Can an employer require a worker to complete a criminal records check (CRC) as a condition of employment? Is it a breach of the worker’s human rights if the employer dismisses him for refusing to complete a CRC? What if the employee has a previous criminal conviction?
In Kompaneets v. Paladin Security Group (No. 2), the British Columbia Human Rights Tribunal (Tribunal) held that a worker who was dismissed for refusing to complete a CRC was not discriminated against based on his previous criminal conviction.
The employer provided security services for commercial and residential properties, including healthcare facilities for vulnerable individuals. The employer could assign a security guard to any location unless the worker expressed any concerns. The employer’s contracts with healthcare facilities represented that workers at those sites had completed a CRC. Accordingly, the employer required its workers to complete a CRC as a condition of employment.
The worker agreed to complete a CRC as a condition of employment, represented that he had never been charged with or convicted of a crime, and that he had “no concerns” with a CRC. He signed an agreement with the employer which included a three month probationary period stating that his employment could be terminated during this period for performance issues.
Shortly after commencing employment, the British Columbia Ministry of Public Safety and Solicitor General (Ministry) contacted the worker regarding the CRC. In particular, the Ministry found his personal information had matched that of a pardoned offender, and it needed him to submit his fingerprints in order to complete the CRC. The Ministry explained that this was a standard procedure for a vulnerable sector check and that it was not accusing him.
At the same time, he was having performance issues at work, including reporting for work when he was not scheduled and difficulty completing his patrol work. In particular, he had “difficulty with writing down patrols, communicating on the radio, unlocking doors using the computer, and failing to patrol areas assigned to him.”
The worker refused to complete the fingerprint verification. Due to his performance issues and failure to complete the CRC, his employment was terminated.
The worker filed a human rights complaint, alleging that the employer discriminated against him by dismissing him on the basis of a criminal conviction. The British Columbia Human Rights Code (Code) prohibits an employer from refusing to employ a worker for being convicted of a criminal or summary conviction offence that is unrelated to the employment.
The employer brought an application to dismiss the complaint on the grounds that it has no chance of succeeding in a hearing.
The Tribunal found that while the termination of his employment was an adverse impact under the Code, there was no discrimination since it was not related to a Code-protected ground. In particular, there was no reasonable prospect that he could prove the employer was aware that he had a criminal conviction under the Code, since he had chosen not to complete the CRC. The Tribunal stated that the Code “does not prohibit an employer from determining whether an employee has a criminal conviction. It only prohibits discrimination on the basis of a criminal conviction or perceived criminal conviction that is unrelated to employment.”
In addition, there was no reasonable prospect that he could prove that the employer “assumed he had a criminal conviction, and that this assumption was a factor in his dismissal.” The employer had a reasonable non-discriminatory explanation for its conduct: it had a duty under the Criminal Records Review Act (CRRA) to obtain a CRC.
The Tribunal stated:
“Without a factual basis, a complainant’s personal belief of discriminatory treatment, no matter how sincerely felt, “can only be said to be based on speculation and conjecture, rooted in feelings, suspicions and beliefs”: Ibrahim v. Intercon Security.”
Based on the above, the Tribunal dismissed the complaint.
This decision is helpful for employers as it shows that there is a difference between requiring a criminal records check and discriminating on the basis of a criminal conviction or perceived criminal conviction that is unrelated to the employment. As a best practice, employers should only require a CRC when necessary for the role, and should clearly state that it is a condition of employment like the employer did in this case. In addition, employers should ensure that employees know their employment could be terminated for failure to complete a CRC.
Original title of blog post: Dismissal for refusing criminal records check is not breach of human rights
By Nadia Zaman