The B.C. Court of Appeal has unanimously overturned an arbitrator’s dismissal of a Port Alberni teacher’s grievance over class size and composition, and has sent the matter back to arbitration.
The decision by the three-member judges’ panel was announced earlier this month.
The ruling clarified what teachers have known all along.
“Up to now teachers couldn’t raise concerns about class size and composition after Sept. 30,” Alberni District Teachers’ Union president Ken Zydyk said.
“But now there’s a legal obligation for those concerns to be addressed.”
The union hasn’t discussed the ruling with School District 70 despite the fact representatives have started collective bargaining.
But it’s early yet to determine how the ruling will play out in the district.
“Teachers will be raising their concerns about ruling in the near future,” Zydyk said.
According to the decision’s factual background, the case has its roots in 2008 at Maquinna Elementary School.
Grade 5 teacher Kathleen Battand had to teach four students who required individual education programs (IEP’s) – one more student than proposed under Bill 33.
In a meeting with school principal Deb Stoutley, Battand expressed concerns about the impact of adding a fourth IEP student on her class preparation time.
Stoutley proposed adding an educational aide who would work with Battand’s class, and signed a statement with superintendent Cam Pinkerton deeming the class appropriate for student learning.
The education aide was subsequently absent several times that year. The school board was required to supply a replacement aide, and Battand requested it, but none was available.
Battand filed a grievance alleging that the failure to provide a replacement aide violated the terms and conditions of her employment.
The ADTU also argued that the principal deemed the class appropriate to teach on the basis that an aide would be provided, but that not providing one undermined the claim.
Arbitrator James Dorsey dismissed the grievance though, saying that the grievance procedure was available only for grievances arising under the collective agreement, and not for any alleged breaches of an agreement between a teacher and a school.
The appeal judges panel however disagreed with Dorsey’s decision, saying that he never determined whether Battand’s class was appropriate for learning in the opinions of the principal and superintendent when Battand raised the issue of the aide’s absence.
The requirement that the principal and superintendent be of the opinion that the class organization is appropriate for student learning applies beyond the start of the school year, Justice Harvey Groberman noted.
The panel also agreed with the ADTU that not providing a learning aide affected the provision of education in Battand’s class.
“If they were of the opinion that it did not continue to be so, the school board had a responsibility to make whatever changes were necessary to bring the class back into compliance with s. 76.1(2.3).”
School District 70 assistant superintendent Greg Smyth was away at a conference and not available for comment.
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