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Teacher discipline in British Columbia : implications of Bill 20 Lowry, Mavis June 1992

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TEACHER DISCIPLINE IN BRITISH COLUMBIA:IMPLICATIONS OF BILL 20 byMAVIS JUNE LOWRYB.Ed.Elem., The University of British Columbia, 1977A THESIS SUBMITTED IN PARTIAL FULFILLMENT OFTHE REQUIREMENTS FOR THE DEGREE OFMASTER OF ARTSTHE FACULTY OF GRADUATE STUDIES(Educational Administration)We accept this thesis as conformingto the required standardTHE UNIVERSITY OF BRITISH COLUMBIAApril 1992© Mavis June Lowry, 1992In presenting this thesis in partial fulfilment of the requirements for an advanceddegree at the University of British Columbia, I agree that the Library shall make itfreely available for reference and study. I further agree that permission for extensivecopying of this thesis for scholarly purposes may be granted by the head of mydepartment or by his or her representatives. It is understood that copying orpublication of this thesis for financial gain shall not be allowed without my writtenpermission.(SignatureDepartment of L./1U Ptl)ir)11.A1 KLY)11111h1410 hThe University of British ColumbiaVancouver, CanadaDate "2 a, 11,9... DE-6 (2/88)ABSTRACTThe purpose of the study is to determine how the teacher disciplinesystem in British Columbia changed as a result of Bill 20, the Teaching Profession Act and Revised School Act of 1987. The nature of thediscipline system both before and after Bill 20 was described and thesignificance of changes to the education community indicated.Before 1987, teacher discipline was governed by a statutory model,pursuant to provisions of the School Act The current system, acollective bargaining model, is governed by the Industrial Relations Act,75 collective agreements, and arbitral jurisprudence. The study reviewsdifferences in those two systems both generally, and specifically. Ananalysis of legislative frameworks governing teacher discipline acrossCanada, as well as a brief overview of the American system, allows theconclusion that the B.C. teacher discipline system is one of a kind inNorth America and not likely modeled after any other on the continent.To compare the two teacher discipline systems and also to describethem in relation to theoretical concepts, the following were analyzed: (1)legal frameworks governing employer-employee relationships ingeneral, theoretical concepts used to describe employee disciplinesystems, and studies of employee discipline, especially in the unionizedenvironment and in the case of teachers, (2) decisions of all boards ofreference and review commisions prior to 1988, (3) all reported B.C.teacher grievances, specifically discipline-related grievances, andarbitration awards between 1988 and 1991, (4) collective agreementprovisions in effect in 1991 related to matters of teacher discipline, (5)critical arbitral jurisprudence on employee (and teacher) discipline, and(6) B.C. teacher discipline cases before 1988 which fell outside theregulated system but resulted in court decisions.The study concluded that the previous teacher discipline system inB.C. was an inferior system, unfair and patronizing at best, but biasedagainst teachers, and open to political manipulation at worst. Onlylimited teacher discipline decisions prior to changes in legislation wereappealed, and even then, often to inexperienced and non-objectivebodies. The current system promises to provide more regulated,predictable, and fair treatment, although more knowledge, skills,training and personnel are required to manage the system.TABLE OF CONTENTSPageABSTRACT  ^iiTABLE OF CONTENTS  ^iiiLIST OF TABLES ^viiACKNOWLEDGEMENTS ^ixCHAPTER I: INTRODUCTION ^1CHAPTER II: FEATURES OF EMPLOYEE DISCIPLINE SYSTEMS:A LITERATURE REVIEW ^9Section 1: What is Employee Discipline? ^9Section 2: Theories of Discipline  ^13Section 3: Legal Frameworks Governing Employee Discipline^18Section 4: Some Central Features of Discipline Systems  ^24Conclusion ^35CHAPTER III: DISCIPLINE IN AN INDUSTRIAL RELATIONSSETTING ^38Section 1: Central Features of Employee Discipline Within ACollective Bargaining Relationship ^38Section 2: Critical Jurisprudence: The Application of EmployeeDiscipline ^43111Section 3: Studies of Arbitration Decisions in Employee DisciplineCases ^52Conclusion ^57CHAPTER IV: TEACHER DISCIPLINE SYSTEMS ^60Section 1: Teacher Discipline Systems Across Canada ^61Section 2: Reported Teacher Discipline Cases  ^70Section 3: Canadian Studies of Teacher Discipline ^75Section 4: American Research on Teacher Discipline ^79Conclusion ^87CHAPTER V: ANALYSIS OF THE B.C. LEGISLATIVE FRAME-WORK ^90Section 1: A Chronology of Changes ^91Section 2: An Analysis of Critical Legislation  ^92Conclusion ^110CHAPTER VI: A REVIEW OF B.C. TEACHER DISCIPLINE CASESBEFORE 1989: BOARD OF REFERENCE AND REVIEWCOMMISSION DECISIONS ^113Section 1: An Analysis of Board of Reference Decisions ^116Section 2: Review Commission Decisions ^140Analysis and Conclusion ^158ivCHAPTER VII: B.C. TEACHER DISCIPLINE SINCE 1989: AN ANA-LYSIS OF COLLECTIVE AGREEMENT PROVISIONS..^165Section 1: An Overview of Teacher Collective Agreements:Selection of Clauses for Analysis ^166Section 2: Eleven Clauses Analyzed and Differences Noted^168Conclusion ^203CHAPTER VIII: THE 1991 B.C. TEACHER DISCIPLINE INOPERATION AFTER BILL 20  ^207Section 1: Teacher Grievances After First Agreements in 1989^208Section 2: Arbitration Awards Related to Teacher DisciplineMatters ^223Conclusion ^230CHAPTER IX: SUMMARY, CONCLUSION, AND IMPLICATIONS 235Section 1: Summary of Findings  ^237Section 2: Conclusions ^255Section 3: Implications for Practice and Research ^265REFERENCES ^269APPENDIX A: TEACHER DISCIPLINE: LEGISLATIVE FRAME-WORKS IN OTHER PROVINCES ^274APPENDIX B: TEACHER DISCIPLINE CASES REPORTED ^281VAPPENDIX C: LEGISLATIVE PROVISIONS CREATING THE LEGALFRAMEWORK FOR TEACHER DISCIPLINE IN 1986....^286APPENDIX D: PROVISIONS GOVERNING THE LEGISLATIVEFRAMEWORK RELATING TO TEACHER DISCIPLINEDURING THE BILL 20 INTERIM PERIOD ^297APPENDIX E: LEGISLATIVE PROVISIONS GOVERNING TEACHERDISCIPLINE SINCE 1989 ^303APPENDIX F: QUESTIONS USED IN INTERVIEWS WITH DES GRADYAND RALPH SUNDBY  ^310APPENDIX G: BOARD OF REFERENCE CASES IN BRIEF ^312APPENDIX H: REVIEW COMMISSION CASES IN BRIEF ^346APPENDIX I: SAMPLE CLAUSES RELATED TO TEACHER DISCI-PLINE CONTAINED IN VARIOUS B.C. TEACHERS' COLLEC-TIVE AGREEMENTS (JUNE 1, 1990 - JUNE 30, 1992)...^358APPENDIX J: SAMPLE GRIEVANCE REPORT ^376APPENDIX K: ARBITRATION AWARDS RESOLVING DISCIPLINECASES: 1989-1991 SUMMARIES ^377viLIST OF TABLESPageTable 1: Overview of Board of Reference Cases ^118Table 2: Grounds for Discipline ^120Table 3: Seniority, Age and Work Record ^125Table 4: Precedents Cited in Decision ^135Table 5: Review Commissions and Dates ^142Table 6: Review Commission Outcomes, Description of Teachers^143Table 7: Outcomes of Employee Discipline Appeals  ^164Table 8: Variations on Some Aspects of Grievance Procedures  ^171Table 9: Variations on Some Aspects of Arbitration Procedures  ^175Table 10: Misconduct Provisions: General Clauses ^178Table 11: Misconduct Provisions: Pre-Discipline Hearing Rights,Section 15 Coverage ^181Table 12: Discipline/Dismissal Based on Performance: Variations inProvisions ^184Table 13: Plan of Assistance Provisions  ^186Table 14: Variations Found in Probation Provisions Found in TeacherCollective Agreements ^188Table 15: Can School Boards Use Forced Transfer as a Means ofDiscipline? ^191Table 16: Seniority as a Factor in Board-Initiated Teacher Transfers^193viiTable 17: Variation in Personnel Files Provisions ^202Table 18: Total Teacher Grievances and Percentage Related toDiscipline: 1989-91  ^210Table 19: Types of Teacher Discipline Grievances in B.C. 1989-91(Three Years)  ^217Table 20: B.C. Teacher Grievance Arbitration Awards ^225viiiACKNOWLEDGEMENTSThe writer wishes to express appreciation for the guidance andencouragement given in the preparation of this thesis by thechairperson of the thesis committee, Ian E. Housego, of the Facultyof Administrative, Adult and Higher Education, Department ofEducational Administration, and by the other two members of thecommittee, Mark Thompson and David McPhillips of the Facultyof Commerce, Industrial Relations Department. Their continuedinterest and assistance was greatly appreciated. To Des Grady, afriend and colleague for more than 12 years, the writer is gratefulfor his willingness to meet and discuss this project, to answernumerous telephone calls, sometimes late at night or on Sundays,and to provide his personal accounts of dozens of teacher casesallowing them come alive for the author. Finally, to my friend,BCTF colleague, and companion, Ralph Sundby, a special thanksfor his continued interest, advice, support and understanding.MLixCHAPTER 1INTRODUCTIONIn May of 1987, Bill 20 The Teaching Profession Act and revisedSchool Act, was forced through final, third reading in the province'slegislature and became law. In overall terms Bill 20 could be said tohave had five major effects: (1) It created a College of Teachers whichall teachers and administrative officers were required to join andfinancially support; (2) It removed all reference to the British ColumbiaTeachers' Federation from the School Act resulting in loss of compul-sory membership in that organization and removal of any formalrecognition that the BCTF was the organization that represented teachersin all professional and economic matters; (3) It created a new optionalbargaining structure for teachers (the 'union model' or the 'associationmodel') and removed all bargaining rights from administrative officers;(4) It excluded principals and vice principals from membership in localbargaining units, essentially forcing them out of the BCTF; and (5) Itremoved from the Act many conditions of employment, forcing teachersto negotiate into local collective agreements, provisions providing forthose repealed conditions.The scope of this paper does not permit study of all five majoreffects of Bill 20. It examines only, in part, the last item--conditions oftemployment removed from the Act. Bill 20 created a new labourrelations structure for teachers, including profound changes in teacherdiscipline provisions. The 1987 revised School Act, under theprovisions of Bill 20 provided that teacher discipline was no longergoverned by School Act procedures once teacher associations becameunionized. By February of 1988, all 75 teacher associations in theprovince had certified under the terms of the Industrial Relations Actmaking all forms of teacher discipline subject to collective agreementsand grievance arbitration.Prior to first collective agreements being in place in 1988,teacher suspensions, dismissals, and other forms of discipline weregoverned by legal frameworks set out in the School Act or Bill 20.Appeals of disciplinary actions taken against teachers were very limitedas only dismissals or a suspension for "a period exceeding 10 days"could be appealed to a board of reference in the case of misconduct, orto a review commission in the case of dismissal for poor performance.Lesser forms of discipline such as reprimands, warning letters, or evena one week suspension could not be appealed, by law, beyond the levelof the school board, the body which made the disciplinary decision inthe first place. In fact, in 1984, even the basic and fundamental processof grievance arbitration, required in all non-teacher collectiveagreements in B.C., was held by the Supreme Court of B.C. (JusticeJosiah Wood) to be outside "salaries and bonuses" and therefore notwithin the jurisdiction of interest arbitrators to award in teachercontracts. The B.C. Teachers' Federation became involved in politicalactions of various kinds on numerous occasions--as a later chapter willoutline—in attempts to seek redress for aggrieved teachers who had nolegal appeal rights under the School ActWhen first teacher agreements were ratified in 1988, discipline2became subject to the procedures of a collective bargaining regime.Currently, under labour legislation, even an evaluation report writtenby the principal, and believed by the teacher to have disciplinaryimplications, may be subject to a grievance procedure.But the new system is also different because Bill 20 had the effectof removing administrative officers (principals and vice principals)from union ranks. These people, for the first time, find themselvesinvolved in discipline grievance actions in a way not experienced in thepast. Administrative officers (A0s) in B.C. schools are in a uniquesituation in Canada in this respect since in all other provinces, exceptQuebec, administrators (principals) are members of the teachers' unionand not, therefore, official management representatives who become afocus of teacher grievance actions.For those in the education system dealing on the front lines withteacher discipline cases, it became apparent very quickly that a new erahad arrived. New procedures were immediately put in place, practition-ers handling teacher discipline cases required a great deal of newinformation and training, and teachers had to be informed to respond ina world of labour relations with which they were unfamiliar. Collec-tive agreements, labour law, and arbitral jurisprudence now govern themanner in which teachers can be disciplined in the province. Adminis-trative officers in the B.C. school system and BCTF staff scrambled toequip themselves to cope in an unfamiliar labour relations culture.Purpose of the StudyThe central purpose of this study is to describe the changes in theB.C. system of teacher discipline which have occurred as a result ofBill 20 and show how that one aspect of Bill 20 has created significant3and profound change in the educational community in this province.The study provides a clear picture of what rules govern and whatprocesses are used to deal with teacher discipline within today's labourrelations regime in the public schools, as well as how such rules andprocesses differ from those of the past. The study also examines theB.C. teacher discipline system as it fits within a context of employeediscipline systems in general, including within the context of otherteacher discipline systems in North America.The B.C. system within a context of employee disciplinesystems. Before the examination of the B.C. teacher discipline systemis undertaken, concepts related to employee discipline in general arereviewed in order that the B.C. system can be described within anunderstood context. A literature review in Chapter II examines variousfeatures of employee discipline systems in general and sets out afoundation of theories, concepts, and definitions, as well as variousemployee discipline system models, within which teacher disciplinesystems might be viewed and described. The B.C. system, both as itwas before Bill 20 and as it exists now, is described and analyzed inrelation to these conceptual frameworks.Chapter III examines in more depth the features of the collectivebargaining regime in terms of disciplinary rules and practices in aunionized setting. For the most part, the B.C. education community hasentered the industrial relations environment without notice, training, orexperience. Some of the most basic rules accepted by those familiarwith industrial relations management are new to this cotnmunity.To fully understand the changes that have occurred in the B.C.teacher discipline system it is also necessary to examine other teacherdiscipline systems. Chapter IV reviews the literature and legislation onteacher discipline in order to answer such questions as: (1) Is the newB.C. system modeled after that found in any other province in Canada?If so, can we turn to another province for help in understanding howthe B.C. system will operate? (2) What kinds of systems are used inNorth America in general to deal with teacher discipline? Are teacherstreated in discipline matters like other employee groups? (3) Whatliterature is available dealing with studies of teacher discipline inCanada, with categories of teacher discipline, and with results ofteacher discipline appeals? How often are teacher appeals ofdisciplinary actions upheld or overturned? The "cross Canada"literature review undertaken in Chapter IV demonstrates the uniquenessof the B.C. teacher discipline system. That review also indicates thatlittle has been written on the topic of teacher discipline in Canada andno major work was found dealing with the subject of the B.C. teacherdiscipline system in the last decade.Examination of the B.C. teacher discipline system. Thisstudy examines the teacher discipline system in this province as itexisted before Bill 20 under the School Act, and as it now exists underthe Industrial Relations Act and collective agreement provisions.Relevant laws, boards of reference, review commissions, and appealcourt decisions which provided the legal framework of the past, as wellas laws, arbitral jurisprudence, labour relations principles, andcollective agreement language which provide the legal framework atthe current time are examined.Chapter V reviews the province's legislative framework of thepast and present, including the interim legislation of 1987-88. Thelegislation governing teacher discipline matters is contained inAppendices. There were also disciplinary actions taken against teachers5in the past that, in law, did not warrant formal appeal to a neutral thirdparty. Teachers took various political and job actions in response tosuch disciplinary actions by school boards when board of reference orreview commission appeal processes were not available as appealmechanisms. Some of these "protest action" cases, described in ChapterV. further clarify the nature of the teacher "informal" discipline systemwhich operated under the School Act before Bill 20.Chapter VI reviews board of reference and review commissiondecisions to achieve four purposes: (1) A clear picture of how teacherdiscipline was handled in the past (before 1988) is set out and can becompared to the current system; (2) Critical precedents set out in boardof reference or review commission cases which arbitrators may rely onin making future decisions are pointed out; and (3) The types ofoffenses which resulted in past disciplinary actions, the nature ofdisciplinary actions taken against teachers, and the nature of appealdecisions can all be described and categorized; and (4) A statisticalrecord of teacher appeals provide such data as how many weresuccessful, the male/female ratio of disciplined teachers, andcharacteristics of personnel involved in past appeal boards. Theanalysis of actual decisions provides a helpful synthesis of the formalteacher discipline system existing for three decades before Bill 20.To examine the current teacher discipline system the actual clausesfound in the 75 teacher collective agreements related to matters ofteacher discipline are studied. Chapter VII examines many contractclauses outlining their typical features and describing the differencesfound in provisions from one district to the next. These clauses arealso examined to determine how different they may be from thoseprovisions found in the old School Act That chapter demonstrates thatthere has been a fundamental change from one discipline system for all6teachers in B.C. to 75 different discipline systems based on variedcollective agreement language.Finally, Chapter 'VIII looks at the new teacher discipline system inB.C. in terms of the nature of the teacher grievance system, and thenature of disciplinary grievances in particular. Teachers and schoolboards are now dealing with grievances on a regular basis. The chapterexamines these grievances to determine how these cases compare tothose pre-Bill 20 teacher discipline cases reviewed by appeal bodies ofthe past. The chapter demonstrates that a new and more complex era ofteacher discipline is in operation and that the system has changed in asignificant manner. School boards are now handling on a routine basisteacher grievances concerning alleged unfair reprimands, unsatisfactoryevaluation reports, and short suspensions with which they did not dealin the past. Some discipline cases now being sent to arbitration couldnot have been appealed before 1988.CONCLUSIONThis study examines the B.C. teacher discipline system within arelevant context and provides findings of interest to teachers, schooldistrict administrators, and labour relations practitioners. The studyprovides the only existing comprehensive analysis of the B.C. teacherdiscipline system, and how it has changed, and includes a summary of allemployer-initiated teacher discipline cases appealed over a thirty yearperiod to the end of 1991.Findings in this study are compared to results of other studies ofemployee discipline to demonstrate the questionable nature of the pre-Bill 20 system for teachers. The past system is shown to have providedan inferior appeal mechanism for B.C. teachers. It is demonstrated7from the data produced that teachers did not get fair treatment underthe previous discipline system.The teacher discipline system in the new unionized environment istoo new to allow firm conclusions to be drawn concerning its fairnessto teachers. However, there is sufficient data provided in Chapter VIIIafter three years under the new regime to indicate trends. It is clearthat teachers are now subject to the same processes other workers aresubject to. Such a situation promises to improve considerably theability of teachers to appeal allegations of unfair treatment and to getfair hearings and receive objective decisions.This thesis answers these questions: (1) How can the B.C. teacherdiscipline system be compared to other discipline systems, includingother teacher discipline systems? (2) What is, and what has been, thelegal framework governing the discipline and dismissal of B.C. teachersboth before and after Bill 20? (3) What discipline processes werefollowed before 1989 and what were the results of these processes? (4)What discipline processes are required under collective agreements,labour law, and arbitral jurisprudence today, and what have been theresults of arbitration cases reported? (5) What is the statistical recordof past disciplinary actions against teachers in this province? and (6)What teacher discipline cases have been reported under the industrialrelations system since 1989?8CHAPTER IIFEATURES OF EMPLOYEE DISCIPLINE SYSTEMS: ALITERATURE REVIEWThis chapter establishes a foundation of theoretical concepts whichdefine employee discipline issues and views employee discipline withinthe wider labour relations context. The chapter is divided into foursections: The first looks at the more general definitions underpinningconcepts of employee discipline; the second deals with theories ofemployee discipline; the third sets out four systems within whichemployee discipline takes place; and the fourth reviews critical featuresof a discipline system.SECTION 1: WHAT IS EMPLOYEE DISCIPLINE?In this first section, the central questions examined are: What is thedefinition of employee discipline? How can disciplinary action bedefined? and How can employee discipline be viewed, understood, ordescribed? It is useful to examine central concepts typically understoodby practitioners in the field of employee discipline and to determine those9definitions most useful to this study.A. A Definition of Employee DisciplineThree different ways of looking at the concept of employeediscipline, with a view to giving the term definition, can be found in theliterature. Employee discipline can be described in terms of providing adefinition of the employer-employee relationship, as self-regulation bythe employees, or as one element within the broader industrial relationsinstitutional framework.Discipline in terms of the employer-employeerelationship. One labour relations practitioner believes that howemployee discipline is handled becomes the critical factor in determiningthe nature of the employer-employee relationship in the workplace:Nowhere is the nature of the relationship between an employer and an employeeso dependent on clear understandings than in matters having to do with discipline.It is through discipline that the employer forcefully establishes the limits of itsexpectations and reacts to what it believes are failures of the employees to conductthemselves in accordance with those expectations. By the same token, theemployee's response to discipline gives the employer certain knowledge of theemployees' beliefs as to the extent and nature of their rights and responsibilitiesand of their willingness to fulfill the employer's expectations. It is in thisatmosphere of action and reaction that employers and employees define for eachother the nature of their relationship... . The primary action tool for an employer isdiscipline. How it is used may determine whether the employment relationshipwill be positive or negative (Redecker,1989:3).In this context then, employee discipline can be defined as one of thefundamental tools in establishing a workplace environment.Discipline as self regulation. Employee discipline in this secondcontext, is defined as the extent to which employees are self-disciplinedor self-regulated due to their high level of commitment and motivation10within a workplace. When viewing employee discipline in this manner"the external imposition of disciplinary action need only occur wherediscipline, in this former sense, has broken down" (Adams,G.,1979:5).In this context, disciplinary action constitutes steps taken to enforceconformity to established rules in the workplace to which "disciplinedworkers" adhere. Looking at discipline in this fashion then, dictates thatthe terms "discipline" and "disciplinary action" be given quite differentand distinct meanings. In workplaces where the workforce is especiallyproductive, the word "discipline" can be used as "an adjective to describethe state-of-being of the workforce, or the character of the workenvironment" as in a disciplined workforce (Redeker,1989:4). Redeckerdiscusses the difference in concept between philosophies of "I willdiscipline you" and "I expect you to be disciplined".Discipline as one element within the industrial relationsinstitutional framework Another way to look at employee disciplineis to see where it fits within the wider context or within "the institutionalframework of industrial relations" (Kochan, Katz, and McKersie,1986:17). These authors claim their three level, three-tiered frameworkis based on "the key premise that industrial relations' processes andoutcomes are determined by a continuously evolving interaction ofenvironmental pressures and organizational responses" and that "choiceand discretion on the part of labor, management, and government affectthe course and structure of industrial relations systems"(13). They claimtheir three level, three-tiered framework, included below, provides thebroad conception desired and illustrates how effects of higher levelactivities or decisions can explain behaviour and outcomes at a lowerlevel or tier. For example, to take the issue of teacher discipline in B.C.,the model allows one to see how government policy changes at the top1 1level (giving teachers full collective bargaining rights), led to furtherThree Levels of Industrial Relations ActivityLevel^Employers^Unions^GovernmentLong-term^Business strategiesstrategy and^Investment strategiesPolicy Making Human ResourcestrategiesPolitical strategiesrepresentationstrategiesOrganizing strategiesMacroeconomicandpoliticalpoliciesCollective Barg. Personnel Policies^Collective Bargaining^Labor Law andand Personnel^Negotiations^strategies^AdministrationPolicy^StrategiesWorkplace and^Supervisory Style^Contract Administration Labor StandardsIndividual^Worker^Worker participation^Worker partici-Organization^Participation^Job design and work^pation andRelationships^Job Design and Organization^individual rightsWork organization(Kochan, Katz, McKersie:17)changes in the second tier at the government level in terms of adoptingnew School Act provisions, which in turn had an impact on employers(school boards) and the union (BCTF and local associations) in otherlevels and tiers of action. The revised system of dealing with teacherdiscipline is manifested at all three levels and in the three tiers of themodel. The model could be used, the authors claim, to identify "apparentinconsistencies and internal contradictions in strategies and practicesoccurring at different levels". They believe their framework "encour-ages analysis of the roles that labor, management, and government playin each other's domain and activities" (19).B. A Definition of Disciplinary ActionA disciplinary action may be defined both in terms of what it is andwhat it is not. Because employee terminations arise in non-disciplinary12contexts, it is necessary to determine which terminations constitutedisciplinary action and which do not. Different rules will apply in eithercase (Zack and Bloch,1983:138). Of the three objective reasons forterminating the services of an employee, only one can legitimately bedefined as grounds for taking disciplinary action. Termination ofemployees can occur "where the services of the employee are no longerrequired; where the employee quits or does not return to work; or wherethe employer is justified in discharge due to conduct" (Willes,1976:4).Several authors emphasize that a reduction in workforce (layoff) is notdiscipline, and that only the third reason given above constitutes disciplin-ary action (Willes,1976:4; Zack and Bloch,1983:138; and Paterson andDeblieux,1988:78).Brown and Beatty state that traditionally "the essence of a disciplin-ary sanction lay in its potentially negative impact on the employee's workrecord" (1988:7-155). Disciplinary action then, as distinct from employ-ee discipline, is an action taken by the employer against the employee toenforce conformity with employer expectations. This action may be atermination or any lesser form of action which reflects negatively on theemployee's record. A layoff, however, is not a disciplinary action.SECTION 2: THEORIES OF DISCIPLINETheories of employee discipline found in the literature can becategorized under two general headings: (1) theories based on the relativeweight given to the rights of individuals versus the rights of managementor the organization, and (2) theories based on the style of application ofdisciplinary actions. The four theories discussed below have beencategorized in this manner.13A. Theories Based on the Relative Weight of the Rights ofIndividuals v. Rights of ManagementTwo theories found in the literature, Phelps' theory and the Coyeand Belohav theory, are similar in that each describes employeediscipline models in terms of philosophies or viewpoints, and each seesthree ways to view or evaluate discipline based on models developed inrelation to various management theories. Each sees three "viewpoints" interms of the relative weight given to the rights of employees versus therights of management or the organization.Phelps' theory. In Phelps (1959) view, employee discipline can bedescribed as adhering to one of "basically three philosophies.., dependingon one's view of the relative weight to be given the rights of individualsversus the needs of the organization"--authoritarian, anarchic, or disci-pline by due process. The authoritarian philosophy of discipline occursin its pure form when "both judgment and execution are by the respon-sible authority, with no provision for appeal--or at most only personaland exceptional arrangements are made for review" (1). The primerequirement of the employee in this view is to be obedient. In the"anarchic", or second philosophy of discipline, the rights of theindividual are supreme. This means the conduct of the subordinate is self-determined, "...the responsible authority in such circumstances eitherpermits free choice by subordinates as a matter of policy or hasinsufficient power to enforce his rulings, with the result that they arechallenged at will" (2). The third and intermediate position, 'disciplineby due process', "is based on a body of recognized rules and is adminis-tered under some form of juridical procedure". The key factor in thisdue process model is "formality and publicity" (3). He goes on to outlinethe concepts of due process which he advocates.14Phelps' theoretical framework of three discipline systems--authoritarian, anarchic, and due process--is perhaps overly simplified ifthe pure forms only are imagined. Put on a continuum, however, hisconcepts are useful in providing a measuring device in discipline systemevaluation. To what extent are the rights of the individual employeegiven consideration? Where on such a continuum would the systemunder study fit? Where on such a continuum would two systems fit inrelation to each other?The Coye and Belohav theory. The theory by Coye andBelohav, hypothesizes that discipline can be linked with ethics and that"three viewpoints" will then be identified which describe discipline inorganizations (1989:156-61). The first viewpoint, "disciplinaryperspective", is based on the Frederick Taylor model of scientificallyselected, developed, and managed workers. If employees cannotperform, it is due to a lack of self-discipline, and they are fired. Theorganization as a whole is seen as more important than the cost repre-sented by the exit of one worker. In this model the rights of employeesare given little or no weight. The second viewpoint, the "adjustmentapproach", based on the Lillian Gilbreth psychological school, proposesthat management look for causes and motives behind worker infractions.Identified abuses of human rights are said to be the force behind thismovement. The authors claim the theory of "progressive discipline" isan outgrowth of this line of thinking. A great deal of weight is given toindividual rights in this second model. The third viewpoint, the"integrative focus", grew out of the work of Chester Barnard and MaryParker Follet and is a broader perspective whereby the individual workeris thought to be in need of internal and external adjustment to the organi-zation. The individual's goals should not necessarily be seen as being in15conflict with the goals of the organization. This third "viewpoint"attempts to find a middle ground in terms of weight given either to theindividual employee or to management and the organization.B. Theories Based On Style of Application of DisciplinaryActionsThe theories of employee discipline described by both Redecker andby Zack and Bloch involve descriptions based on the type of processesused in a workplace to apply disciplinary sanctions.The Redecker theory. Redeker's theory says there are twopossible types of employee discipline found in the workplace: punitiveand nonpunitive. "The traditional or punitive approach to discipline is asystem of ever-increasing penalties"... the goal being "to force employeesto comply with the employer's rules and policies" (1989:73-80). He ishighly critical of the punitive approach which he claims "does not stimu-late a desire to achieve",.., spotlights problem employees", and is"destructive to employee's feelings of self-worth". He denigratesprogressive discipline, the "primary tool of all punitive systems" asbeing "adversarial", and claims the only reward for an employee in sucha system lies in "not being subject to more discipline". The system doesnot work, he claims, because "supervisors don't like it and resist doingit". He believes white-collar employees are "too sophisticated orresponsible to be threatened with punishment", and that supervisors,feeling demeaned in such an environment, simply give up and do notdiscipline at all.Redeker is an ardent advocate of "nonpunitive" discipline which hedescribes as that in operation at Union Carbide, Shell Oil, Exxon, AT&T,General Electric, and Amoco (81-84). In such systems the "emphasis is16placed on employer-employee responsibilities." Attention is focussed onproblems, not on employees, and on the future, not on the past. Keyfeatures of the system are encouragement, positive reinforcement, jobretention, and cooperation. "The direction of the employer-employeerelationship is horizontal--adult-to-adult--not downward as in a parentand child relationship." He provides a comprehensive outline as to howsuch a system should work in practice, the key feature being supervisor-employee "conferences", where together they outline the problem andplan a solution they are both responsible for implementing. Employees,with problems, may face the ultimate "decision day" however, when theymust consider whether they wish to continue present employment. Theemployee must either commit himself or his employment is terminated."The choice is his. The employer is not doing anything to him"(90).The Zack and Bloch theory. Finally, in the work by Zack andBloch (1983: 145-58), the authors look at discipline in terms of threetypes of management response, "immediate discharge", "progressivediscipline", or "some other action", each occasioned by one of threecategories of disciplinary offences. The first category of offencesinclude acts defined as being "seriously offensive" or "destructive of theemployment relationship", and are referred to as the "cardinal violations"which give grounds for immediate discharge. Theft, fighting with asupervisor, or falsification of employment information, are listed in thiscategory.The second category of offences, such as insubordination, arisebecause employees are "wrong solely because of prescriptive rules". Theauthors claim the precepts of "progressive discipline", whether explicitlyset forth in a labour agreement or not, are readily applied in this area(155).17A third category, referred to as "other offenses," includes eventswhich, do not readily fit into the normal disciplinary context and may notbe categorized as reflecting "fault" on the part of the employee.Excessive absenteeism for bona fide reasons, or poor workmanship, forexample, raise problems for employers to deal with in various creativeways. "Absenteeism because of bona fide illness,.. .alcohol and drugaddiction, may not be readily classified among the general run-of-the-mill disciplinary events; ...suspending a person or imposing discipline ofone type or another will hardly cure a disability or illness (158)."Summary of theories. The four theoretical frameworks whichclarify concepts concerning employee discipline then, fall into twocategories outlined above. The theory either looks at employee disciplinein terms of categories of philosophies concerning the relative weight ofrights given to individual employees versus rights of the employer in theworkplace, or the theory looks at how specific disciplinary actions byemployers can be categorized.SECTION 3: LEGAL FRAMEWORKS GOVERNINGEMPLOYEE DISCIPLINEEmployee discipline can occur within any one of three general legalframeworks governing the employer-employee relationship: [1] arelationship governed by the common law of master and servant, [2] arelationship bound by statute, or [3] a collective bargaining relationship.Willes (1976), Adams (1979), Harris (1980), Paterson and Deblieu(1988), and Adams, Ade11, and Wheeler (1990), all focus theirdiscussions of employee discipline system concepts in relation to theparticular legal framework governing the employer-employeerelationship in effect. The critical issue for them becomes whether or18not the relationship is a master-servant one, subject to common lawprinciples; whether it is governed by some employment statute, orwhether it is a collective bargaining relationship. Different rules willapply in disciplinary cases, they point out, depending on the legalframework. A brief description of each of the three legal frameworksfollows. The collective bargaining relationship is dealt with in moredetail in Chapter III.A. Discipline Within the Relationship Governed By TheCommon Law of Master and ServantGeorge Adams (1979) provides the best summary of features of theemployer-employee relationship under the Canadian law of master andservant. He states that within this legal framework is found "inadequateprotection accorded to employee interests". The courts allow dismissal,without notice, for a broad spectrum of employee actions includingmisconduct with "distinctions not made between different types" andwithout a requirement for cause. Intermediate steps--reprimand orsuspension--are seen to be not relevant. There is "a single mindedpursuit of the employer's interest", with employers not required toprovide an employee with reasons or justification for a dismissal. Thereis "no protection against arbitrary dismissal". Reasonable notice,however, is required and employees dismissed without cause and withoutnotice are entitled to compensation for the proper period of notice only.An employee under master and servant law has no contractual right to ajob and there is a "complete failure to tailor solutions to both the natureof the misconduct and the individual employee involved" (8-11).The court (Justice Monnin) in Aitken v Frontier School Division 1983-85, a Manitoba teacher dismissal decision, explainedemployee discipline procedures under common law:19Under the common law an employer can dismiss an employee for any reason theemployer thinks proper--or indeed, for no reason at all. The sole issues whicharise are the extent of the notice to which the employee is entitled, or the amountof payment in lieu of notice. The common law of the employer is often circum-scribed by collective agreements, individual employment contracts, human rightslegislation.. .or other statutory restrictions. The exercise of the common law rightto terminate an employee's services is not a judicial or quasi-judicial function, andit does not normally involve concepts of procedural fairness or natural justice(cited in Czuboka, 1985:188).Within the common law then, there is an unrestricted right of employersto discipline (Baer, 1972: 6), employees have no access to an internalappeal process, cannot expect to have a disciplinary penalty reduced, andcannot expect to get his/her job back. Harris (1980) points out that"traditionally, [under Canadian common law] the finding of cause infavour of the employer within an action alleging wrongful dismissal hasled to the single conclusion that the employee has failed to prove hisentitlement to reasonable notice of the termination, thus depriving him ofany damage claim" (63).The key difference between American and Canadian common lawprinciples is that in the United States, the employer may terminate"employment-at-will" or common law contracts without notice or reason,whereas, in Canada, there must be "reasonable notice" unless the otherparty's conduct gives cause for termination (Adams, Adell andWheeler,1990:597). But changes have taken place in the Americancommon law concept of employee discipline. "Two events havesignificantly eroded an employer's ability to fire an employee: a dramaticincrease in protective legislation", and employees' wrongful dismissalactions which have won large awards from employers (Paterson andDeblieux,1988:77).Another American author explains how "dissatisfaction withmanagement's inequitable treatment of employees" under common lawprinciples, resulted in unjust discipline becoming one of the "prime20stimuli for unionization" (Zack,1989:19-02). Zack claims that under acollective bargaining regime "protection against unjust discipline ordischarge was given to unionized employees with little effect uponunorganized employees".B. Discipline Within a Relationship Bound by Statute LawIt is this context of an employment relationship governed by aspecific statute, that this paper will look more closely at in Chapter VI.The discipline system for B.C. teachers under provisions of the pre-Bill20 School Act falls within this second model of employment relationship.In a "statute law" legal framework, the employment relationship dependson the interpretation of the Act in question. A statute such as the SchoolAct creates administrative bodies (school boards) to which are delegatedthe authority, by the provincial government, to make administrativedecisions. School boards then, are characterized as having a "judicial"or a "qi asi-judicial" function and required to follow the rules of naturaljustice or due process in terms of dealing with employees in disciplinarymatters (G. Gall, 1977:261).Under statute law only the courts may enforce an authoritative inter-pretation, and therefore, any appeals from decisions of such adminis-trative bodies as school boards are heard by the courts. In an employ-ment relationship then, where a statute law governs, the common lawmay apply in a particular instance when the statute law does not happento cover (Nicholls, 1981:26). A problem of jurisdictional uncertaintymay occur which can only be resolved by the courts. In some instances,disciplinary decisions and decision-making processes of a school boardmay reflect those found in common law, and in others, more like thosefound in a collective bargaining regime.21The relationship created by a particular statute can only be defined byexamining various aspects of the statute itself and any court rulingsconcerning decisions made by administrative bodies under the statute.When the rights of an individual are affected by the decisions of such anadministrative tribunal, the tribunal's decision may be reviewed or evenquashed by the courts. Later in this paper some teacher discipline casesthat were quashed by the courts, under the Judicial Review Procedure Act, because school boards did not adhere to the principles of naturaljustice in dealing with teachers, are reviewed.C. Discipline Within the Collective Bargaining RelationshipChapter III of this paper examines in a more detailed fashion thenature of the collective bargaining relationship, or industrial relationsenvironment. In this section only a brief overview is given to illustratethe essential distinction between the employee discipline system in acollective bargaining relationship as compared with the two systemsoutlined above.Phelps (1959) introduces his book, Discipline and Discharge in the Unionized Firm, with this opening statement: "In no aspect of personnelrelations has the impact of unionization been more pronounced than inmatters relating to the discipline and discharge of employees." In thesame vein Willes (1976) states "the rules or laws that apply to union andnon-union settings often differ substantially, and perhaps in no area isthis more evident than in the area of discharge and discipline" (1).Unlike in the two legal systems outlined above, three parties areinvolved in the collective bargaining relationship--the union, theemployer, and the employee. The employment relationship, in terms ofhow employee discipline must be handled, is outlined in a labour statute,22which in B.C. is the Industrial Relations Act R.S.B.C., 1979 c. 212. Inaddition, negotiated terms and conditions, which must be in writing andmust be signed by both parties, also apply. This negotiated collectiveagreement is required to provide a third party arbitration mechanismrather than the courts as a means of resolving differences (section 93).Management in B.C. may discipline or discharge only for "just cause", inaccordance with section 93 of the Industrial Relations Act, and anyarbitrator reviewing a disciplinary decision will get to "the real substanceof the matters" (section 92) in determining if the employer acted proper-ly in dealing with the employee.Arbitrators have extensive powers, such as the power to reinstate orvary the penalty (section 98), and their decisions are final and binding(section 104). Brown and Beatty (1988) suggest that a collectivebargaining regime also gives options to employers in that "prior to...collective bargaining, and the wide-spread inclusion of 'just cause fordiscipline', the right of an employer to discipline its employees wasgoverned by common law principles; ...the employer's disciplinarysanctions were limited to severing the employment relationship either forcause or, in the absence of cause, upon proper and reasonable notice" (p.7-1).One of the basic purposes of a collective bargaining agreement is tomodify the employer's disciplinary power under the common law, andrequire the employer to deal justly with all employees when takingdisciplinary action (Baer,1972:6). The standard under collectivebargaining in both the U.S. and Canada is that employers are forbiddento dismiss without 'just cause' (Adams, Adel, and Wheeler,1990:598).The collective bargaining relationship introduces the notion of acontinuing relationship, or of an expectation of tenure, and penaltiesother than dismissal are preferred in order to "rehabilitate" the employee23and thus the continuing nature of the employment relationship.An excellent summary of this issue was written by Nancy Morrison,Vice-Chair of the Labour Relations Board in the 1976 Hiram Walker decision:The recent decision of the Labour Relations Board in Simon Fraser Universityand the Association of University and College_ Employees. Local 2,  16/76,explored the mandate and guidance now given to a Board under this section of theCode. Such a Board need not be "diverted" by "legal rules drawn from thecommon law of contracts or the relationship of master and servant" (page 10).Thus, it should be clear now that the historical and common law position hasbeen altered radically. We are no longer talking in terms of traditional master-servant relationships, where an employee had no expectation of tenure, let alonefringe benefits of employment such as health and welfare plans, seniority,grievance and arbitration procedures available, etc. The reasoning of Mr. JusticeLaskin in the Court of Appeal decision in the Port Arthur Shipbuilding case hasnow been translated into statute law under the B.C. Labour Code. Now, anemployee does have tenure, and rights, and in the event of discharge, each casemust be looked at in relation to the particular collective agreement in existencebetween the parties, and all the other factors having to do with that person'semployment.Under collective agreements today, a different environment exists; there is acontinuing relationship, where an employee has an expectation of continuedemployment. The old common law position no longer applies to situations wherecollective agreements are in existence (cited in Bird: 1977:73).SECTION 4: SOME CENTRAL FEATURES OF DISCIPLINESYSTEMSIn this last section of this chapter, four central features of a disciplinesystem are examined. The first three relate to a fundamental proceduralquestion in terms of employee discipline. What is the process? A fairprocess for individual employees involves the application of (1) princi-ples of natural justice, (2) just cause requirements before disciplinaryaction is taken, and (3) discipline applied in a progressive manner. Theextent to which such fair procedures are absent will situate the disciplinesystem under study on the theoretical continuum toward the authoritarianmodel. The extent to which principles of natural justice, just cause, and24progressive discipline are upheld, provide an evaluation yardstick of adiscipline system. The categories of discipline used to explain ordescribe a discipline system, is a fourth fundamental feature discussed inthis section. A number of categorization systems are outlined whichassist in viewing B.C. teacher discipline cases.A. The Concept of Natural Justice or Due ProcessNatural justice is said to be founded on natural law which "representswhat the law would be if equality for all men, and justice between them,were the prime considerations of society" (Nicholls, 1981:26). A bodyof principles known as natural justice, or 'due process' in the UnitedStates, has developed which apply in at least two of the discipline systemsoutlined above. In either a collective bargaining relationship, or in manycircumstances within a system governed by statute law, these principlesare applicable. The extent to which natural justice is legally required tobe provided to employees in a disciplinary system by the employer,becomes a major feature of that discipline system and one critical way ofevaluating it.Rules of natural justice. There are two fundamental rules ofnatural justice or due process, under which there are many sub-rules (G.Ga11,1977:265). The first rule (audi alteram partem) is a requirementthat there be a fair hearing, including such sub-rules as the requirementof notice, time to prepare a case, the right to be represented, the right torebut the other side's evidence, and the right to cross-examine witnesses.The second rule (nemo judex in sua causa) requires that there be anabsence of bias.Blacks Law Dictionary (1990) states "due process of law implies the25right of the person affected thereby to be present before the tribunalwhich pronounces judgment upon.. [one, and to]...have the right ofcontroverting, by proof, every material fact which bears on the questionof right in the matter...". Six requisites of any system of due processhave been identified: "The first requisite of due process is notice of thestandards set by the employer and the effects of violating them"; thesecond is that "the charge be factually accurate"; the third requires that"the employee be allowed to know all of the facts of the charge againsthim or her"; the fourth involves an employee's ability to raise a defenseat a hearing; the fifth is that "a credible grievance or dispute resolutionprocedure" be provided; and finally, "due process requires thatemployees have the right to appeal disciplinary actions to an impartialdecision maker or body" (Redeker,1989:61-69).Natural justice in the collective bargaining regime. Withinthe context of a collective bargaining relationship arbitrators are"committed to due process" but "demonstrate their desire for a procedurethat meets the dictates of fair play without slavish adherence to thelegalisms that bedevil judicial procedings" (Zack, 1989:19-6). Munroe(1978), Chairman of the B.C. Labour Relations Board, presented a paperto a Continuing Legal Education Conference, in which he discusses thenotion of natural justice within the B.C. context. He explains how theB.C. Labour Code amendments of 1975 had the effect of expelling thecourts, judges, and such legal concepts of the common law as the "parolevidence rule" allowing arbitrators to dispense natural justice withoutbeing "tied up in legal knots". For example, they can determine whenextrinsic evidence will be admitted and considered. However, collectiveagreement language may have the effect of 'giving away' certain rights tonatural justice the employee might otherwise have.26What elements of natural justice are present in an arbitration withinthe industrial relations framework? Five can be listed: First, thearbitrator must "determine the reasonableness of the [employer's] rules";second, s/he must see to it that "notice has been provided to the employeeof the charges leveled against him or her"; third, a "fair hearing must beconducted", where the grievor is given a right to "confront and cross-examine the accuser"; fourth, hearsay evidence must not form the basisof critical decisions; and fifth, the "burden of proof in discipline casesrequires the employer to prove "its action was for just cause (Zack,1989:19-7). Arbitrators may also be concerned with whether there hasbeen administrative natural justice or due process in the handling of thediscipline and the processing of the grievance.B. The Concept of Just Cause'Just cause' refers to the substantive nature of the actual groundscited by the employer for taking disciplinary action against an employee.The employer must have 'just cause' for taking disciplinary action againstan employee in accordance with the law in the collective bargainingsetting in B.C. In the other discipline systems described above that sametype of requirement does not exist. In a common law of master andservant relationship the employer may dismiss without cause. As long asnotice has been provided in that system, the employee has no recourse.In a relationship under statute law there may, or may not, be arequirement for just cause, or the requirement may apply in somedisciplinary actions but not in others. Until the particular relationshipand law in question is examined, the question is open. Chapter VI willexamine the extent to which the School Act provisions of the pre-Bill 20 era provided a system of just cause procedures for B.C. teachers.27Adams (1979) claims the original purpose of a just cause requirementwas to "provide the kind of job security employees lacked at commonlaw"(12). Brown and Beatty (1988) state:...most collective agreements fetter an employer's right to discipline its employeesby expressly requiring it to prove that it had just or reasonable cause for thediscipline it imposed. Arbitrators are agreed that to satisfy this standard ininstances of dismissal an employer must affirmatively establish that as a result ofsome misconduct or disability the grievor has demonstrated his incompatibility orhas seriously prejudiced or injured the reputation or some other legitimate interestof the employer (7-23).Brown and Beatty also point out that there may be a statutory 'just cause'requirement, as indeed there is in the B.C. Industrial Relations Act,(section 93), and that such a requirement forces an arbitrator to evaluatenot only the basis for discipline, but also the justness and reasonablenessof the penalty applied (p.7-5).A highly respected American arbitrator, Harry H. Platt is oftenquoted as saying that the best way for arbitrators to determine what 'justcause' means is to"...decide what reasonable men, mindful of the habits and customs of industriallife and of the standards of justice and fair dealing prevalent in the community,ought to have done under similar circumstances and in that light to decide whetherthe conduct of the discharged employee was defensible and the disciplaty penaltyjust" (cited in Baer, 1972:28).Zack claims one component of just cause requires an examination of therelationship between the infraction and the employee's job performanceand that another "extends to the determination of what remedy isappropriate to return the employee to the position that he or she wouldhave occupied but for the penalty improperly imposed by the employer"(1989:19-13).28C. The Concept Of Progressive or Corrective DisciplineA third critical feature of a discipline system which can serve as ameasure to evaluate that system is the extent to which the principles ofprogressive or corrective discipline are upheld or applied. A systemwhich places value on employee tenure will give employees a secondchance in the event of some transgression. In the common lawrelationship, the concept of progressive discipline is absent. In arelationship established under a specific statute the concept may, or maynot be implemented. Within the collective bargaining regime theprinciple is firmly adhered to. Krashinsky and Sack explain the doctrineof progressive discipline:...disciplinary penalties ought to be progressive in nature, since the purpose ofindustrial discipline is to correct misconduct and restore a viable employmentrelationship. While there are no hard and fast rules, many employers begin with averbal warning and, if there is further misconduct, proceed to a written warning;if the employee's misconduct continues, a one-day suspension may be issued,followed by a three-thy suspension, and then a longer period of suspension. Afinal warning is usually given before discharge. This does not mean that, in aserious case, discharge cannot be immediately imposed, but ordinarily dischargeis regarded by arbitrators as a measure of last resort (1989:5).Rehabilitation and corrective discipline. A number of authorsassociate the concepts of rehabilitation and correction with the concept ofprogressive discipline. Zack appears to use the terms correctivediscipline and progressive discipline as though they are synonymous.With regard to corrective discipline he says...through escalated penalties, [corrective discipline] opens the door torehabilitation and the opportunity to restore [the employee's] standing andcontinue his employment. For the employer, providing the opportunity for anemployee to profit from discipline by reforming his behavior also brings benefits(1989:19-12).29Redecker does not approve of progressive discipline, which he calls apunitive system, and instead advocates rehabilitation which he regards asa positive aspect of the non-punitive discipline system (1989:56).Bruce Young says there are three themes of modern punishment inindustrial jurisprudence: rehabilitation, correction, and individualization,and that of these three themes "the corrective aspect is the paramountone" (1978:36). While some would claim rehabilitation has no place atall in industrial discipline, he says, recent efforts to deal with alcoholismin the work force would attest to the fact that "close parallels can bedrawn between such correctional themes and industrial discipline".George Adams (1979:27) talks of the concept of corrective disciplineas being punishment that is "tailored to allow the offender to learn fromhis mistake". It is also sensitive to the fact that "an employer usually hasto spend money in recruiting employees, and, following recruitment,must bear training costs". He makes much of a leading decision by Prof.Arthurs in Canadian Carborundum Co. Ltd., (1973) 5 L.A.C. (2d) 29.He quotes Arthurs:In light of all of these circumstances, we must ask ourselves whether theimposition of the penalty of discharge upon the grievor serves any usefulpurpose. Modern correctional theory provides us with at least three bases forevaluating the appropriateness of the penalty imposed: reformation, deterrence,or punishment.As to reformation, it can hardly be said that the grievor is being "reformed" ifhis relationship with the company is severed. So far as the company isconcerned, he has ceased to exist.As a deterrent to other employees, we do not believe that the discharge of thegrievor was either necessary or effective. Employees would equally have beenput on notice of their probable fate for the use of physical or verbal abuse if thegrievor had been merely subjected to significant suspension. More importantly,we do not believe that isolated and unpremediated outbursts of this kind are likelyto be discouraged by the imposition of penalties. Almost by definition, anemployee will not engage in this kind of conduct unless he loses his head. If anemployee is so angry that he does this, he is unlikely to ponder plant rules, toaddress himself to the example represented by the fate of the grievor. Foremployees who might be so minded, it will suffice if we announce in this awardthat any future outbreak of violence may be dealt with much more severely, andthat employees are now deemed to be put on notice that they must not have30recourse to such methods as were used by the grievor in order to assert what theyclaim to be their legitimate interests. And, finally, to place this matter inperspective, it must be remembered that even in the absence of a precedent, orspecific rule outlawing violence, employees have managed to conduct their dailydealings with supervision without recourse to physical abuse (1979:31-2).The progressive discipline process. Adams' discussion, alongwith the other sources, indicates that arbitrators may take any one ofseveral approaches to the concept of progressive discipline, but makes itclear that under a collective bargaining regime and industrial relationslaw, there is to be no element of surprise in terms of disciplinary action.An employee should normally be warned (first verbally and then inwriting), and then suspended (first for a short period and then a longerone), before a discharge will be upheld--except in unusual cases. Somearbitrators may take a rehabilitative approach and others will not. But asAdams states, any one of these approaches, corrective or rehabilitative,"is more sensitive to employee interests than was the law of master andservant and each is based on the premise that employees can be made tocorrect their ways through incremental doses of punishment" (1979:36).D. Categories of DisciplineA central feature of a discipline system is the nature of disciplinedescribed in that system in terms of grounds for action taken against anemployee. Such grounds for action become the categories of disciplinewhich are used within that disciplinary system to describe, record, or tomake applicable rules concerning. These grounds are categorized innumerous works, often as chapter titles in labour relations books dealingwith the broad subject of employee discipline.Brown and Beatty categories. Brown and Beatty, the leading31authority in labour relations in English-speaking Canada, has categorizedthe numerous grounds for employee discipline in their Chapter 7,"Discipline" (1988:7:3000) under seven major headings, some withnumerous sub-headings:(1) Off duty behaviour [7:3010],(2) Attendance at Work (Culpable Absenteeism) [7:3100]-failure to explain absence-unauthorized absence-failure to apply for a leave-leaving work without permission-lateness(3) Employee Disability (Non-culpable or Innocent Absenteeism) [7:3200](4) Theft and Dishonesty [7:3300]-falsification of records (employment, production, attendance, medical forms,application forms, etc.)-failure to explain-infidelity, untrustworthiness, and conflict of interest(5) Deviant Behaviour [7:3400]-sabotage-criminal conduct-criminal charges-fighting and assault(6) Poor Work Performance [7:3500]-incompetence (culpable and non-culpable)-insufficient and/or careless work-unsuitability-unacceptable personal appearance-use of intoxicants at work-detrimental activities-failure to co-operate(7) Insubordination [7:3600]-refusal to follow instructions-refusal to work overtime-refusal to cross a picket line-concerted refusals-insolent, unco-operative behaviour, obscene languageCategories used by Young, Redecker, and Baer. BruceYoung (1978), in his book dealing with how Canadian arbitrators viewemployee discharge, organizes his discussion under 24 chapters--the firstan introduction and the following 23 chapters, discipline categories.While many of his categories are similar to those of Brown and Beatty, a32few are different: "Illegal Strikes", "Union Activity", "Quit orDischarge?", "Company Rules"," Safety"," Sleeping on the Job","Horseplay", and "Moonlighting", for example, each warrant separatechapters in Young's book. American, James Redeker, uses 16 disciplinecategories in his book (1989, Part III). One of his categories not alreadylisted above is "gambling". Baer (1972) uses a number of unusualcategories in his book: "loafing", "feuding", and "garnishments".Discipline categories for nurses. Marilyn Steven, who studieddisciplinary actions taken against Canadian nurses, categorized groundsfor action first in terms of the venue of the charges and then the grounds.As in the case of teachers, nurses are subject to grievance arbitrationresulting from employer discipline, criminal lawsuits, disciplineprocedures of the profession, and civil lawsuits (1988:63). Stevencategorized types of cases under the "arbitration" category as follows:Arbitration cases: (40 cases in Canada between 1973-87)1.suspension cases-insubordination-neglect of duty-absenteeism.2. dismissals:-incompetence (general and medication errors) -use of Alcohol or drugs-insubordination^ -for religious reasons-neglect of duty -Miscellaneous-professional misconduct-absenteeismSteven tried to link categories of discipline uncovered in her study toseveral industrial relations and labour relations models, but failedbecause there were clear distinctions as to what is expected of pro-fessionals, and because the different types of penalties imposed on nursesand not clearly taken into account in those other models (78).33Categories of Discipline for TeachersIn both American works and in one Canadian study categories ofdiscipline for teachers are discussed. It seems clear that the relevantstatute governing teacher discipline will determine the categories used.Discipline categories for American teachers. Floyd Delonclaims 25 legal grounds for dismissing a teacher are contained in variousU.S. statutes. Those most frequently listed are immorality (found instatutes in 34 states), incompetency (31 states), neglect of duty (28 states)cause or just cause (26 states), insubordination (22 states), andinefficiency (18 states). He claims there are such unusual grounds forteacher dismissal or suspension contained in statute as "profanity", "forteaching sex education", "failure to display the flag", "failure to take aloyalty oath", or for "failure to teach Texas history" (1977:11-13, 17).Another, and separate body of law, deals with powers given to variousprofessional practices commissioners to revoke teacher certificates.Delon discusses six reasons provided in case law in this category underthe headings "contract violation", "fraud", "immorality", "criminalconviction", "Un-American activities", and "failure to meet academicrequirements" (20-8).Discipline categories for Manitoba teachers. Czuboka'sanalysis (1985) of what he claims to be all 18 teacher terminationsoccurring in Manitoba between 1969 and 1985 are discussed in sufficientdetail allowing them to be categorized as follows: incompetence (7 cases),layoffs (3 cases), insubordination (2 cases), immoral conduct (2 cases),refusal to teach in the French language (1 case), conduct unbecoming ateacher (1 case), inappropriate student discipline (1 case), and34absenteeism/off-duty conduct combined (1 case).It is clear that categories of discipline may differ for teachersdepending on the nature of laws governing grounds for dismissal, or onwhether or not the disciplinary action in question is subject to a collectivebargaining regime, a specific education statute, a professional certifi-cation review panel, civil or criminal law. It is also evident that a studyof the actual employee discipline cases, the nature of the employee work,and/or the applicable law, must be undertaken before categorization canbe done meaningfully and a particular classification scheme designed fora specific group of employees such as B.C. teachers.CONCLUSIONIn this second chapter, critical issues related to the general notion ofemployee discipline were canvassed with a view to establishing afoundation of concepts to guide the rest of this study concerning B.C.teacher discipline. In the first section, a search for a general definitionof "employee discipline" found three ways to look at the term. Disciplinecan be seen as a tool to create the workplace environment or culture, itcan be seen as a form of self-motivation by the employee, or it can beviewed as only one element within the broader industrial relationsinstitutional framework. The first section of the chapter also looked atthe definition of "disciplinary action" as a distinct term referring to anaction by the employer against the employee which has a negative impacton the employee's work record. A layoff is not a disciplinary action.These definitions confirm that a study of teacher discipline in B.C. neednot review teacher layoffs, but that all actions against teachers that havecreated, or may establish, negative work records must be reviewed.It is interesting to combine the concepts of discipline contained in the35second section dealing with theories of discipline with those in the thirdsection outlining the three legal frameworks. Those systems of disciplinedescribed under the statute law relationship and under the collectivebargaining relationship would fit into Phelps' theoretical framework as"the due process models". Yet the two systems will differ and can beplaced on a continuum in relation to each other in some fashion.Further analysis of those two systems and the particular School Act system in question, will determine where they fit on this continuum inrelation to each other. The common law of master and servant legalframework describes an employee discipline system which could besituated on Phelps' continuum at the authoritative end of his theoreticalmodel or could serve as an example of Coye and Belohav's "disciplinaryperspective" model. So it is evident that the legal frameworks governingemployee discipline can be matched against the theoretical models andlocated on a Phelps' type of continuum to describe their distinctivecharacteristics in relation to each other.In the last section of the chapter, four central features of disciplinesystems were discussed. The concept of natural justice or due process iscritical in an evaluation of any discipline system. The extent to which a"statute law relationship" system, for example, fits on Phelps' theoreticalcontinuum, will depend on the extent to which natural justice foremployees is legally enforceable. This concept as a key yardstick then,may be applied to measure the B.C. teacher discipline systems examinedin this thesis. In the same way, the 'just cause' and 'progressivediscipline' principles also can be used as yardsticks to measure B.C.teacher discipline systems in terms of the extent of fair processesprovided teachers.Categories of discipline have become fundamental descriptors inmuch of the literature dealing with employee discipline. Those36categories selected as appropriate to describe a particular employeegroups' discipline system, however, depend on the nature of theemployees and the work they do, specific legislation which may existgoverning employee discipline in that sector, and the types of employeeoffences which normally attract discipline within that employee group.A study is required of both the actual discipline cases relevant to theemployee group and the governing legislation, before a disciplinecategory system can be selected or designed to help describe the systemfor that group. Discipline categories are appropriately set out after astudy, then, and not before.37CHAPTER IIIDISCIPLINE IN AN INDUSTRIAL RELATIONS SETTINGThis chapter reviews relevant literature for the purpose ofdescribing critical features of the industrial relations system governingdisciplinary matters in a unionized workplace which now apply toteachers for the first time in the province's history. The collectivebargaining regime as it applies to employee discipline is outlined belowin three sections. The first provides an overview of the central featuresof an employee discipline system within a collective bargainingrelationship and enlarges on the cursory discussion of the previouschapter which described, in general terms, this discipline system inrelation to others. The second section examines some critical arbitraljurisprudence, and the third section reviews some studies of relevantarbitration decisions.SECTION 1: CENTRAL FEATURES OF EMPLOYEEDISCIPLINE WITHIN A COLLECTIVE BARGAININGRELATIONSHIPThis section will not examine B.C. labour law, as that is done in detailin Chapter V. The objective of this section is to examine those unique38and distinct features of an employee discipline system within a collectivebargaining relationship which clearly differentiate that system from otheremployee discipline systems.A. Five Critical Features: An OverviewThe concepts of 'natural justice' and 'just cause' while havingdifferent meanings, often come together as the intertwined proceduraland substantive features of the labour relations grievance system. Theconcepts refer to the process used and the grounds for discipline.Natural justice procedures within a collective bargaining relationship arebased on those specific and critical features of the system which havedeveloped. At least five critical features of an employee disciplinesystem within the collective bargaining relationship make that systemdistinct in relation to other systems and relate to the unique concepts ofnatural justice or due process. First, a separate and distinct labour statutegoverns; second, a grievance arbitration system is the mechanism ofappeal; third, a significant role is played by arbitrators; fourth, a body ofarbitral law or jurisprudence has developed and is highly influencial indecision making; and finally, negotiated collective agreements play acentral role in the process.Labour law. In B.C. the Industrial Relations Act, examined inChapter V, must be observed by employers and employees alike inmatters of employee discipline. This body of law applies to B.C. teachersfor the first time, with disciplinary decisions now subject to review inaccordance with labour law rather than general administrative law andthe courts. Provisions in the Industrial Relations Act governingemployee discipline are substantively different from those contained in39the School Act which applied to teacher discipline matters before 1988.The grievance arbitration system. A second critical feature ofthe collective bargaining relationship is the grievance arbitration system,the unique appeal mechanism which allows decisions of the employer tobe reviewed by an independent body. The inclusion in labour statutes ofa mandated system of binding grievance arbitration has been described as"the quid pro quo for the prohibition on strike action during the term ofa collective agreement" (Weiler, 1980:91). The grievance arbitrationsystem also means that employees may not go to the courts to contest adisciplinary decision of the employer. Weiler claims "the institution ofprivate labour arbitration may be the most telling illustration of the spiritof autonomy and self-government which pervades collective bargainingrelationships in North America" (1980:94). In B.C. all unionizedworkers in a bargaining unit have access to compulsory third partyarbitration in terms of appealing any discipline decision of the employer.The role of arbitrators. A third critical feature of the disciplinesystem in a collective bargaining regime involves the central role playedby arbitrators. Independent, neutral arbitrators review employerdecisions based not only on whether a fair process was followed indisciplining an employee, but on whether the correct decision was madeby management in taking the disciplinary action. Arbitrators have thepower of the courts to issue decisions, to force compliance with theirdecisions, and as well, additional power to order reinstatement or vary adisciplinary penalty. Arbitrators are neutral in the sense that both partiesto the dispute must agree on the single arbitrator, or in the case of a threemember arbitration board, on the chairperson. Arbitrators are selectedbecause of their reputations as fair, unbiased, knowledgeable members of40the labour relations community. Both parties understand in selecting anarbitration chairperson that thorough understanding and knowledge ofarbitral jurisprudence and labour law is required. To those in the B.C.education community, this means the involvement of people in teacherdiscipline appeals who have not been involved in the past.Arbitral jurisprudence. The thousands of arbitration decisionsover the past few decades have developed into an impressive and distinctbody of precedent, or arbitral jurisprudence, now looked to for guidancein arriving at decisions on grievance matters, including employeediscipline cases. This extensive body of law has come to require suchspecialized expertise to interpret and apply that the system of grievancearbitration, once designed to be applied by lay persons from the twoparties involved in a dispute, now relies on an army of labour lawyersand industrial relations experts (Weiler J.,1984:160-161). Gandz states:The rulings of arbitrators, labour boards, and the courts who have reviewedarbitration cases comprise a 'common law of arbitration'. As Brown and Beattystate it "These awards have come to shape and direct not only the drafting ofclauses in new collective agreements by providing a point of reference as to howcertain problems have been determined by arbitrators in the past, but also theybear upon the resolution of future grievances" (cited in Anderson andGunderson, 1982:296).Young claims arbitrators "are not as judges, bound by precedentsbut, because so many arbitrators have a legal background, they do setconsiderable store by precedent" (1978:4). While arbitral jurisprudencemay not be as binding to arbitrators as high court decisions are in judicialproceedings, the jurisprudence is so influencial, those administeringcollective agreements or dealing with employee grievances would ignoreit at their peril.Arbitral jurisprudence provides guidance to arbitrators as theyimplement 'just cause' principles in the industrial relations setting. For41example, arbitrators generally will be critical of discharge cases in whichan employee is unable to perform satisfactorily in a new positionresulting from a transfer. "It just isn't cricket to fire a guy who workedwell in one department but could not cope with his assignment inanother" (Young,1978:201). Another aspect of the 'just cause' principlein industrial jurisprudence is that the same rules may not apply in allcases. Palmer makes this point in quoting from a 1956 Carrothersdecision:"...It has been said that an individual ought not to be judged as if he were acrowd, that legal rights of parties ought not to be dictated by apprehensioninduced by imaginative speculation as to possible implications a decision mayhave for future relations" (1978:189).In other words, it can be expected that each arbitrator will apply theprinciples of 'just cause' as deemed fit in the individual circumstancesbefore him/her and in accordance with his/her selection of, or reading of,the relevant arbitral jurisprudence.Collective agreements. Finally, the employee discipline systemwithin a collective bargaining relationship is distinct and unique becausedisciplinary matters are critically dependent on the nature of a collectiveagreement negotiated freely between the two parties, union andemployer. "Only in cases of collective agreements, may a bindingagreement exclude the jurisdiction of the courts" (Harris, 1980:184). InB.C., as in other provinces, all collective agreements, by law, mustcontain a grievance provision ending in arbitration or some similardispute resolution method and this provision will be the appealmechanism in employee disciplinary matters. However, these grievancearbitration procedures may differ in many ways as Chapter VII willshow in terms of teachers' grievance provisions.42In B.C. as well, the law requires an employer to have just cause fordiscipline and such a provision is required in the collective agreement.An arbitrator reviewing a discipline case, will review all relevantprovisions of the collective agreement and make a decision not only inaccordance with the law and relevant jurisprudence but also inaccordance with all those relevant collective agreement provisions.SECTION 2: CRITICAL JURISPRUDENCE: THEAPPLICATION OF EMPLOYEE DISCIPLINECritical arbitral jurisprudence which has come to be accepted as guidingprinciples in dealing with employee discipline matters within a collectivebargaining relationship comes from "leading decisions", some issued bylabour relations boards after reviewing arbitration awards which have beenappealed, while others are arbitration decisions themselves. Leadingdecisions are typically decisions of well known and highly respected labourrelations experts which contain clear, well reasoned rulings, incorporatinginterpretation and review of the law and related precedent-setting decisions.This section of this chapter outlines some of that critical jurisprudenceas it defines employee discipline issues and sets out guiding principles.Because arbitral jurisprudence dealing with discipline is so extensive, onlya flavour of it can be given in this paper. The section is in two parts; thefirst dealing with critical jurisprudence relating to culpable discipline, andthe second dealing with non-culpable discipline jurisprudence.A. Culpable DisciplineMcPhillips and Knight define culpable behaviour as "actions which areblameworthy or have occurred through the intentional actions of theemployees" (1990:1). Types of offenses categorized as culpable behaviour43would be such offenses as theft, insubordination, or criminal conduct. Inthe language of the pre-Bill 20 School Act of B.C. such cases were definedas teacher misconduct. In such cases, the employee's actions are seen to bedeliberate, could have been avoided, and could be alleviated by progressivediscipline. It is not always readily apparent that an employee action isculpable in nature and this aspect of a case, defining the offense, may bethe subject of some debate. For example, in the case of employeeabsenteeism, such a case is culpable in nature if the employee was not illand did not have a valid reason to be away from work. Where theemployee was found to be ill, the absenteeism case is non-culpable. Theexact reason for absenteeism may be argued and its definition in terms ofbeing culpable or not, uncertain.The William Scott Case. The principles guiding arbitral reviewof culpable discipline cases are contained in the leading William Scott decision [(1976) 1 Can LRBR 1]. Perhaps no other case has had moreimpact on employee discipline in B.C. than this leading 1976 case, a B.C.Labour Relations Board decision by Chairman Paul Weiler. The WilliamScott case is more frequently cited than any other B.C. discipline decisionand is recognized across Canada as providing the correct model forreviewing the justness of disciplinary decisions within a collectivebargaining relationship. Within this leading decision can be found thethree questions arbitrators must pose in reviewing discipline cases, anoutline of all the factors which must be canvassed in determining anappropriate penalty, an explanation of the principle of corrective orprogressive discipline, reference to the philosophy of the culminatingincident, and an outline of the purpose and philosophy of B.C. labourlegislation as it deals with employee discipline in contrast to a commonlaw legal framework.44Adams states "arbitrators are almost unanimous that three distinctquestions should be asked "in accordance with those included in WilliamScott" (1979:22-3). Krashinsky and Sack (1989:14) review the threeWilliam Scott questions which have guided the central examination inculpable discharge and discipline cases:Arbitrators should pose three distinct questions in the typical discharge grievance.First, has the employee given just and reasonable cause for some form ofdiscipline by the employer? If so, was the employer's decision to dismiss theemployee an excessive response in all of the circumstances of the case? Finally, ifthe arbitrator does consider discharge excessive, what alternative measure shouldbe substituted as just and equitable? (also see Wm.Scott & Co.., [1977] 1 CanLRBR 1 [Weiler], 5).Weiler claims in relation to his question two, "that the arbitrator'sevaluation of management's decision must be especially searching" andthese questions should be posed:(i) How serious is the immediate offence of the employee which precipated thedischarge (for example, the contrast between theft and absenteeism)?(ii) Was the employee's conduct premeditated, or repetitive; or instead, was it amomentary and emotional aberration, perhaps provoked by someone else (forexample, in a fight between two employees)?(iii) Does the employee have a record of long service with the employer inwhich he proved an able worker and enjoyed a relatively free disciplinaryhistory?(iv) Has the employer attempted earlier and more moderate forms of correctivediscipline of this employee which did not prove successful in solving theproblem (for example, of persistent lateness or absenteeism)?(v) Is the discharge of this individual employee in accord with the consistentpolicies of the employer or does it appear to single out this person forarbitrary and harsh treatment (an issue which seems to arise particularly incases of discipline for wildcat strikes)? Wm.Scott, supra, 5-6)This decision outlines what Weiler states are the "oft-quoted, but stillnot exhaustive, canvass of the factors" taken from" Steel Equipment Co Ltd. (1964), 14 L.A.C. 356" (Reville). This list of factors, like thosequestions above are commonly used by arbitrators to evaluate theemployer's disciplinary action and determine the appropriate penalty:1. The previous good record of the grievor.2. The long service of the grievor.453. Whether or not the offence was an isolated incident in the employment historyof the grievor.4. Provocation.5. Whether the offence was comtnited on the spur of the moment as a result of amomentary aberration, due to strong emotional impulses, or whether theoffence was premeditated.6. Whether the penalty imposed has created a special economic hardship for thegrievor in the light of his particular circumstances.7. Evidence that the company rules of conduct, either unwritten or posted, havenot been uniformly enforced, thus constituting a form of discrimination.8. Circumstances negativing intent, e.g., likelihood that the grievormisunderstood the nature or intent of an order given to him, and as a resultdisobeyed it.9. The seriousness of the offence in terms of company policy and companyobligations.10.Any other circumstances which the board should properly take intoconsideration, e.g., (a) failure of the grievor to apologize and settle the matterafter being given an opportunity to do so; (b)....(Wm.  Scott, supra, 4).The principle of progressive or corrective discipline is set out in thisdecision, both in the list of factors above (item iv) and when Weiler states"because the employer is now entitled to escalate progressively its responseto employee misconduct, there is a natural inclination to require that theselesser measures be tried out before the employer takes the ultimate step ofdismissing the employee..." (Wm.Scott ,3).Krashinsky and Sack point out that Weiler's principles force a closerexamination of the disciplinary penalty meted out by the employer thanever before. They quote what they claim is a key statement in Wm.ScottArbitrators no longer assume that certain conduct taken in the abstract, evenquite serious employee offences, are automatically legal cause fordischarge.. .Instead, it is the statutory responsibility of the arbitrator, havingfound just cause for some employer action, to probe beneath the surface of theimmediate events and reach a broad judgment about whether this employee,especially one with a significant investment of service with that employer,should actually lose his job for the offence in question (Krashinsky andSack, 1989:14).Allan Black, then Vice-Chair of the B.C. LRB, sums up theconnection between the William Scott case and the review of culpableconduct in his review of the 1982 Canadian Liquid Air decision:46The Labour Relations Board has, through the decision of Wm. Scott, supra,attempted to establish a framework in which arbitrators should view dismissalswhich are alleged to have been based on an act or acts deserving reproachmentor punishment. Such acts may include, but are not limited to, the elements ofomission, negligence, and malfeasance. However, all such acts contain theessential element of culpability or blameworthy behaviour [(1982)1 CanLRBR, 360].The doctrine of the culminating incident. One principle ofarbitral jurisprudence that provides guidance to arbitrators in reviewingculpable discipline cases, also referred to in Wm. Scott, is the doctrineof the culminating incident. Krashinsky and Sack explain this doctrine:An employer is not permitted to discipine or discharge an employee simply onthe basis of a review of the past disciplinary record. An employee may bedisciplined or discharged only when he or she has committed an act which itselfwarrants discipline. Once such a "culminating incident" is established, theemployer is entitled to consider the entire record of the grievor in determining thepenalty. Thus, although an employee may have committed a relatively minor actof misconduct when seen in isolation, the employer is entitled to rely on theentire disciplinary record of the employee in assessing the appropriate penalty,unless the collective agreement provides for the cleansing of the employee'srecord after a specified period of time. If the discharge is for non-culpableconduct, such as absenteeism due to illness, a specific incident must occur whichwarrants a review of the employee's record before discharge action can be taken(1989:5).Adams defines the culminating incident as being a subsidiary doctrineto that of corrective or progressive discipline. He states, "correctivediscipline is premised on providing employees with an opportunity tolearn from their mistakes; the culminating incident concept identifiesthose employees who are unlikely to profit from another opportunity"(1979:28). Palmer (1978:223) concludes, "...once an employee commitsan act which would expose him to any discipline, however slight, such anact opens his total record for consideration by an employer". Theculminating incident has been described as the "last straw" which enablesthe employer to invoke the employee's past record as the basis for47discharge (Young, 1978:255-6). Owen Shime says in Re: North YorkGeneral Hospital and CUPE, 5 L.A.C. (2d) 45:"The culminating incident need not be major--it may only be of minorsignificance but it permits the employer to say he has had enough of the particularemployee and need not tolerate him in the work force any longer, because of thecombination of past misdeeds, together with the final incident..."The KVP rules. In reviewing a case of culpable conduct, such asinsubordination, discussed above, another arbitral rule developed frommore than 25 years of jurisprudence, outlines the principles arbitratorsuniversally adopt in reviewing the employer's workplace rules. Anemployee may be determined to be insubordinate because a workplacerule was not followed. In the precedent setting decision involving theKVP Co. Ltd. and Local Union 2537,  (1965) 16 L.A.C. 73, ArbitratorRobinson spelled out the criteria for dismissal on the basis of unilateralcompany miles:I--Characteristics of Such Rule:A rule unilaterally introduced by the company, and not subsequently agreed toby the union, must satisfy the following requisites:1. It must not be inconsistent with the collective agreement.2. It must not be unreasonable.3. It must be clear and unequivocal.4. It must be brought to the attention of the employee affected before thecompany can act on it.5. The employee concerned must have been notified that a breach of such rulecould result in his discharge if the rule is used as a foundation for discharge.6. Such rule should have been consistently enforced by the company from thetime it was introduced (cited in Young, 1978:221).Bruce Young concluded, "Judge Robinson's observations,.., had aprofound impact on arbitral thinking thereafter" (1978:222). Employersin a collective bargaining relationship must be aware that disciplinaryaction based on 'breaking the rules' will inevitably result in arbitralreview based on the KVP jurisprudence.48B. Non-culpable ConductTwo elements of non-culpable employee conduct are looked at in thissection. The definition of non-culpable conduct is examined, and theprinciples of arbitral jurisprudence which are applied in a review of theemployer's disciplinary actions in non-culpable cases are outlined.What is non-culpable conduct? Arbitral jurisprudence woulddictate that in the case of an employee who is unable to meet employmentrequirements because of some physical or mental capacity, such failingson the part of the employee are non-culpable in nature, and therefore,action taken against such an employee may not be considered to be"discipline" (Gall, 76:87). An employee's conduct may be defined as non-culpable when absenteeism related to alcoholism is involved, forexample, or when poor work performance is related to an inability to dothe work for some reason beyond the employee's control. Punishment orprogressive discipline may not be seen to be appropriate in such cases.While non-culpable behaviour does not result from a fault on the part ofthe employee, it does refer to behaviour which is, however, notacceptable from the point of view of the employer (McPhillips, Knight,and Shetzer1990:1). Employers are within their rights to deal withemployees who are incompetent or unable to perform. However, thestandard of arbitral review differs, Black states in Canadian Liquid Air....it is obvious that the direction to arbitrators found in Wm. Scott, supra,cannot logically and properly be applied to the action of an employee and thereaction of an employer to conduct which can truly be termed "non-culpable"....Where employee conduct has been assessed as "non-culpable" or notblameworthy, different considerations apply when examining the reactions ofan employer. It is difficult to apply the concept of fault to an employee who,through some physical or mental impairment, or simply through genuineinability or lack of competence, fails to attend the work place, or, once he or sheis there, inadequately performs the work which is expected of him or her49(1982,1 Can. LRBR:361-2)McPhillips, Knight and Shetzer point out that in cases of employeesuspension or discharge for non-culpable conduct the standard of reviewis now seen to be something other than the application of the WilliamScott 'rules'. They claim the most frequently cited case involving non-culpable incompetence is Edith Cavell Private Hospital (1982) 6 L.A.C.(3d) 229 (Hope). Because this is a fairly recent B.C. case, not yet adecade old, the evolutionary or shifting nature of arbitral jurisprudenceis indicated.Arbitral review of non-culpable cases. McPhillips andShetzer (1990), in their recent study, "Culpable and Non-CulpableIncompetence: A Canadian Arbitral Perspective", point out that in casesof "incompetence", or "non-culpable, inability to perform the tasks", andwhere there is also present an inability to respond to disciplinary action,the Edith Cavell and/or the National Harbours Board cases (both AllanHope awards) have become accepted tests in arbitral review. The "eightconditions" set out in National Harbours Board are referred to in severalrecent B.C. teacher cases and are included here:(a) Has the employer identified in objective terms the nature of the work to beperformed and the standard expected?(b) Has the employer established that the employee was aware of the standard?(c) Has the employer established that the work performance of the grievor wasbelow that standard?(d) Did the employer provide supervisory direction to the employees to assist himin achieving the standard?(e) Did the employer take reasonable steps to move the employee into other workwithin the bargaining unit that was or might have been within hisqualifications and competence?(f) Did the employer bring home to the grievor the fact that his performance wasunsatisfactory and that dismissal might result from a continued failure or50inability to meet the standard?(g) Did the employer afford the grievor a proper opportunity to challenge itsassessment of his work or file a grievance?(h) Does the evidence support the inference of a continuing inability on the partof the employee to meet the standard? [cited in McPhillips/Shetzer and inMcPhillips and Knight (1990), 196-7]. [Also see five criteria in Edith Cavell Private Hospital and HEU  (1982) 6 L.A.C. (3d) 229 (Hope)].McPhillips and Shetzer claim the employer must also have "a 'properand appropriate occasion' for determining that the employee should bedischarged" as in the analogous doctrine of the culminating incident forcases of culpable discipline.These authors also suggest the employer should demonstrate it hasalready tried such solutions as:(1) Transferring the employee to a job which he is able to perform if one isavailable and if that can be done consistent with other provisions of thecollective agreement;(2) Demoting him to a job which he is able to perform if one is available and ifthat can be done consistent with other provisions of the collective agreement, or(3) Placing him on layoff if no such job is available. (1990:197-8)The critical principles in the arbitral jurisprudence which giveguidance in non-culpable incompetence discipline cases then, can besummarized as follows: The employer must demonstrate that the level ofjob performance required, or the standards against which the griever wasmeasured, were clearly defined, were established in a fair and reasonablemanner, relate to the actual duties of the job, and were communicatedclearly to the employee. The employee must have had a reasonableopportunity to meet those standards and must have been told of theconsequences of not meeting the standards or job performance required.And finally, the employer must exhaust other ways of assisting theemployee to maintain his/her job at some minimal level. These arbitralprinciples will be relevant after 1989 in dealing with all B.C. teacher51dismissals for poor performance. Such principles were not applied underSchool Act dismissals as Chapter VI will demonstrate.SECTION 3: STUDIES OF ARBITRATION DECISIONS INEMPLOYEE DISCIPLINE CASESThe last section of this chapter reports results of a number ofstudies regarding employee discipline, indicating both the nature ofarbitration decisions and the type of studies that have been, or can be,carried out in the area of employee discipline. Studies reported answerone or more of the following questions: (1) What percentage of allemployee grievances involve disciplinary matters?; (2) What types ofoffenses attract discipline?; (3) How often is the management decisionoverruled, and how often is the employer's action upheld?; (4) Whatconditions are more likely to ensure reinstatement of an employee; and(5) Are some types of offenses likely to generate more "wins" for theunion than others?A. Krashinsky and Sack StudyKrashinsky and Sack found that over 7,500 grievance arbitrations areconducted in Canada each year and of these about one-third involvediscipline and discharge (1989:15). They report findings of a 1974 studyof 1,661 arbitration awards in which 38% involved discipline (suspensionor discharge cases). Their findings showed the union was successful inover 50% of all cases in having the employer's disciplinary penalty eitherrescinded or reduced.A second study reported by the same authors found an employee'srecord had a significant impact on whether reinstatement was ordered:52"94% of employees with a clean record were reinstated, compared withonly 60% of employees with a warning, and only 40% of those with aprevious suspension" (Krashinsky and Sack, 1989:18). Seniority wasfound to be a major factor in arbitrator's decisions, in that arbitratorstend to reinstate more senior employees. (Another reported study alsofound a strong relationship between seniority and successful reinstate-ment after discharge [McDermott and Newhams,1971: 526]). Based on asurvey of several Canadian studies in addition to their own, Krashinskyand Sack conclude:In 82% of all disciplinary discharges that went to arbitration, the employee wasfound responsible for some wrong doing. On the other hand, in over 50% ofdischarge cases, the arbitrators disagreed with the employers, either with theirdetermination that the grievor was at fault or, more often, with their assessmentof the appropriate penalty, and reinstated the employees (19).B. Crombie and Webb StudyCrombie and Webb studied discipline decisions in Ontario andreported their results in a 1988 report, "Discharge and DisciplineArbitrations in Ontario: 1982-86". They found that discharge anddiscipline grievances account for 32.7% of all arbitrations. Theirresearch showed management's actions were reversed by arbitrators in52% of all cases. The most frequent employee offenses cited were, inorder, poor attendance, dishonesty, insubordination, and inadequate workperformance (cited in Krashinsky and Sack, 1989:18).C. Discipline Case Studies in Alberta and in Nova ScotiaPonak reviewed 159 discharge awards issued in Alberta between1982-84 and found that management decisions were upheld in 46.2% of53cases, in 19% the employee was completely exonerated, and in 34.8% ofcases a lesser penalty was substituted by the arbitrator (cited in Krashin-sky and Sack, 1989:18). A Nova Scotia study by Gilson and Gillis,"Grievance Arbitration in Nova Scotia" looked at 730 of that province'sawards between 1980-86 and found unions won in over 61% of dischargeand discipline cases (cited in Krashinsky and Sack,1989:19).D. George Adams' StudiesGeorge Adams (1979:40-52) studied 645 disciplinary discharges inOntario between 1970 and 1974 and categorized the type of cases and thepercentages falling into each category. He found the largest number ofcases involved charges of insubordination (24% of cases); 19% werebased on attendance matters, 16% on dishonesty, another 16% on workperformance, 9% involved alcohol related matters, 7% 'failure to getalong', 6% involved discipline for 'union activity', and 2% for 'other'.Employer discharges were upheld in 46.5% of the 645 cases. Hisresults also show management has a higher success rate in disciplinarycases not involving discharge. Suspensions or other less severe forms ofdisciplinary actions are more likely to be upheld.Adams found grievors were judged completely innocent in 115 of thetotal 645 cases (17.8%) and awarded full back pay. (Of these, 26% fellinto the work performance category, 26% absenteeism, 20% dishonesty,and 12% insubordination.) A lesser penalty was substituted for dischargein 230 cases (or 35.7%). "The principle reason for reinstatement", hestates, centers on "an arbitral belief that the penalty of discharge wasexcessive" (p.52). The highest rate of reinstatement was found in thecategory of 'union activity' (58% of cases), in 'alcohol' cases (55%reinstatement), and then in 'failure to get along' (50% reinstatement).54Least likely to be reinstated are those charged with absenteeism (38%),dishonesty, or work performance (39% each). Employers most oftenresort to discharge in cases of insubordination yet these cases have ahigher than average rate of reinstatement (49%).E. McPhillips and Shetzer StudyMcPhillips and Shetzer (1990), analyzed 72 B.C. discipline cases(between 1985-89) to see how arbitrators have treated cases of employerdiscipline. They found that different arbitral rules are applied dependingon whether the case is found to be of a 'culpable' or of a 'non-culpablenature'. They placed discipline cases in two categories: (1) "culpablenon-performance" or (2) "non-culpable incompetence" (198).Their findings show that in culpable cases, arbitrators adhere to theWilliam Scott principles and the Steel Equipment ten points cited aboveas the test of whether the disciplinary action was properly carried out.Employers were found to be successful in 87% of such cases. However,in the case of non-culpable incompetence, the Edith Cavell and/or theNational Harbours Board  cases have become the accepted test. In non-culpable cases employers were found to be successful in having theiractions upheld by arbitrators in only 38% of cases. In other words, theunion is successful (completely or partially) in B.C. in only 13% ofculpable cases, but in 62% of non-culpable cases.McPhillips and Shetzer found similar results in a study of Albertacases. The union was successful in that province in 63% of non-culpablecases, but in only 9% of culpable cases. The authors conclude:...management has not been as successful in non-culpable cases as it has incases where there is a culpable work performance problem. ... this is due to afailure to understand that there are considerable differences in the nature of thetwo problems, and hence, a requirement for different approaches.55In our opinion, the distinction between culpable work performance and non-culpable incompetence must be maintained and clearly understood bymanagement, unions and arbitrators. Only in that way will consistency andfairness be developed in dealing with problems of non-culpable incompetenceand inadequate work performance in the workplace (203).F. Discipline Cases and NursesMarilyn Steven's study of disciplinary actions taken against nurses inCanada, looked at the results of 39 Canadian arbitration cases between1973 and 1987. She categorized them first as "suspensions", where shefound four were upheld by arbitrators and one where a nurse wasreinstated, and as "dismissals", where seven were upheld by arbitratorsand 27 overturned and the nurses involved reinstated. Of the suspensioncases, she found three were for insubordination, one for neglect of duty,and one for absenteeism. The dismissals were categorized as follows:Incompetence-general 5-medication errors 7Insubordination 1Neglect of duty 1Professional misconduct 7Absenteeism 9Use of Alcohol or drugs 1For religious reasons 1Miscellaneous 2(1988: 74 and 311).G. Summary of Discipline StudiesThe combined results of these studies allow several generalconclusions to be made:(1) At least one third of all grievance arbitrations relate to employee discipline.(2) The largest categories of discipline cases appear to be insubordination and poorattendance, although in the case of nurses, incompetence and professional misconductrank high. Only one insubordination was recorded involving a nurse.56(3) Unions are successful in having employer discipline actions overturned, in whole orin part, in 50% or more of all discipline cases in general. However, when disciplinecases are broken down and looked at in the two general categories of 'culpable' or'non-culpable' offenses, unions are more successful in having employer actionsoverturned by arbitrators when the offense is 'non-culpable'.(4) Employees with seniority and a good work record stand the best chance of beingreinstated and of being successful after reinstatement.(5) It has been found that employer actions in incompetence cases, defined as a non-culpable offences, are overturned to a greater degree than in other types of cases.(6) Employers in B.C. may have problems in having their discipline actions forincompetence upheld because they are not familiar with the arbitral test required.CONCLUSIONThis chapter examined the literature in order to determine criticalfeatures of an employee discipline system within a collective bargainingregime. The system of labour arbitration governed by the partiesthemselves, with limited interference from the courts, was found to bethe most notable element of the employee discipline system in theunionized workplace. All disputes arising out of the agreement,including all disputes relating to disciplinary action taken againstemployees, are subject to the grievance arbitration process outlined in thecollective agreement and applicable labour law, and are only in rareinstances subject to decisions of the courts. A body of arbitral law orjurisprudence has grown up and guides not only arbitrators in reviewingemployer actions, but guides management and union practice in theworkplace as well. The role of arbitrators is significant. Arbitratorsboth write new decisions and adhere to previous decisions and principlesset by other arbitrators, creating the jurisprudence which to a greatextent governs the system. The evolutionary nature of the jurisprudencewas also noted.57Such principles of 'just cause' and 'natural justice' are criticallyimportant to the system of discipline under labour law. Disciplinaryactions are reviewed to determine whether there was 'just cause' orproper grounds for the action, and whether the disciplinary penalty isappropriate. Natural justice requires arbitrators to individualize anyreview and permits selection of precedents based on the arbitrator's ownview of the individual nature of each case.Several leading decisions were reviewed which provide criticalguidance to arbitrators, especially in the B.C. context. William Scott contains the essential 'rules' governing culpable employee disciplinecases, especially in terms of the three questions arbitrators must ask inreviewing any discipline action. The Steel Equipment ten points, alsocontained in Wm. Scott are key considerations in assessing theappropriateness of any penalty. Specific labour doctrines such as thoserelating to "the culminating incident" or the "KVP rules" were includedto indicate two examples of the nature of arbitral jurisprudence. Suchdoctrines have become accepted as 'laws' within the industrial relationscommunity but came from other leading decisions like William Scott andnot from legislation. The eight conditions outlined in The National Harbours Board were also reviewed in terms of the test now applied inB.C. to non-culpable discipline cases.The principle of progressive or corrective discipline, which arbitra-tors expect employers to abide by, was found to be another criticalfeature of the discipline system in a collective bargaining relationship.As with so many other principles accepted by arbitrators, progressivediscipline can be traced to leading decisions which have come to formcritical arbitral jurisprudence. Employee discharges will normally notbe upheld unless lesser forms of discipline were applied earlier in anattempt to correct undesirable behaviour. The concept of corrective58discipline may require an element of rehabilitation. It can be expectedthat arbitrators will be sensitive to the issue of rehabilitation unlikepractitioners from the common law context. It can also be expected then,that employee work records will be kept in a collective bargaining systemand that unions will have some interest in these work records.This review does not by any means form an exhaustive canvass ofarbitral jurisprudence related to employee discipline, or even anoverview of the most critical decisions. What was intended, was to give aflavour of the nature of key concepts involved, and some of theterminology that will become familiar to the B.C. education communityemerging into the world of labour arbitration.The last section looked at some studies which review arbitrationawards dealing with discipline. From that review it is apparent thatmany employer discipline actions are overturned by arbitrators. Thestudies cited also indicate the nature of possible research questions forthis study of B.C. teacher discipline. For example, what percentage ofteacher grievances are based on discipline matters? What kinds ofoffenses are the basis of teacher discipline? How often have teachersbeen reinstated after dismissals? On what basis have employer actionstaken against teachers been overturned? Later chapters of this paper willexamine these questions based on available data.59CHAPTER IVTEACHER DISCIPLINE SYSTEMSThis chapter examines teacher discipline systems in particular, inrelation to the conceptual frameworks of employee discipline describedin previous chapters. The system of teacher discipline in this provincechanged as a result of Bill 20. The question arises, is the B.C. teacherdisicipline system now similar to that found in other provinces? Can asystem found in another province be looked to as a model to help usunderstand how the new system in B.C. will operate? Before a detailedstudy is undertaken of legislation governing teacher discipline in B.C.(Chapter V), this chapter reviews, in a general manner, teacherdiscipline systems in Canada. A brief look at teacher discipline systemsin the United States in also included. Such an analysis allows the newB.C. teacher discipline system to be viewed within a North Americancontext.The chapter contains four major sections. The first reviewslegislative frameworks governing teacher discipline across Canada bycategorizing them in terms of three models. Concepts unique to teacherdiscipline are also examined here. The second section reports the resultsof a search for teacher discipline arbitration decisions issued underlabour legislation. (Such material will now be sought out by those in the60B.C. education community interested in precedents set elsewhere inteacher discipline rulings.) The third section reviews other studies ofteacher discipline systems in Canada, and the last section brieflyexamines literature dealing with American teacher discipline systems.SECTION!: TEACHER DISCIPLINE SYSTEMS ACROSSCANADAA number of concepts related to teacher discipline are unique to theprofession. This section examines briefly two such matters: teachertenure, and discipline by the professional certification body.Disciplinary action taken against teachers by their employers can becategorized in terms of three distinct models found across Canada basedon the type of appeal mechanism provided within the governing legalframework. The third part of this section reviews those three models inreference to legal frameworks governing teacher discipline in otherprovinces and as outlined in Appendix A at the end of this chapter.A. Teacher TenureBefore tenure laws were adopted, it was commonly assumed thatteachers were essentially "on probation" indefinitely in accordance witheducation statutes. In the absence of either a right or the ability toobtain tenure provisions in collective agreements, teachers in both theU.S. and Canada sought legislated tenure and as short a period ofprobation as possible. "After teachers are said to 'have tenure', they areable to contest any cases of dismissal before arbitration boards and thecourts" (Czub oka ,1985 : 9).A teacher tenure provision is contained in education legislation in allprovinces except B.C. The Saskatchewan legislation, for example, states61that upon termination a teacher has 20 days to appeal "prorithketheteacher has at least toy years of amsecutire set rice "(section 212,Education Act). A Canadian study found B.C. to be in a unique positionin the country in having "instant tenure" for teachers in statute(Czuboka, 1985:288). However, since Czuboka's study, this tenureprovision was removed from the B.C. School Act in 1989 making tenurea subject of local school board/teacher negotiations. Czuboka reportsteacher tenure in the remaining provinces is one year in Alberta andManitoba; two years in Saskatchewan, Ontario, Nova Scotia, andNewfoundland; and three years in New Brunswick and Prince EdwardIsland. Teachers have tenure in Quebec after three periods of eightmonths or more of service. Only in Manitoba and Quebec, is tenuretransferable to another school district, although in some other provinces,the repeated period of probation in a new district for an experiencedteacher may be shortened or waived at the discretion of a school board.While six arbitration decisions involving discipline of probationaryteachers in Ontario can be found in the records, with half of them wonby teachers, the extent to which teachers on probation across Canada aredismissed or disciplined today without recourse to appeal, or withrecourse to a lesser standard, is a subject requiring further study.The tight to natural justice or to be disciplined only for just cause isclosely related to the concept of tenure in the case of teachers both in theU.S. and in Canada. In a collective bargaining regime, typically both astatute and collective agreement will permit a lesser standard of justcause to be applied to teachers on probation. Teachers without tenureare on probation in a legal sense, and do not have equal rights in termsof just cause requirements or appeal rights in a disciplinary situation.An examination in Chapter VII of collective agreement languagecurrently existing in B.C. sheds further light on this issue.62B. Teacher DecertificationThis paper deals with employer-initiated discipline only. A broadexamination of the teacher decertification process, or legislation, isoutside the scope of this paper. But because decertification is anotheraspect of teacher discipline, it is touched on here. All provinces havelegislation outlining the basis for granting and removing teachercertificates. Often such legislation is included in an Act other than theSchool Act In B.C., decertification decisions are made by the Collegeof Teachers pursuant to the terms of sections 24 and 27 of the Teaching Profession Act, 1987 (Bill 20). The B.C. College of Teachers reportedin May, 1991 that since 1988,21 teachers had had their certificatescancelled by the college for such reasons as conduct unbecoming amember, and professional misconduct (Annual Report, 1991:20-21).Since education statutes across the country require certification in orderto teach, teachers are effectively discharged upon decertification by theprofessional body.In Alberta, the Teaching Profession Act, R.S.A. 1980, Vol. 7, c. T-3, gives the Alberta Teachers' Association the right to "expel a personfrom the association" for unprofessional or unethical conduct (section19), with recourse to an appeal board of three members, two appointedby the Lieutenant Governor in Council. In Saskatchewan, the Teachers' Federation Act, R.S.S. 1978, Vol. VIII, c. T-7, gives the teacher'sorganization the power to recommend discipline of teachers to theMinister. The Teachers' Society Act of Manitoba R.S.M. 1987, c. T 30,serves the same purpose. Because this paper is focussed on disciplinetaken against teachers by the employer, any analysis of teacher disciplineby the profession must await further study.63C. Three Legislative Models of Teacher DisciplineThree models of teacher discipline systems are outlined below basedon the legislative frameworks governing appeals of employer-initiateddiscipline. Several statutes for each province require examination inorder to determine the detailed nature of the legislative frameworkgoverning all aspects of teacher discipline. To clearly understand thelegal frameworks governing teacher discipline in all 10 provinces wouldbe a major study of its own, and well beyond the parameters of thisthesis. The Ontario Secondary School Teachers' Federation (OSSTF),for example, lists 41 different statutes in their teachers' Collective Bargaining Handbook (1989-90) as "affecting educators", and remindsteacher leaders that critical legislation also exists in numerousRegulations under many of these Act. This overview of three types oflegislative frameworks governing teacher discipline in Canada allows fora generalized comparison with the old and new B.C. systems.Appendix A at the end of this chapter provides a brief overview oflegal frameworks in 1991, by province, in terms of employer-initiatedteacher discipline systems. Teacher layoff, not considered to bediscipline, is treated in a different manner in legislation and in teachercontracts across the country and such matters are not discussed here.Model 1: Discipline in a collective bargaining system.When teachers appeal employer's disciplinary actions they facearbitrators, under provincial labour legislation, in Newfoundland, NewBrunswick, Quebec, and now in B.C. These four provinces provideteacher discipline legislation which allows for the negotiation of 'justcause' processes in collective agreements and access to those grievancearbitration appeal procedures provided other workers pursuant to the64labour legislation of the province. Teacher discipline in Quebec isgoverned by the Labour Code and by their Bill 37, in Newfoundland bytheir Labour Relations Act, and in New Brunswick by the Public ServiceLabour Relations Act.However, in two of these provinces centralized bargaining structuresresult in master agreements for the province. In both Quebec and B.C.,local collective agreements, each with the potential to have a somewhatdifferent combination of provisions governing teacher discipline, formaspects of the provincial system. Only in B.C., however, will thematter of teacher tenure, or time required on probationary contract, bea negotiable item on 75 local bargaining tables.Another unique feature concerning both Quebec and B.C., involvesthe status of administrators. In Newfoundland and New Brunswick,school based administrators (principals and vice principals), aremembers of the teacher's union. Terms and conditions of the provincialteachers' collective agreement, including those relating to discipline,apply to teachers and administrators alike. Administrators are notmembers of teacher bargaining units in B.C., in accordance with theprovisions of Bill 20. As in Quebec, B.C. school administrators are nowmanagement, charged with assisting to negotiate and administercollective agreements, including implementing provisions dealing withteacher discipline.Due to the French language factor, it is not likely Quebec will serveas a realistic model for B.C. practitioners, although that provinceappears to have more in common with B.C. than any other province interms of its legislative framework governing teacher discipline. Teachercontracts and arbitration awards from Quebec are, for the most part,written in French, and not applied on a regular basis by labour lawyersor practitioners in English-speaking Canada. It remains to be seen,65then, to what extent we can learn about handling teacher disciplinematters from models established in either Quebec, New Brunswick orNewfoundland. The prospects appear bleak. While the collectivebargaining model in B.C. then, is structured somewhat like those in atleast three other provinces, the differences, and the distance from thosethree provinces, make them unlikely to serve as role models.Model 2: The Board of reference process within thestatute law relationship. The analysis of legislative frameworksgoverning teacher discipline reveals that teachers in five provincesappeal disciplinary actions through a process equivalent to a board ofreference system as it existed in B.C. before 1988. That is, a board ofreference, established pursuant to education law, is the first avenue ofappeal from employer actions and any further appeal is to the courts. InAlberta, Saskatchewan, Manitoba, Prince Edward Island, and NovaScotia, teacher discipline is governed by procedures found in educationstatutes even where teachers have full collective bargaining rights underthe province's labour statute. Adjudication panels established to hearteacher discipline cases are described in education statutes, not in labourlegislation. Critical discipline jurisprudence relevant in these provincesthen, is not labour jurisprudence discussed in the previous chapter, butrather decisions of Supreme Court judges.Several elements of their systems are in common in these provinces.All statutes outline grounds for employer discipline, ensuring that justcause for discipline must be shown to be in accordance with theeducation statute. In all cases, these statutes make no reference todisciplinary actions by school boards that are not suspensions ordismissals. There is no provision in these provinces, for example, withthe exception of Manitoba, for independent third party review of a66reprimand, a transfer deemed to be disciplinary, or an unsatisfactoryreport alleged to be disciplinary in nature. Some Manitoba contractscontain clauses allowing for written warnings or suspensions to bereviewed in accordance with the grievance procedures in collectiveagreements. Legislation in Saskatchewan and Prince Edward Island doesnot even provide for third party review of suspensions; only dismissalscan be reviewed by boards of reference in accordance with the statute.Teachers bargain under the same labour legislation as other workersin Alberta, but provisions dealing with employee discipline are notincluded in collective agreements. In Nova Scotia, those few provisionsfound in collective agreements are simply restated sections of theEducation Act. Contract clauses, in any case, may not conflict with thegoverning legislation, and the education statutes in these five provincesgovern in disciplinary matters. In Alberta the School Act governsteacher discipline, in Saskatchewan it is the Education Act, in Manitoba,the Public Schools Act, in Prince Edward Island, the School Act, and inNova Scotia, the Education Act.The education statutes in these provinces raise questions concerningthe matter of substitution of penalties by the appeal body, although theManitoba statute is clear that the employer's action is to be upheld or theteacher reinstated. The minister plays a central role in teacher disciplinein Alberta, Saskatchewan and in Nova Scotia where s/he constitutes theappeal tribunal upon request. In Alberta the minister appoints one ormore persons as a "board of reference" to review the case; inSaskatchewan the minister appoints persons nominated by the parties as a"board of reference", and in Nova Scotia the minister appoints a singleperson as a "board of appeal". The minister plays a lesser role inManitoba and in PEI where three person panels (an "arbitration board"in Manitoba, and a "board of reference" in P.E.I.) are selected by the67parties with the minister only involved in the event the parties are unableto agree on a chairperson.The B.C. system, before Bill 20, was based on School Actprovisions which provided for a board of reference in the case ofreviews of teacher misconduct and a review commission in the case ofreviews of alleged incompetence or poor performance. That system fitbest in this model, yet was unlike any other province in some ways. Theprevious B.C. system is examined in detail in Chapter VI.Model 3: The mixed approach model. It could be said thatboth Ontario and New Brunswick provide a mixed approach to dealingwith teacher discipline. Both have legislation which allows a choice as towhether the appeal mechanism in teacher discipline will be an educationstatute board of reference process, or an arbitration review pursuant tolabour legislation. However, in New Brunswick, the single provincialteachers' agreement has opted for the labour arbitration approach so thisprovince was included in the first model above. This model then,includes only Ontario.In Ontario the method of dealing with teacher discipline appeals isbased on "a complex overlay of provisions" contained in collectiveagreements pursuant to the School Boards and Teachers CollectiveNegotiations Act, (Bill 100)  1975 and the Education Act, 1974(Education Relations Commission, 1980:10). Because of the nature ofthe legislation and because there are more than 250 sets of teachernegotiations in the province, collective agreement provisions vary agreat deal as to how disciplinary matters will be handled.In some cases collective agreements are silent on this matter. Inthose instances the board of reference procedure outlined in theEducation Act becomes the legal appeal mechanism, with some limited68exceptions. In other cases, collective agreements state that a teacher mayseek redress by way of the grievance/arbitration procedure and a boardof reference. A third group of collective agreements provides thateither appeal mechanism may be selected. Some agreements state that ifthe board of reference route is selected the teacher must give up his/herright to an arbitration appeal. If the Minister then refuses to establish aboard of reference, the teacher is left with no appeal right. Still anotherlarge group of collective agreements makes the board of referenceoption mandatory with no appeal through grievance/arbitration in anydiscipline case. Where such a board cannot be constituted based on theminister's discretion, there is no right of appeal. Finally, somecollective agreements contain provisions such as a "management rights"clause allowing specific types of disciplinary cases to be appealed toarbitration in spite of other clauses which suggest the board of referenceis mandatory for discipline matters (Education Relations Commission,1980:14).McElroy, of the Ontario Education Relations Commission reportsthat her organization has collected 48 teacher discipline arbitrationawards since the 1975 legislation which allowed for arbitration ofteacher discipline matters. An examination of summaries of thoseawards (1975-1989) indicate that only 39 relate to teacher disciplinewhen those dealing with principals are removed. Of those 39 teacherdiscipline awards in Ontario issued between 1975 and 1989,19 upheldthe school board, and 20 were "won" in whole or in part by the teachergrievor. The categories of cases were:-transfers or demotions 10-probationary dismissals 7-refusal to cooperate 5-criminal activity 4-poor performance 2-absent without leave 2-unprofessional conduct 269-gross indecency^2-unsatisfactoryevaluation report 2-innappropriate disciplineof a student^2-alcoholism 1An interesting aspect of many of these awards was the presence ofrepeated jurisdictional arguments indicating problems involved ininterpreting the confusing array of legislation combined with collectiveagreement language. Objections were raised by one side or the other asto whether the arbitration board had jurisdiction to rule or whether thematter should be heard before a board of reference. For example, inStormont, Dundas and Glengarry Roman Catholic Separate School Board and L'Associaition Des Ensignants Franco-Ontariens 1982,(Weatherhill), the school board argued that "a conflict exists between theagreement and Sections 232-242 of The Education Act and therefore,according to Section 51. (1) of School Boards and 7Z-zithers ColleatireNegotiations Act, conflict must be resolved in favour of The Elva-IlionAct". Weatherhill ruled in that case against the school board'sjurisdictional argument but found in favour of the school board on theteacher grievance.The 39 arbitration decisions dealing with teacher discipline mattersare written by such well known labour arbitrators as J. F.W.Weatherhill, G.J. Brandt, K. Swan, R. Kennedy, and K. Burkett andsome may serve as a source of precedent in future B.C. teacher cases.Those cited in Brown and Beatty and contained in whole, or in part, inthe Labour Arbitration Cases (LACs) are reviewed below.SECTION 2: REPORTED TEACHER DISCIPLINE CASESBrown and Beatty, leading Canadian authorities in labour relations,70produce a reference text, Canadian Labor Arbitration, widely used byCanadian arbitrators and labour relations practitioners. That text, anopen entry, now in its third edition (1988), outlines arbitral jurispru-dence on any possible grievance arbitration topic or related legal issue,and makes reference to arbitration case(s) in the numerous volumes ofLabour Arbitration Cases (the LAC's) where the actual full award(s), orexcerpt(s), deals with the particular issue referred to.Brown and Beatty's discipline section, Chapter 7, pages 7-1 to 7-220makes references to only 8 cases involving teachers. This section of thischapter determines what can be learned about those teacher arbitrationdecisions. The cases are reviewed with those reviews recordedchronologically in Appendix B.What Can Be Learned About Teacher DisciplineJurisprudence From Leading Cases Cited in the LACsIn spite of the fact that approximately 300,000 teachers are workingtoday in Canada, only eight cases involving discipline of teachers arereferred to in Brown and Beatty. This may have been expected whenteacher discipline cases are arbitrated under labour legislation only inQuebec, Newfoundland, New Brunswick, and sometimes in Ontario.Quebec's cases, written in French, are not reported by Brown andBeatty, leaving only three provinces to produce arbitration decisions. Itis understandable then, that only three provinces are represented. It isevident that practitioners in B.C., engaged in researching teacherdiscipline grievances, will not find arbitral precedents concerning otherteacher cases by looking to Brown and Beatty.Of the eight cases cited, none could be described as a 'regular' ormainstream' discipline case. The issues dealt with are peripheral interms of employee discipline. There is no reported case, for example,71of a tenured teacher dismissal. Only one case, Jones, is cited more thanthree times. While this case involves a dismissal, it is distinguished inthat it involves a principal who is also a probationary employee, anunusual situation which will not arise in a B.C. arbitration whereprincipals are not unionized.Of the eight cases, four appeals upheld the employer and four were"won" by the union. Five of the eight cases are from Ontario, three ofthem focussing considerable argument on the issue of arbitrability asdiscussed above. These cases confirm that regular disagreement overwhether arbitration is the correct process for discipline matters occursin Ontario. Because of the confusing nature of Ontario's legislation,time is spent not only debating whether the arbitration board has a rightto hear the case, but also arguing whether the arbitrator has the right tovary a penalty. Decisions on such matters serve no precedential value inB.C. teacher arbitrations where such questions are clearly answered inlegislation.A Summary of the Eight Teacher Cases Found in the LAC'sA review of the eight teacher discipline arbitration cases found inthe LAC's, indicate they can be categorized and summarized as follows:(see Appendix B.)1. Half of the cases, (City of Windsor, Carleton Board, Borough ofScarborough, and Jones) deal with the issue of probationary teachers,teachers without tenure. Probationary teachers were treated byarbitrators as other unionized probationary workers in these cases.There is no indication that the teacher tenure system creates anyunique form of probation. In two cases the union "won" when theissue was over the process used to dismiss (or fail to renew thecontract), or to evaluate a probationary teacher. When the issueconcerned the right of the school board to terminate the probationary72teacher, the employer was upheld. In two cases, Porcupine Area Ambulance Service, a 1974 decision by Beatty is cited as theauthority. Porcupine states that in the case of a probationaryemployee, just cause for discipline means that "any decision as tosuitability must be grounded in legitimate expectations of theemployer and not standards that are unreasonable or extraneous tothe requirements of the job". Where an evaluation of aprobationary teacher is considered to be "unreasonable" then, theemployer's action will likely be rescinded pending a fair evaluation.2. The issue of arbitrability is argued in City of Windsor, WellingtonCounty, and City of London. The question is whether the arbitratorhas jurisdiction when the collective agreement contains no provisiongoverning discipline, or when there is no "just cause" provision. Inall three cases, arbitration boards ruled they had jurisdiction. Suchsituations or arguments will not occur under legislation governingB.C. teachers.3. The Newfoundland case (Notre Dame Integrated), is relevant to B.C.and to the definition of discipline under labour law. The question itanswers is 'When is a negative sounding letter from the employerdiscipline?' The answer based on this case is, "Such a letter isdiscipline if it has a negative impact on a teacher's work record andif it is to be kept in the teacher's file".4. In Wellington County the arbitrator considered a teacher transfer tobe a disciplinary demotion and stated that it did not seem proper thatsuch "discipline" be indefinite. While the arbitrator upheld theemployer, he did so only because there was no law in Ontarioallowing the penalty to be varied, and no clause in the collectiveagreement which might have been breached by such action, otherthan a management's rights clause. This case may be cited in teachertransfer arbitrations in B.C. but in a context where there is a lawallowing for a variation in penalty (section 98 of the Industrial Relations Act).5. The decision in Durham Board, indicates that pay deductions may notbe made to teachers for being away from school for a few hourswhen students are not in attendance and when someone in authorityhas gives permission for the teacher's absence.736. Jones deals with the matter of an employee who is an alcoholic butwho goes to great lengths to rehabilitate himself. The questionbecame, "should this teacher (principal) get a second chance?". Thecase was never resolved by the courts or the arbitrators. Theoriginal arbitration found for the teacher; that decision wasoverturned by the lower courts and in the end the highest court sentthe case back to the arbitrator because of the process but not thedecision. However, a rehabilitated Jones went back to work and thematter was dropped. The case does establish alcoholism as an illnessand rehabilitation as a correct approach to take, but the case iscomplicated because Jones is a probationary employee and substantialargument is given to the standard of arbitral review for probationaryemployees.7. City of London, involving suspensions for theft, contains aninteresting argument regarding the kind of fair processes available toteachers when the collective agreement is silent. The arbitrator ruledon the basis of a Supreme Court decision in LaCarte, that proceduralprotection is determined by the language of the collective agreement,and that if there is no such language, fair procedures may not beguaranteed. He described such a relationship, where no fairprocedures were included in the collective agreement, as one ofmaster and servant.C. SummaryThe analysis in the first two sections of this chapter found thatteachers in B.C. are entering a collective bargaining system which offersfew precedents from other teacher jurisdictions in Canada in terms ofdealing with teacher discipline arbitrations under labour law. Teacherdiscipline in this province is now governed by collective agreements, theIndustrial Relations Act, the School Act, and arbitral jurisprudence as setout in Brown and Beatty, the LAC's, and other relevant arbitrationawards. This appears to put B.C. teachers in a different category fromthat of most other teachers in the country. For arbitration precedents,those provinces we can turn to, Newfoundland, New Brunswick,Quebec, and Ontario, all prove to be problematic models. In Quebec,74the problem is one of language; Newfoundland and New Brunswick aredistant; they have provincial master agreements and their arbitrationcases are few and not easily obtained. In Ontario, the legislationcomplicates matters to the extent that even those few arbitration awardsavailable are filled with questions of arbitrability not relevant here.Ontario's legislation is quite different than that faced by B.C. teachers;principals are part of Ontario bargaining units; many discipline cases areheard by boards of reference under education law; and many collectiveagreements do not contain clauses dealing with discipline.SECTION 3: CANADIAN STUDIES OF TEACHERDISCIPLINEOne becomes disappointed very quickly when attempting to locateliterature which analyzes Canadian teacher discipline systems. Thisauthor was able to locate only two works, one prepared by the CanadianTeachers' Federation (CTF) and a book originally written as a Mastersthesis by Michael Czuboka, a Manitoba school superintendent. The CTFdocument is designed as a catalogue of teacher court cases for use bytheir provincial bodies. Citations and brief extracts of each case are notlimited to discipline, however, and deal with such matters as judicialreviews of both interest and rights arbitration awards, cases related tosick leave, income tax, criminal acts, conflict of interest, and sexualharassment, to name a few. CTF is currently attempting to collectdiscipline arbitration decisions issued pursuant to labour legislation.A. C nib oka Research on Manitoba Teacher DisciplineThe Czuboka study (1985) provides a helpful assessment and analysisof the system of teacher discipline in Manitoba, with one major flaw; the75review of the legislation governing teacher discipline in that province isinadequate and leaves the impression that because teachers "go toarbitration" in Manitoba, as they do in Newfoundland and Quebec, thesystems in those three provinces are the same. As noted above, such isnot the case. Arbitration of teacher dismissals in Manitoba is notgoverned by labour legislation. In fact, the arbitration system inManitoba is more closely related to the board of reference system inAlberta or Saskatchewan. However, the analysis provides a record ofevery teacher dismissal case occurring in Manitoba between 1969 and1985--or at least of every appealed dismissal case.Czuboka's detailed outline of these 18 Manitoba teacher dismissalappeals permits a summary of the due process requirements judges, or insome cases--arbitration boards, have mandated school boards provideteachers in that province:1. "...only detailed and documented written evidence would be acceptable,...andreasons for release must be very specific". The teacher must be present at theschool board meeting when his contract is terminated and have an opportunity torefute the evidence (68). (cited in Jenkins v St. James-Assiniboia, 1969).2. There is no equality of justice if one teacher is fired and another is not whenboth were involved in the same incident cited as the reason for the termination."Vague complaints by parents are hearsay evidence" and are of little use in adismissal case (83-4). (cited in Skublen v Lakeshore, 1970).3. There must be valid "cause" for terminating an agreement and school boardscannot add additional reasons for dismissal after the official reasons havealready been given in writing (76-78). (cited in Weir v St. Boniface, 1971).4. A school board is not free to give one reason for a teacher's termination andlater on at a hearing before the arbitrators shift its ground to another reason(141). (cited in Lowery v Beautiful Plains 1975).5. The correct school board hearing procedure must be carried out. The teachermust have an opportunity to prepare and present his case (149). (cited in Husainv Portage la Prairie, 1980).6. When a tenured teacher who had been satisfactorily employed for seven yearswas "sorely provoked", and the incident leading to dismissal an "isolatedincident", and the teacher is now "contrite" , and has "apologized", "such adraconian decision [as dismissal] which might have the effect of terminating a76professional career" will not be allowed to stand (167). (cited in Kitsch v Morris-MacDonald, 1981).7. The doctrine of the "culminating incident was invoked for the first time (181).(cited in Nash v Seine River, 1984).Czuboka's case material indicates that in 85% of Manitoba teacherdismissal cases the teacher won in appeal (194). However, the authorfails to adequately categorize and summarize his cases. He offersrecommendations and advice (intended for school administrators and notall agreed to by this author) throughout, in reference to the teacherdismissal process. A list (incomplete) of his recommendations follows:1. Teachers with tenure must be given due process, which means "having the rightto attend a school board meeting at which his possible dismissal is beingconsidered" , having the opportunity to "refute the evidence against him, havingthe right to bring witnesses, a lawyer, and any resources "as required to presenthis case in a fair manner" (263-4).2. Arbitrations will be very expensive, and most will be appealed to the courts,adding to the expense. Be prepared to pay up to $80,000 on a case plus stafftime [in 1980] (137).3. Because most arbitrations will be appealed to the courts, a court reporter shouldbe present at all arbitration hearings. (This point was also made by judges inseveral cases (114 and 137). ( also see Kaushal v Agassiz,1973).4. All witnesses for the school board should be well prepared for the ordeal theywill face on the stand". One principal and superintendent had their career'sdamaged when the arbitrator went far beyond his mandate" (174-8) (Czubokaquotes from Nash v Seine River, 1977).5. A dismissal letter must be very carefully drafted as the reasons stated mustlater be proven by evidence" (117).6. It will be very difficult to get an arbitrator to uphold the dismissal of a teacherproven to be "very competent" even though competence is not the issue (138).7. Permanent tenure for teachers should be abolished. There should be instead"mandatory retraining for all teachers and administrators to renew their tenureand permanent certification at certain intervals, such as every five or ten years."The recommendations indicate some clear differences in the appealprocess in Manitoba compared to that under labour law in B.C. In77particular note the references to court review of awards and the needfor court reporters , which of course is not applicable here.B. Limitations of the Cz-aboka ResearchWhile Czuboka's analysis of the teacher discipline system ordismissal cases in Manitoba is useful, his review of the situation in otherCanadian provinces is completely inadequate and even misleading. It isrevealing, therefore, that Czuboka comments in his "introduction" , onhow extensively the first edition of this book is used by school adminis-trators "throughout Canada" (xix). If that is the case, it can onlyindicate the dearth of material available on the topic. But also if such anassessment is correct, further comment is warranted in criticism of thiswork. The Canadian analysis is not helpful for at least four reasons:(1) The B.C. section discusses only one case, Caldwell v St. Thomas AquinasSchool and fails to explain that this is a private school case, a human rightsissue, and unrelated to general case law on B.C. teacher dismissals.(2) The Alberta section discusses Keegstra only. That case is not yet resolved andis so unusual it sheds little light on teacher discipline in that province.(3) Other cases from various provinces deal with layoffs rather than discipline,and the author fails to differentiate between reduction in force and discipline.(4) No examination of legislation or collective agreements is included nor wasthere a suggestion that this might be relevant in terms of teacher discipline. Infact legal frameworks are rarely referred to and then only in an incidentalfashion.A few general points of interest in Czuboka's work can besummarized as follows:1. "...almost all of the tenure cases in Manitoba over the past twenty years haveinvolved either junior or senior high school male teachers. Kindergarten andGrades 1 to 6 teachers are rarely fired" (6).2. During the year 1971-72 [the one year he had data for] there were twenty-oneappeals to boards of reference in Alberta. Three were withdrawn by schoolboards before they were heard, eight were withdrawn by teachers; others were78settled by mutual compromise, and in the end eight cases went to a hearing. Ofthose eight cases, five were won by the school boards and 3 by teachers (34).3. There were few cases of teacher dismissals before 1970 in Canada because: Inreality, what happened ...is that teachers usually resigned even when under aslight amount of pressure. After all, jobs were plentiful, and teachers couldalways go somewhere else" (43).In summary, it must be concluded that comprehensive research onteacher discipline systems in Canada has not yet been conducted.Czuboka's work, which leaves many questions unanswered, appears tostand alone.SECTION 4: AMERICAN RESEARCH ON TEACHERDISCIPLINEThe last section of this chapter looks briefly at teacher disciplinesystems in the United States. A review of the literature on the subjectindicates a great deal has been written on specific teacher cases,especially those dealt with in the courts, or on teacher disciplineconcerns of specific states, but little research is found dealing withteacher discipline systems in general. However, it becomes apparent thatlegal frameworks vary a great deal from one state to the next.James Gross claims that recent interest in the problems of theAmerican education system has created new interest in teacher disciplinein the 1980's because of the tendency to blame teachers. The popularpress has created a theme that American schools fail due to deterioratingpupil discipline, declining scores on standardized tests, and tenure lawsthat make it difficult to dismiss incompetent teachers. He feels vigilanceis needed to protect teacher's lives and careers against unjust disciplinaryactions "based on unstated values and presumptions rather than facts"(1988:2). His claims teacher discipline, as a research topic, is just nowbeginning to interest academics.79This section reviews three areas of the American teacher disciplinesystem: (1) teacher tenure in the American context, (2) the disciplinesystem within the context of types of legal frameworks, and (3) somerelevant studies of American teacher discipline.A. Teacher Tenure in the United StatesAll fifty states have "tenure laws" , 41 of them specifying dismissalor nonrenewal of teachers for such causes as incompetence, physical ormental disability, insubordination, neglect of duty, intoxication, orexcessive use of a controlled substance (Gross, 1988:2). Bridges andGumport (1984) claim it was not until 1980 that the National EducationAssociation (NEA) reported success in its century-long struggle toobtain tenure rights for teachers. Such rights meant teachers were nolonger vulnerable to arbitrary dismissal. They could be dismissed onlyif school officials provided procedural due process and proved cause (3).Cresswell (1980) states that these tenure laws provide for a probationaryperiod of typically three years, after which time teachers have a contin-uing contract (185). Fischer, Schimmel and Kelly (1981: 36-7) explainthat for tenured teachers: Most state laws require specific notice of anycharges against the teacher and a hearing before a tenured teacher can bedismissed. The teacher has a right to be present, to have counsel, tosubpoena witnesses, to cross-examine witnesses, and to present a defense.In the case of probationary teachers, most states do not provide a rightto a hearing but do require notice and written reasons for dismissal.Cresswell and Kerchner (1980) explain that evaluation processes,academic freedom, and dismissal procedures have different meanings forteachers than for other professional employees in that tenure provisionsin state codes govern, rather than by civil regulations that apply to non-80teaching employees (157). They also report that "certain items [relatedto hiring and discipline] may not be negotiated and are termed 'excluded'(or illegal)" (301).B. Teacher Discipline Systems- Legal FrameworksThe question relevant to this study is: Are teacher discipline casesdealt with under labour law with arbitration as the appeal mechanism inany American states? or Are such cases handled by means of schoolboard hearings and review panels appointed pursuant to educationstatutes, with final appeal to the courts? The literature is ambiguous onthis matter.The court review prevails. A number of researchers who havewritten about teacher discipline systems in the U.S., discuss, at length,the court system of appeal which governs in teacher dismissal cases(Delon,1977; Cresswell and Kerchner 1980; Fischer, Schimmel andKelly,1981; Bridges and Gumport,1984; and Gross, 1988). Four ofthese works briefly mention the collective bargaining system as a meansof dealing with teacher discipline, but imply the use of labour arbitrationis not extensive. Fischer, Schimmel and Kelly (1981) use the word'arbitration' only once in their book, "Teachers and the Law". Thatbook provides the following clause as a "typical state law" outliningprocedures for dismissing a tenured teacher in the U.S.:No teacher who has become permanently employed under this section may berefused employment, dismissed, removed or discharged, except for inefficiencyor immorality, for willful and persistent violation of reasonable regulations ofthe governing body of the school system or school or for other good cause,upon written charges based on fact preferred by the governing body or otherproper officer of the school system or school in which the teacher is employed.Upon the teacher's written request and no less than 10 nor more than 30 daysafter receipt of notice by the teacher, the charges shall be heard and determined81by the governing body of the school system or school by which the teacher isemployed. Hearings shall be public when requested by the teacher and allproceedings thereat shall be taken by a court reporter. All parties shall beentitled to be represented by counsel at the hearing. The action of the governingbody is final (cited in Fischer, Schimmel, and Kelly,1981:361).Delon introduces his 1977 work with this statement: "More and moreboards of education are entering into negotiated agreements with teachers'organizations. These agreements frequently contain grievance proceduresthat relate directly to situations involving teacher discipline" (1).However, he then goes on to devote his entire "monograph" to teacherdiscipline issues raised in the courts and does not touch on arbitrationcases at all. His concluding remarks only raise more questions:State legislatures, in increasing numbers, have adopted public sector collectivebargaining laws and established professional practices commissions and/orlicensure boards... .In disputes arising from the discipline of teachers, the recordreveals a more frequent use of grievance procedures, hearing panels, andarbitration, all of which are products of recent legislation... . [However] As therecord clearly indicates, the courts are reviewing more and more personneldecisions involving the disciplining of teachers (80-81).Delon talks of the "mass litigation on teacher discipline" during thedecade (1977:80), and in his monograph briefly reviews hundreds ofcourt decisions dealing with several categories of teacher discipline byschool authorities in various states. He devotes one section to cases ofteacher dismissals which resulted in penalty reduction by courts. Heconcludes that "the federal court is not the appropriate forum in whichthe multitude of personnel decisions that are made daily by publicagencies" should be heard (82). It is clear that before 1980 mostAmerican teacher discipline cases were appealed to the courts and notheard by labour arbitrators.Limited use of arbitration. Bridges and Gumport, in their 1984work, imply that some teacher discipline cases in the U.S. (the cases of82probationary teachers) are appealed to arbitration boards under labourlegislation and other cases to a "hearing officer" rather than to thecourts:The percentage of reversals of school board decisions to dismiss teachers forincompetence are even greater in hearing decisions rather than in court decisions--63% are overturned. ... When probationary teachers are terminated and thedecisions are appealed under the provisions of a collective bargaining agreement,arbitrators, like hearing officers, tend to rule against school boards. More thanhalf of the cases heard by arbitrators in the only study that examines this issueresult in negative decisions for school districts (27).Gross (1988:3) sheds some light on the "hearing officer". Heclaims six states provide that teacher dismissal decisions be made by aneutral body, and most put the power in the hands of a single hearingofficer who is either employed by or chosen by the educationaladministration of the state. Only in Washington and New York doprivate arbitrators hold the power of decision in dismissal casesinvolving public school teachers. In Washington, this single hearingofficer must be a member of the state bar association and is appointed bytwo members of the state bar association, one chosen by the teacher andthe other by the board of education.Gross then highlights the New York system because he claims it isthe only state where the American Arbitration Association's arbitratorsact as neutral third-party chairpersons of panels with final decision-making authority in teacher discipline cases. These panels, he believes,are the most neutral of all such decision-making bodies established bystate statutes. It is in such arenas, he believes, that teachers will be mostapt to receive fair treatment. This appears to indicate that only in NewYork does the teacher discipline system come within the sphere of thecollective bargaining regime under labour legislation as we know it.More recent works by Gross (1988), and Bridges and Gumport(1984) confirm that even in the 1980's teacher discipline cases were83reviewed, for the most part, in the final analysis, by the courts. Bridgesand Gumport conclude, teacher dismissal appeals were "heard mainly intwo legal forums: trial court and court of appeals; trial court and statesupreme court" (10).C. American Studies of Teacher DisciplineState laws commonly list specific reasons why teachers can bedismissed and such laws determine the categories of discipline reportedin studies reviewing teacher discipline. One study reports those reasonsmost commonly listed in statute are reported to be insubordination,incompetence, and immoral conduct, and "the most common reasons forfiring teachers include incompetency, immorality, insubordination, andunprofessional conduct" (Fischer, Schimmel and Kelly,1981:26).New York State law sets out general categories of offences for whichtenured teachers may be disciplined: conduct unbecoming a teacher,insubordination, immoral character, incompetency and inefficiency,physical or mental disability, neglect of duty, and lack of propercertification (Gross, 1988:4). James Gross examined 383 teacherdiscipline cases in New York state from 1977-87 (a ten year period) andfound the largest category (50% of all cases) was for "conductunbecoming a teacher". (Forty of these cases were not proven.) Of 151proven cases, he further broke down this main category into ten sub-categories as follows:-physical abuse of students^49 cases-sexual abuse of students 26-dishonesty^23-classroom control^16-personal relations withadministration 10-criminal conviction^13-fighting with other teachers^484-bizarre behaviour^5-causing upset in community^1-miscellaneous 4Total^ 151 cases(Gross ,1988: appendices)Gross found the remaining 192 teacher discipline cases fell into fourcategories: neglect of duty (85 cases), incompetency and inefficiency (62cases), insubordination, and lack of proper certification (numbers notincluded). He further broke down the incompetency and inefficiencycategory, his prime area of research, and found most fell into a groupbased on "lack of discipline".Bridges and Gumport (1984) reviewed 86 teacher terminations forincompetence and compared their results to the few similar studies theycould locate. Their key results are summarized:1. Between 1939 and 1973 in California there were no reported cases of tenuredteacher dismissals due to incompetence (10).2. There were nine cases in California in 1982 involving the dismissal of tenuredteachers for incompetence (10)3. "The leading cause for dismissal in every study of teacher failure [incompetence]conducted since 1913 involved weakness in pupil discipline. Bureaucratic failure isalso cited in 50% of teacher dismissals. This involved refusal to follow suggestionsof the supervisor and violation of the district's policy of corporal punishment" (15).4. "School officials rely most heavily on supervisory evaluations based on classroomobservations, as evidence in court proceedings, and ordinarily "the courts accordgreat deference to these supervisory ratings ..." (16).5. "Nearly two thirds of the district's dismissal cases included in this study are upheldby the courts" and the noteworthy exceptions are dismissals involving elementaryteachers or teachers with less than 21 years teaching experience" (18-9).6. The most common reasons for courts overturning school board dismissals were dueto:a. Procedural defects:1. failure to provide written notice2. failure to provide timely evaluations ("Dismissal decisions must be based onevaluations that are conducted after, not prior to or during, the period in which theteacher is trying to improve his or her performance."3. failure to particularize the charges against the teacher4. failure to furnish recommendations for improvement855. failure to provide a sufficient period for the teacher to improve (20).and b. Insufficient evidence:1. school authorities fail to demonstrate that the causes are irremediate,2. there are inconsistencies in the evidence presented by the district;3. school authorites introduce irrevelant evidence;4. school authorities fail to prove the deleterious effects asserted in cause-effectstatements; and5. the teacher introduces persuasive evidence that he obtains exceptional resultswith students (21-2).7. "Research in progress indicates that the forced resignation rather than formaltermination is a rather common occurrence (27).8. "Existing empirical research suggests that the uncritical, even deferential, stance ofthe courts [toward supervisory ratings of teachers] may be unwarranted.Supervisory ratings are poor indicators of how much students are learning andappear to be ineffective in improving instruction" (23). Conclusions are cited fromeight studies reported in educational journals to prove this point. (Medley & Mitzel,McCall & Krause, Anderson, LaDuke, Gotham, Jones, Brookover, and Jayne).These authors conclude "the dismissal of tenured teachers forincompetence remains a relatively neglected area of study". They claim"there has been no comprehensive empirical investigation of the subjectand as a consequence, little, if anything is known about the subject.(Bridges and Gumport,1984:4)D. Summary of American Teacher Discipline SystemsThis last section of the chapter provided a brief review ofAmerican teacher discipline systems. Since 1980 teacher tenure lawshave been adopted in all states. Such laws typically provide that afterthree years teachers have completed a probationary period and a higherstandard of due process then applies in addition to requiring cause fordiscipline. Grounds for teacher discipline are normally found in tenurelaws in an education statute. Teacher dismissals are reviewed in schoolboard hearings, by hearing officers, in the courts, and by arbitrators inrare instances.86Teachers in New York State are in a collective bargaining regimeand a discipline case review comes under collective agreements andlabour arbitration procedures, although a state law outlines reasons fordiscipline of teachers. It would appear a similar collective bargaininglegal framework exists in few states for dealing with teacher discipline.The literature indicates teacher discipline is a matter of statute law withcases reviewed in the courts in almost all states.Two thirds of dismissal cases are upheld by the courts, whereas, incases reviewed by arbitrators or by hearing officers, indications are thata higher percentage of school board actions are overturned. However,the literature indicates that comprehensive research on the general topicof teacher discipline in the U.S. has not been done and statistics reportedin a few studies are inconclusive due to the small samples involved.Studies looking at specific categories of discipline cases indicate thatinsubordination, incompetence, and immoral conduct are categories mostoften found in legislation and in studies of teacher discipline cases. Inthe case of incompetence, all cases have involved, among other issues,the inability of the teacher to control his or her pupils.CONCLUSI ONThis chapter examined teacher discipline in terms of conceptualframeworks set out in the two previous chapters. Four key areas wereexamined: (1) Legal frameworks for dealing with matters of teacherdiscipline across Canada were described in terms of three models; (2) Areview of teacher discipline arbitration cases noted key jurisprudencefound within the collective bargaining regime; (3) A review of otherCanadian studies of teacher discipline highlighted the work by Czubokabecause it stands alone in terms of Canadian research in this field; and87(4) The American teacher discipline system was overviewed briefly interms of both legislative frameworks and relevant studies.Three models of legislative frameworks were described withinwhich all Canadian teacher discipline systems were categorized. TheB.C. system has moved from a "statute law" model to a "collectivebargaining regime model" as a result of Bill 20. The previous systemin B.C. was similar to that currently found in Alberta and Saskatchewan,but is now more like that found in Quebec.A search for teacher discipline arbitration cases which may havesome precedential value in terms of central issues facing B.C. teachers incritical disciplinary arbitrations, found that standard labour jurispru-dence as applied to teachers has little to offer. This circumstanceindicates that the B.C. education community must look to other thanteacher arbitration decisions when searching for relevant precedents. Amere handful of Ontario cases may be helpful.Czuboka's work was useful in providing a review of teacherdiscipline appeals in Manitoba and may be the only study in Canada thathas attempted to research teacher discipline in such depth. However,although his study purports to provide a review of the Canadian teacherdiscipline scene, it fails.The brief review of the American models indicates teacher disciplinesystems tend to fit primarily within the statute law legal frameworksrather than within collective bargaining regimes. All states have teachertenure laws, and it is common practice to appeal teacher discipline casesto the courts. Studies of American teacher discipline focus on thecategories of discipline and the numbers of cases upheld in appeal,normally by the courts. There is no distinction made between culpableand non-culpable cases, progressive discipline concepts do not appear tohave been applied, and standard labour jurisprudence does not appear to88be considered relevant.Literature reviewed in this chapter indicate that the world of teacherdiscipline is an isolated one and very different from that operating forother employees. Teachers are dealt with in a unique manner all overNorth America in terms of the employer-initiated discipline system used.The State of New York may be one of the few exceptions in the U.S.where teacher discipline is dealt with by labour arbitrators under labourlaw. Quebec is the system most like the B.C. model found in Canada.One is left with an overall sense, then, that the new teacher disciplinesystem in B.C. which is to fit within a collective bargaining model, is tobe one of a kind in Noith Anterica.89CHAPTER VANALYSIS OF THE B.C. LEGISLATIVE FRAMEWORKThis chapter answers two critical questions "What was in the SchoolAd dealing with teacher discipline in this province before Bill 20?" and"After Bill 20 what legislative provisions govern in matters of teacherdiscipline?" Chapter II noted that employee discipline occurs within anyone of three legal frameworks governing the employer-employeerelationship: the common law framework, the relationship bound bystatute, or the collective bargaining relationship. A review of the specificteacher discipline legal frameworks in B.C. allows an analysis of the twoapplicable discipline systems, highlighting their differences, and showinghow B.C. teachers have been shifted from a system governed by a specificstatute to a collective bargaining relationship.The chapter is organized into three sections. The first provides anoverview of critical events, or a chronology of changes in the educationsystem situating teacher discipline changes in a historical context. Sectiontwo analyzes B.C. teacher discipline legislation as it shifted from the statutemodel in 1986 to the collective bargaining regime in 1989. Three distinctperiods are examined. Finally, a conclusion forms the third section of thechapter and highlights the changes in the legal framework and thedifferences in the systems regulating the discipline system for B.C.90teachers over the three year period of time.SECTION 1: A CHRONOLOGY OF CHANGESIt is appropriate at the outset of this chapter, to briefly set out thecalendar of events referred to in this thesis. The legal frameworkgoverning matters related to the teacher discipline system did not changeall at once or on any one day. Between 1986 and 1990 several relevantchanges occurred. The following outline of critical events explains theshift from the old legal framework to the new:1.August 1986: The Abridged Manual of School Law  was revised andconsolidated for convenience by the B.C. Ministry of Education. Thesections of the School Act and Regulations described in this chapter asforming "the old system" are taken from that volume.2.May 1987: Bill 20 became law outlining, among other more radicalchanges, a comprehensive new set of provisions governing teacherdiscipline which became known as "interim" provisions pending thenegotiation of first collective agreements.3. January 1988: Those provisions in Bill 20 related to teacherdiscipline and adopted in May of 1987, came into effect for the tirst time.4. January and February 1988: All 75 teacher associations becameunions under the unprecedented dual certification requirements of first Bill20 and then the Industrial Relations Act5. Spring of 1988: Newly formed teacher unions in 75 school districtsopened negotiations for the first time pursuant to the Industrial Relations Act.6. June 1988: At the end of this month, teacher contracts, negotiatedunder previous School Act legislation came to an end. Only one schooldistrict in the province, Fort Nelson, had a new "first agreement" in place.In Fort Nelson teacher discipline would now be subject to those newcollective agreement provisions dealing with such matters, as well as therelevant terms of Bill 20 and the Industrial Relations Act But in all other91districts, teacher discipline continued to be governed by those provisionscontained in Bill 20 or were governed by any "bridging agreements"reached between teachers and school boards. (Most school boards andlocals agreed to continue the old School Act provisions pending theoutcome of first agreement negotiations.)7. October 1988: The Lieutenant Governor in Council issued a new setof Regulations, and repealed others--many relating to teacher discipline.8. Spring of 1989: All 75 "first agreements" were in place, effectiveJuly 1, 1988, making teacher discipline in all school districts now subjectto provisions in collective agreements and the legal framework provided inBill 20 and the Industrial Relations Act9. September 1989: A new School Act became law. Among othermajor changes, it contained new provisions relating to teacher discipline.All teacher discipline provisions contained in Bill 20 were repealed.10. September 1989 to July 1990 and beyond: Teachers andschool boards tested the new discipline provisions contained in firstcollective agreements negotiated pursuant to the Industrial Relations Act11. March 1990: A second round of teacher negotiations began. Bothsides proposed changes to collective agreement provisions relating toteacher discipline. The 1989 changes to the School Act resulted in manynew provisions being negotiated into collective agreements. This paper iswritten during and after the second set of negotiations. Collectiveagreements reviewed in Chapter VII are those resulting from "RoundTwo".SECTION 2: AN ANALYSIS OF CRITICAL LEGISLATIONThis section of the chapter contains three parts. The first outlines thenature of the legislative framework governing teacher discipline beforeBill 20 by examining the actual provisions outlined in the 1986 "Manual ofSchool Law". In addition, an interview with Des Grady, former BCTFlegal counsel and executive staff member for 26 years until 1989, (nowretired), sheds light on how the previous legislation actually worked in92practice. Ralph Sundby, a current BCTF bargaining administrative staffmember, who worked with Grady in the teacher personnel division from1982 to 1989 also provided information on how the various legislativeframeworks have worked in practice over the three periods of time.(Grady and Sundby of the BCTF's teacher personnel division along withM. Shamsher were the first line of contact for teachers in B.C. whendisciplinary action was taken against teachers by school boards before1989.) This first part also examines a number of discipline cases thatcould not be appealed under the 1986 legislative framework and reviewsthe types of BCTF actions taken to seek redress for teachers when formalSchool Act appeal procedures were not available.Part two of this second section examines the legislation in place duringthe interim period between the old system and the current one. Sections ofBill 20 and regulations effective in 1988 are reviewed. The Bill 20 provisions, for the most part became irrelevant and were repealed orrevised in the 1989 School ActThe third part of this section examines the current legislativeframework governing teacher discipline by reviewing the current SchoolAct., and the relevant sections of the Industrial Relations Act  It mightseem appropriate to also examine in this section the 75 district collectiveagreement provisions relev