Termination as a Result of a Criminal Offence

By January 4, 2017 Uncategorized

Have you been Terminated Because of a Criminal Offence?

When someone has been terminated after having been charged with a criminal offence, it’s important to understand what recourse exists and how the law is setup to handle such legal situations.

Can any employee argue that they have a “right to a job”?

Unless the employment is covered by a collective agreement, or the Canada Labour Code, most employees do not have a “right to a job”.  This means the employer can generally terminate your employment without justification by providing you with reasonable notice of termination or some other agreed upon amount (provided the other agreed upon amount meets the minimum requirements of the Employment Standards Act, 2000, S.O. 2000, c. 41).

A protected ground or discrimination plays a factor then the employee might be entitled to reinstatement 

An exception to this is where a protected ground plays a factor in the employer’s decision to terminate your employment.  For example, an employee’s disability, ethnic origin or other protected ground under the Human Rights Code cannot play any factor in the employer’s decision to terminate the employment. The employee might be entitled to reinstatement with full back wages if discrimination is proven.

Is being charged with a criminal offence a protected ground under the Human Rights Code?

Unfortunately for employees, the Human Rights Code, R.S.O. 1990, c. H. 19 does not protect people who have been charged with a criminal offence. The only exception is if you have received a pardon from a  prior conviction. In this specific instance, you are protected from discrimination under the Human Rights Code.

What options does an employee charged with a criminal offence legally have? 

One of the factors used by the courts to determine the amount of notice an employee was entitled to upon termination is the availability of similar employment. The employee could argue that since they have been charged with a criminal offence (especially if it was public) that there is a dearth of available employment, and subsequently, this should increase the notice period. Similarly, since the factors that determine the amount of notice that an employee was entitled to upon termination is not a closed group, the employee can argue that the fact that they were charged with a criminal offence should be a major factor on its own that informs the notice period.

Each case is different so it’s best to speak to employment lawyer (H2)

Depending on the circumstances, the employee may also want to argue that the termination under the circumstances was a breach of the employer’s duty of honesty, good faith and fair dealing.

Remember that each case depends on its own unique set of facts and circumstances. Contact us today for a consultation at 416 363 1112 or inquiry@shillers.com.