In ALG Blog

Like many legal questions, the answer is ‘it depends’. It depends on the type of crime, whether you’ve been convicted or merely charged, and where you live.

First, it’s important to draw a distinction between termination for cause and termination without cause. There are certain reasons (e.g. theft on the job) for which an employer can terminate for cause. An employee terminated for cause is not entitled to notice or pay in lieu. There is a second broader class of reasons (e.g. a shortage of work) for which an employer may terminate an employee without cause, but must provide notice or pay in lieu. Finally, there are certain reasons (e.g. race) for which it’s illegal for an employer to terminate an employee.

Criminal charges and convictions by and large fall into this second category. In Ontario, the Human Rights Code prohibits discrimination on the basis of any criminal conviction for which a pardon has been granted or any provincial offence (provincial offences are comparatively minor regulatory offences). These therefore cannot be used as grounds for termination. However, in general, an employer is permitted to terminate an employee either accused or convicted of a criminal offence without cause.

An employer is only permitted to terminate an employee with cause if either: (1) the employee is charged with criminal activity that is directly connected to the employment relationship (e.g. employee theft) and the employer has investigated and has ground to believe the accusations are true; or (2) the employee is convicted of criminal activity that is either connected to the employment relationship or fundamentally incompatible with the employee’s duties.

For those living in Ontario, the takeaway is that if you are charged with or convicted of a serious crime, your employer will probably be able to terminate you without cause (with severance) or place you on paid suspension, but will only be able to terminate you for cause in cases were the misconduct is directly related to your employment.

In other Provinces the rules are different*. In BC and Quebec, an employer is not allowed to discriminate on the basis of a criminal conviction not related to the employment relationship. Accordingly, employers in these provinces may not terminate employees without cause simply because the employee has been charged with or convicted of a crime (as they are permitted to do in Ontario). In Alberta and Saskatchewan, by contrast, the pendulum swings the other way and employers can terminate without cause for any criminal conduct.

The real takeaway in this complex area of law then is this: if you are charged with a crime, it is worthwhile to get an opinion from a good employment lawyer.

*The laws in each province have their own intricacies and clients should seek advice from a lawyer licensed to practice in that province.

Photo credit: “More of cubicle land at Norwood” by Bill Abbott (CC BY-SA 2.0)

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