HomeMy WebLinkAboutRacine 14-03-05m
CANADORE COLLEGE
(THE COLLEGE)
ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 657
AND IN THE MATTER OF THE GRIEVANCE OLGA RACINE — OPSEU GRIEVANCE #2009 - 0657 -0001;
2009 - 0657 -0011; 2009 - 0657 -0012
HOWARD D. BROWN, CHAIR
SHERRIL MURRAY, UNION NOMINEE
MARC PIQUETTE, COLLEGE NOMINEE
APPEARANCES FOR THE COLLEGE:
Daniel J. Michaluk, Counsel
APPEARANCES FOR THE UNION:
Alison Dewar, Counsel
Alison Neilsen -Jones
HEARINGS IN THIS MATTER WERE HELD AT NORTH BAY ON JUNE 1, OCTOBER 22, 2010,
JUNE 21, JUNE 22, JULY 6, JULY 7, JULY 26, JULY 27, 2011, April 20, MAY 8, MAY 9,
AUGUST 29, 2012.
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Following the hearings and receipt of the written submissions of Counsel, the Board met
in executive session at Oakville on September 17, 2013 to review and consider all the evidence
and the submissions of Counsel in the preparation and release of the award to the parties.
We will first refer in a condensed form, the submissions of both Counsel both verbal and
written and with relative brevity refer to the material evidence relating to the issues rising from
the grievances. The Grievor responded to a career opening at the College for a Counsellor,
Special Needs. Prior to coming to Canada inI99D. the Griexor's education and academic
qualifications were at Russian Universities from which she holds a Bachelor of Education, a
Master of Psychology and a PHD in Psychology and had since arriving in Canada, several
positions in accordance with her qualifications including from August 3 — December 2008, she
worked as a Psychometrist, North East Mental Health Centre, North Bay and obtained
admission as a certified Canadian Counsellor, member of CC— CCO, such designation was
required to be employed at the College. On December 22, 2008, the Grievor was offered the
position of Special Needs Counsellor effective Monday, January 5, 2009 at an annual salary of
$78,685.00 which she accepted. The Ghevm/semployment commenced asan employee under
probation in accordance with the collective agreement which probation would end on
January 5, 2011.
By letter dated October 22, 2009, Shawn Chorney, Director, Campus Life, advised the
GheVO[asfollows:
"After careful consideration of your overall performance taken
into consideration both concerns discussed in our meetings of
June 6, 2009 and June 14, 2009 as well as more recent concerns
brought to my attention by staff from Campus Life as well as a
student and discussed with you on October 15, 2009, the College
is not confident that you will gain the necessary support and trust
of the team to be successful and of more critical significance is
that the fact that you have demonstrated that you are unable to
provide a "student centered" counselling environment. Therefore
in accordance with Section 27.02(e) of the Academic Collective
Agreement, you are hereby released from your probationary
appointment effective immediately..."
The Grievor filed three grievances under the terms of the collective agreement, firstly
October 22, 2009 alleging "wrongful dismissal without just cause" Art. 32.06; secondly on
November 10, 2009 "The College acted in bad faith and dismissed me without just cause by
failing to provide justification to warrant such action according to Article 27.02(d) on their part
and thirdly a grievance dated December 21, 2009 claiming discrimination and harassment by
the College by reason of place of origin — ethnic orig ".
It is the submission of the College that it had not acted in bad faith, arbitrarily or with
discrimination in releasing the Grievor as a probationary employee as set out the letter dated
October 22, 2009 from Mr. Chorney. It was stated that the Grievor failed to take any
responsibility in understanding and supporting our Manager's objective to deal with the
problems within the Counselling environment. More particularly, the Union failed to meet its
onus to prove bad faith or discrimination on a rational basis. Further the Union failed to meet
the high standard to support a conclusion that Mr. Chorney's decision was arbitrary. There is
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no link that her behaviour as a Counsellor was a product of her ethnicity. The Board should not
find that there was discrimination based on people of Russian heritage.
It is submitted for the College that the Board should deny all three grievances. In the
alternative, the Board should limit relief to a declaration but not to reinstate the Grievor with
particular reference therein to the Grievor's post discharge conduct including a malicious
complaint to the Board of Governors. Further, the Board should not award damages as the
payment in lieu of 90 days' notice has been given as required where it is found that a
probationer was not suitable for employment at the College. In the alternative, a nominal
amount of normal damages for a breach of the collective agreement. The only issue is whether
the College's decision was arbitrary, discriminatory Vr given iDbadfaith. The law however, iS
clear that an Employer has the discretion to release an employee on probation if a reasonable
decision is rnodg.
It was submitted for the Union that the evidence of the College to justify the
termination of the Grievor's probationary employment is whether the decision to release her
was arbitrary which is the only issue. That was based on the assumptions of the stereotype
person and not factual therefore arbitrary in the Grievor's circumstances. The Board does not
need to therefore find discrimination. There is a sufficient reason to uphold the grievance on
the basis of the arbitrary decision of the College based on an unfair assessment of the Grievor
by Mr. Chorney. The Union's position is that the grievance should succeed and that the Grievor
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be entitled to reinstatement with compensation and damages in the amount of $10,000.00
paid to the Grievor.
Shawn Chorney, a Vice President, Student Services hired on February 9, 2009, as the
Director of Campus Life, involved in that context the service in the Department involving
counselling for other student services. He has a degree from Laurentian University and then
enrolled in a Masters of Business Administration — Public Administration Program, completion
date of March 2010. He has been involved with College student opportunities for more than
two years as3n Associate Regional DirectoretNortherDCo|lpge,didov8rsightdiRzntive3and
development for various programs and formulated a Mission Statement. He said that the
Counselling Department was disconnected. The staff received feedback from the students from
which there was a creation of a single department to co-ordinate the services for the students
offered through the department. It was made to the class definition and said that it was
consistent with the College's position:
"A Counsellor is responsible for assisting students and potential
students to function effectively as learners and as individuals by
helping them understand, prevent or overcome personal, social or
educational problems that may hinder learning O[ their ability
with everyday living."
In performing these services he found that many employees in the department were
feeling marginalized which he felt was inappropriate for the service delivery in a student cen*tre.
After the Grievor was hired by the College as Counsellor and commenced work in the
Department in January 2009, the first concern with her behaviour surfaced in February—March,
2009 as to a complaint by the Director of Facilities concerning an issue relating to student
parking. The Ghevor had taken on activist part h«being a strong advocate in regard bzthe
designation of handicap parking for a student. As a result, she was told there were available
handicapped parking spaces and would not designate a parking space for any individual. The
Grievor continued her childish, overzealous conduct,of a student advocacy issue. He said that
this was not a major issue for him at the time but had considered it in relation to the Grievor's
In the Directive in May to him, she was very intimidated and apprehensive with regard
to the Grievor. The Director was a long-term employee, 8 team supporter and with Donegative
feedback. Others in the Department indicated that they felt bullied by the Grievor and there
had been numerous side meetings in and out of the offices to avoid the Ghevoc W1r.Chonne/
did not attribute any blame against any individual but recognized that there was
discontentment in the area b» the reports he received which caused him concern. HefoUovved
up with the Grievor at a meeting in his office when he had concerns about her behaviour and
about the dynamics of professionalism which came above department politics, along with the
climate to perform as a team player. Mr. Chorney said that he used a soft approach to try to
build the team and redirect the friction in the department. He met with other employees to
shift the power struggle and met as a team in June. He said that things were settling down and
he did not pursue any action at that point and the Grievor was a good fit and would work in a
team environment.
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Mr. Chorney referred to the term commencing in September 2009, with an enrollment
of 710 students, and said that the tension in the department flared back. He said the Grievor's
relationship with him in September was strained and he was subject to her strong body
language and raised voice. At a meeting with the Grievor at that time, his approach was
confirmed as stated in June but the tension was again forming with the staff members to break
up the hierarchy and have the Grievor as part of the team in that she should stop having back
room meetings. The Grievor's response was that she had no time for that as she is a
professional and he began to question whether the Grievor would ever become part of the
team in the department.
Mr. Chorney said that he held a similar meeting with the Grievor on September 15 m to
again discuss the divisions in the department and was assured of her commitment to move
forward and he discussed that he expected professionalism from the team. Afurdher meeting
of the Counsellors and Technologists was held on September c th which the Grievor attended
along with the other employees in the department when the subjects of staff issues were
discussed. Mr. Chorney distributed a College policy: "Respectful College Community
Procedures" which he asked them to review. In the staff feedback, he said there were issues of
criticism, intimidation, silent treatment, which he expected to be replaced with communication,
respect and professionalism. There were also significant criticisms of him in that he was one of
the facilitators of the Community Procedures mission but would play students against another
student or staff. He did not relate anything concerning the Grievor's response to that meeting
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as to difficulties with a student transfer to another Counsellor after a blow up in the
department and had switched the student to another Counsellor with the best fit for the
assessment and in the best interest of that student. He said that at the end of that meeting it
was obvious that there were some major problems and decided that he would keep a much
closer eye on the Grievor's situation with regard to a long-term tenure for her at the College.
th , he said a few Technologists came to him concerning a missing file of a
On October 7
student's assessment from the file cabinet for the central caseload files but this file became
missing but later returned. It was suspected that copies of that file had been taken by the
Grievor. In the result, he met with the Grievor in his office and told her the concerns of the
allegations of the Staff asto her behaviour with them and by copying afi|e8ndtheGrievor
responded that she had not copied the file which had been misfiled and replaced. He accepted
her explanation at face value giving her the benefit of doubt. He told her not to bring this
matter as an issue to the department. He related his approach with the Grievor to the
Technologists who were however, visibly upset as they complained that the Grievor had yelled
at them.
Following a Thanksgiving break, Mr. Chorney referred to the situation of the transfer of
a student (LM) who had spoken to an Assistant Technologist in the counselling office to obtain
her transfer from the Grievor and in recognition of the crisis was re-assigned to another
Counsellor said at this time, the protocol for transfer and change of counsellors had not been
clearly established although the team had discussed it. When students were found not to be
comfortable with their counsellor, on occasion, he said, that he had transferred the work to
another counsellor. The Wednesday of that week, the Counsellor to whom LM's file had been
transferred referred to him the fallout from the transfer and with a " head -ups" comment. On
October 15th, a meeting was held to discuss the transfer of the file effect and the rationale and
feedback and he felt that the matter had died.
As a result of this confrontation while he had serious doubts that the Grievor could
overcome the challenges in the department, he had not yet determined to terminate her
employment. In his discussions with other departments as to the accessibility of student
counselling, it was indicated there was a frosty atmosphere in this department.
He reported that "LM" had left the office of the Grievor in tears and would not be back.
After "LM ", she later bumped into the Grievor who asked her to come into her office. On
October 16th, Mr. Chorney scheduled a meeting with "LM" and told her that they were
committed to service but said that the student appeared pale and not comfortable by being
told she was causing problems in the department by her reaction to the Grievor. The student
reported in writing that the Grievor had approached her in the hall and was defensive
concerning her request to have her file transferred to another counsellor and explained that
she was not comfortable with how her situation was being handled and pressured to go to
psychotherapy as the Grievor had told her she needed.
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In receipt of this email, Mr. Chorney discussed the possibility of the Grievor's
termination with his Supervisor and Human Resources. He attended the regular scheduled
meeting with the Counsellors who raised the student transfer issue and had concerns about the
process. He said that the Grievor had raised her voice in questioning the process and in
response told her that the matter would remain with the other Counsellor and the student file
had been transferred. He said as a result of this issue, he was convinced that the Grievor was
not suitable to stay in his team. The following Monday, he dealt with the ongoing issues with
the Grievor which he in writing to his Supervisor referred to the incident of switching
counsellors, taking the student to the Grievor's office which the student had left crying, the
incident of questionable photocopying of the student's file on October 7th, lead to the final
decision to terminate the Grievor's employment.
Reference was made to three emails which had surfaced at meetings at the College, one
of which was referenced as "Shawn of the dead" which he felt was funny, and taken from a
zombie film plus Hogan's Heros he referred to "I know nothin, I see nothin" in that film which
he again he thought was humorous but the Grievor did not agree. It was unfortunate that
these emails surfaced on the same day as they made the decision to terminate the Grievor's
employment but had no relation to that conclusion. There had been complaints from the
Grievor about jokes in the spring of 2009 come from the technical centre student following
which he had told the supervisor to fend such emails of an on -going issue with the Grievor who
had said that she had no time for the email that it was unprofessional.
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The letter dated October 22, 2009 from Mr. Chorney to the Grievor set out in part as
follows:
"After careful consideration of your overall performance, taking
into consideration both concerns discussed in our meetings of
June G,2OO9 and September l4,2OO9,as well as more recent
concerns brought tonly attention by staff from Campus Life a5
well asa student and discussed with you on October I5,3OD8,the
college is not confident that you will gain the necessary support
and trust of the team tobe successful and of more critical
significance is the fact that you have demonstrated that you are
unable to provide 8 'student centred' Counselling environment.
Therefore, in accordance with Section Z7.O2Eof the probationary
appointment effective immediately."
This evidence was followed by a lengthy cross examination of Mr. Chorney which the
Board has reviewed in detail but will for the purpose of this award touch only on th*e salient
portions of this evidence. Reference was made to the College's Operational Policy Manual that:
"The College will endeavourto create an atmosphere that
balances respect for individual uses with respect for College
facilities and College and community standards."
Mr. Chorney agreed that disrespectful email communications would be a violation of this
policy. Communications involving bad behaviour is material to the intent of this policy of which
he was involved and aware and was responsible to act accordingly if a member of staff violated
the policy. He is not a counsellor with special educational requirements in that capacity and
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does not have the special training concerning personal problems and categories in general
learning and crisis management in which the counsellors learn of disabilities of students in
which there is high levels ofanxiety. The Ghevorisa highly qualified Counsellor and there isno
dispute as to her credentials and has provided individual counselling and he had no issue with
the qualifications or abilities of the Grievor as a Counsellor. He also expected a student to be
self advocate and request a change of counsellor if the student is not comfortable with the
counsellor assigned in the department.
The cross examination of Mr. Chorney was extensive and while the Board has
considered the entirety of that evidence, it is of this award we refer to the salient points of
consideration. He said that it was his objective to have a student centred approach through a
team and agreed with the process in place to deal with the different kinds of students and their
difficulties and is important that there is understanding that each student is unique. The policy
in operation in 2009 indicated in part:
"The College will endeavour to create aD atmosphere that
balances respect for individual users with respect for College
facilities and College community standards—"
In that regard, the disrespectful emails referred to in the evidence would be a violation of this
purpose as it would be offensive material and bad behaviour. When he became manager of the
Counselling Department in 2009, he said the key aspect was the stress upon teamwork. There
were two categories in the department, Counsellors and Technologists and while heis not 8
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Counsellor, he recognizes that they are responsible for assisting students to function effectively
as learners. A Counsellor can be dealing with high level of student anxiety and while not doing
psychological counselling with personal problems, in that area, they could be assigned to those
with expertise and it is not unusual for Counsellors to discuss'a file amongst themselves as part
of their work.
The Grievor is a highly qualified academic and he had no issue with her qualifications or
abilities as a Counsellor and it is important for them to deal with sensitive issues which needs
some room for flexibility with the student who is expected to be a self advocate with the
Counsellor with whom if he is not comfortable may want a transfer to another Counsellor who
may be best for the student. A Counsellor could see four or five students a day, depending on
the case load and over time with an on -going relationship, can build the student's trust to reach
the goals. The policy for a transfer to another Counsellor required a student to prepare a
transfer slip and the matter would be discussed at the weekly Counsellors meeting with the
reasons for the request to which was designed to build a team approach to care in the
department.
Counselling is confidential and sessions conducted in closed door offices. File specifics
are kept along with notes of the Counsellor as record keeping is important. The Assistant
Technologist's duties are to support the Counsellor and perform clerical work and as support
staff sets up appointments and the initial intake files of students. If an issue arises with regard
to transfer requests by a student, it would first go to the Counsellor as assigned and in the
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context of self'advocacy of the student if an issue continued, the Coordinator could bring
another counsellor into the situation for an agreement and if none, it would be referred to the
team. Atronsfer request by a student is not an administration problem but that of Counsellor
relationship problem.
Mr. Chorney said there were concerns about the hierarchy in the Counselling
Department between them and the support technologists which had arisen before his term and
before the Ghevor was hired. Meetings were held and messages were sent to both groups to
work as a team and break down the divisions. He said that he'was hired to make changes in the
department including the way those issues were dealt with in the climate of the department.
He said that the culture differences in the hierarchy between AT's and Counsellors was
detrimental to their service in a department which situation he inherited and arose before the
Ghevor was hired into the department. It was then that that the message was sent toboth
parts of the department to work osa team and break down the hierarchy division that was part
of the change which he was required to make in the department and was the subject of the
Action Minutes of the meeting of the employees on September 25, 2009 in which one of the
subjects was a communication as to professionalism which included respectful conduct
between individuals dealing with issues in the department with a recognition of their expertise
in the job and a counsellor is required to give advice to students within their practice.
Mr. Chorney said the professionals should exchange information but not second guess another
p[Of2SSiOR8[
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There were two Learning Strategists in the department in a primary role of technology
to plan, create and implement the plan for a student which requires a working knowledge but
not the work of a Counsellor in the bargaining unit and it is unprofessional for a Learning
Strategist to second guess other professionals. Concerns as to poor communication in the
department was referred to at that meeting which involved the only discussion that they had as
a team and said that this had not improved the team in the manner in which he had hoped.
That matter was followed by mediation in the Spring on these difficult issues including the
dysfunctions of the individuals within the team.
Mr. Chorney said that a Counsellor is an advocate for a student and the Grievor did that
right but overstepped her bounds and referred in that regard to the parking issue and again in
October, concerning the file issue where the problem should have been addressed by direct
communication rather than emails.
At a meeting he held with the Grievor on June 6, 2009 to discuss her six-month
performance, they talked about team dynamics and then asked about the new Mission which
he had set out in "Campus Life". The Grievor highlighted concerns about the division of the
department into two camps and told him that she did not believe in or have time for that but
assured him that she supported the direction of the department and would work in support of
a team environment. He did not tell her that her role was. unsatisfactory. He said the Grievor
when arriving at the department, lead into the wrong path, lead astray and there was not a
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sincere team approach and recognized that it was difficult to change the environment in that
department.
Mr. Chorney made reference to a meeting on September 25, 2009 when he met with
the Counsellors at which the Minutes indicate that the Grievor suggested the creation of a
procedures binder for the Counsellors and offered to take the lead on that project along with
Carrie Pinkerton who volunteered to work with the Grievor on this project and also on another
initiative of a faculty guide. He said they worked well together but his opinion was that Carrie
was only trying to build a relationship with the Grievor.
Mr. Chorney referred in this evidence to the issues arising from the LM situation which
lead to the transfer of her file to another Counsellor from the Grievor which had been her
request but without advising the Grievor who did not know of the transfer until told by the
psychologist to whom she had referred LM as to her personal problem. He received a
complaint from LM on October 1 9th and it was at that point that he had decided that the
Grievor would not fit in the team with further reference to the filing issue which he said had
concluded and believed the technologist's version of that incident.
Cheryl Russell has been employed at the College since 2005 and is a Technologist
working inaDoffice located against the hall from the Counsellors' office. She said she had
trained the Grievor upon her hiring into the department as a Counsellor in technology and the
process but she had minimal contact with the Grievor and said she was not exactly
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approachable and found her intimidating and cold but she had not expressed those feelings to
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anyone. Her evidence concerned an incident of confrontation with the Grievor on October 2
when she had said that concerns with regard to consultations should go to her and it was not
appropriate having been made in front of her and she reported the incident to Mr. Chorney.
Further she referred to a student who had enquired about a transfer from his Counsellor to
another and she responded as to procedure to ask his Counsellor for a change which he
preferred not to do as he was apprehensive about the Grievor. She further referred to the file
incident which had been removed from a filing cabinet by the Grievor which was of concern to
her because of a student request of information in the file which the Grievor claimed that she
had replaced in the previous day. She did not confront the Grievor before referring the
situation to Mr. Chorney because she did not think the Grievor was approachable and they
would not have resolved the issue. A further reference was made to an incident on
m when LM while standing in the hallway was taken by the arm by the Grievor who
October 15
wanted to see her in her office and she was concerned that the student had looked frightened
but she did not report it to anyone. She said that Technologists do not provide the same
services as Counsellors do for the students as they provide academic career advice and create
strategies and tests and are in support to give on call help to students but don't provide
personal advice.
Cheryl Russell, a Technologist, said that she considered her work important because it
has direct access to the students with their support and they act as an advocate for students as
necessary. They deal with students who have wide emotional differences and they develop
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skills to calm students who maybe upset and as well can communicate with students who are
frustrated. Her work is different from Counsellors who assess problems of students which she
does not do. She said that Counsellors determine a plan for a student and it is her job to
support it and she does not second guess that plan as she does not have the education or the
experience of a Counsellor. She had gone to Mr. Chorney about their confrontation on
October 6th. The Grievor came to the door of their office which is a drop -in centre and she
knew the Grievor was there to deliver a speech so she stood up at her desk. She did not know
what the Grievor was going to do but the Grievor walked down the hall and did not come into
their office but only looked in but felt she would confront them but came to her desk and not in
a friendly manner but intimidating and said in a stern tone, in future if any concerns with her
work, please come to her. Ms. Russell did not respond to her as she left their office
immediately. That was done in the open, in the open office where other students could hear
and should have been done privately. She did not agree that there were camps in the
department but said there are differences between the Technologists and the Counsellors
based on different and work educational responsibilities in their job. She said there was a
concern about a file which the Grievor had taken out of the filing cabinet but later when she
checked had been returned to the file cabinet by the Grievor but she said it was improper for
the her to have taken the file out of the cabinet as there was no reason for it to be out of the
cabinet but was not present when it had been re- filed. It was possible that it was re -filed in the
wrong place. No one in that office had talked to the Grievor about the file.
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Co-
ordinator of Special Needs Services and described the background of the Technologists and
Counsellors and their responsibilities in the department and noted that Counsellors are in the
Academic Bargaining Unit. He said that Support Staff did not have any responsibility as to
transfers to other Counsellors by students' requests and would encourage them to make an
appointment to see their Counsellor for a reference. As a Co-ordinator, his role was not
supervisory but with his experience in the system, he was an advocate for his colleagues when
he attended College meetings and would deal with enquiries of the President and Board of
Governors as to representations for the College. As well, he was a mentor, for everyone
working in the department and gave opinions as to how a particular case was handled. Prior to
2009, he said they were short staffed in the department where there were various camps and
wanted the employees to identify problems with him concerning coworkers and Counsellors in
general and tried to mediate the situation. He said they were stressed and he had encouraged
an appropriate attitude and could refer to the harassment policy of the College in dealing with
the complaints about each other which he had addressed in general meetings. He said the
Counsellors felt harassment and there were misunderstandings between the roles of support
staff and Counsellors.
Mr. Pratt stated that when the Grievor was hired in January 2009, he provided a
package of information which had been sent to all of the Consultants and Counsellors and met
with the group to explain his role as a co-ordinator which was not a supervisor but a support
person and would be available for them at any time in his office. As to the Grievor, he said he
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saw a very intelligent and contemplative person who is not afraid to ask questions and was
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quick on the up-take. She was client centred and made sure that she saw clients very quickly
and prepared a plan of action for them. He said that based on what he saw of the Grievor, she
was the quietest at the meetings but what she said was important and her actions were
appropriate within the answers about clients and in the discussion of policies and procedures.
No one had ever come to him to complain about the Grievor who in the department meetings
was very professional and had her view of dealing with clients and service deliveries and was
not reticent in making suggestions in those areas. As to the issue of files, he said sometimes a
file is misplaced or taken out of the cabinet and not available but later returned to the file
cabinet which occurred with all the Counsellors. He said there had not been a good
relationship among the Counsellors in 2009 with persons being injected into the group and he
did not think that they clearly understood their mandates. He said the reported decisions of
Counsellors did not follow with dialogue and said that more of their decisions were being
second guessed and decisions reversed or ignored, more than he had seen in 27 years and it
was for him to resolve the problems with their Supervisor. The problem included the issue of
transfer of cases without consultation.
Mr. Pratt's role as a Co-ordinator was stopped on August 2009 but he was not
completely sure why that occurred although he would have preferred to proceed in that job as
with his long experience and had success in the department and related to students who had
issues with a Counsellor. He said the meeting on September 25, 2009 dealt with staff issues but
was not a discussion and it was a very uncomfortable situation because it was dealt with in a
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threatening manner by Mr. Chorney who was very frustrated and under duress and carne
across in an offensive and aggressive manner. He referred to his recollection of discussion
with the Counsellors about a student LM, a client of the Grievor because of the case transfer
was done without following the procedures and was a critical situation involving a referral to a
psychiatrist which was necessary according to the Counsellor who was not told as required by
the student of the transfer request. Mr. Chorney asked the Grievor if she was angry and her
reply was that she was asking for clarification because LM was her client and was bewildered
that the parties had not followed the agreed procedure for atransfer. The file process that
developed included a form for release of information and so the person who has access by
direction of a student if a Technologist needs to know some information in a file who is the
Counsellor involved who should be asked for access in the context of privacy matters. A copy of
an Information Consent form was filed, in the body of which the following information is set
out:
"We hereby authorize counselling-special needs services of
Canadore College to release educational medical standardized
test results and/or social information regarding—"
With regard to the transfer of students from an assigned Counsellor to another, is difficult as
the suitability of a Counsellor designated is an important factor and important to match such
student with a Counsellor who has a particular experience in the disability involved with the
student, which he said, is the basis for a transfer as well as the factor of workload. Counsellors
deal with learning disabilities of students as well mental health problems and other disabilities
22
of students including mental health. LM had the right tO choose her own therapist and doctor
even if it was a bad decision not to see the Grievor but the reason must be articulated to make
sure it was the decision of the student and then to arrange the best match. They tried to
accommodate student requests but also to deliver the right service to the student so that a
dialogue is entered into with the student as to the reason for the request for transfer. He said
that if the procedures were not followed, then the student iSnot entitled tD8 transfer without
a proper reason.
Co-
ordinator ceased. He did however, attend the meeting of Counsellors held on October I5,ZOO9
along with Mr. Chorney who had just met with LM and was very upset that the process had
failed. The Grievor mentioned a clarification of procedures were indicated and was not angry
when this was stated but just wanted clarification of the transfer process as the transfer of LM
should not have happened in the manner it did. He said the Grievor did not say a lot at that
meeting but that Mr. Chorney said that the process needed to be improved and acknowledged
that the normal process in this case had not been followed and that the Technologist (who was
not a Counsellor) did not follow their procedures for a transfer from the Grievor to another
Counsellor and that employee did not have the qualification to make that decision.
Mr. Chorney asked the Grievor if she was angry but it was only that she was asking the
question but in his opinion, it was an inappropriate question put to the Grievor regarding a
23
most difficult situation for the Counsellors. He said that Mr. Chorney was upset and distressed
at this meeting.
The Grievor's Resume presented to the College at the time of her hiring as a Special
Needs Counsellor include the following: PhD in Psychology and Master of Psychology and 8of E
each of which she gained iD University inRussia. Her prior work experience in Canada was
working as a psychometrist in North Bay General Hospital from 2003-2008 and then a
psychologist at Hospitals of North Bay, Elliot Lake, and at the Regional Police Internal Affairs
Department. |nl995 was a Professor ina State University inRussia. She has both English and
Russian languages and at present is a member of the International Academy of Behaviour
Medicine, Counselling and Psychotherapy, Ontario Association of Consultants Counsellors,
Psychometrists and has issued publications and conference papers as listed in her application to
the College. The Ontario Association of Counsellors has set guidelines for their practice to serve
clients to the best of their ability and as to the disclosure and storing information for
confidentiality and is required as a Counsellor to maintain files to a certain standard of
professional requirements together with consequences of failing to apply those guidelines. She
immigrated to Canada in 1999 at which time she did not speak English which she had to learn
along with the lifestyle differences from Russia. She said that in accordance with the culture in
Russia, she does her job and not socializing with other staff and as well is not comfortable with
the amount of information that individuals expect here as opposed to Russia where they do not
discuss personal information and is not comfortable giving a lot of information to others and
different than in Russia. She was told when she started with the College in 2009 that her role
34
was to provide counselling services to students with physical disabilities and mental health
problems, learning disabilities and later with persons who had been injured at work in relation
to rehabilitation procedures. She said she met with Mr. Pratt quite regularly after she was
hired and reviewed cases with him and dealt with any questions she had about the information
and how to deal with it and a3 well met with the Disability Counsellor to review the information
required and how to deal with it. At the suggestion of Mr. Pratt, she met with two
Technologists to find out what they could provide for clients and needed to learn the
information of what the Technologists did iO the department. She focused however, oD her job
responsibilities as a Counsellor and did not have relationships with the technologists.
The Grievor referred to her representation of a client who had a special need
concerning accessibility throughout the campus and could not use any of the elevators as a
result of his disability and that his mother had asked for assistance with regard to a safety plan
and emergency procedure for him. She did not receive a reply from the College Security
services. She also referred to a situation with the same client and had requested his mother as
to special medical and hygiene issues as to his need as a quadriplegic. Having no response from
the College, she discussed the situation with Mr. Pratt and was advised that the Centre could
not accommodate the student and subsequently brought this to the attention of Mr. Chorney
for a solution which as suggested, a lock on a door was not acceptable. When that semester
was completed, the student moved to another location where a special plan was developed
and acceptable for the student and in the fall semester. There was also a request for the
student at the new location for accommodation with a car parking permit at the closest
25
handicap spot to the building and brought that request to the attention of Mr. Chorney. She
was told that there was no special accommodation in the handicap area for an individual
student. The Grievor then referred to a number of issues arising among the counsellors at their
meetings concerning double duty in overbooking of students and vacation schedules with
minutes of a Counsellors meeting on March 20, 2009 attended as well by Mr. Chorney and most
of the Counsellors. In April, she arranged for the printing of the faculty guide available to all
Counsellors which she sent to printing. On April 6th, Mr. Chorney advised the counsellors of
Linda Turcotte's appointment as Manager of Operational Leadership, Athletic, Wellness and
Recreation and said that Linda then took over her working plan which had focused on the
operational components of the department which indicated that she reported to Mr. Chorney.
The Grievor said that in August she had arranged for printing of the faculty guide to be
available to all Counsellors. Carrie Pinkerton acknowledged their work together on the project
with pleasure and said that they had a good working relationship. She said that
Mr. Chorney did not speak to her about the hierarchy or marginalize anyone in the department
and she had no specific discussion with him prior to August from January until May 2009. The
Grievor said she interacted with Patti Stencil daily to organize the filing system and had a
working relationship with her. She referred to a meeting with Mr. Chorney on June 6, 2009
which was the first since January when she hired and talked of different perspectives in the
department. Further, the Grievor was assigned with the on-going responsibility in the summer
months while other Counsellors would be on vacation. Mr. Chorney according to the notes of
that meeting, "highlighted concerns about the division of the department into camps and
` 26
expressed concerns about Olga being lead down the wrong path." The Grievor said that when
she left that meeting, she felt that Mr. Chorney was satisfied with her job and the assistance
that she had provided to students. She raised an issue of the emails sent by technology which
she felt were inappropriate in a professional environment to which Mr. Chorney responded
that it was out ofhis control to do anything but he would bring ittothe Manager's attention.
There was a meeting of counselors on June 8 th and said she was not opposed to his suggestions
that the Technologists endtheCounsel|onsbebnoughttogetherfordiscussionoftheiosues.
The Grievor referred to changes made regarding a three day summer workshop.
Mr. Chorney had apparently changed the entrance requirements, but failed to advise her. The
technologist didn't inform her either and allowed students who did not previously meet the
criteria to enroll. She viewed the situation as technologists attempting to change and expand
the scope of their duties. She discussed the matter with Mr. Chorney in September when she
made recommendations for the following year.
The Grievor referred to the second meeting she had with Mr. Chorney and the noted
indicated her concern about closed door meetings and aggressive behaviour of other staff
members and discussed the division in the department. As well, she said they did discuss case
load and complexity of files which should be looked at to which suggestion he was receptive
and referred to a full meeting held later. Mr. Chorney noted that they discussed the divisions in
the department again and was reassured of her commitment to moving forward. The Grievor
said that she would not discuss her co-workers with Mr. Chorney and there was no discussion
FIN
m , her relationship with Mr. Chorney
about her behaviour. She said that up to September 14
was that ofa workday and she only approached him if she had student needs and had kept her
focus on counselling students. She disagreed that she had raised her voice to him and did not
recall any incident of such conduct which she does not do in a professional environment. She
attempted to deal with the tensions in the department by staying away from the divisions and
focused on her responsibilities as a Counsellor. She felt it would be inappropriate to allow
others to hear discussions between student and counsellor.
The Grievor referred to the meeting of Counsellors on September 25, 2009 when she
proposed a creation of a procedures binder for the Counselling staff. Carrie offered to work on
the project with her. She said that team building or staff issues were not discussed at that
meeting. It was in the second meeting that day as shown in the Minutes of Counsellors and
Technologists that the staff issues were discussed. Mr. Chorney had then introduced aCollege
policy called "Respectful College Community Procedures" to be reviewed by the staff and
indicated that he had received feedback concerning issues of criticism, intimidation and the
silent treatment among staff in the area. "Shaun expects this to be replaced with
communication, respect and professionalism". Following the meeting, the Grievor did not do
anything about his approach as it was not directed to any person but was a general statement.
There were no comments or concerns at that time of dissatisfaction with her performance.
The Grievor said that she had tried to keep a professional boundary in her working
relationships and did so with Patti concerning the file issue. She said that she used her average
28
voice which was not raised and approached the matter as a professional with the staff as to the
alleged missing file of the student involved who had been seen by a different Counsellor and
transferred by Mr. Chorney to another Counsellor. She had gone to the copier in the office and
pulled out the filing cabinet and when she opened the file of the student, found another file in
it which she put on the table and took both files after placing the extra file back in the cabinet.
She was later told by Mr. Chorney that there was a complaint from the ATs that she had
improperly removed the file from the cabinet and did something with it and then put it back in
the cabinet. Mr. Chorney was satisfied with that answer and she returned to her office. She
said she was not angry with the employees but was disappointed that they were unable to
communicate on a basic approach with her so that she could have explained her action. That
incident was never brought up again as an issue until the meeting concerning her dismissal by
Mr. Chorney.
As to the incident of LM who was a student assigned to the Grievor at the intake of new
students at the end of September, the Grievor said she determined that the student had
several problems with diagnosis of anxiety through stress disorders related to a physical
condition of a broken neck and also had a history of suicide, all of which was very significant
difficulties affecting her attendance and performance as a student. The Grievor considered her
past treatment and referred her to Dr. King, a psychologist and made arrangements for the
student to see the doctor and the student signed a consent form for the referral.
29
The Grievor said she was concerned with the safety of LM as well as her well being and
made her recommendations. LM asked the Grievor to send for proof of the diagnosis from her
doctor to be disclosed to Dr. King on the referral. The Grievor received a phone message from
Dr. King on October 15th that arrangements had been made to see LM but had called in to
cancel the appointment of the Grievor then found that she was no longer the counsellor for LM
which was a surprise to her with the information coming from the doctor. She then walked out
of the office after speaking to the doctor and saw LM standing near the Technologist's office
and asked her to speak to her which she refused to do or to come into her office. She put her
hand on LM's elbow to let her know that she could speak to her as a Counsellor at the office.
As she had received information from Dr. King that a student had cancelled the appointment,
she was concerned with the student's wellbeing as she needed help but was not clear as to the
situation as nothing had been added to the file. LM agreed to go into her office and the Grievor
denied raising her voice or dragging the student into the office as alleged but said LM looked
worried and was anxious. The Grievor did not receive information about the transfer to
another Counsellor and the procedure for a transfer was not followed so that she said she was
still LM's counsellor according to the records and had a professional obligation to the student
and could be held responsible for anything that could happen to LM as she was still her
Counsellor of record.
The Grievor sought to clarify the situation with Ms. Linda Turcotte who was not there
and she went to see Mr. Chorney in his office where Linda was standing at the side of his desk
and asked for an explanation and clarification of the situation with LM. She said she was not
Wt
angry and did not raise her voice just asked for clarification. Mr. Chorney told her that he was
aware of the situation as being told b» Linda a3to the transfer and that she would not beLK4's
counsellor. She said she was disappointed that the procedure was not followed and told him of
her concerns of applying the transfer process properly but had no,response from Mr. Chorney
and she left and returned to her office.
At the meeting on October 15th with the counsellors and as part of the discussion in the
Minutes, it is notBd—
"that the student was not accepting 0f the treatment plan put
forth by her counsellor and as such requested another counsellor.
|t was noted that this is not a substantive reason for changing
counsellors and that students need to understand and adhere to
the processes outlined h« the Counselling Departrnent—"
The Grievor said that she outlined briefly important points of the circumstance
regarding LM and that there was a procedure in place which had not been followed in a
transfer which was a concern of possible consequences as a professional but she accepted the
decision. She said that there were no discussions with her about that meeting on October 15 m
and October 22 nd when her employment was terminated and said that there had been no
nd which was a
meetings with him about her behaviour and performance prior to October 22
usual day of work and appointments had been scheduled with her and there was no further
explanation from Mr. Chorney other than what was in the letter. She returned to her office,
had her husband help her clear the office, called the Union Representative and left the College,
31
she said did not then fully realize the impact of her dismissal which was significant as to her self
esteem and confidence with no expectation or indication that this was coming and as a result,
went into a depression and then looked for other work as financial support was needed for her
family. She obtained a position of Manager of Student and Youth Mental Health Centre in
North Bay and started that job as of January 11, 2011 at a salary of $64,000.00 per year. She
said that if her claim in the grievance was allowed, she would consider returning to the College
but was concerned with what had happened prior to her dismissal and whether she could work
again in the environment and the atmosphere with which she was not comfortable prior to her
dismissal.
In cross examination, the reference to post hearing correspondence with officials of the
College are relevant to the Board's decision as to the claim for reinstatement to her previous
position as Counsellor at the College. We will not set out in detail her complaint to the
President of the College dated March 1, 2010 in which she claims that there was a breach of
contract, denial of natural justice and procedural fairness in the administration of her decision
affecting her rights and in which she stated that the complaint could not be submitted by an
Advisor as Mrs. Kerr's position as Vice President of Human Resources, Student Services, would
"in a 'biased' and unfair position which would adversely affect any
decisions, investigations, and it would deny me the principles of
natural justice and procedural fairness in the administrative
decision affecting my Rights. Therefore, I submit this complaint
directly to you so there can be some responsibility for any denial
of procedural fairness in my case...
32
Based on the above statements and facts, |arn making the
following allegations supported 6» section l.2.6of the Respectful
College Community Policy based on the direct activities done
against rD8byDOycO-vVorke[s.
On October 62009, Mr. Chomey witnessed harassment against
rn8 and failed to enforce my 'Rights' in this Respectful College
Community Policy. False allegations were made against nD8 and |
arn summarily dismissed when Mr. Choqneyis the person
committing violations ofthe law, college policies, and the
coUectiveag[8e[DeOt."
There follows her reference to other allegations made concerning the incidents leading up to
her termination. She said that she believed that the other employees in this department
intended to cause her harm and conspired to do so. She said that Mr. Chorney is not a trained
Counsellor but had counselled students inappropriately as a Manager but without accreditation
in the profession. She also filed a Human Rights application under Section 34 of the Human
Rights Code in June 2010 and under the heading of "other important information", in the
application to the Tribunal, in part is —
"K4r.Chorney took away from a senior counsellor his co-ordinator
status and harassed the counsellors on'overtinne' and other
issues. The manager harassed the counsellors while empowering
and rewarding support staff with the power to report any
movements ofthe c0UDS8UOr3. His many enn3ilstocounsellors
will show how poorly h8 treats professional counsellors like
children. "
In addition, the Grievor filed with the President of the College a complaint concerning
Mr. Chorney's allegations and the violation of the operational policy of the College and
specifically "did not discuss with me the concerns that he refers to in Paragraph 1 of his letter.
]3
He did not initiate any progressive discipline nor did her give me progress reports in writing as
he was required in accordance with my substantive rights in the collective agreement."
The Grievor also referred to the report of Elizabeth Korngut to Mr. Chorney dated
September 28, 2009 with reference to the transfer procedure as between counsellors which
she marked as having high importance and in part stated in this letter —
"in the future, when similar client/students related situations
occur, before any decision is made, | would like you tobenotified
so you can listen to the other side of the story in order to get afull
objective and comprehensive view of the situation. An
uninformed decision and setting this precedence could lead to
opening apandora's box of counsellor shopping around..."
This was in support of the Grievor's case after the issue of the transfer of a student from her
and the matter was considered at a Counsellor's meeting. She also referred to the undermining
of her duties as a Counsellor in these circumstances of LM and claimed that her duties and
responsibilities were being undermined and both Ms. Stencill and Mrs. Pinkerton-Steer
"deliberately had made this confrontation happen by keeping silent for one week... They
deliberately harassed me k» creating a ooOf[ODt8tOOel issue with MFS.TurC0tt8, Administrator"
which relates to her claim with regard to improper transfer procedures being followed in
October 2009 and said that both then and when she testified the statement indicates what she
believed. The Grievor further indicated in the official complaint filed on October om and
referred among other statements to the emails which had been received by Mr. Chorney and
her objection about receiving these kinds of emails "He did not take my request seriously and
34
tried to make a joke about it" and she felt that his response was "inappropriate and very
offensive". Further she alleged in that complaint —
"Mr, Chorney and Campus Life staff acted with vexatious
behaviour that is known or unreasonably to be known to be
unwelcome and that took the form of repeated conduct which
would be reasonably regarded as intending to intimidate, offend,
degrade or humiliate an individual..."
As to the situation with the student, LM, the Grievor said that this person was her client
and she was her counsellor but had no personal relationship with the student. She did not
know of any animosity that the student had with her and referred to her receipt of a letter from
LM to
Mr. Chorney dated October 19, 2009 and said that she did not force LM to speak to her but
explained to her how the physical transfer was made in the department and it was the
counsellor's responsibility to follow the procedure. She said she believed that LM needed
psychiatric help and otherwise she would not be able to complete the program and later had a
chance to talk to Carrie and then had a chance to speak to LM to explain what had happened as
to the transfer. She subsequently talked to Mr. Chorney about the problem of the transfer
because it was in conflict with the procedure and asked him why the incident had not been
documented. She said that with regard to the transfer, her concern was with the protocol issue
and not about LM but explained to Mr. Chorney that the procedure for a transfer was not
followed.
35
After the completion of the evidence, Counsel for the parties made oral submissions as
to the evidence and issues and subsequently filed a compendium of the College and a list of the
authorities referred in support of the submissions of the College as follows: Re Abex Industries
Ltd. and UFCW, Loc 173W 1995\ 48 LAC (4 � � )353 /H.O. Brown; Re AH v. Le Club Child Care
_2011HRTO769(CanU|); Re BC Rail Ltd. and United Transportation Union Locals 1778
and 1923 /I3 December 20O2LKinzie\; Re Algonquin College and OPSEU, Local 415 (Sumitro)
/24 July 2OO6,KnonR; (15 September 2OO8,Frands);
Re Centennial College and OPSEU, Local 558 5 March %003, Knopf); Re Georgian College and
OPSEU (Konnad) (5 August 2O1l,MacDVxveU); Re Leonardo v. House on Parliament Restaurant,
2009 HRTO 1948 (CanLII); Re Service EmploVees International Union, Local 532 and McMaster
University 1972\24 LAC Z65(Robe'ts); Re University of Waterloo and University of Waterloo
Faculty Association (Pan) (2007)168 LAC (4 � � )1(ShiOlp).
In the Union's written submission, the following references as set out: Re Abex
Industries Ltd. (supra); Re Canadian Forest Products and P.P.W.C., Local 25 (Aken) (Re),
D.C. Philips); British Columbia, File No. A-151/02, June 10, 2002; Re Algonquin College and
Ontario Public Service EmploVees' Union, Local 415 (Knopf, July 24, 2006); Re Shiv Chopra and
Canadian Human Rights Commission (August 13,2OOl, File No. l[D.IO/Ol\.
In the Abex Industries award, the standard for termination of a probationary employee
is restated 8sfollows:
131
"The arbitrator went VDtofind that the Employer's right b}
terminate a probationary employee must be subject tothe
implied limitation that it will not be exercised iDa manner that is
arbitrary, discriminatory orin bad faith and that the onus to
establish that test lies with the grievorto meet the more narrow
test and further, the burden lies with the g[i8VVr who has made
the allegation with regard tO the termination. It was also found
that the just cause standard does not apply and that there is a
narrower scope of review 0f the employer's action. |n this case, it
was found that the Company had not set out the terms of
employment and its expectations of the employee on the job to
which he had been assigned and therefore was not based "on all
of the relevant considerations nor was it3 reasonable view ofthe
grievor'S work performance iOthe background pertaining tothat
particular probationary period. Its decision was made indisregard
of those material facts and was therefore orbitrary..."
In the Algonquin College award, there is reference atp.GOtothe Toronto case, where it
is stated:
"During that period, an employee can be 'let go' for reasons that
would never withstand review if s/he was entitled tothe
protection ofa 'just cause' provision. At the same time, the
probationary employee is entitled to the opportunity toprove
his/her worth. However, their only real protection for continuing
employment status is the requirement that the employer act
lawfully, in good faith and make its judgment onthe basis ofthe
probationer's actual performance.
Bad faith can involve malice and/or evil intent...
A Board of Arbitration that is asked to review the termination of a
probationary employee does not undertake 8 weighing ofthe
employer's decision tOdetermine its correctness; the review i3
restricted tO3 consideration Of whether the decision was
arbitrary, discriminatory orin bad faith."
37
And further reference is made to the Family Services and OPSEU award that:
"Even though the decision is left 'at the sole discretion' ofthe
employer, the employer must exercise this discretion properly. It
has been held tobe arbitrary to simply accept incidents or
reported conduct as critical facts without given proper
consideration tV the matter. The employer must base its decision
on the facts it finds after o reasonable investigation—"
The Board in that case made a further reference to the serious matter of the assertion of bad
faith for which there must be clear evidence. We do not find in the circumstances of the
present matter that Mr. Chorney in making it his decision to terminate the probationary period
of the Grievor and thus her employment at the College was motivated or involved in bad faith.
What we find however, is that he did not properly investigate the totality ofhis concerns with
the employment of the Grievor and her conduct in dealing with the responsibilities to students
as a Counsellor. The evidence is clear and we so find that there was indeed separate fractions
in the department and problems existed not only on the surface but in reality between the AT's
and the Grievor which was manifested in the misfile incident as well as with LM and neither of
those circumstances were, we find, amply considered in Mr. Chorney's decision which was not
based on all of the material facts which were obvious at the hearing of the grievance but
overlooked in essentials of the Grievor's conduct particularly with her responsibility to the
student as her Counsellor which was not sufficient in our view for the allegation that the
Grievor was simply concerned only with the process of a student's request for transfer to
another counsellor but rather her commitment professionally was to probe as she did, the
IM:
reasons for the transfer made without request in accordance with the procedure but also with
regard to her professional responsibilities to such student was ignored and not followed
through by Mr. Chorney before the termination was effected. While we are satisfied and so
find that Mr. Chorney did not act or base his decision to terminate the Grievor's employment
on the basis of race or culture differences, the indicated case in the Chopra award (supra) of a
scent of discrimination is sufficient simply does not apply in the circumstances of these
grievances and is not established in any event as having any application to the decision of the
College to terminate the Grievor's probationary period.
The main issue in the circumstances of the Grievor's employment as a probationary
employee of the College is whether the decision set out by Mr. Chorney in his letter dated
October 22, 2009 to release the Grievor from the probationary appointment effective as and
from that date was arbitrary. There can be no doubt that Mr. Chorney was concerned with the
relationship of the Grievor with the other members of the team as indicated in the evidence yet
there is no doubt that the Grievor was qualified in her professional capacity as a Counsellor and
had performed those duties competently within the professional work environment. The main
concern expressed by Mr. Chorney is that she would not fit within the team concept in the
department of Students Counselling yet as we have noted in the final incident concerning LM
and with reference to the conclusions reached by Management without delving further in its
consideration of the incident had not obtained and did not consider material facts in a situation
which obviously was the critical and therefore conclusive reason for Mr. Chorney to take the
nd
action of termination of the Grievor as set out in his letter dated October 22"d. As a result, the
]9
Board finds that his decision to terminate the Grievor's probationary employment was arbitrary
and thus cannot be upheld. The Grievor was not given an opportunity to discuss or defend her
conduct of her duties as a Counsellor with regard to her perceived cultural background
distinctions in the manner of carrying out her duties. Yet the evidence was that there was no
question of her qualification in that regard and importantly in the context of the decision,
ultimately made by Mr. Chorney, the Grievor was not given the opportunity to respond to his
concerns about her background asit might have 8 factor concerning her employment functions
and more particularly, how her background of education and experience outside of Canada,
could be adapted to the obvious structural hierarchy in the department. These considerations
were material but not properly considered iO the circumstances. |n that regard, however, vve
note the evidence of Mr. Chorney that he had no issues with the Grievor's performance as a
Counsellor and had met the requirements of the definition of that position in the collective
The Board concludes on the totality of the evidence and the submissions of the parties
that the release of the Grievor's employment on probation was arbitrary as not being based on
substantial material facts and therefore improper and cannot stand. We have considered the
Grievor's testimony concerning her attitude to her job responsibilities which she would or could
not adjust to deal with the unfortunate attitudes of other employees in the department. As a
result, there were bad feelings and lack of co-operation involved in the relationships of the two
groups of employees. That aspect of the Grievor's performance and the post discharge
statements of the Grievor established that her reinstatement as a Counsellor cannot be
40
supported. The remedy as a result of the Employer's improper action however is not her
reinstatement in the probationary period as noted above but for compensation for the
Grievor's loss of pay and benefits from the time of her dismissal for the balance of her
probationary period.
In all of the circumstances, the Board further finds that the Grievor's demand for
damages cannot be supported and is dismissed. We note that the Grievor obtained other
employment within her professional qualifications to her credit and which were not diminished
in effect as a result of the decision of the College to release her from probationary
employment. The remedy applicable to the grievances as filed referred to above is for
compensation for loss of earning and benefits as noted, the Grievor's request for reinstatement
and damages are denied.
The Board directs the parties to determine the amount of the compensation within the
terms of this award tobe applied and paid to the Ghevoras soon as possible upon the release
41
of the award. Should the parties be unable to settle the compensatory issue between them,
the Board retains jurisdiction as to that issue in the implementation of this award.
DATED AT OAKVILLE THIS 5 m DAY OF MARCH, 2014.
D. BROWN, CHAIR
t/ � /
SHERR|LKHURR4Y UNION NOMINEE
_~ �
MARC PIQUETTE, COLLEGE NOMINEE