Convicted worker cries foul over termination

You make the call

This instalment of You Make the Call features a worker who was fired after his employer learned of a criminal conviction.

The worker was employed at a residential building complex called the Strata, where residents owned their individual lots and co-owned public areas of the complex. The worker was friends with the building manager, who paid him to perform jobs around the building complex such as repair and janitorial work, painting, and landscaping starting in 2008. The Strata provided all the tools and equipment for the work and the complex’s council was aware of and consented to the worker’s hiring for these jobs. For example, at one point the worker filled in for the regular janitor and the council decided to keep him on when the regular janitor quit.

The worker was paid for each job until June 1, 2014, when the Strata gave him a “janitorial agreement and work description,” which was a one-year contract to provide janitorial services for the building, to be renewed yearly as necessary.

In October and November 2016, the worker performed work in the elevator pit at the building and the Strata paid him extra above his janitorial contract. However, a new building council was soon elected and it determined that the worker wasn’t qualified for it. The council asked the worker for confirmation he had workers’ compensation coverage but said he failed to do so — though the worker did have coverage as of Jan. 20, 2016 – so it decided not to assign him any more work.

On Nov. 27, 2016, a resident of the building informed the council that she had seen the worker performing tasks around the building and recognized him from the newspaper as a convicted sex offender. She was concerned that the worker had access to the building when several residents had grandchildren who visited or were women.

The council learned that the worker had been convicted of sexual interference and jailed for six months in 2012 and convicted of possession of child pornography and breaking his probation in May 2015, leading to more jail time. His name was placed on the sexual offenders’ registry for life and he had to submit his DNA to the criminal databank. A court prohibited the worker from contact with minors under the age of 16, ordered him to avoid places where children may be present, and forbid him from accessing the Internet for five years. A newspaper article about the second conviction noted that the worker had said he felt bad for his family but showed no remorse towards his victims, and a psychological assessment determined he was untreatable due to low intelligence, despite a high risk to re-offend.

The council informed the building manager that the worker was no longer to perform any tasks at the Strata and he should not have unsupervised access to the building

The worker filed a human rights complaint claiming discrimination in employment on the basis of criminal convictions unrelated to his employment, which was prohibited by the B.C. Human Rights Code. The Strata countered that it didn’t initially allow the worker to complete his work because he didn’t prove he had workers’ compensation coverage and decided not to use him going forward after it learned of the newspaper articles saying the worker was untreatable and likely to re-offend.

You Make the Call

 

Was the building council within its rights to sever its ties with the worker because of his convictions?

OR

Was the worker discriminated against?

 

If you said the building council was able to sever its ties with the worker, you’re correct. The B.C. Human Rights Tribunal agreed that the worker had a protected characteristic under the Human Rights Code — his past criminal convictions. It also agreed that for all intents and purposes, the worker was an employee of the Strata and was denied the opportunity to do further work for the building complex. It was likely the worker could prove that the Strata’s decision to deny him employment — an adverse impact — was caused at least in part by his criminal convictions, said the tribunal.

However, while there was no evidence that the Strata conducted any investigation to determine the accuracy of the newspaper articles, the worker didn’t refute any of the information contained in them — in fact, the worker himself proved the contention that he was likely to re-offend with his second conviction three years after his first. This raised the issue of the compatibility of the worker’s convictions with his employment, as the court ordered him to avoid contact with minors and places where children may be present. There was no dispute that children could be present in the building at any time with grandchildren visiting their grandparents and the worker’s employment gave him unrestricted access to various parts of the building.

The tribunal determined that the Strata had enough to establish that the worker’s criminal convictions were related to his employment and he was unsuitable for work at the building complex. The worker’s complaint was dismissed.

For more information see:

Pater v. Strata Plan VIS 4136, 2018 CarswellBC 2066 (B.C. Human Rights Trib.).

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