‘With human rights law… the convictions don't have to be the sole factor in the decision to terminate’
An employer discriminated against a worker by terminating his employment because of criminal convictions unrelated to his work duties, despite the fact that it had other reasons for termination, the British Columbia Human Rights Tribunal has ruled.
“When an employer comes across information that causes it to want to end the relationship, before you take any of those steps, do your due diligence and make sure you have all the information available to you,” says Trevor Thomas, a partner and co-founder of Ascent Employment Law in Vancouver. “And whenever you have someone with performance issues, make sure they’re well documented, especially during the probationary period.”
The worker had issues with undiagnosed mental illnesses when he was in his early 20s. He became fixated on money and drew up a plan to rob a bank to prove that money was a myth – a period that was later diagnosed as “full-blown psychosis.”
In December 2014, he followed through on his plan and robbed a bank. He was charged with bank robbery and also with obstruction of justice after he communicated with a witness. In December 2016, he was convicted of both charges and sentenced to nine months in jail. During his incarceration, he made efforts to heal himself.
Moving on from legal, mental health issues
After his release, the worker received psychiatric treatment. He started taking medication, developed strategies to deal with his mental health issues, and started helping people. He had no legal trouble after 2017.
In 2018, the worker started using a different last name after people kept treating him differently when they found online news articles about his convictions. He started the process of legally changing his name shortly thereafter.
In early 2020, the worker applied for the position of product support specialist with MotiveWave, a small company that sold software for online financial trading owned by a married couple. He used his new last name and, when he was asked if he had any criminal convictions, he said no. He didn’t consider his convictions related to the job or the safety of the owners’ young children in the home – the company was run out of the owners’ basement.
MotiveWave hired the worker and he started on Aug. 24. On his second day of work, he completed forms with his banking information, on which he had to put his real last name. The owners were surprised but didn’t follow up.
Work performance, attitude concerns
Over the next week, the owners had concerns about the worker’s performance, including his focus, inability to complete assigned online courses, and spending too much time trying to change MotiveWave’s website, which wasn’t part of his job.
The female owner was concerned about her interactions with the worker. He was demanding and made a few concerning comments about his previous job and his girlfriend, and he asked to get back-end access to the company’s website, which was restricted.
Other than a couple of times when he was told to focus on his work, neither owner raised their concerns with the worker, as he seemed anxious.
By Sept. 1, the owners were considering whether to let him go. They scheduled a call with the other employees on Sept. 2 to discuss whether it was worth continuing to employ the worker.
However, on the afternoon of Sept. 1, the female owner was alone with the worker in the office and he came to her desk, asking for back-end access to the website and wanting to show her his ideas. According to the female owner, he was aggressive and leaned on her desk, making her feel intimidated. She said no several times, and he stood over her waving his hands before leaving.
Termination decision
The female owner was shaken and both owners decided to terminate the worker’s employment the next day.
The female owner remembered the worker’s real last name and decided to conduct an online search, leading to the discovery of his criminal convictions. They were shocked and felt that he posed a safety threat to their children, so they called him immediately. It was 9 p.m.
They asked the worker if the articles were about him and the worker said yes, admitting that he had lied in his interview. The male owner told the worker, “As a father, I can’t have you working in my house” and that he was fired effective immediately. The worker tried to explain the circumstances around his convictions, but the owners wouldn’t change their minds.
The next day, the worker filed a human rights application alleging discrimination in employment and claiming compensation for 18 months’ lost wages and injury to dignity. He stated that the termination had a significant impact on his mental health, as the owners indicated to him in the phone call that “the only reason they fired me was because of my criminal history and it had nothing to do with who I was as a person, or the work I did as a worker.”
On Sept. 3, MotiveWave sent a letter of termination stating the reason for his termination was that he was “not a good fit with the team or the tasks assigned to you.”
The company also argued that the worker’s convictions were related to his employment because the workplace was the owners’ home, where there were three young children, and his crimes were “violent and threatening.” The worker’s position also involved access to banking and private customer information, the company added.
Discrimination based on criminal convictions
The tribunal noted that the BC Human Rights Code prohibits discrimination in employment based on an unrelated criminal conviction, and this was due to “unjustified social stigma and exclusion” that made it more difficult for people to reintegrate into society.
The tribunal found that the worker’s criminal convictions were a factor in his termination. The owners acknowledged that the decision to terminate the worker’s employment on Sept. 1 was prompted by the discovery of his convictions. While MotiveWave had already been considering terminating for performance-related reasons, the immediate decision to terminate that evening was based on the criminal convictions, said the tribunal.
“The tribunal understood that MotiveWave had a legitimate, non-discriminatory reason for firing the worker, which it sounds like they were planning to do on Sept. 2,” says Thomas. “But the employer admitted that it didn’t offer any explanation for his termination other than the criminal conviction - and the thing with human rights law is that the convictions don't have to be the sole factor in the decision to terminate, they just have to be one piece of the puzzle.”
The tribunal found that the offences were committed when the worker was young and during a period of untreated mental illness for which the worker had since received treatment, and the worker had demonstrated a commitment to rehabilitation. There was no evidence of any threat to the business or to the children in the home office, the tribunal said in finding that the convictions were unrelated to the worker’s employment - adding that the worker’s convictions hadn’t been repeated or involved children.
Non-discriminatory reasons for firing
However, the worker’s claim for wage loss was denied. The tribunal found that, even if MotiveWave hadn’t learned of the convictions, the worker’s employment would have been terminated the following day for non-discriminatory reasons. As a result, there was no wage loss attributable to the discrimination, said the tribunal.
The lack of damages for wage loss emphasized MotiveWave’s misstep in the phone call, says Thomas.
“There were already two strong, non-discriminatory reasons for the termination - the performance issues and the lying about his last name - so the criminal convictions didn’t even have to come up during any explanation of the reasons for termination,” he says. “The immediacy of the need to call him was a big misstep – they could have said, ‘We don't need you to come in tomorrow,’ and then do more due diligence and get some advice about what to do.”
The tribunal ordered MotiveWave to pay the worker $10,000 in compensation for injury to his dignity, feelings, and self-respect, as the manner and reason for his termination had a significant negative impact on his mental health and wellbeing.
“[The worker] was a member of a protected class by having past criminal convictions, there was adverse treatment in the fact that he was fired, and there was a connection between those two things,” says Thomas. “Once you establish those three factors, you basically made out your case for discrimination, even if there were non-discriminatory reasons for termination as well.”
“It would be a different story if the phone call was simply to say, ‘Your performance hasn't been great, I'm sorry but we have to let you go’ and then hang up the phone,” he adds. “In that situation, we wouldn't even be talking about this case, but the employer was clearly talking about the conviction during the phone call, and that’s a direct link to the decision to terminate.”
