Canadian Employment Law Today

October 2, 2013 More than slap on wrist for educational assistant THIS EDITION of You Make the Call features an educational assistant who was fired after it was reported she slapped a special needs student. The 56-year-old educational assistant worked for the Northeastern Catholic District School Board at a junior elementary school in Kirkland Lake, Ont. In 13 years with the school board, she had no discipline on her record. On May 4, 2010, the assistant was on the school playground during lunch hour supervising two special needs children. When the bell rang, she brought the children to the door, holding the hand of one Published biweekly 22 times a year Subscription rate: $299 per year Customer Service Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5082 (Toronto) (877) 750-9041 (outside Toronto) E-mail: Carswell.customerrelations@ thomsonreuters.com Website: www.employmentlawtoday.com Thomson Reuters Canada Ltd. 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We acknowledge the financial support of the Government of Canada, through the Publications Assistance Program (PAP), toward our mailing costs. GST #897176350 12 the custodian's report had merit and the assistant didn't suggest she slapped her own hand instead of the child's cheek. The assistant appealed her conviction and a new trial in April 2012 resulted in an acquittal. How would you handle this case? Read the facts and see if the judge agrees of the children who was autistic and six years old. When they arrived at the door, the employee had a small argument with a co-worker — who worked as a custodian and lunch aide — on whether older children should push younger students on the swings. There had been some debate after a younger student had been injured on the swings. While the employees were speaking, the autistic child bit the assistant on the right hand. According to the assistant, she bent toward the child, slapped her own hand to get the child's attention and said "No biting." However, the custodian believed she saw her slap the child on the cheek. Inside the school, the assistant handed the child over to the school principal and said she was tired of being bitten. Soon after, the custodian reported that the assistant had slapped the child in the face. The Children's Aid Society (CAS) was contacted, who in turn called the police. After interviewing the custodian, the police decided to charge the educational assistant with assault, though they didn't interview her. The assistant was upset and said she didn't do anything. In September 2010, another lunch aide provided a written statement saying she saw the bite and the assistant hit her own hand. The trial proceeded in November — without the other lunch aide testifying — and the assistant was convicted of assault. The school board completed its own investigation, during which it interviewed the assistant — who said she didn't intend to slap the child and "I don't believe I did," though she suggested she may have inadvertently made contact with the child's hand or wrist. The school board dismissed the assistant on Nov. 29, finding You make the call ✓ ❑ Did the slapping incident give just cause for dismissal? OR ✓ ❑ Was there insufficient cause for dismissal? IF YOU SAID the school board did not have just cause for dismissal, you're right. The recollections of the other lunch aide and the assistant were more specific than the custodian's. In addition, the arbitrator found it was likely the custodian's view was partly obstructed when the assistant turned and bent towards the child. "While (the custodian) testified with conviction I have concerns about the accuracy of some of her evidence, especially whether she actually saw a slap on the face, or merely heard a slap and assumed it was on the face," said the arbitrator. The arbitrator noted the assistant had been employed with the board for 13 years without any problems and had a longer career before that working with students and adults, with no suggestion of any similar incidents. The arbitrator also found the assistant consistently denied slapping the child's face, throughout the employer's investigation and interview, as well as her trials. The arbitrator found the assistant's denial had merit, particularly as it was supported by the other lunch aide's account. As a result, there was no misconduct and the school board had no cause for dismissal. The school board was ordered to reinstate the assistant with compensation for lost salary and benefits. See Northeastern Catholic District School Board and CUPE, Local 4681 (Sylvester), Re, 2013 CarswellOnt 11490 (Ont. Arb. Bd.). Published by Canadian HR Reporter, a Thomson Reuters business 2013 CELT

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