Employer cannot terminate employee solely on the basis of criminal charges laid against the employee
One of the services provided by the Nlha’7kapmx Child and Family Services (NCFS), a non-profit organization, is protective services to aboriginal children. The NCFS is funded by the Department of Indian Affairs to service six aboriginal bands in British Columbia. Two case managers for the NCFS receive letters of delegation from the B.C. Ministry of Children and Families (MCF) which licenses individuals to work as child protection officers.
Craig Lockhart was employed by the NCFS as a case manager and had a letter of delegation from the MCF from Sept. 2, 1997, until he was suspended on April 21, 1999. His suspension and later dismissal from the NCFS resulted from charges that were laid against Mr. Lockhart for sexual assault and sexual touching.
The charges were the result of allegations made by Mr. Lockhart’s daughter. Upon learning of the criminal charges against Mr. Lockhart, the NCFS suspended his employment and his delegation from the MCF was suspended.
On May 11, 1999, the Crown stayed the charge of sexual assault against Mr. Lockhart. On April 10, 2000, during the early part of the trial on the charge of sexual touching the Crown stayed the charge. However, Mr. Lockhart’s daughter remained in protective custody and an order from the Court remained in place, prohibiting him from contacting her.
When the charges against him were stayed Mr. Lockhart requested reinstatement of his job. His request was refused due to the fact that his delegation from the MCF had been removed and without such delegation he was unable to perform any of his duties. It was also denied because the charges against him resulted only in a stay of proceedings, not an acquittal, which meant that there was a possibility that the charges could be brought back again.
When his request for reinstatement was refused, Mr. Lockhart brought a complaint under the Canada Labour Code for unjust dismissal. The matter proceeded to hearing and the arbitrator found that the dismissal was unjust.
The arbitrator first considered the fact that Mr. Lockhart no longer had delegation from the MCF. The NCFS did nothing to attempt to have Mr. Lockhart’s delegation reinstated once the charges against him had been stayed. The arbitrator held that the employer should have contacted the MCF requesting the reinstatement of the delegation so that it could reinstate Mr. Lockhart. Only if the MCF refused to give the delegation would the NCFS then have been justified in refusing to reinstate Mr. Lockhart.
As for the stayed criminal charges the arbitrator held that the employer had an obligation to prove that its employee had done something wrong. It was not sufficient to state that criminal charges had been stayed and that there was a possibility that those charges could be relayed. NCFS did not investigate on its own to determine if there was any wrongdoing by Mr. Lockhart. It relied solely on the criminal charges. At no time did the NCFS give Mr. Lockhart the opportunity to present his side of the story. For these reasons the arbitrator held that Mr. Lockhart’s dismissal was unjust.
The NCFS brought an application for judicial review of the arbitrator’s decision to the Federal Court of Canada. A Court will only interfere with the findings of the arbitrator if the decision was patently unreasonable, that is, whether the evidence viewed reasonably is incapable of supporting the tribunal’s conclusion.
On the issue of the delegation, the Court held that it was not patently unreasonable for the arbitrator to conclude that the employer could not rely on the absence of delegation when its actions prevented any determination by the MCF as to whether to issue the delegation. The MCF would not issue the delegation if the NCFS did not reinstate Mr. Lockhart.
On the issue of the stayed criminal charges, NCFS argued before the Court that the arbitrator failed to consider and to conclude that the fact that Mr. Lockhart’s own daughter was the subject of a protective order was incompatible with Mr. Lockhart holding a position which required him to take children into protective custody. The NCFS argued that this failure resulted in a decision that was patently unreasonable.
The Court had difficulties with this position argued by the NCFS.
First, the arbitrator did consider the protection order as it was referred to in the arbitrator’s decision.
Second, in both the termination letter and before the arbitrator, NCFS relied solely on the lack of delegation and the stayed criminal charges as grounds for dismissal. The NCFS did not argue before the arbitrator the protective order against Mr. Lockhart with respect to his daughter.
Third, even if the protective order was considered, the facts surrounding that order must be considered. Mr. Lockhart’s daughter was removed from his custody when the criminal charges were pending. However, since that time there had been no adjudication before the Court as to the merits of the order. Without any independent adjudication of that order the only place where the charges were considered was the criminal court and in that instance the charges were stayed. The Crown had decided to stay the charges because he felt that the evidence was not sufficient against Mr. Lockhart and an acquittal would be the likely result if the matter proceeded to trial.
For these reasons the Court did not find it patently unreasonable for the adjudicator not to have found the mere existence of the child protection order sufficient to justify dismissal.
The application for judicial review was dismissed.
For more information:
• Nlha’7kapmx Child & Family Services v. Lockhart, 2002 FCT 348.
Craig Lockhart was employed by the NCFS as a case manager and had a letter of delegation from the MCF from Sept. 2, 1997, until he was suspended on April 21, 1999. His suspension and later dismissal from the NCFS resulted from charges that were laid against Mr. Lockhart for sexual assault and sexual touching.
The charges were the result of allegations made by Mr. Lockhart’s daughter. Upon learning of the criminal charges against Mr. Lockhart, the NCFS suspended his employment and his delegation from the MCF was suspended.
On May 11, 1999, the Crown stayed the charge of sexual assault against Mr. Lockhart. On April 10, 2000, during the early part of the trial on the charge of sexual touching the Crown stayed the charge. However, Mr. Lockhart’s daughter remained in protective custody and an order from the Court remained in place, prohibiting him from contacting her.
When the charges against him were stayed Mr. Lockhart requested reinstatement of his job. His request was refused due to the fact that his delegation from the MCF had been removed and without such delegation he was unable to perform any of his duties. It was also denied because the charges against him resulted only in a stay of proceedings, not an acquittal, which meant that there was a possibility that the charges could be brought back again.
When his request for reinstatement was refused, Mr. Lockhart brought a complaint under the Canada Labour Code for unjust dismissal. The matter proceeded to hearing and the arbitrator found that the dismissal was unjust.
The arbitrator first considered the fact that Mr. Lockhart no longer had delegation from the MCF. The NCFS did nothing to attempt to have Mr. Lockhart’s delegation reinstated once the charges against him had been stayed. The arbitrator held that the employer should have contacted the MCF requesting the reinstatement of the delegation so that it could reinstate Mr. Lockhart. Only if the MCF refused to give the delegation would the NCFS then have been justified in refusing to reinstate Mr. Lockhart.
As for the stayed criminal charges the arbitrator held that the employer had an obligation to prove that its employee had done something wrong. It was not sufficient to state that criminal charges had been stayed and that there was a possibility that those charges could be relayed. NCFS did not investigate on its own to determine if there was any wrongdoing by Mr. Lockhart. It relied solely on the criminal charges. At no time did the NCFS give Mr. Lockhart the opportunity to present his side of the story. For these reasons the arbitrator held that Mr. Lockhart’s dismissal was unjust.
The NCFS brought an application for judicial review of the arbitrator’s decision to the Federal Court of Canada. A Court will only interfere with the findings of the arbitrator if the decision was patently unreasonable, that is, whether the evidence viewed reasonably is incapable of supporting the tribunal’s conclusion.
On the issue of the delegation, the Court held that it was not patently unreasonable for the arbitrator to conclude that the employer could not rely on the absence of delegation when its actions prevented any determination by the MCF as to whether to issue the delegation. The MCF would not issue the delegation if the NCFS did not reinstate Mr. Lockhart.
On the issue of the stayed criminal charges, NCFS argued before the Court that the arbitrator failed to consider and to conclude that the fact that Mr. Lockhart’s own daughter was the subject of a protective order was incompatible with Mr. Lockhart holding a position which required him to take children into protective custody. The NCFS argued that this failure resulted in a decision that was patently unreasonable.
The Court had difficulties with this position argued by the NCFS.
First, the arbitrator did consider the protection order as it was referred to in the arbitrator’s decision.
Second, in both the termination letter and before the arbitrator, NCFS relied solely on the lack of delegation and the stayed criminal charges as grounds for dismissal. The NCFS did not argue before the arbitrator the protective order against Mr. Lockhart with respect to his daughter.
Third, even if the protective order was considered, the facts surrounding that order must be considered. Mr. Lockhart’s daughter was removed from his custody when the criminal charges were pending. However, since that time there had been no adjudication before the Court as to the merits of the order. Without any independent adjudication of that order the only place where the charges were considered was the criminal court and in that instance the charges were stayed. The Crown had decided to stay the charges because he felt that the evidence was not sufficient against Mr. Lockhart and an acquittal would be the likely result if the matter proceeded to trial.
For these reasons the Court did not find it patently unreasonable for the adjudicator not to have found the mere existence of the child protection order sufficient to justify dismissal.
The application for judicial review was dismissed.
For more information:
• Nlha’7kapmx Child & Family Services v. Lockhart, 2002 FCT 348.
