College instructor contacted students for course materials from former instructor
A British Columbia arbitrator has overturned a suspension for a college instructor who entered a colleague’s office without permission, but upheld a suspension for insubordination.
The College of New Caledonia (CNC) in Prince George, BC, operated a two-year program in dental hygiene. The worker joined CNC in 2001 and became a full-time instructor in 2007. By 2022, she had become a senior instructor.
The dental hygiene curriculum was redeveloped in the fall of 2017 with the worker as the clinic lead and program co-ordinator. She stayed with the same cohort of students for the two-year program, meaning she taught them first-year courses and then second-year courses. When she began teaching second-year courses, another instructor took over for new students entering the program.
By the summer of 2020, that instructor and another instructor left the college. Leading up to that time, there was a problem in the department with long, argumentative emails between the faculty, so the interim associate dean for health sciences advised all faculty that emails should be brief with only one or two lines. If any emails had to be longer, a meeting should be set up.
A month later, the associate dean reminded everyone of the email communication etiquette and further encouraged it in a September faculty meeting.
In August 2020, the worker asked a custodian to let her into a new instructor’s office to find a textbook. She saw a binder for the first-year clinic course on the desk and took it to review for her course preparation. She advised the new instructor, and the new instructor said that she was glad the worker found the binder useful but it was a breach of privacy and disrespectful that the worker entered her office and took her property.
The worker apologized for taking the binder without permission, first by email and then in person. She noted that she didn’t think the new instructor would need it and it was too late to call and ask, and in the past faculty shared “any and all resources without issue as long as we let each other know what we had taken.”
On Aug. 11, the new instructor forwarded the email chain to the associate dean, who investigated. The worker said that she had asked the custodian to let her in the office and saw the binder, which had been created by a former instructor. The worker said that the former instructor had given her permission at a staff meeting a couple of months earlier to use the materials.
The associate dean contacted the former instructor, who advised that she had not given the worker permission to use her course material. She also said that back in February the worker had accessed her office for a textbook.
The associate dean felt that the worker was not being honest about faculty accessing each other’s offices or that she had permission to use the former instructor’s materials. CNC suspended the worker for one day with pay for using her position as a faculty member to convince a custodian to allow her unauthorized access to a locked office and ignoring the directive to keep email communications brief.
Common law reasonable notice is still longer than extended mass termination notice, says this employment lawyer.
About one month before the office incident, the worker asked permission to access the learning platform containing clinical resources of the former instructor. The associate dean didn’t think it would be possible, as the former instructor had proactively sought clarification from the college about requiring permission to share her online resources.
The worker asked if any of the senior students would be able to provide access from their first-year courses, but the associate dean said that the issue was with who owned the material and it wouldn’t be acceptable trying to obtain information created by someone else.
On Sept. 22, the new instructor sent the associate dean a thread of emails in which the worker had contacted students who had been in the former instructor’s first-year class seeking material, starting in early August. One of the students had contacted the new instructor as they were concerned with the worker’s professional conduct. The associate dean launched an investigation and turned it over to the dean.
A meeting was set up for Nov. 25 in which the worker would be interviewed, but CNC did not provide the questions to the union. As a result, the union advised the worker not to answer questions. The dean said that CNC was going to make its decision based on the interview and it was in her best interests to answer questions, but the worker still declined.
Later, the worker asserted that the former instructor had given permission for another instructor to use her course material at a staff meeting in May. The other instructor departed and left the worker to teach the course, so she assumed that, as the next instructor, she could use that material.
On Dec. 7, the worker was suspended for one day without pay for ignoring the directive to refrain from requesting the former instructor’s course material from students and not informing her supervisor, and using her position as a faculty member to convince students to share the intellectual property of another instructor without permission.
CNC added that the worker “displayed insubordinate behaviour” and breached the faculty association collective agreement, which required faculty to obtain permission of copyright owners for material they wanted to copy or use in their classes.
The union grieved both suspensions, arguing that there was “no clear and consistent directive regarding the length of emails” and the worker didn’t misuse her faculty position to get the custodian to unlock the office door. It also argued that the associate dean’s directive was to not contact students relating to the former instructor’s learning platform, and the worker only asked students for copies of the course material that they had already obtained. There was no pressure for them to comply, said the union.
The arbitrator noted that the email etiquette was an expectation established by CNC and the college encouraged faculty follow it.
However, the arbitrator found that while the new instructor perceived some of the worker’s emails to be argumentative, the worker had reason to make suggestions and discuss elements of the program in her role as program co-ordinator. If the new instructor felt that the worker was being argumentative, then she should have discussed it with the worker, said the arbitrator. Either way, the worker’s emails didn’t fall within the scope of the email etiquette expectation and the etiquette wasn’t used as a reason to discipline anyone else, the arbitrator said.
The arbitrator also found that there was only hearsay evidence that the worker used her position to convince a custodian to access the locked office, while the worker said the custodian just let her in. It was also hearsay as to whether the former instructor gave permission to use her materials, which was not enough to justify discipline.
Regarding the removal of property from the office without prior consent, the arbitrator noted that the worker immediately informed her colleague that she had borrowed the binder and didn’t try to hide the fact that she had entered the office. When the colleague became upset, the worker immediately apologized, said the arbitrator in finding that the paid suspension should be removed from the worker’s file.
As for the unpaid suspension, the arbitrator agreed that it was deserved. The associate dean specifically told the worker not to contact students and the worker knew that the former instructor had not given permission to use her material. This constituted insubordination by not following a clear directive from her supervisor, said the arbitrator.
The arbitrator noted that the worker had no prior discipline on her record, but insubordination involving copyrighted material was serious. The one-day unpaid suspension was upheld. See College of New Caledonia and Faculty Assn. of the College of New Caledonia (Battersby), Re., 2022 CarswellBC 3626.
