employ a person “because that person has been convicted of a criminal or summary conviction offence that is unrelated to the employment or intended employment of that person.”

Paladin applied to have the complaint dismissed on the grounds that it had no chance of succeeding in a hearing.

The tribunal noted that the termination of Kompaneets’ employment was an adverse impact as defined in the code. However, for there to be discrimination, the adverse impact had to be because of a ground protected under the code.

The tribunal found that there was no evidence that Paladin terminated Kompaneets’ employment because of a perceived criminal conviction. When the company hired Kompaneets, it had no reason to believe that he had such a conviction, as Kompaneets indicated on the job application questionnaire that he didn’t have one and there would be no problem with the CRC. Even during the CRC process, when the ministry requested his fingerprints, it didn’t say anyone was accusing him of committing a crime; it was only because his information matched that of a convicted offender in the database.

The tribunal also pointed out that Paladin couldn’t have known Kompaneets had a criminal conviction since Kompaneets chose not to complete the CRC, which would have determined whether or not he had one. Although Kompaneets suggested that Paladin assumed he had a conviction because of how soon his dismissal came after his refusal to complete the CRC, there was no evidence of this, said the tribunal.

“Without a factual basis, a complainant’s personal belief of discriminatory treatment, no matter how sincerely felt, ‘can only be said to be based on speculation and conjecture, rooted in feelings, suspicions and beliefs,’” said the tribunal in referencing previous decisions confirming the need for evidence of discrimination over subjective interpretation of events — particularly when there is a reasonable non-discriminatory explanation.

Legal requirement
The tribunal found that a non-discriminatory explanation lay in the fact that employers are required by the B.C. Criminal Records Review Act (CRRA) to ensure that employees who work with children or vulnerable adults undergo CRCs. Paladin, as an independent contractor sending employees to health-care facilities that housed vulnerable people, was subject to this requirement.

“In these circumstances, it is reasonably certain that Paladin would prove that Mr. Kompaneets’ failure to complete a CRC compromised not only important public safety requirements set out in the CRRA, but also the contractual representations made by Paladin to its health-care facility clients,” said the tribunal. “It is, therefore, reasonably certain that Paladin would prove that Mr. Kompaneets’ failure to complete a CRC constitutes a reasonable non-discriminatory explanation for Mr. Kompaneets’ dismissal.”

The tribunal determined that the CRRA requirement didn’t unfairly breach the rights of those previously convicted of criminal offences, as it was a legitimate rule for employees working with vulnerable individuals. Paladin didn’t impose a duty on Kompaneets to prove his innocence but rather it only wanted to comply with public safety requirements under the legislation, said the tribunal, noting that it didn’t matter if Kompaneets didn’t work with children or vulnerable adults during his stint — the possibility was there since his employment agreement included the stipulation that as a Paladin employee he could “work at any site and at any time,” including at health-care facilities.

The tribunal dismissed the complaint, finding Kompaneets’ failure to complete a CRC, along with his performance issues during the probationary period, were non-discriminatory reasons for dismissal.

For more information, see:

• Kompaneets v. Paladin Security Group (No. 2), 2020 BCHRT 111 (B.C. Human Rights Trib.).