Innocent until proven guilty — mostly (Legal view)

Alleged assault at school raises issue of how to handle employee misconduct
By Natalie MacDonald
|Canadian HR Reporter|Last Updated: 08/09/2007

A custodian at a school in Norwood, Ont., was charged with sexually assaulting a 17-year-old female student during school hours on Feb. 21. The school board investigated the incident and fired him on March 27.

A group of parents expressed outrage at the custodian’s termination before the charges had been proven in court. The board said it was a personnel issue.

The case raises issues regarding the civil nature of the employer’s responsibilities to an employee who is accused of criminal behaviour. On the one hand, the employer has a duty to provide a safe and healthy work environment for its employees. On the other, the employer is faced with the presumption in criminal law that a person is innocent until proven guilty beyond a reasonable doubt.

This can put employers in an unenviable position because when a harassment claim of any kind is made, the employer has a duty to investigate. In this civil arena, the concern is not with guilt or innocence but whether the employer can satisfy the civil test of proof of cause on a balance of probabilities.

In cases of sexual harassment, it is not up to the employer to judge whether the alleged behaviour took place. But it must ensure the parties are separated while the investigation proceeds. Additionally, the parties should be informed of the reason for separation and the investigation itself.

The investigator should be neutral as a fact finder for both parties. Witnesses should be interviewed and information gathered and reviewed in an effort to determine the validity of the allegations. And it is important to have the parties and witnesses sign and date their statements in the event they are needed in future litigation.

Investigations must be kept confidential, proceed in a timely manner and cause minimal disruption to the workplace. An improperly managed investigation may result in significant liability to an organization. The end result of the investigation should be a report with the facts, findings and recommendations for the next course of action.

If charges arise, it becomes a criminal matter and the employer must fully co-operate with the police.

If the employer terminates the employee for cause before any finding of guilt in the criminal proceeding, there is a risk of the employee being found not guilty or the charges being dropped. In such a situation, the employer’s case for cause might be diluted so significantly that maintaining it would be pointless and costly. However, if the employer is able to establish just cause using the civil test, on a balance of probabilities, it may be successful.

In

Murphy v. Canadian Tire Corp.

, an Ontario court upheld a cause termination where an acquittal had been granted. The employee had been terminated for letting customers leave the store without paying for merchandise. She was charged with fraud and theft-related offences but later was acquitted of the charges. However, the court held the employer had established just cause and upheld the termination.

In

Hanrop v. Markham Stouffville Hospital

, a nurse was terminated because she developed a personal relationship with a recently discharged psychiatric patient. The court established conduct “prejudicial or likely to be prejudicial to the interests or reputation of the employer” was just cause.

In

Kelly v. Linamar Corp.

, the Ontario Superior Court of Justice grappled with the issue of a termination where an employee had been arrested and charged with possession of child pornography, but the termination came before any criminal finding had been made. Kelly had worked for Linamar in Guelph, Ont., for 14 years. He was a well-respected and trusted employee with no history of prior misconduct. He supervised about a dozen employees and was regularly involved with management, suppliers and customers.

The judge agreed the employer’s actions were understandable and easily supportable from a public relations perspective. However, the onus still remained to prove just cause. The judge found the company had considered its reputation in the community, the concerns raised by Kelly’s co-workers, the fact the child pornography was located on a personal computer at Kelly’s home and not a company computer and the fact the acts did not occur on company time.

The employer was able to satisfy the civil test and the court upheld the termination for cause.

For more information see:

• Murphy v. Canadian Tire Corp, 1991 CarswellOnt 935 (Ont. Gen. Div.).

• Hanrop v. Markham Stouffville Hospital, 1995 CarswellOnt 1034, Ont. Gen. Div.).

• Kelly v. Linamar Corp., 2005 Carswell Ont. 6611 (Ont. S.C.J.).

Natalie C. MacDonald is a partner with Grosman, Grosman & Gale in Toronto. She can be reached at (416) 365-9599 or nmacdonald@grosman.com.

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