Circulation of Erotic Pictures in the Workplace: When the Righteous End Up Righted

December 11, 2012

A
substitute teacher (“Plaintiff”) recently won her legal battle against a Québec
school board that withdrew her name from the substitute teachers’ list, invoking
erotic pictures of her taken some eight years earlier.

The case

Plaintiff
was in her fourth and final internship at the Chemin-du-Roy school board, as a
substitute teacher, when naked and erotic pictures of her started circulating
amongst teachers, support staff and students in a number of the school board’s schools.

A teacher,
who was informed of this situation at a school board general assembly, managed
to get copies of the pictures from a colleague and provided a copy of them to the
school’s principal.  The principal, in
turn, informed the school board’s HR director that personnel and students from
some of the schools were exchanging the pictures.  She advised that these pictures were available
on the internet and confirmed that she would be meeting with the Plaintiff to
gather more information on the situation.

However, before
that meeting took place, and immediately following receipt of the pictures, the
HR director sent an email to the managers of each of the school board’s
establishments, amounting to nearly a hundred recipients.  This email strongly suggested not to use the Plaintiff’s
services.

Without first
confirming the outcome of the meeting with the Plaintiff, the HR director sent
a second email at the end of that same day.  This email was sent to both the managers of
the school board’s establishments and the supervisor of substitute teachers.  This second e-mail required the addressees to
refrain from using the services of Plaintiff and advised that her name would be
withdrawn from the substitute teachers’ list.

The Plaintiff
met with the principal the next day, and informed the principal that the erotic
pictures had been taken some eight years earlier, when she was only nineteen.  The pictures were taken by a professional
photographer, as she had then the ambition of becoming a model.  Although she initially signed a 4 year contract
allowing broadcasting of the pictures, she soon after repudiated the agreement
and, in settling the matter, negotiated that the pictures could not be
broadcast.

Despite her
explanation, the school board maintained its initial decision to withdraw her
name from the substitute teachers’ list. 
The union responded by filing a grievance alleging an abuse of the
school board’s rights as well as a violation of the Plaintiff’s privacy rights.

The school
board argued that Plaintiff’s conduct did not correspond to the educational
values of the school board and further constituted a violation of its Code of
Ethics.  Furthermore, it claimed that since
the Plaintiff was not a permanent employee, but only a substitute teacher, her
employment was entirely dependent on the school board’s discretion.

Abuse of rights

The notion
of an abuse of rights in Québec stems from the obligation to act in good faith
stipulated in Articles 6 and 7 of the Civil Code:

6. Every person is bound to exercise his civil rights in good faith.

7. No right may be exercised with the intent of injuring another or in an
excessive and unreasonable manner which is contrary to the requirements of good
faith.

To
determine whether or not an employer’s conduct constitutes an abuse of rights,
the arbitrator had to determine if the employer had exercised its right in a
manner that was not compatible with the behaviour expected from a prudent and
diligent person in similar circumstances.

The findings

In this
case, the arbitrator found that the decision to withdraw Plaintiff’s name from
the substitute teachers’ list and send an alarming email without verification
and barely an hour after having received a copy of the pictures was not prudent.

The
arbitrator found that the school board was not diligent as it did not verify
the authenticity of the facts reported by the principal.  The school board’s responses were based entirely
on the pictures themselves and on hearsay.  In fact, while the school board assumed that the
pictures were available on the internet, in fact they were not, but were
circulated without the Plaintiff’s knowledge, against her will, by email and
between unidentified persons. Even more disturbing was the fact that the school
board did not modify its position even after it obtained the Plaintiff’s explanation.
 Despite being informed of the situation,
the school board did not investigate and, ironically, did not verify whether
the employees who had circulated the pictures had, themselves, violated the school
board’s Code of Ethics.

The
arbitrator concluded that the board could not impose its Code of Ethics
retroactively upon the Plaintiff for a matter that arose some eight years
earlier and which was not immoral or criminal in nature.  He ruled that the school board had abused its management
rights and tarnished the Plaintiff’s dignity and reputation.  The arbitrator voided the school board’s
directive to withdraw the Plaintiff’s name from the substitute teachers’ list
and reserved his jurisdiction on damages.

This case
reminds us of the potential serious consequences of hastily imposing discipline,
and the importance of first investigating, gathering all relevant facts and testimony.

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