Educators 'perpetually' in probation troubling: Arbitrator
Despite working for years in the Yukon school system, eight teachers were continually considered temporary due to “exceptional circumstances.”
Lindsay Hutchinson, Matteus Geisler, Emily Claes, Pricilla Dawson, Allison Cunningham, Trina Dennis, Laura Bateman, Bruce Gillard collectively grieved their status after all were advised by Judy Arnold, deputy education minister, that during the 2016-17 school session, they were all deemed to remain temporary teachers not permanent or indeterminate (which carries the same weight as permanent).
“I am deeming your employment to be temporary due to exceptional circumstances pursuant to section 109(2) of the Education Labour Relations Act,” said letters sent to five of the teachers.
(Dawson was advised her temporary status was due to “enrollment uncertainty.” Dennis and Geisler became indeterminate employees after the grievance was filed; Arnold retired in 2015 and did not testify).
The Education Labour Relations Act (ELRA) allowed the ministry to renew contracts for more than two consecutive years in “exceptional circumstances.”
The union, Yukon Teachers’ Association (YTA), grieved the decision and argued exceptional circumstances were not proved by the employer and therefore it broke the collective agreement.
All of the teachers had many years of experience working as teachers at various schools from as far back as 2013. All had worked more than two years, which should have qualified them as completing the probationary period, according to the agreement.
Lake Apted, director of human resources, registrar, teachers certification, department of education, testified that each year in November and December, the ministry reviewed staffing levels after receiving requests for leave, transfers, resignations and retirements form the usual cadre of about 550 to 600 teachers in Yukon. A guideline was employed in the 2016-17 school year that listed the exceptional circumstances that must be satisfied before offer letters were sent.
Apted testified that leaves of absence were a frequent condition for many teachers in the system. Once staffing offer letters were written, the deputy minister signed them, according to Apted.
Douglas Rody, YTA staff relations officer, provided a chart detailing teacher absences since the 2012-13 school year. Seventy-seven leaves were listed as the smallest number per year, with 92 representing the largest group in the previous five-year period.
The union argued that teachers deemed as temporary did not enjoy full union benefits during the summer or priority-hiring provisions, which was unfair.
Arbitrator Paul Love upheld the grievances. “I declare that the government of the Yukon has violated s. 109 of the ELRA by employing the grievors as temporary employees after their second and subsequent years of employment.”
When teachers were not offered seniority, it was troubling, said the arbitrator. “If the employer’s position is correct and a teacher must serve a probationary period for two years following the start of his or her indeterminate employment, this could result in an employee perpetually in a state of probation as there are in effect no limits on the terms of temporary employees.”
Despite having been signed by the deputy minister, exceptional circumstances were not proved. “On a balance of probabilities, there was insufficient evidence to establish that there were exceptional circumstances. Mentioning the circumstance in the job posting or a hiring letter is not convincing. ”
Reference: Government of the Yukon and Yukon Teachers’ Association. Paul Love — arbitrator. Ian Fraser for the employer. Christopher Foy for the employee. July 20, 2017. 2017 CarswellYukon 85.
