Service time, apology showed rehab potential: Arbitrator
A Saskatchewan post-secondary instructor has been reinstated with a lengthy suspension after he was fired for making racist comments about First Nations people.
The 64-year-old employee was an instructor at Saskatchewan Polytechnic (SaskPoly), a post-secondary institution in Regina. On Nov. 26, 2018, the coordinator of the Indigenous Student Centre (ISC) sent an email requesting donations for food hampers for students.
A short time later, the instructor replied with his own email containing the comment: “Have we not given enough already. Be like the rest get jobs.”
The ISC coordinator went to the instructor’s office to discuss the email, and the instructor asked him why Indigenous students couldn’t get jobs like his own students. He also remarked that First Nations people should stop asking for handouts and “if it wasn’t for programs like the one I am teaching, your people would still be living in teepees.”
Things got heated and after some angry comments from both, the ISC coordinator left and filed a complaint. SaskPoly launched an investigation.
At an investigation meeting two days later, the instructor admitted to making the comments and told the investigators that “they don’t work and get handouts” and “we’ve given enough — residential schools and land.”
At a second meeting on the same day, the instructor was asked if there was anything else he wanted to add. The instructor said no and asked if he could go.
SaskPoly determined that the instructor violated its code of conduct, which required employees to be accountable for their behaviour and “to act with diligence, respect, integrity, transparency and accountability.” The institution terminated the instructor’s employment on Dec. 3, referring in the termination letter to the code of conduct and his “lack of remorse.”
The union grieved the dismissal, arguing that the instructor wasn’t given an opportunity to improve in accordance with progressive discipline enshrined in the collective agreement. In addition, SaskPoly didn’t list the grounds for termination in the termination letter. The union noted that the instructor had been unable to attend recent Indigenous awareness training due to scheduling of his classes.
The instructor apologized after his termination, saying that he had started reading about Indigenous people and the Truth and Reconciliation Commission. He said that he realized that he had been “wrong on a lot of occasions on what I said.” He also emailed a formal apology to the ISC coordinator.
The arbitrator noted that SaskPoly didn’t specify which principles in the code of conduct that the instructor had breached. In addition to the collective agreement’s disciplinary requirements, SaskPoly’s code of conduct and harassment policy both set out the right of procedural fairness and due process, which included steps that SaskPoly didn’t follow, such as exploring an informal resolution process.
The arbitrator agreed that the instructor made inappropriate racist comments directed toward Indigenous people that were deserving of discipline. However, his 34 years of service with a clean disciplinary record and the fact he had not yet taken the Indigenous awareness training — there was a potential for rehabilitation through education — were mitigating factors. In addition, the initial email was “a rash, impulsive, spur-of-the-moment act,” and the ISC coordinator provoked the instructor’s behaviour when he confronted him, said the arbitrator.
The arbitrator also found that the instructor acknowledged his conduct throughout the investigation and eventually apologized. Had SaskPoly followed the proper process, there would have been more opportunities for the instructor to apologize, said the arbitrator.
The arbitrator determined that dismissal was too harsh and ordered SaskPoly to reinstate the instructor with a six-month unpaid suspension and Indigenous awareness training.
“In the end, I am satisfied that [the instructor] knows that his comments were ill-informed and wrong,” said the arbitrator. “He has taken steps to become informed and to work on his attitudes and beliefs.”
Reference: Saskatchewan Polytechnic Faculty Assn. and Saskatchewan Polytechnic. Anne Wallace — arbitrator. Jon Danyliw, Amelia Lowe-Muller for employer. Gordon Hamilton for employee. Sept. 9, 2020. 2020 CarswellSask 511