Teacher not entitled to teach same subject after pregnancy

Toronto District School Board v. Elementary Teachers’ Federation of Ontario, 2004 CarswellOnt 2790 (Ont. Div. Ct.)

Xuan Vuong was an elementary school teacher with the Toronto District School Board. She had senior and intermediate qualifications to teach Grade 7 through 12 French and a general Ontario teaching certificate for elementary and secondary schools. She taught senior French from 1997 until she took pregnancy leave in March 2001.

The practice at Vuong’s school was that in February the principal asked his teachers their preferences for teaching assignments the next year. In 2001 Vuong was distracted by her pregnancy and didn’t participate in the process. In April, while on pregnancy leave, she received a letter telling her that on her return her assignment would be senior science/advisory. Vuong was qualified to teach senior science but had never done so. Due to declining enrolment there were positions for only two French teachers. The staff member who was assigned it had more seniority than Vuong but less experience teaching French. She refused to return from her pregnancy leave to teach senior science, remaining on leave without pay until the next year when she was once again assigned to teach senior French.

She filed a grievance claiming a violation of the Employment Standards Act’s provisions that there be no reprisals against a woman taking pregnancy leave and that an employee shall be reinstated to the position most recently held.

The board of arbitration hearing the grievance ruled Vuong’s position was that of a teacher at that school, teaching subjects for which she was qualified, not specifically as a teacher at that school teaching senior French. This ruling was appealed to the Ontario Superior Court of Justice.

The court found the board had made reasonable rulings when it found that no teacher has a right to any particular assignment in a year. Were she entitled to teach the same class it would mean a teacher who went on maternity leave had greater rights than one who didn’t and it would hamper a principal’s right to make appropriate class assignments. The collective agreement between the school board and Vuong’s teacher’s union implicitly recognized this, the court ruled.

There was no attempt to penalize Vuong because of her pregnancy leave and therefore there was no attempt at reprisal, the court added. Vuong’s appeal was rejected.

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