A recent decision of the Human Rights Tribunal of Ontario (the “Tribunal”), Hussey v. Big Brothers Big Sisters of Peterborough Incorporated (“BBBS”), is a reminder of the importance of ensuring that any pre-employment screening is complete before an employee starts work. Although the employer in this case was ultimately cleared of any human rights violations, it cannot recover the significant time and expense invested to defend the application.
In the decision, the applicant, Ms. Hussey, alleged that she was discriminated against in employment on the basis of a record of offences. Under the Ontario Human Rights Code, an employer cannot discriminate against an employee or prospective employee in relation to a criminal offence if that offence is pardoned.
Ms. Hussey had applied for a job with BBBS as a caseworker. At her interview she was informed that all employees had to provide a clean criminal reference check and a vulnerable sector screening clearance before commencing employment. She told BBBS that she was able to provide this information.
Ms. Hussey commenced employment before submitting the criminal reference check documents. She told BBBS that she was in the process of obtaining the documents from the police station. When she was asked a second time a week later, she admitted that she had an unpardoned offence on her record. BBBS terminated her employment.
As it turns out, Ms. Hussey was in the process of receiving a pardon. However, somewhat ironically, she did not receive the pardon until the day after her employment was terminated.
Ms. Hussey had received a letter from a constituency assistant to a local Member of Parliament that indicted she had “implied Pardon status” until the proper documentation was processed. At the hearing, the parties disputed whether Ms. Hussey had ever provided the letter to BBBS, but the Tribunal found that even if she had, it would have been insufficient to establish the offence had been pardoned at the relevant time. As a result, it was not a violation of the Human Rights Code to discriminate against her on the basis of the unpardoned criminal offence.
This decision highlights the importance of ensuring that all pre-hiring screening is complete before an employee commences work. Moreover, employers who fail to do so run the risk that an adjudicator would find the pre-condition was not a bona fide occupational requirement. After all, if an employee can work without restriction before screening is complete then it is more difficult to assert that passing is essential to the position.
