Picture this: one of your employees has been charged with a serious crime for something he allegedly did when he was off duty. He is currently incarcerated, unable to report to work. Deciding on whether to terminate the employee and ensuring you have taken the proper steps in arriving at your decision are of vital importance.
Can You Terminate an Employee for Being Absent Due to Incarceration?
Generally speaking, the answer is no. Arbitrators have frequently taken the position that being held in custody prior to being convicted or having to leave work in order to attend one's trial will not generally be regarded as sufficient grounds for a person to lose his or her job, assuming they have been forthright about their situation with their employer.
There are, however, exceptions to this rule if an employee's alleged off-duty conduct negatively impacts the workplace. Prior to terminating the employee, employers should conduct an investigation and effectively demonstrate that the employee's continued employment represents a serious and immediate hardship to business interests.
The process in reaching the decision, outlined in the five guiding principles below, is just as important as the final determination itself.
Guilt or Innocence Is Irrelevant
You, the employer, must bear in mind that whether the employee in question is actually guilty of the offence is irrelevant. Assume that the employee did not do what he or she is alleged to have done, and focus instead on the risks associated with the allegations. Will the employee's presence in the workplace while awaiting trial create a reasonably serious and immediate risk to your legitimate business concerns?
Try to gather as much information as possible with respect to the conduct resulting in the charges, and focus your analysis on whether the employee should be present in your workplace given what you have learned. If you conclude that the employee cannot return to the workplace pending the resolution of the charges, your focus should turn to articulating why, with specific reference to your legitimate business concerns.
Do Your Best to Investigate
You must demonstrate that you investigated the matter to the best of your ability in a bona fide attempt to assess the risk of allowing the employee to remain in the workplace.
Take the time to do a thorough investigation. Make sure you are recording your attempts to investigate, and the results of your attempts. Many employees may decline to participate on the advice of criminal counsel to not discuss the matter until the charges are resolved. If this is the case, make sure you record in detail that the employee declined to provide any information on the allegations.
You can also ask for the employee's consent to view the information gathered through the criminal process and try to speak with police or other employees you know were involved. Your efforts may be futile but they should be recorded as you may be challenged on the sufficiency of your investigation. Also, if you are aware of the timing of court proceedings relating to the charges, it is good practice to attend those proceedings, as relevant information may be discussed in court. Unless admissions are made in court, you cannot use this information as proof of guilt; however, it will often provide some detail to the allegations made by Crown counsel.
The Onus is on You to Prove Risk
The onus is on you to prove that the employee's presence in the workplace does, in fact, create a reasonably serious and immediate risk to your legitimate interests. It is not up to the employee to explain why he or she should be able to work; it is up to you to prove that you cannot have that employee in the workplace without his or her presence being problematic.
Factors relevant to evaluating this risk include the nature of your business (e.g., your image in the community and the clientele you serve; whether you are publically funded), the nature of the criminal allegations, the duties and responsibilities of the employee in question, and the publicity the allegations have received — both inside and outside the workplace.
While there is no exhaustive list of what constitutes a reasonably serious and immediate risk justifying the removal of an employee, case law reflects three broad areas that constitute the prohibited risk:
- potential harm to a company's reputation or product;
- potential harm to other employees or a company's customers; and
- criminal charges or bail conditions that render the employee incapable of performing his or her duties (e.g., incarceration, suspension of driver's licence, curfew, loss of security clearance, or a no-contact order with a certain person or demographic).
Look for Alternative Work for the Employee
You must demonstrate that you have taken reasonable steps to ascertain whether your concerns can be mitigated by modifying the employee's job or duties.
If you are concerned about the employee dealing directly with the public but you have the ability to move him or her to a non-client facing role, you are obligated to do so. Similarly, if the employee is restricted from being within a certain distance of a coworker and you are able to relocate him or her, you must do so.
You do not have to create work for the employee and you do not have to take work away from other employees to meet your obligation. However, if there is a way to accommodate the work while at the same time quelling your concerns, it is your obligation to implement such an arrangement.
You may decide that you cannot tolerate the employee in any position due to the serious nature of the charges and the impact his or her continued employment could have to your reputation. Your decision can be defended on that basis, although you should still be prepared to defend your process in reaching that conclusion.
Review Your Decision in Light of New Developments
Even once you have made a decision, you have an ongoing obligation to consider new facts or circumstances as they come to your attention, which may require you to change your original decision. A change in decision, either by returning the employee to the workplace or removing the employee from the workplace, does not signal an admission by the employer that the original decision was incorrect. You must assess the circumstances and implement the decision you think is right at that time. You will only be assessed on what you knew or should have known through a bona fide investigation at a specific time.
In order to help you meet this obligation, it is advisable to make a written request to the employee that he or she provide you with any further developments that may arise in the criminal matter in a timely manner.
Dealing with an employee who has been charged with criminality is a matter of utmost sensitivity. It is critical for employers to ensure they do their due diligence in taking all of the necessary measures to assess the situation and arrive at a reasonable decision. The stakes may be high and the potential for negative public relations looms in such cases. As such, it is advisable to seek legal advice when dealing with criminal matters in the workplace.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.