Canadian Labour Reporter

March16, 2020

Canadian Labour Reporter is the trusted source of information for labour relations professionals. Published weekly, it features news, details on collective agreements and arbitration summaries to help you stay on top of the changing landscape.

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8 Canadian HR Reporter, a HAB Press business 2020 March 16, 2020 ARBITRATION AWARDS teacher and his wife drove X and Y to the tattoo parlour — though he didn't check with her parents — and waited while Y got the tattoo. He also ended up giving her $45 because she didn't have enough to pay for it. On another occasion, the teacher gave X money to buy a bus ticket to visit her boyfriend in London, Ont., which was a few hours away. However, X ended up purchasing a sex toy instead. The teacher often heard X and Y talking openly in class about their sexual exploits, of which the teacher didn't approve. At one point, he banned X from class because of it. One day he overheard the two girls talking about a threesome they had, so the teacher intervened and expressed concern about them talking about it in school and X's STD. He drew up a celibacy contract for them to sign in a notebook he kept on his desk. In June 2015, the school board learned about these incidents and suspended the teacher pending an investigation. The teacher was charged with sexual misconduct related to X, but he wasn't con- victed. In an Oct. 2015 investigative interview, the teacher didn't initially acknowledge the conversation with X about her STD or that he had known about it for a year, but then did so after conferring with union advisors. He also downplayed his role in the tattoo incident, saying the girls asked him at the last minute for a ride and he didn't remember helping to design it. When the teacher was initially asked about the money given to X, the teacher initially said he had given it to her to buy food. However, at the interview he said it was for the bus to Lon- don and he acknowledged that he hadn't contacted her parents about the trip. As for the threesome discus- sion with the two students, the teacher initially failed to reveal that the celibacy contract was his idea, but that soon came to light. The school board determined the teacher had failed to maintain proper boundaries with X and Y and he was vague and evasive, trying to downplay his misconduct and not showing remorse. It terminated his employment for violating "the trust parents and the public place on teachers" and failing to "understand the requirements and expectations of the teaching profession and the crucial roles a teacher plays in the development of children and in our duty to protect them from harm." The arbitrator agreed with the school board that the teacher "established improper relationships with two students and violated the trust placed in him as a teacher of young and at- risk students." His evasiveness showed that "he has not accepted responsibility in a manner that would lead one to have confidence that he would behave differently in the future," the arbitrator said in upholding the dismissal. Reference: Sudbury Catholic District School Board and Ontario English Catholic Teachers' Association. Barry Stephens —arbitrator. Dolores Barbini for employer. David Bloom for employee. March 6, 2019. • Albion Heights school lost a half-time clerical position, so a volunteer worked in the school office performing the duties of the eliminated position. • Bala Avenue Community School lost an educational assistant (EA) position and a clerical posi- tion. Parent volunteers assisted children with reading and other tasks in classrooms and one par- ent worked in the office one or two days per week performing some of the clerical tasks. • Portage Trail school lost an EA position. The school had volun- teers every day in classrooms and lunchrooms, with one particu- lar volunteer in a classroom on an "almost full-time basis" from September 2012 to January 2013. • Bedford Park Public School lost an EA position. Parent volunteers worked in the school office performing clerical tasks and helping teachers with photocopying and filing. • Gledhill Junior Public School lost a half-time EA position and parent volunteers were in class- rooms doing many tasks that the EA had done, such as super- vising students and organizing classrooms. The school had a longstanding practice of parents helping in classrooms. • RJ Lang Elementary and Middle School lost two EA positions and a half-time office assistant. A parent who was a lunchroom supervisor moved to the office to perform some of the office duties while student volunteers helped during the lunch hour answering phones and making photocopies. Other parents helped in classrooms. The union filed multiple griev- ances claiming the TDSB "recruit- ed and assigned unpaid volun- teers to do the work of the laid-off support staff in breach of the col- lective agreement." The arbitrator found that the volunteer at Albion Heights performed all the core functions of the eliminated clerical position in violation of the collective agreement. The arbitrator also found that none of the parent volunteers at Bala Avenue directly replaced the eliminated positions, as they could be considered "an enrich- ment of the language program" that was permitted. However, the volunteer working in the office es- sentially replaced the bargaining unit clerical position and was con- trary to the collective agreement, the arbitrator said. At Portage Trail school, the fact that volunteers worked every day meant that there was work for an employee — particularly for the volunteer who worked nearly full- time in a classroom for more than four months, said the arbitrator. However, the arbitrator also found that while volunteers in the Bedford Park office may have done individual tasks of the clerical position, there was no evidence they replaced the position. The tasks could relate to other parent activities and could be considered "other services" as allowed by the agreement, said the arbitrator. The same could be said for the parent volunteers in the Gledhill classrooms, according to the arbi- trator. They were doing what they had been doing before the cuts and there was no evidence they replaced the eliminated positions. Finally, the arbitrator deter- mined that student volunteers in the office at RJ Lang school had been part of leadership training for years and the parent volunteer had been performing certain of- fice duties for some time as well. There was insufficient evidence to link them with the eliminated po- sition, said the arbitrator. The arbitrator ruled that the TDSB violated the collective agreement with volunteers at three of the schools — Albion Heights, Bala Avenue, and Por- tage. Volunteers at the other three schools did not replace eliminated bargaining unit positions. Reference: CUPE, Local 4400, Unit C and Toronto District School Board. Elizabeth McIntyre — arbitrator. Stephen Flaherty, Donna Walrond, Kathleen Tate for employer. Ian McKellar, Anna Hutchinson, Rick Kuberski for union. March 25, 2019. Employer replaced positions, contrary to agreement < Eliminated pg. 1 < Improper pg. 1 Discussions of intimate subjects crossed boundaries

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