In increasing numbers, Canadian faculty members are being fired from their academic positions for thinking or saying something their boss disagreed with and catastrophized as offense, disrespect or harassment. The erstwhile academic will invariably ask the union to grieve the termination. Since dismissal is the ignoble garland marking the culmination of progressive discipline, the arbitration is likely to be scheduled for the next availability, likely more than a year after the dismissal.
In this long waiting period, the faculty member may be worked over and demoralized – if not forsaken – by the arbitration-averse faculty union. The faculty member’s career will be on hold as a result of the sudden firing. Only a small proportion of arbitrations are fully completed. Whether or not the structure and timing of the arbitration is fair to the faculty member is a separate discussion, but let us assume that one has a full hearing of the merits and the arbitral panel concludes that the faculty member’s actions did not constitute sufficient cause for dismissal. What then?
Wrongly dismissed workers of the world would shout, “well, reinstatement of course!”
Not so fast.
Reinstatement to one’s former position is a legal remedy available for arbitrators to grant in collective labour relations in wrongful dismissals as well as under work-related statutes, such as occupational health and safety and human rights legislation. But reinstatement is discretionary and complicated by variables outside of the illegally dismissed faculty member’s control. This article describes the circumstances, by reference to the case of an Alberta teacher, where reinstatement will be an appropriate legal remedy and yet where it will not be ordered.
The Dorval Case
Some Canadians may remember the case of Lynden Dorval, the Edmonton public school teacher, who was fired by his school board for dispensing grades of zero to students who did not do their assignments. The case reached the Alberta Court of Appeal on the question of whether Dorval should be reinstated to his old teaching job.
Dorval, a teacher with an excellent performance record over 35 years, was terminated from his job because he refused to follow his principal’s order requiring him to use letter codes describing “student achievement, lack of participation, or behavior related to completion of an assigned task.” Since the code was not a recognizable grade, it played no part in evaluation of students’ performance. Students who did not complete assignments might have inflated grades compared to their peers who did the assignments, which reduced the incentive to do the assignments.
Instead, Dorval gave a “replaceable zero” to students who did not complete assignments. Students were still encouraged to hand in late assignments for a grade that replaced the zero. This motivated students, promoted accountability and resulted in a work-based evaluation. Dorval was not the only teacher who defied his principal, but he was the only one disciplined for doing so. On May 17, 2012, he was suspended. Four months later he was fired. Other vexations eventually were added such as him missing a staff meeting, not grading exams on time, returning to school property without permission and evincing an insubordinate attitude. Over the course of that disciplinary action, hostility justifiably developed between the teacher and his administrative superiors [Edmonton School District No 7 v Dorval (2016)].
Dorval grieved his termination. The arbitrator found he had been wrongfully dismissed and ordered the school board to compensate him. The Edmonton Public School Board took the case to the Alberta Court of Appeal where Dorval also asked to be reinstated to his teaching position in the school district.
The appellate court unanimously upheld the finding that Dorval had been wrongfully dismissed. Compensation was ordered to be paid as if the tenured teacher had been dismissed with reasonable notice and without cause.
But what if the teacher wants his job back? One might assume that if the courts had concluded he was illegally dismissed, it would be a fair and simple matter to enable Dorval to return to the classroom.
As it turns out, even when one is wrongfully dismissed, reinstatement to one’s former job is not a right. The arbitrator (or court) has discretion to determine if reinstatement is appropriate and an appeal court will assess whether that decision was reasonable in the circumstances.
Principles for Reinstatement
Reinstatement is more common in the collective labour relations world than in non-union employment. Ordering an employer to take back a worker is a form of the extraordinary equitable remedy called “specific performance” of the employment contract. Normally monetary compensation suffices for the employer’s illegal firing. Reinstatement is one-sided in the sense that the employer cannot seek and obtain it from a reluctant employee. It is also difficult, if not impossible, for a court to monitor the work relationship after reinstatement.
Compared to monetary compensation, reinstatement should be used sparingly and only in clear cases. Arbitrators will consider the following principles of law before ordering reinstatement of an employee:
does governing legislation, such as the School Act or the legislation creating and governing post-secondary institutions in the province, ordain reinstatement as a presumptive remedy?;
while reinstatement has long been presumed to be the remedy where dismissals are overturned in grievance arbitrations, the Supreme Court of Canada stated this only applies where the employment relationship continues to be “viable” to ensure that the solution to the workplace dispute will be “lasting and final”: Alberta Union of Provincial Employees v Lethbridge Community College, at para 56:
“As a general rule, where a grievor’s collective agreement rights have been violated, reinstatement of the grievor to her previous position will normally be ordered. Departure from this position should only occur where the arbitration board’s findings reflect concerns that the employment relationship is no longer viable. In making this determination, the arbitrator is entitled to consider all of the circumstances relevant to fashioning a lasting and final solution to the parties’ dispute.”
what is the likely effect of reinstatement on the future relationship between the faculty member and the employing institution? Employers being forced to take back workers they do not want to employ, and where no mutual trust and confidence exists, is repugnant to dignity and choice. Reinstated faculty members or their antagonistic colleagues may resume historical confrontations and disrupt the work environment;
the employee should not be equivocal about returning to work or ambivalent about the reinstatement succeeding, including letting go of past acrimony; and
reinstatement is less appropriate for short term or seasonal employments and where compensatory damages are already ordered.
In Milkovich v Field Hockey Canada (2013), the British Columbia Supreme Court refused to reinstate the coach of the Women’s Junior National Field Hockey Team until his wrongful dismissal lawsuit was completed. The judge considered even temporary reinstatement to be an extraordinary remedy. The employer had lost confidence in his suitability for the job and reinstatement would be disruptive to the team and its new coach.
On the other hand, an Ontario judge upheld an interim reinstatement of an employee pending an arbitration outcome: National Ballet of Canada v Glasco. Likewise, a Nova Scotia Deputy Minister of Justice was ordered by that province’s Court of Appeal not to dismiss a public employee before his wrongful dismissal action was decided on the merits: Smith v. Nova Scotia.
Dorval Not Reinstated
The Alberta Court of Appeal agreed with the arbitrator’s judgment that Dorval should not be reinstated – even though he was seeking only a 0.6 FTE position – because the relationship between him and his employer remained irretrievably broken down, even after four years (the details of that conflict were not disclosed).
The fact that Dorval was near the end of his active teaching career, was collecting some pension income, and originally seemed less than totally confident himself that he wanted the job or could do the job, all seemed to be factors against reinstatement. One might think that the very large school board employer would have been able, more easily than other employers, to accommodate his reinstatement request by posting him at another school. In this case, however, it might have been Dorval’s own lukewarm and ambivalent desire for reinstatement expressed early in the proceedings that put this extraordinary remedy out of his reach.
The Lethbridge Community College case remains the primary law to which labour arbitrators are bound in Canada on reinstatement applications. The reinstatement remedy may be subject to special evidence at the arbitration hearing to determine whether it would ensure a viable workplace and final and lasting resolution to the hostilities between academic institution and faculty member.
For the wrongfully dismissed faculty member, there is no legal right to reinstatement. The business interests of the employer institution will prevail. That is the case even where the institution’s administration and other staff and faculty members are themselves largely responsible for the prospect of enduring conflict.