Buckets of Data

June 19, 1997

SFU news, June 19, 1997: Independent arbitration board established to review controversial Donnelly dismissal

Filed under: Marsden,Uncategorized — bucketsdata @ 3:58 pm

http://www.sfu.ca/mediapr/sfnews/1997/June19/donnelly.html
June 19, 1997 * Vol . 9, No. 4
Independent arbitration board established to review controversial Donnelly dismissal

An independent arbitration board, chaired by well-known lawyer and arbitrator Stephen Kelleher, has been established to review the recent dismissal of SFU swim coach Liam Donnelly.

Exactly when and how the three-person board will proceed is up to Kelleher and his fellow members: lawyer Fran Watters, appointed by the university, and lawyer Sandra Banister, appointed by Donnelly. At press time, it was not known whether board deliberations would be open to the public.

President John Stubbs dismissed Donnelly on May 23 following a formal investigation which found that Donnelly had violated the university’s harassment policy.

Donnelly, a member of SFU’s administrative and professional staff association (APSA), subsequently appealed his dismissal through the “problem-solving” policy (AD 9-17) covering APSA members.

This policy provides for the establishment of an arbitration board in dismissal cases to review “whether the president has exercised reasonable judgement” in formulating his decision. The board’s decision is final and binding on all parties.

In announcing the university’s appointee, Stubbs said: “It is my personal hope that the arbitrators will not be constrained in any way in their review of the facts of the case and the fairness of the decision.”

The origins of Donnelly’s dismissal go back to the fall of 1995 when a woman student filed a complaint with the university’s harassment office. The university, guided both by the harassment policy’s confidentiality clause and provincial protection of privacy legislation, initially refused to identify the complainant’s name. However, the complainant was later identified — through her own interviews with off-campus media — as Rachel Marsden.

At the outset the university also refused to define the specifics of Donnelly’s “violations” of the harassment policy, again because of confidentiality constraints. However, Marsden was later quoted in the mass media as having described it as “date rape.”

Marsden’s complaint resulted in five days of hearings in the spring of 1996 before an investigative committee struck under the terms of SFU’s harassment policy. Marsden and several witnesses gave evidence under oath and were subjected to questioning by the committee.

The investigating committee was comprised of a faculty member, staff member and a student. The university is not releasing their names on the advice of its lawyer.

As required by the principles of natural justice, the harassment office kept both parties fully informed as the complaint was dealt with.

Shortly before the formal hearings were to begin, Donnelly’s lawyer told the harassment office that her client would not participate. Donnelly was notified both verbally and in writing of the possible consequences.

Donnelly also withdrew a complaint he had made against Marsden through the harassment office.

In November of 1996 the committee delivered to the president its final report which found that Donnelly had violated both section one (general harassment) and section two (sexual harassment) of the policy. The committee recommended dismissal.

As required by policy, Stubbs circulated the report to both parties and asked for “submissions.” Donnelly then attempted to present new information to the president, but it was not considered on the advice of the university’s lawyer, Anita Braha, who argued that such information had not been provided under oath and had not been subject to examination as had evidence supporting Marsden’s complaint.

At the same time, Donnelly sought to re-submit the complaint which he had earlier filed, and then withdrew, against Marsden. His request to re-submit came approximately 13 months after his original complaint was filed.

Donnelly’s request to re-submit was turned down by the harassment office because it exceeded the policy’s time limit which requires that complaints be filed “within six months” of the date of the last alleged incident. Donnelly then appealed to the president for a time waiver, but Stubbs ruled that Donnelly “did not have a reasonable and bona fide cause” for the delay and that such a waiver would not be in the “best interests of justice.”

Donnelly’s final submissions requesting a time waiver were presented to the president’s office in April of this year.

Given the finding that a university employee was in violation of the university’s sexual harassment policy, the university negotiated a “remedy” with Marsden to compensate her for the impact on her life. This compensation, which included a $12,000 payment, was viewed as confidential, but was subsequently leaked to the media.

Some media reports incorrectly reported that the compensation included a passing grade in an uncompleted course. In fact, the president had asked an academic department if it would be willing to waive on compassionate grounds a course requirement for a major so that Marsden, who already has enough credits for a degree, could graduate with the credential she originally sought. The department has yet to rule on the president’s request.

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