Sexual assault conviction does not, in itself, justify dismissal

A string of recent decisions by the Quebec administrative labour tribunal should give pause to employers – and employees too for that matter.

Sexual assault convictions do not, in itself, justify the dismissal of an employee because of constitutional protections against discrimination based on criminal records, held two recent but separate decisions by the Quebec administrative labour tribunal.

The Quebec ombudsman was ordered by the tribunal to rehire a computer analyst who was sentenced to 18 months in prison for sexually assaulting an elderly woman in her seventies because it failed to prove that there was an objective and empirical connection between his duties as an employee and his conviction.

The Protecteur du Citoyen temporarily relieved François Fortier of his duties the same day that he plead guilty to sexual assault because of the seriousness of the offense. He was also informed that the ombudsman was taking steps to dismiss him, a development that occurred three months later, in March 2016, by government decree.

Less than two weeks later, Fortier challenged his dismissal. Before the tribunal he argued that the decision to fire him was based on social stigma. He also maintained that that since there was no link  between his job and the crime he committed, the ombudsman infringed section 18.2 of the Canadian Charter of Rights and Freedoms. Section 18.2 protects employees from the unjustified social stigma that arises out of a prior conviction, held the Supreme Court of Canada in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Maksteel Québec Inc., [2003] 3 SCR 228.

The ombudsman, on the other hand, asserted that it was “impossible” for Fortier to keep his job. The credibility of the ombudsman’s office would be compromised, and that it would lose the confidence of the public and its clientele. The ombudsman also feared the reaction of its employees, most of whom are women, and worried that it would lead to a loss of productivity. The ombudsman did acknowledge that Fortier’s job did not deal with the public.

The tribunal dismissed the ombudsman’s arguments.

“According to the Court, the plaintiff’s dismissal stems from a perception that he is no longer apt to hold his position because of the nature of his infraction rather than an objective analysis of the connection between his criminal conviction and his job,” said Nancy St-Laurent, an adjudicator, in Fortier et Protecteur du citoyen, 2018 QCTAT 3244.

In the other decision a large Canadian retailer was also ordered to rehire a warehouse supervisor even though he was convicted in August 2014 of molesting his wife’s daughter.

The sexual assaults took place over a five-year period between 2010 and 2015 while the girl was between five and 10 years old. He was found guilty of two counts of sexual interference and invitation to sexual touching on a minor person, and was sentenced to 20 months in jail on February 2015. He was also ordered to to comply with the national sex offenders registry for life, provide a DNA sample, and prohibited from carrying certain firearms.

The employee, who had worked for Reitman’s for 35 years, appealed the sentence. He was released pending his appeal, and was evasive with his employer over the reasons of his conviction. When Reitman’s found out, they dismissed him because the “very serious criminal offenses.”

“These facts were considered more particularly in light of our activities and the clear connection between your conviction and your duties and responsibilities as a supervisor of our company, and notably your responsibilities to represent the company with respect to our employees and, in some cases, with third parties,” said Reitman’s termination notice. “In itself, this is cause for termination.”

Reitman’s also asserted the employee’s lack of transparency as another reason for his dismissal. “Many facts you communicated to us were misleading and in some cases they were false,” said the missive. “This is unacceptable and led to a complete and definite breach of the trust which must exist between the company and you as an ernployee (sic).”

The employee challenged the decision under s. 124 of the Quebec Act respecting labour standards.

In the meantime, in October 2015, the sex offender’s appeal was dismissed and he was incarcerated. Reitman’s sent the supervisor another letter reaffirming his dismissal, citing other grounds. “You have not been available to perform your duties and responsibilities as an employee of our Company since and because of your incarceration…and will not be able to do so for numerous months to come.”

The tribunal had a different take. Adjudicator Gaëtan Breton held there was no “objective and empirical” connection between the supervisor’s duties and his conviction.

The tribunal also dismissed the employer’s contention that the plaintiff was supervising “vulnerable” employees and that he should not be working for the company because one of the aggravating factors cited by the Court of Quebec decision was that he had abused his position of authority over his victim.

“It should be pointed out that the plaintiff’s job consists of supervising adults, the majority of whom are women,” said Breton in X c. Reitmans (Canada) ltée, 2018 QCTAT 2357. “Obviously there are no children in the workplace.”

Moreover, said Breton, there is no “common” link between the relationship of authority and dependence that exists between a child and a parent compared to a supervisor and adult employees in a distribution centre.

Breton also held that the employer failed to provide evidence that the supervisor would be unable to comply with the company’s code of conduct because of his conviction.

Dismissal for being less than candid with his employer was too harsh, added Breton. He could have been sanctioned but not fired, particularly since he had an unblemished disciplinary record.

Montreal labour lawyer Marie-Pier Emery of Borden Ladner Gervais LLP described the Reitman’s decision as surprising and disconcerting.

“It will be interesting to monitor the impact of this decision, which will surely be controversial, if only because of the especially sensitive context in which it was rendered,” noted Montreal labour lawyer Marie-Pier Emery of Borden Ladner Gervais LLP.

In other words these controversial decisions were issued at a time when some businesses are making an effort to comply with their legal obligations to provide employees with a safe working environment in light of the #MeToo.

These two decisions appear to have made it much harder for organizations to deal with socially reprehensible conduct.

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