Employment lawyers discuss legalities, best practices for employers handling misconduct allegations after-hours
An incident that unfolded in a Barcelona taxi on May 13 has landed three Toronto police officers before a Spanish court – and placed their employer in the difficult position of acting on serious allegations it had no role in investigating.
Two of the officers face charges of sexual assault and assault causing injuries; a third was charged with attacking an “agent of authority”. Toronto Police Service (TPS) confirmed the arrests, telling reporters that all three were off duty and on vacation at the time – not travelling in any official capacity.
TPS also confirmed that two officers were arrested on May 13; a third was tracked down days later in Palma de Mallorca; all three appeared before a Spanish court on May 15
Suspension, pay, and the presumption of innocence
"The allegations are serious," said Toronto Police Service (TPS) spokesperson Stephanie Sayer. She has confirmed that all three officers have returned to Canada and are suspended with pay under the province's policing act.
TPS is awaiting further details from Spanish authorities before determining whether suspension without pay is legally available to them, Sayer said Wednesday morning.
Mark Baxter, president of the Police Association of Ontario, told CBC that whether these officers could be suspended without pay is complicated by the fact that the alleged offences occurred abroad.
He added that release conditions could change that calculation – if bail terms prevented an officer from carrying a firearm or accessing police databases, for example, their ability to perform core duties would be compromised.
"Obviously they can't perform the duties of a police officer because they can't carry a firearm,” Baxter said in an interview with CBC’s Metro Morning. He added that non-public-facing police work can also be an option for officers suspended with pay, if it's approved by a police chief.
Options for non-unionized employers
However, this type of legislative framework is one most private-sector employers do not have; in non-union workplaces, the calculation is less prescribed, and wrongful dismissal exposure rises sharply when employers move too fast.
For non-unionized employers, Zack Lebane, employment lawyer with Sherrard Kuzz in Toronto, says the starting point is almost always paid leave, and he's clear on the risk of doing otherwise.
"If they are suspended without pay, that could, in some circumstances, be considered a constructive dismissal."
Sarah Di Liello, employment lawyer with Nelligan Law in Ottawa, echoes Lebane's caution: "There is no one-size-fits-all approach when responding to employee off-duty misconduct, particularly where the allegations are serious or have attracted media attention."
Unless an employment contract "expressly permits" unpaid suspension, she says, "placing an employee on an unpaid leave may expose the employer to a constructive dismissal claim, particularly where the suspension is lengthy."
What justifies discipline without a conviction?
Explaining the key factors for justified discipline in unionised workplaces, Lebane points to reputational harm for the employer, if the misconduct prevents the employee from performing their duties satisfactorily, prompts coworkers to refuse to work alongside them, or disrupts the employer's ability to manage its workforce.
"An arbitrator may also consider criminality in its assessment of the harm to an employer's reputation," he says.
Di Liello stresses that the connection between the misconduct and the workplace is central to any analysis.
"An employer may not be justified in terminating an accountant charged with impaired driving," she says, "but termination may be justified where the accountant is charged with financial fraud, depending on the circumstances."
She points to Kelly v. Linamar Corporation as an example of where termination for cause was upheld before any conviction: the court found it justified after an employee was charged with possessing child sexual abuse material and the case attracted significant public attention.
"Most importantly, employers should conduct a reasonable investigation and provide the employee with an opportunity to respond to the allegations," Di Liello adds.
"Although an employee may decline to participate on the advice of criminal counsel, the employer should still give the employee an opportunity to be heard."
The reputational stakes were made explicit by Toronto Police Service Board chair Shelley Carroll.
"The people of Toronto expect police officers to uphold the highest standards of conduct, both on and off duty," Carroll said in the CBC article.
"To maintain public trust, these matters must be dealt with swiftly and seriously by the Toronto Police Service."
If charges are stayed or withdrawn
Courts and arbitrators in Canada have consistently held that off-duty conduct can justify discipline or termination when it creates reputational harm to the employer or undermines an employee's ability to do their job.
Di Liello is direct about the risk employers take if they act before proceedings conclude.
She cautions that bad faith conduct, aggravated damages, and punitive damages are all potential outcomes if employers act too quickly, adding that federally regulated employers face added exposure under the unjust dismissal provisions of the Canada Labour Code, where an adjudicator may order reinstatement with full back pay.
"If an employer terminates an employee based on off-duty conduct or criminal charges and the employee is later acquitted, the employer may face a wrongful dismissal claim," Di Liello says.
"The risk may be greater where the employer took an aggressive approach – for example, alleging just cause and refusing to provide even minimum statutory termination entitlements."
