The Grievor, a bus driver/custodian, pleaded guilty to sexual offences involving minors some twenty years earlier and was convicted. The events giving rise to the conviction occurred prior to the Grievor commencing employment with the school board. One of the terms of his sentence prohibited him from seeking or maintaining employment that would put him in contact with children under the age of sixteen for a four year period.

Following his conviction, the Grievor’s employment was terminated by the school board. In pursuing its grievance, the union argued that the Grievor should be retained in employment and assigned duties which did not involve contact with students, such as working the graveyard custodian shift.

The arbitrator was called upon to assess the extent to which the school board was entitled to impose discipline for events which occurred off duty and long ago. In this regard, the employment setting was a key consideration. Citing earlier caselaw, the arbitrator reasoned that non-teaching education sector employees are employed in a position of trust and responsibility and that the public’s ongoing confidence in such employees is of great significance.

The arbitrator concluded - without any direct evidence - that retaining the Grievor in employment would be seen negatively by the public and, more importantly, the parents of children in the school district. In weighing this against the Grievor’s fifteen years of discipline-free employment, the arbitrator was unable to conclude there was no risk of future harm to the students and concluded, therefore, that the employment relationship could not be salvaged.

The grievance was dismissed.