Employees can get arrested and charged for crimes that they committed inside and outside of the workplace. Such a situation already puts an employer in an awkward position. However, depending on the severity of the crime, the employee may be sentenced to prison. At that point, the employer will be without the employee for the duration of the employee’s incarceration, which can fluctuate based on their ability to get parole.

Often employer’s gut reaction upon hearing that their employee has been arrested or will be incarcerated is to terminate their employment. This can be a mistake. It is better to first meet with an employment lawyer who can guide you through your legal responsibilities. As the following case will show, dealing with an employee who is to be incarcerated can be legally complicated.

Adam West v J. Dowswell Farms Ltd. (2024 CanLII 3332)

In Adam West v J. Dowswell Farms Ltd., Adam West was appealing the decision of an Employment Standards Officer who decided to not grant an order to pay his notice entitlements under the Employment Standards Act (ESA). In this case, Mr. West worked for the employer as a Farm Manager. Mr. West was arrested and charged with a criminal offence. Mr. West advised the employer about his arrest but did not lose any time from work due to the criminal proceedings. Mr. West was eventually convicted and sentenced to 18 months in custody. After an unsuccessful appeal, Mr. West advised his employer that he was required to surrender to police to begin his sentence on January 27, 2023. He did not request a leave of absence. Mr. West’s sister then began corresponding with the employer on Mr. West’s behalf. She informed the employer, on the day Mr. West surrendered to police, that Mr. West would be incarcerated for 18 months, but that sentence could reduced to 6 months if he is granted parole. The employer decided to terminate Mr. West’s employment on January 28, 2023, without providing him pay in lieu of notice. Mr. West was released on March 13, 2023, on bail pending his further appeal. However, the employer had already hired a replacement employee as Mr. West’s job needed to be done in-person.

The Ontario Labour Relations Board held a de novo hearing and found that Mr. West was not entitled to pay in lieu of notice. The Board noted that Regulation 288/01, provides exemptions to the requirement to give notice or pay in lieu of notice. It specifically highlighted section 2(1) 4 of Regulation 288/01 which provides an exception to providing notice or pay in lieu of notice when “An employee whose contract of employment has become impossible to perform or has been frustrated by a fortuitous or unforeseeable event or circumstance.” The Board found that Mr. West’s incarceration made his job “impossible to perform” as he was required to report daily to the employer’s farm, which frustrated his employment contract. The Board also noted that Mr. West also did not seek or get leave allowing him to be absent for the duration of his incarceration. Thus, Mr. West’s application was dismissed.

Takeaways from this case

This case establishes that the employer may be able to claim that the employment contract is frustrated when the employee becomes incarcerated. This is because criminal convictions are not protected under Ontario’s Human Rights Code and employers are not obliged to grant leave for an employee who will be incarcerated. However, this does not mean that the inability to come to work frustrates the employment contract in all circumstances. For example, both the Employment Standards Act (ESA) and Ontario’s Human Rights Code contemplate the ability of an employee to take parental leave to take care of a newly born child, which the employer must accommodate.

How Suzanne Desrosiers Professional Corporation can help

Although we are not a criminal law firm, we do have experience helping employers who have an employee who got arrested. We can provide tailored advice that helps you deal with the complicated process that comes when an employee is involved with the criminal justice system. To speak to one of our employment lawyers, please call us at 705-268-6492 or email us at info@sdlawtimmins.com.