In Hannan v Scouts Canada [Hannan], a recent decision from the Ontario Superior Court of Justice (“ONSC”), a long-service volunteer disputed an organization’s decision not to renew his volunteer status on the basis of unsupported allegations of misconduct. The ONSC shed light on the applicability of organizational policies and the obligations that organizations owe to their volunteers.
Background
The volunteer, 86 years old and having served the organization for 65 years, received a letter from the organization denying his annual application to renew his volunteer status was denied (the “Letter”). The Letter cited safety concerns and resistance to program adaptation as reasons for the decision. The volunteer, believing the decision was unfair and noting these concerns were not previously communicated to him, issued an application by the ONSC seeking reinstatement.
Decision
Applicability of Policies
The volunteer’s relationship with the organization was not a traditional employer-employee relationship; however, the extensive by-laws, policies, and governance structure made the volunteer’s relationship contractual in nature. Therefore, he could rely on the organization to follow its policies related to his volunteer status. Generally, the mere breach of an organization’s policies by itself does not automatically mean a court can hear the matter; however, the ONSC determined the relationship’s contractual nature permitted the matter to be heard. The ONSC relied on following facts in reaching its finding:
- The organization’s policies were designed to recruit, grow, and retain volunteers in exchange for the volunteers’ commitment and dedication;
- The organization’s annual appointments and reappointments of volunteers are based on performance and adherence to the organization’s Code of Conduct and “scout law”;
- The organization had a progressive discipline process with tools for coaching, discipline, and incident management specifically addressed to manage volunteers;
- Renewals are normally granted. The organization’s policies also infer that where non-renewal is due to performance or conduct issues, its discipline policies will be followed;
- Under the “Our Commitment” section of the organization’s policy regarding support, performance management, and discipline, the organization may reassign volunteers or terminate their membership in rare instances, but only after repeated coaching, training, and support are unsuccessful;
- There is an appeal mechanism for decisions affecting volunteer;
- Membership with the organization is not passive but requires significant ongoing commitment from the volunteers;
- The organization’s formal structures for support and supervision appear more contractual than merely aspirational in nature; and
- There is nothing in the organization’s policies or practices that suggest they are not intended to be binding on all volunteers or the organization itself.
The ONSC found that volunteers were expected to adhere to the policies and expected their relationship with the organization to be governed by its policies. As such, the organization owed the volunteer a duty of procedural fairness before terminating his membership.
Misconduct
The ONSC found no admissible evidence to substantiate the organization’s allegations that the volunteer’s performance was substandard or that he had breached the Code of Conduct. The organization did not have any records of misconduct or of discussions relating to same, and its affidavit came from a director who did not have first-hand knowledge of the matter.
Even assuming performance issues existed, the ONSC held that the organization had not followed its progressive discipline policy, which required coaching or reprimands before terminating the volunteer’s membership. The organization also failed to adhere to its policy for appointing volunteers, which stated that membership renewals were granted unless the volunteer failed to carry out their responsibilities satisfactorily. Further, the ONSC held that the organization’s appeal process was not implemented, such that the volunteer was not given an opportunity to respond to the concerns set out in the Letter.
Given the absence of evidence substantiating the misconduct allegations, as well as the organization’s failure to abide by its policies, the ONSC determined that the organization acted arbitrarily in denying the volunteer’s application for renewal.
Remedy
As a result of the organization’s improper decision, the ONSC ordered the following remedies:
- declarations that the volunteer was entitled to the benefit of the organization’s policies, and that the organization failed to provide a valid basis for the allegations in the Letter;
- $50,372 in costs awarded to the volunteer; and
- an order that, if the volunteer reapplies, the organization must implement the normal screening procedures, and process his application in good faith and in an expeditious manner.
The ONSC noted that the volunteer was technically entitled to damages for breach of contract. However, no damages were awarded as the volunteer did not suffer any monetary loss due to his voluntary relationship with the organization. The ONSC also declined to order reinstatement, citing the reluctance of courts to force parties to work together when they do not want to.
Takeaways for Employers
The obligations that an organization owes to employees may differ from those owed to volunteers. However, Hannan demonstrates that, under certain circumstances, an organization may owe a duty of procedural fairness to its volunteers and may need to follow a particular procedure depending on its policies and practices. To avoid the mistakes made in Hannan, organizations should consider the following best practices:
- Create, review, and train staff on policies: Organizations should ensure that their policies align with actual practices and are regularly reviewed for legal compliance. Staff should be trained on implementing policies, including those governing relationships with volunteers and students. The failure to do so can be costly, as seen in Hannan, where the organization was ordered to pay over $50,000.
- Document, document, document: Organizations should maintain proper written records related to discipline, including details of the alleged misconduct, investigation, and any disciplinary action. If misconduct is alleged, the worker should be given a fair opportunity to respond.
- Discipline and terminate appropriately: When organizations are considering discipline or termination, organizations should base their decision on clearly documented reasons. Any action should be carried out in compliance with the organization’s policies.
This blog is provided as an information service and summary of workplace legal issues.
This information is not intended as legal advice.