Criminal record check of new employees permitted in retail sector
A Labour & Employment Update
Calgary Co-op required the employees in its retail stores to be bonded. All employment applicants were asked whether they had prior criminal convictions. In addition, offers of employment were made expressly conditional on the employee providing a certificate, that they alone could obtain from the Calgary Police Service, which listed their criminal convictions. If the criminal records form disclosed a criminal conviction that was of concern, then their hiring might be revoked. Approximately three per cent of applicants were either terminated or did not continue their employment because of the process.
The union grieved the discharge of an employee who refused to provide the information. It argued this was an unjustified invasion of privacy, focusing in particular on the provisions of the Youth Criminal Justice Act (formerly the Young Offenders Act), which has specific provisions to ensure the confidentiality of criminal records of youth.
Arbitrator Alan Beattie ruled that the employer has a significant and legitimate interest in obtaining and evaluating the information for insurance and bond purposes as well as to evaluate trustworthiness. He was assisted in this view by the observation of the Supreme Court of Canada in a decision in 2003 that:
"The employer may rely on the absolute presumption that it is entitled to refuse to hire, or to take other action against, an employee who has committed an offence that is connected with his or her employment if the employee has not obtained a pardon."
He ruled that the requirement to disclose the information involved an appropriate balancing of interests and that it offended neither the spirit nor the provisions of the legislation.
A number of Alberta employers have criminal record check procedures. This case clearly supports those in respect of at least some forms of employment. Three points of caution remain:
1. Employers should utilize all necessary paperwork to ensure that hirings are truly conditional.
2. Employers should ensure that their decision to reject an employee on the basis of a criminal record has some legitimate basis. Not all offences are relevant to employment.
3. Employers must respect the confidentiality of the information they obtain, giving due respect to the privacy of the personal information obtained.