Canadian Employment Law Today

February 14, 2018

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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using the French version of the name, but she later heard de Santis continuing to use it. A second request followed and eventually de Santis stopped using the French name of the student. e principal drafted an unflattering per - formance appraisal after the school year ended, but missed the deadline and didn't submit it until the new school year started in September. When she met with de Santis, she refused to sign the appraisal. She later called the principal and yelled at her over the phone that she had been fired because of the bad report. Tardiness for meetings final straw One week later, on Sept. 11, de Santis had an interview for another long-term substitute gig. e interview was sched- uled for 11:30 a.m., but, according to the school board, she didn't arrive until 12:10 p.m. De Santis acknowledged she was late, but said it was because she was anx- ious about a recent reprimand from the Ontario College of Teachers relating to another school board where she had to take another course in classroom man- agement. She also blamed subway delays and said she probably could have begun to get ready earlier. De Santis tentatively rescheduled the inter- view for Sept. 14, but she was offered a daily assignment. She called to cancel 15 minutes before the interview's scheduled time. e school board terminated de Santis' employment on Sept. 30, 2015, citing as rea - sons for dismissal: the failure to attend the two interviews and a late arrival at another school that month; her late arrival and be- haviour at Santo Cristo school on Oct. 6, 2014; her failure to advise the school board about the reprimand from the College of Teachers; the several issues during her long- term assignment at Blessed Trinity; and breaching the 2006 settlement agreement. e board labelled all of these transgres - sions "professional misconduct." e teachers' union grieved the dismissal, arguing some of the instances of misconduct didn't deserve discipline and others should only warrant minor discipline since de San - tis had 16 years of service with some good performance reviews. e arbitrator called into question de Santis' credibility when it came to her expla - nations. De Santis cited public transit prob- lems for almost all of her lateness, but this didn't ring true. "When considering (de Santis') transit problems, I note that (she) did not strike me as someone of low intelligence. She is an adult who has lived in Toronto for some time," said the arbitrator. "us, she would understand the twists and turns associated with mass transit in a major city, and she should be capable of planning accordingly." De Santis also stated at the hearing that school board employees were dishonest and provided false evidence. e arbitrator found no reason why any of the school prin - cipals would exaggerate the incidents and, in fact, tried to smooth things over in meetings and offering second chances. e arbitrator found the board had just cause to discipline de Santis for her lateness and behaviour at Santo Cristo, her miscon - duct during her long-term assignment at Blessed Trinity, and her lateness and behav- iour on her April 2013 assignment at Blessed Sacrament. Her tardiness for the Sept. 11 in- terview and the shift later that month were minor on their own but played a part in the overall picture of her misconduct, and the late cancellation of the second interview wasn't enough to provide just cause for dis - cipline, said the arbitrator. Conversely, the arbitrator also found that de Santis didn't have any disciplinary is- sues following her reinstatement settlement in 2006 until 2013. at was a sufficient amount of time to remove the issues related to the settlement from factoring into her more recent misconduct, said the arbitrator. In addition, the reprimand from the Ontario College of Teachers was publicly available and the legislation governing the College didn't require self-reporting of such issues, regardless of ethical considerations. Considering de Santis' various instances of professional misconduct, her years of service, and periods of time without dis - cipline, the arbitrator found termination was excessive. However, the arbitrator also found de Santis' denial of misconduct all along and during the hearing — includ - ing dishonest excuses and accusing school board members of lying — made the em- ployment relationship untenable. As a re- sult, the arbitrator ordered the union and the school board to negotiate payment in lieu of reinstatement. For more information see: • Toronto Catholic District School Board and OECTA (de Santis), Re, 2017 Carswel- lOnt 21178 (Ont. Arb.). Canadian HR Reporter, a Thomson Reuters business 2018 February 14, 2018 | Canadian Employment Law Today CREDIT: MAGLARA/SHUTTERSTOCK Teacher consistently blamed public transit for frequent tardiness ABOUT THE AUTHOR JEFFREY R. SMITH Jeffrey R. Smith is the editor of Canadian Employment Law Today. He can be reached at, or visit for more information.

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