Termination Arbitration: Teacher to be Reinstated Following Dismissal for Blackface Costume

Editor’s Note: The facts giving rise to this grievance were not in dispute. The arbitration proceeded on the basis of an agreed statement of facts. 

Agreed Statement of Facts

Gorian Surlan (the Teacher) taught at Parkdale Collegiate Institute (the School) in the Toronto District School Board (the Board). He was born in Serbia in 1962. During the Bosnian War, he worked for the International Red Cross, and witnessed many atrocities, which had a deep impact upon him. In 1992, he moved to Canada to pursue a teaching career, becoming a member of the Ontario College of Teachers (the College) and obtaining qualifications in a number of disciplines including business studies, special education, librarianship, cooperative education and English as a second language. At the time of his discharge, he had been employed as a teacher for nineteen years, without incident.

During his employment with the Board, the Teacher took advantage of a program allowing for sabbaticals every five years. He taught in Nigeria for a year in 2012. His family accompanied him, and his daughter attended school there. He also taught in Vietnam in 2019. The Teacher had no discipline record prior to the events giving rise to his discharge.

On October 29, 2021, the Teacher came to school dressed in a Halloween costume – hastily assembled that morning with his daughter’s assistance. His daughter gave him some black make-up, so he decided to be something scary. He dressed in a black shirt, black pants, black shoes and painted his whole face black, putting a black fabric mask over his face in compliance with COVID-19 protocols at the time. His intention was to present a scary persona, like that of a zombie.

The Board had regularly offered resources and training to teachers on matters such as cultural appropriation and anti-black racism. Before Halloween, the School emailed teachers, reminding staff of the harm resulting from cultural appropriation when choosing a costume. 

At 8:30am, after arriving at the School, the Teacher encountered the School Principal, who noted that the Teacher was wearing a black sweater, black pants and a black mask resembling a hockey mask. She asked the Teacher what he was supposed to be, and he replied that he was a zombie. Shortly after, the Teacher encountered the Vice-Principal, who thought that he was wearing a Black Panther or Batman mask. Given the brief interactions, neither administrators realized that the Teacher’s face was painted black underneath the mask.  

The Teacher’s first class began at 9:00am. Before students arrived, he put on a blue medical mask underneath his black mask. As the class progressed, the Teacher found it difficult to breath through two masks, removed the black mask and continued to teach wearing the blue mask.

Students in the class took pictures of the Teacher. One student, who was shocked and upset that the Teacher was in blackface, texted photos to his parents. The Student later described the class as being in disbelief that their Business teacher, who on occasion discussed current events with the class, would wear blackface in school. When asked what his costume was, the Teacher replied, “I don’t know, a zombie or something scary.”

In addition to the Halloween celebration, the School hosted a ‘Where Everybody Belongs’ event the same day. Approximately 250 grade nine students attended the event. Several staff saw the Teacher during the event. None of them raised concerns to him about his costume. 

During the event, the Vice-Principal was approached by three students who said the Teacher was in blackface. One of the students showed a photo of the Teacher with his blue mask over his blackface. Two of the students were visibly upset; one was crying. The Vice-Principal investigated. 

After the event, the Teacher was called into the office. The Principal noticed that the Teacher’s face was painted black under his blue mask, and he was not wearing any other mask. She told the Teacher that students were upset at seeing him in blackface. The Teacher did not seem to understand the issue but apologized. He was asked if he was aware of the controversy over Justin Trudeau appearing as Aladdin in blackface. He said he was, but that he was not trying to depict any person, rather he was attempting to portray a zombie. The Teacher was told to wash his face and return to class, which he did.

 After the Teacher went home, he conducted some self education on anti-black racism and blackface. He was horrified to learn about the history of blackface and the implications of wearing black make up to cover his face.

The incident was later reported in multiple media outlets, resulting in swift reaction from the Parkdale community, including organized marches and protests. The Board received many calls from community members wondering how such an event could occur.

On October 29, 2021, the Teacher was placed on a leave of absence, pending investigation. The leave was converted to a paid suspension effective November 1, 2021, pending investigation. Investigators met with multiple witnesses and the Teacher, who expressed remorse over the incident. He did not know the significance of blackface when he donned his costume and was horrified that he traumatized students and staff when he had no intention to do so. The Teacher stated that he wished someone had approached him earlier to warn him that he would be “cosplaying a person of colour.” He regretted his actions, now knowing how offensive they were.

The investigation report concluded that the Teacher’s conduct was blameworthy, the Teacher’s intention was irrelevant, and the impact on people, their feelings, and experiences were paramount in the circumstances. Following receipt of the report, the Board terminated the Teacher’s employment on November 15, 2021. The termination decision was made by the Superintendent of Employee Services together with Board leadership. They concluded that the Teacher knew or ought to have known that his conduct was contrary to Board policy and the impact of his behaviour on the School community was severe, long lasting and irreversible. The termination letter described the Teacher’s conduct as racist.

Following the decision, in accordance with its obligations under the Ontario College of Teachers Act, the Board reported the termination to the College, which found that the Teacher’s misconduct warranted some penalty. The College recommended that the Teacher complete an individualised course of study on anti-black racism and blackface. The Teacher completed the course in June 2023. In October 2023, upon confirmation of course completion, the Teacher’s status was restored to good standing.

Cause of Action

The Ontario Secondary School Teachers’ Federation (the Union) grieved the Teacher’s termination on the basis that the Teacher was unjustly discharged from his employment, contrary to the collective agreement between the parties. The grievance proceeded to arbitration.

The Board maintained that it had just cause to terminate the Teacher’s employment in the circumstances of the case. Given the reaction of students and the community to the Teacher’s costume, the Board submitted that discharge was the appropriate response.

The Union did not dispute that the Teacher’s misconduct in wearing the costume was culpable and deserving of discipline but argued that termination was excessive in the circumstances.

Legal Issue

The legal issue was whether termination of the Teacher’s employment was the appropriate penalty in the circumstances and, if not, what penalty should be substituted by the Arbitrator. 

Arbitration Award

The Arbitrator awarded that the penalty of discharge be rescinded, and the Teacher be reinstated forthwith, without loss of service or seniority. The Teacher was to be compensated for wages and benefits lost from October 1, 2023. The Arbitrator remained seized to deal with any difficulties in implementing the award.  

Reasons

Costume was Culpable Misconduct Justifying a Disciplinary Response

The parties agreed that the Teacher’s conduct in appearing at school in a costume that included blackface was conduct justifying a disciplinary response. The Teacher’s conduct was described as a racist incident under the Board’s policy, even though no harm was intended. The impact of the conduct in the context of present-day societal norms had to be considered in order to determine whether the conduct was culpable and justified discipline.

Each case must be determined by the particular circumstances. In this case the Teacher, by dressing up in blackface, caused a great deal of upset in the school community. The Arbitrator affirmed that the act of wearing the costume constituted culpable misconduct and the Teacher should have been more aware. Given the impact, a significant penalty was justified.

A Higher Standard for Teachers

Arbitral authorities recognize that teachers who are responsible for educating young students must be held to a higher standard than most other employees when considering culpable misconduct. While the Board argued that intent was irrelevant in the context of racism, in the Arbitrator’s view, intent was still relevant in determining whether the misconduct was so egregious that the employment relationship could not be saved.

The Arbitrator noted that many of the authorities relied upon by the Board dealt with misconduct that was more overtly egregious than the misconduct in this case. Termination of employment should only be implemented as a last resort in circumstances where the employment relationship cannot be rehabilitated.

Appropriate Case for Reinstatement

The Arbitrator could not ignore that once the Teacher realized his costume was upsetting, he was horrified that he had not been aware of the issue and apologized for his actions with contrition. The Teacher had long service with

the Board with no prior discipline. A significant suspension would likely have had the desired effect of ensuring that the Teacher would be more aware of the cultural sensitivities present in a diverse community and unlikely to commit such misconduct a second time. In this case, there was no reason to conclude the employment relationship was incapable of rehabilitation.

Ontario Secondary School Teachers’ Federation v. Toronto District School Board, 2025 CanLII 80365 (ON LA) (Ontario Labour Arbitration Awards).

Authored by Anna Zadunayski LLB, MSc.