Teachers as Employees
Teachers today find their employment status very different from that of
teachers seventy or a hundred years ago.
The teacher in a one-room rural school was employed on a pure
master–servant basis by a small, elected board with no administrative
staff.
He or she served at the pleasure of the board.
Today few teachers would even recognize the members of the school
board that employs them.
The majority of Canadian teachers find themselves employed under,
and subject to, negotiated collective agreements.
Provincial law provides them with due process procedures related to
employment status.
This chapter deals with the employment status of teachers with
particular emphasis on collective bargaining and collective agreements.
Every employed person has an employment contract, either written,
partly written, or unwritten.
Such a contract is either an individual contract of employment covering
one person or a collective contract, usually called a collective agreement,
covering more than one person.
It is possible for both a collective agreement and an individual contract
of employment to co-exist and to deal with different aspects of
employment, but if there is a conflict, the collective agreement normally
prevails.
The concept of employment or personal service has existed for many
centuries, but collective agreements are a product of the twentieth
century.
Individual contracts of employment have existed in common law as long
as common law has existed.
Common-law concepts are still important for individual contracts,
although employment contracting has been extensively modified by
statute.
Collective agreements, on the other hand, owe their existence entirely to
enabling statutes passed by governments to cover that part of the
labour force under their jurisdiction.
There is no such thing as an unwritten collective agreement.
For a collective agreement to exist, the collectivity must be organized
into what is called a bargaining unit.
Workers organize themselves into a bargaining unit and elect a
bargaining committee to represent them in contract negotiations with
an employer.
The process is called collective bargaining, and the outcome when the
process is successful is an agreement between the bargaining unit and
the employer that covers various aspects of employment.
We generally associate collective bargaining in the industrial sector
with unions.
A union may represent workers employed by many different employers
and may therefore contain many bargaining units.
In Canada, teacher organizations that bargain collectively form one
bargaining unit in some provinces and many units in others.
This is an important distinction because it determines whether the
negotiating will be done directly by the provincial organization or
through what are called locals.
The scope or definition of the bargaining unit poses special problems in
professional unions such as teacher organizations.
As you move up the school board hierarchy, where do the workers end
and where does management begin?
We must know because managers are to be excluded from the
bargaining unit.
Principals and vice-principals are the ones in the pivotal position; are
they bosses or are they colleagues to the teachers?
The collegial model prevails in many Canadian provinces, allowing
school-level administrators to be included in the bargaining unit.
In Quebec, Ontario, and British Columbia, they are classified as management
and are excluded, whereas in Alberta, their inclusion is subject to
bargaining at the local level.
All provinces permit collective bargaining by teachers, and in all but
British Columbia, Ontario, and New Brunswick, the union is the same
organization as the professional association.
British Columbia and Ontario each has a college of teachers as
a professional organization without any union functions.
In New Brunswick the split is largely cosmetic, designed to permit
professionalism in two languages while imposing one salary scale and
one set of working conditions on all teachers.
The New Brunswick associations are heavily involved in collective
bargaining through the New Brunswick Teachers' Federation.
Even where union and professional activity occur in the same
organization, they do not necessarily occur at the same level.
Contrast these arrangements with those in some other
professions in which there is an absolute split between the union and
the professional organization.
The provisions for collective bargaining vary considerably from province
to province.
Alberta and British Columbia permit collective bargaining by teachers
under the same legislation that governs the private sector.
In New Brunswick, teachers negotiate under special legislation
governing collective bargaining in the provincial public service.
All other provinces have collective bargaining provisions that are
specific to teachers.
The level at which bargaining takes place also depends on the
province.
Agreements are negotiated locally in British Columbia, Alberta, and
Manitoba.
This is also true in Ontario, where many boards will have more than
one collective agreement with teachers because of the different
federations representing teachers at the local level.
In three provinces—Saskatchewan, Quebec, and Nova Scotia—some
matters are negotiated locally and others provincially.
In New Brunswick, Prince Edward Island, and Newfoundland,
negotiations are completely centralized, resulting in one collective
agreement for all teachers in public-sector schools under provincial
jurisdiction in each province.
Provisions for collective bargaining can run into constitutional problems
in provinces with denominational school rights and privileges.
The danger is that collective agreement provisions may come into
conflict with preserved denominational rights.
For example, a collective agreement clause governing teacher dismissal
negotiated at the provincial level may conflict with a constitutionally
preserved right of local school boards to dismiss teachers for
denominational cause.
When Saskatchewan made such provisions in 1973, these were
challenged in the Saskatchewan Court of Queen's Bench (“Board of
Education for Moose Jaw . . .”) by separate-school
supporters as violating the denominational protection provided by
section 17 of the
Saskatchewan Act
(discussed in chapters 2 and 3).
The Court of Queen's Bench rejected this claim except for a provision
for binding grievance arbitration of disciplinary action by school boards
against teachers.
This was appealed, but by the time the case reached the Court of
Appeal, the offending section had been amended.
This court determined that the amended legislation, which provided for
provincial negotiation of salaries and benefits, local negotiation of
various types of leaves, and no collective negotiation of terms of
employment and responsibilities of teachers, was not offensive to any
denominational right.
The ability to select and dismiss teachers has been recognized as an
important denominational right, but the revised Saskatchewan
legislation did not violate this right.
Some generalizations can be made about the contents of collective
agreements.
In labour disputes we tend to hear more about salaries than anything
else, but salary provisions form a small part of most collective
agreements.
Many provinces have legal requirements for certain provisions in
collective agreements, including recognition, no-strike and no-lockout,
term, and grievance arbitration.
Certain other provisions, although not required, are almost universal.
The following list is far from complete.
Agreements start out with the names of the parties to the agreement,
and these are the only ones that are bound by the agreement.
There must be at least two parties, and, in the case of a collective
agreement, these are the bargaining unit and the employer.
The employer is normally a school board, but in provinces with
centralized school systems the definition of employer may include the
ministry or department of education or even the provincial board of
management or treasury board.
These other agencies exercise some of the functions of the employer in
provinces with centralized school systems.
A recognition clause is one in which the employer recognizes the union
with which it has negotiated the agreement as the sole representative of
the workers covered by the agreement.
In the industrial sector this is of some importance since two or more
unions may compete for workers.
Recognition clauses are normally included in education collective
agreements even though the recognition question has already been
settled by legislation in most provinces.
Collective agreements do not go on forever, and all contain a clause that
indicates the period of time for which the agreement has been made or
the date on which it expires.
This will be supplemented by notice provisions by which either party
may give notice to the other party that it wishes to negotiate a new
agreement.
Teacher unions are normally the party that gives notice of the desire to
negotiate because they usually expect some improvements with each
new agreement, including an increase in salaries.
Collective agreements contain clauses forbidding a strike or a lockout
during the term of the agreement.
A strike is a work stoppage initiated by the workers, whereas a lockout
is one initiated by management.
Strikes and lockouts can and do occur after an agreement has expired
and before a new one has been agreed upon.
Intimidation clauses prevent the employer from using threats of
penalties to cause workers to refrain from union activity or from
exercising rights under collective agreements.
In a similar manner discrimination clauses prevent the employer from
discriminating against workers because they
are active in the union or
because they are exercising or have exercised rights under the collective
agreement.
A union shop is one in which every worker is required to be a member
of the union.
For teachers this question cannot be separated from that of membership
in the professional organization, a question generally settled by statute.
Membership in a teachers' union generally follows employment rather
than being a precondition of employment as is sometimes the case with
craft unions.
The so-called Rand formula, under which all members of the bargaining
unit must pay dues to the union but need not belong to it, is often seen
in Canada.
Compulsory checkoff provisions are almost universal in collective
agreements in education and elsewhere.
They require that the employer deduct the union dues from the
members' pay before cheques are issued.
These dues are then paid by the employer to the union.
The employer is in a much better position to collect union dues than the
union itself, and compulsory checkoff makes the union's job
considerably easier.
Management rights clauses are very general clauses, which give
management the right to operate the business.
They often include hiring, disciplining, discharging, and promoting
employees, for example.
In the interpretation of collective agreements, specific clauses take
precedence over general ones, and, for this reason, management rights
clauses give way to the many specific restrictions contained in
collective agreements.
Some experts feel that management has any residual rights not
restricted by the agreement and that management rights clauses are
therefore unnecessary.
Collective agreements contain clauses prescribing working conditions,
and teacher collective agreements contain many working-condition
requirements that are specific to teaching.
Examples include maximum limits on time spent teaching or minimum
periods of preparation time.
Upper limits on class size appear in many collective agreements, and
there may even be restrictions on multiply graded classes.
Clauses dealing with supervision and extracurricular activities
frequently appear.
In some provinces the school day, week, and year are subject to
negotiation and will be specified in collective agreements.
Unlike many collective agreements in the industrial sector, teacher
collective agreements usually do not contain health or safety
clauses.
Layoff and recall provisions operate to prevent strife among union
members in situations where someone has to lose.
Almost universally, layoff is based on the principle of “last hired
first released”, that is, on reverse order of seniority.
In this way the procedure operates in a simple, mechanical fashion.
One might prefer to lay off teachers in reverse order of merit, but the
assessment of merit in a situation where the stakes are so high would
be a nightmare.
Modifications are often made to the seniority principle so that required
specialties can be maintained.
Among teachers this could include subject specialties, administrative
positions within the bargaining unit, and other specialties such as early
childhood education, counselling, and special education.
Provisions for recall operate in the same manner.
The last person laid off is the first to be recalled because that person
would have higher seniority than someone laid off earlier.
Teachers normally earn seniority only with their current employer and
lose that seniority if they move to another board,
although this varies by province.
Teachers are laid off because there is no work for them; this should not
be confused with dismissal.
The intent of most clauses governing discipline and dismissal is to
ensure fair procedures are followed rather than to deal with the issue
substantively.
Teachers can be disciplined and dismissed only for “cause”
or “just cause” but frequently without these terms being
defined in the agreement.
Some agreements distinguish between dismissal for misbehaviour and
dismissal for inability to perform the job, the latter often being
the result of burnout.
Typical provisions require that the teacher be presented with reasons in
writing and that the evidence against the teacher be documented and be
made available to the teacher.
There is normally the right to a school-board hearing at which the
teacher and the teacher's representative may attempt to rebut the
case against the teacher.
Dismissals are generally appealable to either an arbitration board or a
board of reference, depending on the province and the collective
agreement.
Salaries and benefits form some of the more controversial aspects of
collective agreements.
Benefits vary considerably from agreement to agreement but can
include pensions, group life insurance, disability benefits, extended
medical-care insurance, hospitalization benefits, and dental
insurance.
Teacher salary scales across Canada are based more or less uniformly
on two variables: certificate level or years of post-secondary education,
and years of teaching or equivalent experience.
Certificate level is used in those provinces where such levels are based
on the number of academic years of post-secondary education as defined
by the certificating authority.
Provinces with other certification systems utilize years of
post-secondary education directly in the salary scales.
The second variable involves directly the number of years of teaching
experience or a step system based on this.
Other types of experience may be fully or partially equated with
teaching experience.
Many types of leaves are contained in collective agreements.
These include vacation leave, sick leave, compassionate leave in case of
bereavement or serious illness of a family member, maternity leave,
paternity leave, leave for jury duty, and leave without pay.
Professional collective agreements frequently contain provisions for paid
educational leave, study leave, or sabbatical leave to permit teachers to
return to university for further studies or to develop themselves
professionally in other ways.
Sick leave provisions are universal.
Sick leave credits are earned as a certain proportion of time worked and
are consumed by being absent due to illness.
Collective agreements may make provision for a negative balance of sick
leave credits, particularly for new employees.
Sometimes a proportion of accumulated sick leave will be available to a
teacher as a pre-retirement vacation or as a monetary retirement
bonus, but there can also be limits on the amount of sick leave that can
be accumulated.
Vacations are handled differently for teachers than for most other
employees.
Vacation provisions are contained implicitly in the definition of the
school year, which may be defined in statute or regulation or which may
be negotiable at either the provincial or local level.
Teachers receive longer vacations than do most other employees but
they have no ability to choose their vacation times.
Vacation days will be taken by some employees to
take care of their own children when they are ill, in the absence
of leave provisions for this purpose.
Teachers do not have that option.
Issues frequently arise involving potential interaction between various
types of leave.
For example during educational or sabbatical leaves, sick leave credits
are often suspended so that they are neither earned nor expended
simply because they are difficult to account for when the teacher
is not required to be at the usual place of work.
Among teachers, issues can arise over illness during pregnancy
and whether some of the maternity leave can be taken as sick leave.
This has the effect of lengthening the total leave.
Unions and employers normally solve this problem with arbitrary rules
based on the time until the expected date of birth of the child.
Collective agreements describe a process called a grievance procedure to
settle differences between the bargaining unit and management arising
from the interpretation, application, administration, or alleged violation
of the agreement.
The range of questions that can be grieved is very wide indeed,
sometimes extending beyond the limits of the collective agreement
itself.
In Canada, strikes are not permitted as a means of settling disputes
arising during the term of an agreement.
The grievance procedure consists of several appeal steps that take the
grievor up the employer's hierarchy.
The final step removes the grievance to an impartial outside board and
is called grievance arbitration in some provinces and adjudication in
others.
Grievance arbitration produces final binding solutions to disputes
arising during the term of a collective agreement.
Most of these disputes are resolved by discussion and compromise
before this final step is reached, but those that are not are referred
to a board of arbitration for final disposition.
A board of arbitration consists of one or three persons.
A one-person board is often appointed by a provincial authority such as
a labour relations board or a cabinet minister.
Some collective agreements actually name panels of individuals who can
act on such a board.
On a three-person board, each party to the dispute has one appointee
and these appointees agree on a third person to act as the
chairperson.
In the absence of an agreed-upon third person, a provincial authority
will make the appointment.
Decisions of such boards will be reviewed by courts only in very special
circumstances.
They will review these decisions if boards have exceeded their
jurisdiction, have failed to exercise their jurisdiction, or have committed
obvious errors of law.
Courts do not review the findings of fact of arbitration boards.
They will review defects in the formation of the board as illustrated by
the following examples.
Boards of arbitration exercise a quasi-judicial function and are expected
to conduct hearings in accordance with widely accepted standards of
procedural fairness.
Members of the board must not have an interest or stake in the dispute.
Two Manitoba cases
(“Intermountain . . .”
and “Re Flin Flon . . .”)
illustrate that appointees to arbitration boards must be completely free
of conflicts of interest.
In the first case a school board appointed a lawyer who had previously
acted on the board's behalf to the arbitration board.
In the second case a school board appointed its auditor.
In both cases, the courts disqualified the appointees on the grounds of
potential bias.
Sometime toward the end of the term of the current collective
agreement, one of the parties, usually the bargaining unit, gives notice
to the other party that it wishes to negotiate a new agreement.
A renegotiated agreement is never entirely new; there may be a few
difficult issues that require new arrangements, but most of the clauses
of the current agreement will be retained.
Pay can be contentious, but working conditions often assume
considerable importance for teachers.
Hard bargaining takes place over class size and preparation time.
Negotiations between the two negotiating committees commence and
agreement may be
reached quickly, but frequently the current
agreement expires before a new agreement is reached.
Under these circumstances the provisions of the old agreement continue
in force.
Rates of pay, working conditions, and other provisions are frozen.
Failure to reach agreement may ultimately lead to a strike, but there
are steps required by statute to be completed before a strike takes
place.
The exact steps depend on the provincial legislation governing teacher
collective bargaining in each province.
They have as their purpose the facilitation of negotiation and the
avoidance of strikes.
Some of these are described below.
The term “fact-finding” is descriptive of the process.
Collective agreements are long and complex and the job of the
fact-finder, a neutral outside appointee, is to identify those issues on
which agreement has been reached and to separate them from the
issues that divide the two parties.
In doing so the fact-finder can often reduce the number of unresolved
issues.
The fact-finder produces a report that is available to the two parties
and which may be made public.
Mediation goes one step further than fact-finding.
The mediator attempts to resolve the differences between the two
parties by negotiation.
Mediators recommend specific terms of settlement for unresolved issues
in a document called a mediator's report, but the recommendations in
the report are not binding.
They are frequently rejected by one party and may be rejected by both.
Arbitration is similar to mediation except that the arbitrator produces a
binding settlement rather than one that the parties can reject.
Many statutes governing collective bargaining provide for voluntary
arbitration.
This takes place only if both parties agree beforehand to submit to it
and to accept the results.
Statutes rarely provide routinely for compulsory arbitration.
But lengthy teacher strikes are sometimes ended by special statutes
that prescribe compulsory arbitration as the only means of resolving
irreconcilable differences.
Final offer selection is an alternative to arbitration.
During the arbitration process, the arbitrator attempts to find a
compromise between the competing demands of the two parties.
In final offer selection, the selector must choose the final offer of one or
the other of the two parties
without any modifications.
This encourages both parties to be reasonable since the most reasonable
position is the one likely to be accepted.
But selectors often find that both final offers contain unreasonable
elements and would prefer to fashion a compromise solution that
combines the best elements of both.
Work stoppages can be partial or full and can be initiated by the
teachers or the school board after the agreement has expired and the
steps required by statute have been taken.
A partial work stoppage by the teachers is often called work-to-rule or a
partial withdrawal of services and does not normally result in a loss of
pay.
Teachers work to rule by refusing to supervise extracurricular activities,
to mark examinations, to submit reports, or even to teach.
They do come to school and, at a minimum, perform their custodial
function.
A strike or full withdrawal of services involves a full loss of pay and
hardship is imposed on both parties.
In the event of a full strike, teachers frequently operate picket lines
outside schools and school board offices.
When an agreement is reached between the two negotiating committees,
it must be ratified in a vote by the teachers.
This is done by ballot, often mail ballot.
In practice, teachers almost always ratify an agreement recommended
by their association or federation.
Teachers sometimes object to membership in a teacher union or to
paying dues to the union based on freedom of association or freedom of
religion, both guaranteed in the
Constitution Act, 1982.
Canadian courts have generally been more sympathetic to the freedom
of religion issue.
Membership problems may also occur when teachers refuse to
participate in legal or illegal work stoppages and the union takes
disciplinary action.
In an Ontario case involving an instructor at a college of applied arts
and technology
(“Lavigne . . .”),
the instructor, who was not a member
of the Ontario Public Service Employees Union (OPSEU) but was
required to pay dues to OPSEU based on the Rand formula, objected to
several of the uses of his dues by the union.
He objected to financial contributions by OPSEU to a political party and
to its financial support for various political causes that he personally
disliked, and he argued that his money should be used strictly for
matters related to collective bargaining.
Lavigne took the union to court and won at the trial level but finally
lost at the Supreme Court of Canada.
This court was unanimous in its decision but badly divided in its
reasons.
The seven justices who heard the case did agree that the
Constitution Act, 1982
applied but could not agree on whether freedom of association was
actually an issue in the case or whether freedom of association carries
with it the guarantee of freedom not to associate.
In a case from the Vancouver area
(“Wasilifsky . . .”),
the British Columbia Industrial Relations Council considered the
application of a husband and wife who sought to be exempted from
compulsory membership and payment of dues in an affiliate of the
British Columbia Teachers' Federation on religious grounds.
They objected to the Federation's position supporting the right
to abortion.
The Council exempted them from membership but refused to exempt
them from paying fees on the grounds that there was no evidence that
the Federation had used any of its funds to further their pro-abortion
policy.
A Newfoundland case in which religion was also an issue involved a
teacher who was suspended from the Newfoundland Teachers'
Association for one year for refusing to participate in an association
approved withdrawal of selective services
(“Andrews . . .”).
He chose not to participate because it violated the tenets of his
religious faith and those of the Pentecostal school system for which
he worked.
The Newfoundland Teachers' Association determined that this refusal
constituted “unprofessional conduct” and “misconduct”
as these terms were used in the
Newfoundland Teachers' Association Act
and suspended the teacher for these reasons.
Upon reviewing the case, the Newfoundland District Court determined
that the unprofessional conduct and misconduct provisions of the Act,
although not penal in nature, involved serious penalties and had to be
construed specifically.
All the offences listed in the act were ones that could bring the teaching
profession into disrepute and it was not clear that strikebreaking was
such an offence.
The court reasoned that had the legislature intended strikebreaking to
be included in the list of offences, it would have included it explicitly.
The court reversed the teacher's suspension on these grounds and
declined to deal with the issues of religious freedom and
discrimination.
Because teachers are part of the labour force under provincial
jurisdiction, they are protected from discrimination in employment by
provincial human rights codes.
Teachers in non-denominational boards are fully protected, whereas
those in denominational boards are protected only insofar as the code
does not come into conflict with denominational rights guaranteed
under the constitution.
Of the three cases examined below, two concern sex and one religion.
All concern classroom teachers.
In a 1981 case
(“Charlotte Thibault . . .”),
a female applicant for a teaching job with a Quebec college was
successful in claiming discrimination when the job she applied for
was filled by a male with qualifications equal to hers.
The administration of the college had developed criteria for filling
four positions on a team that would be teaching a program aimed at
housewives who had not had recent experience either with employment
or formal schooling.
One of the criteria was that the team should be as balanced as possible
with respect to sex in order to avoid “a ghetto of women within
themselves”.
This criterion was invoked to tip the balance for the
male applicant for
the fourth position after females had been hired to fill the first
three.
The Quebec Superior Court found a human rights violation and ordered
the college to cease utilizing the sex-balancing criterion.
In a 1986 case from British Columbia
(“Nevio Rossi . . .”),
a male physical education teacher successfully claimed discrimination
when a female with lower seniority was hired to fill a position teaching
girls' physical education in a high school.
The board admitted that it refused to consider any male applicants, but
argued that this was necessary on the grounds of public decency, a
ground permitted by the provincial
Human Rights Code.
The issue was not public decency with respect to teaching, since male
and female physical education teachers routinely teach boys',
girls', and mixed classes of physical education in many Canadian
schools at various levels.
The issue centered around supervision of the change rooms.
The Human Rights Council made a decision influenced by three
findings of fact based on testimony from teachers.
The council determined that the change rooms were relatively safe and
trouble free and required little supervision.
Two methods had been used by male teachers to provide this
supervision when necessary.
One was to ask a female teacher or other female school employee to go
into the change rooms and handle the situation.
The other was to send a girl in to announce that the male teacher was
about to enter and to warn everyone to become decent.
The council felt that the requirement for public decency was not
pressing enough under the circumstances to justify the
discrimination.
These two cases raise important issues about the sex balancing of
school staffs.
Many school boards like to ensure that every school has at least one
male teacher and at least one female teacher.
It is frequently necessary for a school staff member to enter the
washrooms or change rooms to enforce school policy regarding tobacco,
alcohol, or drugs or in case of the illness of a student.
Normally only a teacher of the same sex will enter the washrooms or
change rooms, a policy that seems advisable in light of the vulnerability
of teachers to accusations, justified or not, of impropriety.
Sending in non-professional staff may involve an unethical delegation of
supervisory responsibility and may not meet the school's legal
obligation to supervise.
In both of the above cases, the judicial authority determined that in the
particular circumstances under review the discrimination was
unnecessary, but these determinations may not be very
generalizable.
In a British Columbia case decided by the Supreme Court of Canada in
1984 (“Re Caldwell . . .”), a teacher at a private
Roman Catholic school was dismissed from her employment because she
married a divorced man in a civil ceremony, thus violating two rules
of the church.
The court determined that adherence to the teachings of the Roman
Catholic church was a bona fide occupational qualification for a
teaching job in a Roman Catholic school and that Caldwell's
dismissal was justified because she no longer possessed the necessary
qualifications for her job.
Her dismissal did not violate human rights legislation.
The Supreme Court of Canada made several distinctions that limit the
scope of this decision.
The court indicated that section 93 of the
Constitution Act, 1867
was not relevant to this case and that the decision would have been
different if the school had been a public school.
This makes the Caldwell case different from the denominational cause
dismissals considered later in this chapter.
This case was also distinguished from an earlier case in which it was
determined that religion was not a bona fide occupational qualification
for a secretary in a denominational school.
Boards of reference are created by school legislation in most provinces
as an avenue of appeal for a teacher against suspension, dismissal,
cancellation of a teaching certificate, or more than one of these,
depending on the province.
The grievance procedure may also be available in such cases, depending
on provincial legislation and the exact terms of the collective agreement
under which the teacher works.
The appeal to a board of reference can be launched by the teacher
without the intercession or approval of the teachers' association,
whereas grievance arbitration often requires the approval of the
association.
Board of reference provisions were incorporated into education acts
before collective bargaining became widespread, and they have
remained there as an appeal route for a narrow range of grievances.
Appointment provisions for boards of reference and their size vary
considerably.
One- and three-person boards are the most common.
A one-person board will normally be appointed by the minister of
education from among the judiciary or from a pre-selected panel of
individuals.
Three-person boards are commonly formed by a nominee of each party,
the teacher and the board or the teacher and the minister, and a third
person chosen by the two nominees.
This third person acts as the chairperson.
The board hears submissions from both parties and renders a decision
which is binding on both.
The cancellation or dismissal can be confirmed, the certificate can be
restored, the dismissal can be nullified, or monetary compensation may
be available as an award depending on the province.
A very well publicized board of reference hearing in Alberta
(“Keegstra . . .”)
confirmed the dismissal of a social studies teacher who
had, in his classes, replaced the authorized curriculum with the
Jewish conspiracy theory of history.
He was dismissed for failing to comply with the prescribed curriculum
after having been warned on several occasions to change his
teaching.
In a Saskatchewan case
(“Board of Education of Broadview . . .”),
a chemistry teacher was dismissed for redundancy when the program in
which he was teaching was discontinued because of declining
enrolments.
The board of reference determined that there was a vacancy, suitable
for the dismissed teacher, at an elementary school in the same school
division and that the school board had been obligated to offer this
position to him.
The board of reference reinstated the teacher and this reinstatement
was confirmed on appeal by the Court of Queen's Bench and the Court
of Appeal.
In a 1993 Alberta board of reference case
(“West . . .”),
a teacher was dismissed by his school board for breaches of the school
board's corporal punishment policy.
The board's policy permitted corporal punishment including the strap
in restricted circumstances but West was alleged to have used force on
students over a period of time in a manner not permitted by
the policy.
The incident that precipitated his dismissal was described as follows
(176–177).
. . .
Students were not permitted to leave the class until they had
been discharged by the teacher.
About one-half of the class left and were told by West to
return.
Most of the students readily returned to the classroom but
Loehouillier appeared reluctant to do so.
West pushed him in the back at the entrance to the room.
Loehouillier fell and bruised his hip.
At this point McFaddin [another student] intervened to tell
West that he should not push Loehouillier.
West retorted “up yours”, to which McFaddin replied
“up yours to”.
McFaddin was asked to go to the principal's office and when
he refused to do so, was escorted by a hand on the arm and
the neck by West.
McFaddin was later observed to have red marks on his neck.
The board of reference held that this incident alone was not sufficient to
justify dismissal but that, in conjunction with previous similar incidents
about which West had been warned, there was sufficient cause to justify
the dismissal.
West's dismissal was upheld but he was awarded six months'
salary based on his generally valuable contribution to the school and
the community during his 29 year teaching career.
The phrase “denominational cause” refers to a denominational
right possessed by some school boards to consider denominational factors
in the employment and dismissal of teachers.
These rights exist actually or potentially in the three provinces that
still have
constitutionally protected denominational school boards, and only these
boards possess such rights.
Although teachers can be disciplined for denominational cause only in
Alberta, Saskatchewan, and Ontario, one early case from Newfoundland and
Labrador is considered because of its potential relevance to the
three existing denominational cause provinces.
Denominational cause dismissal cases originated in Ontario in the
1970s with the case “Re Essex County Roman Catholic Separate School
Board and Porter et al.” in which two teachers were dismissed for being
married in a civil ceremony in violation of Roman Catholic philosophy.
They appealed to a board of reference and were reinstated.
The employer, a separate school board, took the case to court and
argued successfully in both the Divisional Court and the Court of
Appeal that boards of reference prejudicially affected denominational
rights that Roman Catholics had at Confederation, rights that were
preserved by section 93 of the
Constitution Act, 1867
(discussed in chapter 2).
The courts noted that, at Confederation, boards of reference did not
exist and that school boards had unmitigated common-law rights to
dismiss employees.
They added that denominational boards had and have the right to
dismiss for denominational cause and that the Province of Ontario in
establishing boards of reference to arbitrate dismissals had violated
section 93 with respect to such dismissals by denominational boards.
A later case involving the same school board (“Re Essex County Roman
Catholic Separate School Board and Tremblay-Webster et al.”) dealt
with the arbitrability of denominational cause dismissals under
collective agreements.
After the Porter case, the teachers of the Essex County Separate School
Board negotiated a just-cause dismissal clause in the collective
agreement with the board.
When Tremblay-Webster was dismissed for the same reason as Porter,
the board of reference appeal was not available to her by virtue of the
Porter case, but grievance arbitration was or appeared to be.
The school board challenged the jurisdiction of the board of arbitration
on the same grounds as that of the board of reference in the Porter
case.
But the Ontario Court of Appeal saw an important distinction between
the two and ruled that the board of arbitration had the jurisdiction
required to proceed.
Whereas the board of reference procedure had been imposed
legislatively by the province, the grievance arbitration procedure was
imposed by an agreement entered into voluntarily by the school board.
Although grievance arbitration is required in Ontario collective
agreements, the contracting parties are free to exclude certain issues
from the procedure.
The board could have negotiated such an exclusion but did not.
We can conclude that the Province of Ontario cannot by statute
prejudice the denominational
rights of boards, but the boards
themselves are free to enter into agreements that prejudicially affect or
even remove such rights.
In the case of “Black v. Metropolitan Separate School Board” a separate
school board dismissed a teacher because she was directing her property
taxes to the non-denominational board of education rather than to the
Roman Catholic separate school board, in contravention of a board
policy.
The policy was found to be not unconstitutional and the dismissal was
upheld.
Alberta entered the denominational cause arena with the “Casagrande
. . .” case.
Casagrande was dismissed by the Hinton Roman Catholic Separate
School Board after she became pregnant for a second
time without ever
being married.
She was pregnant when first employed by the board but did not inform
the board of this fact.
After resuming her teaching duties following the birth of her first child,
she was warned by the superintendent that Roman Catholic philosophy
forbids premarital sexual intercourse and that teachers are expected to
abide by this philosophy.
When she applied for maternity leave a second time, she was dismissed.
Her appeal was denied by a board of reference and by the Court of
Queen's Bench.
Casagrande's argument that dismissal for denominational cause was
unavailable to the board was rebutted by the precedence of section 17 of
the
Alberta Act
over the “Canadian Charter of Rights and Freedoms” by virtue of
section 29 of the latter statute (discussed in chapter 2).
Section 17, being a constitutional provision, also takes precedence over
provincial human rights legislation.
Both the board of reference and the court accepted premarital sexual
intercourse as a valid denominational cause for dismissal on the
grounds that teachers in Roman Catholic schools are required to adhere
to the philosophy of the church in their daily lives in order to set a good
example for the children.
They also rejected Casagrande's contention that she was dismissed
because of her pregnancy, a discriminatory ground.
The restriction against sexual intercourse outside marriage applies
equally to men and women and was therefore held to be
non-discriminatory.
Denominational cause dismissals have not been possible in Newfoundland
and Labrador since 1998 when constitutional denominational rights
were abolished.
The Kearley case, discussed below, deals with several broad principles
that are relevant in those provinces that still have denominational
school rights.
In a 1993 case (“Kearley . . .”), a teacher in
a Pentecostal school was
dismissed when she married her second husband while her first
husband, whom she had divorced, was still living, a violation of the
doctrine of the Pentecostal Assemblies of Newfoundland.
The teacher filed a human rights complaint and had her case heard by
a human rights board of inquiry.
The board determined initially that the dismissal in this instance was
one of denominational cause and then ruled, in a manner consistent
with comparable Ontario cases, that it did not have the jurisdiction
necessary to deal with the case.
Denominational cause dismissals could not be reviewed by boards of
inquiry before 1949, and to now subject them to such review would be
prejudicial to preserved denominational rights.
Nevertheless, the board did review the dismissal to guard against the
possibility that in a later appeal a court might quash the jurisdictional
finding, thereby requiring a decision on the dismissal itself.
The board ruled that adherence to the doctrine of the Pentecostal
Assemblies was a bona fide occupational requirement of these
denominational schools and upheld the dismissal.
Most Canadian teachers are employed under collective agreements
between teacher associations and school boards or the province.
In some provinces one collective agreement covers the entire province,
in others there is one for each board, and in Ontario many boards have
more than one.
These agreements are frequently long and complex and cover many
aspects of employment, including working conditions, salaries, benefits,
leaves, layoff, recall, discipline, and dismissal.
Normally, grievance and grievance arbitration procedures are included
to settle differences arising during the term of the agreement.
Teachers are protected in their employment by several other provisions.
They are protected against discrimination by provincial human rights
codes insofar as these do not conflict with constitutionally established
denominational rights.
Boards of reference established by provincial legislation act as an
appeal mechanism in cases of dismissal.
However denominational membership and adherence to a
denominational philosophy have been accepted as bona fide occupational
qualifications for teachers in denominational schools.
-
Should teachers be able to opt out of the union for reasons of
personal conviction?
Should a teacher who opts out be permitted to avoid paying union dues?
Should such a teacher be required to donate an equivalent amount of
money to a charitable organization if exempted from paying dues?
-
How would you have decided the Lavigne case?
-
Teacher strikes frequently divide the teaching force into two often
bitterly opposed groups: those who regard strikes as unprofessional and
therefore unacceptable, and those who have no such reservations.
Should teachers as professionals strike?
What effect do teacher strikes have on the public image of the teaching
profession?
Should provincial law substitute compulsory contract arbitration or
final offer selection for strikes by teachers?
-
Work-to-rule has been criticized as a technique used by teachers to go
on strike without actually losing pay.
Clearly teachers have much less of an incentive to settle outstanding
issues if they are receiving pay even though not performing all their
normal teaching tasks.
Work-to-rule tactics also strain and even sour the pupil-teacher
relationship.
But many parents remain satisfied as long as the teachers are in the
schools keeping their children safe and out of trouble, even if the
children are not learning very much.
Should boards have the right or even the obligation to refuse to pay
teachers who are working to rule?
Would it be feasible to make such partial work stoppages illegal?
Is work-to-rule unprofessional?
-
Should school boards ensure that every school enroling students of
both sexes has at least one female teacher and at least one male
teacher?
If not, how should washroom supervision be handled?
The most common single-sex staffing situation is the all-female
elementary school.
Is this acceptable?
Would an all-male elementary school be acceptable?
Does the level of the school matter?
-
One argument unsuccessfully advanced in the Casagrande case was
that using the fact of the pregnancy of an unmarried woman as
evidence of premarital sexual activity was discriminatory in effect since
such conspicuous evidence could never be available for men.
Is this a valid argument?
If abstinence from premarital or extramarital sexual intercourse is a
bona fide occupational qualification for teachers in denominational
schools, how are male transgressors to be caught?
-
An interesting aspect of teacher discipline and dismissals is that they
frequently do not relate directly to teaching.
In a case widely reported in Toronto newspapers during the fall of 1971,
a 25-year-old teacher of English in a non-denominational public high
school was suspended from his job after pleading guilty to growing
marijuana in his backyard.
The Ontario Teachers' Federation recommended to the minister of
education that his teaching certificate be suspended until the following
school year, but the minister, in an unusual move, refused.
The teacher had substantial support from the community (Don Mills)
and from students and was widely regarded as an excellent teacher.
Who was correct, the federation or the minister?
What counts, or should count, more, a teacher's classroom performance
or public example?
There is no single good recent reference on collective bargaining that is
limited to teachers.
Brown and Beatty is a standard reference on arbitration and collective
bargaining generally.
Sanderson is older and considerably shorter but covers a broader range
of material on collective bargaining not limited to teachers.
Marcotte contains some specific information on the contents of teacher
collective agreements across Canada.
Specific information on Ontario can be obtained from Hennessy
and the two Downie references.
Allan, Rodger.
(1983).
“Prohibited Practices in Collective Bargaining”.
Balderson and Kolmes.
(1983).
87–96.
Balderson, James and Kolmes, Jo-Ann (eds).
(1983).
Legal Issues in Canadian Education.
Edmonton: Canadian School Executive.
“Black v. Metropolitan Separate School Board”.
(1988).
Ontario Reports
(2d).
65: 598–612.
“Board of Education for Moose Jaw School District No. 1 et al. v.
Attorney-General of Saskatchewan et al.”
(Court of Queen's Bench).
(1974).
Dominion Law Reports
(3d).
41: 732–739.
“Board of Education for Moose Jaw School District No. 1 of
Saskatchewan v. Attorney-General for Saskatchewan et al.” (Court of
Appeal).
(1976).
Dominion Law Reports
(3d).
57: 315–320.
“Board of Education of Broadview School Division
No. 18 v. Gill”.
(1987).
Saskatchewan Reports.
55: 1–5.
“Board of School Trustees of School District No.
65 (Cowichan) v.
Peterson”.
(1988).
British Columbia Law Reports
(2d).
22: 98–116.
Brown, Donald J.M. and Beatty, David M.
(1988).
Canadian Labour Arbitration
(3rd ed).
Aurora, Ontario: Canada Law Book.
“Casagrande v. Hinton Roman Catholic Separate School
District No. 155 and Board of Reference”.
(1987).
Alberta Law Reports
(2d).
51: 349–362.
“Charlotte Thibault v. Le College de Sherbrooke”.
(1981 10).
Canadian Human Rights Reporter.
2,117: D/530–D/532.
David, Robert K.
(1983 05).
“The Firing of James Keegstra”.
Canadian School Executive.
3,1: 19–21.
Downie, Bryan M.
(1978).
Collective Bargaining and Conflict Resolution in
Education.
Kingston: Queen's University Industrial Relations Centre.
Downie, Bryan M.
(1992).
Strikes, Disputes and Policymaking: Resolving Impasses
in Ontario Education.
Kingston: IRC (Queen's University Industrial Relations
Centre) Press.
Hennessy, Peter.
(1979).
Schools in Jeopardy.
Toronto: McClelland and Stewart.
Hodgson, Ernest.
(1984 03).
“The Keegstra mess: an administrative report card”.
Canadian School Executive.
3,9: 15–17.
“Intermountain Division Association No. 36 of Manitoba
Teachers' Society v. Duck Mountain S.D. No. 1179”.
(1962).
Western Weekly Reports.
38. 106–110.
“Kearley v. Pentecostal Assemblies Board of
Education”.
(1993).
Canadian Human Rights Reporter.
19,54: D/473–D/585.
“Keegstra v. Board of Education of Lacombe No. 14”.
(1983).
Alberta Law Reports
(2d).
25: 370–382.
“Lavigne v. Ontario Public Service Employees Union”
(Supreme Court of Canada).
(1991).
Dominion Law Reports
(4th).
81: 545–649.
Marcotte, William A.
(1984).
Teachers' Collective Agreements.
Toronto: Council of Ministers of Education, Canada.
“Nevio Rossi v. School District #57”.
(1986 04).
Canadian Human Rights Reporter.
7,511: D/3237–D/3241.
“Re Caldwell et al. and Stuart et al.”.
(1985).
Dominion Law Reports
(4th).
15: 1–22.
“Re Essex County Roman Catholic Separate School Board and
Porter et al.”.
(1979).
Dominion Law Reports
(3d).
89: 445–448.
“Re Essex County Roman Catholic Separate School Board and
Tremblay-Webster et al.”.
(1984).
Dominion Law Reports
(4th).
5: 665–670.
“Re Flin Flon Division Association No. 46 and Flin Flon
School Division No. 46”.
(1965).
Dominion Law Reports
(2d).
47: 87–92.
“Re Lavigne and Ontario Public Service Employees
Union et al.”.
(1986).
Ontario Reports
(2d).
55: 449–521.
Sack, Jeffrey and Poskanzer, Ethan.
(1985).
Contract Clauses
(2nd ed).
Toronto: Lancaster House.
Sanderson, John P.
(1979).
The Art of Collective Bargaining.
Toronto: Richard De Boo.
“Wasilifsky (No. 5) v. North Vancouver Teachers'
Association”.
(1992).
Canadian Labour Law Reports.
1992,16,031: 14-222–14-226.
“Wasilifsky v. North Vancouver Teachers'
Association”.
(1991).
Canadian Labour Law Reports.
1991,16,053: 14-520–14-547.
“West v. Red Deer (County) No. 23”.
(1993).
Alberta Reports.
139: 173–180.
© Lawrence M. Bezeau 2007