Failure to cooperate during investigation justifies suspension

February 27, 2020 | Evan Campbell

A recent arbitration decision provides insight into what constitutes reasonable discipline in response to a failure by a teacher to participate in an investigation.

In Ontario English Catholic Teachers’ Association v Brant Haldimand Norfolk Catholic District School Board, 2019 CanLII 95001 (ON LA), the union grieved the unpaid suspension of a teacher who failed to answer questions during an investigation into allegations that he engaged in misconduct involving two female grade six students. The school board received a complaint that the teacher had engaged in various inappropriate conduct, including: grabbing a student’s bra strap and placing a piece of brown paper towel underneath it; massaging a student’s shoulders; asking why a student smelled so good; telling a student that he had a picture of her in his bedroom; using a highlighter to paint a student’s fingernails; and tapping a student on her leg.

The school board met with the teacher and presented him a list of the allegations for his response as part of its investigation. The teacher responded “yes” or “no” to the allegations and refused to provide further particulars. The teacher was removed from the classroom and permitted to work from home. The matter was reported to the Children’s Aid Society (“CAS”) as required by the Child and Family Services Act, and a complaint was filed with the police by the student’s parent, resulting in formal investigations by the police and CAS.

Following the initial meeting, the school board sent correspondence to the teacher requesting clarification regarding the circumstances of each of the allegations. The teacher responded to the request by advising that he was unable to provide further comment at the time due to the ongoing CAS investigation. The school board suspended the teacher without pay due to his failure to cooperate in the investigation.

Arbitrator Fishbein dismissed the grievance, finding that the teacher was obligated to answer the school board’s questions given the seriousness of the allegations. The issue in dispute was framed by the arbitrator as not whether the teacher had the right to remain silent but rather, whether the teacher had the right to remain silent without negatively impacting his employment. Arbitrator Fishbein noted that it was difficult to imagine a set of circumstances that required more of an explanation from the teacher. The unpaid suspension was held to be justified as the teacher’s right to remain silent was outweighed by the school board’s legitimate interest and statutory obligation to fully investigate the complaint.

An investigation into the merits of an allegation of misconduct is an important step to obtain the particulars necessary to determine the appropriate disciplinary action, if any. Due process in an investigation generally requires that the respondent be provided a reasonable opportunity to respond to the allegations. There have been various arbitral decisions supporting the position that an employee’s refusal to provide an explanation for misconduct can, itself, constitute a ground of discipline. This recent decision supports the right of school boards to impose appropriate discipline in response to a failure to participate in an investigation and confirms that employees do not have an absolute right to remain silent.

School boards should be cautious in instituting an unpaid suspension as the reasonableness of the disciplinary action will be driven by the particular facts. In this case, the seriousness of the allegations, the position, acknowledgment by the teacher that he engaged in certain conduct and the age of the complainants all impacted the arbitrator’s conclusion that the unpaid suspension was reasonable. As in all disciplinary matters, school boards should consider the context of each situation when deciding the type of discipline that is warranted if an employee refuses to participate in an investigative process or provide a response to allegations of misconduct.

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