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How to terminate an employee who has been charged with a criminal offense

The laying of a criminal charge alone does not constitute just cause (i.e. dismissal without notice) in every instance. In order to summarily dismiss an employee for being charged with a criminal offense, the employer must show that there is some connection between the charge and the employer. In this regard, the employer must show that:

  • the conduct of the employee harms the employer’s reputation or product;
  • the employee’s behaviour renders the employee unable to perform his duties satisfactory;
  • the employee’s behaviour leads to refusal, reluctance or inability of the other employees to work with him;
  • the employee has been guilty of a serious breach of the Criminal Code and thus rendering his conduct injurious to the general reputation of the employer and its employees; and
  • the charge places difficulty in the way of the employer properly carrying out its function of efficiently managing its works and efficiently directing its working forces.

With regard to these factors, if the charge was related to conduct while at work, just cause will be easier to sustain. Consider Murphy v. Canadian Tire Corp. (1991), 39 C.C.E.L. 205 (Ont. Gen. Div.), where it was alleged the employee, Ms. Murphy, was permitting customers to leave the store without properly paying for merchandise. She was thereafter charged with fraud. The court held that the employer, Canadian Tire, had made out its defence of just cause, based on the fact the alleged fraud in the course of Ms. Murphy’s employment justified her termination.

Conversely, if the charge was related to off duty conduct, just cause will be more difficult to sustain. Consider Merritt v Tigercat Industries, 2016 ONSC 1214 (CanLII), where a labourer was charged with sexual assault against minors. The criminal charge was not associated with the employee Mr. Merritt’s employment and did not involve other employees. The court held that the employer, Tigercat, had failed to demonstrate just cause. The court reasoned that there was no evidence as to damage, or potential damage, to Tigercat’s reputation.

At the same time, where a criminal charge is related to off duty conduct, but the employer has evidence of harm to its business, just cause is defensible. For instance, in Kelly v. Linamar Corporation, 2005 CanLII 42487 (ON SC), the employee, Mr. Kelly, was charged with possession of child pornography. Subsequently, the arrest was publicized notoriously in the local press. The court held that the employer, Linamar, had just cause. The court found that Linamar was entitled to take reasonable steps to protect its reputation and the termination of Mr. Kelly was just such a step.

What about the employee’s human rights?

In Ontario, the Human Rights Code prohibits discrimination in employment because of “record of offences.” “Record of offences” is defined in s. 10(1) of the Human Rights Code as a conviction for “(a) an offence in respect of which a pardon has been granted under the Criminal Records Act (Canada) and has not been revoked, or (b) an offence in respect of any provincial enactment.” Accordingly, the Human Rights Code does not apply when employees are merely “charged” with a criminal offence.