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School board can’t fire convicted killer who lied about record
Mon, 2007-09-24 08:33 — Robert Smithson
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How would you feel, as an employer, if you found out an employee lied about his criminal past when filling out his application form? How would you feel if you found out he is a convicted killer? Would you feel that was a sufficient basis to dismiss him from his employment?
This very question was answered recently in Quebec, first by an arbitrator and then by that province’s Superior Court. In a result which will be shocking to many employers, the answer was that the employee could not be dismissed.
Quebec’s largest school board, the Commission Scolaire de Montreal, hired the individual in 1998. In applying for the job, he filled out an application form. In response to the question, “Have you ever been convicted of a criminal offence involving violence?”, he replied that he had not.
His employment continued without incident for about 6 years, at which time his criminal past was revealed to the school board. It turns out that he had, 14 years earlier, beaten his wife to death. He had been convicted of manslaughter and served 7 years in prison.
Upon learning of their employee’s criminally violent background, the school board dismissed him. In doing so, it relied on a clause in their collective agreement indicating that an intentionally false statement at the time of hiring was cause for termination of the employment.
The firing was grieved by the employee’s union. The arbitrator upheld the grievance and reinstated him to employment. The arbitrator determined that the clause in the collective agreement had to be applied in light of the relevant portion of Quebec’s Charter of Human Rights and Freedoms (which should not be confused with Canada’s Charter of Rights and Freedoms).
The Quebec Charter states that an employer may not dismiss an employee due to the mere fact that he was convicted of a criminal offense if that offense is in no way connected with the employment. The arbitrator relied on the employee’s 6 years of incident-free employment to conclude that the safety of students was never at risk and, as such, a link couldn’t be established between his conviction and the employment.
The school board applied for judicial review of the arbitrator’s decision. Quebec’s Superior Court upheld the arbitrator’s decision, noting that the arbitrator had not committed any error in arriving at the decision.
This is, perhaps, an extreme example of the application of laws such as the provision in Quebec’s Charter and that’s what makes the arbitrator’s decision difficult to swallow in this instance. These laws are, of course, for the purpose of protecting convicted individuals from being continually discriminated against because of their past. The point is to draw a distinction between criminal convictions which are relevant to the employment and those that are not.
When the conviction is clearly relevant – say, for instance, a convicted child molester applying for employment in a daycare centre – the employer is legally justified in refusing employment. If the conviction isn’t relevant, the employer must not discriminate against the applicant on that basis.
Such provisions are common in human rights statutes in many provincial jurisdictions. B.C.’s Human Rights Code, for instance, states that an employer must not discriminate on the basis that “a person has been convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person”.
Personally, I think that both the arbitrator and the Quebec Superior Court got it wrong in the Commission Scolaire de Montreal case. The first error was in not giving enough weight to the employee’s misrepresentation on the application form at the time of hiring. There can be little doubt that was a material misrepresentation which, had it not been made, would likely have prevented him from being hired in the first place.
The second error was in relying on his clean record as a teacher as the basis for retrospectively concluding there was no link between his crime and his employment. That sort of reasoning can only encourage applicants to lie at the time of hiring, hoping that if they string together enough good service they’ll be given the benefit of the doubt.
This is a case of which we’ve likely not heard the last, as it appears the school board may now be considering a further appeal. It is an extreme and, surely, rare example of the operation of non-discrimination clauses found across Canada but that, alone, won’t make it any more palatable for employers.
Robert Smithson is a partner at Pushor Mitchell LLP in Kelowna practicing exclusively in the area of labour and employment law. For more information about his practice, log on to http://www.pushormitchell.com/.
