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Working with conviction

A criminal charge and conviction doesn’t necessarily spell the end of the employment relationship, even in positions with a high amount of trust and responsibility

By Jeffrey R. Smith

What employees do when they’re not at work isn’t the business of the employer — usually. But when an employee is up to no good and it could potentially affect the employer, it could be a different story. And if the employee’s duties require a substantial element of trust, the way the employee conducts herself could be relevant.

Things can ramp up if an employee’s bad behaviour results to trouble with the law and charges. Sometimes the employee might be able to cover it up and nobody’s the wiser, but what if the result of the charges directly affects the employee’s ability to do her job?

An Ontario correctional officer had to deal with such circumstances when, after going through some stress in her personal life, she had too much to drink one evening and tried to drive home. She was pulled over by police and a breathalyzer test revealed her blood alcohol level was well over the legal limit. Her driver’s licence was suspended and she was charged with impaired driving — criminal charges.

The correctional officer was ashamed and embarrassed, so she didn’t tell anyone in her family. She also didn’t tell anyone at the facility where she worked, as she was fairly new and didn’t really trust anyone to keep the information secret. She had someone drive her to work while her licence was suspended and told no one for two years while her case proceeded through the legal system. She held out hope the charges would be reduced to careless driving — a non-criminal charge.

However, her employer had a policy for correctional officers to disclose any criminal charges, as these could lead to conflicts of interest or other problems in their duties dealing with convicted criminals. After a couple of years, the officer learned her charges wouldn’t be reduced so she decided to plead guilty. She was convicted and sentenced to a one-year licence suspension and a fine.

At this point, the officer decided she couldn’t hide the conviction any longer, and told management. She also asked for accommodation in having all her shifts scheduled the same as a co-worker who had agreed to drive her to and from work during her licence suspension.

Afterwards, a co-worker told the officer about rumours circulating about a suspension. The officer was later suspended with pay pending an investigation, which later resulted in a decision to terminate her employment for dishonesty and violating an important workplace policy.

Grievance settlement board

A grievance settlement board found there wasn’t just cause for dismissal, due to several factors. First, the officer’s failure to inform the employer of the charges didn’t directly affect her ability to do her job, as she had made arrangements to get to work. Second, she was motivated by shame and embarrassment and had quit drinking and smoking following the incident, leading the board to find she could still be trusted. In addition, her concerns over her privacy seemed to be validated when it turned out rumours were spreading about her suspension, said the board.

Finally, though she waited two years, the officer did inform her employer of the charges — it may not have found out otherwise. This showed some form of honesty and an acknowledgment of her misconduct. Additionally, the officer was extremely remorseful. The board ordered the officer to be reinstated with a 20-day unpaid suspension.See OPSEU (Lunario) and Ontario (Ministry of Community Safety and Correctional Services), Re, 2015 CarswellOnt 13426 (Ont. Grievance Settlement Bd.).

Serious employee misconduct while off-duty that leads to legal trouble doesn’t always mean the employee can’t be trusted anymore. The motivations and circumstances surrounding the matter should be considered. Even someone in a position of significant trust and responsibility, such as a corrections officer, may still be able to meet his obligations after serious legal trouble resulting in criminal charges. Like many circumstances involving employee misconduct, it’s not a good idea to assume dismissal is warranted.

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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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