Can your criminal past come back and fire you?

Terminating an employee is not a topic that most people enjoy talking about. It is complicated and for many, too scary to even consider. Yet, whether employees or employers want to think about it or not, termination is a reality that can affect anyone working in today’s world. It is a topic full of grey areas and extenuating circumstances that can either support or dismiss an employer’s right to terminate. But how far does this go? Any employee with a criminal record does have a right to work but under what conditions? As opposed to discussing possible situations that may or may not allow for termination, let’s look at a recent case that dealt with this exact issue.

Shaun Pater was employed by a Strata council for a residential building complex but was terminated once the Strata became aware of his criminal convictions. As a criminal record is not necessarily grounds for termination, Mr. Pater filed a complaint with the BC Human Rights Tribunal alleging discrimination on the basis of his dismissal, stating his criminal record was unrelated to his employment.

From 2008 to 2016, Mr. Pater performed various maintenance and custodial tasks for the Strata council as required by the building manager. It should be noted that the Tribunal deemed Mr. Pater an employee of the Strata council despite the Strata council’s opposition.  In 2016, a newly elected Strata council prevented Mr. Pater from completing particular maintenance work at the building because they determined he was not qualified as he did not have workers compensation coverage. Subsequently, the Strata council learned of Mr. Pater’s criminal convictions and prohibited him completely from performing any type of work around the building due to the risk he posed to residents and guests of the Strata building. According to a newspaper article referenced by the Strata council, Mr. Pater was prohibited from contact with minors under the age of 16 and was ordered to avoid places where children may be present. Additionally, the article described Mr. Pater as “untreatable” and “at a high risk to re-offend sexually with underage females.”

The Tribunal noted that Mr. Pater did not deny his criminal convictions, the sentences or refute the accuracy of the information contained in the newspaper article. Specifically, Mr. Pater was convicted of sexual interference and incarcerated for six months with three years’ probation, registered on the sex offender registry for 20 years and ordered to provide his DNA sample to the criminal data bank. Subsequently, Mr. Pater re-offended and was convicted of possession of child pornography and breaking his probation conditions.

The nature of Mr. Pater’s offences and the conditions associated with his sentence raised hesitations regarding his suitability as a maintenance worker at the Strata building. Particularly, a resident of the Strata building recognized Mr. Pater as a convicted sex offender and vocalized her concern that Mr. Pater posed a risk to females and visiting grandchildren of the residents as he had unrestricted access to the building.

The Tribunal also agreed with the Strata council that the nature of Mr. Pater’s tasks required him to have unrestricted access to all parts of the residential building thus posing a threat to the safety and security of the building residents and their visitors, particularly grandchildren visiting their grandparents and females.

As a result, the tribunal dismissed Mr. Pater’s complainant due to the fact that his criminal convictions were related to his employment, which made him unsuitable for employment at the Strata building.

This case demonstrates that there are a number of factors to consider before termination of a criminally convicted employee can be deemed appropriate. The tribunal dismissed this case due to the fact that the job tasks were directly correlated to Mr Pater’s convictions. Mr. Pater was not permitted to be near or in the building where his job required him to be, he had unlimited access to the building where minors and females were present, and he reoffended. All of these issues proved that Mr. Pater was not discriminated against, but was dismissed due to clear conflict between what his job required him to do and what his criminal record prevented him from doing.

Although the result of this case was a dismissal, employment and human rights laws are constantly evolving as they are continually being re-interpreted by the courts and BC Human Rights Tribunal. This can leave many employers questioning their next steps in employment related matters. Whether you are negotiating your employment contract, or terminating an employee and need information regarding your rights, seeking legal advice is always recommended. If you have any questions on this article or anything else related to this topic, get in touch with myself or our team of lawyers here at Hamilton Duncan.

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