As you delve into laws surrounding a complex area such as Labour Law, you come to realize there is a lot of gray area connected with this topic. A criminal record is not necessarily grounds for termination. In fact it can lead to liability for discrimination, which can result in a wrongful dismissal suit. BC, QC PEI, and YK offer the most protection against such a scenario. These 4 provinces/territories offer protection against any discrimination based on an employee with a criminal record. In BC for instance, if a criminal offence was committed that does not directly relate to the position, that employee is protected from any discrimination of employment. Unfortunately this means that there are another 9 provinces which offer far less protection against a criminal record affecting one’s employment.
For those reading this and thinking “I have a criminal record, can I be fired?”, be aware that Human Rights Law can be a strong ally in your corner. However, in the employer’s corner, there is employment standards legislation and case law. This has shown over time that a criminal conviction can in fact lead to just cause for termination. In Canada, employees are contractually obligated to perform their employment duties and avoid conduct which harms the best interest of their employer. Employees who do not fulfill this obligation may be disciplined, or even terminated.
Having a criminal record while employed is much more likely to pose a risk to your current employment if the offence committed is in direct relation to the current position, or if it occurred while that employee was on duty. However, if the conviction is in not related to your position, and took place while you were off duty, this makes the possibility of being dismissed much trickier for an employer to perform legally.
When employment has been terminated due to a criminal record there are some things that need to be taken into consideration:
- If the seriousness of the crime jeopardizes the security of those employed by the company
- If the crime directly relates to the employment (i.e. Fraud charge for an employee in the financial industry.)
- Whether the conviction impacts the employee’s ability to continue working (i.e. If the employee was given a conditional sentence which included a driving ban, and that person held a job as a bus driver.) This can also be affected by possible jail time. If an employee needs to serve time in jail during employment, it may be grounds for dismissal if the workplace can prove it would be a burden to the workplace. Having said that, it is not an automatic cause for dismissal, and many workplace’s have their own rules in place that are detailed in an employee’s contract or collective bargaining agreement.
- The character of the employee. If you have been a model employee and the conviction occurred outside of the work environment, with no relation to the position, it would be difficult to justify termination. If the convictions was, for example, 10 years ago and the employee has shown a history of hard work and trustworthy employment, it would be a tough sell for an employer to prove that the termination was not a wrongful dismissal. Being honest and open before, and during employment, regarding your conviction history will avoid any questions regarding your character.
If you have displayed a history of hard work, trustworthy employment, and have not committed an offence that would contradict any of the above points, you will have a strong case to keep your employment, and prove yourself as a worthy employee. Of course, if you do have a conviction, or charge on your record, and you meet the Parole Board of Canada’s eligibility requirements, you should be proactive and start the Record Suspension/Pardon process immediately. Do not let a conviction affect your employment.
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