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Arbitrator: No jurisdiction to hear BCTF grievance

But says lesbian's testimony among most personal and compelling he's heard

"A lot of people worked really hard to get that ministerial order and it still hasn't been implemented," says the BCTF's Glen Hansman. Credit: Sarah Race photo

A BC Public School Employers’ Association (BCPSEA) arbitrator ruled Feb 25 he does not have the jurisdiction to hear a BC Teachers’ Federation grievance asking that all school boards enforce a ministerial order that says all school districts and their schools must develop codes of conduct.

The ministerial order was handed down following passage of 2007 legislation mandating school boards ensure school codes of conduct referenced the BC Human Rights Code, which includes sexual orientation as a protected category.

Only 13 school districts out 60 in the province have explicit anti-homophobia policy.

Minister of Education Margaret MacDiarmid, however, says in her usual prepared statement to Xtra that all districts are in compliance with the order.

The BCTF says the lacking codes of conduct leads to the creation of unsafe and unwelcoming working environments for teachers. As such, it argued, non-complying districts were in violation of collective agreements.

In his ruling, arbitrator John Hall said the evidence he heard from lesbian middle-school teacher Lise Tetrault was some of the most personal and compelling testimony he had heard in 25 years as an adjudicator.

Tetrault testified that in June 2009, two female students fabricated two letters to another female student saying the letter writer wanted to perform sexually explicit acts on the recipient. One letter was purported to be from the school principal, while the other had Tetrault’s forged signature.

Tetrault testified she was uncomfortable with how the administration initially handled the situation.

The union used the situation as an example to demonstrate how the failure to comply with the ministerial order had an effect on teachers’ working conditions.

“The reason I did not file a grievance is because I’m afraid,” Tetrault testified. “I did not come out to myself until I was 30 years old because of fear; I did not come out to my peers in the workplace until I was 49 years old because of fear, and I am not out to my students because of fear,” she said.

“Homophobia is internalized in all of us, and the reality is that gays and lesbians do not feel safe in their workplaces – very few do,” she further testified. “I think of kids, and I know some who are struggling with who they are and their sexual identity.

“If we can’t create a workplace that is safe for everyone, we will never be able to deal with this fear,” Tetrault said. “I know I need to deal with my fear, and I hope it will lead to changes in our workplaces that will make it safer [for everyone] to deal with their questions and fears.”

BCTF vice-president Glen Hansman also testified on the basis of his work with the Vancouver School Board’s Pride Advisory Committee and later as one of the anti-homophobia and diversity consultants for that board.

Hansman testified about his frustration with the recommendations of the Safe Schools Task Force, a study initiated by then-education minister and now premier-designate Christy Clark.

Hansman said the report by former Vancouver-Burrard MLA Lorne Mayencourt referred throughout to homophobic bullying being a problem, yet the recommendations were written in terms of generic bullying.

Hansman also worked on the development of the ministerial order. He testified before Hall that generic language was insufficient, and the Human Rights Code and protected grounds needed to be included.

The teachers’ union wanted the arbitrator to find that school boards had violated the collective agreement and ministerial order, order the boards to comply with the order, and consult with employee groups to develop a schedule to review codes in each school district.

But Hall ruled there was “no real contextual connection” between the collective agreements and a section of the ministerial order regarding the consequences of student behaviour.

While he did accept the union’s argument that students’ behaviour can have an effect on teachers, Hall said the ministerial order is not employment related.

MacDiarmid did not address Hall’s decision directly in her statement to Xtra. She said all district superintendents were contacted last year to determine the level of compliance with the School Act and the code of conduct order.

“In the few instances where gaps were identified, superintendents reported that their districts were actively engaged in addressing these and bringing their codes into full compliance,” her statement reads.

“I expect boards to ensure that the schools in their districts are living with, and helping to breathe life into, these codes of conduct in order to create and maintain learning environments that are safe, caring and orderly for all students and staff,” MacDiarmid stated.

Hansman told Xtra the union has yet to decide whether it will appeal the decision or take a different route.

“A more expensive way would be a judicial review,” Hansman says. “The grievance procedure is there to be a quick way of resolving problems.”

“A lot of people worked really hard to get that ministerial order, and it still hasn’t been implemented,” he adds.

He said the union has had the Human Rights Code read into collective agreements.

“We were attempting to have a further connection made between the legislation and the collective agreements,” he says.

“It wasn’t meant to be a back door.”