Teacher Awarded $20K in Damages for Harassment by Principal and Board Staff

Janvier 2013 | Dirk L. Van de Kamer, Gillian Tuck Kutarna

( Disponible en anglais seulement )

A long service teacher who was given a home
assignment and disciplined as a result of a variety of concerns, was found to have
suffered harassment within the meaning of the Ontario Human Rights Code (the ”Code”) and awarded $20,000 in mental
distress damages.

After teaching at the same school for
approximately three decades without incident (but with ongoing disability
accommodation) a variety of concerns developed relating to the extent of the
teacher’s disability, her teaching ability and other issues, including the
state of her classroom.  When two parents
brought forward complaints, later in the school year, that the teacher had
mistreated their children, the teacher was placed on home assignment with
pay.  The Employer purported to do so as
a non-disciplinary measure, pending investigation.

The teacher remained on home assignment for
the balance of the school year, but was invited to return in September.

In response to the Employer’s actions, the
Union filed a grievance on behalf of the teacher alleging discipline without
cause and harassment in violation of both the collective agreement and the
Code. The hearing spanned some two and one half years and resulted in an award
highly critical of the manner in which the Board treated the teacher.

Despite some evidence to the contrary, the
arbitrator found the teacher to have had no proven deficiencies in her teaching
abilities. The arbitrator also found that the letters issued to the teacher,
purportedly in a non-disciplinary manner, were lacking cause, disciplinary in
nature, punitive in effect, excessive in measure, and evidence of animus
against the teacher.  The Principal had
stated in the letter that the parent’s observations raised concerns about her
“well-being and fitness”.

The arbitrator was highly critical of the
Board accepting as fact the allegations made by children whose parents had
brought forward complaints relating to the teacher’s conduct. The arbitrator
found that the investigation was flawed and unreliable, as it apparently
consisted solely of speaking to three elementary school students, with no one
else present, and the teacher was not interviewed or told what the students had
alleged.

The arbitrator concluded that, in sending
the teacher home for a protracted period, the Board had acted without
justification and its conduct amounted to an act of harassment within the
meaning of the Code; that is, “a course of vexatious comment or conduct which
was known or ought reasonably to be known to be unwelcome”.  In particular, the arbitrator found the
teacher to have been harassed on the basis of “disability”.

The arbitrator declared the Board to have
violated both the collective agreement and the Code in its treatment of the
teacher and ordered all disciplinary letters expunged, as well as compensation
for any loss or earnings and benefits, including lost sick days.  The arbitrator also ordered the Board to pay
$20,000 in general damages to the teacher as a result of mental distress which
the arbitrator believed the teacher had suffered.  The arbitrator declined to award punitive
damages.

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