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Author:
Kelsey Orth

Date:
2020.09.10

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Wrongful Dismissal

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THE EMPLOYERS' EDGE

Grievor Puts the “X” in “Ex-Employee”: Termination from Job at CRA Upheld by Federal Arbitration Panel

Practice Areas: Labour RelationsWrongful Dismissal

As many employers know, just cause is a difficult standard to meet, regardless of the jurisdiction under which you fall, or the forum in which the case might be tried.  That endeavor becomes even more difficult when relying on off-duty conduct as the reason for the termination.  However, a recent decision of the Federal Public Sector Labour Relations and Employment Board gives hope that where an employer has sound reasons, such decisions to terminate can still be upheld.

In the case of Grievor X and Canada Revenue Agency (for various reasons to do with: privacy, a twin brother and some criminal charges the subject employee in this case is identified only as Grievor X), the Grievor held a position within the CRA that required security clearance; in fact, he had recently taken up a position as the acting chief of personnel screening in the CRA’s security and internal affairs directorate.  However, after a review of his reliability status (triggered by an impaired driving charge) revealed a litany of criminal charges, negative interactions with police and provincial offence notifications, the CRA revoked his reliability status, determining that he was untrustworthy and posed an unacceptable risk to the agency’s security and reputation. Grievor X could not hold a job at the CRA without his reliability status and he was fired for cause.

CRA management made the decision to revoke the Grievor’s reliability status on the basis that the review indicated that he “…was considered to have serious judgment issues, an inability to follow rules, and disrespect for the law and law enforcement.”  Counsel for the Grievor argued that because none of the issues identified in the review related (directly) to the Grievor’s work or job, they raised no risk of any problematic behaviour at work.  This argument was roundly rejected by the Panel at paragraphs 77-79 of its decision:

[77] Off-duty conduct is often separate and unrelated to an employer’s interests, but that is not so in this case. Some of the entries in the LERC would have had little connection to the grievor’s work had they been isolated events. However, they were not. They were part and parcel of a clear and lengthy pattern of poor judgment, lack of respect for the law and legal documents, dishonesty and a propensity to falsely identify himself, and to intimidate and abuse perceived power. It is not possible to conclude that there was no risk of the grievor’s off-duty conduct spilling over into problematic behaviour at work.

[78] In my view, it was more than a risk – it had already happened. The grievor had attempted to use his CRA status to get the OPS to cancel two tickets. He began his excessive force complaint by using his personal email and not mentioning where he worked. However, he quickly escalated matters and displayed his association with the CRA when it appeared that his tickets would not be cancelled.

[79] In my view, it is more likely than not, that this type of conduct would again spill over into his work.

The Panel went further to say that the Grievor had a “… fundamental lack of understanding of what the CRA, and federal government policy in general, requires of public employees” and an “apparent propensity to intimidate with threats, often implying connections with power and authority that could be brought to bear against the individual being threatened” which ultimately created a serious risk for the CRA’s interests, assets and integrity.  The Panel agreed with the CRA’s determination that Grievor X posed an unacceptable security risk and concluded that the CRA had “proper and legitimate grounds to revoke his reliability status.”

The takeaway here for employers is that off-duty conduct can still be grounds for discipline or termination where it either affects (or could affect) the employer’s reputation or is indicative of a risk to the employee’s ability to perform their duties.  Here, Grievor X’s conduct not only checked both of those boxes but was so flagrant that it is hard to fathom, but even where that is not the case the employer has a right to protect its interests, security and reputation from its employees’ improper behaviour.  If you have issues with respect to off-duty conduct, or any kind of misconduct, talk to the team at CCPartners to determine the best way to address it, before it is too late.

Click HERE to access CCPartners’ “Lawyers for Employers” podcasts on important workplace issues and developments in labour and employment law.

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