Canadian Employment Law Today

August 21, 2013

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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CELT August 21 2013:celt 467.qxd 13-09-16 9:50 AM Page 8 August 21, 2013 School caretaker suspended after charges THIS INSTALMENT of You Make the Call features a school board employee who faced charges involving minors. A caretaker for the Toronto District School Board was arrested in May 2010 and charged with sexual interference and sexual assault involving a girl under 14. He had been employed with the school board for more than 20 years. The school board learned the charges stemmed from incidents involving his stepdaughter and his release pending trial required him to stay away from anyone under 16 years of age. He was initially placed on paid suspension, Published biweekly 22 times a year Subscription rate: $299 per year Customer Service Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5082 (Toronto) (877) 750-9041 (outside Toronto) E-mail: Carswell.customerrelations@ Website: Thomson Reuters Canada Ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Publisher: John Hobel Managing Editor: Todd Humber Editor: Jeffrey R. Smith E-mail: ©2013 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of the publisher. The publisher is not engaged in rendering legal, accounting or other professional advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The analysis contained herein represents the opinion of the authors and should in no way be construed as being either official or unofficial policy of any governmental body. We acknowledge the financial support of the Government of Canada, through the Publications Assistance Program (PAP), toward our mailing costs. GT #897176350 Publications Mail Registration No. 40065782 8 How would you handle this case? Read the facts and see if the judge agrees and when the school board received official copies of the charges, it placed him on unpaid suspension and sent an investigator to the preliminary hearing. It had a policy that stipulated when an employee was charged with a criminal offence, the employee would be assigned to alternate duties not involving contact with students until the charges were resolved. If an employee was convicted or an internal investigation determined there was a sexual assault of a student, the policy stipulated that the employee would be terminated. On Dec. 5, 2012, the charges were withdrawn because of discrepancies in the alleged victim's testimony. The school board investigator attempted to interview the alleged victim, but the mother didn't want to co-operate and the investigation came to an end. The union filed a grievance over the suspension while the charges were outstanding. You make the call ✓ ❑ Was the suspension justified? OR ✓ ❑ Was the suspension unwarranted? IF YOU SAID the suspension was unfair, you're right. The arbitrator agreed there was no doubt it would have been inappropriate for the caretaker to have continued working where he might have had contact with students while his charges were outstanding — the conditions of his release prevented this. However, the arbitrator found the school board had work assignments that avoided contact with students. In addition, a suspension during outstanding charges should be considered nondisciplinary, as its purpose would be to remove the employee from the workplace until things became clear, said the arbitrator. The school board argued that allowing the caretaker to work in any capacity when he had been charged with sexual misconduct toward a child risked damaged to its reputation. However, the arbitrator found the charges were not made public and the police didn't release any information to the public. There was little proof of any damage to the school board's reputation, said the arbitrator. "The revulsion engendered by the formal charges, and by the alleged victim's later testimony, had to be tempered by recognition that they might not be true," said the arbitrator. "Establishing a concern for the (school) board's reputation was cause to withhold from the (caretaker) the work that the union says he should have been assigned requires, at least, a finding that if it had assigned him such work a fair-minded and well-informed member of the public made aware of the nature of that work as well as the nature of the pending charges would reasonably lose confidence in the ability of the board to discharge its responsibilities for the care and safety of children, or perhaps for the safety of staff and other adults, in or around the premises where (he) was working." The arbitrator found such a conclusion could not have been reached before the charges were resolved. In addition, the arbitrator found the school board already knew the details of the charges before it received the official documentation and its shift to an unpaid suspension may have been more out of concern for the length of the trial with the caretaker on paid suspension. The school board was ordered to compensate the caretaker for the loss of wages or benefits while on unpaid suspension and lack of access to alternate assignments where he could have worked without contact with students. See Toronto District School Board and CUPE, Local 4400 (XY), Re, 2013 CarswellOnt 8216 (Ont. Arb. Bd.). Published by Canadian HR Reporter, a Thomson Reuters business 2013 CELT

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