HomeMy WebLinkAbout2005-1927.Rodrigues.07-04-11 DecisionCrown Employees
Grievance Settlement
Board
Suite 600
180 Dundas St. West
Toronto, Ontario M5G 1Z8
Tel. (416) 326-1388
Fax (416) 326-1396
Commission de
règlement des griefs
des employés de la
Couronne
Bureau 600
180, rue Dundas Ouest
Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
Téléc. : (416) 326-1396
GSB# 2005-1927, 2005-1928
UNION# 2005-0528-0002, 2005-0528-0003
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Rodrigues) Union
- and -
The Crown in Right of Ontario
(Ministry of Labour) Employer
BEFORE Richard Brown Vice-Chair
FOR THE UNION Gavin Leeb
Barrister and Solicitor
FOR THE EMPLOYER Sean Kearney
Senior Counsel
Ministry of Government Services
HEARING August 14 & 15, September 15,
November. 3, 24 & 27, December 20, 2006;
March 22 & 29, 2007.
2
Decision
Maria Rodrigues grieves the termination of her employment as a Worker Advisor representing
injured workers with compensation claims. The evidence in this case, comprised of 76 exhibits
and several days of testimony, is summarized below.
I
The grievor’s employment began in January of 1986 and ended in September of 2005. The
termination letter is dated September 15, 2005 and signed by Mary Tzaferis, regional manger for
the Office of the Worker Advisor. It states:
As you are aware, a meeting was held with you and your union representative on August
12, 2005. This meeting was held in order to provide you with an opportunity to address
concerns that were raised with you in my letters dated: April 23, 2004, June 10, 2004,
July 29, 2004, August 24, 2004, September 22, 2004 and June 14, 2005 (copies attached).
The concerns raised were related to: 1) your failure to contact me regarding information
requested on the Lekhanh Hang file; and 2) my review of your work performance for the
period December 1, 2003 to March 31, 2004.
During our meeting of August 12, 2005, you advised me that it was not possible to
provide a response to the concerns raised, as you did not have access to the files that were
named in my letters. As a result, we agreed that I would provide you with the files and
that a detailed written response would be forwarded to me by August 26, 2005. A
subsequent extension to September 2, 2005 was provided, as it was necessary for you to
be absent from the office for a total of five days due to an accident that your daughter was
involved in.
Although you provided me with a response for the issue regarding your failure to contact
me about the Hang file on August 12, 2005, you have not provided me with any
information on the review of your work performance.
I am advising you that I have determined that you have failed to provide me with a
plausible reason or explanation for failing to meet the Ministry's standards and
expectations of your position. Your performance as an experienced worker adviser has
been substandard and I have found the handling of your case files and clients to be
grossly negligent.
In spite of the accommodation that has been provided to you, including several
adjustments to the work plans, scheduled meetings to review your progress and identify
problem areas, you continue to be unable to fulfill the duties of your position. In addition,
you continue to disregard my direction to you when time off is requested, and continually
fail to arrive at work in a timely manner, or advise me when you will be late. You
3
frequently fail to request prior approval for vacation, although you are well aware of this
requirement, with the latest example of this occurring on September 13th and September
14th, 2005. These issues have been discussed with you numerous times. My expectations
for the required level of job performance was clarified for you on several occasions and
you were also provided with materials outlining minimum standards required to perform
this job. Throughout this process, you were notified that failure to improve your
performance would lead to discipline, up to and including dismissal.
Once again on September 13 and 14, 2005, you failed to follow the protocol to advise me
of your vacation and you are well aware that prior approval is required.
Maria, you will recall that in March 2003 it was necessary to discipline you for failure to
appropriately fulfill your duties resulting in a 15-day suspension.
Following March 2003, performance concerns have been brought to your attention and
these concerns have been raised with you in writing on the following dates: September 2,
2003 December 5, 2003, January 6, 2004, January 30, 2004, February 16, 2004, February
27, 2004, March 10, 2004, April 23, 2004, June 10, 2004, July 29, 2004, August 24,
2004, September 22, 2004, June 14, 2005 (attached).
Due to the serious consequences for the clients that you and the Office of the Worker
Adviser are responsible for representing and your failure to meet the minimum
requirements of your position, by the authority delegated to me it is my decision that you
be dismissed for cause pursuant to Section 22 (3) of the Public Service Act, effective,
Thursday, September 15, 2005.
This letter mentions several earlier ones sent to Ms. Rodrigues. All of the letters
referenced in the first paragraph deal with either the Hang file, the grievor’s performance
between December 1, 2003 and March 31, 2004, or both of these subjects. Additional letters are
mentioned in the penultimate paragraph. The letter dated September 2, 2003 deals with her
performance between May 7 and August 11, 2003. The letter of January 6, 2004 addresses
performance issues arising between August 11 and November 30, 2003. All of the other letters
cited in the penultimate paragraph deal with events occurring between December 1, 2003 and
March 31, 2004. The termination letter itself refers an incident that occurred on September 13
and 14, 2005, the days immediately preceding the issuance of this letter. In short, the employer
relies upon events occurring between May 7, 2003 and the date of dismissal.
II
Ms. Rodrigues has been an insulin-dependent diabetic for the last two decades. She testified this
condition increases her vulnerability to colds and other illnesses. In the summer of 2002, she was
diagnosed as having what she described as a “potentially fatal” disease. She took sick leave on
4
and off through the fall of 2002, including most of November. When she attempted to return to
work in December, the employer rejected the medical documentation provided by her and she
remained off work for a few more months.
While on sick leave, she received a letter, dated March 6, 2003, imposing a twenty-day
disciplinary suspension. The reasons for discipline stated in the letter are: “likely” failing to meet
time limits for filing appeals in four cases, including the Hang file, and not providing an
explanation when asked to do so; committing errors or omissions in handling files; failing to
docket activities on the computerized case management system (CMS): allowing too much delay
in handling files and communicating with clients. The suspension was reduced to fifteen days as
recorded in a memorandum of settlement dated April 25. As a result of the settlement, the
grievor incurred no wage loss because the employer agreed, “to waive the serving of the fifteen
day suspension.”
The settlement also contained the following provisions about the grievor’s return to work:
The Employer agrees that upon the Grievor's return to work, the Grievor will be given a
case load of 30 active full representation files. The number of active full representation
files will gradually increase to 60 within three months of the Grievor's return to work
date.
The parties agree that the reduction of the case load to 60 active full representation files
satisfies the accommodation for the restrictions stipulated in the aforementioned medical
report. Considering that one of the Grievor's disabilities is permanent, the Employer
agrees to keep the case load at 60 active full representation files.
The parties agree that the Grievor will meet with the manager or designee on a bi-weekly
basis for a period of three months and once a month for a period of three months, and
once every two months for a period of six months to discuss work plan, performance
standards, performance goals, case loads, and accommodations, including medical
information and restrictions relating to medical disabilities.
The Employer agrees that the Grievor would be allowed to participate in committees after
one year and subject to the Grievor meeting all performance objectives of a worker
adviser.
The Grievor agrees to abide by Article 44 of the OPSEU collective agreement to account
for any absences.
The Grievor agrees to notify the manager/designee of her whereabouts when she is not in
the office during normal working hours.
The Grievor will obtain prior approval from her manager or designee for any vacation
time or time off for any other reason. …
5
May 7, 2003 was the first day worked by Ms. Rodrigues after this settlement was
negotiated. Between May 7, 2003 and March 31, 2004, Ms. Rodrigues worked under a series of
the three work plans signed by her and Ms. Tzaferis.
III
The first plan, covering the period between May 7 and August 11, 2003, called for Ms.
Rodrigues do a number of things normally required of a worker advisor. These included:
• completing merit review files within thirty days
• obtaining proper retainers for all full representation files;
• completing one activity on each file every two months
• meeting time limits and providing evidence they have been met
• returning telephone calls within 24 hours
• docketing activities in CMS
• providing attendance records
• retrieving voice message retrieved and the message box is not full
• notifying the manager of one’s whereabouts when not in the office during normal
working hours
• obtaining prior approval for time off
• using technology to word process correspondence
According to the first plan, the grievor’s caseload of full representation files was to begin
at 30, to increase to 45 files on June 9 and to reach 60 on July 14. The norm for worker advisors
is 60 to 75 according to published workload standards.
The plan exempted the grievor from duties relating to education and community
partnerships. The plan also established a goal for the number of files to be closed (1), objection
forms to be filed (2 per month), submissions to be made (2 per month) and decisions to be
received (1 per month). As described in greater detail below, each of these goals was set below
the standard normally expected of a worker advisor.
The grievor’s performance under the first plan was reviewed when she met with Ms.
Tzaferis on August 12, 2003. The results of that review are set out in a letter dated September 2,
2003 which is cited in the letter of termination. The pertinent part of the letter states:
A review of the work plan that was agreed to has resulted in the following outcomes:
• You have provided advice, assistance and early intervention services as assigned.
This goal has been met.
• You have completed the merit review of assigned files within 30 days However,
the status of all the files have not been changed on CMS nor have you docketed
activities for all these files on CMS. This goal has not been met.
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• As of Aug. 12, 2003, you have 47 full representation files assigned to you.
However, not all files have proper retainers nor do they have at least one activity
docketed on CMS. These goals have not been met.
• You have closed 1 file. This goal has been met.
• You have submitted 5 objection forms. However, you were to have submitted 6
objection forms. This goal has not been met.
• You have produced 1 submission to the operating level. However, you were to
have produced 6 submissions. This goal has not been met.
• You have submitted 0 decisions. However, you were to have generated 3
decisions This goal has not been met.
• You have delivered 1 information session on July 14, 2003. I understand from
you that this went well and that you enjoyed doing this session.
…
While I recognize that your absences due to vacation and sick leave may have prevented
you from reaching your full potential, I am concerned that you have not been able to meet
the minimum goals that were established through the work plan.
Addressing the consequences of the grievor’s shortcomings, Ms. Tzaferis ended the letter
by saying:
In response to your inability to meet most of the goals that were established in the
previously agreed to work plan, we have now developed a revised work plan. …
I must advise you that you have an obligation to meet the goals that have been agreed
upon and that failure to do so may lead to serious consequences, such as disciplinary
action, including dismissal.
The table below shows the number of activities a worker advisor is normally expected to
complete in a year. These numbers are taken from a document entitled Workload Standards,
except for the standard of 75 submissions about which Ms. Tzaferis testified. Also shown is the
goal set for the grievor during the three-month term of the first plan along with what she actually
accomplished.
Standard (Annual) First Plan (3 Months)
Goal Achieved
Files Closed 50 1 1
Objections 50 6 5
Submissions 75 6 1
Decisions 70 3 0
7
IV
The second plan, for the period from August 11 to November 30, 2003, was the same as the first
in most respects, but there were three significant alterations. The grievor was relieved of duties
relating to advice, assistance and early intervention. (The plan included these tasks but Ms.
Tzaferis testified the grievor did not do them.) An interim deadline of August 30 was established
for Ms. Rodrigues to review 50% of her full representations files and to obtain retainers for 50%
of those files. Higher numerical goals were set for objection forms to be filed (4 per month),
submissions to be made (5 per month) and decisions to be received (3 per month).
The grievor’s performance under the second plan was reviewed when she met with Ms.
Tzaferis on December 9, 2003. The results of that review were set out in a letter dated January 6,
2004 which is cited in the termination letter. The first matter addressed by Ms. Tzaferis in the
January 6 letter is an e-mail she received from the grievor dated December 9. The pertinent part
of the e-mail states:
As you know you as a manager have discriminated against me since I returned from
maternity leave in 1997. Your harassment of me continues, including the fact that you
made the decision and told Victoria to ensure that I was not paid sick days after a
Mediated Settlement was reached at the GSB earlier this year. You continue to
discriminate against me based on various grounds including, union activity. …
It is my belief that you derive pleasure from ensuring that I do not receive proper
pay (this has been an issue throughout the year).You violate Article 2 of the CA on a
daily basis. The fact that I have a disability and two young children to support seems to
give you more reason to ensure that you continue to discriminate against me.
You are a very judgmental and unreasonable person in your dealings with me. It
is quite apparent that you will always discriminate against me no matter what and you do
your utmost to attempt to destroy my health and my reputation on a daily basis. …
Ms. Tzaferis characterized this letter as “absolutely unacceptable, disrespectful and bordering on
insubordination.”
The letter of January 6 also contains the following general review of the grievor’s
performance:
We agreed that during this period you were not in full attendance due to unpaid leaves,
vacation and sick days. Your attendance for this period was reviewed and it was
determined that the total number of days worked came to approximately 33 days, or 6
weeks and 3 days. Or 1 and ½ months. As a result, we agreed that your total number of
days worked would result in a reduction in the objectives set for
the following:
• number of objection forms sent per month
• number of submissions completed per month
8
• number of decisions generated per month A review of the commitments set out in
your Return to Work Performance Development Plan was completed and the
following is a summary of your achievements:
Full Representation Files: During the period August 11, 2003 to August 30, 2004 you
were to ensure that 50% of your FR files had proper retainers and authorizations. This
objective has not been met. Also, you were to ensure that 50% of your FR files had a file
review completed. This objective has not been met.
Merit Review Activities: All merit review activities were to be completed within 30 days
of the date that the file was assigned as a merit review. During this review period there
were 7 Merit Review (MR) files that were not completed within 30 days. It is important
to note that no MR files were assigned to you while you were on an unpaid leave and/or
vacation. This objective has not been met. You agreed to complete the follow up and the
merit review activities according to OWA procedures by Friday, December 12, 2003, on
the following 7 MR files: Z. Berthe, C. Eyre, A. Gallace, R. Hannouche, D. Nugent, L.
Power, B. Wojciechowski.
Full Representation Services: You acknowledged that the number of FR files assigned to
you have been kept below 60 FR and as of November 30, 2003 you had 55 FR files.
• We reviewed 21 FR files and it was determined that these files did not have
proper retainers. This objective has not been met.
• You agreed to follow up on these 21 FR files and obtain proper retainers by
Friday, December 12, 2003. You also agreed to obtain proper retainers on all of
your FR files by Friday, December 19, 2003.
• You were responsible for ensuring that there would be at least 1 activity docketed
every 2 months for all FR files. A review of 21 FR files revealed that there had
been no activity on these files for approximately 4 months. This objective has not
been met.
• You were responsible for ensuring that clients receive a timely response. I have
made you aware of complaints from your clients and the delays they have
experienced because you have not returned calls or taken further action on their
appeals. Also, these were at least 2 occasions when your c1ients were asked to
wait because you were late arriving for scheduled appointments. This objective
has not been met.
• We reviewed the need for ensuring that each FR file have a CMS Bring Forward
(BF). You agreed to continue to work on this and have confirmed that you are
aware of these OWA procedures.
• You have closed 2 files. This objective has been met.
• You have submitted 4 objection forms during this review period. We agreed that
taking into account the number of days worked, this objective has been met.
• You have completed 8 submissions during this review period. We agreed that
taking into account the number of days worked, this objective has been met.
• You have generated 4 decisions during this review period. We agreed that taking
into account the number of days worked, this objective has been met. You have
confirmed to me that all your decisions have been recorded on CMS.
9
Office Communication and Teamwork: These commitments were reviewed and brought
to you attention.
• You were responsible for providing your monthly attendance record to the
manager by the 6th day of each month for the previous month. This objective has
not been met. As a follow up, you agreed to provide me with your attendance for
the month of November 2003 by December 10, 2003.
• You were responsible for retrieving messages and clearing messages to ensure
that your voice mailbox was not full allowing clients to leave messages for you.
This objective has not been met.
• You were responsible for providing your manager with the required CMS
monthly stats by the 6th day of each month for the previous month. This objective
has not been met.
• You were responsible for notifying your manager or designee of your
whereabouts when not in the office during working hours. There were a number
of occasions when you indicated to me or other administrative staff that you were
on your way into the office and then did not come into work. These situations
created difficulty for staff and our clients. This objective has not been met.
• You were responsible for obtaining prior approval from your manager for any
vacation time or unpaid leave time. There have been a number of occasions when
your request for time off was made on the day that you wished to take the leave. I
would like to confirm for you that I do not consider this to be requesting prior
approval. These situations created difficulty for staff and our clients. This
objective has not been met.
I recognize that requests for absences for vacation, unpaid leaves, and sick leaves, which
I have approved, may have prevented you from reaching your full potential. However, I
would like to point out that in spite of my commitment to provide the requested
accommodation stipulated in your doctor’s medical note of January 29, 2003, which
requires that your caseload be limited to 60 active full representation files, you continue
to fail to meet the minimum goals. We established these minimum goals and you agreed
to them. In addition, we made further adjustments to the return to work plan in order to
assist you.
Addressing the consequences of the grievor’s shortcomings, Ms. Tzaferis ended the letter
by saying:
In response to your inability to meet most of the performance standards and goals
established in previously agreed to work plans, another revised work plan has been
developed. This latest plan to which you have agreed covers the period from December 1,
2003 to March 31, 2004. A copy of this new work plan was provided to you on
December 17, 2003.
I must advise you that should you fail to meet any of the performance goals set out in this
work plan, which covers the period from December 1, 2003 to March 31, 2004, may lead
to disciplinary action up to and including termination of employment.
10
There were 77 work days—i.e. days other than weekends and holidays—during the term
of the second plan. As noted in the foregoing review of the grievor’s performance, she worked
only 33 of these days and was absent on the remaining 44—on sick leave, vacation or union
leave. In other words, she was absent on approved leave 57% of the time.
For the activities with numerical goals, the table below shows the number of activities a
worker advisor is normally expected to complete in a year, the goal set for the grievor during the
three-month term of the second plan and what she actually accomplished during that time. An
“*” indicates the employer agreed the goal had been met, taking into account the based on
number of days worked by the grievor:
Standard (Annual) Second Plan (3.5 Months)
Goal Achieved
Files Closed 50 1 2
Objections 50 14 4*
Submissions 75 16.5 8*
Decisions 70 10.5 4*
V
The third plan, for the period from December 1, 2003 to March 31, 2004, was the same as the
second in most respects, but there were two significant alterations. The grievor was required to
attend at work each day “for full regular hours.” There was also an increase in the numerical
goals: files to be closed (2 per month), objections to be submitted (5 per month), submissions to
be made (6 per month) and decisions to be received (5 per month).
An interim review of the grievor’s performance under the third plan was conducted at a
meeting with Ms. Tzaferis on January 19 as recorded in an e-mail written the same day. At that
time, the grievor had 53 full active representation files and 35 of them still lacked proper
retainers. She was directed to obtain retainers for these files by January 31. Also on January 19,
she was directed to take action by the end of the day to meet time limits in two cases (McQuade
and Reinert) and she was directed to close two files (Singh and Tsadik) by January 31.
Another interim review was conducted on February 11 and described in a letter dated
February 16. This letter is attached to the termination letter. The letter of February 16 recounts
the grievor’s failure to comply with the directions she received on January 19:
Time limits on 2 FR files (McQuade and Reinert) to be met by the end of the day on
January 19, 2004:
11
McQuade File: A review of the CMS on January 20, 2004 confirmed that no
action had been taken. Therefore, it was necessary for me to have another staff
member complete the necessary action in order to ensure that the time limit was
met.
Reinert File: A review of the CMS on January 20, 2004 confirmed that no action
had been taken. Therefore, it was necessary for me to have another staff member
forward the required forms to the injured worker (IW) to obtain the necessary
signatures. Once the signed forms were returned by the IW, it was your
responsibility to submit them to the tribunal. When I asked you if follow-up had
been completed, you confirmed with me that the time limit had been met.
However, when we met on February 11, 2004, a review of the file revealed that
the signed forms had not been sent to the Tribunal. I am extremely concerned
about your persistent failure to follow OW A procedures regarding appeal time
limits. Your previous failure to meet time limits harmed the interests of several
injured workers and also put the OWA at serious risk of legal liability. You have
also misled me about the Reinert case by stating that you had met the time limit
when in fact you had not.
Action: You have agreed to submit the completed NOA and attachments to the
Tribunal before the end of the day on February 11 , 2004. Please confirm that this
action has been completed.
FR files to be closed by end of day on January 31, 2004.
This has not been completed.
Action: Ensure that action is taken to close these files (G. Singh and W-Tsadik)
by Friday, February 27, 2004. Please confirm that this action has been completed.
Retainers for each of your FR Files [to be obtained] by January 31, 2004:
The review [on January 19] confirmed that there were 35 FR files identified
without a retainer. On February 11, 2004 we reviewed those 35 FR files and it
was clear that you had requested retainers on 13 of the files, on or about February
4, 2004. However, 22 files for which retainers were to be requested are still
outstanding.
Action: Ensure that action is taken to request retainers for the remaining 22 files
that are outstanding by February 27, 2004. Please confirm that this action has
been completed.
The grievor’s performance during the entire term of the third plan was reviewed at a
meeting with Ms. Tzaferis on April 2, 2003. The results of that review are set out in a letter dated
April 23, 2004 which was cited in the termination letter. This letter describes a number of
incidents occurring during the term of the third plan:
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• Two occasions in December of 2003 when the grievor arrived late for meetings with
clients.
• An incident on January, 28, 2004 when the grievor pointed her finger at Ms. Tzaferis,
accused her of harassment and threatened to sue her. (An e-mail dated January 30 about
this event is also attached to the termination letter.)
• An occasion in March when the grievor was more than fifteen minutes late for a hearing.
• Complaints by seven clients about their phone calls not being returned.
• A complaint from an Appeals Resolution officer who had been unable to contact the
grievor after making several attempts.
The letter of April 23 contains the following comprehensive review of the grievor’s
performance of the tasks assigned to her during the term of the third plan:
Merit Review Activities: All merit review (MR) activities were to be completed within
30 days of the date that the file was assigned to you as a MR. A total of 8 MR files have
not been completed within the 30 days. This includes 3 MR files, which were to have
been completed by January 31, 2004, and 5 MR files, which were to be completed by
February 27, 2004, however, are still not completed as of April 2, 2004. This objective
has not been met.
Full Representation Services: You acknowledged that, the number of full representation
(FR) files assigned to you have been kept to a minimum of or below 60 FR files in order
to allow you to concentrate on meeting your performance objectives. You had
approximately 53 FR files during this review period and agreed to ensure that:
• all FR tiles assigned to you have proper retainers and authorizations and are
properly organized according to OWA procedures.
There are still 24 FR files without proper retainers, which were to have proper
retainers by January 31, 2004, and 4 FR files that were to be closed by February
27, 2004. This objective has not been met.
• at least one activity every 2 months would be docketed on CMS and the CMS
entries kept up to date.
There are approximately 12 files with no activities for more than 6 months. This
objective has not been met.
• evidence confirming that time limits have been met not documented.
This objective has not been met.
• timely responses to all telephone calls are made within 24 hours.
This objective has not been met.
• timely responses to all written correspondence is completed.
This objective has not been met.
13
• CMS BF's are current for all your FR files.
An example where this has not been done would be the hearing that was set for
March 31, 2004. You did not enter a CMS BF at the time you were notified of the
hearing date. This objective has not been met.
• all hearing activities are recorded on CMS in the hearing screen.
An example where this was not done would be the hearing set for March 31,
2004. You did not enter this hearing on CMS in the hearing screen at the time you
were notified of the hearing date. This objective has not been met.
• all decisions, submissions and closure activities are recorded on CMS in the
decision screen.
This objective has not been met.
• at least 8 files would be closed during this review period.
You closed a total of 1 file. This objective has not been met.
• at least 20 objection forms would be submitted during this review period.
You submitted a total of 3 objective forms. This objective has not been met.
• at least 24 submissions would be completed and submitted during this review
period.
You completed a total of 2 submissions. This objective has not been met.
• at least 20 decisions would be generated during the review period.
You generated zero (0) decisions. This objective has not been met.
…
Use of Technology: You agreed that you would use the technology available to you to
word process correspondence, complete administrative tasks, complete corporate tasks
and all required duties as per your job description. However, you continue to hand write
correspondence addressed to clients, the Workplace Safety and Insurance Board (WSIB)
and the Workplace Safety Insurance Appeals Tribunal (WSIAT). You also continue to
require assistance to record your attendance in WIN. This objective has not been met.
Office Communication and Team Work: You agreed to attend work on a regular daily
basis. During this review period you have been away 11 days due to illness. In addition to
your absences, there have been several occasions when you have been late for work. In
some instances, you called the office to inform us of your arrival time; however, you
arrived later than the indicated time without explanation. In other incidents you have
14
indicated to me or other administrative staff that you were on your way into the office,
however, you did not arrive at work and provided no explanation for your absence.
There have been incidents while you were participating in the Work at Home
arrangement that is available to all Worker Advisers when it was necessary to contact you
at home, however, you were not available without explanation. This is contrary to the
Work at Home Agreement that allows you to take advantage of this arrangement.
All of the situations noted above, have made it difficult to provide effective and efficient
client service to our clients. This objective has not been met.
You agreed to provide me with your monthly attendance record by the 6th day of each
month for the previous month. This objective has not been met.
You agreed to change your voice mail message at the start of each business day, to
retrieve messages and clear your voice mailbox so that clients are able to leave messages
for you. There have been several occasions when clients have not been able to leave
messages for you. These situations have created difficulties for our staff and your clients.
This objective has not been met.
You are responsible for obtaining sufficient prior approval from your manager for any
vacation time or unpaid leave. Although this issue has been raised with you previously,
you continue to fail to provide sufficient notice to ensure that operational requirements
are being met. In fact, it is common for you to request time off on the day that you would
like the leave. This objective has not been met.
This foregoing general review of the grievor’s performance mentions her being absent
without notice or explanation, being unreachable when scheduled to work at home and not
following proper procedures relating to time limits. The employer led evidence about occasions
when each of these problems occurred. As to absences, Ms. Tzaferis testified about the following
incidents.
• On December 1, Ms. Rodrigues called in the morning, saying she had a doctor’s
appointment and would be the office later in the day, but she had not arrived there by
3:30 p.m.
• On December 5, the grievor was not in the office and missed a meeting with Ms. Tzaferis
scheduled for 2:00 p.m. (An e-mail about this incident is attached to the letter of
termination.)
• On December 19, the grievor was scheduled to meet an injured worker at 11:30, to
prepare for a hearing on January 9, but was not in the office when he arrived. When
contacted, the grievor reported she would be in the office around 1:30 or 2:00. The
injured worker was unable to wait. (This worker, Doug Wagar, was called as a witness
and his testimony is summarized below.)
• On January 12, the grievor called to say she would be in the office by noon. However,
she did not appear and missed a meeting with Ms. Tzaferis scheduled for 1:00 p.m.
15
Evidence was led about the following incidents when the grievor was scheduled to work
at home:
• On December 3, Ms. Tzaferis left several messages on the grievor’s home voice mail but
received no response.
• Ms. Tzaferis called the grievor at home on December 4 but she did not answer and no
message could be left.
Ms. Tzaferis also testified about the following incident involving a time limit:
• A confirmation of appeal (COA) was due on April 2. On March 29 and again on March
30, Ms. Tzaferis reminded the grievor of this deadline. On April 1, when the manager
checked the file she found a COA dated March 30, but there was no indication in the file
or CMS that the COA actually had been delivered to the appropriate agency.
In the letter of April 23, reviewing the grievor’s performance under the third plan, Ms.
Tzaferis ended by stating there would not be a fourth work plan and saying she would undertake
a complete review of the grievor’s files in order to determine what steps to take next.
For the activities with numerical goals, the table below shows the number of activities a
worker advisor is normally expected to complete in a year, the goal set for the grievor during the
four-month term of the second plan and what she actually accomplished during that time.
Standard (Annual) Third Plan (4 Months)
Goal Achieved
Files Closed 50 8 1
Objections 50 20 3
Submissions 75 24 2
Decisions 70 20 0
VI
The results of Ms. Tzaferis’ final review were communicated to the grievor in a letter dated June
10, 2004. It begins by noting there were a total of 52 Full Representation (FR) files assigned to
her on April 2 but ten were subsequently closed or reassigned. (There is no evidence about how
the grievor maintained those ten files or what activity she completed in relation to them.) For the
remaining 42 files, CMS entries were not up to date for any of them, 25 were not properly
organized and 23 lacked retainers. Of the 42 files, she had taken no action on 23 of them by
April of 2004. All of these files were assigned to the grievor sometime between May and August
of 2003. Her activity related to 18 other files, and the date they were assigned to her, is
summarized below:
16
• assigned May 2003; no activity until Jan. 2004 (hand-written letter); no other activity
• assigned May 2003; no activity until Jan. 2004 (hand-written letter); no other activity
• assigned May 2003; no activity until Apr. 2004 (hand-written letter); no other activity
• assigned May 2003; no activity since Oct. 2003
• assigned May 2003; no activity until Feb. 2004 (letter to WSIAT); no other activity
• assigned May 2003; WSIAT hearing March 2004; unable to determine, issues appealed,
action taken, or action to be taken
• assigned June 2003; no activity until Dec. 2003 (letter to worker); no other activity
• assigned June 2003; no activity until Dec. 2003 (letter to worker); no other activity
• assigned June 2003; no activity until Dec. 2003 (letter to worker); no other activity
• assigned June 2003; no activity until Feb 4, 2004 (letter to worker); no other activity
• assigned June 2003; no activity until Dec. 2003 (letter to worker); no other activity
• assigned July 2003; no activity until Dec. 2003 (letter to worker); next activity phone call
to IW Feb. 2004; no other activity
• assigned July 2003; no activity until Feb 2004 (letter to worker); no other activity
• assigned July 2003; no activity until Dec. 2003 (letter to worker); no other activity
• assigned July 2003; no activity until Feb. 2004 (letter to worker); no other activity
• assigned Aug. 2003; no activity until Feb. 2004 (letter to worker); no other activity
• assigned Aug. 2003; no activity until Feb. 2004 (letter to worker); no other activity
• assigned Dec. 2003; no activity until Feb. 2004 (letter to worker): no other activity
Ms. Tzaferis’ letter of June 10 ended by scheduling a meeting for June 25 for the grievor
to respond to the employer’s concerns and by saying there was a possibility of discipline
including termination.
VII
The meeting scheduled for June 25 never took place. From April of 2004 until July of 2005, Ms.
Rodrigues was on union leave. (The initial leave period was thirty days but it was repeatedly
extended.) She took vacation when her leave ended and she returned to work on August 9.
While Ms. Rodrigues was on union leave, Ms. Tzaferis sent several letters to her home
address. One was the letter of June 10 containing the final review of her performance. There
were four other letters dated July 29, 2004, August 24, 2004, September 29, 2004 and June 27,
2005 respectively. Each of these four letters asked the grievor to provide an explanation for why
she had missed a time limit in the Hang case. These inquiries were made in preparation for the
pending reconsideration of that matter. The latter two letters also reminded the grievor that the
performance concerns raised in Ms. Tzaferis’ letters dated April 23 and June 10, 2003 were still
outstanding.
17
When Ms. Rodrigues returned to work in August of 2005, she was again asked to respond
to the employer’s concerns about her performance and to provide an explanation for the missed
time limit. She was allowed access to the relevant files and granted extensions in the deadline for
responding to the alleged deficiencies in how she had handled them, but she never gave any
formal response to the concerns raised. In a letter dated August 12, 2005, about the Hang file, the
grievor described a number of factors which she believed impaired the level of service provided
to injured workers in general: staff reductions, an unfilled vacancy, various office procedures,
and a work stoppage. The grievor ended her letter by saying she did not recall any “further
details” on the Hang file. The grievor did not attend work on September 13 and 14. Ms. Tzaferis
testified the grievor was absent without permission on these two days. She was terminated on
September 15.
VIII
The employer’s documentary evidence and the testimony of Mary Tzaferis has been summarized
above. The employer called one other witness, Doug Wagar, the injured worker with whom the
grievor failed to meet on December 19, 2003, to prepare for a hearing scheduled for January 9.
Having taken time off work to attend this meeting, Mr. Wagar was “extremely frustrated” when
Ms. Rodrigues failed to appear. He also testified that she failed to respond to all but one of the
“numerous” messages he left in her voice mail. He described her overall level of service to him
as “very minimal.” (Mr. Wagar also testified about the grievor’s failure to appear for the January
9 hearing. She was hospitalized that day and as her husband notified the employer on the
previous day, as recorded in an e-mail from her to Ms. Tzaferis dated February 6, 2004. Given
these extenuating circumstances, no more need be said about her missing the hearing.)
IX
Maria Rodrigues was the only witness called by the union. During examination-in-chief, she
testified most advisors have an actual caseload of sixty, even though the published norm is sixty
to seventy-five. The grievor apologized for her e-mail, dated December 9, 2003, accusing Ms.
Tzaferis of discrimination. She testified it was sent when she was “not thinking clearly” and
experiencing a “difficult” time, having just been elected as a school trustee and also serving as
president of her local union. (She was president of the local from February of 2001 until
September of 2004 and has been a school trustee since November of 2003.) The grievor also
18
admitted missing a meeting with Mr. Wagar and not returning most of his calls, saying she must
have been double-booked at the time of the meeting and should have returned the calls. Asked
about arriving in the office late on a number of occasions, she testified this occurred because she
was not feeling well or because she was doing union business or “other things.” She conceded
her voice mail was often full, so messages could not be left. She also admitted “cutting corners”
by not obtaining retainers from injured workers and by not docketing her activities on CMS. She
suggested some work was recorded in files but not reported on CMS. She attributed the shortfalls
in her performance partly to her duties as local president and partly to her absences on leave
approved by the employer. In relation to her absence on September 13 and 14, 2005, she could
not recall whether she had asked permission to take vacation. The grievor testified it was not
until June of 2005 that she opened any of the letters sent to her home after she went on union
leave in April of 2004. When the letters finally were opened, she did not respond to inquiries
about the Hang file because so much time had passed since the inquires had been made.
In cross-examination, Ms. Rodrigues admitted “a lot” of her activities were not recorded
on CMS and retainers were not obtained for “most” of her files. She acknowledged spending too
much time on union activities, saying she should have devoted more time to her job. She also
conceded Mr. Wagar was not the only injured worker who had not received the “best” service
from her. Asked about the reviews of her performance under the three plans set out above, the
grievor did not dispute their accuracy in general. (The only exception, noted during examination-
in-chief, concerns one file for which Ms. Tzaferis’ letter of June 10 contends no action had been
taken and for which the grievor testified she had completed a hearing in September of 2003.) The
grievor admitted not following directions from Ms. Tzaferis. As to the manager’s claim that the
grievor had misled her about meeting the time limit in the Reinert case, the grievor testified she
did not recall doing so. Asked about the e-mail accusing Ms. Tzaferis of discrimination, Ms.
Rodrigues testified it was sent when she was upset about being denied paid sick leave.
Conceding her grievance about this denial was eventually withdrawn, the grievor acknowledged
the allegation of discrimination was not warranted. She acknowledged acting inappropriately on
January 28, 2004 when she accused Ms. Tzaferis of harassment and spoke of suing her. The
grievor agreed with employer counsel’s suggestion that events between May of 2003 and her
termination had a “pretty devastating” impact on her relationship with Ms. Tzaferis. Ms
Rodrigues also agreed her testimony was the first occasion when she offered an apology or
expressed any remorse.
19
X
The grievor’s attendance under the second plan was reviewed above in the part of this award
dealing with that plan. The union led evidence about her attendance under the other two plans.
The first one, running from May 7 to August 11, 2003 covered 66 work days—i.e. days other
than weekends and holiday. As recorded in a letter dated September 26, 2003, from then
employer counsel, the grievor was absent from work—on sick leave, vacation or union leave—
for 28.5 out of these 66 days. In other words, she was absent on approved leave 43 % of the time.
The third plan ran from December 1, 2003 to March 31, 2004. The only comprehensive evidence
about the grievor’s attendance during the term of this plan relates to January and February of
2004 during which there were a total 40 work days. An undated e-mail, to Ms. Tzaferis from
Victoria Drinkwater, indicates the grievor was absent on approved leave for a total of 17 out of
these 40 days. In cross-examination, Ms. Tzaferis conceded the correct total is 18 days. In other
words, the grievor was absent 45% of the time.
XI
Counsel for the union contends the employer is foreclosed from imposing discipline for anything
that occurred before the grievor went on union leave in 2004. According to this line of argument,
discipline is precluded because the grievor’s termination in the late summer of 2005 occurred so
long after the commencement of her leave. Union counsel relies upon the decisions in Air
Canada and Canadian Air Line Employees’ Association (1981), 4 L.A.C. (3d) 68 (Shime) and
University of Ottawa and International Union of Operating Engineers (1994), 42 L.A.C. (4th)
300 (Bendel). In University of Ottawa, Mr. Bendel reviewed the case law requiring discipline to
be imposed in a timely fashion:
Although the reported cases support the proposition that an employer cannot discipline an
employee if it waits too long, one finds in the cases differing theories for explaining why
dilatoriness should have that effect. According to one theory, if an employer delays
imposing discipline for an unreasonably long period, the employer will be deemed to
have condoned the employee's offence. …
Another theory is that it is a matter of "procedural fairness".
….
According to a third theory, the disciplinary action will be void if the delay
effectively denies the grievor the opportunity to defend himself or herself against the
employer's allegations. Although this factor is relied on in some of the cases adopting the
"condonation" theory and the "procedural fairness" theory, it seems to have also been
treated as an independent basis for invalidating discipline. …
20
Finally, the theory has been advanced that arbitrators, as a matter of "general
arbitral principle", should hold that undue delay invalidates disciplinary action. (pages
308 to 309)
In my opinion, the notion of procedural fairness has no meaning in this context beyond
that inherent in the concepts of condonation and denial of a fair opportunity to mount a defense.
In the case at hand, there is nothing to suggest the employer ever condoned the grievor’s
misconduct. As she admits almost all of the allegations made by management, delay in the
imposition of discipline has not significantly impaired her ability to defend herself.
Should discipline be precluded here by virtue of delay alone, as a matter of general
arbitral principle? In considering this question, I note the grievor was absent on union leave from
April of 2004 until August of 2005. During this time, she refrained from opening correspondence
from the employer seeking her response to alleged deficiencies in her performance. Given the
duration of her leave and the grievor’s failure to respond during it, I conclude discipline is not
precluded by the mere passage of time.
XII
Is there cause for discipline? Ample reason to answer this question in the affirmative is provided
by the grievor’s own admissions about disobeying directions from Ms Tzaferis and treating her
with disrespect. This conduct constitutes insubordination.
The next question is whether discharge was an excessive penalty in the circumstances. A
number of factors come into play in making this determination. One is the grievor’s nineteen and
one-half years of seniority. Such lengthy service amounts to a very large investment by her in the
employment that was terminated.
Another relevant factor is the nature of the grievor’s misconduct. I have already
concluded she was insubordinate. In addition, the quantity of work completed by her fell below
the norm expected of worker advisors in a number of respects. She admitted cutting corners by
not docketing activities, not obtaining retainers and not returning phone calls. She also fell short
of meeting the numerical goals set for her. The final review of 42 files indicated she had taken no
action on 23 of them and done little on most of the rest. (I note this review does not indicate what
she had done on 10 other files.) Based on the evidence recounted above, I conclude a substantial
part of the shortfall in the grievor’s output was caused by her failure to attend to her duties
during paid working hours. Nonetheless, the evidence also suggests a not insignificant part of
21
this shortfall could have been caused by her extensive absences on approved sick leave and
union leave for which she cannot be faulted.
The latter conclusion finds some support in the way Ms. Tzefaris adjusted numerical
goals under the second plan, taking account of the number of days actually worked by the
grievor, and concluded the adjusted goals had been met. In my view, the evidence about the
grievor’s attendance indicates some sort of adjustment may be warranted in respect of the output
expected from her, on all fronts, between May of 2003 and April of 2004.
The need for this sort of adjustment is suggested by a comparison of the degree to which
the grievor’s attendance fell below the likely average for worker advisors with the degree to
which the workload assigned to her fell below the average for them. (In making this comparison,
I have ignored the first work plan when the grievor’s caseload of full representation files was
much smaller than normal.) Under the second plan and the part of the third for which attendance
data is available, the grievor was recorded as being at work on 43% and 55% respectively of all
working days—i.e. days other than weekends and holidays—for an average of 49%. All
employees take vacation and most are sick on occasion. Someone who takes five weeks of
annual vacation and misses ten days through sickness each year would be present on
approximately 215 out of 250 working days in a year, or 86% of the time. In my view, it is very
unlikely the average rate of attendance would fall much below 86%. In other words, the grievor
worked about 0.6 (i.e. 49 divided by 86) of a day for each day worked by other employees. Her
caseload of full representation files was 55 under the first plan and 53 under the second for an
average of 54. The published standard is 60 to 75, but the grievor testified most employees
carried 60 cases, and this testimony was neither challenged nor contradicted. If the average
caseload was 60, the grievor had 0.90 (i.e. 54 divided by 60) of a case for every case carried by
other employees, but she worked only 0.6 of a day for every day worked by them. If the average
caseload was 67.5, exactly in the middle of the published range, the grievor had 0.8 of a case for
every case carried by her co-workers. Even if the average caseload was 75, at the very top of
range, the grievor had 0.7 of a case for every case carried by other employees. In any of these
scenarios, the grievor’s caseload of full representation files would have required her to do
significantly more on each day worked by her than was required of other employees on each day
worked by them in relation to the same sort of files. This sort of comparison involves a
substantial element of uncertainty because there is little or no evidence about the actual caseload
and attendance rates of other employees.
22
To compare the grievor’s total workload to that of other employees, one more question
must be addressed. Was the extra demand on her relating to full representation files, described in
the preceding paragraph, offset by relieving her of other types of work normally done by worker
advisors? In particular, she was not required to perform duties relating to the following: (1)
committees; (2) education and community partnerships (although she did one educational
session; (3) system partnerships; and (4) advice, assistance and early intervention. There is no
evidence as to how the amount of time employees devote to these duties compares to the time
they spend on full representation files. In the absence of such evidence, it is not possible to
determine whether the grievor’s total workload was higher than normal, taking her very high rate
of approved absences into account.
How do the uncertainties described above impact on the disposition of this matter? The
employer contends the grievor’s failure to meet numerical goals under the three plans was
entirely her fault. Her admissions have already led me to conclude she was partly to blame. The
only outstanding issue is whether part of the shortfall was explained by absences for which she
cannot be faulted. The union has led evidence showing the grievor was on approved leave much
of time. In my view, this evidence places upon the employer the onus of proving these absences
did not cause any significant part of the short fall in her performance. As this onus has not been
meet, only part of the blame can attributed to the grievor.
Remorse and acceptance of responsibility for wrongdoing is a third factor relevant to the
determination of whether discharge was an excessive penalty. Contending this factor weighs
heavily against the grievor, employer counsel relies upon seven awards where the arbitrator
sustained a dismissal, partly because the grievor had not accepted responsibility for his
transgression, and partly because other considerations also supported termination. In Go Transit
and Amalgamated Transit Union (2005), 145 L.A.C. (4th) 68 (Fisher), the grievor gave a
threatening note, bearing his signature, to a fellow employee, causing her to fear for her safety.
He did not apologize for this threat until the day before the hearing, six months later. Arbitrator
Fisher gave no weight to the apology, because the victim had lived with the fear of violence for
so long. In all of the other cases cited, the grievor compounded his misconduct by initially falsely
denying alleged misconduct: J I Case Co. and United Steelworkers of America (1991) 19
L.A.C.(4th) 311 (Samuels); Langley Township and Canadian Union of Public Employees (1991),
20 L.A.C. (4th) 256 (McPhillips); Royal Towers Hotel Inc. and Hotel, Restaurant and Culinary
Employees and Bartenders Union (1992), 32 L.A.C. (Blasina); Northern Breweries Ltd. and
Brewery, General and Professional Workers Union (2000), 90 L.A.C. (4th) 343 (Carrier);
23
Genfast Manufacturing Co. and United Steelworkers of America (2005), 135 L.A.C. (4th) 375
(Newman). In most of these cases, the grievor subsequently admitted some or all of the
misconduct alleged, coupling this admission with an apology, but only when faced with evidence
that made his guilt irrefutable. A belated admission and apology was treated as meaningless in
these circumstances.
The facts at hand are markedly different than those in the cases cited. Here there was no
longstanding threat of violence and no false denial. In her testimony, Ms. Rodrigues did
apologize to Ms. Tzaferis for accusing her of discrimination in later 2003; but there was no
apology before the termination in 2005. An earlier expression of regret would have carried much
more weight. Dealing with the alleged deficiencies in her performance, the grievor has accepted
some responsibility for them. I have already concluded the employer has failed to prove they
were entirely her fault.
The final factor to be considered is the grievor’s disciplinary record. As noted by
employer counsel, the discipline on her record is very substantial—a fifteen day suspension
imposed in the spring of 2003, relating to the same sort of misconduct for which she was
terminated in the summer of 2005. The appropriateness of a penalty of this severity cannot now
be questioned by the union, even though the grievor had a clean record when it was imposed. As
the fifteen-day suspension resulted from a settlement between the parties to the collective
agreement, I must treat the length of this suspension as being warranted in the circumstances
existing in 2003.
The quantum of the previous penalty is not the only relevant factor arising out of
previous discipline in this case. Also relevant is the suspension of 20 days initially imposed, as
well as the parties’ agreement, when reducing the penalty to fifteen days, to waive the serving of
the reduced suspension. As the grievor lost no pay as a result of being suspended, the decrease
from 20 days to 15 had no bearing on compensation. The reduction had meaning only in relation
to what her disciplinary record would be if she got into trouble again. If the penalty had been left
at twenty days, the maximum possible under the Public Service Act, the concept of progressive
discipline almost certainly would have dictated termination for any significant misconduct in the
future. The most obvious rationale for the reduction to fifteen days was to leave open the
possibility of a subsequent suspension of twenty days as a prelude to discharge. I have no
hesitation in concluding this is what the union intended. The employer ought reasonably to have
known such was the intention. In other words, the settlement reached in 2003 contemplated some
disciplinary step between a fifteen-day suspension and discharge. The purpose of this
24
intermediate step would be to determine whether any future problems could be rectified by a
second and longer suspension before resorting to the ultimate sanction of terminating the
employment relationship. This objective is entirely consistent with the arbitral jurisprudence on
progressive discipline.
The foregoing paragraph should not be read as saying the employer may never move
directly from a fifteen-day suspension to dismissal. My assessment of the disciplinary record in
this case is based upon the particular circumstances at hand—i.e. a settlement reducing a twenty-
day suspension to fifteen days and not requiring the grievor to serve the shortened period.
Considering all of the factors reviewed above, I conclude the proper course for the
employer would have been to levy a suspension of twenty days for the grievor’s first significant
transgression after the settlement. It was not proper for the employer to initially refrain from
imposing any further penalty when faced with culpable infractions, to allow a long history of
misconduct to accumulate without taking any disciplinary action, and then to terminate the
grievor based on everything that had happened over a prolonged period. In short, termination
was an excessive penalty in the circumstances.
XIII
The only remaining issues are remedial in nature. Since the grievance was filed, the union has
consistently sought reinstatement with compensation for lost wages and benefits. In closing
argument, employer counsel contended reinstatement should be denied and the remedy limited to
damages. This was the first occasion when the employer suggested the grievor should not be
reinstated, even if there was no just cause for dismissal. Counsel for the union responded to this
suggestion by arguing the employer is barred from raising this remedial issue at the end of the
hearing. Written submissions on this procedural matter are pending.
Issued at Toronto this 11th day of April 2007
Richard Brown
Vice-Chair