Judge rules arbitrator made correct decision in case against janitor
SYDNEY — An arbitrator was reasonable when she ruled a school janitor should not have been fired for having a sexual relationship with a 15-year-old girl when he was off-duty, a Nova Scotia Supreme Court justice has ruled.
Justice Cindy A. Bourgeois’s 27-page written decision was released Thursday.
The Cape Breton-Victoria Regional School Board had applied for a judicial review of the labour arbitration award.
During the arbitration matter, arbitrator Susan M. Ashley — who both the board and CUPE Local 5050 agreed was experienced — heard from 10 witnesses over four days.
The janitor, who was not named, was terminated Nov. 23, 2007, after working for the board in a custodial position for more than 20 years at several different schools, with no prior disciplinary record.
In his off-duty hours, the man began a personal relationship with a 14-year-old girl in August 2007. It became sexual in nature that same month, when she turned 15. It wasn’t in contention that the man met the girl outside of the school setting, as she wasn’t a student at any school where he worked. He also didn’t use his job to instigate or develop the relationship.
At the time, the legal age of consent for sexual activity in Canada was 14. It has since been raised to 16.
The board argued that even if the relationship occurred offduty, the man breached his duty to the girl, the board and the larger community. The union disagreed, saying his off-duty conduct didn’t justify any degree of discipline, and certainly not firing.
The board was also concerned that the man originally denied the relationship when first questioned about it and said he gave away school property like garbage bags, pens and calculators to several people.
While she said that the nature of the sexual conduct between a man his age and the girl was “difficult to contemplate” and “repugnant,” Ashley added it was not appropriate to “impose discipline on the basis of moral outrage alone, or to punish the grievor for behaviour which we find offensive.”
The arbitrator found there was no ground for discipline related to the man’s sexual conduct, but there was for his dishonesty and use of board property. The arbitrator gave the man a threemonth suspension, finding that firing was too severe a penalty given the circumstances.
The arbitrator erred in failing to apply the duty arising from the man’s position of trust, the board argued, by requiring proof of actual harm to the school board’s reputation in order to justify the firing, and by not finding that the firing was justified because the man lied.
Bourgeois said she was able to understand how and why the arbitrator reached her decision, saying Ashley cited the appropriate legal tests and undertook a clear legal analysis.
“As such, there is a ‘ justifiable, intelligible and transparent reasoning path,’ thus meeting the first stage of the reasonableness analysis,” Bourgeois wrote.
The Nova Scotia Supreme Court can’t substitute an alternate determination unless it finds that the award was outside the range of acceptable outcomes. Bourgeois found it was within the range of acceptable outcomes.
There is a justifiable, intelligible and
transparent reasoning path.
Justice Cindy Bourgeois