Letters of discipline are a form of penalty that can be used by an employer such as a school board, to reprimand employees for unacceptable conduct or breach of professional standards. The recent decision of Arbitrator Ian Springate in Toronto District School Board and E.T.F.O (Bandurak), highlights some of the unique features of this form of discipline in the educational context, and emphasizes the importance of ensuring the contents of the letter accurately reflect the misconduct at issue.
THE FACTS OF THE CASE
The grievor was an elementary school teacher who taught a split class of students in grades four and five. One day, she took her students on a field trip to York University, which was a short walk away from their school. She was accompanied by a volunteer, who was there to assist her with supervision. The group walked to the University shortly after 9:00 a.m., with the teacher at the lead, her students in a line behind her, and the volunteer following at the rear. On the way there, the teacher looked over her shoulder frequently and, at certain points, stopped to allow slower students to catch up.
The day’s programming at the University went off without a hitch and the class got ready to head back to the school. The teacher once again lined the students up, and started walking back. At first, everyone appeared to be following her, but a few minutes into the return trip, the teacher could no longer see all of her students, nor could she see the volunteer. Since they were in the middle of a busy campus, the teacher assumed she couldn’t see the rest of the group because of the crowds, and thought they could not have been far behind. Shortly afterwards, she decided to pause for a few minutes and when she still could not see them, she sent her most responsible student back to look for them. The student was unable to locate the missing group. The teacher was surprised, but assumed that the missing students had taken a different route back to school with the volunteer. She continued to lead her group back towards the school and stopped to wait where she knew their paths would have to cross. However, the missing group never appeared.
Back at the University, a group of the elementary students had left the line shortly after the class started walking back towards the school, and started talking to one of the graduate students who had been involved in the day’s programming. They asked the graduate student questions and chatted for about fifteen minutes. The volunteer felt she had to wait for the students to finish their discussion, and assumed that the teacher had realized they had been held up and would be waiting for them. However, when the students finished chatting, the volunteer saw that the rest of the class was long gone. She started to lead the students that were with her back to the school by a different route. At one point, two of the boys left the group and ran over to some parked motorcycles. The volunteer unsuccessfully tried to stop them, but they started playing with the motorcycles. One motorcycle fell over, resulting in a student being bruised and some minor damage to the motorcycle. The volunteer was upset and concerned and asked a York student to call the school’s principal.
Meanwhile, the teacher still did not know what had happened to her missing students. She decided to take the rest of the group back to the school and then return to the York campus to look for them. As she was running back towards the campus, she saw three of the students who had been with the volunteer walking back to the school unsupervised. She started to accompany them back to the school, and then ran into the principal and vice principal who were headed to the campus by car to deal with the motorcycle incident. When they asked the teacher about the incident, she knew nothing about it. The teacher took the three students in her charge back to the school, and then headed back to the university campus, but, unable to locate the principal, vice-principal, volunteer, or the rest of her students, she returned to the school to wait. Eventually the rest of the missing group returned with the principal and vice-principal.
The principal of the school wrote a disciplinary letter reprimanding the teacher for what occurred on the field trip. The teacher grieved the letter. In particular, the union took issue with the wording of the letter, which it argued was inaccurate and amounted to an excessive response to the incident. Arbitrator Springate agreed with the Board that the teacher failed to properly supervise her students, and that the lack of proper care justified a disciplinary response. However, he also agreed with some of the union’s arguments regarding deficiencies with the letter itself.
THE ARBITRATOR’S DECISION
Although a letter of discipline is generally viewed as among the least serious forms of discipline, Arbitrator Springate noted that this seemingly mild form of discipline is actually a serious matter going to the teacher’s fitness to practice and live up to the accepted standards of his or her profession. Indeed, a disciplinary letter in a teacher’s personnel file can impact his or her professional reputation and future employment opportunities.
When an arbitrator reviews an employee’s prior disciplinary record in the context of a grievance arbitration, the union is generally not permitted to try to explain away the wording of any disciplinary letters that were not successfully challenged when issued. In other words, the arbitrator is permitted to take what is in the disciplinary record at face value. As Arbitrator Springate explained, this is the ‘flip side’ of the general arbitral practice of not allowing an employer to rely on alleged prior misconduct that did not result in discipline at the time. With these considerations in mind, Arbitrator Springate stated that it is vital for a letter of discipline to accurately reflect the events that actually occurred, and not mischaracterize the teacher’s conduct, either directly or by implication. Applying these principles to the case at hand, Arbitrator Springate held that the teacher had an important stake in preserving her professional reputation, which was brought into disrepute by the letter of discipline because it was inaccurate and needed to be corrected.
In particular, the letter described the teacher as having left the volunteer alone to supervise nine students, which suggested that the teacher had done so deliberately, when the reality was that she had inadvertently lost contact with the group. Further, the letter inaccurately claimed the teacher had acted contrary to the excursion forms she had signed, which simply wasn’t the case. In addition, the letter contained a lengthy description of a teacher’s duties as established in the Education Act and its regulations, and the Teaching Profession Act.
The way these duties were set out in the letter suggested that the Board viewed the teacher as having failed to live up to each of the listed requirements. Arbitrator Springate held that, while the teacher may have failed to fulfill some of the duties and responsibilities set out in the letter, the evidence did not suggest that her actions were deficient in respect of all of them; several of the statutory requirements that were listed in the letter had, in fact, been fulfilled.
Arbitrator Springate noted that it is relatively common for arbitrators to direct employers to amend an employee’s personnel file when it is determined that a disciplinary penalty imposed on the employee was too severe, and held that the same logic applies with respect to letters of discipline. In this case, the misleading nature of some of the letter’s language meant that it should be removed from the file. While acknowledging that the Board did have just cause to issue a letter of discipline, Arbitrator Springate held that it did not have just cause for many of the specific reprimands in the letter as originally drafted. Accordingly, he directed the Board to amend the teacher’s file to reflect that she “received a letter of discipline for having become separated from a volunteer and a group of students while on a field trip to York University”.
WRITING EFFECTIVE LETTERS OF DISCIPLINE
The principles set out by Arbitrator Springate in this decision should be kept in mind by all principals and other school board administrators when writing letters of reprimand or other disciplinary letters. In particular, individuals writing these kinds of letters should:
- keep in mind the letter’s potential impact on an employee’s reputation and future employment prospects, and the board’s obligation to justify its contents;
- ensure that the description of the facts set out in the letter accurately reflects the incident in question;
- ensure that the relevant duties and responsibilities set out in the letter directly relate to the incident or misconduct in question;
- ensure that accurate provisions of relevant legislation cited in the letter directly relate to the incident in question;
- use accurate wording to describe the act(s) for which the employee is being disciplined; and
- not use language that is overly broad, vague, or misleading.