Professionals and Multiple Proceedings: A Summary of the “Sclater” Decision

by: Philip Abbink

In the recent case of The Simcoe County Board of Education and Elementary Teachers’ Federation of Ontario (Sclater Grievance) (2005), 140 L.A.C. (4th) 52 (Newman); [2005] O.L.A.A. No. 269, the arbitrator decided that there was no just cause to terminate the grievor when she had attracted attention and generated controversy based on earlier misconduct, but was not guilty of any new misconduct. The earlier events had been the subject of lengthy investigations, hearings and had finally been resolved between all involved parties.

In 1998, Laura Sclater had inappropriately corresponded with her 13-year old male student. She was suspended from her employment, and the events were the subject of an investigation by the police and the Children’s Aid Society, and proceedings at the College of Teachers of Ontario. With respect to the College proceedings, the matter proceeded to a hearing before the Fitness to Practice Committee. The Committee decided that the writing and receiving of letters with a student crossed teacher-student boundaries and constituted serious misconduct. However, the Committee also concluded that there was no physical touching, a finding that was consistent with the investigations of the CAS and the police.

By September 2000, Ms Sclater had unsuccessfully appealed the Fitness to Practice Committee’s decision to the Ontario Superior Court of Justice, and had her certificate of registration returned to her, albeit subject to certain conditions. The grievance arising from her suspension had been also been resolved by this time: she had been reinstated by the Board. In September 2000, Ms Sclater was teaching a grade three class.

Ms Sclater’s return to the classroom attracted widespread media attention, and generated controversy in the community. The parents of the student to whom Ms. Sclater had written letters instituted a civil suit against the Board and Ms. Sclater. False allegations that the relationship had involved touching led to criminal charges and Ms. Sclater was once again suspended without pay. The College also laid new charges in light of these criminal proceedings.

Ms Sclater was acquitted of the criminal charges related to allegations of physical contact between herself and her former student, primarily on the basis that the student and other Crown witnesses lacked credibility. The civil suit against Ms Sclater was withdrawn. After negotiations with the College, Ms Sclater pleaded guilty to conduct unbecoming a teacher and received a reprimand by the Discipline Committee. The plea was entered to avoid further litigation, and her certificate was returned immediately with the same conditions imposed by the Fitness to Practice Committee. Notably, there was no extension of the time during which the conditions were to apply. These additional matters had all been resolved by late 2002.

Ms Sclater sought employment in the classroom again, but was terminated by the Board on October 23, 2003. The Board’s position was that Ms Sclater’s continued employment was inconsistent with the duties of a school board.

In arriving at her decision that the Board did not have cause to terminate Ms Sclater, Arbitrator Newman noted several additional facts that were relevant. First, when the Board placed Ms Sclater back in the classroom in September 2000, it had relied on evidence that therapy had addressed the causes of her misconduct. Further, the arbitrator found that the conditions imposed by the College upon her return to teaching were not onerous for the Board.

Although the level of disruption caused by Ms Sclater’s return to the classroom in September 2000 was intense and the level of controversy was extreme, these issues were also both temporary and manageable. The Board had been able to manage and quickly reduce the disruption caused by parents at the school.

Arbitrator Newman found that following Ms Sclater’s return to the classroom the disruption and controversy had been renewed by the actions of the mother of the student involved in the 1998 allegations and sensationalized, unbalance media coverage. They had not been due to any act of misconduct on the part of Ms Sclater. While the Board’s prediction that Ms Sclater’s presence in a classroom would lead to controversy and media coverage was well-founded, it was not due to any misconduct that could be attributed to Ms Sclater.

The Board took the position that it would have been inconsistent with their duties to continue Sclater’s employment. They argued that the plea of conduct unbecoming a teacher at the College in November of 2002 constituted a new and significant development in the public’s view. Since Ms Sclater’s presence in a school would generate controversy, the Board felt that their duty to maintain public confidence in the educational system would have been compromised had she been permitted to remain in their employ. Finally, the Board argued that the media interest and controversy created an unsafe and disruptive environment for the children, and created extreme stress for their administrative staff. “Continued employment of Sclater would, it submit[ted], erode public confidence in the educational system, generate continued controversy in the school and in the school community, and would disrupt the educational environment.”

On behalf of the Elementary Teachers’ Federation of Ontario (ETFO), David Matheson argued that “to the extent that the jurisprudence reflects an obligation on school boards to protect the learning environment from controversy and disruption, the discussion of those factors is linked to the assessment of the seriousness of the misconduct, in any given case.” However serious her misconduct in 1998, Ms Sclater had already been disciplined for it and had been successfully reintegrated into teaching as of September 2000, after which time she did nothing wrong. In addition, the conditions that College attached to Ms Sclater’s teaching certificate did not generate hardship or risk for the Board’s employees.

In her decision, Arbitrator Newman concluded that:

I cannot accept the proposition that absent of an act of misconduct on the part of a teacher, disruption and controversy constitute grounds for termination.

The misconduct was committed in 1998. Discipline was imposed. The evidence warranted a return to the classroom.”

Arbitrator Newman also noted that media interest was sensationalized and sexualized, and was generated with no regard to the nature and quality of Ms Sclater’s actions after 2000, all of which had been to her credit.

The arbitrator essentially applied the traditional test in discharge cases where a collective agreement guards against discipline or discharge except for just cause:

• First, was there an act of misconduct?
• Second, did the seriousness of the misconduct warrant the degree of discipline imposed?

Applying this test, it was held that Ms Sclater’s termination was clearly disciplinary and that the collective agreement did not allow for termination without just cause. As Ms Sclater had not committed any additional act of misconduct, the inquiry did not need to proceed past the first stage.

The importance of this decision is primarily that it reiterates the fact that just cause for termination does not exist absent a new act of misconduct. Where a collective agreement protects employees with a just cause provision, attention by the public or media, and whatever resulting disruption or inconvenience that may cause, cannot, in themselves, justify the termination of one’s employment.

Ms Sclater’s case is also demonstrative of the importance of winning legal battles in the variety of for a that professionals may encounter where issues of workplace misconduct arise. In this case, the arbitrator was deferential to the findings of credibility made at the criminal trial, and the College findings that Ms Sclater was fit to teach. Since the standards of proof required may vary, it is not necessarily the case that an acquittal at a criminal trial will lead either to a similar finding in the College or labour arbitration proceedings. Nevertheless, when professionals face multiple proceedings arising out of the same set of circumstances, as is often the case, the decision rendered in one proceeding can and often does affect the others. Thus, early and thorough attention to proceedings in each forum can have far-ranging effects for individual members.