‘5 years without pay - I don't see much of a distinction from termination’: lawyer

Dismissal was excessive for a childcare worker’s inappropriate treatment of a child but it was serious enough to deserve a five-year unpaid suspension, an Ontario arbitrator has ruled.

“It's still a pretty significant penalty - five years without pay - so I don't see much of a distinction from termination of employment,” says Michael Horvat, a labour and employment lawyer at Aird & Berlis in Toronto. “Maybe we can imply that the worker didn’t impress the arbitrator with respect to even that one incident.”

The worker was a registered early childcare educator (RECE) at a City of Toronto daycare centre since 2008. In 2017, she was assigned to work in one of two preschool rooms, overseeing children between 2.5 and four years old.

On Feb. 20, 2019, another RECE reported to her supervisor that she saw the worker behave inappropriately in two incidents. According to the other RECE, she was standing by the door to the playground and saw the worker quickly approach a boy, bend down to him, grab his ear, and shake it back and forth. She reported that she heard the boy scream and cry. The worker then stood up and walked away while still holding the boy’s ear.

The other RECE later said that the child was wearing a hat and the worker’s ear was underneath the hat. However, she also said the hat was pushed up and she could see the worker’s hand on the ear.

Report of misconduct

The other RECE also reported that, about 30 minutes later, she was outside in the playground. She approached two children who weren’t engaging with other children or toys but the worker said, “Leave those two; they need to sit out.” A few minutes later, the worker approached one of the children, spoke to him, and then picked up a bottle of hand sanitizer. According to the other RECE, the worker put the nozzle of the bottle into the child’s mouth and said, “I do not want to hear those bad words.”

The supervisor called the worker and advised her not to come into work until further notice.

In accordance with her legal obligations, the other RECE also made a report to the city’s Children’s Aid Society (CAS), which investigated and interviewed the worker and the other RECE – who added to her account of the sanitizer incident by saying the worker placed a hand behind the child to restrain him, put the nozzle in the child’s mouth for 20 seconds, and the worker’s body partially blocked her view.

The mother of the child from the ear incident learned of the allegation and reported it to the police. Another parent also said their own child – who wasn’t in the worker’s classroom - said the worker made her sit out and “put white glue in our bum.” That child had made a similar claim against another daycare worker several months earlier.

The police determined there would be no criminal charges, but they would give the worker a “caution.” The other RECE told the police that she didn’t know if the child’s mouth in the sanitizer incident was open or closed, which contradicted what she said to the CAS.

On March 25, the CAS completed its investigation and determined that the ear pulling incident was verified, but the others were not due to a lack of credible evidence.

Workplace investigation

The city launched its own investigation, as it was city policy to wait for other investigations to be completed so it didn’t interfere. The worker and the other RECE were interviewed.

It’s good policy to wait until outside investigations are complete before conducting a workplace investigation, according to Horvat, noting that there wasn’t much of a delay anyway.

“It was a timely structure with the events happening in February 2019 and then termination in May - it's not unusual to have an investigation take a couple of months, particularly if there are serious issues alleged,” he says. “The only underlying issue [with timeliness] was of witness retention of information and how that leads to determination of credibility by the arbitrator - if you’re able to investigate in a more timely manner, the witnesses may have more detailed recollection.”

On May 24, the city terminated the worker’s employment for physically harming a child by pulling on his ear and causing him distress, threatening another child with hand sanitizer, and placing two children in a time out while instructing other staff not to interact with them.

The union grieved the termination, arguing there wasn’t just cause. The worker acknowledged that she held the sanitizer bottle while speaking to the child, but denied threatening or restraining him. She said she held the sanitizer bottle about 6 to 12 inches from the child’s mouth and said “let’s wipe those words away,” never intending to put the nozzle in his mouth. The worker also denied placing any children in a time out or pulling on a child’s ear.

Single witness

The arbitrator noted that the only evidence about the ear pulling incident was from the other RECE’s account, which had inconsistencies. The other RECE said she could see the worker’s hand pulling the ear, but also that her hand was under the hat. The other RECE also said she heard someone screaming before witnessing the interaction and she couldn’t recall if the child was crying before it happened. Meanwhile, the worker said she didn’t remember any interaction with the child but she recalled the child wearing a toque with ear flaps, and fixing a hat is something an RECE might do.

The arbitrator also noted that the worker didn’t deny interacting with the child, she just didn’t recall anything and conceded that she might have.

The arbitrator found that the evidence of the ear pulling incident was questionable. As a result, the city didn’t establish that the misconduct occurred, said the arbitrator.

The city set itself up for a challenging defense when it relied on a single witness account to justify cause for dismissal, says Horvat.

“When you only have one witness, you’re stuck with that one witness,” he says. “There didn't seem to be any other avenue to get that evidence.”

Worker acknowledged incident

As for the sanitizer incident, the arbitrator found the evidence more compelling. The other RECE was in the playground when she observed it and the worker agreed that it happened, although she denied threatening the child.

The arbitrator found that the worker put her hand on the child’s back and held sanitizer near his mouth in combination with a comment about using bad words, but there was no evidence of actually threatening the child with sanitizer in his mouth.

The arbitrator found that the worker’s acknowledgement that the sanitizer incident was inappropriate didn’t address how the child would perceive it, but it was an acknowledgement nonetheless that she made multiple times. It was unlikely she would repeat the behaviour, the arbitrator said.

“The worker testified that she was not threatening and she was never going to put it in his mouth – it was an idle threat or use of a prop,” says Horvat. “The distinction is that the worker, to her credit, conceded that she did pick up the hand sanitizer and put it in the vicinity of the child's mouth in what the arbitrator and the employer concluded was an inappropriate manner.”

Turning to the time-out allegation, the arbitrator found the other RECE’s account lacking in evidence that the worker actually left the children alone. The worker denied it and both RECE’s were in the playground. Having a child sit to the side of the playground while staff was engaging with him was not “harsh or degrading” and didn’t violate policies, said the arbitrator.

The arbitrator determined that dismissal was excessive, although the worker’s misconduct in the sanitizer incident was serious. The city was ordered to reinstate the worker but without any backpay for the five years since her termination.

“I don't know the line between a five-year suspension and termination, that seems to be an interesting line to draw,” he adds. “While it's not directly indicated in the decision, the penalty is reflective of what the arbitrator felt was the severity of the one incident and potentially the [lack of] remorseful conduct of the worker during the hearing.”

Given the seriousness of the allegations and the nature of the worker’s job, the city may not have a had a choice but to dismiss the worker, according to Horvat.

“The arbitrator determined that another penalty should be substituted in lieu of termination for cause, but what would have been sufficient for the stakeholders within the organization - parents, other employees, and city management - where there are serious allegations?” he says. “This may be a situation in which an employer has no choice but to go through with termination and basically say they’ll let the arbitrator decide - it's a no-win situation.”

See Toronto (City) v. Canadian Union of Public Employees, Local 79, 2024 CanLII 56104.