Last week, the University of British Columbia posted a job opening for the Chair of UBC’s Creative Writing Department. Yet a grievance for that position, brought forward by the person who last occupied the role, is still underway.
According to best employment practices, the proper and normal course of action would have been for UBC to wait until the grievance—a process whereby employment-related disputes between a university and its faculty are resolved—is heard in March, 2017. But when it comes to the investigation of Steven Galloway, fired by UBC for reasons presumed to be related to allegations of assault and sexual harassment, nothing has been normal. (I should disclose that I studied under Galloway and was in a number of workshops along with the Main Complainant.)
When UBC first suspended Galloway, the school hired a retired British Columbia Supreme Court Judge, the Honourable Mary Ellen Boyd, to investigate and assess the credibility of the allegations that had been brought against him. Following Boyd’s five-month investigation, and an additional two months of deliberation, UBC announced its decision to fire Galloway without severance. Then Galloway, a tenured professor, exercised the right granted to him by the collective agreement that defines his employment contract with UBC and filed a grievance.
Galloway’s grievance—like the broader controversies surrounding his dismissal—has been the subject of extensive debate online. Some have speculated that both parties, Galloway and UBC, may be headed for a pre-arbitration settlement. Others have speculated that Galloway could walk away empty-handed. I disagree. Those who have given public support to the complainants in this case should prepare themselves for the possibility that Galloway will be reinstated.
In discussing Galloway’s future, it’s important to understand how grievances work. The process is somewhat similar to a wrongful-dismissal claim in civil court. But there is at least one important difference. While a plaintiff pursuing a wrongful-dismissal claim in court typically is looking for cash to compensate for lost wages, lost opportunity, and punitive damages, an ex-employee who initiates a grievance typically wants to be “made whole” by getting his or her job back.
A grievance hearing, unlike a court case, always takes place behind closed doors. The strict rules governing evidence in civil and criminal trials do not apply. Instead, an arbitrator—a trained legal professional with experience in labour relations and employment law—can decide to admit any evidence she deems fit, so long as the principles of “natural justice” and “procedural fairness” are followed.
In the case of Steven Galloway, the arbitrator will be required to re-examine all of the evidence—such as it was—that formed the basis of UBC’s decision to fire Galloway. It is at this hearing where the contents of Boyd’s report (which has not been released to the public) will be scrutinized. The Main Complainant against Galloway, and some of the Ancillary Complainants, may testify if UBC asks them to do so (and if they choose to do so). Then, perhaps three to six months after the hearing, the arbitrator’s decision will be published.
Only then will the public get, in the words of Main Complainant’s lawyer, Joanna Birenbaum, a “fulsome airing of the facts which formed the basis for UBC’s decision to terminate Mr. Galloway’s employment.”
But according to some of the facts that already have been revealed—in particular, portions of Boyd’s report that were leaked to the press by some of the Ancillary Complainants—the basis for UBC’s decision may be weak. For example, leaked portions of the report indicate that Boyd dismissed the claims that Galloway had created a sexualized environment among students. To quote a portion that was printed in The Globe and Mail: “The reality is that most of the crowd were sophisticated adults…and that [Mr. Galloway] was in no position to control either how much anyone drank nor the conversations they engaged in.”
As for the sections of Boyd’s report that pertain to the Main’s Complainant’s allegations, they are redacted. Thus, we do not know if the alleged assault relates to a specific sexual incident—or if she is alleging that the power imbalance between the professor and the student was so unequal that she could not have meaningfully consented to any act during the entirety of their two-year, intimate relationship.
Only one person, Boyd, has had a chance to formally assess any allegations of assault and sexual harassment levelled against Galloway. For what it’s worth, Galloway’s lawyers—who, like Galloway himself, have seen Boyd’s report—announced publicly that the assault accusation could not be substantiated. In fact, according to Galloway’s lawyers, all but one of accusations brought against Galloway were dismissed by Boyd. The only finding that could be substantiated was a “breach of trust.”
Does “breach of trust” constitute sufficient grounds to fire a university professor? In general, the answer is no.
Contrary to what one might suppose, the “trust” relationship at issue here is not between the professor and the student. The trust, as it is defined by the law, is between the professor and the university. When professors are hired, the university places trust in them to operate in the best interests of the school when teaching, evaluating student work, and conducting research. And with good reason: It is in the best interests of the university to employ professors who maintain an environment where unbiased and impartial evaluation of student work occurs, and the scholarly integrity of the university is protected.
When an intimate relationship develops between a student and a professor, the professor is no longer capable of objectively evaluating that student’s work. The professor could potentially be acting in his best interests—not the university’s. A conflict of interest arises, and it is this conflict that serves to undermine a university’s trust in a professor.
Although there have been numerous arbitrations surrounding Canadian professors who have been fired for sexual misconduct, I can find only three in the last twenty years wherein a college or university fired a professor for breach of trust. These cases are Lethbridge College (2007), Re Okanagan College (1996), and Memorial University (1997).
In Lethbridge College, Professor Greg Bird was found to have had three consensual relationships with undergraduate students over a ten-year period. After one affair ended badly, a student filed a complaint against him; the college investigated and then fired him. In Re Okanagan College, a fine-arts professor, Briar Craig, used his class as a dating pool and was eventually investigated when a sexual-harassment claim arose. During an investigation into his past liaisons, the college discovered that all of his relationships had been consensual—but he was fired for breach of trust anyway. And in Memorial University (whose facts are most similar to those at issue in the Galloway controversy), Professor William Schipper was fired for breaching his employment obligations as a fiduciary—which is just another way to say “breach of trust”—because he had a consensual, romantic relationship with a student.
In all three of these cases, the professors filed grievances after they had been fired. And in all three of these cases, the arbitrator reinstated the professors to their jobs.
The case law in Canada would appear to very clear on this point: Firing a professor for a “breach of trust” constitutes an excessive form of punishment. If the arbitrator in the Galloway grievance follows this established principle, he or she will reinstate him—though likely with some conditions attached, such as giving UBC the right to terminate his employment if there ever is a future breach of trust.
However, there is some uncertainty at play. Lethbridge College was heard at a time when not all universities had policies in regard to student-professor relationships, and the absence of such a policy was a mitigating factor in Professor Bird’s reinstatement. While Galloway’s relationship with the Main Complainant arose around the same time that UBC was implementing its policy on student-professor relationships, the policy was already in effect when his relationship with the Main Complainant ended. That may lead an arbitrator to find that dismissing a professor for a breach of trust is no longer deemed excessive because he failed to comply with UBC’s policy. Of course, whatever steps Galloway made to bring himself into compliance with this policy—such as severing his role as a thesis supervisor—likely will be seen as mitigating factors.
The draconian nature of the punishment—firing without severance—will also be a subject that the arbitrator must address. He or she may find that Galloway’s firing was warranted, but will award him a severance package because the denial of such severance would be viewed as excessive in light of the damage already done to Galloway’s reputation. The presumption of guilt renders him unemployable for a considerable period of time—if it has not permanently ended his academic career. And the arbitrator may argue that the recklessness of UBC—which effectively convicted Galloway through its public statements—has played a large part in the manner by which the public perceived (or, many might argue, misperceived) Galloway’s actions.
The Supreme Court of Canada has held that collective agreements cover all aspects of an employee’s dismissal. And so an arbitrator could be asked to look into damages related to defamation, loss of dignity, and injury to personal feelings. Galloway has been subjected to enormous hate and vitriol in the past year, and there is no doubt that his reputation has been damaged. An arbitrator could also award punitive damages, in addition to either severance or reinstatement.
When describing the reason for firing Galloway, UBC used the phrase “irreparable breach of trust”—suggesting that there is no scenario in which he could be integrated back into the university community. But the employer in the Lethbridge College case also tried to argue that the breach of trust was irreparable—without success because the lawyers for Bird, using evidence from Bird’s psychologist, demonstrated that he was now aware of how conducting relationships with students impacts the teaching environment and how he would now consider relationships with students to be “off limits.”
For UBC to prevail, the school would have to demonstrate that the trust placed in Galloway cannot be repaired. They could also argue that Boyd made serious errors during her investigation, and suggest that the arbitrator should overturn her conclusions regarding accusations of assault and sexual harassment. If the arbitrator follows this path, he or she would have to cite strong evidence—or else the findings would be vulnerable on appeal.
Or the University could rely on entirely new allegations—that may not have been investigated by Boyd. Indeed, Gage Averill, UBC’s Dean of Arts, has told the Globe and Mail that “In addition to the allegations which have been investigated by Boyd, the dean also took into consideration other allegations which were not the subject of the investigation.”
An arbitrator will be required to assess these new allegations (if, in fact, they materialize during arbitration), as well as determine if Galloway was given a chance to respond to them (as is guaranteed as part of his right to due process).
More questions then arise: What are these new allegations? Is there a supplemental report about them? If there was any substance to them, why wasn’t Boyd re-engaged to investigate them? Or was UBC so dissatisfied with Boyd’s conclusions that university administrators decided to forego any new investigation of untested allegations?
There are too many questions about these mysterious allegations—if, indeed, they exist—to predict what impact they will have on the grievance. But the facts that have been disclosed thus far suggest that UBC clearly overstepped. The typically accepted form of punishment for a breach of trust is a written reprimand and (in more extreme instances) an unpaid suspension for a year or two—not a press-release show trial followed by unilateral dismissal.
It is difficult to avoid the conclusion that UBC’s treatment of Galloway was motivated not by the legally cognizable facts of his case, but as a post facto reaction to the bad press that the university received for its mishandling of past sexual assaults on campus. Such an impulse is perhaps understandable from a public-relations point of view. But employment law is not governed by the publicity needs of the employer.