Applying a contextual analysis in Halton District School Board v. Elementary Teachers' Federation of Ontario, 2021 CanLII 39378 (ON LA), Arbitrator Gedalof overturned a one-day suspension imposed on a designated early childhood educator (DECE) who did not notice a four-year-old wandered off school property unsupervised.
On Sept. 14, 2016, a Halton District School Board (the Board) DECE employee (the Grievor) was working with an Occasional Teacher (OT) to supervise a class of four- and five-year-old kindergarten students. While the class was returning to the classroom from the morning break in the kindergarten pen, a four-year-old student left the school property unsupervised and unnoticed by the Grievor and the OT.
It is not clear exactly how or when the student managed to leave the school but the Arbitrator concluded that it was likely before he got back into the classroom. Within minutes, the Grievor noticed and left the school to look for the student. She found him unharmed. The Grievor returned the student to the school without further incident.
It is noteworthy that this student had a history of leaving places unsupervised, which made him a "flight risk". During the previous school year, he had left the school and walked on his own to a grocery store down the street. The Grievor was aware of this incident and knew that the student had an individualized safety plan in place, including wearing an identification bracelet with his phone number on it.
Despite admitting to being aware of the student's safety plan, the Grievor maintained that his safety plan was not updated in the new school year and it was not specifically discussed with her. As a result of this incident, the Grievor was suspended for a day before returning to the classroom.
The bulk of the facts in this case were not in dispute. The primary issue in this case was whether the Grievor failed to exercise reasonable diligence in supervising the student and was culpable for him leaving the school property, considering the circumstances.
Arbitrator Gedalof concluded that while maintaining proper supervision of kindergarten-age children is a fundamental element of the DECE's role, the Grievor did not fail to meet a reasonable standard of supervision and as such, overturned the one-day suspension imposed by the Board.
In making this decision, he relied on Halton District School Board v. Elementary Teachers' Federation of Ontario, 2019 (Vukaljevic), where due to competing demands during the end of day pickup, an early childhood educator failed to confirm the safe transition of a junior kindergarten student to their family member.
Arbitrator Gedalof agreed "one cannot conclude from the mere fact that a student managed to escape that discipline is warranted." Further, he agreed with Vukaljevic's analysis where Arbitrator Hayes stated:
I also hold the view that 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 not be satisfied by simple identification of error. The particular facts will always matter. The employment record of a grievor will almost always matter.
Most importantly, Arbitrator Gedalof advised that it is "important to judge the Grievor against a standard of reasonable diligence, rather than one of perfection, and that it is important to consider the full factual context within which the incident took place." He further warned that in assessing such situations, "[o]ne should not work backwards from the unfortunate outcome [of the] case, and one should be cautious not to judge the grievor through the lens of hindsight."
He determined that the Grievor complied with the student's safety plan to the extent possible and did not fail to meet a reasonable standard of supervision. Based on the foregoing, Arbitrator Gedalof concluded that the one-day suspension was not reasonable. Accordingly, he allowed the grievance with compensation.
There are two main takeaways from this decision:
- While educators are responsible to supervise children under their care, each incident needs to be reviewed based on its individual facts and circumstances.
- Employers should ensure students' individualized safety plans are well communicated to and understood by educators.
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