COMMENTARY: Around the Arctic March 09, 2018 - 1:30 pm

Legal Ease, March 9

If charged with a crime, can you be fired?

JAMES MORTON

Can you be fired from your job if you are charged with a criminal offence?

The answer, like so many in law, is maybe.

First, if you are a member of a union, the process requires a grievance and you have to work through your union representative—but this article deals with non-unionized employment.

The Human Rights Act does prohibit discrimination based on a criminal conviction for which a pardon was granted, but that is very different from just being charged.

The Human Rights Act says:

Prohibited grounds of discrimination

7. (1) For the purposes of this Act, the prohibited grounds of discrimination are race, colour, ancestry, ethnic origin, citizenship, place of origin, creed, religion, age, disability, sex, sexual orientation, marital status, family status, pregnancy, lawful source of income and a conviction for which a pardon has been granted.

In general, you can be fired either for cause—which means you did something that repudiated the employment relationship—or with payment of “reasonable notice.”

What that means is an employer is allowed to fire an employee for pretty well any reason at all, provided the employer pays some money to the employee.

Usually, the amount a judge would award as reasonable notice is around a month for every year employed, but that can vary if there is an employment agreement.

That said, there is a statutory minimum notice that must be paid unless there is cause. Broadly put that minimum is:

• Less than three months of employment: nothing.

• Three months to three years of employment: two weeks pay.

• After three years of employment: an additional week per year up to a maximum of eight weeks pay.

These are statutory minimum periods and, as mentioned, a court will usually award more.

In terms of criminal charges, the courts have largely found that criminal conduct not related to employment does not constitute just cause.

This means that employers who want to terminate an employee for non-employment related criminal conduct, generally, can only do so if they provide the employee with reasonable notice.

Someone charged with possession of marijuana who is working as a stockperson at the co-op probably should not be terminated—and I doubt they would be, unless there was a suggestion of consuming marijuana at work.

That said, a notorious charge—say for sexual assault—may justify termination, especially in a high-profile position or one that deals with the public.

Again, there’s that “maybe” we see so much in the law.

All that said, if your employer fires you without reasonable notice just because you were charged with a criminal offence, you should consider commencing an action for wrongful dismissal to obtain the money you are entitled to.

James Morton is a lawyer practising in Nunavut with offices in Iqaluit. The comments here are intended as general legal information and not as specific legal advice.