Misconduct at work is typically met with discipline or, if particularly bad, perhaps dismissal. There are occasions, however, where employee misconduct will also merit criminal charges. One such high profile example is R. v. Cole where Mr. Cole, a high school teacher, was found to have stored nude and semi-nude photos of an underage female student on his work-provided laptop. Mr. Cole lost his job and was charged with possession of child pornography.
A more recent criminal case that was borne out of workplace misconduct, and resulted in termination and criminal charges, is R. v. Dewan. This case came before the Ontario Court of Appeal in October 2014.
Mr. Dewan was found guilty of mischief and criminal harassment stemming from two separate incidents. The first, which resulted in a criminal harassment conviction, occurred after Mr. Dewan sent an email to his ex-girlfriend's employer, purporting to be her. The court noted that the email "degraded the woman professionally, sexually, and physically, and suggested that she was a drug user." Mr. Dewan also attached a naked photograph of the woman to the email.
The second conviction, for mischief, resulted directly from Mr. Dewan's conduct in his own workplace. The Court noted the following:
The appellant suggested to a co-worker that he wanted to be more than friends. The co-worker did not share his feelings. The appellant persisted in contacting the co-worker on a daily basis but she did not respond. After the co-worker told the appellant she had contacted the police, the appellant distributed an e-mail, purportedly from the co-worker, to nine other co-workers. The e-mail degraded the co-worker professionally, sexually, and physically.
Cases like that of Cole and Dewan are troubling, and require employers to think carefully about their response to such misconduct in the workplace. If your organization finds itself in similar circumstances to that of the cases above, keep in mind the following two points:
1. Responding to Employee Harassment
Employers are required to "take every precaution reasonable in the circumstances for the protection of a worker" pursuant to the Occupational Health and Safety Act. While conduct of the type demonstrated by people like Mr. Dewan is not the norm, cases like his provide an important reminder about the role that protections like those found in Bill 168 are meant to fulfil. Secondary issues, such as personal privacy and misuse of company assets can also quickly become relevant.
As such, it is important for employers to have a set of clear policies in place dealing with matters such as harassment, computer usage and workplace discipline. Policies will of course not stop every prospective offender, but they will be of invaluable use in guiding an employer through an objectively fair response to alleged misconduct. Policies will also help set expectations about the type of activities that are, and more importantly, are not, permissible at work.
2. Criminal Behaviour and Just Cause Termination
Employers should be aware that a criminal conviction can be effectively used to simplify proving just cause termination in both the unionized and non-unionized context. Where there is a criminal conviction related to the same issue forming the basis of the just cause termination, the Supreme Court in Toronto (City) v. C.U.P.E., Local 79 has held that it would be an abuse of process to require re-litigation in a civil proceeding as to whether the impugned acts occurred. As stated by the Court, "the conviction must stand, with all its consequent legal effects."
To further discuss incidents of workplace misconduct, contact us at 613-238-4430 or info@vwlawyers.ca.