Principal denied open position due to special needs students welfare
A teacher at Etobicoke Collegiate Institute (ECI) in Ontario was declared surplus in 2014, but then wasn’t allowed to slot back into her home school after another teacher retired.
Tanya Norman was considered as a replacement for an open teaching slot, but the school principal, Caroline Rath, did not choose Norman to fill two chemistry and one physical education courses on May 7, 2014.
Eventually, Norman was returned to ECI in 2014, but the union pushed ahead with the May 21 grievance to fully address the “pull-back” provisions in the collective agreement.
“The Secondary Teachers’ Bargaining Unit (STBU) further maintains that the principal of Etobicoke CI and the Toronto District School Board have acted in an excessive and arbitrary manner, and therefore exceeded their authority under part iii of the recognition clause,” said the grievance.
During the process to consider Norman for the vacancy, the school proposed changes be made to various teacher’s schedules, so she could fill two guidance sections that the retiring teacher held. Michelle Kaske, the school’s special education head, could have taken the retired teacher’s physical education slots, while another teacher would take over one of Kaske’s special education courses.
But the proposal was rejected by Rath, who said it would place an unfair burden on Kaske and her special education students if she was away from the students for an extended period of time. Rath said the special education department consisted of an “overwhelming amount of work” as Kaske was responsible for 250 students.
Being away from the students for an estimated 75 minutes per day (plus preparation and meeting time) when teaching the physical education course would take
Kaske away from the neediest children at ECI, said Rath.
Another proposal would have seen a male teacher being assigned to the physical education course, but because that section was a girls’ class, Toronto school board policy set in 1998 meant the courses must be taught by a teacher of the same gender.
The union argued Rath did not give full considerations to the schedule-changing options, which would have awarded the position to Norman, citing the wording of the collective agreement: “(Staffing changes) will be guided by the principle of keeping teachers in their home schools or if they become surplus, finding ways to return them to their home schools subject to seniority and qualifications.”
It argued keeping Kaske in her current position and not moving around the schedule was an arbitrary decision made by Rath and not a requirement of the school, and it would not force an undue hardship upon the special education program.
Arbitrator Laura Trachuk denied the grievance. “The requirement to ‘consider’ in the context of negotiated pull-back provisions guided by the principle of trying to keep teachers in schools, means that the principal must assess whether a pull-back can be accomplished through changes in timetabling taking into account the impact on other teachers’ timetables and the needs of the program and/or school. Rath did consider changing timetables to return the grievor to the school but decided, after considering the impact on the special education program, not to do so. That was a proper exercise of the discretion that was designated to her.”
Rath correctly weighed the needs of the special education department when making the staffing decision, said the arbitrator.
“There was no suggestion that her decision was made in bad faith or was discriminatory. I find, for the reasons set out previously, that it was not based on a policy but on her assessment that assigning Kaske to physical education would not serve the needs of the special education program,” said Trachuk. “Rath did not base her decision on a policy but on her assessment that the interests of the special education students would not be served by taking the head of the special education department out of the program for that much time each week.”
Reference: Toronto District School Board and Ontario Secondary School Teachers’ Federation, District 12. Laura Trachuk — arbitrator. Michael Hines for the employer. Karen Ensslen for the employee. Jan. 9, 2017.
