Are Teachers Entitled to Procedural Fairness in Investigations?

In 2021, the Education Act, SNB 1997, c E-1.12 was amended and now addresses allegations of “serious professional misconduct” rather than “non-professional conduct.” This amendment created uncertainty as to the validity of Policy 701 – Policy for the Protection of Pupils, which was established under the prior version of the Act. Policy 701, among other things, crystalized the procedural fairness afforded to complainants and respondents of such allegations. Therefore, the question arose: are teachers still entitled to procedural fairness pursuant to Policy 701?

In the case of New Brunswick Teachers’ Federation (Teacher “R”) v New Brunswick (Finance and Treasury Board), unreported, dated October 8, 2024, Adjudicator Raymond P. Gorman, K.C. found that Policy 701 is incorporated by reference in the Collective Agreement and that procedural fairness must be afforded to parties regardless of the amendment to the Education Act.

Facts

The Grievor was a supply teacher accused of using excessive force on a student by grabbing the student by the throat and aggressively telling the student not to talk.

Initially, the Grievor met with the Principal and the student’s father and was led to believe that the alleged incident occurred in the classroom. Days later, the student’s mother filed a Policy 701 complaint. The Employer at no point specified the location of the alleged incident to the Grievor. Therefore, when the Grievor submitted her written statement to the investigator, she was still under the impression that the alleged incident took place in the classroom.

The investigator concluded that the allegation against the Grievor was founded, leading to her removal from the supply list.

It was not until the Federation’s legal counsel requested the investigator’s report that the Grievor learned that the alleged incident took place in the gymnasium. This was approximately seventeen months after the complaint was made.

The Grievor grieved both the procedural unfairness of the investigation and her removal from the supply list.

Issues

The adjudicator identified the following issues:

1. Did the Employer violate the Collective Agreement by failing to follow the process set out in Policy 701, or failing to follow the rules of procedural fairness generally?
2. Was the Grievor’s removal from the supply teachers list for just cause?

Employer’s Argument

The Employer argued that Policy 701 was no longer applicable due to the amendment of the Education Act and that any procedural unfairness in the investigation would be cured by the procedural fairness afforded in the adjudication process. It also argued that it is more likely than not that the Grievor engaged in the conduct alleged and that it had just cause to remove the Grievor from the supply list.

Union’s Argument

The Federation argued that Policy 701 should continue to apply as it is referenced in the Collective Agreement, which was signed after the amendment to the Education Act. It also argued that the Grievor was severely prejudiced by not knowing the details of the allegation made against her. The Federation characterized the investigation as incompetent and argued that the Employer was at fault for accepting the conclusion of such a flawed investigation and using it as a basis for discipline.

Analysis and Outcome

Validity of Policy 701

In determining whether Policy 701 applied, the adjudicator considered the following facts:

• the complaint form provided by the Employer and filed by the student’s mother was titled “Policy 701 Complaint”;
• the Collective Agreement, signed in 2023, refers to Policy 701;
• there were numerous emails between the Employer and the Federation where the subject was described as “Re: Policy 701 – R”;
• the termination letter referenced an investigation conducted under Policy 701;
• the investigator’s report referred to the parties’ rights and responsibilities under Policy 701; and
• the Director of Human Resources for the Employer stated in her testimony that employees were still expected to comply with Policy 701.

Therefore, the adjudicator concluded that the provisions regarding procedural fairness in Policy 701 apply and that everyone should have a reasonable expectation that the process established in Policy 701 will be followed.

Breach of Procedural Fairness

The adjudicator acknowledged that the Grievor’s initial meeting with the Principal and the student’s father did not provide her with a clear description of the allegation. He stated that, in accordance with Policy 701 and the Rules of Natural Justice, the Employer was obligated at a minimum to provide the necessary details of the allegation as soon as possible.

The adjudicator also acknowledged that contrary to Policy 701, the Employer did not have a face-to-face meeting with the Grievor after the complaint had been filed. He stated that a face-to-face meeting is important as it can give context to a complaint and allow the respondent to provide a defence.

The Grievor was not provided full details of the allegation against her until approximately seventeen months after the complaint was filed. The adjudicator recognized that this delay prejudiced the Grievor in multiple ways. First, the Grievor was unable to fully address the allegation in her written statement to the investigator. Second, if she had been informed of the location of the incident in a timely manner, the Grievor would have had the opportunity to have the Federation canvass individuals who were present in the gymnasium on the date of the alleged incident. Third, when the Federation requested the video footage from the gymnasium, it was informed that the footage was overwritten after 30 days. If the Grievor had been informed of the location of the alleged incident in a timely manner, she would have had the opportunity to obtain the video footage.

Notably, the investigator in this case did not meet with the student who alleged that she was assaulted or any of the potential eyewitnesses from the gymnasium. The investigator instead relied solely on third parties. Furthermore, when the Grievor provided her written statement, clearly referencing an incident in the classroom, the investigator did not follow up with her to clarify the location of the alleged incident.

For these reasons, the adjudicator found that the Employer breached the Collective Agreement by failing to conduct a fair and appropriate investigation, failing to adhere to Policy 701, and failing to follow the Rules of Natural Justice and procedural fairness. Therefore, the adjudicator set aside the Employer’s decision to remove the Grievor from the supply list.

Just Cause

The adjudicator preferred the Grievor’s testimony to that of the student and therefore found that the alleged incident likely did not occur and that the Employer did not have just cause to remove the Grievor from the supply list.

Damages

The adjudicator found that the Employer’s failure to ensure that a fair and proper investigation was conducted and to provide the Grievor with relevant and necessary information about the allegation against her constituted a breach of the Employer’s duty of good faith and fair dealing.

Therefore, in addition to damages for backpay, the adjudicator awarded the Grievor $8,000 in general damages to compensate for the harm caused by the process.

Takeaways

Although the Education Act was amended in 2021 and now addresses allegations of “serious professional misconduct” rather than “non-professional conduct”, Policy 701 is incorporated into the Collective Agreement and remains applicable to these investigations.

Teachers are entitled to procedural fairness as set out in Policy 701 and are entitled to know the details of the allegations being made against them in a timely manner.

A fair adjudication process will not always cure procedural unfairness in investigations. Where procedural unfairness prejudices the Grievor and causes mental harm, general damages may be available.

This article originally appeared in the Canadian Association for the Practical Study of Law in Education’s (CAPSLE) October newsletter and is republished with permission.