In Merritt v Tigercat Industries ( 2016 CarswellOnt 2508) the employer terminated a 66 year old general labourer with 12.5 years service solely because he had been charged with two counts of sexual assault against minors. The alleged events did not take place in the workplace and did not involve any employees of the defendant.
The Court , in finding that there was no just cause, had the following to say about this situation.
32 Criminal charges alone, for matters outside of employment, cannot constitute just cause.
33 Improper conduct of an employee while not at work can only form grounds for termination with cause in limited situations. There must be a justifiable connection to the employer or the nature of employment.
34 Counsel also referred to two arbitration cases. In Millhaven Fibres Ltd. and OCAW, Local 9-670, Re,  O.L.A.A. No. 4 (Ont. Arb.), the majority on the panel addressed conduct in paras. 19 and 20 as follows:
19 There are a number of arbitration cases which deal with disciplinary matters arising out of the conduct of an employee at a time when he is not in the Plant. Generally speaking, it is clear that the right of management to discharge an employee for conduct away from the Plant, depends on the effect of that conduct on Plant operations.
20 In other words, if the discharge is to be sustained on the basis of a justifiable reason arising out of conduct away from the place of work, there is an onus on the Company to show that:
(1) the conduct of the grievor harms the Company’s reputation or product
(2) the grievor’s behaviour renders the employee unable to perform his duties satisfactory
(3) the grievor’s behaviour leads to refusal, reluctance or inability of the other employees to work with him
(4) the grievor has been guilty of a serious breach of the Criminal Code and thus rendering his conduct injurious to the general reputation of the Company and its employees
(5) places difficulty in the way of the Company properly carrying out its function of efficiently managing its Works and efficiently directing its working forces.
See, also: O.P.S.E.U. v. Ontario (Ministry of Natural Resources),  O.G.S.B.A. No. 102 (Ont. Grievance S.B.), at paras. 140-141.
35 The principles are correctly stated. The cases, however, are not comparable. Mr. Merritt was a general labourer, one of several hundred at Tigercat. He was not a manager, professional or senior employee.
43 As before, there is no evidence to support Tigercat’s position. Mr. Merritt was under no obligation to disclose the criminal allegations. At the time, the investigation was ongoing and he had been charged. Mr. Merritt is entitled to the presumption of innocence and the right to silence. An employee cannot be compelled to discuss the criminal allegations as any disclosure to an employer could easily be forwarded to the police.
What I found most interesting about this case was the comments by the judge of the presumption of innocence and the employee’s right to silence. In most situations a criminal lawyer will tell his client not to say anything to anyone about the charges. This seems to conflict with an employee’s duty to participate in an employer’s legitimate investigation.
This case may give some clarity in trying to balance the employer’s need or legal obligation to conduct an investigation and the employee’s Charter right to be presumed innocent of criminal charges and his right to remain silent.