Employers 'well-advised to look at all the mitigating factors' in termination decision, says lawyer
A teacher’s poor professional judgment relating to his interactions with a few students was not just cause for termination when there was no evidence of any policy or code of conduct breaches, an arbitrator has ruled.
“A lapse in judgment is less serious [than some forms of misconduct], and then you're looking at, is there something that the employer could do to fix that, short of termination?” says Rishi Bandhu, a labour and employment lawyer at Bandhu Professional Law Corporation in Oakville, Ont. “And that's where the possibility of training or additional education comes in.”
The worker was a secondary school teacher for the Toronto Catholic District School Board (TCDSB) starting in 2009. He had no discipline on his record.
Investigation finds no breach of policy
In 2019, the school board received a complaint about inappropriate behaviour by the worker with four students. The TCDSB suspended the worker with pay on Oct. 18 and appointed an external investigator to look into the complaint.
With the investigation still ongoing, the worker was arrested and charged with sexual assault of a student in a classroom, stemming from an incident in December 2016. The worker was found not guilty of all charges and the investigation did not consider the 2016 incident as it involved different allegations.
After an extensive investigation, the investigator produced a report in March 2021. The investigator concluded that, although many of the allegations were either proven or likely happened, none of them constituted an inappropriate relationship with the students or breached the TCDSB’s harassment and discrimination policy or code of conduct. None of the behaviour was sexual or romantic in nature and none of the students felt unsafe, the investigator said.
The investigation noted that the worker’s conduct was essentially with three students – one of whom had a “crush” on him and others who saw him as a friend. The questionable behaviour included hugging students, patting them on the head, touching their faces to console or encourage them, sharing personal information about himself to one student, and referring to “loving” students in a platonic way.
Although the worker’s behaviour wasn’t to the threshold of a policy breach, the report stated that the worker demonstrated a “lack of self-awareness and professional judgment.”
The worker said that he was too naïve to appreciate the external optics of his relationships with the students and that his culture and upbringing encouraged hugging and touching. He said that he was now aware that there should not be physical touching between staff and students and he realized that his past conduct could not continue.
After reviewing the investigation report, the school board terminated the worker’s employment, effective Sept. 1, 2021. The teachers’ union filed a grievance, and the parties agreed to ask an arbitrator to determine whether the school board had just cause for termination. If there was no just cause, the matter would be remitted back to the parties to determine an appropriate penalty.
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Multiple incidents with no apology
The school board argued that it had just cause because the worker’s conduct was “pervasive, persistent and involved multiple incidents,” the worker hadn’t expressed regret or apologized, and termination was appropriate for such misconduct.
Investigating the complaint was definitely the appropriate route to take, according to Bandhu, but he wonders about the proportionality of the three-year investigation.
“[The investigation] seemed to be very highly detailed, but I'm not convinced that those types of investigations are required for employers – I'm of the viewpoint that we've gone a little bit too far with these investigations,” says Bandhu. “[The arbitrator] sort of suggests that, noting ‘the exhaustive nature of the independent investigator’s report and her breaking down every allegation into its micro-components.’”
The arbitrator found that, while the worker’s repeated lack of self-awareness and professional judgment may be worthy of discipline, it was not serious enough to constitute just cause for termination. Based on the investigation report and no evidence that the worker intended to do harm, there was no breach of policy or the code of conduct and the students involved never felt unsafe, said the arbitrator.
The arbitrator also found that the school board unfairly determined that the worker didn’t feel regret or remorse. The worker’s explanation of his naiveté and background was not a refusal to acknowledge any wrongdoing, but rather an attempt to clarify his behaviour and his acceptance that he should change his ways. In addition, the school board encouraged teachers to be “caring adults” but didn’t provide any guidance on the boundaries around that, said the arbitrator, noting it was apparent that the worker had reflected on the matter and intended to change his ways.
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Ambiguous policy
Part of the problem was that the school board’s policy was ambiguous, according to Bandhu.
“On the one hand, they're saying you have to adopt the role of a caring adult, but then on the other hand, they're not providing any guidance or training as to what that means or where the line gets crossed from being a caring adult to inappropriate conduct,” he says. “So given that standard and relaxed training, it was unfair to pin him with misconduct that would justify termination.”
The arbitrator also found that the worker had not been previously disciplined, so there was no indication that lesser discipline or training wouldn’t work.
It was clear that the school board sincerely did not have confidence in the worker to return him to the classroom, but it did not make out a case for just cause, said the arbitrator in remitting the matter back to the union and the school board to determine discipline.
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Exhaustive investigation
Traditionally, independent investigations are often based on hearsay evidence that are not binding on their own, but this case was interesting because the arbitrator used the investigation’s findings as a tool in his own assessment of just cause, says Bandhu.
“Because [the investigation] was so detailed – and clearly the employer invested a lot of money in it – it had some value with the arbitrator, which was good,” says Bandhu. “But these investigations are a kind of double-edged sword.”
“On one hand, there's a feeling that we've gone too far with investigations, that every little thing is being investigated and the amount of time and money that's being spent on them are disproportionate – in this case, it took a couple of years to resolve and it must have cost thousands of dollars,” he adds. “But then on the other hand, it's nice to see in this case they actually found some value and use out of it, so that's a positive thing.”
However, Bandhu warns that the jury is still out on how valuable an extensive investigation can be in trying to prove just cause in a unionized workplace.
“There's still a chance, at the end of the day, that the parties aren't going to be able to agree to use an investigation [report], and then they're calling all the same evidence again before an arbitrator,” he says. “Unless a union and an employer can come to an agreement beforehand about what that investigation report is going to be used for and whether or not it's going to have value at an arbitration, I think it's still very much a live issue.”
“That being said, I think it's nice to see that they avoided a very expensive arbitration hearing by utilizing the findings of fact in this report.”
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Proof of just cause
A lesson for unionized employers is to make sure they can show just cause before following through with a termination that will likely be challenged, says Bandhu.
“The investigator didn't find a breach of the code of conduct, [the worker] was cleared of an assault criminally, and there just doesn't appear to be anything on the record that suggests that that he was sexually harassing anybody or that he had any sort of malicious intent behind his actions,” he says.
“Unionized employers, before they get to an arbitration, are well-advised to look at all the mitigating factors that an arbitrator is going to look at in terms of the just-cause penalty and to see whether or not reinstatement is likely.”
“All employers should be doing that – look at the mitigating factors, look at the nature of the misconduct, and then put on that arbitrator’s hat and try to predict as to what that arbitrator will decide with the penalty.”
See OECTA and Toronto Catholic District School Board (Iozzo), Re, 2022 CanLII 103047
