Canadian Employment Law Today

8 | January 6, 2016 Canadian HR Reporter, a Thomson Reuters business 2016 Cases and Trends Trial testimony and statement to employer differed messages were inappropriate — using terms such as "lovey" — and he had informed the former student's mother. Some investigating showed more emails to Whitehorne with in- appropriately affectionate terminology. e pastor said that since Whitehorne didn't ad- dress the issue with the girl, he would report any further emails "which include any signs of luring a minor" to the police. e pastor's email asked Whitehorne to refrain from further contact with the former student's parents, but Whitehorne emailed them five days later denying any inappropri- ate communications or exploitation — or even knowledged of the message sent from the pastor's cellphone. He claimed he real- ized the former student had a "crush" or "infatuation" with him and he needed to sit down with her to discuss it. He also claimed he had a "psychology background" and ex- perience as a high school counsellor, and knew the girl's behaviour wasn't indicative of "sexual, physical or emotional trauma." Whitehorne concluded the email by ac- knowledging that he should have called the former student's parents about it. Criminal charges followed allegations In early 2011, the former student and her family made a complaint to the RCMP and a criminal investigation was launched. e girl alleged there was physical contact of a sexual nature between her and Whitehorne and the RCMP obtained a search warrant for various computers in Whitehorne's home on March 17, 2011. On the same day as the search warrant, Whitehorne was charged with sexual inter- ference under the Criminal Code of Canada. Whitehorne's then-lawyer formally in- formed his employer, the school district, of the charge as well as a charge of sexual as- sault that was laid later. e school district wasn't given details other than the charges involved Whitehorne and "a student." On April 6, the school district sent a let- ter to Whitehorne that it couldn't begin its own investigation into his behaviour until the criminal case ran its course and it was suspending him with pay until then. e Newfound and Labrador Provincial Court dismissed all of the charges on Oct. 9, 2012, mainly because the former student's testimony was inconsistent and not cred- ible. e court found the instant messages between Whitehorne and the former student in August and September 2009 while the girl was visiting were made between those two and not anyone else in the household. White- horne had denied knowledge of the messages and suggested the former student had logged onto his computer and created the exchange, but the court found the two of them commu- nicated to make plans to meet downstairs in the house in the middle of the night. e court also found they "may very well have met in the downstairs rec room" but it wasn't convinced sexual assault took place. "Although I believe that (Whitehorne) in- dulged in inappropriate communication with the (former student) and did nothing to dis- courage what the court believes to have been her infatuation with him, I am unable to con- clude that a criminal offence occurred here," said the court in dismissing the charges. Employer investigated following dismissal of charges e school district advised Whitehorne it was seeking a copy of the written verdict so it could commence its investigation and in the meantime he would remain suspended with pay. Once it received the judgment, the school district determined that it didn't need to investigate whether Whitehorne had participated in inappropriate commu- nications with a former student, since the court had already reached that conclusion. On Nov. 9, 2012, the school district ad- vised Whitehorne it considered his behav- iour to be "gross misconduct" that "forfeited the trust and integrity required to exist in its employment relationship with every teach- er." e school district went on to say it had cause to terminate his employment pending a meeting with him to offer an explanation. Pending that meeting, the school district converted Whitehorne's suspension to an unpaid one. At a Nov. 28 meeting, Whitehorne contin- ued to deny any wrongdoing. e school dis- trict later inquired if he had any information as to the possibility of a motive for the former student making false accusations. After considering all the information it had, the school district sent Whitehorne a letter on Dec. 21 terminating his employ- ment. e letter stated his denials lacked credibility, particularly because of inconsis- tency between his denial at the meeting of sending any inappropriate messages and his testimony in court, as well as the letter to the former student's parents saying he did send some messages. His statements to the school district were "intentionally misleading" and it was "evident you had extensive telephone and electronic communication with (the former student)," the letter said. Whitehorne filed grievances for the sus- pension without pay before the school dis- trict's investigation was complete and for wrongful dismissal. e arbitration board noted Whitehorne was charged with two criminal offences: sexual interference and sexual assault, which each involves inappropriate touching. e court dismissed the charges but commented that inappropriate communication — which were not criminal offences — did take place. e board noted that in the past, "significant findings, even in the case of acquittals, are binding on an arbitrator." Also, the court had "the benefit of significant amounts of evi- dence that were not available to the board." "ose are material findings of fact in the case before the court," said the board. "at conclusion was reached in a forum where the burden of proof is 'beyond a reasonable doubt,' a test far more strict than the one for an arbitrator which is to decide matters on the 'balance of probabilities.'" e board found Whitehorne was con- sistent in denying any inappropriate activ- ity, but his evidence in his trial differed from what he told the school district regarding messaging the former student. e board concluded that Whitehorne was not honest and forthright about his involvement in the instant messaging chats with the former stu- dent in August and September 2009, as well as his awareness of the message sent from the pastor's cellphone, and it agreed with the court in that he engaged in inappropriate communications with the girl. e board noted that not only did White- horne's conduct breach trust with the school district, it breached the provincial teachers' code of ethics. Given that he didn't admit to his behaviour or apologize to the former stu- dent's parents or the school board, the board saw no reason to rescind his dismissal. However, the board allowed Whitehorne's grievance regarding his suspension without pay, as the collective agreement stipulated a suspension must be with pay until the school district completed its investigation. ough the school district may have been satisfied "in its own mind" that it had just cause for dismissal when it converted the suspension into an unpaid one on Nov. 9, 2012, it had yet to meet with Whitehorne and get his side of the story. e final decision on termination wasn't made until Dec. 21, which left White- horne in "disciplinary limbo" for more than a month, contrary to the collective agreement. e school district was ordered to com- pensate Whitehorne for lost pay or benefits during the unpaid suspension from Nov. 9 to Dec. 21, 2012, but the dismissal was upheld. For more information see: • Newfoundland and Labrador English School District and NLTA (Whitehorne), Re, 2015 CarswellNfld 390 (N.L. Arb.) . « from TEACHER on page 3 Inappropriate messaging with student didn't warrant criminal charges but violated code of ethics and school policy

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