Can an employer discipline or terminate an employee for misconduct without physical evidence of the misconduct?
A recent arbitration decision in Saskatchewan Polytechnic v. Saskatchewan Polytechnic Faculty Association, 2019 CarswellSask 499 demonstrates that in some cases, the basis to discipline an employee for misconduct can be established with consistent, clear and credible witness testimonies.
The grievor was a paramedic instructor for the employer. The grievor’s employment was terminated following complaints that he had been secretly taking inappropriate photos of female students in the fitness centre and in a classroom.
Multiple students complained that the grievor appeared to be surreptitiously taking photographs of female students in the fitness centre and classroom in compromising positions. The grievor denied taking the photos.
The employer investigated the conduct as a result of the complaints. Following the investigation, the employer terminated the grievor’s employment for cause.
One of the issues at the arbitration was whether the grievor had taken the photos, and if so, whether it was done purposely or if images were captured inadvertently. The grievor testified that his phone’s camera would unintentionally activate when he was using the phone for other purposes such as changing his music.
Another key issue was that no photos were ever obtained to demonstrate that the grievor had taken the photos, although multiple witnesses claimed to have seen the photos when they were taken.
Forensic audits of the grievor’s phone were conducted in attempt to recover deleted photos. The arbitrator placed no weight on the forensic audits based on the lack of details, the limited scope of review conducted by one of the auditors and concerns with the chain of custody.
While there was an absence of “hard evidence” against the grievor as no photos were ever produced, the arbitrator found that the grievor had taken or attempted to take the photos of the female students in compromising positions. The dismissal was warranted and upheld at arbitration.
The basis of the arbitrator’s conclusion was the consistent testimony from multiple students describing the circumstances and alleged actions of the grievor along with concerns the Arbitrator had about the grievor’s credibility. The Arbitrator noted that the consistent testimony from the witnesses could not be explained by coincidence alone. The students’ testimonies were consistent even though they did not know each other beforehand, made separate reports and were not present for the other witnesses’ testimonies.
This case highlights that even with a lack of physical evidence, the basis to discipline can be established with clear and credible witness testimony. Not all “he said, she said” situations mean that an employer cannot make a finding of misconduct.