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Supreme Court of Canada Rules That Absence Due To Incarceration May Justify Dismissal
December 8, 2003

Section 13 of the BC Human Rights Code, RSBC 1996, c. 210 prohibits an employer from discriminating against a current or potential employee on the basis that the employee has been convicted of a criminal offence that is unrelated to the individual’s employment.

The Supreme Court of Canada recently unanimously held that dismissing an employee who is absent from work because of a jail term does not amount to discrimination on the basis of a criminal conviction. The Court emphasized that the purpose of “criminal conviction” provisions in human rights statutes is to protect individuals from being wrongly excluded from the labour market because of the stigma that can accompany a criminal conviction. Such provisions do not protect individuals from the civil consequences of incarceration.

This decision demonstrates that although an employer must not dismiss an individual simply because he or she has a criminal record if the record is unrelated to the individual’s employment, it may be permissible to terminate the employment of an individual who is not able to attend work because he or she is serving a jail sentence. It is important to note, however, that it must be the fact of the absence that causes the discharge, not the reason for it.

Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Maksteel Quebec Inc., [2003] SCJ No. 68, November 14, 2003.