No discrimination found regarding termination of Manitoba employee with criminal record

Published on February 9, 2010 by Donna Seale

On December 7, 2009, the Manitoba Human Rights Board of Adjudication rendered a decision in Penner v. Fort Garry Services Inc. in relation to a complaint of discrimination in employment on the basis of criminal record. This is the first decision from Manitoba that I am aware of that tackles this thorny issue.

The Facts:

The complainant, a 51 year old male, applied for a job with the respondent, a not-for-profit corporation which operates a seniors residence. During his job interview with the manager of the seniors residence, the complainant disclosed that he had been twice convicted in the past for impaired driving but no longer had a drinking problem. The manager told him this was not a concern given he was not required to have a driver’s licence for the job. The complainant was hired, subject to a probationary period of six months, and required to sign an employment agreement. This agreement provided that the complainant would obtain a criminal record check from the proper authorities. The manager sought the criminal record check because, as a result of his duties, the complainant would be given a pass key to enter the suites of the seniors in the residence and do maintenance work. Until he obtained a satisfactory criminal record check, the manager assigned another employee to do suite maintenance work. While he was only doing part of his job at the time, the employer paid him full-time wages.

A few days after his hiring, the complainant requested a criminal record search from the police. He received a report showing that he had a record with both the Winnipeg police and the national repository maintained by the RCMP. The complainant told the manager about these results and she asked him the reason for the record with the RCMP, a question he did not have the answer to.

The manager wrote a letter to the complainant dated December 7, 2006 requesting a transcript of the convictions. Although the complainant had indicated that it would take 150 days to get such a transcript, he was only given until December 31 to obtain the information. In addition to the transcript request, the letter went on to detail the manager’s concerns about the complainant’s performance to date. She felt that he was not putting sufficient effort into doing his daily duties. She pointed out that he was being paid full-time even though he was only performing part of his job given the delay in obtaining a satisfactory criminal record check.

On December 14, 2006, and prior to the complainant obtaining a transcript of his criminal record, the complainant was advised that he was dismissed for poor performance.

The complainant contended that the respondent had discriminated against him on the basis of criminal record in two ways. First, by requiring him to produce a transcript of his criminal record within a deadline that was impossible to meet as a condition of his continuing employment. Second, by dismissing him before the time limit expired. The respondent took the position that the complainant was dismissed due to inadequate job performance.

DECISION:

The adjudicator commenced his decision by briefly examining the issue of whether discrimination on the basis of a criminal record is actually covered by the Manitoba Human Rights Code. “Criminal record” is not set out as a specific protected characteristic in the Code. Noting that he did not have the benefit of full argument for both parties to the complaint, the adjudicator concluded that for the purposes of this particular case he was prepared to accept that persons with criminal records could fall within section 9(1)(a) of the Code, a provision setting out a general definition of discrimination unrelated to any of the protected characteristics. (For more on this issue, see my post “Clearing the air: criminal records, employment and the Manitoba Human Rights Code” ).

The adjudicator then went on to consider whether, based on the facts of this case, the respondent had discriminated against the complainant on the basis of his criminal record. He found as follows:

in relation to the general issue of whether the complainant’s criminal record was a factor in the respondent’s decision to terminate his employment, the adjudicator concluded that the respondent fired the complainant on the basis of his work performance only. Whether he had a criminal record or not was found to play no role whatsoever in their decision. The complainant was therefore treated on the basis of his personal merits.
in relation to the December 7 letter specifically, the adjudicator did find that the complainant made out a prima facie case of discrimination. The respondent gave the complainant an ultimatum to produce a transcript of his criminal record by December 31 or he would lose his job. Given that the expert evidence at the hearing was that it could take 3 to 4 weeks to obtain a transcript from the Winnipeg police and 3 to 5 months to obtain a transcript from the RCMP’s repository, the respondent’s December 31 deadline made it impossible for the complainant, a person with a criminal record, to meet the condition and continue in his employment.
On the issue of whether the respondent could demonstrate that the requirement of a satisfactory criminal record check was a bona fide occupational requirement, the adjudicator sided with the employer because:
- the respondent was able to show that the transcript request was rationally connected to the job in question and adopted in good faith given that the complainant would be entering the suites of elderly residents who were vulnerable to theft and fraud;
- as criminal record was not listed in section 9(2) of the Code as a protected characteristic and since the Code’s reasonable accommodation provision only applied to section 9(2) characteristics, the adjudicator concluded that the respondent did not have a duty to accommodate the complainant by allowing him time to obtain the record transcript.
- Alternatively, the adjudicator concluded that more weight should be given to the potential hardship to an employer when considering the duty to accommodate in relation to alleged discrimination on the basis of criminal record. On this basis, the conclusion was reached that it was not reasonable to expect the respondent to continue paying the complainant a full-time salary for only part-time work while awaiting the criminal record transcript which, due to no fault of the employer or the employee, would take a significant amount of time. [It should be noted that evidence at the hearing suggested that a new system of searching criminal records in the national repository was introduced in 2008, after this complaint arose, reducing the turn-around time to one to six weeks].

WHAT TO TAKE FROM THIS CASE:

discrimination on the basis of a criminal record is likely covered by the Manitoba Human Rights Code;
if an employee can make out a prima facie case of discrimination on the basis of criminal record due to an employer’s requirement for the criminal record check or the rules that need to be followed for that criminal record check to be provided, an employer will need to demonstrate that the requirement of a satisfactory criminal record check is a bona fide occupational qualification;
in relation to proving a bona fide occupational qualification, it appears that on the basis of the wording of the Manitoba Code, an employer may not need to show that it has accommodated an employee alleging discrimination on the basis of criminal record to the point of undue hardship or, alternatively, that a reduced hardship test will be applied;
Regardless, employers are best advised to ensure that they are treating employees (or job applicants) with criminal records on the basis of personal merits relating to the job in question rather than on assumption or stereotype.