Making copies of a student's letter leads to dismissal
Wade Nodding — a custodian with Nova Scotia’s South Shore Regional School Board — came across a piece of paper on a classroom floor while working the evening shift on April 9, 2013.
The piece of paper turned out to be a letter written by a student detailing bullying experienced at the hands of a classmate. What Nodding did with that letter led to his termination.
Nodding has worked as a custodian for the school in question since 1998 and has served as a volunteer assistant coach on the school’s wrestling team for a number of years.
By all accounts Nodding was a hard worker who took pride in his position.
While performing his usual duties on April 9, Nodding came across a piece of paper, folded in half and lying on the floor. Not knowing whether the paper was important he picked it up and opened it.
The piece of paper was in fact a letter written by a student to a teacher, detailing bullying suffered by the author and identifying a classmate as the perpetrator. Nodding said he was afraid to leave the letter for fear someone other than the teacher would find it the following day. He decided to take possession of the document, bring it home with him after he finished work and return the letter to the teacher the next day.
But taking the letter home was not the only thing Nodding did. He also made a copy.
Nodding had — within the last year — been disciplined due to issues surrounding the confidentiality and privacy of school and student information. In May of 2012 he shared information about a student and staff members during a public meeting. Because of this previous discipline, Nodding testified he felt he needed a copy of the letter to protect himself.
The following day Nodding returned to the school and found the teacher in question. After explaining the situation Nodding made another copy of the letter before returning the original. The school’s principal and vice-principal were then made aware of the situation.
An investigation into the incident was held on April 16, 2013. When asked why he read the letter instead of simply placing the paper on the teacher’s desk when he realized it was not garbage, Nodding said he had "every right to look." Nodding was asked several times at the meeting to return the copy of the letter, but he refused.
He eventually returned the copy — and admitting to making the first copy, which Nodding testified he burned — on the advice of his union.
Because of his previous discipline the employer saw Nodding’s copying of the letter — as well as his initial refusal to return the copy — as a culminating incident. The employer said it could no longer trust Nodding to work alone in the school without supervision and had no faith he would respect the need for confidentiality in the future. Nodding was fired on April 22.
The Canadian Union of Public Employees (CUPE) Local 4682 filed a grievance on his behalf, seeking full redress for all lost wages and benefits. The union argued Nodding was acting with due diligence when he read the letter.
Paper on the floor of a classroom could be important, and he was right to determine its status rather than simply throw it out.
The union further argued his decision to make a copy of the letter was not an attempt to violate confidentiality or privacy, but rather an action solely for his own protection.
Regardless of his intention Nodding breached the board’s privacy policy, the employer said. The employer also emphasized Nodding’s power of access as a custodian. His position was one of trust.
Reading the letter, taking it home and copying it were reason enough to warrant termination, the employer argued, but this was not Nodding’s first breach of the confidentiality that is so crucial in school setting. It would be entirely inappropriate to return him to the workplace and the employer submitted the grievance should be dismissed.
Arbitrator Augustus Richardson agreed Nodding’s making a copy of the letter was a clear breach of the board’s rules and procedures regarding confidential student information.
"Even more disturbing," Richardson said, "is the fact that the grievor made a second copy of the letter the day after he found it."
However, due to mitigating factors such as Nodding’s concern for student welfare and his contributions to the school’s community, Richardson found that termination was unreasonably severe.
Reference: South Shore Regional School Board and the Canadian Union of Public Employees (CUPE) Local 4682. Augustus Richardson — arbitrator. John C. MacPherson for the employer, Carl Crouse for the union. March 23, 2014.
