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Just cause and the justice system

Nova Scotia case shows employers can use a court's findings in their investigations

By Jeffrey R. Smith

It’s never a situation someone in HR wants to hear — an employee has gotten into legal trouble while off-duty and is facing criminal charges. It can be particularly complicated if the employee is in a position requiring a lot of trust and responsibility and there is now doubt in the employee’s capability of doing the job.

There can also be difficult decisions to make if the employee is convicted and faces jail time or other sanctions that temporarily affect his ability to come to work. What’s an employer to do?

A Nova Scotia school district was faced with a tough situation a few years ago when one of its elementary school teachers was charged with sexual assault and sexual interference with a 13-year-old girl who was a friend of the teacher’s family. Further complicating matters was the fact the girl had been a student in the teacher’s Grade 5 class a few years earlier. The teacher was suspended with pay pending the outcome of the trial.

The teacher denied the charges and when the case went to trial one year later, the court dismissed the charges. However, the court had some issues with the teacher’s denials of emailing and instant messaging the girl. Though the court found there was no sexual assault, it found the teacher did engage in inappropriate communications with the girl, mostly through their instant messaging accounts.

While the teacher’s communication with his former student — often late at night and with affectionate language — wasn’t behaviour that was technically a crime, it was behaviour that wasn’t appropriate for a teacher. So, the school district conducted its own investigation and, on the basis of the court’s statement finding there was inappropriate communication, found there was misconduct contrary to the teachers’ code of ethics and the requirements of the job. The teacher’ employment was terminated.

The teacher continued to deny his behaviour and said simply using the court documents wasn’t a proper investigation, but an arbitrator disagreed. Even though the school district’s investigation didn’t go any farther than the trial evidence and court judgment, there was enough there for the school district to make its determination, said the arbitrator.

It was important to note the teacher’s account of the circumstances to the school board differed somewhat that his court testimony, harming the teacher’s credibility. In addition, the school board was entitled to use the court’s findings as evidence in its own investigation.

Since the court found the teacher engaged in appropriate communication with the student — and it had the standard of beyond reasonable doubt while the employer only had to follow the standard of “balance of probabilities” — the school district could use that as a basis for its investigation.

Also, the court was trying the teacher for the criminal charges — resulting in an acquittal — while the school district was investigating the inappropriate communication, which was essentially proven in court: See Newfoundland and Labrador English School District and NLTA (Whitehorne), Re, 2015 CarswellNfld 390 (N.L. Arb.).

While it’s important for employers to conduct their own investigation into the conduct of employees who are facing charges that’s separate from the legal process — the objectives and specific issues to be proven may be different — they are usually able to use the findings of the legal trial as evidence in their own investigations. Court decisions are usually public record — unless specifically sealed — so there shouldn’t be a problem.

Just remember to keep the purpose of the investigation in mind — what the court is trying to prove may not be what the employer needs to prove just cause for dismissal.

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Jeffrey R. Smith

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.
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