Instructor could file second grievance for loss of reputation: Arbitrator
SENSITIVE ISSUES, such as accusations of sexual assault — especially in the classroom — put arbitrators in tough positions when it comes to wrongful dismissal cases, Joan McEwen said when she ruled in favour of a teacher in British Columbia after he was let go.
Because of the nature of the case, the names of the teacher and the student were not published during the arbitration, to protect their identities.
The teacher, alongside the British Columbia Teachers’ Federation (BCTF), filed a grievance against the British Columbia Public School Employers’ Association after he was suspended without pay and subsequently fired following allegations of sexual assault involving a student.
The student alleged the inappropriate relationship occurred between Grade 5 and Grade 8. However, the teacher claimed he only had four fleeting interactions with the student, who was not even his own student at any time.
After the allegations, the teacher was arrested. But the Crown failed to lay charges following its investigation.
During the investigation, he was suspended without pay and subsequently dismissed — almost two years after the allegations surfaced.
The BCTF filed a grievance over the dismissal.
He said, she said
With such sensitive issues, oftentimes, allegations of sexual assault rely on he said, she said testimony.
In this case, forensic evidence, police and guidance counsellor investigations, and confusing testimony from the student were all integral to McEwen’s judgment.
The student’s diary turned out to be a key piece of evidence, and many of the situations she described happening with the teacher also seemingly happened to be taken from the popular television show, Law & Order.
Medical tests she underwent as a result of the police and RCMP investigation were refused by the family to be shared in court, but some of that evidence was subpoenaed by the arbitrator, as she felt that was a key piece of evidence.
The teacher also underwent numerous psychological tests, and it was determined he did not show any risk factors to offend in any way.
According to the BCTF, the 14-year work history coupled with volunteer activities (such as extracurricular boys’ and girls’ sports teams, for which no complaints had ever been reported), as well as the unreliability of a clearly troubled student and medical evidence warranted reinstatement for the teacher.
"The teacher’s many years of discipline-free teaching — including history of voluntary endeavours such as coaching both girls’ and boys’ athletic teams — weigh heavily in his favour," the union said.
Teacher reinstated
For all of the aforementioned reasons, the teacher was reinstated.
"The psychological profile submitted by the union is that of a decent, hard-working man with a solid network of friends and family — a far cry from the sadistic and monstrous torturer portrayed by the student," McEwen said.
"Not only (had) the employer failed to meet its burden of proof, the evidence overwhelmingly demonstrates that the teacher is the victim of false allegations."
As such, the teacher was ordered reinstated and to be made whole for the loss of pay for the past two years.
"The union requested that, given the teacher’s dire financial circumstances as well as the many other adverse impacts on him
consequent upon his dismissal almost two full school years ago, I render an interim award," McEwen said. "The grievance is upheld and the teacher is to be made whole at the earliest possible time."
Moreover, she suggested the union would be in a position
to make a claim against the
employer for the teacher’s loss
of reputation.
Reference: B.C. Public School Employers’ Association and the B.C. Teachers’ Federation. Joan I. McEwen — arbitrator. Judith Anderson for the employer, Randy Noonan for the union. July 10, 2014.
