Canadian Employment Law Today

Reinstatement eludes teacher despite successful grievance Pattern of misconduct didn't justify dismissal, but teacher's dishonesty and accusations damaged the employment relationship beyond repair BY JEFFREY R. SMITH A n arbitrator has ruled that an Ontario teacher's termination for professional misconduct was too heavy-handed but reinstatement wasn't an option because the employ- ment relationship was damaged be- yond repair. Lisa de Santis was an occasional teacher for the Toronto Catholic District School Board beginning in 1999. She worked daily assignments filling in for absent full- time teachers as well as long-term occa- sional assignments. She was qualified to teach French, so she was in demand to fill in for full-time French teachers. In 2006, de Santis was terminated over her problem with punctuality as her fre- quent lateness put pressure on the school board who had to have other teachers fill in for her until she arrived. She and the teach- ers' union reached an agreement with the school board where she was reinstated with the stipulation that she must, if possible, ar- rive at the school 15 minutes before classes started. She was also required to take a course in classroom management. De Santis continued to work as an occa - sional teacher for a few years without any further issues. However, in January and Feb- ruary 2013 she accepted and then cancelled three shifts at a school named Blessed Sac- rament. e principal of the school emailed de Santis and copied the school board's HR department telling her about the im- portance of giving "serious consideration" before accepting an assignment and can- cellations hurt the school's ability to have a "smooth start" to the day. Problems with punctuality On the evening of April 2, 2013, de San- tis accepted a shift at Blessed Sacrament for the following day. Since classes start- ed at 8:30 a.m., she was expected there by 8:15 a.m. However, de Santis didn't arrive until 8:38 a.m. e principal spoke to her about punctuality and de Santis said she wasn't feeling well and didn't get sick days. Later that day, the princi- pal looked in on the classroom and saw that the students were loud and didn't appear to be doing anything, while de Santis was looking at the school board's website on the classroom computer. e principal took de Santis aside and told her she should be engaging with and su- pervising students, to which de Santis replied that the principal "needed to find a job" and she should stop bothering her. De Santis told the principal a few more times that day to stop bothering her and the principal requested that she be re- moved from the occasional teacher list for Blessed Sacrament. e school board met with de Santis and a union representative to discuss the April 3 incidents, but de Santis reportedly acted ag- gressive and confrontational. It was decided she needed an improvement plan to help with her tardiness, but no further investiga- tion was launched. On Oct. 6, 2014, de Santis was assigned to teach a Grade 5 class at Santo Cristo school for the day. She was called shortly before 9 a.m. and said she should be there by 10 a.m. However, the principal emailed the scheduling office at 10:16 a.m. advising de Santis had not yet arrived, and a second email saying the same at 10:33 a.m. De San - tis arrived shortly thereafter, but the princi- pal asked her to call the scheduling office as she had missed most of the morning — the lunch period started at 11:15 a.m. De San- tis was upset and blamed her tardiness on the subway and the fact she had been called late. She loudly ranted at the school secre- tary about a lack of work and how unjust it was to pay her only half a day for the assign- ment. e principal later heard her com- plaining in the staff room. Later that day, the principal met with de Santis, who she said was "abrupt and con- frontational." She asked the scheduling of- fice not to assign de Santis to Santo Cristo again. At a follow-up meeting in November, de Santis said if she was running late she would make a courtesy call to the principal. e principal said she would withdraw her request banning de Santis from working at the school and said she was welcome back, but de Santis refused. Long-term assignment started well, then deteriorated De Santis received a long-term assign- ment at Blessed Trinity school from October 2014 to June 2015, where she was filling in for a French teacher who had transferred. e school's principal gave her a performance appraisal in De- cember 2014 that marked her as exem- plary in all categories and felt de Santis "worked hard." However, by the end of the school year in June 2015, the Blessed Trinity principal felt things had changed. De Santis had devel- oped punctuality problems and often didn't arrive in time to meet the students and take them to class. She often arrived at 8:30 and sometimes 8:40, and other teachers com - plained that she was late between classes as well. e principal stressed the importance of punctuality to de Santis, but de Santis usually said she had problems with public transit or the weather. e principal found de Santis had other problems as well. She had an argument in the hallway with another teacher who deliv - ered a testing preparation schedule, as she was upset she wasn't going to administer the French testing. e other teacher told the principal de Santis hadn't apologized, which was contrary to the principal's efforts to foster a welcoming environment. De Santis had a couple of incidents with Blessed Trinity students, including a stu - dent who objected to using the French ver- sion of his first name, which de Santis had been using in class. e student told the principal, who then asked de Santis to stop 4 Canadian HR Reporter, a Thomson Reuters business 2018 CASE IN POINT: WRONGFUL DISMISSAL MANY OCCUPATIONS have an expected level of professional conduct expected, and certain ones have higher standards than others. Dishonesty and insubordination don't usually fare well in terms of misconduct warranting dismissal. And sometimes, even if they don't serve as just cause for dismissal, they might be enough to keep the employee from coming back to work. BACKGROUND

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