Supreme Court Rules on Dismissal of Incarcerated Employees

Employers often struggle with the question of what to do about employees who have received a jail sentence. Since the development of modern human rights statutes, dismissing an incarcerated employee has raised issues of discrimination.

That is because human rights statutes generally contain protection against differential treatment based on the employee’s record of convictions. That is the case, for instance, with section 13 of B.C.’s Human Rights Code.

The Supreme Court of Canada has now ruled that the dismissal of an employee who is unavailable for work because of incarceration is not discriminatory. The Court’s decision was made in the context of Quebec’s Charter of Human Rights and Freedoms and its applicability to other provincial human rights regimes has yet to be tested. The Court did, however, adopt the earlier reasoning of B.C.’s Court of Appeal on the subject and the decision is consistent with earlier B.C. determinations.

The Supreme Court of Canada noted that the human rights protected by statute must be interpreted broadly and liberally in order for the statute’s objective to be achieved. It also emphasized that individuals with a criminal record have traditionally been stigmatized and unjustifiably excluded from a range of activities.

In the course of its decision, however, the Court distinguished between dismissals resulting from the conviction itself and ones which are related to the civil consequences of the conviction. This distinction is important for understanding when an employee with a record can or cannot be dismissed.

A dismissal because of the conviction itself is the result of an unjustified social stigma operating to exclude individuals with a criminal past from the labour market. This type of dismissal is prohibited by statute (including B.C.’s Human Rights Code) if the conviction is unrelated to the employment.

A dismissal because of the civil consequences of the conviction, however, is not the result of an unjustified social stigma. If, for example, the imprisoned employee is dismissed because of his resulting unavailability for work, then no social stigma is at play and no discrimination has occurred.

In effect, as long as the dismissal is truly because the employee was unavailable for work (or some other reason relating only to the consequences of the conviction), the dismissal is not discriminatory. But, if the unavailability argument is raised as a sham to cover for the employer’s true motivations (to dismiss the employees simply because he or she has acquired a criminal record), issues of discrimination will still be raised.

It is important to understand as well that an employer can dismiss an employee who acquires a criminal conviction which is relevant to the employment. B.C.’s Human Rights Code impliedly recognizes that a conviction which is related to the job may, in some circumstances, form the basis for dismissal.

That might, for instance, be the case when an employee of a child care agency is convicted of sexual misconduct relating to minors. The employer should always, however, obtain legal advice before making the decision to dismiss such an employee.

Thanks to the Supreme Court of Canada, employers now have a more solid basis for understanding when a convicted employee can and cannot be dismissed.

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