Navigating disciplinary proceedings in cases of termination
By Judy van Rhijn, AdvocateDaily.com Contributor
When a termination leads to a complaint with the employee’s professional body, the loss of a job can be overshadowed by the potential threat to their career, Vaughan labour and employment lawyer Arthur Zeilikman tells AdvocateDaily.com.
“When the same facts relate to both the termination and the disciplinary proceeding, the two can overlap,” says Zeilikman, principal of Zeilikman Law.
“When you have an employee fired for an offence, and the person belongs to a professional body, the employer has an obligation to report the reason for the termination in some instances,” he says.
“Now you have a client dealing with being dismissed from their job, and also investigated by their respective disciplinary body. It’s not only that they lost their job, but they may also be at risk of losing their licence,” says Zeilikman. “As employment lawyers, we’re able to help with the disciplinary proceeding aspect.”
He advises that most of the time the employee has no choice but to engage in the disciplinary process — even in the case of frivolous complaints — because their livelihood depends on it.
“Consumers of professional services should have the right to complain without fear of retaliation, but some individuals take advantage of it as well. They may file frivolous complaints which cause a lot of headaches for the licensee,” says Zeilikman.
“If you’ve just been terminated, you don’t technically have to initiate any civil proceeding against your employer, but if you care about your licence, you’d better respond to the regulatory body.”
Zeilikman and his law firm have represented various professionals in these — and similar — circumstances, including optometrists, nurses, therapists, real estate agents, and engineers. He suggests that you deal with the professional body first before taking any action against your former employer.
“You should always be mindful of limitations and deadlines that arise with the termination, and while you may want to fight it, your priority should be the licence that you’re at risk of losing, rather than getting damages from your employer.”
He notes that reinstatement is rarely possible unless, for example, there is arbitration under a collective agreement or a human rights violation.
“If it’s just a straightforward contractual or common law relationship, you’re not going to be reinstated, but you can sue for damages,” Zeilikman explains.
“If you get a favourable decision from the professional body, you can use that against the employer. If the disciplinary body clears you of any wrongdoing, then you definitely have something to use to negotiate a settlement with your former employer.”
A regulatory body is not like a court of law, he warns.
“Their processes are not as robust as they would be in the Superior Court of Justice,” Zeilikman says. “You’re typically dealing with an investigator who is assigned the claim because somebody makes a complaint. They will contact the individual and then we would typically intercede. The investigator will send us the discovery or disclosure materials, and we make submissions on the individual's behalf.
“The complaint is often dispensed with at the preliminary stage if they think there isn't sufficient reason to proceed with the process. Otherwise, they would move forward and may commence a hearing or move it forward to the discipline stage,” he says.
Zeilikman notes that some disciplinary bodies take the form of quasi-judicial tribunals, and some are less formal.
“It depends on their legislation. Each tribunal takes its powers from the body's governing act. We try to resolve things in the early stages as best we can — within the framework of the administrative body and the legislation.”
He also points to the importance of the overarching administrative law — principles that have been developed through decisions made by the courts and tribunals.
“There are certain principles they have to follow, such as procedural fairness and, depending on the context, the right to get reasons or grounds for the decision,” says Zeilikman. “They vary from body to body, but they are subject to certain considerations.”
In the case of judicial review, he says the courts are normally deferential to the disciplinary bodies unless they commit a natural justice error or an error of law.
“You can have a decision judicially reviewed, but these are considered to be expert bodies in their respective domains,” Zeilikman says. “Courts are deferential to the legislative mandate under which the disciplinary body operates.”
He says it's vital for anyone faced with a disciplinary hearing by their governing body to contact a lawyer for help as it can be dangerous to go it alone — or to ignore it.