By Andrew Bates | Telegraph-Journal
The provincial government is asking a judge to overturn a labour arbitrator’s ruling that says the province must balance student inclusion with employee safety in schools.
Legal filings by the province on Jan. 8 request judicial review of an Oct. 11 decision by Trisha Perry in a grievance from the New Brunswick Teachers’ Federation. Perry ruled that the province breached its collective bargaining agreement and awarded damages to a school principal and teacher after the union alleged the school district “failed to provide a safe workplace and positive learning and working environment,” related to alleged assaults and threats from a student with developmental disabilities between 2019 to 2021.
“Children are entitled to an education, and school employees deserve to work in a safe environment,” Perry wrote in the decision. “The solutions are not straightforward, but we need to strive to improve the experience of students with complex behavioural exceptionalities without sacrificing the health and safety of staff.”
The adjudicator ordered the province to pay special damages for the principal amounting to her pay if she had worked until June 2024, instead of retiring in 2022; to pay $30,000 in damages to each of the educators; and to pay aggravated damages in the amounts of $15,000 to the principal and $5,000 to the teacher for “forseeable mental stress” caused by the province’s handling of the situation.
But the province is asking a judge to quash, or nullify, the decision, calling the ruling “unreasonable, lacking in justification, transparency and intelligibility,” particularly toward the orders to pay special damages and aggravated damages.
Charles Renshaw, communications officer with the province’s Department of Education and Early Childhood Development, declined to comment on the facts of the ruling, citing the ongoing court matter.
“That said, the safety of our teachers and staff is paramount as is the need to ensure a robust plan with educational supports for students as needed,” Renshaw said.
Position of teachers’ federation
In an Oct. 24 statement to its members, the teachers’ federation said the ruling established that the obligation to provide inclusive education “does not outweigh the employer’s duty to ensure a safe, violence-free workplace to employees.”
NBTF co-president Peter Lagacy declined comment in a statement Thursday, citing the ongoing judicial review process. Brunswick News contacted the provincial child and youth advocate and did not receive a response.
Perry wrote that New Brunswick’s Policy 322 on inclusive education calls for the development of personal learning plans to address a student’s strengths and needs, which may include an “individual behaviour support plan” for the most involved cases, and should go from school to school. The policy allows for “variation on the common learning environment,” either in a personalized learning environment in a school or through home tutoring, she wrote.
Policy 703 sets a framework for “positive learning and working environments” that are inclusive and safe, including setting standards for behaviour and discipline. The policy says that students who act in “challenging ways that are beyond the student’s control” may not be “subject to the typical consequences” but would be handled as per the student’s personal learning plan, according to the decision.
Repeated physical, mental, and emotional injuries
The labour board case involved a student with neurodevelopmental disorder, communication disorder, language disorder, autism spectrum disorder and fetal alcohol syndrome disorder, according to the ruling. The student, enrolled at a New Brunswick middle school, was described by a person identified as their resource teacher as between four or five years old developmentally.
Between September 2019 and 2021 “several staff and teachers incurred repeated physical, mental and emotional injuries” reflected in more than 100 violent incident reports and 95 incidents labelled as “behaviours not tolerated” or “serious misconduct” in the PowerSchool student information software.
Educators who testified before the committee including two educational assistants, a resource teacher and the principal said that the student hit them, threw objects, touched their breasts in some cases, rubbed snot and saliva on them, and threatened to kill them, including bringing a gun to school.
The principal and resource teacher testified that when the student transferred from elementary school in 2019, they were only told that the student was “on the spectrum and can be aggressive.” The resource teacher and a district specialist called a “behaviour and autism lead” began data collection and work on the student’s individual behaviour support plan that fall.
During the 2019-20 school year, the school “struggled to manage the student’s behaviour” despite using the recommended strategies from the lead. In the 2020-21 year, the student was put on a partial day plan as a short-term measure to reduce disruptive behaviour, but the student continued to stay until 11 a.m. or noon throughout their time at the school, Perry wrote.
In that year’s plan, staff were instructed to ignore profanity and verbal threats and take action to protect personal safety, including seclusion, when there was “immediate concern of harm” such as a raised hand.
After an incident on April 26, the principal wrote in an email to the director of schools that “I feel that our safety is not a priority. We continue to be physically and verbally assaulted in the workplace every day. I do not know how much longer I can take this.”
The district stepped in with their own staff April 30 and a short term intervention plan, Perry wrote. Perry wrote that district staff saw some progress, and suspected the school wasn’t “following the plan.”
At that time, the resource teacher testified that she had “instinctively moved her head away slightly” after a verbal threat and the student continue to threaten her and struck her, so she left the room, Perry wrote. The teacher said a district lead “told her they understood she had ‘PTSD,’ but she would have to get over it,” Perry wrote.
When the district started phasing out support, the student was said to regress, and by June, two EAs had invoked their right to refuse safe work.
The principal had been replaced on the case by the vice-principal at the end of April, and in May, she was placed on leave following an allegation from the student’s family that she had held the student down “and told them to shut their mouth” which was determined to be unfounded.
The student’s plan was set to be revised before the 2021/22 school year, but the principal claimed she asked for an update and did not receive a reply. The province said the district had earlier tried to set up a meeting with her while she was on vacation.
Incidents continued in the first week of school, and following an incident Sept. 10 where the student bit the principal on the shoulder, police removed the student from school and the student was transferred to another middle school.
Three days later, the district’s director of educational schools support met with the principal and expressed concerns that the plan had not been implemented with “consistency and fidelity,” according to an email, with the principal having concerns that partner agencies had “undermined” her with the student’s parents. The director wrote that those two factors led to the student’s transfer.
‘Pathway to avoid violence’
Perry wrote that the director testified that there was a “pathway to avoid violence” had the school correctly implemented the plan, and that while “‘some employees may be hit, yes,’ that was a characteristic of the system.”
The director said the things the school failed to do included “inadvertently reinforcing behaviour (e.g., flinching)” and “ineffective crisis response to deregulation (e.g. using seclusion too late),” Perry wrote.
Perry wrote that the NBTF had argued the “issue lies not with inclusive education itself, but with how it is applied in complex situations like this one.”
The union argued that “the employer had many options for ensuring a safe workplace,” including disclosing the student’s risk in advance, providing sufficient staff and resources, imposing immediate suspensions following serious misconduct and delivering programs in an alternate setting, Perry wrote.
It said that while the principal informed senior management about warning signs, the employer “behaved as though the right to a safe working environment did not extend to teachers,” Perry wrote.
The province argues that while there was harm, “it took all reasonable steps to ensure the health and safety of its employees,” including helping the school to update the student’s plan, increasing the EA allotment and intervening with district staff, Perry wrote.
The student saw success in the next middle school, the province noted, although Perry wrote that “many lessons had been learned by that point” and essential resources were implemented from the beginning.
Perry ruled that the first middle school “was not set up to successfully receive this student,” and that there was “indirect pressure” to keep the student in school as much as possible.
In response to the argument that the school staff had not implemented the plan with “consistency and fidelity,” Perry found that the student’s needs “exceeded their capacity” due to “varying levels of training” in dealing with students with exceptionalities.
“Based on the extensive evidence, it is clear this Student’s exceptionalities were well beyond the scope and expertise of nearly every educator or specialist involved,” Perry wrote.
“Yet while both the principal and the resource teacher were subjected to repeated physical and emotional assaults by the Student on a near daily basis … they were told they simply were not following the plan or in fact reinforcing the negative behaviours.”
The arbitrator wrote that in this case, “the harm experienced significantly outweighs the societal value” of school inclusion, noting that the student did not “participate meaningfully” in skill development programs.
Regarding damages, Perry wrote that while damages resulting from WorkSafeNB-eligible accidents should go through the compensation process, the NBTF argued that general damages should address “the employer’s failure to meet its safety obligations” rather than any specific injuries.
The principal testified that she had intended to retire as late as December 2024, but instead retired in 2022 as a result of the incident. She said she had received a post-traumatic stress disorder diagnosis.
The union argued that the principal retired early owing “both to the unsafe work environment and the Employer’s choice to lay blame on her shoulders for the violence” and should be awarded special damages for lost income, Perry wrote.
Perry ruled it was most likely she would have retired July 2024 and set the damages accordingly. She awarded aggravated damages to both employees “due to the heightened mental distress” from the province’s handling of the situation.
The province is now arguing that the arbitrator’s decision was unreasonable, particularly regarding the special damages and aggravated damages. A case conference to discuss their request for review is scheduled in March.
