Can an employer dismiss an employee for being incarcerated?
The Courts had to decide this question in several instances in 2016 and generally approached the issue in light of the protection afforded by Quebec’s Charter of Human Rights and Freedoms (CQLR, c. C-12) and collective-agreement provisions regarding loss of seniority and employment where an employee is absent for more than x consecutive working days (generally from three to five) without notice, permission or a valid reason.
Quebec’s Charter provides as follows in section 18.2:
No one may dismiss, refuse to hire or otherwise penalize a person in his employment owing to the mere fact that he was convicted of a penal or criminal offence, if the offence was in no way connected with the employment or if the person has obtained a pardon for the offence.
This protection has limits however. As the Supreme Court of Canada pointed out in Maksteel, an employee’s absence due to incarceration is not per se reasonable grounds for his or her absence from work and may justify dismissal, provided the employee’s unavailability for work is the real reason for the employer’s decision.
In a case involving the City of Gatineau, the employer dismissed an employee for being unavailable for work due to incarceration. The employer learned at that time that the employee had a previous criminal record. On the basis of a statement by a representative from the human resources department to the president of the union that if he wanted to know the real reason for the employee’s dismissal he should consult the employee’s criminal record, the arbitrator found that the employer had used a false pretext for dismissing the employee. The arbitrator determined that it was the employee’s criminal record that was the real reason for the employer’s decision, which is a prohibited ground of discrimination under section 18.2 of the Quebec Charter. The arbitrator thus overturned the employer’s decision and ordered the employee’s reinstatement.
In another case involving the City of Châteauguay, the Superior Court upheld the arbitrator’s decision dismissing a grievance contesting the employer’s right to dismiss an employee because of his unavailability for work for a lengthy period due to a conviction for illegal marijuana cultivation. The employee had been sentenced to prison for two years less six days but had actually served only four months of the sentence. The Court found that there was no false pretext underlying the employer’s decision to dismiss the employee and not allow him to use his unused holiday and vacation time to offset his period of incarceration.
In referring to the Maksteel decision, the Court stated the following:
The employee’s seniority and the quality of his work have no effect on the consequences of his imprisonment. There can be no attenuation on account of the employee’s personal profile, as would be the case in a disciplinary matter.
In another matter involving Sleeman Unibroue Inc., arbitrator Nathalie Massicotte, basing herself on the Maksteel decision, ruled that the employer had no duty to accommodate an employee who had been incarcerated for narcotics possession and trafficking. She acknowledged that the employer was not obligated to grant the employee unpaid leave, as the collective agreement gave the employer discretion in that regard. On that basis she dismissed the grievance of the employee, who sought to be reinstated in his job (his incarceration had lasted only two months and nine days) and to be granted the unpaid leave provided for in the collective agreement. In our view the arbitrator’s decision might have been different had the collective agreement not given the employer any discretion regarding the granting of unpaid leave, and if the request for such leave had been made before the employer made its decision.
Finally, in this same vein, the decision in a case involving CEZinc. and dealing with the right of an incarcerated employee to obtain unpaid leave in similar circumstances struck us as noteworthy. In that case, an employee sentenced to 120 days in prison for impaired driving had asked to be granted unpaid leave several days before being dismissed for being unavailable for work (despite the fact that the collective agreement did not contain the usual clause regarding loss of seniority and employment following an absence of x days without a valid reason). The arbitration tribunal, basing itself on the broad majority view in the case law, restated the applicable principles in such cases as follows:
 In exercising its management rights, the employer may deny a request for unpaid leave if the reason underlying the request is not provided for in the collective agreement or, a fortiori, if the request does not fulfil the conditions stipulated in the collective agreement.
 In such a case, the employee’s unavailability for work due to incarceration will be sufficient grounds for terminating the employment relationship, unless such unavailability is used by the employer as a mere pretext for dismissing the employee concerned…
And the tribunal went on to add:
 … The employee’s seniority and disciplinary record are irrelevant where dismissal is based on the impossibility for the employee to perform his or her work.
It emerges from these various decisions that:
- The majority view in the case law is that an employee’s absence due to incarceration is not a valid reason for being absent from work;
- The employer may dismiss an employee for being unavailable for work by relying, generally, on the clause found in the collective agreement regarding loss of seniority and employment;
- The employee’s unavailability for work must be the real reason for the employer’s decision to dismiss the employee, and not a mere pretext for doing so.
On the practical level, the following considerations must be borne in mind:
- It is not recommended, when the employer intends to sever the employment relationship with an employee because of the latter’s unavailability for work, to make any reference to the employee’s penal or criminal record, or to the grounds for his or her arrest and prosecution;
- As the collective agreement may provide for the possibility for an employee to be granted unpaid leave, as of right or at the employer’s discretion, the employer must take this into account when deciding whether or not to dismiss the employee;
- In addition to requesting unpaid leave, the employee may attempt to obtain leave by relying on provisions in the collective agreement regarding vacation allowances or unused holidays, if the conditions in the collective agreement allow this;
- Some collective agreements specifically provide for an employee’s absence due to incarceration, and in those cases the employer must abide by the conditions set forth in the agreement.
The application of a clause in a collective agreement providing for loss of seniority and employment on account of prolonged incarceration is an eminently viable option, as the case law views dismissal in such cases as an administrative measure that cannot be contested before an arbitration tribunal, unless it can be shown that the employer’s decision was unreasonable, abusive or discriminatory. It is thus incumbent on the employer to properly assess each situation, to take into account any relevant provisions in the collective agreement in this regard, and to act diligently.