Author:
Global | Publication | September 2018
Recently, two arbitral decisions confirmed dismissals of employees in the school system. While the context of each case is different, in both cases the dismissals were maintained, and certain guiding principles can be retained.
In the first case[1], a teacher who was on the school board’s availability list was called to substitute for a 4th grade teacher who was retiring. A few months after she started, she was suspended pending an investigation. Her employment contract was subsequently terminated on the grounds of negligence, insubordination, misconduct and immorality.
She was accused, among other things, of:
The take-away:
First, according to the union, there was a lack of written notes on the principal faults alleged against the teacher, and, in the past, disciplinary measures taken against teachers for inappropriate physical interventions with students had not been as strict. Therefore, it is encouraging to see that these obstacles did not prevent the arbitrator from siding with the employer and that he reaffirmed that the days of using physical force are long gone.
A witness for the union testified that in the past, for example in the 90s, physically disciplining students was tolerated. To that, the arbitrator replied “[translation] Since then society has evolved towards a new vision of what classroom discipline should be. If […] physical interventions were, to a certain extent, accepted two decades ago, today there is zero tolerance in this regard.” (our emphasis)
Regarding the other allegations, the arbitrator noted that:
In addition to concluding that the teacher had lied during the investigation and during her testimony before him, the arbitrator justified his decision by explaining that teachers are role models for young people and their behaviour must consequently be irreproachable. They must be held to higher standards than other employees in the school system or employees in another sector who may have committed a similar fault.
At first glance, this case may seem more classic[2]: an electrician working for a school board was suspended pending an investigation and subsequently dismissed for time theft.
Interesting fact: a school board representative was contacted several times by an outraged citizen to let him know one of its trucks was often parked in a residential area. The truck in question was used by the complainant and the residential area was where this same complainant lived.
With this information in hand, the school board representative went twice to the premises specified by the citizen and confirmed that the truck was in fact in the residential area instead of at the school board sites where the complainant should have been working.
A firm was later hired to shadow and conduct surveillance of the complainant. The results were clear: the complainant went home several times a day during his working hours, in addition to frequently seeing to personal matters, again during his working hours.
A decision was made to suspend him pending an investigation. He was subsequently dismissed for loss of trust resulting from the extensive time he had stolen over a long time.
The take-away:
The arbitrator accepted the evidence obtained through the surveillance even though the context that led to it was particular. Rather than deciding to have the complainant followed based on information from a third party or any other evidence that could have been brought to his attention, the school board representative verified the citizen’s allegations himself before having the complainant followed.
The arbitrator wrote that this approach led to “[translation] objective facts that show serious misconduct on the part of the complainant that could interfere with the smooth running of the organization and could seriously put his honesty in question.”
Furthermore, the complainant’s autonomy in performing his duties is such that his employer must trust him. His behaviour, revealed during the surveillance, was unacceptable and his explanations, which kept changing, were not reassuring for the employer.
Having a dismissal confirmed by an arbitration board is sometimes a difficult exercise, and can be even more difficult in the education sector. However, these two recent cases, led by Norton Rose Fulbright, confirm that not respecting certain duties and responsibilities could have negative repercussions and there are no exceptions.
[1] Syndicat de l'enseignement de la Haute-Yamaska and Commission scolaire du Val-des-Cerfs, arbitrator André G. Lavoie, 2018 QCTA 412
[2] Syndicat des employées et employés de soutien de la Commission scolaire de la Capitale (SCFP section locale 1296) and Commission scolaire de la Capitale, 5370 20 9313, arbitrator Robert L. Rivest
Publication
The US Supreme Court has ruled that a “pure omission” under Item 303 of Securities and Exchange Commission Regulation S–K cannot give rise to a private action for securities fraud under Section 10(b) and Rule 10b-5(b) of the Securities Exchange Act of 1934.
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