'The onus is on the employer to demonstrate… procedural fairness to the employee'
“When you’re terminating employment based on a single act, it raises the bar – you need to double check the situation so that you know that, if challenged, you've got everything because it rides on one incidence of misconduct, and that's really difficult [to justify termination].”
So says labour and employment lawyer Michael Horvat of Aird and Berlis in Toronto, after an Ontario arbitrator reinstated a worker after she was fired for sending an email questioning the celebration of the LGBTQ2S+ community to all of colleagues.
The worker was an occasional teacher with the Northwest Catholic District School Board (NCDS) based in Dryden and Fort Francis, Ont., who was hired in April 2019. She had no discipline on her file or any complaints from teachers, parents or students.
On June 15, 2022, the NCDS chaplain sent an email to all teachers discussing Pride and Indigenous History Month. The email included an article by a Jesuit asking the pope about how to embrace and support the LGBTQ2S+ community.
The worker sent an email in response that she intended to send just to the chaplain, but she inadvertently sent it to all of the teachers in the NCDS. In the email, the worker stated that she was disappointed to see “the teachings of our Lord Jesus Christ are being trampled upon” and that “we now uphold the cultural pitfalls of celebrating LGBTQ+ lifestyles rather than regarding gay pride as problematic…” She also said that homosexuality was “one of the controversial issues in the Catholic faith.”
‘Officially fired’ after email
The NCDS’ director of education asked the IT department to recall the email, but they were unable to. The director then asked the manager of HR to cancel two assignments the worker had coming up and told her that she didn’t want the worker working for the board. The HR manager said they could just stop calling the worker for assignments, but the director wanted the worker “officially fired” so she wouldn’t be hired again by the NCDS.
About a half-hour after the worker’s email, the director emailed all staff saying that “we are deeply committed to supporting the dignity, worth, and safety of all people.”
The worker’s work email account was shut down and, about two hours after her email, the director spoke with the worker and told her that her email was locked and NCDS schools were safe and inclusive spaces. The worker responded by saying “safe and inclusive for everyone but me.”
When told that the email had gone to the entire teaching staff, the worker said that she had intended to respond only to the chaplain. She also said that she had been reading about the teachings of the Catholic Church and her email was consistent with those teachings. The director informed her that her previously scheduled teaching assignments had been cancelled and she would hear from the HR manager.
About four hours after the email had gone out, the director signed a termination letter. A short time later, the HR manager texted the teachers’ union about the termination decision.
Conflict in religious beliefs
The next morning, June 16, the NCDS sent the termination letter to the worker. The letter stated that the worker’s email was “offensive, unacceptable and highly unprofessional” and it violated the NCDS’ mission, vision and values, expectations for teachers to respect the “dignity and worth of students, parents, guardians and colleagues”, and its code of conduct for teachers to respect and treat others fairly.
The union grieved the discharge, arguing that the decision to terminate was “a procedurally flawed process” that was too rushed and failed to consider the worker’s intentions, the ongoing debate on LGBTQ2S+ issues within the Catholic Church, and the lack of discipline on the worker’s record.
The worker said that she regretted some of the language used in the email and accidentally sending it to all teachers instead of just the chaplain.
The NCDS maintained that the decision to terminate was based on the contents of the email – which it said was “hateful and discriminated against the LGBTQ2S+ community” - and the fact that the worker didn’t apologize. The board said that it sought to celebrate all “children of God” and its schools representated a “welcoming and safe place for everyone, including LGBTQ2S+ students and staff.”
The NCDS also said that it wanted to move quickly in order to minimize any harm it may have caused to the LGBTQ2S+ community and the culture the board was trying to promote. It pointed out that a number of NCDS staff had communicated that they had been offended by the email.
Honest beliefs on both sides
The arbitrator noted that there was no doubt that the worker sent the email and NCDS honestly believed that it was taking steps to protect staff and students from what they felt was a hateful message. It was also clear that the worker believed that her email was “an accurate reflection of her faith,” said the arbitrator, adding that there was a debate within the Catholic Church about the LGBTQ2S+ community.
The arbitrator found that the worker’s email, though a reflection of her religious beliefs, also used strong language that focused “on the sinful aspect of the debate” and called gay pride “problematic” without any message of inclusivity. The NCDS interpretation of the email as hateful and discriminatory was reasonable, the arbitrator said.
However, the arbitrator also found that the worker’s email represented “an opinion that fits within the debate… of this issue within the Catholic Church” and, importantly, the worker meant to send it only to the chaplain to express what she thought was an inconsistency between her faith and the message of the original email.
The arbitrator determined that the email’s “hateful and discriminatory language” and the worker’s carelessness in sending it to all staff was serious misconduct deserving of discipline. However, she didn’t intend to cause any harm and it was an isolated incident – there were no other complaints about her conduct or teaching - and it was unlikely she would repeat it, the arbitrator said, noting that the worker was sorry for her carelessness in sending the email to everyone and its tone.
“If the concern of the [NCDS] was the error with respect to the distribution, and that was an ‘honest error,’ it does lessen the impact of cause,” says Horvat. “Intention matters, particularly in this circumstance, and I don't think this came up to the level of outright carelessness.”
“Whatever views [the worker] held or expressed, it doesn't appear that she acted upon them in any form that was contrary to the employer’s policies, procedures, and curriculum,” adds Horvat. “It was just an email that didn't make it to students and there was no evidence it prevented her from acting with directions and the curriculum.”
Rushed termination process
The arbitrator noted that the worker could have conveyed her regret for what happened earlier, but she wasn’t given much opportunity given the speed with which the NCDS reached its termination decision. The worker wasn’t given a meaningful opportunity to explain herself or have her prior record considered – the NCDS rushed to terminate her employment without following proper investigative procedure or following progressive discipline, said the arbitrator.
“Procedurally, [the NCDS] needed to demonstrate that they followed due diligence in the policy review or at least the termination process,” says Horvat. “The onus is on the employer to demonstrate that they have provided procedural fairness to the employee in all respects and considered all of the mitigating factors.”
The arbitrator determined that the decision to dismiss the worker was unreasonable and disproportionate to the harm caused by her email. The NCDS was ordered to reinstate the worker with a “time-served” suspension dated back to the date of termination - about 19 months - with no loss of seniority but no back pay.
The NCDS also argued that the employment relationship was too damaged to continue, but there was no evidence other employees couldn’t work with her, said the arbitrator. According to Horvat, not reinstating a worker after a finding of unjust dismissal rarely happens.
“It could have been a situation in which you'd say, ‘This is just no longer a fit, so we're going to part ways and here's your package - it happens all the time in corporate world,” says Horvat. “That kind of concept of trying to basically exit her on a package was argued, but it's very limited as far as a practical remedy for arbitrators – taking a common law approach to a unionized environment is really hard.
“This was clearly on-duty conduct as the worker was writing in her capacity as a teacher, but you get into the murky world of, can you hold political thought contrary to employer’s thoughts if you don’t let it affect your work?”
See OECTA and Northwest Catholic District School Board (Gerber), Re, 2024 CarwellOnt 1011.
