Canada: Ray Rice’s Employer Finally Acted As It Should Have From The Start

Last Updated: October 1 2014
Article by Howard Levitt

It seems that the public are far more eager to accord procedural fairness to miscreant Canadian Senators than they are to National Football League players caught in an act of violence.

Such is the case with former Baltimore Ravens' player Ray Rice, who has already been convicted in the court of public opinion for knocking out cold his then fiancee and now wife. No one is demanding that the NFL await the outcome of any criminal trial before passing judgement. Public sentiment is notoriously elastic and is more overwrought by physical abuse of female partners than by apparent thefts from the public purse.

The victim Janay Palmer's pleas for support were quickly rationalized as the words of the proverbial abused woman who too quickly forgives her abuser, and will likely be abused yet again.

How does all this relate to the workplace? The public, in Rice's case is right. With the Canadian senators, it is not.

However, employers should never let the criminal courts decide their disciplinary path. They should conduct their own investigation, in parallel, if necessary, with the criminal one, come to a conclusion and dismiss or not accordingly. Too many employers fail to even investigate, let alone discharge, employees who are criminally charged for actions in the workplace.

Although the criminal process can perdure for years, workplace justice demands rapid resolution. Is the employer to retain the employee, or even suspend him or her, for such an extended period? And, in some cases the employee is ultimately discharged on a technicality, with the merits of the case left unaddressed. Ironically, sometimes the technicality that results in an automatic acquittal is the passage of time itself.

What if an employee, suspended without pay, is acquitted on the merits after three years? The employer would be on the hook for three years pay to someone it could have fired without cause, for, say eight months pay. Merely posing this question reveals the ludicrous position the employer is placed in.

Finally, the test for "guilt" or "innocence" is different in a criminal trial as opposed to one for wrongful dismissal. In criminal court, the employee will be acquitted if there is any reasonable doubt as to whether he committed the misdeed. In civil cases, the employee has a much reduced prospect of success. Even if they can prove a reasonable doubt, there will still be found to be cause for discharge if it is more likely than not that they committed the misconduct.

Another employment law issue arising from the Rice case is that of double jeopardy. Many believe the NFL knew about the assault video and had access to it, yet it awarded only a two week suspension to him. Only when public opinion was engaged did the league decide to discharge him outright (the CFL also chimed in declaring him unwelcome on any of its teams).

If a Canadian employer assesses an employee's conduct and determines that that employee should be suspended for two weeks (or any other period), it is virtually impossible for the employer to change its mind and later increase the penalty. It is otherwise, of course,   if new facts arise which they could not reasonably have been aware of earlier.

If Rice were a Canadian employee, would his conduct be cause for legal discharge? Undoubtedly yes. The fact that the misconduct did not occur in the workplace and did not technically involve his employer is irrelevant under Canadian law. If an employee acts in a fashion, albeit outside of work, that seriously depreciates the employee's brand, the courts have held that they can be discharged.

And, the more senior the employee, the more they have a legal fiduciary or in a position of trust, the more likely that off-duty conduct will be cause.

Employers too often fail to understand this and dispense with the employee's services after paying lavish severance — as it happens, an entirely unnecessary expense.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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