Anonymous Accusations, Natural Justice and Good Faith

For the purpose of being protected from anonymous accusations, in this context it’s too bad Trustees aren’t “employees”, because we have no protection from anonymous accusers. This situation has played out badly in SD61, and the process has yet to be reviewed. Meetings ere put off again and again, the agenda was re-worked several times to take the topic far from it’s intended focus, and now a pandemic with all its associated crises has  put examination of the processes that led to the Goldner report and examination of the flawed report itself and its processes  so far down on the list of “must do”  we will never see that review  happen. [ March 9/20 Part 1,   Part 2, Part 3 ]

School Board governance is not a top of mind issue  in a pandemic. Is Board of Education governance in BC ever paid much attention in BC public school districts?  Yet the public via the Ministry of Education pays Boards of Education in 60 BC School Districts    hundreds of thousands of dollars of public money to provide “governance” .  Thousands are diverted to the BCSTA through District fees for membership. [ Post Feb 7/ 17  at H.1 ] Though Boards as an entity can get legal advice from the BCSTA, individual trustees must pay for their own legal advice and defence.

The anonymous nature of the accusations from 17 members of the Principals and Vice Principals Association in SD61, presumably approved by the entire or a majority of the PVPA,  has created – or exacerbated – an “us and them” divide.

For members of PVPA to have expressed “fear”  of trustees in regard to their careers and are reportedly fearful of some power differential, and thus the anonymity,  is unwarranted. The only individual who has any jurisdiction over staff career moves is the Superintendent. Trustees are limited to hiring (and firing) a Superintendent and have zero influence on anyone else on staff.

Andrea Twaddle is an employment lawyer in New Zealand. Here’s how it works for employees there. Doesn’t this make sense and provide justice? I think it does.

Anonymous accusations and the use of secret witnesses

Posted by: Andrea Twaddle

This article outlines employer obligations to provide all relevant information to an employee who is the subject of an employment investigation, including the details of a complaint and the identity of complainants and witnesses.

Natural Justice

In almost all circumstances, natural justice will require that an employer identify the individual who raised a complaint or was a witness to an incident.

An employer conducting a disciplinary or performance investigation is guided by a number of obligations, set out in the Employment Relations Act.  Employees have a right to a fair hearing, i.e. that an investigation be carried out in a fair manner.  Fundamental to this process is that an employee receives all information relevant to the allegations, and has a fair opportunity to consider and respond to it.  Further, that the employee has an opportunity to present that defence to an unbiased decision maker.

If an employer provides only vague or unsupported allegations, it makes it very difficult to respond.  Allegations of an employee being “confrontational”, “aggressive” or “heavy handed” in their approach”, of being “unhelpful”, or “late in delivering on work”, will not contain sufficient information to enable the employee to know the allegations against them, and properly respond.  The employer is obliged to provide detail of particulars such as: when the employee was unhelpful; to whom; in what way; whether there were other similar instances; whether others were witness to the incident; and whether there was any other supporting information that could assist the employer’s enquiry.

Knowing the identity of an accuser/witness may make a difference to the employee’s response.  For example, the individual might have a particular motive for making his/her statement, or a reason to embellish an accusation.

Good faith

Withholding information will ordinarily be a breach of good faith, and result in an unjustifiable process.  The duty of good faith applies to the relationship between an employer and an employee.  It requires both parties to be active and constructive in maintaining a productive employment relationship.  Good faith requires that parties do not mislead or deceive the other, or do anything likely to.  It also requires an employer that is proposing to make a decision that could have an adverse effect on the continuation of an employee’s employment to provide access to all information relevant to that decision before a decision is made.  Information is to be provided at a time when the employee has an opportunity to provide meaningful comment on it.

In employment law, it will be a rare, and exceptional circumstance where there is justification for the identity of an accuser or witness to remain anonymous, and that a complainant’s right to confidentiality might override an employee’s right to receive all relevant information.

 

 

 

 

 

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