Dealing with criminal behaviour at work

School board investigates and fires custodian accused of sexual assault before his case is heard in court
By Natalie MacDonald
|Canadian Employment Law Today|Last Updated: 01/11/2010

A custodian of a Catholic school in Norwood, Ont., was charged with sexually assaulting a 17-year-old female student during school hours on Feb. 21, 2007. The school board investigated the incident and fired him on March 27, 2007. A group of parents expressed outrage at the custodian’s termination before the charges had been proven in court. The board said it was a personnel issue and it properly followed the civil process.

The case raises important issues regarding the civil nature of the employer’s responsibilities with regards to an employee who is accused of criminal behaviour. On the one hand, the employer has a duty to provide a safe and healthy work environment for its employees. On the other, the employer is faced with the presumption in criminal law that a person is innocent until proven guilty. This can put the employer in an unenviable position.

When a harassment claim of any kind is made, the employer has a duty to investigate. Otherwise, the employer may be negligent in either its duty to the employee against whom the complaint is brought or other employees who may not be safe or healthy in the workplace if the allegation is true.