Below is an article that I wrote for the current issue of Labour and Employment Law Perspective, the newsletter of the Canadian Bar Association's National Labour and Employment Law Section, the topic of this month's edition is progressive discipline. My article addresses the situation at the University of Manitoba involving Dr. Gabor Lukacs, the math professor who is challenging the decision to award a Ph.D. to a student who received accommodations for extreme exam anxiety. It's a complex set of facts that cuts across administrative, human rights, privacy, and labour law. If anyone has comments they wish to share with me, email me here.
Pitfalls and Nightmares
Progressive discipline can be a thorny issue fraught with pitfalls at the best of times, but what happens when a case appears on your desk that doesn’t fall into traditional categories and is already embroiled in litigation in multiple forums. A situation has arisen at the University of Manitoba (“the university”), which stands at the intersection of labour, privacy, human rights, and administrative law.
Dr. Gabor Lukacs, a young professor in the Department of Mathematics, is the central player in this matter and is currently serving a three-month suspension without pay due to his objections about the manner university administrators handled a request for accommodations from a Ph.D. student who had been diagnosed with extreme exam anxiety.
Background facts
In March 2009 the student failed the candidacy examination for the second time. This would normally require a student to withdraw from the program. On June 26, 2009 the student filed an appeal with John Doering, the Dean of the Faculty of Graduate Studies, requesting accommodation for his disability. On July 16, 2009, Doering granted the request.
What followed were discussions between Doering and Dr. Joseph Williams, Acting Chair of the department, about what form the accommodations will take. Dr. Williams suggested that the student be given double time to write the exam and that it be staggered over two days, Doering countered that an oral exam should be given to the student. No agreement was reached and on September 29, 2009, Doering announced he was waiving the requirement that the student pass any sort of examination.
Prior to this, Lukacs had been not privy to any information relating to the student’s request for accommodations. On October 29, 2009, Lukacs was elected to a committee overseeing graduate studies in math. Lukacs was briefed on the matter and over November and December challenged Doering’s jurisdiction and decisions regarding the appeal and accommodations through various avenues, arguing that internal regulations required that an internal panel decide the student’s appeal.
The university disciplined Lukacs on December 15, 2009, for allegedly violating the student’s privacy and engaging in harassment. The university demanded that Lukacs cease pursuing the matter any further. Later the University of Manitoba Faculty Association responded by filing a grievance.
From January to August 2010, Lukacs was on leave. In late August the department became aware that the student hadn’t completed all of the requisite coursework normally required for a Ph.D. to be awarded. In a meeting on August 30, 2010, Doering took the position that the student shouldn’t have to complete any further coursework and that previous undergraduate coursework should be upgraded to the graduate level to satisfy any outstanding requirements. Subsequent to this meeting, Doering approved the upgrade, which cleared the way for the student to graduate.
Lukacs returns
Lukacs returned from leave in September and continued to challenge the decisions, but was rebuffed by various internal decision makers. On September 23, 2010, Lukacs filed an application for judicial review with the Court of Queen’s Bench of Manitoba requesting an injunction to block the university from granting a Ph.D to the students and various other remedies.
On October 6, 2010, Lukacs received a letter from Dr. David Barnard, President of the University of Manitoba, which stated he was being suspended for three months without pay due to: violating the “University’s policies on FIPPA and PHIA in your September 21 2010 submission to the Alumni Association; in your September 23 2010 Notice of Application filed in the Court of Queen’s Bench; and in your 27 September 2010 Affidavit filed in support of your Application”; for being “insubordinate in continuing to reference a student’s personal and personal health information contrary to the instructions given to you by your Dean; and for having “engaged in a pattern of behavior” which the “University considers to be harassment”.
The faculty association has filed a grievance over the suspension with dates scheduled for arbitration early next summer; additionally, Lukacs’ Application will be argued early next year with a hearing scheduled for January 20, 2011. On November 29, 2010, Lukacs was summoned for a meeting with Dr. Barnard and was told to shut down his website which was publishing materials about the case due to the university’s concerns that this was harassment of the student.
What can we learn from this situation?
Internal disputes can quickly devolve into nightmare scenarios where employees are pleading their case to the court of public opinion and onto the Internet to build support. With the rise of communications technology, organizations need to understand the need to guard their online reputation closely, engage in counter messaging, and pursue litigation if necessary.
Stories highly critical of the university’s handling of this matter have appeared in Maclean’s, the National Post, and various other publications. Lukacs seems to be receiving overwhelming support from the media, students, and academics around the world. This seems to be a situation where while the university may well win the various legal battles it may lose the larger war with Lukacs having framed the discourse surrounding the situation.
This case highlights the need within organizations to: strictly control access to and compartmentalize confidential information; ensure that employees receive extensive training about the implications arising from human rights codes and statutes governing privacy; have explicit policies governing privacy and human rights that address both substantive and procedural consideration; engage in proactive management of sensitive situations; ensure that managers develop well rounded conflict resolution skills; and respond to legitimate concerns about administrative power from employees.
Overall, as lawyers we need to provide proactive strategic advice when it comes to progressive discipline, but there is a need to remind clients to ensure internal policies, training, and decision making processes are reviewed and updated frequently to respond to wider developments in the law, technology, and society. Failing to do so will open the door to situations like the one described in this article.
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