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Is Refusing to Disclose a Criminal Conviction ‘Just Cause’ for Dismissal?

The Quebec Court of Appeal upheld an arbitrator’s ruling that failing to disclose a manslaughter conviction in an employment application did not amount to ‘just cause’ for dismissal of a teacher under a collective agreement.  The arbitrator found that the employee had served his prison sentence, that he posed no threat to the students, and that he was a good employee.  An arbitrator appointed under a collective agreement has power to reinstate employees if he/she finds the employer lacked ‘just cause’. If this employee had been non-union, the employer may have been within its rights to dismiss the employee for dishonesty without notice, but could certainly have dismissed the employee with notice. 

That is, unless that dismissal was prohibited by human rights legislation.  Some jurisdictions prohibit discrimination in employment on the basis of “criminal conviction” or “record of offenses” (as in Ontario)  That language means a conviction that has been pardoned, or a conviction under the Highway Traffic Act.  In its Information guideline, the Ontario Human Rights Commission explains:

It is permissible to ask: “Have you ever been convicted of a criminal offence for which a pardon has not been granted?“ 

Prohibited questions are those about, or relating to, whether an applicant has ever:  been convicted of any offence (this may elicit information on pardoned offences);  spent time in jail;  been convicted under a provincial statute (e.g., Highway Traffic Act); or been convicted of an offence for which a pardon has been granted. 

 The Quebec human rights legislation includes the following provision:

18.2.  No one may dismiss, refuse to hire or otherwise penalize a person in his employment owing to the mere fact that he was convicted of a penal or criminal offence, if the offence was in no way connected with the employment or if the person has obtained a pardon for the offence.

I haven’t yet seen the arbitration or court decision referred to in the article, so I don’t know if that section came into play.  If anyone knows, let me know.   If human rights legislation prohibits employers from discriminating on the basis of a prior conviction, then should an employee be entitled to lie when asked about that?  More fundamentally, do you think that people should be denied employment after they have served their prison sentence?


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