You are quietly sipping your coffee one Saturday morning and flipping through the newspaper. You suddenly stumble upon an article about one of your Canadian employees. He or she has been accused of committing a criminal offense outside the workplace but has not yet been convicted.
Your mind races through a series of questions: How will this affect my business’s reputation? Is this employee putting my clients’ or other employees’ safety at risk? More important: What should I do now? The following provides you with a few tips.
Generally, an employer has no authority over employees’ conduct outside of the workplace. But if your legitimate business interests are affected by the accusations against your employee, you may take the necessary action to protect them.
Before taking an administrative or disciplinary measure, you must investigate the situation. Determine whether the continued presence of the accused puts your business interests at risk. Consider whether solutions other than removing the employee are possible. Continue to re-evaluate your position as new facts come to light. While investigating, consider the nature of the accusations, the tasks performed by your employee, and the nature of your business.
Grounds for an administrative suspension. An employee accused of a crime could be administratively suspended during either the criminal proceedings or your own investigation. To do so, however, there must be a connection between the nature of the charges brought against your employee, his functions, and the legitimate interests of your business.
Before suspending an accused employee, you should consider alternate solutions such as reassigning the employee to other tasks. But these alternate solutions need not cause significant inconvenience or other serious harm to your legitimate business interests. Nor should they affect the reputation or the image of your business.
For example, the employer of a police officer charged with driving while impaired, for obvious reasons, could prevent him from patrolling alone. The employer also could reassign the police officer to administrative tasks. However, we can hardly imagine how an employer could reassign a financial adviser accused of committing fraud.
Furthermore, your decision to impose an administrative suspension must always be guided by good faith and the duty to respond reasonably to the situation. The duration of such an administrative suspension should be for a fixed or determinable period and for a relatively short time. Otherwise, the administrative suspension could be considered a constructive dismissal.
Rest assured that your decision to administratively suspend an employee doesn’t violate the employee’s entitlement to the presumption of innocence. Your employee’s culpability isn’t an issue you should consider in your analysis.
Suspension with or without pay? Employers in the province of Quebec that decide to administratively suspend an employee should do so with pay unless there are exceptional circumstances (Cabiakman v. Industrial Alliance Life Insurance Co.).
In the rest of Canada, the state of the law is less clear. Indeed, many arbitrators have recognized an employer’s right to suspend an employee without pay to the extent that the administrative suspension is justified. If an employee is later acquitted, however, or the charges against him are withdrawn, some arbitrators have ordered employers to reimburse employees their salary for the duration of the administrative suspension. But this is not the majority view.
Presence of a just cause. Disciplinary measures must of course be supported by just cause. The same rule applies to an employee who has been accused of committing a criminal offense. For example, an employee who is absent without justification, because he is detained by police, may be subject to discipline because of his absence.
Accused yet not convicted. When will arbitrators maintain the dismissal of an employee who has been accused and not yet convicted of committing a crime outside the workplace?
In Quebec, very few dismissals have been upheld in these circumstances. But in some cases, the employer had sufficient information to demonstrate that the employee had committed certain acts that were incompatible with his employment and the employer’s business interests.
In one of these cases, the employee, a slot machine technician in a casino, had participated in shoplifting in a supermarket with his spouse. The employee was later acquitted. The employee’s dismissal was nonetheless upheld. The employer had sufficient evidence to prove the employee’s participation in the crime. It was important that honesty and integrity were two qualities essential to being a slot machine technician.
Similarly in the rest of Canada, the employer that wishes to dismiss an employee accused and not convicted of committing a crime must have sufficient evidence to demonstrate that the employee committed acts that are incompatible with his employment and the company’s business interests.
Discovering that one’s employee has been accused of committing a criminal offense is an unpleasant and stressful occurrence for any employer. Although you might wish to react quickly to solve the issue, it’s important for you to reflect on the strategy that you will adopt in order to protect your business interests while respecting the employee’s rights.