Canadian Employment Law Today

Canadian HR Reporter, 2020 6 | | September 23, 2020 September 23, 2020 plete a criminal record check (CRC) as a con- dition of employment with the company that included a check for working with children or vulnerable adults. This is reflected in Paladin's contracts with health-care facilities, which states that all employees working at those sites have completed a CRC before working there. In July 2017, Paladin interviewed Vladimir Kompaneets at a career fair it was hosting. Kompaneets, who was applying for a security guard position, agreed to undergo a CRC be- fore starting work with Paladin. He also filled out a standard questionnaire the company gave to job applicants and indicated he had never been charged with or convicted of a crime and he had "no concerns" about submit- ting to a CRC and accompanying fingerprint verification. On July 17, Kompaneets signed an employ- ment contract with Paladin beginning with a three-month probationary period. The con- tract indicated that, during this period, it could terminate Kompaneets' employment for any performance-based reason. Kompaneets also signed a CRC consent form, including for a check "for working with children and/or vulnerable adults." Ten days later, the B.C. Ministry of Public Safety and Solicitor General contacted Kom- paneets to inform him that it had processed his CRC, but there was a snag. While conducting the CRC, the ministry found that his personal information matched the data of a pardoned offender, so it couldn't complete the check until Kompaneets submitted his fingerprints to the Royal Canadian Mounted Police (RCMP). The ministry emphasized that it wasn't accusing him of criminal activity and that the fingerprints would be used only to confirm his identity. Kompaneets wasn't keen to submit his fin- gerprints, so the ministry explained that the CRC included a vulnerable sector check in which, if two of his name, date of birth and gender matched that of a pardoned sex of- fender, a second screening with fingerprints was necessary. The ministry stated that "fin- gerprinting for vulnerable sector screening is a standard procedure that has to be performed for a large portion of the adult population. The fact that your fingerprints are being requested for a vulnerable sector check does not single you out in any way." Paladin reminded Kompaneets that he was required to complete the fingerprint verifica- tion for the CRC, as "employees of Paladin Security may work at hospitals and other pro- vincial facilities were vulnerable people receive care, therefore the potential for unsupervised access exists." While this was happening, Kompaneets was working for Paladin as a probationary em- ployee. Some issues cropped up with his work performance, including at least two occasions when he reported for work when he wasn't scheduled to work as a result of his repeated failure to check his shift schedule. He also had difficulty writing down his patrols, communi- cating on the radio, unlocking doors with the computer and not always patrolling areas as- signed to him. Worker refused fingerprint verification On Sept. 25, Kompaneets told Paladin that he would not complete the fingerprint verification. Paladin responded by saying that, if he didn't complete it, his employment could be terminat- ed for not having a CRC. Kompaneets reiterated that he would not complete the verification. On Oct. 16, Paladin terminated Kom- paneets for his performance issues and his fail- ure to complete the required CRC. The com- pany determined that Kompaneets was still on probation at the time of his dismissal. Kompaneets filed a human rights com- plaint, claiming that Paladin discriminated against him by terminating his employment on the basis of a criminal conviction — the B.C. Human Rights Code prohibits discrimi- nation by refusing to continue to employ a per- son "because that person has been convicted of a criminal or summary conviction offence that is unrelated to the employment or intended employment of that person." Paladin applied to have the complaint dis- missed on the grounds that it had no chance of succeeding in a hearing. The tribunal noted that the termination of Kompaneets' employment was an adverse im- pact as defined in the code. However, for there to be discrimination, the adverse impact had to be because of a ground protected under the code. The tribunal found that there was no evi- dence that Paladin terminated Kompaneets' employment because of a perceived criminal conviction. When the company hired Kom- paneets, it had no reason to believe that he had such a conviction, as Kompaneets indicated on the job application questionnaire that he didn't have one and there would be no prob- lem with the CRC. Even during the CRC pro- cess, when the ministry requested his finger- prints, it didn't say anyone was accusing him of committing a crime; it was only because his information matched that of a convicted of- fender in the database. The tribunal also pointed out that Paladin couldn't have known Kompaneets had a crimi- nal conviction since Kompaneets chose not to complete the CRC, which would have deter- mined whether or not he had one. Although Kompaneets suggested that Paladin assumed he had a conviction because of how soon his dismissal came after his refusal to complete the CRC, there was no evidence of this, said the tribunal. "Without a factual basis, a complainant's personal belief of discriminatory treatment, no matter how sincerely felt, 'can only be said to be based on speculation and conjecture, rooted in feelings, suspicions and beliefs,'" said the tribunal in referencing previous deci- sions confirming the need for evidence of dis- crimination over subjective interpretation of events — particularly when there is a reason- able non-discriminatory explanation. Legal requirement The tribunal found that a non-discriminatory explanation lay in the fact that employers are required by the B.C. Criminal Records Review Act (CRRA) to ensure that employees who work with children or vulnerable adults under- go CRCs. Paladin, as an independent contrac- tor sending employees to health-care facilities that housed vulnerable people, was subject to this requirement. "In these circumstances, it is reasonably certain that Paladin would prove that Mr. Kompaneets' failure to complete a CRC com- promised not only important public safety re- quirements set out in the CRRA, but also the contractual representations made by Paladin to its health-care facility clients," said the tri- bunal. "It is, therefore, reasonably certain that Paladin would prove that Mr. Kompaneets' failure to complete a CRC constitutes a reason- able non-discriminatory explanation for Mr. Kompaneets' dismissal." The tribunal determined that the CRRA re- quirement didn't unfairly breach the rights of those previously convicted of criminal of- fences, as it was a legitimate rule for employees working with vulnerable individuals. Paladin didn't impose a duty on Kompaneets to prove his innocence but rather it only wanted to comply with public safety requirements under the legislation, said the tribunal, noting that it didn't matter if Kompaneets didn't work with children or vulnerable adults during his stint — the possibility was there since his employ- ment agreement included the stipulation that as a Paladin employee he could "work at any site and at any time," including at health-care facilities. The tribunal dismissed the complaint, find- ing Kompaneets' failure to complete a CRC, along with his performance issues during the probationary period, were non-discriminatory reasons for dismissal. For more information, see: • Kompaneets v. Paladin Security Group (No. 2), 2020 BCHRT 111 (B.C. Human Rights Trib.). « from MURKY on page 1 Fingerprints needed to confirm identity after name was flagged Cases and Trends Cases and Trends

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