Spring 2023

Protection From Online Abuse and Harassment: New Arbitration Ruling

In August 2022, the Newfoundland and Labrador Teachers’ Association (NLTA) received an arbitration ruling considering the employer school district’s response to the social media abuse of a teacher who, at the time of the abuse, was the subject of a police investigation. The NLTA took the position that that the employer had failed to adequately respond to abusive online commentary by third parties, including parents, about the grievor. Some of the social media posters published abusive comments about the teacher, and others posted the teacher’s name and photograph and identified the teacher’s spouse. The abuse happened on more than one Facebook site. The teacher and their spouse and family lived and worked in a small community. The Employer’s response was to report the abusive conduct to Facebook. The Association maintained that more should have been done. The Employer cited concerns with interfering with a police investigation. 

The NLTA Collective Agreement provides:

The School Boards shall, prior to the expiration of this agreement undertake a review of and/ or develop and implement policies regarding school violence and dealing with students and parents who have exhibited violent and abusive behaviour. In reviewing and / or developing these policies, the School Boards will seek input from the Association, school administrators and other personnel who are deemed to have a legitimate role in prevention, intervention, and assessment activities.

58.01 The Boards and the Association recognize the right of all teachers to work in an environment free from harassment and shall work together to ensure that harassment is actively discouraged. All reported incidents of harassment shall be thoroughly investigated as quickly and as confidentially as possible. The Employer agrees to take reasonable steps to ensure that the harassment stops and that individuals who engage in such behaviour are dealt with appropriately and / or disciplined. The Employer and the Association agree that the victims of harassment shall be supported, and protected, where possible, from the repercussions which may result from a complaint. 

There was also a Memorandum of Settlement (MOS) applicable in this case, which arose out of prior grievances filed by a guidance counsellor and a principal who were also being harassed online by third parties – in that case, a parent. Those grievances were settled by the MOS. Among other things, the District agreed in the MOS: 

  1. That violence is not a necessary precondition to a finding of abuse under the Policy HR-811;
  2. That an appropriate response to a violation of the Policy is a timely response; and that the District agrees to make every effort to respond within two (2) working days for first District contact with a complainant; 
  3. That specific and detailed communications with targeted employees, with regard to steps taken by the District in furtherance of Policy objectives is an important part of demonstrating “support” for employees in providing a harassment and abuse free workplace; 
  4. That abuse under the Policy includes, but is not limited to, a public attack by an employee of NLESD, parent/ guardian, student or volunteer that threatens the livelihood or professional reputation of employees; (emphasis added) 
  5. That the District will make every effort to take available steps (i.e., make a request to site administrators) to have offending communications removed from public access; 
  6. That the District will commit to written correspondence and, when possible, in person meetings with complainants when confronted with communications that run afoul of the Policy HR-811.
  7. Such communications must identify the inappropriateness of the abusive behaviour and draw relevant policy to the recipient’s attention, with a copy to be provided to the Union in cases where the union is representing the teacher 
  8. That this is a baseline, not a complete protocol, and other steps may be required depending on the circumstances of a particular case. 

The employer and the NLTA agreed that the online statements about the teacher constituted online harassment as well as abuse. The majority of the arbitration panel also found as a fact that the posts were harassing and abusive.  It further found that the MOS applied, and that its requirements had not been met.  District staff testified in this regard that they were reluctant to intervene because the teacher was under police investigation and they were concerned about undermining or interfering with a police investigation. The majority of the arbitration panel did not accept this rationale. The majority recognized that the employer was trying to protect the ongoing police investigation by “standing down” i.e., by holding its own investigation in abeyance until such time as the police completed their investigation. However, the majority found that the employer did not specifically show how following the MOS would interfere with the police investigation. The majority also found that the District has a legal obligation to protect students, but that this had been accomplished by putting the teacher on leave while the investigation was going on. Simply put, “By putting the teacher on leave, the district protects the student. By telling the Third Party parent that their online abuse is not tolerated in accordance with District policies, the District would show support for all teachers without harming the student.” 

As remedy, the majority awarded $2,500.00 to the grievor in general damages for mental distress and anguish. The majority also declared that the MOS applied to all cases of third party harassment and abuse as defined in the MOS, and that the employer had breached the collective agreement, MOS and policy to take reasonable steps to ensure that the harassment stopped and that individuals who engaged in such behavior were dealt with appropriately.  This is an important arbitration as it reinforces the employer’s obligation to react to social media abuse of teachers and school administrators, and support those employees who are victims of harassment and abuse. 

Miriam Sheppard, NLTA Administrative Officer