The complainant employee worked for the employer as a high-school teacher for over 20 years. The employer received complaints from parents and students about the content of the teacher’s class discussions and his sitting on a desk during class with his legs spread, ignoring boundaries when approaching female students, and pressuring his students to participate in uncomfortable and inappropriate classroom discussions.
Relying on an external investigator, the employer initiated an investigation into the allegations and the employee went on sick leave as a result. During his leave, the employee was contacted by a student on Facebook, who asked him to read and provide feedback on their stories, which contained some sexual content. The employee did so. The investigator learned about this and the notice of investigation was amended to include the allegation that the employee engaged in an inappropriate relationship with the student whose stories he read.
When the employee returned from his leave, he was interviewed by the investigator and the specific allegations were put to him, including (A) students’ complaints that he was “manspreading” by sitting in front of them with his legs spread wide to display his crotch; (B) his alleged comments regarding the role of women in society, abuse, abortion, miscarriages, public execution, and suicide; and (C) his alleged engagement in an inappropriate relationship with a student which included inappropriate communications and sharing inappropriate sexually explicit stories.
The investigator found that (A) the employee did sit with his legs spread apart but this was not misconduct; (B) it was inappropriate for the employee to communicate with a student on Facebook when he was on medical leave but it was not inappropriate to review the student’s stories; and (C) there was a pattern of inappropriate, offensive, and unprofessional comments and questions asked by the employee in his classes that amounted to misconduct.
The employee filed his complaint with the human rights tribunal alleging that the employer investigated him for allegations of misconduct because he was a male.
What Did the Tribunal Decide?
The Tribunal found that the complaint had no reasonable prospect of success and dismissed the employee’s complaint for the following reasons:
- The Tribunal did not find that the use of the term “manspreading” was discriminatory because this term was used by the students in their own allegations against the employee, and the investigator was simply putting the allegations to the employee in the investigation process.
- The employee failed to demonstrate that his female counterparts at work were not investigated for similar conduct. Specifically, the Tribunal acknowledged that female teachersalso read students’ stories that contained sexual content and they were not investigated for such conduct. However, the employee was investigated because he did so while he was on leave and used a non-work platform. The employee violated the student-teacher boundaries and this was the reason behind the investigation into his conduct.
- The employee failed to demonstrate that there was any predetermined guilt based on the fact that he was a male, as claimed. The employer was able to provide documentary evidence by way of affidavits and correspondence to show that it received complaints and inquiries about the employee’s classroom behaviour from parents and students.
- The written investigation report was clear that the investigator determined that the employee’s behaviour was misconduct not because he discussed “issues about females” but because he engaged in a patterns of inappropriate, offensive and unprofessional comments and questions that had a tenuous connection to the curriculum. The employee’s misconduct arose from the cumulative effect of repeated improper conversations with his students on subjects that had little to do with the subject matter being taught. Further, nothing in the materials before the Tribunal indicated that other teachers behaved similarly or were complained of and not investigated. The employee was therefore not treated differently because of his sex.
Takeaways
When addressing complaints against employees, employers should be mindful of whether their investigative approach is fair and unbiased. Here, retaining an external investigator and papering the investigative process, including the reasons behind the investigation and the specific allegations that were made, benefitted the employer in defending against the complaint of discrimination. Employers should also consider how they have approached similar complaints in the past to ensure that their approach is consistent to the extent possible. The case is a good example of how employers can apply to human rights tribunals in certain jurisdictions for early dismissal of a discrimination complaint when the complaint has no reasonable prospect of success.
