Employee has right to remain silent but must face consequences for actions

Ontario school board suspends teacher after refusal

Employee has right to remain silent but must face consequences for actions
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An Ontario school board suspended a teacher without pay when the teacher’s refusal to provide information on allegations of inappropriate behaviour from two students hindered its investigation.

In May 2016, the parents of a 12-year-old female student told the Brant Haldimand Norfolk Catholic District School Board that their daughter and her friend — who was in the same class — had accused a teacher of inappropriate behaviour, including painting the nails of one student with highlighters and glitter blue, regularly placing his hands on their shoulders, telling one student he had a picture of her on his bedroom wall, lifting one girl’s shirt and bra strap to place a paper towel underneath, placing his hand on one student’s upper thigh, and commenting that one girl smelled nice.

The school board questioned the teacher about the allegations and, after consulting his union representative, he gave “yes” or “no” responses to each alleged incident — yes to the nail-painting and comment about a student smelling nice, no to all the others. The board removed him from the classroom but assigned him work to do from home while it investigated further.

The school board contacted the Children’s Aid Society (CAS) for consultation and the police launched an investigation.

The teacher’s two “yes” answers were potentially alarming for the school board, but it needed more information on the context to determine if there was misconduct. It sent the teacher a letter requesting more information on the allegations.

However, the union advised that the teacher wouldn’t respond since it viewed the involvement of the CAS as disciplinary.

The teacher stated that he was unable to comment “given the ongoing investigation.”

Because of the ongoing investigations, along with the teacher’s failure to comply with its request for more information, the school board decided to immediately suspend the teacher without pay.

A few days later, the police closed its investigation due to “no reasonable or probable grounds to lay charges” and the CAS concluded its investigation with inconclusive findings. However, the school board considered its investigation still open, so the teacher remained on unpaid suspension.

The teacher inquired about his status in July, to which the school board replied that its investigation must be concluded before it could offer him a position. The teacher provided a lengthy response outlining the circumstances of each allegation, noting that the two students were close friends who may have made the allegations as retribution for him scolding them for behaviour that made the class late in returning to the school after a swim program.

The school board was satisfied with the teacher’s responses and determined no serious misconduct had occurred. It lifted the unpaid suspension on Aug. 8 and soon hired him as a permanent full-time teacher for the following school year. The union grieved the suspension as unfair discipline.

The arbitrator noted that in the “private world of employment,” there was no right against self-incrimination as there would be in a criminal prosecution or other state action. In this case, the question was not about the right to remain silent, but rather “the right to remain silent consequence-free.”

The arbitrator found that the school board had “a compelling, legitimate interest” in having the teacher answer the additional questions due to the nature of the allegations, its duty to protect students, and the high standard of conduct for teachers — particularly since the teacher admitted to two of the allegations with no explanation or context.

In fact, once the teacher provided additional information, the school board was able to complete its investigation and exonerate the teacher.

The arbitrator determined that the teacher’s unpaid suspension was reasonable and justified in the circumstances.

Reference: OECTA and Brant Haldimand Norfolk Catholic District School Board (1452-4). Bernard Fishbein — arbitrator. Dolores Barbini, Colleen Oldman, Mike McDonald, Katelyn Clutterbuck for employer. Bernard Hanson, Carla Hosseini, Tom Laracy for employee. Oct. 11, 2019. 2019 CarswellOnt 16445

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