Can an employer terminate a convicted employee with 'just cause'?

A recent ruling sheds light on what HR can and cannot do when it comes to worker illegal activity

Can an employer terminate a convicted employee with 'just cause'?

An arbitration board has sided with EPCOR Utilities Inc. that terminated a convicted employee who needed to serve a two-year prison term. The said employee was fired in June 2019 and after pleading guilty to theft worth more than $5,000. The worker was sentenced to two years in jail followed by two years of conviction. 

According to the employer, they terminated the employment of the convicted worker, who was only 11 months short from receiving their pension, because she could no longer fulfill her duties as a worker of the company because she needed to serve her jail time. However, the union representing the employee argued that the EPCOR's termination was "without just cause" and that it breached the Collective Agreement. Describing the action as "severe, unjustified, and an excessive response," the union argued that a leave of absence was a more appropriate response.

The union sought the reinstatement of the terminated employee and is pushing the recovery of all lost wages or benefits and seniority. The board, however, disagreed with the arguments raised.

"I conclude that the Employer's decision that there was just cause to terminate the Grievor's employment given the facts known to it on June 19, 2019, was reasonable and fair," said arbitrator David Tettensor in the decision.

Tettensor cited in his decision the testimony of the employer when it comes to the difficulty in looking for temporary employees. It also heard that it would mean additional training for the company should the employee return for her Public Service Representative (PSR) role.

"Time, money, and resources would be involved and then the returning employee would have to be trained on the new responsibilities and tools," read the decision. "The evidence establishes that effectively granting the Grievor a leave of absence by waiting for her to get out of prison and allow her to then resume working would have presented significant operational issues for the Employer."

Arbitration board member Chris Lane concurred with Tettensor's ruling to tip the three-member panel into EPCOR's favour.

Read more: Firefighter reinstated despite criminal conviction

David Williams, the third board member, however, dissented from the decision.

"I have had the benefit of reading the award of the majority but find I disagree with the reasoning and outcome. I would allow the grievance and reinstate the Grievor," he said.

According to Williams, the employer failed to balance interests needed in the case and said the employee should be reinstated.

"I find the Employer 's decision failed to balance the interests required by the case law and the Employer has not established just cause. The appropriate remedy is reinstatement," said Williams.

The arbitrator said that while he acknowledges that filling temporary positions can be difficult and possibly disruptive, it is "not something that is unheard of and indeed is contemplated by the collective agreement."

In addition, Williams said there is no evidence of a disruption in service during the employee's leave absence, adding that no evidence.

"There is no evidence that a temporary employee could not fill in during a leave of absence. On her return, there was no evidence that there would be a problem reintegrating her into the workplace other than requiring some training, which would have been required even if she did not require a leave of absence."

The employee was a former public service representative in the company since 2000 and had a very good clean track record with her employers.

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