The BC Human Rights Tribunal is ordering a Kelowna software company to pay $10,000 to a former employee who was fired after just one week of work, saying the employer discriminated against him because of his criminal record.
Mr. T lied about his criminal record during the job interview, according to the ruling, and MotiveWave Software owners Tony Lindsay and Leigh Carter did not perform a criminal background check. Lindsay and Carter, who are married and manage the business from their home, learned of the convictions when they conducted a Google search for Mr. T after deciding to dismiss him.
The tribunal determined the employee would have been fired regardless of his past convictions and rejected his claims for lost wages, but said the employee’s criminal history played a role in his termination and ordered MotiveWave “to compensate Mr. T for injury to his dignity, feelings, and self-respect.”
Deciding Factors
It was undisputed that MotiveWave terminated Mr. T’s employment and that he had previous convictions, tribunal member Devyn Cousineau said in the ruling.Cousineau said it was her job to determine if Mr. T’s record played a role in his termination and if his crimes were related to his employment.
Mr. T robbed a bank in December 2014, when he was in his early 20s. He told the tribunal he was suffering from undiagnosed mental illnesses and had tried to get help “unsuccessfully” and developed a fixation on money as “the barrier to his wellness and success,” according to the tribunal documents.
“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 documents said. “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.”
Mr. T secured the bank doors with zip ties to prevent anyone from entering or exiting before approaching a bank teller. He shook his bag to suggest he was armed, forcing the teller to hand over increasing amounts of cash, according to the tribunal. He was arrested and charged shortly after.
Mr. T was charged with obstruction of justice while awaiting trial after he communicated with a witness.
He was found guilty of that offence in December 2016 and was jailed for nine months, the tribunal said. His mental health declined after his release and he breached probation, which resulted in his return to jail in July 2017.
Mr. T later entered a guilty plea to the bank robbery charge in December 2017 and was sentenced to time served and 18 months of probation.
Mr. T has not been charged or convicted of any crime since then, the tribunal noted. He also started taking medication, returned to school and work, and started a small business.
At the time the offences occurred, the tribunal observed that Mr. T’s surname began with the letter U. He altered his surname legally, citing that people responded to him differently after searching for him online and discovering what he called “sensationalized” news reports about his convictions.
Mr. T submitted an application for the role of product support specialist at MotiveWave in early 2020, a position that entails assisting customers through email and phone communication. He used his newly adopted last name on the application, even though the legal change would not be finalized until October of that year, the tribunal documents said.
During the second of three job interviews, Carter questioned Mr. T about past criminal convictions, noting that the job was based in her home and her three children would be present. Mr. T claimed he did not have any. She later searched for him on Google, but none of the news articles related to his arrest came up, because he did give her his legal name.
“Mr. T gave several explanations for his decision to lie about his criminal convictions, which I accept,” Cousineau wrote in her decision.
“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.”
He also said he considered it important that MotiveWave did not compel him to complete a criminal record check. He assumed the company owners had performed their due diligence and would have insisted on a criminal record check if it was important to them, the tribunal documents said.
Owners Carter and Lindsay testified they had doubts about Mr. T because he inflated some of his abilities, but they were impressed by his “energy and enthusiasm” and were having difficulty finding other suitable applicants, prompting them to take a chance on him.
On the Job
Mr. T’s employment began on Aug. 24, 2020, and continued for a duration of seven days. The tribunal observed that Lindsay and Carter became aware of his legal surname when he provided his banking information and found it peculiar, but did not pursue the matter.Lindsay and Carter provided the tribunal with multiple reasons for their decision to terminate Mr. T after one week. Some of these reasons were related to his performance, including a lack of progress in training and an excessive amount of time spent attempting to modify the company’s website, which was not included in his job responsibilities.
Carter expressed significant concern regarding Mr. T’s demeanour, with the tribunal noting that the two “were not, in these early days, a good working fit.” She testified that one interaction with him left her feeling intimidated and she was shaking for several hours afterward when he yet again demanded backend access to the company website.
Mr. T testified that he believed everything was progressing positively at work and refuted any claims of a dispute 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.”
It was after the decision was made that Carter remembered the discrepancy between Mr. T’s name on his job application and banking information and decided to Google him.
She found news articles about the bank robbery and Mr. T’s conviction for obstruction of justice, which included quotes from the witness Mr. T spoke to. The man said the interaction with Mr. T had scared both him and his children.
“The facts in the articles are startling and, I fully accept, were shocking to the two,” Cousineau wrote. “Mr. Lindsay and Ms. Carter were scared by what they read and perceived that Mr. T posed a safety threat to them and their kids.”
Lindsay subsequently called Mr. T and asked if the articles were about him. He admitted they were and that he had lied about his criminal record. Lindsay told Mr. T he could no longer have him working in his house.
Decision
MotiveWave’s owners said Mr. T’s previous convictions did not influence his termination, because they had already made the decision to fire him. The tribunal determined that the offences were a factor in the decision, however, because they dismissed him right after discovering the information, instead of the following day as initially intended.The tribunal further observed that if MotiveWave terminated Mr. T’s employment for dishonesty regarding the convictions, rather than for the crimes themselves, it could have been absolved of responsibility.
The tribunal concluded that the likelihood of Mr. T committing additional violent or threatening acts was “very low, if not negligible” due to the fact that he was suffering from an untreated mental illness at the time of the bank robbery. Since then, he has undergone treatment, is currently on medication, and “understands the triggers that can threaten his mental health,” Cousineau said.
“In my view, these extenuating circumstances support that Mr. T’s crimes were related to a mental illness that was being effectively treated during his employment at MotiveWave,” Cousineau wrote. “There is no evidence to suggest that the circumstances leading to the crimes were likely to recur absent a complete decompensation in his mental health, which he had planned for.”
The tribunal rejected Mr. T’s request for 18 months of wages, determining that he would have been terminated for “non-discriminatory” reasons the following morning regardless.
The tribunal, however, awarded him $10,000 from the $20,000 he requested for injury to his “dignity, feelings, and self-respect.”
“It accounts for the fact that Mr. T’s employment would have been terminated anyway, but that the way he was terminated had a significant impact on his mental health and wellbeing,” she wrote. “In my view, this amount is a proportionate response to the injury to Mr. T’s dignity in this case.”
