Discharge of teachers for unsatisfactory teaching performance is seldom a straightforward task. Arbitrator Pamela Picher has recently provided guidance to school boards in Ontario's first Teacher Performance Appraisal ("TPA") discharge arbitration in the case of Toronto District School Board and Ontario Secondary School Teachers' Federation – District 12. The decision was released on August 19, 2011.
TEACHER PERFORMANCE APPRAISAL SYSTEM
In Ontario, "Part X.2, Teacher Performance Appraisal" of the Education Act and its related Regulation 99/02 establish the framework and mandatory requirements of the TPA system. Every teacher is evaluated under the TPA system at least once in a period of three years. Additional performance appraisals can be triggered if the principal of a school considers it advisable in light of the circumstance relating to a teacher's performance.
School boards are permitted to establish policies and rules relating to the performance appraisal of teachers that are consistent with the TPA system. To that end, the Toronto District School Board ("TDSB"), in consultation with relevant unions, developed a Teacher Performance Appraisal Process Binder and a TDSB TPA Policy/Procedure (collectively referred to as "TDSB TPA Process").
Once a teacher is selected for evaluation, an evaluation consisting of a maximum of three "Cycles" follows. Cycle 1 and Cycle 2 evaluations are performed by the Principal of the school or, if so delegated, the Vice-Principal. The Cycle 3 evaluation under the TDSB TPA Process is conducted by the Superintendent of Education or designate. The TDSB TPA Process contains a total of approximately 133 "Look-Fors", itemized benchmarks of teacher conduct, which supplements sixteen teacher "Competencies" spread over five "Domains" or general categories, contained in Regulation 99/02.
ARBITRATION BOARD UPHOLDS DISCHARGE UNDER TDSB TPA PROCESS
Nicolae Gusita began teaching at Harbord Collegiate Institute in the fall of 2002. In Mr. Gusita's first term of teaching at Harbord, students and parents raised a series of concerns about his performance. They complained that
Mr. Gusita's explanation of concepts was not clear and his tests were not reflecting what was being taught. The parental and student complaints, which continued through October and November 2002, three informal classroom observations, and Mr. Gusita's response to the concerns, culminated in the placement of Mr. Gusita on the list of teachers being evaluated under the TDSB TPA Process for the 2002-2003 school year.
Mr. Gusita eventually progressed through all three cycles of the TDSB TPA Process, with three consecutive overall performance ratings of "Unsatisfactory". Following the third cycle, Mr. Gusita was discharged for unsatisfactory teaching in June 2004. The Ontario Secondary School Teachers' Federation ("OSSTF") grieved the discharge. The OSSTF largely focused its arguments on the appraisal process followed by the TDSB in all three Cycles, including claims of bias, manipulation, arbitrariness, and unfairness. The OSSTF's criticisms also included complaints ranging from the competence of the Vice-Principal who conducted the Cycle 1 and Cycle 2 evaluations as a TPA evaluator and to the lack of absolute independence of the Cycle 3 evaluator and the Superintendent of Education.
In arriving at her conclusion that the TDSB appropriately discharged Mr. Gusita for unsatisfactory teaching performance, Arbitrator Picher, writing for the majority of the Board of Arbitration, found that a "just cause" standard of review applied to the discharge; such review, however, had to respect the highly controlled scheme of teacher performance appraisals. Accordingly, the Arbitrator did not substitute her own evaluation of Mr. Gusita's teaching performance for that of the TDSB evaluators, nor did she consider any action in the evaluation process that should have been taken beyond those actions included in the TDSB TPA Process.
Instead, the Arbitrator considered whether the essential elements of the mandated TPA procedure were followed. The Arbitrator also considered whether the essential elements of fairness built into the TPA process to enable Mr. Gusita to demonstrate his competence were applied, whether the respective evaluators carried out the TPA process without discrimination, arbitrariness or bad faith, and whether the three ratings of "Unsatisfactory" were reasonable and based on supporting facts. In large part, this effectively meant that the "just cause" review centered on an assessment of TDSB's compliance with the appraisal process.
Arbitrator Picher ultimately concluded that the overall performance ratings of "Unsatisfactory" in all three Cycles complied with the TDSB TPA Process, both procedurally and substantively, and that the assessments and evaluations were made in good faith without discrimination, arbitrariness, bias, collusion, undue influence, manipulation, unfairness, or ill-will. Contrary to the OSSTF's assertions, the Arbitrator commented favourably on how Mr. Gusita was given many pointers on how to improve, including the Vice-Principal taking pains to describe to Mr. Gusita precisely where he had fallen short, how he needed to improve, and informing Mr. Gusita that at the start of the 2003-2004 school year they would work through his class lists together to identify potential problems and to develop a plan for addressing and managing them.
GUIDANCE FOR SCHOOL ADMINISTRATORS
Developing and implementing a school board-specific TPA process that is consistent with the TPA system set out under the Education Act is critical and its utility is highlighted by this decision. The decision underscores the purpose of the TPA procedure, namely:
(a) to ensure students receive the benefit of an education system staffed by teachers who are performing their duties satisfactorily;
(b) to provide for fair, effective and consistent teacher evaluation in every school; and
(c) to promote professional growth.
It is important for school administrators to ensure that the essential elements of the TPA procedure are complied with. Administrators should ensure that the elements of fairness built into the TPA process are applied and that the appraisal is carried out without discrimination, arbitrariness or bad faith. The ratings given to the relevant teacher should be reasonable and based on credible supporting facts.
Arbitrator Picher's decision sets out the importance of providing documentation that procedurally and substantively complies with the TPA process set out in the legislation.The case also highlights the importance of supporting the teacher in his or her attempt to improve, identify potential problems and develop a plan to address areas of deficiency. It should also be recognized that the documentation of a teacher's performance is critical from the perspective of having leverage to negotiate a resolution to a TPA termination, allowing the school board to deal from a position of strength.
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