Employee faced with long trial and jail time
Question: Does an employer have to keep an employee’s job open while he is on trial or in jail? If so, is there a cut-off on how long the employer is expected to hold the job if the employee is incarcerated for a long period of time?
Answer: In August, Edmonton Oilers goalie Nikolai Khabibulin was convicted of three charges of driving under the influence and speeding in Arizona. He was sentenced to 30 days in jail and will miss training camp as a result. Should the Oilers terminate his contract?
Unfortunately, the Oilers are the not the only Canadian employer who face the dilemma of whether to terminate an employee who is absent from the workplace awaiting trial, at trial or due to a criminal conviction.
An employer cannot dismiss an employee simply because the employee has been charged with a criminal offence. There are limited exceptions, such as when the employee has committed a crime of moral turpitude which may affect the employer’s reputation, or the conduct leading to the criminal charges severely impacts the employer. However, generally a criminal charge does not constitute just cause for dismissal.
There is no legislation guaranteeing an employee’s job while she attends a criminal trial or serves a sentence. In addition, no Canadian jurisdiction has adopted legislation that provides an employee with a statutory right to a leave of absence from work to attend a trial or serve a jail sentence. However, the common law has developed in such a way that if an employee requests a leave for one of these reasons, there is some onus on the employer to grant it and preserve the employee’s job.
For 30 years, arbitrators and courts have turned to a balancing approach in determining if an employee’s job should be held while she serves jail time. In Alcan Canada Products v. U.S.W.A., an employee jailed for 41 days challenged his termination. The board balanced the employee’s work record, the nature of his offence and the duration of the jail sentence against the inconvenience to the company and disruption of production. Since the disruption to the company was minimal, the grievor was reinstated.
In unionized environments, the collective agreement often addresses an employee’s entitlement to take a leave of absence, and the degree of discretion an employer has in granting or refusing that leave. If a leave is requested, the central issue is whether the employee has some entitlement to that leave, rather than the reason for it. Where the collective agreement provides that the employer has discretion to grant or refuse a request for leave, arbitrators have consistently held the discretion must be exercised reasonably, without bad faith, discrimination or arbitrariness.
In Norampac Inc. v. C.E.P., Local 882, an employee sentenced to 26 months in jail was reinstated on the grounds the employer unreasonably denied his request for a leave of absence. The court upheld an arbitrator’s finding that the employer had not acted reasonably in denying the leave because it did not prove a serious impact on the workplace.
When an employee requests a leave of absence to accommodate a jail sentence, the employer, in exercising its discretion to grant or refuse a leave, must balance its interest in production with the employee’s interest in continued employment.
Where an employee is absent for a shorter period of time, awaiting trial or attending trial, it will be more difficult for an employer to show the employee’s absence creates a serious impact on the workplace. On the other hand, where the employee is facing a longer jail sentence, the employer may be able to demonstrate the absence will create a strain on the workplace.
For more information see:
•Alcan Canada Products v. U.S.W.A., (1974), 6 L.A.C. (2d) 386 (Ont. Arb. Bd.)
•Norampac Inc. v. C.E.P., Local 882, 2003 CarswellNB 362 (N.B. Q.B.).
