Just Cause “Cancellation”?

April 18, 2023

Article by: Rebecca Klass

Previously printed in the LexisNexis Labour Notes Newsletter.

Ever since the #MeToo movement, “cancel culture” has gained momentum, seeking to hold individuals accountable for abuses of power as well as sexual harassment and assault – in both the past and present. The decision in Ottawa Jewish Community School Teachers’ Assn. v. Ottawa Jewish Community School (Cianni Grievance), 2022 O.L.A.A. No 113 (Tremayne) examines the trend of “cancelling” individuals for past misconduct in the context of a just cause termination.

Decision

The Ottawa Jewish Community School (the “School”) is a not-for-profit Jewish school in Ottawa. Cianni worked as a teacher at the School from 2004 until July 2021 when he was discharged for just cause for breach of trust and professional misconduct.

Prior to joining the School, Cianni had worked at a secondary school in the public sector. In 2002, he had inappropriate relationships with female students. One of those relationships was sexual in nature. He was dismissed from employment and lost his teaching certification of qualification.

In 2004, the School hired Cianni. At the time of hire, the School was aware that he had lost his certification of qualification and the reason why. At the outset of his employment with the School, Cianni signed an agreement that he would not coach students or be alone with any student. The conditions were dropped after 10 years of teaching. Over his 17-year period of employment with the School, he was, by all accounts, a very good teacher.

Information about Cianni’s past misconduct was publicly available online and, from time to time, it would surface at the School. In 2020, some parents raised concerns about Cianni. In particular, they complained their children had reacted negatively when they learned about Cianni’s history, and that history had become a topic of discussion in their children’s social circles.

The matter went to the School’s Board of Directors. On review, the Board concluded that having a teacher on staff with Cianni’s history did not align with the School’s values, and the School could not survive a public scandal because it was in a relatively fragile economic state. The Board decided unanimously that the only acceptable outcome was for the School to end its relationship with Cianni.

Efforts to negotiate a voluntary departure were unsuccessful and the School went on to terminate Cianni’s employment with just cause. The termination letter read, in part:

… We are living in new times and what was once deemed acceptable in the past is now subject to review through new eyes. Governments and organizations are being held accountable for events and choices from years ago, and through this lens – a post #MeToo reckoning – you present a clear existential threat to the School’s viability …

The School argued it was a small, fragile institution in the Jewish community in Ottawa, and its reputation with students, parents and donors was essential to its ongoing success and viability.

The School relied on a recent decision of the B.C. Human Rights Tribunal to emphasize the heightened public awareness and scrutiny of power abuses on campuses and in workplaces. According to the School, the view that society now takes of sexual misconduct is different than it used to be, and its decision had to be examined from that perspective.

The Ottawa Jewish Community School Teachers’ Association (the “Association”) argued on behalf of Cianni that the School hired him knowing everything there was to know about his past. The School had, quite properly, given him a second chance. His past had surfaced from time to time, but the School had never before reviewed the ongoing viability of his employment. Once an employer like the School had learned about conduct that might lead to termination of employment for just cause, it had to proceed with the termination in a timely manner.

The Association also relied on the serious and harsh discipline that Cianni had already received in response to his misconduct in 2002. It argued that a “#MeToo reckoning” was not appropriate in Cianni’s case because his misconduct had already been appropriately addressed.

The School’s argument that Cianni’s conduct ought to be reviewed through a new lens was rejected. The Arbitrator reasoned that society’s perception of Cianni’s misconduct had not changed, and indeed he had already been punished for that misconduct. The Arbitrator concluded “what has changed is the School’s view of its decision to hire Mr. Cianni and its perception of its own thinking when it chose to continue to employ him for nearly 17 years”.

The Arbitrator allowed the grievance and ordered that Cianni be reinstated to employment with full back pay and without loss of seniority.

Takeaways for employers

While societal perspectives may have shifted, the law remains the same: a decision to terminate employment has to be made in a timely manner after an employer learns of misconduct that could lead to termination. The employer cannot have a “change of heart” in relation to the employee’s history.

When hiring an employee, particularly an employee who will occupy a position of authority or special responsibility, employers may wish to consider appropriate and tailored pre-hiring screening to ensure they have all of the information that is reasonably necessary to make an informed decision about whether the potential hire fits their organization’s values. Screening of this kind will also provide a helpful record should any skeleton appear in the employee’s closet subsequent to the time of hire.

Screening-type inquiries engage privacy and human rights considerations, and it is recommended that employers consult with experienced legal counsel before adopting any new screening practice.

While every effort has been made to ensure accuracy in this article, you are urged to seek specific advice on matters of concern and not to rely solely on what is contained herein.  The article is for general information purposes only and does not constitute legal advice.