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Criminal Records: Can my past come back to haunt me when looking for a new job?

Whitten and Lublin | Dec 19, 2018

In order to determine whether a past action can be detrimental to future employment opportunities, one must ask: was the past action fundamentally incompatible with the employment relation in consideration? This would be the deciding factor in justifying a future employer’s decision to end employment. To illustrate, take the instance of a past criminal record.

A criminal record could result in denial of future employment opportunities or termination of employment in the event a record is discovered after employment commenced. The main factor to consider is whether the criminal offence was pardoned. If pardon has not been granted, this is not necessarily grounds for dismissal once employment has commenced. In such a scenario, an employer would have to show that the past offence was fundamentally incompatible with the employee’s duties or position. An example would be a mortgage broker having a past record of financial fraud. Otherwise, if the fundamental incompatibility is not established, then the employee would be entitled to a fair severance package.

In the event a past pardoned criminal offence is discovered, human rights law would be in effect. An employer in this scenario cannot discriminate against an employee, whether during the hiring stage or after employment has commenced, due to the pardoned offence. The employer would have to establish that the employee cannot be accommodated without imposing undue hardship – establishing undue hardship, however, is a high standard.

A severance in this scenario would still subject an employer to moral damages if challenged at a human rights board (ie. Ontario Human Rights Tribunal or the Canadian Human Rights Commission). Again, incompatibility would likely need to be established, while also showing the employee cannot be accommodated to where the fundamental duties of the job are able to be performed without imposing an undue hardship upon the employer.

Overall, both employers and employees should seek legal advice if faced with an uncertain scenario like the above. Prudent decision making is necessary for both parties.

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