'When an employee can't show up, then they cannot fulfill their part of the employment contract'
A worker who was fired because he was sentenced to 18 months in jail for a criminal conviction is not entitled to statutory termination pay, the Ontario Labour Relations Board has ruled.
“Criminal convictions are not protected under the Ontario Human Rights Code in the employment space,” says Christopher Achkar, an employment lawyer and principal at Achkar Law in Toronto. “With no legislative protection of convictions, the employer didn't want to leave the position open for a year and a half and relied on frustration of employment [as the reason for dismissal].”
The worker joined Dowswell Farms, an Ontario farm, as a seasonal employee in 2011. Each year, he was laid off over the winter and was rehired in the spring. In May 2020, Dowswell promoted him to farm manager on a year-round basis.
On May 13, 2019, the worker was arrested and charged with a criminal offence. He informed Dowswell but he didn’t have to take any time off work as he wasn’t incarcerated.
Nearly three years later, on March 28, 2022, the worker was convicted of the offence and sentenced to 18 months in custody. The worker appealed the conviction and he was released on bail pending his appeal. He continued to work at Dowswell.
The worker lost his appeal on Dec. 19 and he was ordered to start his sentence the following month. On Jan. 26, 2023, he told Dowswell that he wouldn’t be at work the next day because he had to surrender himself to police to begin serving his sentence. He said that he would be absent for an indeterminate period of time.
The next day, the worker’s sister contacted Dowswell by text message. The farm asked how long the worker’s sentence was and she replied that it was 18 months, but he could be out on parole in six months. She also said that he pursuing another appeal.
Dowswell needed the worker’s physical attendance at the workplace and had physical work for him to do, particularly when the planting season began in April. Since the information it had indicated that the worker would be incarcerated for at least six months and up to 18 months, the farm decided to terminate the worker’s employment on Jan. 28 for job abandonment. It issued a record of employment and hired a replacement in late February.
The worker’s sister contacted Dowswell three more times in late January and early February, but she didn’t provide any new information. In early March, she said that the worker had a bail hearing on March 10 and could be released pending further appeal. Dowswell replied that the worker’s employment had been terminated and another employee had been hired to replace him.
The worker was released from custody on March 13 on bail pending his further appeal, but he didn’t reach out to Dowswell. On April 25, he filed a claim with the Ontario Ministry of Labour alleging that Dowswell failed to provide him with statutory termination pay when his employment ended.
No statutory termination pay
An employment standards officer investigated and declined to order Dowswell to pay the worker termination pay. The worker applied to the board for a review of the decision, arguing that Dowswell was kept up to date on his circumstances and didn’t have a reason to terminate his employment. As a result, he was entitled to termination pay, the worker said.
Dowswell maintained that it terminated the worker for wilful misconduct stemming from his criminal conviction that made it impossible for him to perform his employment duties. It also argued that, in the alternative, the worker’s incarceration rendered his continued employment impossible or frustrated the employment relationship.
The board noted that the Regulation 288/01 under the Ontario Employment Standards Act, 2000 (ESA) exempted from statutory termination pay employees who were guilty of “wilful misconduct, disobedience or wilful neglect of duty” or “whose contract of employment has become impossible to perform or has been frustrated by a fortuitious or unforeseeable event or circumstance.” Dowswell argued that the worker’s conduct for which he was convicted and incarcerated was wilful misconduct.
However, the board found that it didn’t need to address whether the worker’s criminal offence amounted to wilful misconduct because of the other exemption in the ESA regulation – the employment contract is impossible to perform or has been frustrated by an unforeseeable event or circumstance.
The board noted that “the basic bargain of any employment contract” is that an employee provides labour in exchange for compensation from the employer. In this case, Dowswell required the worker to be present every day at the farm, but it was impossible for the worker to do so while incarcerated.
Frustration of employment
The board found that at the time Dowswell made the termination decision in late January, the information it had was that the worker would not be able to fulfill his employment obligations for at least six months, or July 2023. This was well past the critical planting season when it needed him, said the board, adding that Dowswell received no new information until more than a month later, well after it proceeded with replacing the worker for the upcoming planting season.
The board also found that when an employee is unable to attend work for any reason, it is their responsibility to seek a leave of absence. However, the worker never did so in his advising of his situation or through his sister’s correspondence. He only said that he wouldn’t be at work because he was surrendering to serve his sentence and he wasn’t granted permission to be absent, the board said.
Without permission to be absent, it was impossible for the worker to perform his employment while incarcerated, which fell under the exemption in the regulation, said the board in dismissing the application for review of the employment standards officer’s decision.
The worker’s inability to work resulted in frustration of his employment, but that might not always be the case if it’s for reasons other than incarceration, says Achkar.
“When an employee can't show up or doesn't show up, then they cannot fulfill their part of the employment contract and everyone goes their separate ways,” he says. “But compare it to a pregnant employee who would need a year and a half for parental leave - the employer is not going to deem that as frustration, they're going to accommodate it because that's a human rights issue.”
It also probably wouldn’t have made a difference if the worker requested a leave of absence anyway, according to Achkar.
“A request [for leave] is a relevant factor to consider, but it doesn’t mandate or force the employer to accept it, because it's not a human rights issue and there's no obligation on the employer’s part or protection for the worker for his condition,” he says.
This decision demonstrates that an employer can terminate an employee if they're incarcerated, but they should investigate before making a decision based on a lack of attendance, says Achkar.
“There may be more beyond the surface - just the lack of attendance itself doesn't justify claiming frustration of employment.”
See West v. J. Dowswell Farms Ltd., 2024 CarswellOnt 589.