Forestry prof was ‘disruptive’ presence at college - judge
Rod Cumberland alleged he was fired for views on use of controversial pesticide, but court ruled his poor attitude sunk him at Maritime College of Forest Technology
A Maritime College of Forest Technology instructor was fired due to his toxic attitude on the job, not for his views on a pesticide used in the New Brunswick forestry industry, a judge ruled this week.
Court of King’s Bench Chief Justice Tracey DeWare issued a written decision Tuesday in the lawsuit brought by Rod Cumberland against the college.
He had sued for wrongful dismissal, arguing it was his opposition to the use of glyphosate as a pesticide in the forestry industry and alleging there were forces in the private sector that pushed for his ouster.
The college, during the trial held last fall, countered it was Cumberland’s poor behaviour at work and mistreatment of students and colleagues that led to his termination.
DeWare wrote the evidence revealed the reasons as outlined by the college administration were indeed the reason for Cumberland’s firing and not some sort of conspiracy by forestry industry insiders.
“Mr. Cumberland was terminated from his position with the college as a result of his attitude and behaviours which rendered his continued employment impossible,” the chief justice wrote.
“Mr. Cumberland was not dismissed as a result of his views on glyphosate. Mr. Cumberland’s termination was not engineered by J.D. Irving Ltd.”
College should warned Cumberland
However, DeWare also found the college wronged Cumberland by failing to give him warnings about how his behaviour was putting his job in peril, and as such, she found the forestry instructor was entitled to compensation in lieu of seven months’ notice.
Cumberland, a certified wildlife biologist who holds a bachelor degree in forestry science, was employed at the college for seven years, from June 2012 to June 2019.
During the trial, court heard Cumberland has a positive rapport with the first two executive directors of the college under whom he served - Robert Whitney and Gerald Redmond. In fact, they both testified as witnesses for the plaintiff at the trial.
DeWare noted the employment relationship took a turn in 2017 when Tim Marshall was appointed as the new executive director of the college, a decision that displeased Cumberland. Further conflict arose between them, she wrote, over a change in philosophy at the forestry school.
“The college had always operated as a forestry college with a somewhat militaristic approach. The college was often referred to as the ‘Ranger School,’” the chief justice wrote.
“Mr. Marshall wished to break down some of these more rigid practices and to create a more welcoming and inclusive atmosphere at the college.”
She noted further friction between the plaintiff and the new administration arose in 2018 when Cumberland didn’t get a newly created position. He felt the new academic chair position was handed to Gareth Davies instead of him because of a perceived friendship between Davies and Marshall, the court heard.
“The 2018-2019 academic year was extremely tumultuous. Mr. Davies struggled in his role as academic chair and had difficulties managing his relationship with Mr. Cumberland,” DeWare wrote.
“Mr. Davies received complaints directly from students concerning Mr. Cumberland’s conduct which he did not discuss with Mr. Cumberland as he found their interactions very stressful.”
Tense faculty meetings and more complaints from students about Cumberland led Marshall and Davies to decide in late 2018 that Cumberland had to go.
“However, they did not want to disrupt the school year and held off on the actual dismissal until June of 2019 following the conclusion of the academic calendar,” the chief justice noted.
Among the concerning behaviour and incidents the administrators identified on Cumberland’s part were his physical removal of students’ hats, undermining of presenters on the topic of vegetation management, changes to classroom clocks to serve his purposes, references to a J.D. Irving Ltd. employee as “Mr. Irving,” disrespect of students and of Davies, his immediate supervisor.
Testimony at trial indicated Cumberland had allegedly referred to a student as “faggy” when berating him.
However, Cumberland denied ever using that term, adding he had used the term “fruity,” which he meant to mean nutty or crazy, and that it was never directed at a specific student.
Marshall outlined these issues in a January 2019 email, DeWare noted, and the concerns were raised at an April 2019 meeting of the college’s board of governors.
During the trial, court heard that Cumberland would lock his classroom door when instruction began and wouldn’t admit students even when they contended they’d arrived on time.
There were disputes over student discipline, DeWare noted, with Cumberland wanting to take a stricter approach, contrary to what the new administration felt was necessary.
Other instructors also brought concerns to administrators over Cumberland’s behaviour during seminars offered by Forest NB in January 2019 that touched on herbicide use in forests. People described Cumberland’s attitude during those sessions as combative and disrespectful to industry players - and potentially harmful to the relationships between the college and forestry companies.
‘A poisonous atmosphere’
“... I accept that following Mr. Marshall’s appointment as executive director, Mr. Cumberland became a disruptive and destructive force within the college… creating a poisonous atmosphere for other employees,” the chief justice wrote in her decision.
DeWare wrote that while Cumberland’s attitude and actions on the job merited his dismissal, the problem was that Marshall and Davies never raised any of this with him before letting him go.
“All these issues, if properly brought to Mr. Cumberland’s attention, and if likely ignored by Mr. Cumberland, would have easily paved the way for a just-cause dismissal,” the chief justice wrote.
“However, Mr. Marshall and Mr. Davies did not take that approach and in so doing deprived Mr. Cumberland of the ability to curb his behaviour and address their concerns.”
DeWare added that she’s doubtful Cumberland would have corrected his workplace behaviour, but since he was never given the chance to do so, the college didn’t meet the burden to justify a firing for cause.
She found a seven-month notice period would have been appropriate, and in lieu of that, she awarded Cumberland $48,644.57, plus $6,700 in costs.
DeWare denied Cumberland’s request for moral, aggravated and punitive damages stemming from his allegations that he was fired over his views on glyphosate.
“In this case, the worst that can be said of the employer is that they ‘were sloppy’ in the manner they failed to address issues with Mr. Cumberland in the last several months of his employment,” she wrote.
“However, I can identify no conduct that would be considered as ‘egregious’ or in ‘bad faith.’”
Ottawa lawyer Paul Champ, who represented Cumberland at trial, said it’s a bit early to say if his client will want to pursue an appeal.
“Mr. Cumberland is taking some time to digest the decision right now,” he said.
While the court awarded Cumberland some severance in lieu of notice, Champ said, DeWare’s findings weren’t the result his client wanted to see.
“There is some level of vindication but he definitely doesn’t see it as the full victory he was hoping for,” the lawyer wrote in an email to the Fredericton Independent, noting some of the chief justice’s comments in the decision could be obstacles for Cumberland professionally.
“He has already experienced challenges finding new employment, including the college advising other employers that they shouldn’t hire him. But Rod’s principles are more important to him than money, and I am sure he wouldn’t have done anything differently.”
Cumberland’s dismissal sparked a public outcry and widespread support for the ousted instructor. Rallies were held in solidarity with Cumberland, who became a poster boy for people and groups opposed to the use of glyphosate as a pesticide in New Brunswick forests.
While it remains approved by Health Canada for use in that capacity, it’s been alleged glyphosate is a carcinogen, and many, including Cumberland, have contended it’s harmful to wildlife.
Redmond established a Facebook group - Friends of Rod Cumberland - to bring attention to his friend’s case. Comments made on the group were mentioned during testimony at the trial, and DeWare even referred to it in her decision.
Reaction on the Facebook group to the court decision has been strong, with allegations that the justice system is rigged and that J.D. Irving Ltd., as a powerful industry and economic player in the province, has been pulling the strings behind the scenes throughout the situation.
“[Cumberland] is very grateful for all the support he has received from former students, instructors and members of the community,” Champ said Wednesday.
Don MacPherson can be contacted at ftonindependent@gmail.com.
It seems all my favorite teachers eventually were forced from their positions for being "disruptive." That's because they were never there for a guaranteed income. They are passionately principled and, therefore, will not be silent. It's proof he's a genuine teacher, born to pursue and share truth and knowledge.
Having been in the courtroom for the 8 days of Cumberland's trial it is egregious how much evidence was presented that the judge ignored - including the insinuation Cumberland called students names (disproved in testimony) and that Cumberland's issues in the fall were not about Davies getting a job over him....but that Marshall's process was unfair and biased and that Cumberland had concerns about the ever changing policies that undermined he and other instructors. The majority of instructors met in May just before Cumberland was terminated to form a union - obviously the toxic environment was created by management if you read their letter. This seems far from over.