The educational field requires employees who can work well with children and always have the children's safety in mind. Therefore, when an employee is accused of misconduct, an immediate investigation is typically appropriate. If the subsequent investigation finds that the employee engaged in misconduct, the employer can determine an appropriate form of discipline, or, when appropriate, termination.

If an employer fails to do a proper investigation, the discipline that the employer imposes can be challenged in a court or a tribunal. This can result in legal proceedings hanging in the air for many years, as courts and tribunals are still dealing with backlogs caused by them being shut down during the early part of the COVID-19 pandemic.

Toronto (City) v Canadian Union of Public Employees, Local 79, (2024 CanLII 56104)

In Toronto (City) v CUPE, Local 79, (2024 CanLII 56104), Geetika Parashar was terminated for cause from her job as a registered early child educator on May 24, 2019. Ms. Parashar was initially put on an administrative suspension after her coworker, Erin Lally, reported her for inappropriate conduct for a couple of incidents that she witnessed earlier that day. Specifically, Ms. Lally claimed that (1) Ms. Parashar grabbed a two-and-half-year-old by the ear, shook his head and dragged him away, by the ear; and (2) Ms. Parashar then put a three-year-old child in time-out for swearing at another child and brought a hand sanitizer bottle up to his mouth and said loudly that she did not want to hear him say "those bad words" again. The preschool conducted its investigation after the police and Children's Aid Society (CAS) finished their separate investigations. The police decided to not press charges, but only issue a caution. CAS found that only the ear pulling incident was verified but did not bring any direct consequences. In its investigation, the preschool only interviewed Ms. Lally and Ms. Parashar, despite it being likely that other staff members were present for the two alleged incidents. The results of the investigation led to Ms. Parashar's dismissal, which she grieved through her union.

The arbitrator upheld Ms. Parashar's grievance in part. The arbitrator found that the preschool did not meet its obligation to prove that Ms. Parashar grabbed a two-and-half-year-old by the ear, shook his head and dragged him by the ear. Due to the Preschool's lacklustre investigation, it was only able to rely on Ms. Lally's testimony, which was filled with contradictions. The arbitrator found that what Ms. Lally could have seen was Ms. Parashar readjusting the child's winter hat. The arbitrator found that the incident with the hand sanitizer did happen, as both Ms. Parashar and Ms. Lally testified that it did occur. However, the arbitrator found that the actions were less serious than what Ms. Lally testified. Regardless, the conclusion that Ms. Parashar put her hand on the child's back, brought hand sanitizer 3-6 inches from a three-year-old's mouth after he swore, and firmly said that she did not want to hear him say "those bad words" again was found to be serious and deserving of discipline. Based on the circumstances, the arbitrator found that the appropriate penalty was to reinstate Ms. Parashar without backpay. Due to the length between the termination and the arbitrator's decision, Ms. Parashar essentially got a five-year suspension without pay.

Takeaways from Toronto (City) v CUPE, Local 79, (2024 CanLII 56104)

In the employment law context, federally regulated employers, such as Indigenous education authorities, should take note of this decision. In the federal context, employees who have worked for the employer for at least one year get similar protections under the Canada Labour Code as unionized workers. This includes the employer not being able to terminate such employees without just cause. This case shows the high bar that employers need to reach to meet the just cause standard and how reinstatement is possible even after serious misconduct has occurred.

This case also shows the importance of completing a full investigation and meeting with all relevant parties ahead of deciding whether to discipline or even terminate the employee. It is in the investigation that you can collect evidence that you can use to defend the choice to discipline or even terminate an employee. In cases where the alleged misconduct is serious enough to potentially warrant a termination, it is a good idea to seek a qualified third-party investigator to do the investigation.

How Suzanne Desrosiers Professional Corporation can help

At Suzanne Desrosiers Professional Corporation we have trained workplace investigators who are experienced in investigating workplace complaints. Our investigators can fully collect the available information/evidence and interview the appropriate witnesses before deciding on the matter.

We also have employment lawyers who are knowledgeable on the rules of termination and what is required to establish just cause. To inquire about our investigation services or to speak to one of our employment lawyers, please call us at 705-268-6492 or email us at info@sdlawtimmins.com.