Arbitrator found caretaker’s off-duty conduct was unrelated to his job; courts upheld decision as reasonable
School scandal or none of board’s concern?
There is a heightened level of trust that school boards must have in their employees due to the presence of children and the learning environment. But how far does that trust have to carry? Should the professionalism of an employee while on the job outweigh concerning behaviour in his private life?
A Nova Scotia school board faced these questions when it learned an adult caretaker had a sexual relationship with a 15 year old girl who attended a school within its jurisdiction. Though they met and carried out their affair away from any school board property, the board felt this kind of behaviour from an employee damaged its trust in him and could potentially scandalize the board. However, after a legal battle through arbitration and two court levels, the board found out its options weren’t as cut-and-dried as it thought.
A Nova Scotia school caretaker who was fired for having sexual relations with a teenage girl and reinstated by an arbitrator has had his job confirmed by the Nova Scotia Court of Appeal.
The employee was a caretaker at several schools run by the Cape Breton-Victoria Regional School Board in Nova Scotia. He had been employed with the school board for 20 years without any disciplinary problems until the school board learned he had a consensual sexual relationship with a 15-year-old girl who was a student in the district.
The caretaker, who was in his forties and married with children, had met the girl at a horse barn outside of his work hours and off school property. At the time, she was above the age of consent in Nova Scotia and the caretaker didn’t work at the school attended by the girl, but the school board was concerned about its reputation and whether it could trust the caretaker. As a result, the school board terminated the caretaker’s employment.
The school board’s letter of termination referred to several grounds for termination, including the caretakers’ “lack of candour during the investigation and improper use of some school property,” but the main reason was his sexual activity with a student of one of its schools.
Legal test applied to dismissal for off-duty conduct
The caretaker grieved his dismissal, claiming there were was no just cause. The arbitrator applied the “Millhaven test,” established in a 1967 Ontario decision, for determining whether an employee’s off-duty conduct warranted dismissal. The test put the onus on the employer to show:
•the conduct of the employee harmed the employer’s reputation or product
•the employee’s behaviour made him unable to perform his duties
•the employee’s behaviour made other employees reluctant to work with him
•the off-duty conduct involved a serious breach of the Criminal Code that was harmful to the employer’s reputation
•the conduct interfered with the management or function of the employer’s business and workforce.
The arbitrator also referred to the fact the caretaker was considered a “support staff” position under the Nova Scotia Education Act, which was required to support students in school activities, respect students’ rights and help keep a safe and supportive learning environment.
Applying the first part of the Millhaven test, the arbitrator found the caretaker’s conduct, which took place away from school board property and outside of his work hours, had no relation to the school board’s interest. Given that the relationship was consensual and there was no evidence of any previous inappropriate conduct, the arbitrator found there was nothing to indicate a “reasonable and fair-minded person” would find the caretaker’s continued employment with the board was untenable.
“It is difficult to determine whether (the caretaker’s) conduct harms the employer’s reputation. There has been no hue and cry over the situation, and the board was not aware that parents had done such things as take their children from school because of the incident. This may be because the employer has diligently tried to maintain confidentiality in this matter,” said the arbitrator.
The arbitrator acknowledged that the fact the relationship was consensual and the couple was still together didn’t matter with regards to the school board’s reputation, as people could still find it “repugnant” and negatively affect that reputation. However, the arbitrator balanced the reputational interest of the employer against the privacy interest for off-duty conduct of the caretaker and found any possible reputational harm to the school board was insignificant enough to be outweighed by the caretaker’s right to privacy.
In considering the other parts of the test, the arbitrator found there was nothing preventing the caretaker from performing his duties and there was no evidence other employees didn’t want to work with him — in fact, few knew of the situation. The arbitrator also found there was little chance of him repeating the conduct — he had moved in with the girl — and there was no reason to think he couldn’t be trusted working close to children going forward.
There was also no breach of the Criminal Code, since the girl was above the legal age of consent, said the arbitrator. When the relationship began, the age of consent was 14, and when it was raised to 16, the girl had already reached that age.
The arbitrator also found the duties of the caretaker’s job relate “most primarily to the manner in which the employee does his job” and how it affects the learning environment at the schools.
Caretaker reinstated and given three-month suspension
The arbitrator found the caretaker’s sexual conduct with the girl did not justify discipline according to the Millhaven test for off-duty conduct. The caretaker was reinstated and the arbitrator substituted a three-month suspension for the other misconduct listed in the termination letter.
The school board appeal to the Nova Scotia Supreme Court, but the court found the arbitrator’s decision to be within the realm of reasonable outcomes.
The school board appealed once again, this time to the Nova Scotia Court of Appeal. The school board argued the sexual conduct of the caretaker required a more stringent legal test by the arbitrator and standard of review by the court. The school board argued that even though the girl wasn’t a student at a school where the caretaker worked, he had a duty to respect the dignity and welfare of all students within its jurisdiction because the board had the same duty and he was an employee.
The Court of Appeal found administrative tribunals, such as the arbitrator in this case, often do not lead to one specific result but rather have a several possible decisions that a reasonable person could agree with. In this case, it found the Nova Scotia Supreme Court was correct in finding the reinstatement of the caretaker and substitution of a suspension fell within “a range of possible, acceptable outcomes which are defensible in respect of the facts and law,” a standard of review established in the 2008 Supreme Court of Canada decision of New Brunswick (Board of Management) v. Dunsmuir.
The Court of Appeal found the arbitrator’s analysis and decision was sound and the Nova Scotia Supreme Court’s review of the decision was reasonable. It upheld the caretaker’s reinstatement and dismissed the school board’s appeal.
For more information see:
•Cape Breton Victoria Regional School Board v. C.U.P.E., Local 5050, 2011 NSCA 9 (N.S. C.A.). Nova Scotia school support staff
The Nova Scotia Education Act outlines the responsibilities of school board support staff:
"Duties
40 (1) It is the duty of a support staff member to:
(a) support students in their participation in school activities;
•New Brunswick (Board of Management) v. Dunsmuir, 2008 CarswellNB 124 (S.C.C.).
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(b) maintain an attitude of concern for the dignity and welfare of each student;
(c) co-operate with the school board, superintendent, principal, teachers, students and other staff members to maintain an orderly, safe and supportive learning environment;
(d) respect the rights of students;
(e) participate in staff-development opportunities identified by the person to whom the staff member reports, if requested to do so; and
(f) subject to any applicable collective agreement in effect when this Act comes into force, perform such other duties as are assigned by the school board, the superintendent or the principal."
