Employee was having difficulties performing job duties but wanted transfer to another school
This instalment of You Make the Call features an educational assistant who had difficulty fulfilling her duties.
Abi Johnson was an educational assistant (EA) at a Calgary school. She first joined the school as a lunch supervisor before becoming an EA in the 2009-2010 school year. Her main duty was to provide support over the course of each school day for a student with Down’s Syndrome. At the start of her assignment, the student’s needs and the school’s expectations were outlined for Johnson.
In December 2009, Johnson allowed the student to go into the washroom by herself, and the student crawled into a stall being used by another student, frightening her. The next month, the student was seen outside the school without Johnson at the end of the school day. The principal explained that Johnson had failed to meet expectations. Though Johnson said she always waited for students outside the washroom and the student had dashed away in the second incident while Johnson got her coat, she received a letter of reprimand. The principal noted that she had also told Johnson on other occasions to keep the student close.
In February 2010, the principal met with Johnson, an HR advisor and a union representative to discuss expectations and offer support. Johnson claimed she was working hard to meet changing expectations and demands. However, later in the month, she was suspended for two days without pay after the student had been disruptive and Johnson was unable to control her. The school indicated it was concerned for the student’s safety and further performance issues could lead to more discipline.
Soon after the suspension, Johnson went on medical leave for four months and the student’s work, behaviour and independence improved with another EA. When Johnson returned, there were problems with the student again.
For the following school year, beginning in September 2010, Johnson was offered reduced hours due to an adjustment of resources for EAs. Johnson declined, triggering a transfer clause under the collective agreement. The principal looked for a placement that matched Johnson’s skill set. However, after Johnson continued to have difficulty with her duties, it became clear to the principal that Johnson would have difficulty in another EA position.
Johnson said she only wanted to be an EA, so the principal didn’t canvass for other possible positions with the school board. Since Johnson refused to accept reduced hours, the school terminated her employment. The union argued the collective agreement required more searching for an alternative position.
You Make the Call
Should the school have made more of an effort to find another position before letting the EA go?
OR
Did the school have just cause to dismiss her?
If you said the school should have made more of an effort to find another position, you’re right. The arbitrator found that the level of job performance was clearly defined and agreed that it became evident that Johnson simply did not have the skill set to be an EA.
In addition, the arbitrator found that Johnson did not have “a crystallized right” to transfer to an EA position at another school. The school board, not the school, was the employer, and if it was determined she couldn’t do the job of an EA at one school, she wouldn’t be able to do it at another school.
However, though the principal had reason to believe Johnson only wanted an EA position, the arbitrator found she still should have looked for other positions that might have been available. Though Johnson was rightfully removed from her EA position, the school board was required to make reasonable efforts to find another position. The school board was ordered to make such efforts as soon as possible.
