Dealing with criminal behaviour at work

School board investigates and fires custodian accused of sexual assault before his case is heard in court

A custodian of a Catholic school in Norwood, Ont., was charged with sexually assaulting a 17-year-old female student during school hours on Feb. 21, 2007. The school board investigated the incident and fired him on March 27, 2007. 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 and it properly followed the civil process.

The case raises important issues regarding the civil nature of the employer’s responsibilities with regards 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. This can put the employer in an unenviable position.

When a harassment claim of any kind is made, the employer has a duty to investigate. Otherwise, the employer may be negligent in either its duty to the employee against whom the complaint is brought or other employees who may not be safe or healthy in the workplace if the allegation is true.

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 of information for both parties. Witnesses should be interviewed and information gathered and reviewed in an effort to determine the validity of the allegations. During an investigation of this nature, 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. However, it is equally important for the investigator to conduct a thorough investigation and interview any potential witnesses. This is particularly critical when the only issue is one of credibility and any evidence supporting one side or the other will be of great assistance in deciding the outcome. An improperly managed investigation may result in significant liability to an organization, so it is vital to ensure it is conducted properly. 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 ensure it fully co-operates 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 possibly very costly. However, if the employer is able to establish just cause using the civil test, on a balance of probabilities, the employer may be successful in upholding its defence.

In Murphy v. Canadian Tire Corp., the Ontario Court (General Division) upheld a termination for cause where an acquittal had been granted. The employee had been terminated for permitting customers to leave the store without properly paying for merchandise. The evidence was based on the observations of a security guard. She was charged with fraud and theft-related offences but later was acquitted of the charges. However, the court held the employer had established cause on a balance of probabilities and upheld the termination.

In Hanrop v. Markham Stouffville Hospital, a nurse had been terminated because she had 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 for cause where an employee had been arrested and charged with possession of child pornography but the termination came before any criminal finding had been made. Philip Kelly had worked for Linamar Corp. in Guelph, Ont., for 14 years. He was a well-respected and trusted employee with no history of prior misconduct. He supervised 10 to 12 employees and was regularly involved with management, suppliers and customers. He was well-known throughout the entire organization.

On Jan. 21, 2002, a widespread police investigation into child pornography led to Kelly’s arrest and charges of possession of child pornography. On Jan. 24, 2002, Linamar terminated his employment for cause. The letter of termination stated the company’s interests were negatively affected and his conduct affected morale in the office, which gave it no choice but to fire him. On Sept. 18, 2003, Kelly pled guilty to possession of child pornography and was sentenced to three months to be served conditionally in the community.

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 on a balance of probabilities. The judge made clear an employer who relies on criminal conduct for just cause must introduce evidence that, when put under scrutiny, satisfies the civil test of proof on a balance of probabilities. 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 of for cause. Additionally, because Kelly was eventually convicted of the charge for which he was only suspected at the time of termination, the principle of after-acquired cause would also uphold the termination.

The judge in Kelly was careful to suggest this would not happen in every case and each would have to be considered on a case-by-case basis. Relevant factors to be considered include the degree of the employee’s responsibility, the company’s notoriety and the degree to which the company’s reputation is affected.

The judge in Kelly said while it would not be appropriate to conclude every employee charged with a crime of moral turpitude would be automatically subject to termination without compensation, it may be fair to say he would face an uphill battle. Nonetheless, it was emphasized the facts must be scrutinized carefully and thorough and fair investigation of the facts must be undertaken.

In the criminal justice system, one is innocent until proven guilty beyond a reasonable doubt. In the civil justice system, 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. Though the burden of proof is significantly lessened in a civil case, employers who have not investigated or gathered the facts before terminating for cause will likely find themselves feeling like the real guilty parties.

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.).


School board’s firing of custodian before his day in court angers parents

An Ontario school board is getting heat from parents for firing a popular custodian accused of sexually assaulting a student.

Gerald Sabourin, 58, was a custodian at St. Paul’s Elementary School in Norwood, Ont. He was accused of sexually assaulting a female student at the school on Feb. 21, 2007. On March 23, police charged him.

The ensuing investigation by the school board included gathering information and meeting with Sabourin and a union representative. On March 27, the board decided to fire him, though his first court appearance was not until April 26.

Some parents of students at the school reacted negatively, saying the board was too hasty when nothing had been proven legally. Many felt it wasn’t fair for the board to fire him before he could represent himself in the due process of the legal system.

“They fired him without a conviction,” a parent told MyKawartha.com. “Isn’t this a country we live in where we’re innocent until proven guilty?”

The board said it followed the normal investigation process for circumstances of employee misconduct and acknowledged it’s a separate stream from the criminal process. Sabourin’s union filed a grievance claiming his rights were violated by the board’s quick actions.

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