Robert Smithson's Legal Ease - Employees Cannot Dictate Duties

EMPLOYEES CANNOT DICTATE DUTIES

Over the past few months a battle has been fought in B.C. between the Teachers Federation and the Public School Employers’ Association over the application of province-wide standardized testing. The BCTF assembled broad support amongst its members for its refusal to administer the tests to B.C. students.

As this dispute has evolved, many people have asked me, “How can the teachers get away with this?”. The simple answer is that they cannot. They do not have the authority to dictate to their employer, the PSEA, what duties they will and will not perform.

The tests in question are known as “Foundation Skills Assesement” or “FSA” tests. They are administered province-wide to students in grades 4 and 7. The BCTF took issue with a number of aspects of the testing and its results.

The BCTF said the tests “drain much-needed time and resources away from teaching and learning”, are “unfair”, do “not help students learn”, and “are not an accurate measure of student progress”. They objected that the results are used to rank schools and argued that they erode confidence in public schools.

The BCTF directed its members not to administer the test. In the face of this stance, the PSEA applied to the B.C. Labour Relations Board to compel the teachers’ performance of their duties.

The PSEA’s view was that the assessment and evaluation of students is a core duty of teachers. The PSEA submitted to the LRB that the teachers are legally bound by their collective agreement and that their refusal to perform their duties constituted an unlawful declaration and authorization of a strike.

The issue of the FSA tests has been a long-running point of contention between the PSEA and the BCTF. In 2002, the B.C. Labour Relations Board issued a decision in which it concluded that the administration of the FSA tests was work which the teachers were required to perform.

The LRB has now, again ruled on the issue, finding that the teachers’ supervision of the FSA tests is “prima facie work which teachers are obligated to perform”. It ordered the BCTF to cancel its direction to teachers not to administer/supervise the FSA tests and to cease and desist from directing giving that direction in the future.

The LRB’s order was filed in B.C. Supreme Court. As a result, the BCTF’s failure to comply with the order would surely lead to monetary fines and possibly other forms of punitive sanctions.

Ultimately, how the teachers feel about the FSA tests, their results, and the impact they have on students and the school system is largely irrelevant to the question of whether they are obligated to administer the tests. Unionized and non-unionized employees alike are free to disagree with their employers’ activities and decisions but that doesn’t empower them to refuse to perform their job duties.

There are, of course, limitations on what an employer can and cannot compel its employees to do. Directions to perform activities which are illegal or are inherently unsafe or which are contrary to the contents of a collective agreement are obvious examples of the outer boundaries of so-called “management rights”.

None of this is to say that the teachers’ refusal to administer the standardized tests was a waste of time. The entire process attracted attention to the ongoing question of the value and validity of the tests.

It has sparked public debate on a topic which is clearly near and dear to the hearts of this province’s teachers. Whether you agree with their stance is a decision which is likely very personal to you and your family.

While the BCTF’s bid to gain freedom from the supervision/administration of these mandatory tests ultimately failed, it certainly succeeded in keeping the debate about this matter of public concern alive. So, while the BCTF’s members will be compelled to perform their duties, they have surely achieved their political objective of keeping the merits of the FSA tests in the public limelight.

Robert Smithson is a partner at Pushor Mitchell LLP in Kelowna practicing exclusively in the area of labour and employment law. For more information about his practice, log onto www.pushormitchell.com. If you have a labour or employment question for him to answer in a future “Legal Ease”, email him at [email protected]. This subject matter is provided for general informational purposes only and is not intended to be relied upon as legal advice.