Worker denied criminal charges involved anyone at work
This instalment of You Make the Call features a worker who was dismissed after he was criminally charged for off-duty conduct.
The 67-year-old worker was a labourer for Tigercat Industries, a designer and manufacturer of forestry equipment based in Brantford, Ont. The worker worked at Tigercat’s production facility in Paris, Ont., performing his labourer duties as well as sometimes working as a truck driver and material handler. He was hired in 1998, laid off on Dec. 8, 2000, and rehired on Sept. 30, 2002. He was laid off again on Jan. 23, 2009, for shortage of work and was recalled on Aug. 17 of that year.
The worker had four incidents of misconduct during his tenure with Tigercat. The first was in November 2011, when Tigercat accused him of lying when he called in sick for two days while his daughter was having a baby. An email was put in his file but no formal discipline was issued. The second was in January 2013 when the worker moved a load off a trailer that wasn’t properly secured, so it rolled off. The worker was given a warning that he refused to acknowledge because he denied being told how to secure it.
The third incident was in August 2013 when the worker was suspended for one day for another load rolling off a trailer. Tigercat replaced him as a driver but agreed to have him continue in a different role. Then, in October 2014, the worker received another one-day suspension after backing into another vehicle during a mail run. He was taken off the mail run permanently.
On Feb. 5, 2015, the worker was arrested by police at work and was charged with two counts of sexual assault against minors stemming from off-duty events. Tigercat’s vice-president of operations met with him the next day and the worker didn’t provide any details on the charges, other than that they didn’t involve any Tigercat employees.
The vice-president presented the worker with a letter of resignation, but the worker refused to sign it. It was decided the worker would take a two-week leave of absence, but Tigercat issued a record of employment that indicated a layoff from shortage of work.
The worker returned to work on Feb. 23 and he was assigned to the Cambridge, Ont., plant to fill a vacancy there. He worked several hours of his shift until a female employee at the plant told the vice-president that she had previously worked on the worker's farm when she was a minor and the worker had made sexual advances towards her. The vice-president claimed the female employee said she was involved in the criminal case against the worker, though a handwritten note she provided did not state this.
The vice-president met with the worker later that day and raised the issue of the female employee. The worker again said no employees were involved in the criminal charges. However, the worker's employment was terminated for cause based on his conduct, his failure to tell the “whole truth,” his disciplinary history, and “the impact his criminal charges had on Tigercat Industries in general and on his fellow employees.”
You Make the Call
Did the employer have just cause for dismissal?
OR
Was termination not appropriate in these circumstances?
If you said termination was not appropriate, you’re correct. The court noted that “criminal charges alone, for matters outside of employment, cannot constitute just cause.” As a result, Tigercat had to prove the charges had a "justifiable connection” to the company or the nature of the worker's employment.
The court pointed out that the worker was one of several hundred general labourers at Tigercat and didn’t have any managerial or senior role with the company. The charges weren't associated with his employment and Tigercat had no knowledge of the details.
The court found it was unlikely there was any damage or potential damage to Tigercat’s reputation, particularly since the worker was allowed to return to work after a short leave of absence. The only new information Tigercat had once the worker returned to work was the concern from the female employee, who wasn’t involved in the case, though the vice-president may have misunderstood and thought she was. Such a complaint didn’t warrant dismissal, but could have easily been accommodated through other means at a large plant, said the court.
“(The vice-president) mistakenly refers to this employee as being involved in the criminal case. The employee’s handwritten note says otherwise,” the court said. “Assuming this employee’s representation was correct, Tigercat had a duty to accommodate her and (the worker). Dismissal was not the answer.”
The court found the worker was under no obligation to disclose the criminal allegations against him, as the investigation was ongoing. There was also no evidence to indicate he lied when he said the charges didn’t involve anyone at Tigercat, so dishonesty wasn't a reason for dismissal, said the court.
The court also found Merritt’s disciplinary record was relatively minor and the two incidents warranting discipline had been clearly resolved.
