The New Brunswick Department of Education and Early Childhood Development violated its duty to enforce workplace safety measures, resulting in repeated physical harm to school staff at the hands of a student with development disabilities, according to an arbitrator.
The decision, issued by Arbitrator Trisha Perry, highlights the tension between inclusive education mandates and the employer’s responsibility to maintain a safe, violence-free workplace for its employees.
Physical, verbal aggression from student
The case centred on a student with severe and complex developmental disabilities, including Autism Spectrum Disorder (ASD) and Fetal Alcohol Syndrome Disorder (FASD).
Over a prolonged period, the Student engaged in frequent and escalating physical and verbal aggression, including hitting, kicking, spitting, biting, and threatening staff. Despite various interventions, the ruling found the employer’s efforts insufficient to prevent harm to employees, all of whom had a right to a safe work environment under both the Occupational Health and Safety Act (“OHSA”) and the employer’s own safety policies.
“This grievance raises the important legal and practical implications of balancing our inclusive public education system…with employee rights to a healthy, safe, positive, and violence-free work environment,” wrote Arbitrator Perry. The arbitrator noted the obligation to provide inclusive education does not override the employer’s duty to protect workers from violence. While acknowledging the societal value of inclusive education, the ruling concluded the harm suffered by employees significantly outweighed the educational benefits in this situation.
Dozens of violent incidents
In her reasons, Arbitrator Perry found the employer had access to extensive data documenting the Student’s behaviours, including dozens of violent incidents. Nevertheless, the measures taken were not sufficient to mitigate the ongoing violence. Employees, including the school’s principal and a resource teacher, were hit, pinched, threatened, and subjected to sexually inappropriate touching. The arbitrator noted these events were not isolated but repetitive and severe.
Key policies at issue included Policy 703, which aims to foster positive learning and working environments free from violence and harassment, and Policy AD-2708, intended to prevent workplace violence. Although the policies contemplate that students with exceptionalities may require special interventions, the arbitrator concluded the safety of educators and staff remained paramount.
“While inclusion is a commendable objective,” the decision stated, “the Student was unable to participate meaningfully…therefore, I believe the harm suffered cannot be justified and certainly cannot be outweighed by the value derived from the Student’s learning experience.”
Employer failures
The arbitrator attributed the unsafe conditions, in part, to the employer’s failure to provide early and adequate information about the Student’s known behaviours before their arrival at the school. This lack of preparation prevented the school from implementing timely, suitable measures, training, or staffing adjustments. Although external support in the form of behavioural leads, data tracking, and partial day plans occurred, the relief was temporary and insufficient.
Another factor was the unclear and inconsistent approach to balancing the Student’s right to education and staff safety. The employer’s reliance on shifting demands and short-term interventions, without a robust, long-term strategy, left employees vulnerable.
The ruling criticized the notion that staff responses — such as recoiling when threatened — contributed to ongoing violence, recognizing that these were trauma-based reactions rather than deliberate failures to follow instructions.
School leadership not primarily responsible: Arbitrator
Crucially, the arbitrator rejected the suggestion that school leadership was primarily responsible for the conditions. Instead, the decision affirmed the broader duty of the employer to ensure a safe workplace. The ruling found the employer should have explored steps beyond simple redirection techniques, such as delivering educational services to the Student in an alternate setting when persistent violence placed teachers and staff at risk.
The outcome awards damages to two employees directly referenced: the Principal and the Resource Teacher. Both suffered harm that the arbitrator tied directly to the employer’s failure to uphold its safety obligations.
Special damages
The Principal, who retired early due to the workplace environment and subsequent blame placed upon her, was awarded special damages equal to what she would have earned working until June 2024. She also received general and aggravated damages. The Resource Teacher was similarly compensated with general and aggravated damages. These awards underscore the consequences employers may face when failing to protect staff.
This decision highlights that employees need not accept violence as “part of the job.” The arbitrator stressed that the normalization of violent incidents in an educational environment is unacceptable. The employer’s responsibility is proactive, requiring “every reasonable precaution” under the OHSA. Failure to take meaningful action can result in substantial liability.
This ruling also confirms that even in unique and challenging scenarios, the framework of occupational health and safety laws applies, and employees retain their rights. Organizations should ensure they are familiar with relevant legislation, such as the OHSA, and aligned policies to mitigate risk, provide training, and foster supportive partnerships with external stakeholders when needed.
In short, while recognizing the right to inclusive education, this arbitration decision sends a strong message that employee safety cannot be compromised. Employers, including school authorities, must maintain standards that protect staff from ongoing violence and ensure a healthy working environment. Anything less may result in legal repercussions and financial penalties, as seen in this case.
For more information, see New Brunswick Teachers’ Federation v New Brunswick (Finance and Treasury Board) (Department of Education and Early Childhood Development), 2024 CanLII 124417 (NB LA).
