Contract provision providing for the temporary appointment of a substitute teachers held a waiver of the educator’s statutory entitlement to a permanent appointment
Decisions of the Commissioner of Education, Decision 10918
The relevant collective bargaining agreement provided that a temporary appointment was to be made when a substitute teacher was to be so employed for more than 40 consecutive days.
When the teacher for whom she was substituting died, the School Board, at the request of the Union to fill the position in accordance with the terms of the CBA, “temporarily appointed” the substitute teacher to the vacancy.
The substitute was subsequently notified that she was not under consideration for permanent appointment. She sued contending that she was a probationer in the vacant position “by operation of law”.
Following a series of administrative and Court proceedings, the question was remanded to the Commissioner of Education for further consideration.
The Commissioner, in considering the merits of the teacher's appeal, held that although the Board has no authority to make other than probationary appointments to fill permanent vacancies, a teacher may waive the statutory entitlement.
The Commissioner then found that the CBA provision, with which the Board had complied at the request of the Union, provided for a “temporary appointment.” Accordingly, the Commissioner concluded that the CBA’s provision constituted such a waiver and the substitute teacher could not challenge the School Board’s appointing her as a temporary teacher rather than as a permanent appointee subject to the satisfactory completion of a probationary period under the circumstances.