Board backs employer on criminal records

Agency claims insurance unobtainable if employees kept

A Saskatchewan Labour Relations Board panel has ruled that a non-profit corporation was justified in placing two workers on leave after learning they had criminal records.

In June, Lea Bage and Pamela Belanger were put on paid administrative leave from their jobs at the Welfare Rights Centre in Regina. The agency provides trustee, advocacy, family support and housing services to low income families. Bage, the office administrator, had been with the centre since 2005; Belanger, the agency’s trustee, joined the staff in 1998.

Both women had prior criminal convictions for minor offences, according to CUPE national representative Guy Marsden, and had disclosed them to the agency’s previous executive director.

Under the new executive director, Marg Friesen, a policy requiring employees to provide criminal record checks was implemented under the requirements of the Ministry of Social Services.

Bage acknowledged her criminal conviction but refused to reveal the nature of it. Belanger complied and Friesen determined the two offences were “of a nature which are related to her duties as trustee,” according the labour board ruling.

Friesen consulted the agency’s insurance company and was told no coverage could be provided for either woman based on their criminal past, even if they were to receive a pardon.

In an interview, Friesen said she did not want to discuss the details of the case. However, she said she did have “a due diligence” because the agency is entrusted with public funds.

“I can’t turn a blind eye to the law,” she said.

The board agreed, acknowledging the issue of criminal record checks is “a hot topic” for employers and suggesting “the employer’s hands are tied in attempting to find a resolution to its insurance problem.”

However, CUPE argued the decision had less to do with the law and more to do with “an anti-union animus.” The bargaining unit was only certified in January 2010. With only six permanent members, two of whom were Bage and Belanger, Marsden accused the centre of trying to destabilize the new local.

More egregious, he said, is that the request for the criminal record check came after certification and before the union could negotiate the first collective agreement.

“They’re trying to get rid of the union,” he said. “We have been getting the runaround setting bargaining dates. It was only after the unfair labour practice charges were filed that we finally got some dates nailed down.”

Marsden said the agency should have consulted other insurers about providing coverage if the women were pardoned (both are in the process of seeking a pardon) or asked about paying higher premiums.

“They didn’t even try to explore it,” he said, noting the women’s convictions go back “several” years.

The board sided with CUPE on the issue of labour relations harm, noting the union had more to lose by the loss of the two women within the agency.

Since the hearing in July, the two women have been terminated. Marsden said he is concerned criminal record checks may be used for disingenuous means in future.

“There are large philosophical issues at play,” he said. “If used too aggressively, they can be discriminatory. In this situation, these women put their criminal records behind them and were gainfully employed. A large number of their clients have criminal records. Who can identify better with them?”

However, Friesen said it comes down to the law.

“There’s no term on how long ago the conviction was,” she said. “It was not an easy decision.”

Still, with the collective agreement still under negotiation, Marsden hopes to insert a “no discrimination” clause with respect to criminal record checks.

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