The Grievor, a bus
driver/custodian, pleaded guilty to sexual offences involving minors some
twenty years earlier and was convicted. The events giving rise to the
conviction occurred prior to the Grievor commencing employment with the school
board. One of the terms of his sentence prohibited him from seeking or
maintaining employment that would put him in contact with children under the
age of sixteen for a four year period.
conviction, the Grievor’s employment was terminated by the school board. In
pursuing its grievance, the union argued that the Grievor should be retained in
employment and assigned duties which did not involve contact with students,
such as working the graveyard custodian shift.
The arbitrator was
called upon to assess the extent to which the school board was entitled to
impose discipline for events which occurred off duty and long ago. In this
regard, the employment setting was a key consideration. Citing earlier caselaw,
the arbitrator reasoned that non-teaching education sector employees are
employed in a position of trust and responsibility and that the public’s
ongoing confidence in such employees is of great significance.
concluded – without any direct evidence – that retaining the Grievor in
employment would be seen negatively by the public and, more importantly, the
parents of children in the school district. In weighing this against the
Grievor’s fifteen years of discipline-free employment, the arbitrator was
unable to conclude there was no risk of future harm to the students and
concluded, therefore, that the employment relationship could not be salvaged.
The grievance was