Convicted employee fights dismissal

Strapped by legal obligations, union officials in London, Ont. “reluctantly” filed a termination grievance on behalf of a member criminally convicted of aggravated sexual assault against a female co-worker.

The decision of the Canadian Union of Public Employees (CUPE) Local 101 raises issues and concerns problematic for the employer who must maintain a toxic-free environment for its employees.

“The employer is in an untenable position,” says management lawyer Neena Gupta of Goodman Carr in Toronto. “If the employee is reinstated and commits another violent crime against a co-worker in the workplace, there is an argument that the employer is responsible for not taking care for the safety and security of its employees.”

As for the union, they have the unenviable duty of resolving the conflicting legal and moral duties to its members.

“They are caught between a rock and a hard place. It’s a real squeeze,” says Peter Warrian, professor of industrial relations at the University of Toronto.
Last month, a City of London employee was charged and convicted with aggravated sexual assault against a female co-worker. The assault took place off-work premises.

The City of London had given the employee a leave of absence while he was awaiting a trial but later decided to terminate the man after news of the incident and the man’s impending incarceration became public. He was ultimately sentenced to two years less a day, including a restriction placed on him to one floor of City Hall upon his return to work.

In a case last year that dealt with leaves of absence and jail time, the Ontario Court of Appeal ruled in Heynen v. Frito-Lay Canada Ltd., that an employer may have to accomodate an employee who has to serve jail time.

While there are stark differences between the cases, Gupta says those rules would not have applied in the London case.

“I don’t believe Heynen v. Frito-Lay Canada Ltd. should apply to this current case because the crime in this case was on a co-worker and the incarceration period is longer.”

The union was approached by the fired member to file a grievance on his behalf, which the union did, albeit reluctantly, after their investigation time had lapsed and the City of London refused to extend it.

CUPE, which prides itself on its zero-tolerance policy on violence, was left with “little choice” but to represent the accused, says Judy Davis, CUPE regional director for Ontario.

“We are very clear as a union that we have a zero-tolerance policy. It’s my belief that (Local 101) is doing everything it can to assure (the victim) it is doing everything to protect her and that they are sympathetic,” says Davis.

While unions are bound by legal obligations to their members, a Canadian expert on workplace violence says those legal chains may need to be re-examined and re-focused with an emphasis on the victims of workplace violence.

To do otherwise may be jeopardizing the safety of the workplace and the ability of the victim to continue working, says author and consultant Frema Engle of Engle & Associates in Montreal. In the case in London, the unidentified victim has expressed to the union that she “strongly opposes” her aggressor’s return to work.

“It’s time for us to take another look at a union’s obligations when it comes to situations of violence. I think we overlook what happens to the victim when we go through the legal process,” says Engle.

Deciding to restore that worker can be putting the victim at risk for further victimization, what Engle calls secondary victimization. In most cases, says Engle, the victim may go on long-term disability due to a recurrence of trauma.

“Realistically, many victims of assault suffer reactions of trauma. When an aggressor happens to be in the workplace they can’t go back to work (because) it just increases those symptoms. Even if that person is working in another department, (the victim’s) sense of security is threatened,” says Engle.

From a legal perspective, Gupta says the victim may have a valid argument against the employer if the convicted employee is able to return to his job.

“The victim might be able to argue that forcing her to work with the aggressor creates a poisoned work environment or constitutes constructive dismissal.”

The legal theory of “negligent retention” of violent employees, an idea coined in the United States but also applicable to Canadian cases, comes into play if the convicted employee is reinstated and commits another crime in the workplace.

While the moral dilemma faced by the union is clear, Warrian says the pivotal issue is whether an employer has the right to terminate an employee simply because he has been convicted of a crime against a co-worker if that crime happened outside the work gates.

“As an employer I can’t just reach outside the gates. But if the behaviour occurs inside the gate then there may be an employment issue,” says Warrian.
Other issues have to come into play, including previous history of violent behaviour or abusive language toward the victim and other employees, says Warrian.

“Is there a link between that assault and workplace practices? If something was going on at work that’s what you are concerned about. These are dismissal issues,” says Warrian.

Gupta says that the line of reasoning that draws a distinction between off-work and on-work premises even though there is a history of the behaviour “inside” has not been accepted in Canadian employment cases.

“There is a lot of law that says even if the alleged assault happened off premises but there was a history on work premises, it’s still workplace harrasment.”

Scott Gray, director of human resources for the City of London, says the city has been working with other public employers to develop a policy to address workplace violence.

“We’ve recognized how serious it can be and how prevelant it can be.”
Creating those policies, which include clearly defined “appropriate” behaviours and policies which set clear parameters concerning employees who have been convicted of crimes, are the first steps says Engle.

“(Violence) is not just one person’s problem.”

In early August, the Ontario Court of Appeal ruled that sexual assault on a co-worker constitutes cause for termination of employment without notice.

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