Employer investigation separate from legal proceedings
Question: One of our employees was charged for an offence he committed while at work. We investigated the incident according to company policy and found his conduct to warrant dismissal. Can we fire him before his legal case is decided? What happens if he's found not guilty?
Answer: The question if and when an employee can be terminated for criminal conduct will depend on a variety of factors. If the employer was relying solely on the charge and did not have independent facts of misconduct, there would certainly be a risk in terminating the employee prior to the hearing of the criminal case. However, in the circumstances you have described, the employer has apparently conducted its own investigation and established, to its satisfaction, the facts underlying the charge did occur and are sufficient to justify dismissal. In such circumstances (and provided the employer does not tie its grounds for termination to the outcome of the criminal proceedings), the employer should be able to terminate the employee without awaiting completion of the criminal proceedings.
Criminal charges may be dismissed for reasons unrelated to the existence of the misconduct. Also, the Crown’s burden of proof in relation to a criminal charge is more onerous than that on an employer. An employer is typically required to bring forward clear and cogent evidence of the misconduct. However, this is still a lesser standard than the proof beyond a reasonable doubt that must be shown to sustain a criminal conviction.
In Toronto (City) v. C.U.P.E., Local 79, the Supreme Court of Canada held a criminal conviction could not be tried again in another forum with a different conclusion (in that case, a grievance arbitration). However, there was nothing in the decision to suggest it would also apply to an acquittal, stay, discharge or withdrawal of charges.
In Alberta (Solicitor General - Correctional Services Division) v. A.U.P.E., an arbitration board held the Toronto (City) case did not mean an employer would be bound by the disposition of criminal charges other than by conviction:
“Such a thing, in my view would inextricably tie an employer to the success of the criminal law system. It would lose the independent ability to consider its own reasons and the available evidence known to it at some point as the workplace manager, and make its own informed decision on whether to proceed with discipline or discharge on the basis of the facts as it understands them and is willing to prove on clear and cogent evidence in the parties’ own forum, being the arbitration hearing.”
Accordingly, if an employer determines on the particular facts that it has a provable case of just cause, it need not feel obliged to put off a dismissal until criminal proceedings have concluded.
For more information see:
• Toronto (City) v. C.U.P.E., Local 79, 2003 CarswellOnt 4328 (S.C.C.).
• Alberta (Solicitor General – Correctional Services Division) v. A.U.P.E., 2003 CarswellAlta 1977 (Alta. Arb. Bd.).
Tim Mitchell is a partner with Laird Armstrong in Calgary who practices employment and labour law. He can be reached at [email protected] or (403) 233-0050.
Answer: The question if and when an employee can be terminated for criminal conduct will depend on a variety of factors. If the employer was relying solely on the charge and did not have independent facts of misconduct, there would certainly be a risk in terminating the employee prior to the hearing of the criminal case. However, in the circumstances you have described, the employer has apparently conducted its own investigation and established, to its satisfaction, the facts underlying the charge did occur and are sufficient to justify dismissal. In such circumstances (and provided the employer does not tie its grounds for termination to the outcome of the criminal proceedings), the employer should be able to terminate the employee without awaiting completion of the criminal proceedings.
Criminal charges may be dismissed for reasons unrelated to the existence of the misconduct. Also, the Crown’s burden of proof in relation to a criminal charge is more onerous than that on an employer. An employer is typically required to bring forward clear and cogent evidence of the misconduct. However, this is still a lesser standard than the proof beyond a reasonable doubt that must be shown to sustain a criminal conviction.
In Toronto (City) v. C.U.P.E., Local 79, the Supreme Court of Canada held a criminal conviction could not be tried again in another forum with a different conclusion (in that case, a grievance arbitration). However, there was nothing in the decision to suggest it would also apply to an acquittal, stay, discharge or withdrawal of charges.
In Alberta (Solicitor General - Correctional Services Division) v. A.U.P.E., an arbitration board held the Toronto (City) case did not mean an employer would be bound by the disposition of criminal charges other than by conviction:
“Such a thing, in my view would inextricably tie an employer to the success of the criminal law system. It would lose the independent ability to consider its own reasons and the available evidence known to it at some point as the workplace manager, and make its own informed decision on whether to proceed with discipline or discharge on the basis of the facts as it understands them and is willing to prove on clear and cogent evidence in the parties’ own forum, being the arbitration hearing.”
Accordingly, if an employer determines on the particular facts that it has a provable case of just cause, it need not feel obliged to put off a dismissal until criminal proceedings have concluded.
For more information see:
• Toronto (City) v. C.U.P.E., Local 79, 2003 CarswellOnt 4328 (S.C.C.).
• Alberta (Solicitor General – Correctional Services Division) v. A.U.P.E., 2003 CarswellAlta 1977 (Alta. Arb. Bd.).
Tim Mitchell is a partner with Laird Armstrong in Calgary who practices employment and labour law. He can be reached at [email protected] or (403) 233-0050.
