In the realm of workplace investigations, few principles are as critical, and as often misunderstood, as proportionality. When an employer receives an investigation report with substantiated allegations, the next step is crucial: deciding whether to discipline, how to discipline, or whether alternative responses are more appropriate. The recent case involving the University of New Brunswick (UNB) and its former women’s volleyball coach, RS, offers a timely and instructive example of how proportionality plays out in practice, and what can go wrong when it’s overlooked.

1. What Is Proportionality?

At its core, proportionality is about ensuring that the employer’s response to misconduct is fair, measured, and appropriate to the severity of the behavior. It’s a balancing act between accountability and fairness, between protecting the workplace and respecting the rights of the employee.

Proportionality is not just a best practice; it’s a legal imperative. Courts and arbitrators routinely assess whether disciplinary actions are proportionate to the misconduct. A failure to apply proportionality can result in findings of wrongful dismissal, human rights violations, or breaches of collective agreements.

2. The UNB Volleyball Coach: A Cautionary Tale

In May 2023, six student-athletes at UNB filed formal complaints against their coach, RS, alleging aggressive and abusive behavior. A third-party investigation substantiated nine of thirty allegations, including incidents of yelling, profanity, and punitive coaching tactics. UNB terminated RS’s employment, citing violations of its harassment and discrimination policies.

However, in a September 2025 ruling, Justice TC of the New Brunswick Court of King’s Bench found that UNB’s decision to fire RS was disproportionate. While the court acknowledged that RS’s conduct warranted discipline, it emphasized that the university failed to follow principles of progressive discipline. There were no prior warnings, no documented coaching or performance management efforts, and no opportunity for RS to correct his behavior.

As a result, the court awarded RS over $50,000 in damages, including unpaid salary, pension contributions, and legal costs. The decision underscores a vital point: even when misconduct is substantiated, summary dismissal is not always justified.

3. Applying Proportionality

To avoid similar pitfalls, employers should adopt a structured approach to disciplinary decisions following an investigation and consider different factors. For example:

• The severity of the misconduct. The nature and gravity of the substantiated allegations. There may be minor and moderate behaviours that may not warrant termination, or severe misconduct with serious breaches of trust that may justify termination for cause.
• The contextual factors. There may be mitigating and aggravated factors to consider. In RS’s case, while his behavior was aggressive, the court noted that it was not egregious enough to warrant immediate dismissal, especially in the absence of prior disciplinary steps.
• A progressive discipline. Employers could and should follow a progressive discipline model, especially when dealing with non-criminal misconduct, starting with verbal, but documented, warnings, written warning, suspension or performance improvement plan, up to and including termination (if prior steps fail or misconduct escalates). This approach not only supports fairness but also strengthens the employer’s legal position if termination becomes necessary.
• Be consistent and use precedents. Disciplinary decisions should be consistent with past practices within the organization, collective agreements (if applicable), and organizational policies and codes of conduct. Inconsistent discipline can lead to claims of discrimination or unfair treatment. Employers should document their rationale and ensure that similar cases are treated similarly.
• Are there alternatives to discipline? Not all substantiated misconduct requires punishment. In some cases, especially where harm is minimal and the employee is willing to learn, restorative approaches may be more effective. For example, coaching and mentoring, mediation between parties, training or education, mental health support. These alternatives can promote accountability and healing without resorting to punitive measures.

4. Why Proportionality Matters?

Proportionality is not just about protecting employees; it’s about protecting the integrity of the workplace. Overly harsh discipline can lead to legal liability, damage morale, and erode trust. Conversely, under-disciplining can signal tolerance for harmful behavior and undermine safety.

The UNB case is a reminder that even well-intentioned employers must tread carefully. Investigations are not just about fact-finding; they’re about laying the groundwork for fair and defensible decisions. When employers skip steps, ignore context, or fail to document their reasoning, they risk turning a legitimate concern into a costly legal battle.

5. Final Thoughts

For decision-makers, proportionality should be a guiding principle in every post-investigation decision. It demands nuance, empathy, and a commitment to fairness. As the UNB case shows, even when misconduct is real, the response must be adequate.

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