School board 'swept up in negative publicity' from distorted TikTok video
“[Employee] misconduct has to be viewed objectively and with consideration of both the seriousness of the misconduct and factors that suggest that employment can continue.”
So says Rich Appiah, principal of Appiah Law in Toronto, on whether employee misconduct warrants termination of employment or lesser discipline. Appiah’s words come after an arbitrator rescinded the discharge of an Ontario teacher who got into a verbal and physical altercation outside of work during work hours.
The 38-year-old worker was a teacher with the Toronto Catholic District School Board (TCDSB) since 2008.
On April 1, 2021, the worker was teaching virtually with an online class in the early afternoon with preparation time in the morning. Before her class, she went to a nearby Starbucks to get some coffee. At the time, face masks were required inside businesses due to the pandemic, although the worker did not wear one because of a medical condition.
The worker advised the Starbucks staff that she was exempt from the mask requirement, so they asked her to wait outside for her coffee. It was the first time she had been asked to wait outside, so she questioned the inconsistency of the rule and criticized pandemic regulations. However, she agreed to go outside.
Misconduct outside of work
When the worker went back inside to get her coffee, a 20-year-old woman made a comment to the worker about her not wearing a mask. This led to an argument that quickly escalated, including disparaging and vulgar comments by the worker about the woman’s young age. The other woman was also verbally aggressive, so staff intervened and asked the worker to leave.
As the worker left, she made a parting comment at the other woman, who followed her out. The woman slapped the worker’s coffee out of her hand and the worker pulled the woman to the ground. Starbucks employees came outside and separated them. The worker called the police, but no charges were laid.
The next day, a TikTok video of part of the altercation was posted online, depicting the worker as an anti-masker who had demanded to be served without a mask. The video stated that the other woman had stood up for the employees and the worker “assaulted her by pulling her hair and slamming her into concrete.” The post identified the worker and included a photo and contact information.
The video circulated widely and generated media coverage. When the TCDSB learned of the video, it suspended the worker with pay pending an investigation. A newspaper carried news of the suspension that included a quote from a TCDSB trustee saying that “we take anti-maskers very seriously.”
An investigator found that the worker’s behaviour was “inappropriate, unprofessional, and reflected poorly on herself, both of her schools, the TCDSB, and the teaching profession.”
The worker expressed regret that she didn’t just walk away and acknowledged that her conduct failed to live up to the standard expected of a teacher, promising that she wouldn’t do it again.
Employees who get in a fight outside the workplace can be disciplined if it’s connected to work and harms the employer’s interests, says a lawyer.
Termination of employment
On June 30, the TCDSB terminated the worker’s employment, citing a verbal altercation inside the Starbucks and a physical assault outside, which both happened “during the school day when you were required to carry out your duties as a teacher.” The termination letter stated that her conduct was a breach of her duties as a teacher and was just cause for dismissal.
The union grieved the dismissal, arguing that it was excessive, particularly since the worker had no other discipline on her 13-year record, and that the other woman incited it. The TCDSB maintained that the worker “demonstrated a significant departure from the professionalism and decorum one would have expected from a board teacher during working hours.”
The arbitrator found that the physical confrontation was “fleeting” and both participants played a role in the escalation. Noting that police didn’t file charges, the arbitrator found that worker should not be considered as the primary aggressor.
However, while the altercation may have involvede a “consensual fight,” the worker’s participation was troubling, particularly because it has been recognized that teachers have a high standard of conduct, the arbitrator said.
The arbitrator noted that, although the teacher was not physically at work when the altercation took place, it occurred during school hours when her “chief preoccupation ought to have been with her duties as a teacher.”
A Jesuit college in Quebec generated controversy when it didn’t renew the contract of a 73-year-old teacher after learning that she had appeared in erotic films 50 years earlier.
Misconduct during work hours
The timing of the altercation meant it wasn’t a cut-and-dried situation of off-duty misconduct, says Appiah.
“The altercation occurred at a time when [the worker] was scheduled for prep time - she may not have had any formal teaching duties at the time, but she was scheduled to be working,” he says. “I think that factored into the arbitrator’s consideration of whether or not this was off-duty conduct that wouldn't have been taken as seriously as it would on-duty conduct.”
The arbitrator noted that public exposure of such an incident involving a teacher and someone not much older than the students could damage the TCDSB’s reputation. In addition, the portrayal of the worker as an anti-masker in the video could harm the board’s reputation in the community, said the arbitrator.
However, the depiction in the video was exaggerated and the TCSDB fuelled it with the comment by a trustee to the media about anti-maskers, so the worker shouldn’t be penalized for its effect on the TCDSB’s reputation, the arbitrator said.
“The arbitrator found that it wasn't foreseeable that an anonymous third party would create a Tik Tok video and present a distorted and unfair view of the [worker] as a rabid anti-masker,” says Appiah. “So while the video itself did negatively impact the [TCDSB’s] reputation and it was incidental to the worker’s misconduct, it shouldn't have been seen as foreseeable.”
“I get the sense that the school board was swept up in the negative publicity that the [worker] and the board received as a result of the distorted TikTok video, which painted the board as employing rabid anti-maskers,” adds Appiah.
An arbitrator reinstated a worker with no disciplinary record and who showed remorse after he was fired for off-duty conduct involving a company vehicle and alcohol.
Worker expresses remorse
The arbitrator agreed with the union that it was a “momentary flare-up” without premeditation and it wasn’t a serious assault. In addition, some of the more extreme accusations from the TikTok video, such as hair-pulling and engaging in an anti-mask tirade in the Starbucks, were unproven, the arbitrator said.
Although the TCDSB characterized the incident as an assault against the other woman, this wasn’t accurate as both parties were aggressors, said the arbitrator. In addition, the worker recognized that her behaviour was inappropriate, increasing the likelihood that she would not repeat it.
“It was key to the arbitrator’s decision that both parties to the altercation provoked each other and the arbitrator was unable to conclude that the [worker] was responsible for instigating it,” says Appiah. “It was also important that the [worker] acknowledged that what she did was wrong and expressed regret.”
“I think key to any reinstatement finding is the worker’s expression of remorse and a finding that the remorse is genuine and sincere,” he adds.
The arbitrator determined that the TCDSB and the investigator “mistakenly accepted a view of the [worker’s] conduct” that was distorted by the TikTok video. Although the worker’s misconduct was serious, it did not warrant skipping progressive discipline, the arbitrator said.
The TCDSB was ordered to reinstate the worker with a one-month suspension serving as discipline for the incident.
“The key question in this case was whether the relationship between the board and the worker was so irreparably damaged that continued employment could not continue, and remorse is always a factor for consideration when assessing whether or not the relationship can continue,” says Appiah. “If an arbitrator or court finds that a dismissed employee is sincerely remorseful for their misconduct, it's more likely that the arbitrator or court will overturn a decision for summary dismissal.”
