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Canadian courts have cracked down hard on workplace bullies in recent years, with many judges adopting a zero-tolerance approach to harassment, especially where managers bully vulnerable subordinates.
Yet, a recent case involving the University of New Brunswick’s women’s volleyball program serves as a useful reminder that not every violation of a workplace harassment policy warrants termination without severance. In some instances, even workplace bullies are entitled to a second chance.
Recently, the Court of King’s Bench of New Brunswick awarded damages to Richard Schick, the former head coach of UNB’s women’s volleyball team, after finding the school wrongfully dismissed him.
Mr. Schick was hired in 2021 on a three-year fixed-term contract. But his abrasive coaching style quickly caught up to him. Player evaluations from his first season raised red flags and several athletes later complained of feeling belittled and undermined. They described an overly aggressive approach toward them during practices and games, including slamming a volleyball onto the floor while shouting. One team member reported needing counselling because Mr. Schick bullied her. The team’s athletic therapist confirmed that Mr. Schick shouted profanities at the players, resulting in a noticeable decline in their performance and well-being both on and off the court. Even Mr. Schick’s assistant coach stated he was disrespectful and belittled her too.
Matters came to a head at the end of the 2022-23 season, when Mr. Schick told several veteran players they would need to try out again to secure their spots for the next season. Within a week, those same players launched formal bullying and harassment complaints against Mr. Schick.
Faced with the formal complaints, UNB retained a lawyer to investigate and prepare a report on the findings. That investigator reviewed 30 separate allegations against Mr. Schick and found nine were substantiated, mostly relating to Mr. Schick’s aggressive use of profanity and the impact on the players, while the remaining claims were unfounded.
The investigator did note that the complaints were filed shortly after players learned their roster spots were no longer secure, raising questions about their motives. Importantly, he also observed that when Mr. Schick was alerted to concerns, his behaviour improved.
Based on the report, UNB fired Mr. Schick, citing violations of its harassment policy and asserting that his behaviour created a toxic environment for the team and could no longer be tolerated. The players were vulnerable to Mr. Schick as their head coach and UNB determined they needed greater protection.
Mr. Schick responded by suing for wrongful dismissal.
In a written judgement, Justice E. Thomas Christie noted that UNB did many things right. Instead of jumping to conclusions, it retained an expert to investigate the complaints and gave the matter serious consideration. What it failed to do, however, was provide Mr. Schick with any meaningful opportunity to correct his behaviour.
Canadian law requires employers to apply progressive discipline (including verbal warnings, written warnings and possibly even suspensions) before firing an employee for alleged misconduct, unless that misconduct is so severe that no other penalty is more appropriate.
Justice Christie held that Mr. Schick’s behaviour was not beyond redemption. He showed a willingness to adjust but wasn’t given a clear warning that failing to do so would amount to his immediate dismissal.
Justice Christie warned that “all harassment complaints must be taken seriously … but not all violations of an institution’s harassment policy require termination.” Mr. Schick’s behaviour was highly problematic but there were mitigating factors that supported providing him with a warning before dismissal.
Mr. Schick was awarded damages for the remainder of his three-year contract.
Employees accused of workplace harassment or bullying often fear their job is automatically at risk. However, this case highlights the steep hill employers must climb when attempting to fire workers without severance. Here, even a coach who bullied vulnerable players under his charge was entitled to a second chance and opportunity to improve.
However, Mr. Schick’s victory may prove to be both a hollow and cautionary one. Even though Mr. Schick won his case, he did not come out unscathed.
Launching a wrongful dismissal suit becomes a matter of public record and most written decisions by Canadian courts are quickly published online and, as here, picked up by several media outlets. Although Mr. Schick was awarded severance, the Court expressly noted that his bullying tactics could not be condoned and UNB’s failure to give him sufficient warning did not justify conduct that was clearly wrong, according to the Judge. Prospective employers are likely to take note.
Finally, in a telling step, the Judge only ordered UNB to cover a small fraction of Mr. Schick’s legal costs, leaving him to absorb the lion’s share of his own bill – and turning his victory into a costly one.
Daniel A. Lublin is a partner at Whitten & Lublin, representing clients in workplace legal disputes. He can be reached at Dan@canadaemploymentlawyer.com.