B.C. Human Rights Tribunal orders company to pay $10K to employee it fired after learning about his criminal convictions

A B.C. Human Rights Tribunal hearing room is shown in this file image from March 29, 2010. (THE CANADIAN PRESS/Darryl Dyck)

B.C.’s Human Rights Tribunal has ordered a Kelowna-based software company to pay a former employee who was fired after one week on the job $10,000, as it found the employers discriminated against him based on his criminal record.

The employee – anonymized throughout the decision as Mr. T – was convicted of robbery and obstruction of justice a number of years before he was hired by MotiveWave Software, according to the decision issued on June 13 and posted online Thursday.

Co-founders Tony Lindsay and Leigh Carter, a married couple who run the business out of their home, found out about the convictions when they Googled Mr. T after deciding to fire him, the ruling says. Mr. T admitted he lied about not having a criminal record during his job interview, and the employers did not conduct a criminal record check.

Tribunal member Devyn Cousineau ruled the employee would have been fired regardless of his previous convictions, so denied his claims for lost wages, but still found his criminal past was a factor in his termination and approved compensation for “injury to his dignity, feelings and self-respect.”

The B.C. Human Rights Code prohibits employment discrimination on the basis of conviction for an offence, if the offence is unrelated to the job.

To explain why, the BCHRT cited a 2003 Supreme Court of Canada decision that stated: “The saying ‘once a criminal, always a criminal’ has no place in our society. Individuals who have paid their debt to society are entitled to resume their place in society and to live in it without running the risk of being devalued and unfairly stigmatized.”

In this case, there was no dispute that MotiveWave fired Mr. T or that he had prior convictions. Cousineau was tasked with answering two questions: whether Mr. T’s crimes were a factor in the termination and whether they were related to his employment – ultimately ruling both were true.

The crimes

According to the tribunal, Mr. T robbed a bank in December 2014, when he was in his early 20s. He told the HRT he was suffering from undiagnosed mental illnesses at the time and “became fixated on money as the barrier to his wellness and success.”

“During an episode that his psychiatrist later described as ‘full-blown psychosis,’ he developed a plan to rob a bank to prove that money is a myth,” the decision reads. “He planned the robbery, in his mind, to ensure no one would be hurt. While no one was physically hurt, he now acknowledges that the event was traumatic for people present and working in the bank that day.”

During the robbery, Mr. T closed the bank’s doors with zip ties, approached a teller and shook his bag to “imply he had a weapon,” and forced the employee to hand over “increasing sums of money,” according to the tribunal. He was arrested and charged shortly after.

While awaiting trial, Mr. T was charged with obstruction of justice, for a matter he claimed was based on a “misunderstanding of how he was allowed to communicate with witnesses.”

He was convicted of that offence in December 2016 and sentenced to nine months in jail. After being released, his mental health deteriorated and he breached probation, and was sent back to prison around July 2017.

Mr. T then pleaded guilty to the bank robbery charge in December 2017 and was sentenced to time served plus 18 months probation.

“Mr. T says that he now understands how immature and unwell he was at the time. He accepts that he caused harm and acknowledges his responsibility to earn back the trust of his community. He wants to reintegrate and move forward with his life,” the decision reads.

Since 2017, the HRT sys, Mr. T has not been charged or convicted of any crime, and that he started taking medication, returned to school and work, and started a small business.

At the time of the crimes, Mr. T’s last name started with “U,” the tribunal noted. He legally changed his last name because he said people were treating him differently after Googling him and finding “sensationalized” news articles about his convictions.

The job

Mr. T applied for a job as a product support specialist at MotiveWave in early 2020, a position that involves helping customers via email and phone. On the application, he used his new last name, though the legal change wouldn’t become official until October of that year.

At the second of three job interviews, Carter asked Mr. T if he had any criminal convictions, explaining the position was based in her home and her children would be present. Mr. T said he did not. She later Googled him and the news articles did not come up, because he did not use his legal name.

“Mr. T gave several explanations for his decision to lie about his criminal convictions, which I accept. First, he says that he did not consider his criminal convictions to relate to the job or the safety of Ms. Carter’s children. From his perspective, his convictions had nothing to do with violence or children or any other aspect of the job, as he understood it,” Cousineau wrote.

“Second, he says that he considered it significant that MotiveWave did not require him to complete a criminal record check. He figured that they had done their due diligence and, if it were truly necessary, would have required a criminal record check.”

Carter and Lindsay, the co-founders, testified they had reservations about Mr. T as he overstated some of his skills, but liked his “energy and enthusiasm” and were struggling to find any other qualified applicants, so decided to give him a shot.

“Lindsay testified that they thought that the worst-case scenario was that, if it didn’t work out, they would terminate Mr. T’s employment and move on,” the decision reads.

Mr. T started the job on Aug. 24, 2020 – an employment that lasted seven days. The HRT noted Lindsay and Carter learned of his legal last name when he submitted his banking details and “found it strange” but didn’t follow up.

Lindsay and Carter gave the HRT several reasons they decided to terminate Mr. T after one week. Some pertained to his performance, such as not progressing in training and spending too much time trying to change the company’s website, which was not part of the job.

Carter was particularly concerned about Mr. T’s demeanor, the tribunal writing the pair “were not, in these early days, a good working fit.” She testified Mr. T repeatedly asked for access to the backend of MotiveWave’s website to make changes, which made her uncomfortable, and in one instance described him as “aggressive” and intimidating.

Mr. T, for his part, said he thought things were going well and denied having an argument with Carter.

“Ms. Carter told Mr. Lindsay they needed to let Mr. T go. She told him she felt he had been aggressive, and she felt upset and scared,” Cousineau wrote.

“I accept that, at this point, Mr. Lindsay and Ms. Carter had decided to terminate Mr. T’s employment the next day. This decision was not based on his criminal convictions, because they did not know about them yet. This is when Ms. Carter remembered that Mr. T’s legal name was ‘Mr. U’ and decided to Google him.”

The couple found several news articles about the bank robbery and Mr. T’s conviction for obstruction of justice, which they were shocked by. The tribunal accepted Lindsay and Carter “were scared by what they read and perceived that Mr. T posed a safety threat to them and the kids.”

Lindsay called Mr. T and asked if the articles were about him, and he said yes and admitted he lied about not having a criminal record. Lindsay told Mr. T he could not have him working in his house anymore.

“The meaning was clear: because of Mr. T’s criminal convictions, he was fired effective immediately,” the decision reads.

“Mr. T started pleading with Mr. Lindsay to find a solution. He tried to explain that the information in the articles was incorrect, that the issue was his mental health, that he had gotten help, and had taken responsibility. He told Mr. Lindsay he could talk to his mother, friends, probationary officer – anyone would confirm that he was a good person. He suggested he could work remotely. However, Mr. Lindsay was resolute. The relationship had been tarnished, and the employment could not continue.”

Mr. T filed the human rights complaint the following day, Sept. 2, 2020.

The decision

MotiveWave’s operators argued Mr. T’s prior convictions were not a factor in his firing, as they had already decided to dismiss him. However, the tribunal ruled the crimes were part of the decision, as they fired him immediately after finding out, rather than the next day as previously planned.

The HRT also noted that if MotiveWave fired Mr. T for lying about the convictions, rather than the crimes themselves, it might have been off the hook.

Lindsay and Carter also argued the convictions were related to Mr. T’s job because he worked out of their home where their three young children were present, and that the product support specialist role involves accessing baking information from customers.

“I agree, without reservation, that an employer has no obligation to employ someone who poses a threat to their children. But the law is clear that the threat must be assessed contextually, and not solely by focusing on a past crime,” Cousineau wrote.

The tribunal deemed Mr. T’s risk of engaging in further violent or threatening behaviour “very low, if not negligible” because when he robbed the bank he was dealing with an untreated mental illness and has since received treatment, is taking medication and understands his triggers.

“He is resolute in a determination to rehabilitate himself and move forward after his convictions. However, one of the biggest obstacles to his rehabilitation is how people respond to him when they learn about the convictions,” the decision reads.

“He described his job with MotiveWave as a ‘dream job’ that allowed him to work in the field he was passionate about, with people he admired. He foresaw opportunities to grow and progress. Mr. T’s commitment to rehabilitation and success cement my conclusion, considering all the circumstances, that his previous convictions were unrelated to his employment with MotiveWave.”

Cousineau thus declared MotiveWave terminating Mr. T was discriminatory.

The compensation

The tribunal denied Mr. T’s claim for 18 months worth of wages, as it found he would have been fired for “non-discriminatory” reasons the next morning regardless.

However, the tribunal awarded half of the $20,000 he claimed for injury to dignity, feelings and self-respect.

In his testimony, Mr. T said it would have been much easier to move on if Lindsay and Carter gave any other reason for firing him.

“The indication to me that the only reason they fired me was because of my criminal history and it had nothing to do with who I was as a person, or the work I did as a worker; it basically indicated to me that I could be the best worker and the most courageous and happy person and people will still fire me for a criminal event that happened many, many, many years ago,” he said.

“That process made me think that my life isn’t worth anything. And I had some really deep thoughts about what purpose I have in society or in a community in which no one wants me or no one would give me the time of day to give them my knowledge or to help them.”

Cousineau accepted the incident seriously impacted Mr. T’s mental health, and, while reiterating he would have lost the job anyway, ordered MotiveWave to pay him $10,000.