Pattern of misconduct didn’t justify dismissal, but teacher’s dishonesty and accusations damaged the employment relationship beyond repair
Many occupations have an expected level of professional conduct expected, and certain ones have higher standards than others. Dishonesty and insubordination don’t usually fare well in terms of misconduct warranting dismissal. And sometimes, even if they don’t serve as just cause for dismissal, they might be enough to keep the employee from coming back to work.
An arbitrator has ruled that an Ontario teacher’s termination for professional misconduct was too heavy-handed but reinstatement wasn’t an option because the employment relationship was damaged beyond repair.
Lisa de Santis was an occasional teacher for the Toronto Catholic District School Board beginning in 1999. She worked daily assignments filling in for absent full-time teachers as well as long-term occasional assignments. She was qualified to teach French, so she was in demand to fill in for full-time French teachers.
In 2006, de Santis was terminated over her problem with punctuality as her frequent lateness put pressure on the school board who had to have other teachers fill in for her until she arrived. She and the teachers’ union reached an agreement with the school board where she was reinstated with the stipulation that she must, if possible, arrive at the school 15 minutes before classes started. She was also required to take a course in classroom management.
De Santis continued to work as an occasional teacher for a few years without any further issues. However, in January and February 2013 she accepted and then cancelled three shifts at a school named Blessed Sacrament. The principal of the school emailed de Santis and copied the school board’s HR department telling her about the importance of giving “serious consideration” before accepting an assignment and cancellations hurt the school’s ability to have a “smooth start” to the day.
Problems with punctuality
On the evening of April 2, 2013, de Santis accepted a shift at Blessed Sacrament for the following day. Since classes started at 8:30 a.m., she was expected there by 8:15 a.m. However, de Santis didn’t arrive until 8:38 a.m. The principal spoke to her about punctuality and de Santis said she wasn’t feeling well and didn’t get sick days. Later that day, the principal looked in on the classroom and saw that the students were loud and didn’t appear to be doing anything, while de Santis was looking at the school board’s website on the classroom computer. The principal took de Santis aside and told her she should be engaging with and supervising students, to which de Santis replied that the principal “needed to find a job” and she should stop bothering her. De Santis told the principal a few more times that day to stop bothering her and the principal requested that she be removed from the occasional teacher list for Blessed Sacrament.
The school board met with de Santis and a union representative to discuss the April 3 incidents, but de Santis reportedly acted aggressive and confrontational. It was decided she needed an improvement plan to help with her tardiness, but no further investigation was launched.
On Oct. 6, 2014, de Santis was assigned to teach a Grade 5 class at Santo Cristo school for the day. She was called shortly before 9 a.m. and said she should be there by 10 a.m. However, the principal emailed the scheduling office at 10:16 a.m. advising de Santis had not yet arrived, and a second email saying the same at 10:33 a.m. De Santis arrived shortly thereafter, but the principal asked her to call the scheduling office as she had missed most of the morning — the lunch period started at 11:15 a.m. De Santis was upset and blamed her tardiness on the subway and the fact she had been called late. She loudly ranted at the school secretary about a lack of work and how unjust it was to pay her only half a day for the assignment. The principal later heard her complaining in the staff room.
Later that day, the principal met with de Santis, who she said was “abrupt and confrontational.” She asked the scheduling office not to assign de Santis to Santo Cristo again. At a follow-up meeting in November, de Santis said if she was running late she would make a courtesy call to the principal. The principal said she would withdraw her request banning de Santis from working at the school and said she was welcome back, but de Santis refused.
Long-term assignment started well, then deteriorated
De Santis received a long-term assignment at Blessed Trinity school from October 2014 to June 2015, where she was filling in for a French teacher who had transferred. The school’s principal gave her a performance appraisal in December 2014 that marked her as exemplary in all categories and felt de Santis “worked hard.”
However, by the end of the school year in June 2015, the Blessed Trinity principal felt things had changed. De Santis had developed punctuality problems and often didn’t arrive in time to meet the students and take them to class. She often arrived at 8:30 and sometimes 8:40, and other teachers complained that she was late between classes as well. The principal stressed the importance of punctuality to de Santis, but de Santis usually said she had problems with public transit or the weather.
The principal found de Santis had other problems as well. She had an argument in the hallway with another teacher who delivered a testing preparation schedule, as she was upset she wasn’t going to administer the French testing. The other teacher told the principal de Santis hadn’t apologized, which was contrary to the principal’s efforts to foster a welcoming environment.
De Santis had a couple of incidents with Blessed Trinity students, including a student who objected to using the French version of his first name, which de Santis had been using in class. The student told the principal, who then asked de Santis to stop using the French version of the name, but she later heard de Santis continuing to use it. A second request followed and eventually de Santis stopped using the French name of the student.
The principal drafted an unflattering performance appraisal after the school year ended, but missed the deadline and didn’t submit it until the new school year started in September. When she met with de Santis, she refused to sign the appraisal. She later called the principal and yelled at her over the phone that she had been fired because of the bad report.
Tardiness for meetings final straw
One week later, on Sept. 11, de Santis had an interview for another long-term substitute gig. The interview was scheduled for 11:30 a.m., but, according to the school board, she didn’t arrive until 12:10 p.m. De Santis acknowledged she was late, but said it was because she was anxious about a recent reprimand from the Ontario College of Teachers relating to another school board where she had to take another course in classroom management. She also blamed subway delays and said she probably could have begun to get ready earlier.
De Santis tentatively rescheduled the interview for Sept. 14, but she was offered a daily assignment. She called to cancel 15 minutes before the interview’s scheduled time.
The school board terminated de Santis’ employment on Sept. 30, 2015, citing as reasons for dismissal: the failure to attend the two interviews and a late arrival at another school that month; her late arrival and behaviour at Santo Cristo school on Oct. 6, 2014; her failure to advise the school board about the reprimand from the College of Teachers; the several issues during her long-term assignment at Blessed Trinity; and breaching the 2006 settlement agreement. The board labelled all of these transgressions “professional misconduct.”
The teachers’ union grieved the dismissal, arguing some of the instances of misconduct didn’t deserve discipline and others should only warrant minor discipline since de Santis had 16 years of service with some good performance reviews.
The arbitrator called into question de Santis’ credibility when it came to her explanations. De Santis cited public transit problems for almost all of her lateness, but this didn’t ring true.
“When considering (de Santis’) transit problems, I note that (she) did not strike me as someone of low intelligence. She is an adult who has lived in Toronto for some time,” said the arbitrator. “Thus, she would understand the twists and turns associated with mass transit in a major city, and she should be capable of planning accordingly.”
De Santis also stated at the hearing that school board employees were dishonest and provided false evidence. The arbitrator found no reason why any of the school principals would exaggerate the incidents and, in fact, tried to smooth things over in meetings and offering second chances.
The arbitrator found the board had just cause to discipline de Santis for her lateness and behaviour at Santo Cristo, her misconduct during her long-term assignment at Blessed Trinity, and her lateness and behaviour on her April 2013 assignment at Blessed Sacrament. Her tardiness for the Sept. 11 interview and the shift later that month were minor on their own but played a part in the overall picture of her misconduct, and the late cancellation of the second interview wasn’t enough to provide just cause for discipline, said the arbitrator.
Conversely, the arbitrator also found that de Santis didn’t have any disciplinary issues following her reinstatement settlement in 2006 until 2013. That was a sufficient amount of time to remove the issues related to the settlement from factoring into her more recent misconduct, said the arbitrator. In addition, the reprimand from the Ontario College of Teachers was publicly available and the legislation governing the College didn’t require self-reporting of such issues, regardless of ethical considerations.
Considering de Santis’ various instances of professional misconduct, her years of service, and periods of time without discipline, the arbitrator found termination was excessive. However, the arbitrator also found de Santis’ denial of misconduct all along and during the hearing — including dishonest excuses and accusing school board members of lying — made the employment relationship untenable. As a result, the arbitrator ordered the union and the school board to negotiate payment in lieu of reinstatement.
For more information see:
• Toronto Catholic District School Board and OECTA (de Santis), Re, 2017 CarswellOnt 21178 (Ont. Arb.).
