Department of Education ordered to pay teacher, principal, $35,000 and $45,000 damages, for breaches of collective agreement and statutory health and safety obligations arising from uncontrolled behaviour of special needs student

A New Brunswick labour arbitrator has held that a Department of Education operating a provincial school board must pay a teacher and principal aggravated damages of $35,000 and $45,000 respectively – as well as wage loss damages to the principal who took premature retirement following a diagnosis of PTSD –  for breaching its statutory and collective agreement obligations to protect the health and safety of its teaching staff from assaults by a student with special needs.

Finding that the health and safety obligations in the collective agreement and in s. 9 of the New Brunswick Occupational Health and Safety Act and were breached by the Department of Education’s failure, as the employer, to take ‘every reasonable precaution to ensure the health and safety’ of the staff, including: failing to ensure that the school and staff were advised of the full extent of the student’s behavioural challenges; failing to provide sufficient staffing resources; and refusing to consider moving the middle school student to a more appropriate classroom environment; the arbitrator held that both the principal and the teacher were entitled to aggravated damages, based on the physical harm suffered as a result of the student’s physical assaults, as well as the threats and verbal abuse suffered. The arbitrator found that the employer’s breaches were “significant” and had a “considerable impact” on the teacher and the principal’s well-being. It further relied on the employer’s conduct in failing to provide the teacher and the principal with proper support, and its subsequent attempts to place the blame for the student’s uncontrolled behaviour on them, as justifying the damage awards of $35,000 and $45,000. The arbitrator also ordered the principal to be paid compensation for lost wages equal to the amount she would have earned had she remained in employment until her intended retirement date, finding that her premature retirement was motivated by the unsafe work environment, and the stress of attempting to keep the student and other staff safe, without sufficient support from the employer.

In making the award, the arbitrator rejected the argument that the possibility of compensation under the Workers’ Compensation Act for the PTSD suffered by the principal was a bar to awarding damages at arbitration, ruling that “[t]he real complaint in this grievance is that the employer effectively ignored the serious safety issues at [the middle school] and thereby exposed the teachers there to violence,” and that any damages awarded were for the losses flowing from the failure to adhere to health and safety obligations, and not for “mental or physical injuries that might otherwise be compensable under WCA.”