Balancing inclusivity and workplace safety

By Sheila Mecking and Lauren Sorel

Introduction

Arbitrator Trisha Perry addressed the complex interests between inclusive education and workplace safety in a recent decision (New Brunswick Teachers’ Federation v New Brunswick (Finance and Treasury Board) (Department of Education and Early Childhood Development).[1]

The New Brunswick Teachers’ Federation (NBTA) filed a grievance against the Department of Finance and Treasury Board (the Employer), alleging that the Employer failed to provide a safe workplace and a positive learning environment, as required by the Collective Agreement, the Occupational Health and Safety Act (OHSA), and the Employer’s own policies.

The grievance centered around a student with severe and complex developmental disabilities, whose behaviour posed significant safety risks to teachers and staff at the school. The student engaged in frequent physical and verbal aggression, which included hitting, kicking, spitting, biting, and threatening staff. Despite various interventions, the measures taken by the Employer were insufficient to prevent harm to employees.

Arbitrator’s decision

The arbitrator upheld the grievance, finding that the Employer failed to enforce their safety policies and OHSA, contrary to the Collective Agreement. The decision emphasized that while inclusive education is a commendable objective, the safety and well-being of employees cannot be compromised.

The arbitrator stated that the purpose of the OHSA and safety policies is to take all reasonable precautions to protect employees, not eliminate all possible hazards. In this case, the Employer could have taken additional steps to reduce harm, such as providing information about the student’s behavioural risks, implementing a Partial Day Plan earlier, offering specialized training for staff, and considering alternate settings for delivering programs and services.

This decision is currently under judicial review at the request of the Employer.

Implications for employers

This decision reinforces the legal obligation of employers to ensure a safe working environment for their employees, even in settings where inclusive education is prioritized. The ruling highlights the inherent tension between the right to inclusive education and an employer’s duty to maintain a safe, violence-free workplace.

Employers are reminded that they must balance the goals of inclusive workspaces with practical measures to safeguard their employees. This includes implementing comprehensive safety protocols, providing adequate training, and ensuring that staff are well-informed about potential risks. Failure to do so can result in legal consequences, as demonstrated by this case.

This client update is provided for general information only and does not constitute legal advice. If you have any questions about the above, please contact the authors, or a member of our Labour and Employment Group.

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[1] 2024 CanLII 124417 (NB LA)