Recent events in not-for-profit institutions and organizations have raised the critical issue of the procedures followed to resolve conflicts and situations where the interests of the institution need to be balanced with the rights of individuals.
In the last several months we have seen a number of universities in Canada having to deal with high profile incidents on and off campus that have led to severe disciplinary measures against students. Our understanding of what occurred in each situation is based on what we learn from the media. Newspaper articles, radio and TV reports (insufficient to provide a clear and concise picture) leaves us with impressions that may not be reasonable if put to the test of objective analysis of the facts and outcomes. It is also not clear from the reported decisions made by university administrators what the procedures were in regards to fact gathering, assessing the evidence and hearing from all concerned before a decision was made and released to the public. In the absence of such disclosure at the time public announcements are made, we are left to assume that an acceptable process for dealing with these types of matters was in place and adhered to by the administration. But given the quickness of the release of decision from the time the administration learned of the incidents, leads one to reasonably question the process that was adopted to arrive at each of these decisions.
Educational institutions generally do have in place internal procedures but, in some cases, they are not very transparent. Decisions are made quickly and often impose immediate sanctions (as in the case of the Dalhousie dental students and the Ottawa men’s hockey team), followed by prolonged investigations, which appear to be taking place in order to assess the facts and draw conclusions after a penalty is imposed. As institutions of higher learning, universities are in a unique position and have a responsibility to leverage these “learning moments” through proper process. In doing so, students can come to understand the seriousness of inappropriate behavior and learn to accept the penalty imposed on them, but only after they have had an opportunity to be heard and make submissions. The administrative law principles of procedural fairness should apply to internal investigative processes.
Recent cases from tribunals such as the Human Rights Tribunal of Ontario1 may serve as examples of the emerging trend in which companies are being directed to have in place comprehensive policies and procedures to govern a range of issues being faced in our increasingly “politically correct” society. The Gaisiner case dealt with the question of reasonable accommodation and the tribunal found that the employer failed to adopt an appropriate process to assess the situation and make a reasonable decision. We can expect to see similar cases in the not-for-profit sector as the principles are universal and should apply regardless of the type of organization.
In all matters in which the status, reputation, well being and the future of individuals is “on the line” including such sensitive issues as reasonable accommodation, sexual harassment, student conduct and discrimination (to name but a few), not-for-profit organizations should have in place well understood and effective procedures that can be applied in a timely manner. By adopting procedures, the risk of extended legal enforcement where the rights of individuals (students, staff, members, guests attending events etc.) has been contravened, is mitigated. As well, the adoption of well thought out policies and procedures (with adequate training of staff to implement them) should be considered good practice and a subset of good governance by which the Board of Directors can be satisfied that the organization is dealing with these matters in a transparent, honest and effective way.
It is far better for the public to learn about violations of personal conduct knowing that a well crafted policy was maintained to deal with the issue at hand and arrive at decision that is defensible. By the same token, members of a not-for-profit and participants (students and others) will better appreciate the difficulties that arise when issues need to be dealt with and accept the manner in which they were ultimately resolved.
The crafting of policies and procedures is becoming an important element in a not-for-profit’s operations. It requires serious thought, careful drafting, information/educational sessions with those who need to know about the policy and training for those responsible to implement and manage the process when issues arise.
Mark S. Anshan can be reached at manshan@drache.ca.
1 Gaisiner v. Method Integration Inc. 2014 HRTO 1718, November 27, 2014