Are there special considerations that apply to teachers when assessing whether termination is an appropriate penalty? A recent ruling of the Ontario Divisional Court suggests there are. The case involved a secondary school teacher who was terminated in 1991 by the North York Board of Education on the grounds that he had sexually harassed a student and engaged in unprofessional conduct with other students.
His dismissal was precipitated by a written statement submitted by J.S., a 19 year-old female student in the teacher’s English classes. She alleged that over a two-month period, the teacher had engaged in a course of inappropriate conduct towards her. According to J.S., the teacher had pestered her for pictures of her in a bathing suit, commented on her figure, asked her intimate questions about her sexual experiences and written her a long letter proposing that they start a relationship after she graduated. She further alleged that he drew attention to her breasts in class and, during a class discussion he had initiated about oral sex, asked her whether she believed in performing oral sex on men.
The teacher denied the allegations, and asserted that he only wanted to help J.S. achieve her full potential. He acknowledged that much profanity could be heard in their interactions, but that the setting was good-natured and harmless. He denied questioning J.S. about her sex life in class, and claimed that talking openly about sex in his classes was mandated by the course requirements and not at all improper. His letter, since destroyed, had been written only in friendship and in the interest of persuading her to go on to university. He admitted, however, that he had become “infatuated” with J.S. while she was his student.
ARBITRATOR: TERMINATION A REASONABLE DISCIPLINARY RESPONSE
The issue before the board of arbitration chaired by Gail Brent was whether termination was the appropriate penalty. After some 40 days of hearings in which the main issues revolved around the credibility of witnesses, the majority sustained the termination. The board found that, while some evidence tendered by student witnesses against the teacher was likely exaggerated, it was for the most part credible, while the teacher was not credible regarding the most damaging allegations against him.
The board found that the teacher had made sexist remarks to J.S. and queried her about her sexual experiences in front of his class. It also found that he had initiated a class room discussion about oral sex which centred around the issue of women’s responsibility to provide sexual pleasure to males. The board stated that
“when dealing with a course of conduct involving students and teachers arbitrators are aware that they are dealing with an authority relationship which places the teacher in a position of trust and responsibility. The abuse of that trust and responsibility is invariably viewed as a serious act of misconduct.”
Even apart from his infatuation with J.S., the board concluded, the teacher had acted in a manner that could be seen either as an abuse of his authority over his students, or as constituting sexual harassment.
The board noted that the teacher, who had 25 years of experience, no disciplinary record, and worked in a “rough” school, was no “monster”. However, it also expressed grave doubts about his rehabilitative potential, given that he seemed to believe that he had done nothing wrong. Therefore, citing the high degree of public trust that is placed in teachers, the board held that the employer had acted reasonably in terminating the teacher, rather than imposing a lesser form of discipline.
DIVISIONAL COURT: HIGHER STANDARD EXPECTED OF TEACHERS
In the decision, Stanwick v. North York Board of Education (December 3, 1997), the Divisional Court dismissed the teacher’s application for judicial review of the arbitration award. In upholding the termination, the court referred to support in the case law for the proposition that teachers are to be held to a higher standard than other employees:
“In Pearce v. The Lakehead Board of Education …, Judge Kinsman said: The [Education Act], properly understood, does not require teachers to be saints; it does, however, indicate the need for a higher standard of conduct than that required of other employees.”
The court relied also on the decision of the Supreme Court of Canada in Board of Education for the City of Toronto v. Ontario Secondary School Teachers’ Federation (February 27, 1997) in stressing the special considerations that apply to assessing the appropriateness of a penalty imposed on a teacher:
“[I]t is essential that arbitrators recognize the sensitivity of the educational setting and ensure that a person who is clearly incapable of adequately fulfilling the duties of a teacher both inside and outside the classroom is not returned to the classroom. Both the vulnerability of students and the need for public confidence in the education system demand such caution.”
The element of public confidence, and teachers’ authority over a vulnerable segment of the population, means that arbitrators will be less likely to substitute their judgment for that of employers in assessing the appropriate penalty. In this case, the arbitration board explicitly observed that termination was not the only penalty that could have reasonably been imposed on the teacher. However, it did not feel it could interfere with the decision to terminate, even though there were several factors which could have been relied on to mitigate the penalty.
For further information on this subject, please contact Lynn Harnden at (613) 563-7660, Extension 226.