Financial Post: March 15, 2012. All Rights Reserved.
We all pay lip service to the presumption “innocent until proven guilty” even when guilt seems likely. We are presumed to know it is unacceptable to deem someone a criminal when they have yet to be convicted, even if it seems merely a matter of time. But does this hold true in the employment realm?
It is often difficult to determine how to proceed when an employee is charged with a criminal offence. It is easier to shrug off concerns if the charges are minor, but if they deal with drugs, theft, fraud, or sexual assault – you have a duty to your business and your other employees.
What are the considerations? You can wait for the criminal court to make its findings before you decide what to do. But an acquittal simply means there is reasonable doubt or worse, a technical defence, not that the employee didn’t do it. What if the charges are particularly serious or could damage your brand? You need only look at the public uproar prompting the tough decisions employers faced when dealing with employees who were criminally charged in relation to the Stanley Cup Riots last June.
If the charges are those of moral turpitude, your mind will race to termination. You should appreciate that your disciplinary decision is different from that made by the criminal courts. The consideration, the analysis and consequences for the employee are all different.
Consider the following questions before making any decision:
- Does the presence of this person in the workplace challenge the legitimate interests of the employer?
- Does this person create a serious or immediate risk to other employees?
- Given the nature of the charges, what affect, if any, might there be on the company’s image?
Even if you answer affirmatively to any of these, you can opt to present the employee with a leave. The “charged employee” might, for example, be an integral part of your business you cannot afford to lose. This option will depend on the size of your organization. A corporation may be able to afford to have an employee sit on the sidelines for a few months while a court decides his or her fate. For a smaller employer, this might not be possible.
Another reason you may wish to choose this course of action is to avoid any adverse publicity by risking a case of wrongful dismissal. Of course, an unpaid leave of absence is a constructive dismissal but, rendered unemployable by the charges, an employee might agree to it rather than being dismissed. If they do, you should document that agreement before providing the leave.
Alternatively, the employer can move to terminate for cause – the cause being the charges, the underlying misconduct and the effect on its reputation. However, the onus is on the employer to justify terminating for cause. Simply put, it must show the judge the mere laying of criminal charges, coupled with evidence the employee committed the misconduct, and the damage to the company are sufficient. The employer also must demonstrate it has done its best to independently investigate the charges and has concluded the allegations are deserving of dismissal
The employer can rely on a criminal charge to support termination only if there is a connection between the charge and the business. For example, a charge of distributing child pornography is closely linked if the employer is a school board, bank or another organization that enjoys a reputation in the community as a good corporate citizen.
The court will look from the employer’s public relations and “operating with a good moral compass” perspective to determine if the employer’s decision is supportable. In the decision of Kelly v. Linamar Corp., the court made clear that a termination for cause on the basis of the laying of criminal charges (not conviction) can be justifiable. Kelly was charged with possessing child pornography at his home and Linamar had a reputation for promoting children’s charities.
Finally, the criminal burden of proof “beyond a reasonable doubt” is higher than that required to support a termination, which is merely a balance of probabilities. As a result, even if the employee is acquitted criminally on the merits, you may still successfully defend yourself in a wrongful-dismissal case by proving the employee probably was guilty even if there was a reasonable doubt.