Canada: Discharge Of Teacher Under TPA System Upheld By Arbitrator

Discharge of teachers for unsatisfactory teaching performance is seldom a straightforward task. Arbitrator Pamela Picher has recently provided guidance to school boards in Ontario's first Teacher Performance Appraisal ("TPA") discharge arbitration in the case of Toronto District School Board and Ontario Secondary School Teachers' Federation – District 12. The decision was released on August 19, 2011.

TEACHER PERFORMANCE APPRAISAL SYSTEM

In Ontario, "Part X.2, Teacher Performance Appraisal" of the Education Act and its related Regulation 99/02 establish the framework and mandatory requirements of the TPA system. Every teacher is evaluated under the TPA system at least once in a period of three years. Additional performance appraisals can be triggered if the principal of a school considers it advisable in light of the circumstance relating to a teacher's performance.

School boards are permitted to establish policies and rules relating to the performance appraisal of teachers that are consistent with the TPA system. To that end, the Toronto District School Board ("TDSB"), in consultation with relevant unions, developed a Teacher Performance Appraisal Process Binder and a TDSB TPA Policy/Procedure (collectively referred to as "TDSB TPA Process").

Once a teacher is selected for evaluation, an evaluation consisting of a maximum of three "Cycles" follows. Cycle 1 and Cycle 2 evaluations are performed by the Principal of the school or, if so delegated, the Vice-Principal. The Cycle 3 evaluation under the TDSB TPA Process is conducted by the Superintendent of Education or designate. The TDSB TPA Process contains a total of approximately 133 "Look-Fors", itemized benchmarks of teacher conduct, which supplements sixteen teacher "Competencies" spread over five "Domains" or general categories, contained in Regulation 99/02.

ARBITRATION BOARD UPHOLDS DISCHARGE UNDER TDSB TPA PROCESS

Nicolae Gusita began teaching at Harbord Collegiate Institute in the fall of 2002. In Mr. Gusita's first term of teaching at Harbord, students and parents raised a series of concerns about his performance. They complained that

Mr. Gusita's explanation of concepts was not clear and his tests were not reflecting what was being taught. The parental and student complaints, which continued through October and November 2002, three informal classroom observations, and Mr. Gusita's response to the concerns, culminated in the placement of Mr. Gusita on the list of teachers being evaluated under the TDSB TPA Process for the 2002-2003 school year.

Mr. Gusita eventually progressed through all three cycles of the TDSB TPA Process, with three consecutive overall performance ratings of "Unsatisfactory". Following the third cycle, Mr. Gusita was discharged for unsatisfactory teaching in June 2004. The Ontario Secondary School Teachers' Federation ("OSSTF") grieved the discharge. The OSSTF largely focused its arguments on the appraisal process followed by the TDSB in all three Cycles, including claims of bias, manipulation, arbitrariness, and unfairness. The OSSTF's criticisms also included complaints ranging from the competence of the Vice-Principal who conducted the Cycle 1 and Cycle 2 evaluations as a TPA evaluator and to the lack of absolute independence of the Cycle 3 evaluator and the Superintendent of Education.

In arriving at her conclusion that the TDSB appropriately discharged Mr. Gusita for unsatisfactory teaching performance, Arbitrator Picher, writing for the majority of the Board of Arbitration, found that a "just cause" standard of review applied to the discharge; such review, however, had to respect the highly controlled scheme of teacher performance appraisals. Accordingly, the Arbitrator did not substitute her own evaluation of Mr. Gusita's teaching performance for that of the TDSB evaluators, nor did she consider any action in the evaluation process that should have been taken beyond those actions included in the TDSB TPA Process.

Instead, the Arbitrator considered whether the essential elements of the mandated TPA procedure were followed. The Arbitrator also considered whether the essential elements of fairness built into the TPA process to enable Mr. Gusita to demonstrate his competence were applied, whether the respective evaluators carried out the TPA process without discrimination, arbitrariness or bad faith, and whether the three ratings of "Unsatisfactory" were reasonable and based on supporting facts. In large part, this effectively meant that the "just cause" review centered on an assessment of TDSB's compliance with the appraisal process.

Arbitrator Picher ultimately concluded that the overall performance ratings of "Unsatisfactory" in all three Cycles complied with the TDSB TPA Process, both procedurally and substantively, and that the assessments and evaluations were made in good faith without discrimination, arbitrariness, bias, collusion, undue influence, manipulation, unfairness, or ill-will. Contrary to the OSSTF's assertions, the Arbitrator commented favourably on how Mr. Gusita was given many pointers on how to improve, including the Vice-Principal taking pains to describe to Mr. Gusita precisely where he had fallen short, how he needed to improve, and informing Mr. Gusita that at the start of the 2003-2004 school year they would work through his class lists together to identify potential problems and to develop a plan for addressing and managing them.

GUIDANCE FOR SCHOOL ADMINISTRATORS

Developing and implementing a school board-specific TPA process that is consistent with the TPA system set out under the Education Act is critical and its utility is highlighted by this decision. The decision underscores the purpose of the TPA procedure, namely:

(a) to ensure students receive the benefit of an education system staffed by teachers who are performing their duties satisfactorily;

(b) to provide for fair, effective and consistent teacher evaluation in every school; and

(c) to promote professional growth.

It is important for school administrators to ensure that the essential elements of the TPA procedure are complied with. Administrators should ensure that the elements of fairness built into the TPA process are applied and that the appraisal is carried out without discrimination, arbitrariness or bad faith. The ratings given to the relevant teacher should be reasonable and based on credible supporting facts.

Arbitrator Picher's decision sets out the importance of providing documentation that procedurally and substantively complies with the TPA process set out in the legislation.The case also highlights the importance of supporting the teacher in his or her attempt to improve, identify potential problems and develop a plan to address areas of deficiency. It should also be recognized that the documentation of a teacher's performance is critical from the perspective of having leverage to negotiate a resolution to a TPA termination, allowing the school board to deal from a position of strength.

About BLG

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions