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Issue link: https://digital.hrreporter.com/i/1380404
own. This student wore an identi-
fication bracelet and the teacher's
supply binder had a safety plan
for the student from the previous
year. However, no one updated
the plan with new contacts for
the current year, discussed it with
the worker, or indicated that the
student was still a risk to leave
school property. Her teaching
partner only told her that the
student should be placed at the
front or the back of the line during
transitions.
On Sept. 14, 2016 — the work-
er's second week at the school —
her teaching partner was off sick
and an occasional teacher (OT)
was brought in. At the end of the
lunch recess, the worker, the OT
and an educational assistant lined
up the children and took atten-
dance before going back into the
classroom. The student in ques-
tion was put at the back of the line
and the OT situated herself near
the student, with the educational
assistant and her special-needs
student behind them.
The worker counted the
students after they entered the
classroom and realized that the
student in question was missing.
Another student said that "he
ran," so she ran outside. She found
the student with two women at a
crosswalk and returned him to
the school.
The worker deduced that the
student must have left the line
before he entered the classroom
while she was facing the door
counting students.
The worker was suspended
without pay for one day for
failing to adequately supervise
the student and failing to inform
the OT that the student was a
flight risk. She suggested several
changes including assigning the
student to a class without an
exterior door, installing an alarm
on the door, and using walkie-
talkies — the latter was part of
the previous year's safety plan
but hadn't been provided. She
also said she had become more
observant.
The teachers' union grieved
the worker's suspension, arguing
that the school board's failure to
update the safety plan or discuss
the student with the worker were
significant contributing factors to
the incident.
The arbitrator noted that
"maintaining proper supervision
of kindergarten-age children is
a fundamental element of the
DECE's (and the teacher's) role."
However, it had been established
in previous arbitration deci-
sions that "not every employee
mistake, failure or misadventure
deserves or requires a disci-
plinary response."
The arbitrator agreed that
the worker hadn't been formally
updated on the safety plan, but
based on what she already knew,
she should have realized he was a
risk and required more supervi-
sion. She did follow the practice of
placing the student at the back of
the line under the supervision of
the OT and once the worker real-
ized that the student was missing,
she took immediate action, the
arbitrator said.
The arbitrator also found
that the worker shouldn't be
held accountable for not prop-
erly informing the OT about the
student's risk, since the adminis-
tration didn't do so for herself. In
addition, she took it upon herself
to be extra vigilant and made
suggestions for improvements
afterwards, demonstrating that
she learned from the experience,
said the arbitrator.
"Taking responsibility for
something need not be synony-
mous with taking the blame, and
in this case I find that the [worker]
has done so in the more impor-
tant sense of the word," the arbi-
trator said in ordering the school
board to rescind the suspension.
Reference: Halton District School Board and ETFO. Eli Gedalof — arbitrator. John-Paul Alexandrowicz for
employer. Heather Ann McConnell for employee. May 12, 2021. 2021 CarswellOnt 6775
hours increased to a limited level,
a second wave in the fall led to
another lockdown. The hotel's
occupancy and average daily
room rates dropped, the event
hosting service was limited, and
the restaurant could only do take-
out service. The hotel continued
to operate, but at a much smaller
scale than normal.
The company decided to lay
off junior employees due to a
substantial reduction in the work
available, while senior employees
remained employed. Certain posi-
tions saw a drop in available work
to nothing, in which cases any
senior employees were reassigned.
Laid-off employees were able to
access government benefits such as
the Canada Emergency Response
Benefit (CERB).
The company did not provide
any severance pay to the laid-
off employees, as the B.C.
Employment Standards Act
(ESA) has an exception to that
obligation for employees who
are "employed under an employ-
ment contract that is impossible
to perform due to an unforesee-
able event or circumstance other
than receivership, action under
section 427 of the Bank Act
(Canada) or a proceeding under
an insolvency Act."
The union filed a grievance
against the layoffs. It acknowl-
edged that the pandemic restric-
tions were an unforeseeable event
or circumstance but it argued
that the employment contract of
each terminated employee wasn't
impossible to perform. The union
pointed to the fact that the hotel
continued to operate with reduced
staffing in all departments, which
was tied to a downturn in business.
In addition, the business wasn't
closed by public health restric-
tions. While there was less work
happening, it was still being done
by some employees and therefore
wasn't impossible to perform, the
union said.
The arbitrator noted that
the exception to the severance
pay requirement under the ESA
required two elements — it must
be impossible to perform the
employment contract and it must
be because of an unforeseeable
event or circumstance. There was
no doubt that the pandemic met
the definition of the latter, so the
issue was the ability to perform the
employment contract of the laid-
off workers, said the arbitrator.
The arbitrator referred to
past jurisprudence that estab-
lished that the ESA termination
and severance pay provisions are
meant to protect employees from
the economic impact of termina-
tion, so they should be interpreted
as much as possible to protect
employees.
The arbitrator found that,
although an essential feature of
an employment contract is the
exchange of work for wages and
a layoff can be due to a shortage
of work, such a layoff doesn't
mean an employment contract
is impossible to perform. In this
case, the company continued
to employ people in its opera-
tions during the pandemic and its
restrictions, meaning the employ-
ment contracts were possible to
perform and the ESA exception to
severance pay didn't apply.
"In the present case, a series of
regulatory constraints collapsed
demand for the employer's
offerings. Those events led to a
shortage of available work," said
the arbitrator in dismissing the
grievance. "Nonetheless, the
employer retained its capacity to
employ persons in the continued
operation of its business."
Reference: Burnaby Crescent and UNITE-HERE, Local 40. Ken Saunders — arbitrator. Keith Murray for employer.
Suzanna Allevato-Quail for employee. May 12, 2021. 2020 CarswellBC 1493
Less business didn't make employment 'impossible'
Actions performed showed responsibility: arbitrator