The Yukon government has paid out a total of $40,000 in damages to eight individual grievors represented by the Yukon Teachers’ Association (YTA) after a recent adjudication decision related to temporary teacher employment status.

Education Minister Tracy-Anne McPhee says the government is working with the YTA to resolve outstanding issues.

YTA vice-president Carol Sherlock told the Star the two parties essentially remain at loggerheads on the temporary teacher file.

In a highly-publicized decision rendered last July, adjudicator Paul Love found that the Yukon government had violated the Education Labour Relations Act.

It had done so by extending the temporary employment status of eight teachers after two years of employment on temporary contracts, Love found.

He ordered that all the grievors who had completed two consecutive years of employment be given permanent status, effective the beginning of their third school year, “with all the rights and benefits that flow from that status.”

Then, in a Feb. 26 decision, Love ordered the Yukon government to pay $5,000 in general damages to each of the eight grievors, and $25,000 to the YTA.

“This case is about the denial of collective agreement entitlements to the grievors because the employer, for whatever reason, chose to ignore the interpretation of s. 109 in Lapierre, which was upheld on judicial review,” Love wrote in his February decision.

Section 109 of the Education Labour Relations Act mandates that only in “exceptional circumstances” may the deputy minister of Education renew an employee’s temporary status after two consecutive school years.

The 2013 Lapierre decision saw its adjudicator flesh out an interpretation of Section 109, and order the reinstatement and granting of permanent status to a temporary teacher.

In his July 2017 decision, Love noted that most of the “exceptional circumstances” being used to justify the extension of the grievors’ temporary employment status were in his view, “routine school staffing matters” like backfilling for maternity leave.

“S. 109 is an important employment standard for teachers in the Yukon,” Love wrote in his February decision to award damages.

“A declaration will not adequately address the wrong as the employer’s breach was deliberate, known and persistent.”

“It is disturbing,” he wrote, that the Yukon government has not followed the Lapierre precedent.

He found that the grievors dealt with a number of impacts, including:

• failure to receive benefits they were entitled to under the collective agreement;

• failure to be appropriately prioritized in selection processes;

• loss of opportunities; and

• being “left in a state of uncertainty about continuing employment.”

Individual employees may have been paid improperly, and substitute teachers didn’t have access to representation by the YTA, he noted.

The YTA, meanwhile, “has been put to the expense of relitigating issues that have been decided,” Love wrote.

“The employer’s actions are worthy of condemnation, which merits awarding general damages to the YTA and the grievors.”

Kate White, the NDP’s education critic, raised the February adjudication decision in the legislative assembly last month.

“When will this minister instruct her department to do the right thing and use these decisions as guidance instead of continuing to treat temporary employees in such a way that they continue to have to grieve their employment status?” White asked.

McPhee told the house that the government is complying with adjudication decisions.

“We also continue to work with the Yukon Teachers’ Association on a regular basis with respect to the issues around temporary teacher status and the permanent status of individual teachers.”

But Sherlock, the YTA’s vice-president, said the government has been less than forthcoming in its willingness to work on the temporary teacher situation with the YTA.

“We’ve been having a really hard time getting the employer to respond, even to emails, on these important issues,” she told the Star in an interview last month.

“Basically at this point, we are in a situation where we’re having to grieve.”

Sherlock said there are still temporary teachers who have been employed for more than two years without permanent status granted.

The union has already submitted another grievance for an individual in this situation, she added.

“YTA is just looking for fair and reasonable treatment of our members by Yukon government.”

In an interview with the Star last week, McPhee said all eight grievors involved in the July and February decisions have been given permanent status, and their damages have been paid out.

The department also reviewed employee files following the July decision “to make sure that we were complying with the ruling of the adjudicator,” McPhee said.

While the minister isn’t privy to the details of the specific grievance the YTA says it’s submitted, “people certainly are entitled to bring forward grievances if they think that they’ve been treated unfairly,” she said, and “of course the department will work with the YTA to try and resolve it.”

No one wants grievances to go to adjudication, McPhee said.

“That costs a lot of energy and a lot of time and a lot of money and what’s most important to us is that we have the most qualified teachers that work with our students.”

But more temporary teacher grievances could soon accumulate, according to YTA employment relations advisor Douglas Rody.

In a Tuesday interview, he said the government denied the YTA’s request to participate in the employee file review process.

“We have no visibility to what was actually done.”

The YTA doesn’t know if the review has wrapped up, and if all resulting employment status changes the department intends to make have been completed.

If so, Rody said, more temporary teacher grievances may be coming down the pike, as there are individuals whose permanent status has not been granted, as far as the YTA knows, where the association believes it’s deserved.

Jason Mackey, a spokesperson for the Department of Education, said this morning the employees involved in the file review had not signed releases for the YTA to access their confidential information.

As the department is required to protect this confidentiality, the YTA was not invited to participate in the review process.

“Over the last two school years, we have reviewed every employee file following adjudication decisions,” Mackey wrote in an email.

This has resulted in 62 teachers gaining permanent status and/or being deemed to have passed probation.

There are 632 teachers currently working in Yukon schools, Mackey said. Eighty-two are temporary teachers, and three have been working for more than two years.

For temporary teachers and the YTA, the stakes are high when it comes to the government’s compliance with Section 109.

As the NDP’s White pointed out in an interview last month, the tenuous employment situation of a temporary teacher could present challenges when it comes to something as fundamental as getting a mortgage or bank loan.

“How do you ask someone to set root in a community or invest in a community if they don’t have the guarantee that they have the ability to be there?”

Love also noted in his February decision that “at the very least, work provides structure and stability.

“The values of that structure, stability and fairness are at the heart of s. 109 of the ELRA – employees are to become permanent after two years, unless the circumstances are exceptional.

“There is a difference between being an indeterminate employee and a temporary employee in terms of economic and emotional stability.”

He also noted that “most of the grievors were left to languish in this temporary state for some time.”

And while the YTA will continue to grieve where necessary for its members, as Sherlock said it has a responsibility to do under the collective agreement, Love noted that re-litigating issues that have already been decided is a waste of YTA resources.

“The Yukon government should not be permitted to overwhelm the YTA on the issue of temporary teachers’ rights – it has far greater resources than a bargaining agent that is funded through dues.”