An exhibitionist teacher, a foul-languaged childcare worker and a lustful caretaker are three more cases of employees getting away with bad behaviour.
In my opinion, the phrase “fuck off” is just a forceful and intense way to say “leave me alone” or “go away”. On September 12, 1996, I find that Mrs. Legere used the phrase in the sense of saying forcefully and intensely … “leave me alone”.Legere v Ymca-Ywca Of Saint John (NBQB, 1997) at para 31
This article continues this column’s series identifying cases of egregious behaviour in Canadian workplaces that arbitrators and judges ultimately excused. It starts with the employer firing the employee. The employee objects, and the arbitrator or judge agrees with the employee. The employee returns to work, often reinstated with back pay. In non-unionized cases, the judge or arbitrator usually orders the employer to pay damages to the employee for wrongful dismissal and legal costs.
This installment of head-scratching outcomes in dismissal-for-cause cases comes from our education system. Teachers, as professionals, are positive role models held to a high degree of moral propriety in the community. The Supreme Court of Canada confirmed this in its 1997 Toronto Board of Education decision. Other support staff working with school-aged children should be held to similar standards at work.
After reading these cases from Nova Scotia and New Brunswick, one asks, “why does the law excuse this behaviour and leave these employees working with children in schools?”
In the fall of 2007, Peter Speight, a teacher in Nova Scotia, on three occasions stopped his car and hailed a woman on the sidewalk. He would then masturbate in front of her when she came to the driver’s window. He pleaded guilty to the crime of public indecency and was sentenced to a conditional discharge.
Speight’s employer school board suspended him when he was charged. They then dismissed him with cause when he was convicted. Speight appealed the firing to an arbitration appeal board under Nova Scotia’s Education Act.
After an eight-day hearing, the arbitrator concluded the school board should not have terminated Speight. The arbitrator reduced the discipline to a one-year suspension and reinstatement. He reasoned Speight was “a teacher with considerable ability and excellent promise.” Speight underwent treatment with a psychologist who considered him rehabilitated with very little risk of re-offending. Speight’s relationship with the school was not irreparably damaged.
The school board appealed the arbitral decision to the Nova Scotia Supreme Court, which ruled more than five years after Speight’s crime. It upheld Speight’s reinstatement. In South Shore Regional School Board v Speight, the judge said:
Speight’s qualities as a teacher, and the other positive findings about him had to be considered in the effort to make a balanced assessment toward a proportionate penalty.See para 97.
For four years, Violet Legere worked for the YMCA-YWCA of Saint John in a school offering after-school programs for children. On September 12, 1996, she was off duty and shopping in a local grocery store. There she ran into Debbie Stubbs, a co-worker.
Stubbs greeted Legere with “Hi Vi”. Legere answered with “you fuck right off” as she walked by. Stubbs’ four-year-old daughter heard this response. Of her response, Legere said, “I hear it all the time from different people.” She refused to attend a meeting with management and Stubbs. The next day, the YMCA-YWCA fired her for “inappropriate behaviour”. The employer’s staff Policies and Procedure Manual stated:
The following behaviour will result in immediate dismissal: …
Use of improper or inappropriate language in front of children at any time.
This was not the first time Legere used inappropriate language in front of children. A few years earlier, Legere said “Oh shit” when her toe hit a door at work. When the lifeguard asked her if she was okay, she replied with “who the hell cares?” in front of children and other staff.
Legere challenged this dismissal. The judge of the New Brunswick Court of Queen’s Bench looked into the meaning of “fuck off.” He said:
Although some people might think Mrs. Legere’s language was “improper or inappropriate”, to give credit where credit is due I note that Mrs. Legere did not add to that rebuke any word of personal insult directed at Mrs. Stubbs. A famous example of intensifying a rebuke with a demeaning personal insult is “Get thee behind me, Satan”. The Bible, Matthew 16:23.
The judge did not consider the effect of this language in front of children and how it impacted the employer. He went on to say the staff policies and procedures do not apply to behaviour outside of the workplace. He thought Legere was merely exercising her freedom of expression. The behaviour might be “improper or inappropriate” but not enough to justify summary termination. The judge awarded Legere compensation and costs.
Teachers and after-school program workers are not the only school employees who are in regular contact with children. In the 2011 case of Cape Breton-Victoria Regional School Board v Canadian Union of Public Employees, Local 5050, a school caretaker was in a sexual relationship with a 15-year-old girl. She attended a different school from the one in which he worked. The caretaker was in his mid-forties and married with four children. The sex started in a horse barn, happened outside of work hours and not on school premises. At this time, the age of consent in the Criminal Code was fourteen so the caretaker had not committed a crime. [Parliament later changed the age of consent to sixteen with some exceptions.]
The school board fired the caretaker on the basis that this behaviour breached his duty of trust to all students within the board’s jurisdiction. The caretaker appealed the decision to an arbitrator who found no ground for discipline for the sexual conduct. While many people may view the sexual misconduct as reprehensible, it was consensual and occurred offsite and outside of school hours. As well, the two participants were not at the same school, and there was no connection between the conduct and the workplace. Other issues of dishonesty and use of board property called for a three-month suspension prior to the reinstatement taking effect.
The school board appealed the reinstatement. Both the Nova Scotia Supreme Court and the Court of Appeal dismissed the Board’s appeals. They agreed the reinstatement was reasonable and the caretaker’s behaviour did not unduly harm the school board.
These three cases from eastern Canada suggest that where bad conduct of teachers and other school workers occurs outside of work, the employer has a clear burden to show harm to the school board’s reputation. And this harm must outweigh the worker’s privacy interests. Whether off-duty conduct should attract discipline is known as the Millhaven test which dates back to 1967.
The information in this article was correct at time of publishing. The law may have changed since then. The views expressed in this article are those of the author and do not necessarily reflect the views of LawNow or the Centre for Public Legal Education Alberta.
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