Attending protests carries risk beyond arrest
Employment lawyers explain how detainment could affect your job
Since the start of the year with Wet’suwet’en blockades, rallies for Black Lives Matter and calls to defund the police, protests sparked by inequality have not slowed down.
Along with some, have come protester arrests. This month, three Black Lives Matter Toronto demonstrators were arrested and charged with mischief after splashing statues of John A. Macdonald and Egerton Ryerson with paint. On Monday, an encampment at Dufferin Grove was surrounded by Toronto police.
Beyond sorting out legal representation and release in the moment, what happens after the fact, when you have to report back to work?
The Star spoke with two Toronto employment lawyers about what an Ontario resident can do if they are arrested at a protest and worry about how it could affect their job.
If you are arrested at a protest, Mika Imai, an associate at Karimjee Law, pointed out that with many employers, you may not have an ongoing obligation to report police interaction.
However, if you work a job where you have to complete a criminal record check before you start and you interact with vulnerable populations, like a daycare worker, you would likely have an ongoing obligation to continue to disclose any sorts of police-involved incidents.
“You’d want to look at your contract and see: Do I have an obligation to disclose anything on my criminal record to my workplace? Consult with an employment lawyer first, but you might need to disclose,” Imai said. “But again, that doesn’t necessarily mean that disclosure and knowledge of those activities entitles the employer to terminate you for cause.” Of course, if the arrest means you’ll be detained for a long period of time and can’t attend work, that will bring different issues, Imai said.
Fathima Cader, an employment and human rights lawyer, used a situation she encountered as an example. Cader recalled a case where an employee of a non-profit organization, who worked in a highly surveilled neighbourhood in Toronto, was arrested for an alleged criminal offence and was then immediately terminated from his workplace.
“I would raise some questions about the authenticity of that termination,” Cader said. In this case, the employee was working at a non-profit that is about giving people second chances. The client was also racialized and potentially subject to more surveillance than his colleagues by the police. Cader also pointed out that innocent until proven guilty is a factor in criminal law. “There hasn’t been, in fact, a finding of fault by a court yet. Why does he necessarily have to be terminated?
“The employer, I don’t think can simply wholesale adopt an arrest as proof of misconduct. But it is a tricky argument to make,” Cader said. “It will come down to the specific questions of what is the alleged offence? What kind of evidence is there of that offence? How publicly was that circulated? What impact did that have on the employer’s reputation? What kind of work does the employer do that this would be relevant or not relevant? All of that would have to be considered.”
Generally, when termination is on the table, whether you are unionized or non-unionized plays a role. While non-unionized employees can be let go for any reason that is not discriminatory, if you are unionized, an employer needs “just cause” to terminate, which Cader explained is basically conduct that would be considered egregious causing a “breakdown in the employment relationship.”
An example would be “Wilful disobedience or misconduct that prejudices the employer’s business or reputation.”
At a time when anti-Black racism and condemning systemic racism has become more widely supported by corporations, that can be a factor in these cases. “In a unionized setting, attending a BLM protest and getting charged, whether rightly or wrongly and then arrested, then maybe there’s a bit more of a reputational impact,” Imai said. “But again, I think given where our society is right now, and the fairly widespread acceptance of the goals of the BLM movement, I think it’s going to be hard for an employer to say that they had just cause for discipline.”
Angelyn Francis is a Toronto-based reporter for the Star covering inequity and inequality. Her reporting is funded by the Canadian government through its Local Journalism Initiative. Reach her via email: afrancis@thestar.ca