You find out a worker has a criminal history – can they be fired?

'Kneejerk reactions are the ones that are going to get to the Human Rights Tribunal': employment lawyer discusses recent Quebec case in explaining how HR should proceed

You find out a worker has a criminal history – can they be fired?

A recent decision by the Quebec Administrative Labour Tribunal provides essential guidance for employers navigating the complex intersection of criminal histories, employee privacy and business interests.  

The Tribunal found in favour of an employee who had been terminated following a publicized arrest for real estate fraud. 

While the employer argued the dismissal stemmed from prior civil judgments against the employee, the tribunal found the dismissal was, in fact, motivated by the criminal charges — a crucial difference because the Quebec Charter of Human Rights and Freedoms protects employees from being dismissed for criminal charges unrelated to their work. 

The tribunal annulled the dismissal and ordered the employee be reinstated within eight days with all rights and privileges restored. 

Employees with criminal charges: a lesson for all employers 

B.C. employment lawyer Fiona McFarlane says it’s an important reminder for employers everywhere in Canada that employment decisions involving employee criminal charges or histories cannot be made hastily. 

“This is, I understand, for a lot of employers, tough, but it's a very important step,” says McFarlane. 

“The kneejerk reactions are the ones that are going to get to the Human Rights Tribunal, are going to get a determination that it was discrimination.” 

The case, Niphakis c. Indeed Canada Corp., 2024, involved Constantine Niphakis, a sales team leader since 2018 at Indeed Canada. Niphakis, who the tribunal noted was “an exemplary employee and has a clean disciplinary record” (all quotes translated) and placed on suspension, then terminated following a short investigation by Indeed.  

As detailed in the decision, the fraud charges were unrelated to his employment as an account manager: “His role is that of a mentor and he does not hold a very senior hierarchical position in the company,” the decision read.  

“Also, he does not have to handle money or advise his clients in this regard or in the real estate field.” 

HR director testimony played large part in tribunal decision 

While the employer argued the dismissal stemmed from prior civil judgments against Niphakis, the tribunal found the dismissal was, in fact, motivated by his criminal charges. 

Central to the hearing was the testimony of the HR director who conducted the investigation into the employee’s criminal charges. She told the tribunal that the news coverage of the real estate fraud in November 2022 was what triggered the employer to research Niphakis’ history and discover past civil judgements, which she said led to the termination. 

The HR director was also unable to prove a substantial connection between the latest fraud charges and Niphakis’ role – as the tribunal detailed in the decision: 

“She explains that as an account executive in the sales department, the complainant had direct contact with a varied clientele ranging from health care to real estate companies. In addition, the fraud is irreconcilable with the position of team leader that he held at the time of the termination. In [the director’s] opinion, his conduct put both the company and the customers at risk, who had to be treated as a priority.  

“… It appears that half of the questions relate to his arrest and criminal charges, while the other half concern the civil judgments rendered against him and the companies he owns. Indeed, at the beginning of the interview, he was asked if he admitted to having been arrested in November 2022 in connection with charges of fraud in the context of a home purchase program, what is the nature of the charges and at what stage of the criminal proceedings are at stage.”  

The tribunal pointed out that the employee had been working successfully for four years prior to the discovery of the past civil judgements. It agreed with Niphakis that Indeed had used the prior judgements as pretext, “to camouflage the real cause of his dismissal, that is, the criminal charges against him. 

“It must be concluded that the criminal charges are truly part of the cause of the complainant's dismissal. The evidence shows that a significant part of the investigation relates to the arrest and the criminal process,” the tribunal noted. 

Employee criminal record disclosure during hiring process 

During the hiring process, employers often face questions about whether to inquire into criminal histories. In Niphakis’s case, his prior civil judgments for fraud—occurring before his employment—became a focal point. However, the tribunal ruled that these judgments were unrelated to his job and did not justify dismissal: “These civil judgments took place before he was hired and, at the time of his dismissal, the complainant had been employed for more than four years without any problems arising.” 

McFarlane advises caution when criminal history disclosures arise during the hiring process. Each situation is highly fact-specific, she warns, and employers should approach such scenarios with curiosity rather than judgment, to avoid potential human rights violations. 

“If you judge somebody before they've come into that interview, that's you coming to the table with a stereotype about somebody with a criminal conviction,” she says. 

“That's where you get into trouble under human rights law.”  

Maintaining trust while upholding employee rights 

Trust is central to employment relationships, and employers may argue that undisclosed criminal histories can damage the employment relationship, even when unrelated to the job.  

However, as the tribunal in Niphakis made clear, employers must demonstrate a direct and objective link between an employee’s criminal record and their job duties; employers cannot claim concerns about societal or reputational harms as grounds for termination if there is no tangible evidence of operational harm. 

“You can't just assume that because somebody has one conviction that they're going to do it again,” says McFarlane. 

“So that's again where thinking about bigger picture—is it connected to the job, this conviction? Is the conviction 20 years ago, or is it two weeks ago?  

When employers are looking to hire and there's something they're not sure about, such as a criminal conviction, they should pause, she says. 

“Really take a few more steps to go, ‘Is this really something that means we can't go forward with this applicant, or is it something that we should ask about in the interview, and maybe they'll provide us an explanation?’” 

Employers encountering employees charged with offenses face the challenge of balancing operational needs with fairness. Suspension with pay is often the most cautious approach, McFarlane advises, allowing the employee time to assess the situation, without prematurely terminating employment, “because there's a lot of time and effort that goes into defending yourself in a criminal conviction and a criminal process,” she says. 

However, she warns against overly hasty measures: “If it's all done quickly without sensitivity, then definitely at some point that employee could come back to you as the employer and say, ‘You wrongfully terminated me. It was a constructive dismissal.’” 

Being sensitive and avoiding risks: recommendations for HR managers 

To help HR professionals manage these situations effectively and fairly, McFarlane recommends the following best practices as a roadmap for fostering compliance, trust, and fairness in the workplace: 

Be forthcoming: Maintain clear and sensitive communication with employees about expectations, potential impacts of criminal histories, and their rights. 

Establish clear policies: Develop transparent policies on handling criminal charges and histories, ensuring compliance with human rights and labor standards. 

Avoid assumptions: Focus on facts rather than stereotypes. As McFarlane notes, “You need to do it carefully. And again, stereotypes—don't bring a stereotype into the interview room.” 

Seek legal counsel: Consult employment lawyers to navigate complex scenarios, particularly when trust and discrimination issues arise. 

Defer to legislation: At the end of the day, tribunals and courts follow the law, so when designing workplace policies, ensure they adhere to current laws. Be sure policies are up to date. 

If there is a reasonable cause to terminate the employee after all these steps are taken, McFarlane still recommends caution. 

“I would strongly recommend that it be a termination without cause, so that you then can reasonably manage the ending of the employment relationship,” she says, citing as an example: “We found something out that has impacted our relationship. You're no longer a good fit, but we want to provide a severance package to allow you to transition to other employment.” 

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