Teacher was acquitted of sexually assaulting former student but was fired for inappropriate communications with the girl
A Newfoundland and Labrador school district wrongfully suspended without pay a teacher following allegations of improper communication with a young student, but did have just cause to dismiss him, an arbitration board has ruled.
Lloyd Whitehorne, 46, was a teacher in an elementary school in Western Newfoundland. He was hired in 2004 and was subject to the collective agreement between the school district and the teacher’s union. The collective agreement had provisions for disciplinary action that stated “any teacher who is suspended or dismissed shall be provided written notification with five calendar days” of the reasons for dismissal. The collective agreement also stipulated that teachers subject to an investigation could only be suspended with pay before the investigation reached a conclusion.
Whitehorne had a female student in his Grade 5 class in the 2005-06 school year who was the child of friends of him and his wife. They visited each other’s homes and Whitehorne’s daughter was a close friend of the student. In 2007, the former student’s family moved away, so the friendship between Whitehorne’s daughter and the former student involved telephone calls, occasional overnight visits, and instant messaging on an online service linked to users’ email addresses.
In August and again in early September 2009, the former student — who was 13 at the time — came for a visit at the Whitehorne home. Some instant messages were exchanged between the former student’s account and Whitehorne’s account during the visit. After that, the only contact Whitehorne had with the girl was through a chance meeting of the families in a shopping mall in 2009 and a dinner with the families at Easter 2010. Some electronic and telephone contact between Whitehorne and the former student continued until November 2009.
On Nov. 18, Whitehorne received an email from a pastor who was a friend and spiritual advisor of the former student. The pastor said he had discovered instant messages that the former student had sent to Whitehorne’s messaging account using the pastor’s cellphone. The pastor felt these messages were inappropriate — using terms such as “lovey” — and he had informed the former student’s mother. Some investigating showed more emails to Whitehorne with inappropriately affectionate terminology. The pastor said that since Whitehorne didn’t address the issue with the girl, he would report any further emails “which include any signs of luring a minor” to the police.
The pastor’s email asked Whitehorne to refrain from further contact with the former student’s parents, but Whitehorne emailed them five days later denying any inappropriate communications or exploitation — or even knowledged of the message sent from the pastor's cellphone. He claimed he realized the former student had a “crush” or “infatuation” with him and he needed to sit down with her to discuss it. He also claimed he had a “psychology background” and experience as a high school counsellor, and knew the girl’s behaviour wasn’t indicative of “sexual, physical or emotional trauma.” Whitehorne concluded the email by acknowledging that he should have called the former student’s parents about it.
Criminal charges followed allegations
In early 2011, the former student and her family made a complaint to the RCMP and a criminal investigation was launched. The girl alleged there was physical contact of a sexual nature between her and Whitehorne and the RCMP obtained a search warrant for various computers in Whitehorne’s home on March 17, 2011.
On the same day as the search warrant, Whitehorne was charged with sexual interference under the Criminal Code of Canada. Whitehorne’s then-lawyer formally informed his employer, the school district, of the charge as well as a charge of sexual assault that was laid later. The school district wasn’t given details other than the charges involved Whitehorne and “a student.”
On April 6, the school district sent a letter to Whitehorne that it couldn’t begin its own investigation into his behaviour until the criminal case ran its course and it was suspending him with pay until then.
The Newfound and Labrador Provincial Court dismissed all of the charges on Oct. 9, 2012, mainly because the former student’s testimony was inconsistent and not credible. The court found the instant messages between Whitehorne and the former student in August and September 2009 while the girl was visiting were made between those two and not anyone else in the household. Whitehorne had denied knowledge of the messages and suggested the former student had logged onto his computer and created the exchange, but the court found the two of them communicated to make plans to meet downstairs in the house in the middle of the night. The court also found they “may very well have met in the downstairs rec room” but it wasn’t convinced sexual assault took place.
“Although I believe that (Whitehorne) indulged in inappropriate communication with the (former student) and did nothing to discourage what the court believes to have been her infatuation with him, I am unable to conclude that a criminal offence occurred here,” said the court in dismissing the charges.
Employer investigated following dismissal of charges
The school district advised Whitehorne it was seeking a copy of the written verdict so it could commence its investigation and in the meantime he would remain suspended with pay. Once it received the judgment, the school district determined that it didn't need to investigate whether Whitehorne had participated in inappropriate communications with a former student, since the court had already reached that conclusion.
On Nov. 9, 2012, the school district advised Whitehorne it considered his behaviour to be “gross misconduct” that “forfeited the trust and integrity required to exist in its employment relationship with every teacher.” The school district went on to say it had cause to terminate his employment pending a meeting with him to offer an explanation. Pending that meeting, the school district converted Whitehorne’s suspension to an unpaid one.
At a Nov. 28 meeting, Whitehorne continued to deny any wrongdoing. The school district later inquired if he had any information as to the possibility of a motive for the former student making false accusations.
After considering all the information it had, the school district sent Whitehorne a letter on Dec. 21 terminating his employment. The letter stated his denials lacked credibility, particularly because of inconsistency between his denial at the meeting of sending any inappropriate messages and his testimony in court, as well as the letter to the former student’s parents saying he did send some messages. His statements to the school district were “intentionally misleading” and it was “evident you had extensive telephone and electronic communication with (the former student),” the letter said.
Whitehorne filed grievances for the suspension without pay before the school district’s investigation was complete and for wrongful dismissal.
The arbitration board noted Whitehorne was charged with two criminal offences: sexual interference and sexual assault, which each involves inappropriate touching. The court dismissed the charges but commented that inappropriate communication — which were not criminal offences — did take place. The board noted that in the past, “significant findings, even in the case of acquittals, are binding on an arbitrator.” Also, the court had “the benefit of significant amounts of evidence that were not available to the board.”
“Those are material findings of fact in the case before the court,” said the board. “That conclusion was reached in a forum where the burden of proof is ‘beyond a reasonable doubt,’ a test far more strict than the one for an arbitrator which is to decide matters on the ‘balance of probabilities.’”
The board found Whitehorne was consistent in denying any inappropriate activity, but his evidence in his trial differed from what he told the school district regarding messaging the former student. The board concluded that Whitehorne was not honest and forthright about his involvement in the instant messaging chats with the former student in August and September 2009, as well as his awareness of the message sent from the pastor’s cellphone, and it agreed with the court in that he engaged in inappropriate communications with the girl.
The board noted that not only did Whitehorne’s conduct breach trust with the school district, it breached the provincial teachers’ code of ethics. Given that he didn’t admit to his behaviour or apologize to the former student’s parents or the school board, the board saw no reason to rescind his dismissal.
However, the board allowed Whitehorne’s grievance regarding his suspension without pay, as the collective agreement stipulated a suspension must be with pay until the school district completed its investigation. Though the school district may have been satisfied “in its own mind” that it had just cause for dismissal when it converted the suspension into an unpaid one on Nov. 9, 2012, it had yet to meet with Whitehorne and get his side of the story. The final decision on termination wasn’t made until Dec. 21, which left Whitehorne in “disciplinary limbo” for more than a month, contrary to the collective agreement.
The school district was ordered to compensate Whitehorne for lost pay or benefits during the unpaid suspension from Nov. 9 to Dec. 21, 2012, but the dismissal was upheld.
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