CUPW challenges move by Canada Post
In the spring of 2013, the Canadian Union of Postal Workers (CUPW) was told Canada Post intended to introduce a policy that would require union members to undergo criminal background checks every 10 years.
The Crown corporation said the new policy would "ensure that we maintain the confidence of our customers through a secure mail stream, a safe work environment for all employees and a quality workforce," according to a CUPW bulletin.
If it’s revealed an employee has a criminal record, Canada Post would require her to be fingerprinted for additional information, such as the nature of the conviction, when it happened and the outcome. The corporation would then request a "resolution of doubt interview" with the employee so she could explain the conviction, said CUPW. A general manager of security and investigation would then decide if this employee has "reliability status" and, if not, she would be terminated from employment.
These kinds of mid-employment checks are becoming more common, according to Fred Dehmel, president of CSI Background Screening in Halifax.
"It only makes sense," he said. "If you think about it, when you’re first hired, they screen to make sure you don’t have a criminal record and then, if they never do it again, you could conceivably go out and commit some major crime, get a criminal record and they would never know about it again. And that criminal record could have a direct effect on the job that you’re doing."
If an employee was hired by Canada Post back in the 1970s or 1980s and never checked again, it seems likely he should expect to be checked again, added Dehmel.
"Canada Post or any employer certainly has the right to protect their assets, their employees, and they have a legal obligation to make sure their employees and customers and clients are all protected from the people that work for them."
Mid-employment checks are now emerging as a trend because of increasingly strict requirements, often from the United States, according to Karen Sargeant, a partner in the labour, employment and human rights group at Fasken Martineau in Toronto. And American companies with Canadian employees are keen to keep that same standard north of the border too.
The issue often arises when employees move into different jobs at the same company, requiring additional security clearances. Sargeant suggests the easy solution is for employers to check workers every few years, as this gives employers greater flexibility when it comes to staffing.
"What happens is people start at certain jobs where maybe they didn’t need a level of clearance. Then, over time, they grow into bigger positions that require different kinds of checks or maybe require them to be bondable or something like that so that, 10 or 15 years down the road, maybe you never did a check for them up front."
Not surprisingly, CUPW objected to Canada Post’s proposed policy change and won a cease-and-desist order. The concern is about privacy and rights, according to Philippe Arbour, national grievance officer at CUPW in Ottawa.
"Every time you give up some rights, you limit your liberty, so it’s a really important decision for us," he said. "The next step, we’ll challenge the decision. For us, it’s a Supreme Court case. Look, I’m really serious, it’s really serious... it’s paranoid."
Further complicating the matter is the fact Canada Post said it reserves the right to change the frequency of the background checks at any time, Arbour explained. That includes checks for transfers, promotions or moves inside the bargaining unit.
"They want to know also about your credit, if you have any debt, if you are bankrupt — it’s more than just criminal acts, it’s also to find out your financial situation. I don’t think it’s required," he said.
It’s surprising Canada Post would wait 10 years to do the checks, said Dehmel, who recommends employers do mid-employment checks every few years. However, within a unionized environment, a longer timeline might be easier to negotiate.
"But certainly it’s fair and it’s certainly understandable that they’d want to redo it. An employer certainly has to do their due diligence to protect their company, their employees and their assets, so they have a right to know who’s working for them and what threats, if any, are within their company," Dehmel offered.
Consent needed
Whether they have a unionized environment or not, employers must have their staff sign consent forms before any mid-employment checks get the green light.
As a result, a lot of employers require new hires to sign a consent form agreeing to checks done every few years as an inherent job requirement.
"If somebody’s refusing to allow their criminal record check to be done, that puts the company in a position where they don’t know this employee, and it certainly could threaten their position in the company, or maybe their job," Dehmel said.
But obtaining consent can be very difficult — especially in unionized workplaces — if a union actively counsels members to refuse, said Sargeant. She questioned whether a staffer’s refusal to give consent could be grounds for termination. Most employment agreements don’t deal with that, which is an important aspect to consider before going forward.
"A failure to consent is unlikely to be cause for termination. In a non-unionized workforce, you could terminate the person but it might be very costly," she explained. "And in a unionized workforce, you may not be able to terminate because it may not be cause. Providing consent would have to be a term and condition of employment before failure to consent could be cause for termination."
The question is whether it warrants disciplinary conduct, said Sargeant. If this wasn’t part of the employment terms when the employee was hired and now, 15 or 20 years later, the employer wants it to be part of the bargain, it would be interesting to see what an arbitrator would do that, she said.
"I would certainly try and do blanket consent that would cover you for now and ever more," she said. "But I would also want to include some sort of provision that they will agree to sign fresh consent, if necessary, and that failure of them to do so would constitute cause for termination of their employment."
And when it comes to the discovery of an "unclear" criminal record, that won’t always lead to cause for dismissal, said Sergeant — so, do you terminate that worker?
"If it doesn’t lead to cause for dismissal, you’re not going to be able to terminate in most unionized settings. And in a non-unionized setting, although you can terminate, the employee would be entitled to pay in lieu of notice, which could be costly depending on his or her length of service and position."
The outcome for employees when a check comes back as unclear can really depend on the employer and the job, according to Dehmel. If it’s a matter of an impaired driving conviction, for example, that could affect an employee who has to cross the border and doesn’t have a pardon, such as a truck driver. The spectrum of offences ranges from break and enters to marijuana possession, though violent offences do come up on a regular basis, he said, adding that roughly 10 to 12 per cent of the population have criminal offences.
However, less than five per cent of offences in Canada are violent offences, and less than 0.1 per cent are as serious as crimes such as rape or murder, according to Azmairnin Jadavji, president and CEO of Pardon Services Canada based in Vancouver.
"It’s mostly garden-variety, ordinary people getting caught."
Recently, his company has been receiving many enquiries from Canada Post employees regarding the proposed mid-employment screening protocol, he said.
"It’s easier and more efficient to do background checks than it ever was before, [because] now it’s more digitized. People can commit offences mid-employment, after they’ve being hired, and at Canada Post in particular, there have been issues, especially in the northern parts of our country where mail has been tampered with. There’s so much important stuff that goes through our mail system that it is important for the consumer, for federal employees and the corporation that the people they’re working with are vetted."
As a result, many employees are looking to obtain a pardon.
"You’ll have employees, for example, who have been there upwards of 10, 15, 20 years and all of a sudden they’re getting this mid-employment check thrown at them. So this clearly isn’t a good thing," said Paulina Zagozda, communications co-ordinator at Pardon Services Canada.
Human rights legislation provides some protection against discrimination based on a criminal record, with variations across Canada. For instance, Ontario, the Northwest Territories and Nunavut only protect pardoned records, while Prince Edward Island, British Columbia, the Yukon and Quebec protect both pardoned and unpardoned records, according to Zagozda.
