The arbitrator upheld the administrative dismissal of a maintenance person in a seniors’ residence providing care for independent and assisted elderly persons. The employee had pleaded guilty on a charge of drug trafficking two years prior to his hiring.
The facts
During his hiring interview, the complainant informed the employer that he had a criminal record based on drug charges against him and his cousin, which the complainant attributed to youthful folly. This explanation satisfied the employer, who decided to hire him.
In 2015, pursuant to the recently enacted Regulation respecting the conditions for obtaining a certificate of compliance and the operating standards for a private seniors’ residence, the employer carried out an investigation into criminal records of its entire personnel.
The investigation report disclosed a conviction on the charge of importing narcotics, where the complainant was sentenced to a suspended imprisonment of two years less a day. Based on the discovery of this information, the employer dismissed the complainant for a period of 18 months in order to allow him to obtain a pardon.
At the end of this period, since no pardon had been secured, the employer dismissed the employee on the grounds that during the course of his job duties, he had access to narcotics, was frequently called upon to work alone and had free access to rooms of a vulnerable clientele. Furthermore, there was a history of narcotics theft on the premises of the employer.
The union challenged the dismissal by way of grievance procedure, relying upon Article 18.2 of the Charter of Human Rights and Freedoms, which prohibits an employer from dismissing a person solely on the ground that he or she has been convicted of a criminal or penal offence, if the offence is in no way connected with the employment.
The decision
Arbitrator Saint-André dismissed the grievance. He ruled, on the contrary, that the employer had demonstrated the existence of a connection between the convictions of the complainant and the aptitudes required and conduct necessary for his job duties in the residence, in full compliance with Section 24 of the Regulation. He reiterated that this provision prohibits a private seniors’ residence from employing a person who has been convicted of an indictable or other offence related to the abilities and conduct required to work in the residence.
Practical advice for employers:
It is often a complex matter to determine whether a connection exists between a criminal or penal conviction of an employee and the nature of employment. Because this type of situation enjoys Charter protection, it is appropriate to assess the overall circumstances prior to triggering a dismissal process. For this purpose, we are well positioned due to our own experience and expertise to advise and guide you through this highly-sensitive process.
