Teacher grieves suspension relating to sexual assault

Learning environment free from harm trumps employee interest: Arbitrator

A Manitoba teacher filed grievances against the St. James-Assiniboia School Division in Winnipeg after he was suspended without pay pending the resolution of criminal charges filed against him by a colleague.

The grievor, a high school physical education teacher with 12 years of seniority, was charged with sexual assault causing bodily harm on Aug. 1, 2013. After being charged, the grievor was released by police on a promise to appear in court. He pleaded not guilty and his case is currently pending a decision.

When the employer was made aware of the criminal charge by the complainant — an educational assistant employed by the division at another school — the grievor was suspended without pay pending resolution of the allegations in court.

The grievor and the complainant’s accounts of the incident differ, but a medical examination of the complainant following the June 8, 2013, incident reported a right thumb and wrist hyper-extension injury, left wrist strain and lower back strain.

The complainant wore wrist splints for several weeks after the incident.

Two months after, having received the Crown's opinion, police laid a charge against the grievor and urged the complainant to inform her employer.

Following an investigation, the board of trustees suspended the grievor without pay on Aug. 29, 2013.

Both the grievor and the St. James-Assiniboia Teachers’ Association filed grievances, requesting the suspension be overturned and all references to it removed from his personnel file. The grievor also sought full compensation, emphasizing that the incident happened outside of school and so did not affect his employment.

The employer said suspension without pay was necessary not only to ensure the safety of both students and female staff but to protect public confidence in the school. Taxpayers, the employer argued, would not accept retaining a teacher charged with a violent sexual offence pending his trial.

The union denied there was any demonstrated risk to staff or students and argued the grievor could have been accommodated with an alternate assignment that would have met any perceived safety or reputational concerns. At the minimum, the union said, any suspension that might be justified should be with pay.

Arbitrator Arne Peltz, however, found it "difficult to countenance" a teacher continuing to work closely with students while facing a sexual assault charge.

"This kind of criminal charge is so antithetical to everything a school division represents that on balance, the employee’s interest in his livelihood must give way to the division’s interest in offering a learning environment free from harm, and being seen as maintaining this vital standard," Peltz said.

Peltz found it was clear on the employer’s evidence that no existing alternate placement was available for the grievor when the decision was made to suspend him.

While Peltz found suspension to be appropriate in the circumstances, he said a suspension may need to be imposed with pay to avoid unfairness.

"Both employer and employee have legitimate interests," Peltz explained. "If convicted, he will face the weight of the law, and even if acquitted he may be subject to discipline by the division. In the meantime, he is presumed innocent and should not be deprived of his pay unless the division can establish the necessity for doing so."

Peltz allowed the grievance in part, ordering the grievor remain suspended but ruling he is entitled to receive pay retroactive to the date of his suspension.

Reference: St. James-Assiniboia School Division and the St. James-Assiniboia Teachers’ Association of the Manitoba Teachers’ Association. Arne Peltz — arbitrator. Kris Gibson for the employer, Tony Marques for the union. June 27, 2014.

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