Case Comment: Robinson v. Fraser Wharves Limited (2000), British Columbia Supreme Court

Published December 8, 2001

Court decisions are a critical source of information about the proper interpretation of the laws and rules that govern so many of our actions. Our goal with comments on case law is to provide you with an accurate summary of the main issues in the case, and to comment on the case's possible relevance. Keep in mind, however, that every case has unique facts and circumstances. Court decisions cannot be relied upon as legal advice because no two situations are exactly the same. Nonetheless, cases can provide valuable insights and taken together, they can offer guidelines for our conduct.

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Why This Case May Interest You

This case deals with a situation where criminal charges were brought against an employee, who was then dismissed by his employer even though the employee denied all charges and in the end, the charges were dropped. The conduct of the employer was found to be in "bad faith" and this resulted in an increased notice/severance period being imposed by the court. This case provides insight to organizations on how to handle employees involved in criminal charges or having criminal records, such as may be revealed by a criminal records check.

Summary of Facts

In January 1998, Mr. Robinson was 42 years old and the operations manager of an automobile distribution centre. The police arrested him at his workplace. Mr. Robinson strenuously denied the criminal charges that were laid against him. The employer terminated his employment and alleged that the laying of criminal charges was just cause for his dismissal.

Nine months later the police dropped the charges against Mr. Robinson. However, the employer continued to allege that it had just cause to dismiss Mr. Robinson. Mr. Robinson was unable to find new work and claimed at trial that his reputation in the industry was ruined.

The Issue

Is the laying of criminal charges against an employee enough to justify an immediate dismissal for cause?

Decision:

The Court found that by reason of his age and his relatively limited work experience the chances of Mr. Robinson's finding a new job in the automobile distribution industry were slight. It was determined on the facts of the case that Mr. Robinson had been wrongfully dismissed and that reasonable notice was fifteen months.

In addition, the court found that the employer had acted in "bad faith" on the basis of the conduct set out below:

• the laying of criminal charges against the employee did not justify the termination of employment for cause;
• the employer ignored the statements of the employee denying the criminal charges and made no attempt to investigate the truth of the police allegations;
• the employer continued to maintain that there was just cause for termination for a year after the criminal charges were dropped by the police.

As a result, the Court determined that the conduct of the employer warranted an additional three-month period of notice for a total of eighteen months notice/severance.

Comment

This case is another example of the "Wallace factor" whereby "bad faith" conduct on the part of the employer increased the total notice period given to the employee. Many courts are following this principle in calculating notice periods and employers need to be aware that if they treat their employees with less than complete honesty there may be a price to pay. Making allegations of cause that cannot be substantiated is one such example of dishonesty and bad faith.

More interestingly, the Court decided that the laying of criminal charges against the employee did not, in and of itself, justify that employee's dismissal for cause -- at least not without the employer conducting an inquiry or some form of investigation into the details of the allegations and the employee's version of events.

As is so often the case, each employment situation is unique and must be analyzed on its own particular facts. To be careful, employers should not jump to conclusions when an employee is criminally charged. Carry out your own investigation, speak to the employee about the charges and remember that unless the employee is convicted of the charges there may be no proof of any wrongdoing at all.

On a related issue, this decision may affect how employers treat information on prospective employees obtained through screening systems and police records checks. A police records check may indicate that an individual applying for a job has been charged with an offence. If an existing employee cannot be terminated for cause as a result of criminal charges being laid, it is not likely that a prospective employee can be denied employment on the same basis.

When an organization obtains information about an employee's criminal record, it should carefully consider what sort of further inquiry should be made. Also, do the charges relate directly or indirectly to the employment position? Does the applicant have a history of criminal wrong-doing? Was the criminal charge recent or a thing of the past? Deliberate on these matters before coming to hasty conclusions.