Fired following allegations that he had been harassing an Educational Assistant in the wake of their failed workplace romance, an elementary school teacher grieved his termination.
Hired by a regional school board in 1991, J.D. (John Doe) met E.A. — an Educational Assistant — in 2003. In 2004 E.A. was assigned to work in J.D.’s classroom. In 2005 they began a romantic relationship, though both were involved in separate, committed relationships.
Following her decision to end the relationship in June 2006, E.A. alleged that J.D. was responsible for a number of harassing and intimidating acts.
According to E.A., J.D. took the news of the end of their affair poorly, pushing at a refrigerator and kicking a chair across the classroom. After transferring to a new class, E.A. said that J.D. threatened to make their affair public. He told her that she should transfer to another school or he would make her life difficult, E.A. said and he would turn and follow her when he came upon her in the school. And, he stared at her, she said. E.A. also alleged that J.D. would sometimes park his car in front of her home and once pulled his vehicle in front of her car in an apparent attempt to block her from leaving the school parking lot.
Car “keyed”
Evidence established that there were a number of phone calls and e-mails between the two following the breakup. However, in the spring of 2008, E.A. wrote to J.D. to say she wanted no further contact. Later, when E.A.’s car was intentionally scratched (“keyed”) while it was in the school parking lot, E.A. filed a complaint with the police.
In the fall of 2008, J.D. was charged under the Criminal Code with harassment. He was suspended with pay while the employer undertook an investigation and on May 26, 2009, he was terminated. Detailing numerous charges, the letter of termination alleged that the he had engaged in a “pattern of serious and inappropriate conduct towards a female employee.”
The union grieved. The employer’s investigation was inadequate, the union said, and the employer had not established cause for discipline.
At issue was whether or not the employer could demonstrate that it had just cause to discharge J.D., the Arbitrator said.
Sexual relationship
Establishing the facts necessary to make a judgment was difficult the Arbitrator said. The alleged incidents of improper conduct took place over a number of years and were interwoven into a history of friendship, a working relationship and a romantic and sexual relationship. Contradictory testimony from numerous witnesses affirmed the complexity and intimacy of the relationship between J.D. and E.A. and their different perspectives on when the relationship ended.
J.D. was acquitted of charges of criminal harassment in August 2009.
Ultimately, the charges made out in the termination letter lacked substance, the Arbitrator said. “I find the evidence with respect to these allegations to be contradictory and insufficient to establish that the grievor engaged in these conducts at all, or at least as part of a pattern of behaviour that was intended to intimidate or harass the complainant.”
It was established that J.D. and E.A. were engaged in an “off again, on again sexual relationship,” the Arbitrator said. However, the allegations of harassment remained difficult to prove. While E.A. alleged that J.D. would stare at her, J.D. denied it. Some witnesses in turn supported J.D.’s denials while another did not.
J.D. denied keying E.A.’s car and denied attempting to block her from leaving the parking lot.
However, the Arbitrator did accept that J.D. did act inappropriately on a number of occasions as the affair ended.
The Arbitrator agreed that E.A. would find J.D.’s threat to make her life difficult if she did not transfer unsettling. Disparaging comments that J.D. made about E.A. and her husband were also off base, the Arbitrator said, as were a couple of impromptu visits to her new classroom outside of work hours.
Not harassment
However, while perhaps inappropriate and unfortunate, these established incidents did not amount to harassment, the Arbitrator said.
“It is not possible for me to be the judge of the feelings or motivations of the grievor or the complainant, as this is rarely possible, and particularly difficult in the context of two married persons with children who worked in close proximity in a public school and had a friendship/sexual relationship over a number of months/years … That is not to excuse such inappropriate behaviour [of J.D.’s] which undoubtedly made the complainant uncomfortable and was perhaps at times hurtful, but only to say that the evidence, when taken in context and in its totality, does not satisfy me that the grievor was harassing the [complainant].”
The grievance was allowed. J.D. was ordered reinstated with compensation.
