Can an Employer Terminate an Employee Charged But Not Yet Convicted of a Criminal Offence?

| January 23rd, 2017 | No Comments »

An employer may be concerned about damaging their reputation by continuing to employ an individual that has been charged with a criminal offence. This may especially be the case if the employer is known to be involved with the community in which it operates its business. In trying to establish whether there is just cause for termination, a court looks at the following:

  • The amount of responsibility the employee has in relation to his/her duties
  • The degree to which the company’s reputation in the community may be harmed
  • Whether the accusation involved the use of company equipment

To illustrate, the case of Kelly v Linamar (Ontario Supreme Court of Justice) speaks to the above listed points quite well.

Kelly supervised 10-12 employees, managed deliveries and was in contact with customers on a regular basis. Linamar is located in Guelph, Ont., a small town of about 100 000 residents. Linamar had a great reputation in Guelph, especially with its contributions to children for educational donations, sponsoring many youth sports teams and assisting local schools in educational initiatives. Kelly was charged with possession of child pornography at the time he was employed by Linamar and the local media identified Kelly as an employee of Linamar.

Linamar terminated Kelly before he was convicted of this criminal offense and the court found the termination was justified. Considering the points above, Linamar was justified in terminating Kelly because:

The amount of responsibility the employee has in relation to duties:

Kelly was a supervisor and was in constant contact with customers. The fact that the community was aware of the charges against Kelly due to the local press made this a concern for Linamar and its brand.

The degree to which the company’s reputation in the community may be harmed:

Given that the charges dealt with allegations concerning children, this directly conflicted with the image Linamar had in the community. Linamar made efforts to positively impact the children of the Guelph community. Given the press releases and Kelly’s interaction with customers within the Guelph community, Kelly’s continued employment definitely posed a threat to Linamar’s reputation. This was the most significant factor in this case.

Whether the accusation involved the use of company equipment

Kelly did not use company computers to commit the alleged acts. Had he done so, this would undoubtedly be enough for termination.

This case illustrated the three key factors to be determined if employers are considering terminating an employee for being charged criminally for acts committed outside of the workplace. It is important to understand that such decisions should be made with careful consideration of all the factors. The unique facts of each case must be considered because an employee being charged with a crime that is morally reprehensible, such as the one described, does not on its own grant an employer cause to terminate an employee without compensation (notice pay).  Please seek the advice of an employment law expert if faced with a similar situation.

What is Wrongful Dismissal and Are You a Victim?

| November 20th, 2015 | 1 Comment »

A dismissal is wrongful if an employee has been terminated without adequate notice or fair payment in lieu of that notice. It is implied that a dismissed employee is entitled to “reasonable notice” of their eventual last day of work or the compensation they would have been entitled to over that period.

The focus of the wrongful dismissal case is the determination of the “reasonable notice” period. Our Court of Appeal has made clear that “determining the period of reasonable notice is an art not a science”. Courts consider a number of factors including, but not limited to, age, salary, tenure, educational background, recruitment to the job, specialty and whether similar positions are available in the marketplace at the time of termination. Payment in lieu of reasonable notice is what we commonly refer to as severance.

Be advised, reasonable notice is not always due to employees. An employer does not need to provide reasonable notice if they have clearly and legally limited notice. Moreover, employers do not need to provide any severance if they have “just cause” for dismissing an employee. For an employer to have just cause the employee must have committed a terrible act that strikes at the core of the employment relationship. Stated differently, to deprive a terminated employee of any severance they must have engaged in something as egregious as theft, serious dishonesty or harassment.

Rest assured, just cause is a very difficult for an employer to prove and employment contracts of even the largest and most sophisticated employers have been found inadequate in their attempts to limit notice.

Consider consulting the lawyers at Whitten and Lublin for an expert assessment of your wrongful dismissal case and severance entitlement.

Author: Paul Macchione, Whitten & Lublin

Air Canada Flight Grounded by Drunk RIM Execs

| December 12th, 2011 | 1 Comment »

Two intoxicated executives who caused the diversion of an Air Canada flight have been dismissed for unprofessional behavior, the Globe and Mail reports.

According to one passenger, the two Ontario residents were seen fighting with flight attendants, subdued by the crew, and handcuffed to their seats.  The two men pleaded guilty to mischief and have been ordered to pay $72,000 in restitutions.  One of the statements provided by the company was that Research in Motion (RIM) “expects that its employees conduct themselves in a manner reflective of our strong principles and standards of business behavior.”  Although this case seems pretty clear cut, it is worth flagging a few things:

  1. Inebriation does not necessitate immediate dismissal.   Be mindful of the possibility that the employee is not merely intoxicated, but an alcoholic – a disability that is covered by human rights legislation.  In such an instance, firing them without a proper investigation could trigger a wrongful dismissal case, based on a failure to accommodate.
  2. Handle departing senior executives with care.  Especially in the tech industry, competition can be quick to pick up the scraps, and employees with valuable trade secrets may be less inclined to keep them if they leave embittered.
  3. Employees present for the disruption should be offered the resources to deal with any anxiety or emotions stemming from the incident.

Damage control goes beyond appeasing the public.  Amidst considerable pressure to act quickly, ensure that you don’t do so rashly.  If you’re still uncertain, don’t hesitate to reach out for advice from a lawyer.

 

Criticizing your boss can cost employees their jobs

| May 14th, 2010 | No Comments »

Have you ever wanted to criticize your boss but fear it may cost you your job?

What happens if you “go over your bosses” head to his or her manager with your concerns?  Can you be disciplined?

According to two recently release court decisions, employees are entitled to criticize their managers without fear of immediate dismissal, as long as the form and content of this criticism does not go over board.

In this week’s workplace law section of the Metro News, I review the cases of a B.C supervisor and a production manager who leapfrogged their bosses to write angry letters to the superiors at the company.  In the case of the production manager, he penned an angry letter to the company’s shareholders, knowing that the company was about to commence a share offerring.

In both cases, the courts said that criticism of the boss may reasonably be justified and will not necessary amount to cause for dismissal.  However, the manner and tone in which they express this criticism must always remain professional.

Daniel A. Lublin is an employment lawyer with Whitten & Lublin LLP, which is a team of legal experts who provide practical advice and advocacy for workplace issues.  dan@toronto-employmentlawyer.com.