In Halton District School Board v. Elementary Teachers' Federation of Ontario, 2019 CanLII 96517, an arbitral award released on October 15, 2019 (the Award), Arbitrator James Hayes dismissed a two-day suspension imposed on a teacher who failed to confirm the safe transfer of a Junior Kindergarten student to their family member.
The parties did not dispute the facts that led to the suspension of the teacher, Snjezana Vukaljevic (the Grievor). On September 12, 2016, the Grievor was dismissing students at the end of the school day with the assistance of an Early Childhood Educator (ECE). Several of the Grievor's students were leaving to attend a YMCA after-school program, including student C.1
As the Grievor was tending to an ill student, she noticed C at the exit doors. The Grievor approached C and asked him if the man outside was his grandfather, to which C nodded "yes." The Grievor then proceeded to dismiss C out the exit doors at 3:12 pm without waiting to confirm the transfer of C with the safe transition wave.
Shortly after the end of the school day, YMCA staff realized that C had not appeared for the after-school program. Consequently, YMCA staff called C's family and C's grandfather found C at approximately 3:49 p.m. in a children's park area adjoining the school. While C's parents were understandably upset, fortunately no harm came to C.
Investigation and discipline
Following the incident, the Halton District School Board (the Board) conducted an investigation. The investigation revealed that the Grievor did not perform the routine 'wave' to signal the safe transition of C because the Grievor was distracted and worried about the ill student who had cried out as she was dismissing C. In response to the Grievor's failure to follow protocol, the Board issued a two-day suspension and provided the Grievor with a letter that included the following:
Snjezana, the Board has significant concerns with these events. The incident, as reported and investigated, demonstrates a serious lack of judgment on your part, and a complete disregard for your professional and ethical responsibility for the well-being of your students. We do however, appreciate your candor in discussing these events, and that you have shown remorse for the situation.
After reviewing the facts and submissions of the parties, Arbitrator Hayes acknowledged that:
 ... an arbitrator should be loath to modify employer discipline - having regard to the offence, the individual concerned, and the particular workplace – so long as it falls within a zone of reasonableness. An employer effort to maintain legitimate expectations of employees, supported by consistency in application of discipline, should not be undermined by arbitrator hair splitting.
While Arbitrator Hayes recognized that a two-day suspension might be seen as modest in appropriate circumstances, he concluded that each situation must be assessed on its individual facts. Based on the present circumstances, Arbitrator Hayes disagreed that the Grievor demonstrated a "complete disregard" for her professional and ethical responsibilities. By focusing exclusively on the Grievor's failure to confirm the transfer of C to a family member, Arbitrator Hayes found that the Board missed the other important context, such as:
- the Grievor's 16 years of experience without any disciplinary record;
- the Grievor was neither careless or reckless;
- the Grievor was honest and remorseful;
- another young child in the class was ill and was known to have had a previous seizure;
- there was a supply ECE charged with the YMCA group who contributed to what unfolded;
- C confirmed to the Grievor, by nodding, that the man standing outside, not many steps away, was his grandfather; and
- simultaneously, the Grievor was distracted by a cry from the child known to be ill.
Based on the foregoing, Arbitrator Hayes concluded that the two-day suspension was not reasonable. Accordingly, he allowed the grievance with compensation.
Lessons for educators
This award does not diminish the legitimate expectations of school boards and parents that teachers will take the utmost care of small children entrusted to them. Rather, it is a reminder tha7t appropriate discipline for teachers is driven by the particular facts of each case. As Arbitrator Hayes made clear:
 ...not every employee mistake, failure or misadventure deserves or requires a disciplinary response. The employer obligation to demonstrate just cause is not a trivial burden. It may or may not be satisfied by simple identification of error. The particular facts will always matter. The employment record of a grievor will almost always matter.
1. The child's name was replaced with 'C' throughout the Award.
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