Justifying the discipline of an employee for non-work-related conduct that's criminal
by Stuart Rudner and Anique Dublin
In a recent decision, IATSE, Local 210 and Oilers Entertainment Group, an Alberta arbitrator held that while an employee convicted of a criminal offence may deserve a second chance, it cannot come at the expense of significant loss to the employer.
The grievor was employed by the Oilers Entertainment Group (OEG) as a stage worker to help set up production, sound or technical equipment and otherwise assist in setting up large-scale entertainment productions.
Prior to his employment with OEG, the worker was charged with two counts each of sexual assault and sexual interference with a person under the age of 16 years. One of each of the charges was against the daughter of another employee of OEG (the “father”) and his former girlfriend’s daughter.
The worker pled guilty to the one charge of sexual interference involving the father’s former girlfriend’s daughter. After consulting with the father and his ex-wife, the Crown agreed to withdraw the charges relating to the father’s daughter.
The worker was sentenced to 24 months’ imprisonment with an additional term of probation of two years. With credit for time served awaiting trial, the Grievor was released from prison in mid-2018.
On Oct. 12, 2018, while at work, the father spotted the worker in the same workplace. The father immediately informed his manager that he could not be in the presence of that worker and explained that the many was a convicted sex offender who had abused his daughter.
After a lengthy investigation that took about seven months, OEG terminated the worker’s employment for cause. OEG argued that the continued employment of the man would cause significant damage to its reputation and bottom line. Additionally, the father and his other co-workers were detrimentally impacted by the presence of the worker in the workplace.
The union (The International Alliance of Theatrical Stage Employees, Local 210), on behalf of the dismissed worker, brought a grievance for wrongful dismissal. The union argued that OEG’s investigation was inadequate, OEG did not consider any other alternative other than termination and that discharge was excessive.
The grievance was dismissed.
The arbitrator noted that while the facts of the worker’s convictions were “disturbing”, he must remain focused on ascertaining the legitimate business reasons of OEG and must not be driven by a motive to further punish the worker.
As the case involved a just cause termination, the arbitrator had to consider:
- whether OEG had just and reasonable cause for some form of discipline
- If such cause exists, whether the decision to terminate was excessive
- if termination was excessive, what is the appropriate discipline?
In deciding the first point, the arbitrator relied on the decision in Millhaven Fibres Ltd.  OLAA No. 4 which sets out the standard for what an employer must prove to justify the discipline of an employee for non-work-related conduct. The employer only needs to satisfy one of these factors:
- The conduct of the grievor harms the company’s reputation or product.
- The grievor’s behaviour renders them unable to perform their duties satisfactorily.
- The grievor’s behaviour leads to refusal, reluctance or inability of other employees to work with them.
- The grievor is guilty of a serious breach of the Criminal Code and thus rendering his conduct injurious to the general reputation of the Company and its employees.
- Places difficulty in the way of the company properly carries out its function of efficiently managing its work and directing its workforce.
The arbitrator held that factors 2 and 5 did not apply. There was no evidence to suggest that the worker could not perform his duties. Likewise, while the father refused to work the same shifts as the worker, there was no evidence that his presence created any difficulty for OEG to manage its work or direct its workforce.
With regard to factors 1 and 4, OEG argued that its reputation would be harmed if the general public discovered that the man remained an employee despite his conviction for sexual interference with a minor. The arbitrator noted that some convictions, even if serious, may not have the same impact on an employer’s reputation. Society recognizes that past criminal behaviour is deserving of a second chance and an individual who has been punished for their crime should be allowed to move on.
The arbitrator concluded, however, that there are some convictions that cannot be easily forgotten by society. Sexual abuse is now on the higher end of societal intolerance and sexual abuse against a child is even more intolerable. It evokes very negative responses and reactions and is not a crime most people respond to by saying “forgive and forget” or the offender deserves a second chance. The arbitrator was therefore satisfied that the worker’s conviction was a serious breach of the Criminal Code.
The arbitrator also concluded that the man’s conduct was harmful to OEG’s reputation and product. The arbitrator noted that OEG focuses most of its reputational energy on supporting child-focused programs and charities. OEG is also a privately run organization that relies on not only the services and products it provides but also how the services and products are provided. Therefore, a loss in reputation of the latter could have significant consequences to OEG’s bottom line. The arbitrator concluded that a “fair-minded and well-informed member of the public would have serious concerns were the grievor to remain in the employ of OEG.”
With regard to factor 3, the arbitrator held that OEG had satisfied the evidentiary burden. The arbitrator was satisfied that the father suffered incredible pain because of the worker’s conduct and continued presence in the workplace. The arbitrator noted that working in close proximity to a man who sexually assaulted your child or a child under your care “goes beyond the pale and is well outside society’s concept of the norm.”
As a result of the above, the arbitrator concluded that OEG had just and reasonable cause for discipline of the worker. The arbitrator also held that the termination of the man’s employment was not excessive because there were no other options available to move him to other jobs for OEG.