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HomeMy WebLinkAboutHigginson 14-03-13IN THE MATTER OF AN ARBITRATION BETWEEN: ONTARIO PUBLIC SERVICE EMPLOYEES’ UNION, LOCAL 245 -AND- SHERIDAN COLLEGE Grievance of Judy Higginson, 2011-0245-0004 Before: Mary Ellen Cummings, Chair Ron Davidson, Union Nominee Michael Riddell, Employer Nominee Appearances: Val Patrick, Jay Jackson, and Judy Higginson for the union Brenda Bowlby, Lori Elliott and Ryan Piper for the employer Hearing held at Oakville on December 7, 2011; September 25, December 3, 10 and 18, 2013; January 9 and 27, 2014 Award released at Georgetown on March 13, 2014 -1- AWARD 1. The Ontario Public Service Employees Union filed a grievance challenging the imposition of a one day disciplinary suspension on Judy Higginson. Sheridan College asserts that Ms. Higginson bullied a colleague, Kuljinder Lall, and in that same discussion, spoke loudly and unprofessionally in an open area of the workplace. Sheridan College also asserts that when two members of management sought to de- escalate the situation, Ms. Higginson spoke to one of the managers in an insubordinate way. 2. The union responds that Ms. Higginson did not bully the colleague and that all of the discussions between her and Mr. Lall were collegial and appropriate. The union further argued that the collegial conversation the managers entered only escalated at the instance of one of the managers. The union asserts that there was no basis for any disciplinary action against Ms. Higginson. Summary 3. We heard evidence from the two managers, from the grievor, from Mr. Lall and from Cory Latimer, another employee who was present throughout. They testified between two and three years after the events. They have different recollections of the words used, the tone, the volume, the body language and the level of emotion. We believe that their differences arise from their varied perspectives and their expectations of what is appropriate. 4. The union devoted much evidence to explaining the events that preceded the conversation with Mr. Lall, which the managers then joined. The union sought to explain the events, presumably to justify why Ms. Higginson and Mr. Latimer approached Mr. Lall. As counsel for the employer noted in asking the Board to limit that evidence, the events that preceded were not of much relevance. The employer was not troubled by the issues that were discussed but by the manner and tone. In the course of the hearing, we were convinced that Ms. Higginson and Mr. Latimer were focused on proving they were right about the issues they were discussing with Mr. Lall. Having witnessed for ourselves Ms. Higginson and Mr. Latimer's strong advocacy for the positions they were putting to Mr. Lall, we have trouble accepting their evidence that the discussion with Mr. Lall was courteous, joking, collegial and low key. Instead, we conclude that Ms. Higginson put her views very forcefully to Mr. Lall, over a length of time, in the presence of others and that Mr. Lall understandably felt chastised and embarrassed. 5. We conclude that the employer was justified in disciplining Ms. Higginson. Ms. Higginson received a non-disciplinary letter of expectations on November 6, 2009. Among other comments, Ms. Higginson was advised that "Professional communication between employees is vital to creating this climate where business is being conducted in close proximity with staff and students". Ms. Higginson was counselled to guide, advise and problem solve with colleagues in a way that was "respectful, positive and constructive" which includes "...modulating the tone and volume level of your conversations". We are satisfied that Sheridan had told the grievor that she was expected -2- to speak respectfully with colleagues and needed to change her tone and volume. Because that expectation was communicated so clearly, we see no reason to reduce the one day suspension which was given, less than two years later, for the same sort of conduct Ms. Higginson had been counselled about. Background Facts 6. As set out above, the extensive background facts adduced in the union's evidence were not relevant to the events that led to the discipline. However, the emphasis placed by Ms. Higginson and Mr. Latimer on the background events belies their testimony that they were having a friendly discussion with Mr. Lall about procedural issues and better communications. 7. Mr. Latimer and Ms. Higginson were Co-op Advisors/Job Developers, working out of the Career Centre, seeking appropriate co-op positions for students in various programs in the Faculty of Engineering. Ms. Higginson and Mr. Latimer worked closely together because they found that they were often approaching the same employers to place their students. Although there was some implied criticism by the employer in how closely they integrated their work, it was clear that the employer was aware of it before the events, and had done nothing to change it. Mr. Latimer and Ms. Higginson worked as a team. We sensed that they had a strong commitment to finding good placements for the students and for cultivating and maintaining strong relationships with prospective employers so that they would be willing to continue to hire Sheridan students. Ms. Higginson and Mr. Latimer take their responsibilities very seriously and have developed what they see as a successful approach. 8. On April 7, 2011, an automotive industry employer was scheduled to interview both engineering students and human resource students at the Davis campus. The Human Resources Co-op Advisors, Jenny Peach and Kuljinder Lall, are based at the Trafalgar campus. In the evening of April 6, Ms. Higginson realized that some human resources students had cancelled interviews, and the employer representative would have gaps in her interview schedule. Ms. Higginson worked much of the evening to fill the gaps. In the morning, Mr. Latimer learned of another cancellation and tried to resolve it. In the course of trying to resolve it, he looked at a database used by all of the Co-op Advisors and noted that a number of "Sheridan jobs" had been posted by the human resources co-op advisors that were not real jobs. Sheridan hires co-op students but these entries, Mr. Latimer thought, were instead, meetings that Ms. Peach had set up with students. Mr. Latimer and Ms. Higginson thought the postings were misleading and would affect the accuracy of job posting statistics. 9. Ultimately, the automotive industry representative arrived and was greeted by Ms. Higginson and Mr. Latimer. Students were interviewed. Mr. Latimer and Ms. Higginson debriefed and took the representative to lunch. When the representative left, Ms. Higginson and Mr. Latimer realized that the representative had failed to take one of the student's completed application form and that it would be needed for the representative to make a job offer. -3- Events that led to the discipline 10. Ms. Higginson and Mr. Latimer went to find Mr. Lall. He testified that he was in an office at Davis, making a personal call. He said that Ms. Higginson interrupted him, saying "we are here to stab you". Mr. Lall said that he did not take the comment as a threat, only an opening gambit, but he was a bit thrown off, because he was talking to his brother on the phone, who responded "are you okay?". Mr. Lall finished his call and turned to Ms. Higginson and Mr. Latimer. Mr. Lall testified that Ms. Higginson complained that they had had to "babysit" his employer and wondered why he had not been there for the interviews. Mr. Lall said that Ms. Higginson complained about gaps in the schedule. Mr. Lall attempted to explain that if students cancel after work hours, there is not much that can be done. Ms. Higginson told him she did not think his team was telling him the truth. According to Mr. Lall, Ms. Higginson waved the student’s forgotten application form in front of him and said that he had to send it to the employer's representative now. According to Mr. Lall, he agreed to do it but Ms. Higginson said "no, we will take you to the copier room and you will scan and send it now". Mr. Lall agreed. 11. Mr. Latimer said that Ms. Higginson did not make the "we are here to stab you" comment and that she asked Mr. Lall if he knew how to scan and he said no. Ms. Higginson denied making the "we are here to stab you comment". She does not recall asking Mr. Lall if he knew how to scan. She assumed that he did not know how to use the scanner at Davis because he was not at that campus often. 12. Mr. Lall, Ms. Higginson and Mr. Latimer then went into the supply room. We did not hear why three people were needed to scan and e-mail a document. The copier is in a supply room that opens off the Career Centre. The Centre is a large open space, populated by students, Co-op Advisors and a receptionist. Mr. Lall testified that Ms. Higginson scanned and emailed the document, pressing the buttons and taking over. Mr. Latimer testified that Ms. Higginson showed Mr. Lall how to scan and e-mail. 13. According to Mr. Lall, Ms. Higginson then said they had an employer show up for an interview and the student was not there. When Ms. Latimer looked at the interviews in the database, he saw there had been a mix up about which campus the interview was to take place. Mr. Lall said that he later found out this employer had nothing to do with him. But in the supply room, Ms. Higginson told him that when they looked at the database they found “phony jobs” posted. Mr. Lall said that the conversation at this point was quite loud and Ms. Higginson was almost yelling. He asked what were “phony jobs” and Ms. Higginson said that his colleague, Jenny Peach, had used the database to post her interviews with students. Mr. Lall responded that it had always been done that way, but Ms. Higginson loudly insisted that it was wrong. Mr. Lall said that Ms. Higginson was gesturing with her hands in front of his face, and Mr. Latimer was standing to the side. Mr. Lall said that he asked Ms. Higginson why it mattered and she said, loudly that as a computer guy, he should know that it would affect statistics. Mr. Lall testified that the receptionist looked into the open doorway, then retreated and that he could see students looking in the door in response to the noise. He said that he felt embarrassed. 14. Lori Elliott, Director Career Education, then came in the supply room. She testified that she arrived at the same time as Manager, Co-op Education, Derek Fairman. -4- All of the other witnesses testified that Ms. Elliott arrived few seconds or minutes before Mr. Fairman and we conclude that is the more likely sequence, although nothing particularly turns on it. Ms. Elliott asked what was going on and according to Mr. Lall, Ms. Higginson told Ms. Elliot that Mr. Lall and Jenny Peach were posting their student interviews as jobs. It appears that the next few minutes were spent in a mix of Ms. Elliott trying to understand the problem, and asking questions and also trying to get the conversation moved out of the supply room. 15. Although both Ms. Elliott and Mr. Fairman said that they were drawn to the photocopy room by Ms. Higginson’s loud voice and the disruption it was causing to the students in the Career Centre, Ms. Elliott and Mr. Fairman did not immediately shut down the conversation. According to the evidence of Mr. Lall, Ms. Higginson and Mr. Latimer, Ms. Elliott wanted to understand what Ms. Higginson and Mr. Latimer saw as a problem in the way the interviews were posted, and asked a number of questions. According to Mr. Latimer and Ms. Higginson, at some point, Ms. Higginson raised a concern about the integrity of statistics when they were sent to the Office of the Dean of Applied Science and Technology. In response, Ms. Elliot said “what’s Jocelyn Piercy [Dean of Applied Science and Technology]…got to do with it?” Ms. Higginson and Mr. Latimer said that Ms. Elliott made that comment in a loud voice. Mr. Fairman recalled Ms. Elliott saying that the statistics were none of Jocelyn Piercy’s business in response to Ms. Higginson’s concern about the reliability of data provided to Ms. Piercy if it contained the “phony jobs”. Mr. Fairman said Ms. Elliott was stern but not loud. Mr. Lall did not recall that exchange. 16. According to Mr. Lall, someone was waiting to meet with Ms. Elliott and Ms. Fairman, and after a few minutes of discussion, Ms. Elliott said “let’s table this” and suggested getting another knowledgeable systems person involved. Mr. Lall said that Ms. Higginson kept talking, insisting on her points and Ms. Elliott and Mr. Fairman both said words similar to “let’s table this” and “Judy stop it” and the conversation ended. 17. Mr. Lall said that he returned to his office, shaken. He said he felt threatened by the loud and insistent way Ms. Higginson spoke to him and very embarrassed. He testified that he wondered what the students who overheard the event would think and how much respect he would have with them. He stayed away from the Davis campus for the two weeks it took him to recover. Since that time, he has competed for a job at Davis and now works closely with Ms. Higginson, with no difficulty. 18. The testimony of Ms. Higginson and Mr. Latimer does not differ substantially from Mr. Lall’s, except that both deny Ms. Higginson saying to Mr. Lall, “we have come to stab you”. As set out above, Ms. Higginson and Mr. Latimer’s testimony focused on establishing that they were right to raise their concerns with Mr. Lall, to explain how events had unfolded that morning as a result of his and Jenny Peach’s errors. Mr. Latimer, in particular emphasized that Ms. Higginson had stayed late the night before to fill interview holes, that the relationship with this employer was very important and the efforts that he and Ms. Higginson had made to resolve issues that they felt had been caused by Mr. Lall and Ms. Peach. 19. Both Mr. Latimer and Ms. Higginson deny that Ms. Higginson spoke to Mr. Lall loudly or in a berating fashion. But they have provided no explanation about why both of -5- them needed to accompany him to scan a document, and we conclude that it was to provide a united front to list all of the mistakes and problems he and his colleague had caused Ms. Higginson and Mr. Latimer. And they have provided no explanation for the loud voices that caused Ms. Elliott and Mr. Fairman to cross the Career Centre and enter the supply room. Analysis and decision 20. The union has not provided a reason to explain why Mr. Fairman and Ms. Elliott would have approached Mr. Lall, Ms. Higginson and Mr. Latimer in the supply room unless something drew their attention. We conclude that Ms. Elliott and Mr. Fairman heard Ms. Higginson speaking loudly and with agitation, and that attracted their attention. 21. We are satisfied on the evidence that initially, Ms. Elliott engaged Ms. Higginson in conversation, to try to understand the problem. Ms. Elliott and Mr. Fairman did not initially tell Ms. Higginson to be quiet, nor did the managers move the conversation out of the supply room to a more private place. We are not finding fault with that approach. However, it left Ms. Higginson with the impression that Ms. Elliott wanted to engage in a conversation and did not convey that the managers thought Ms. Higginson’s manner of speaking to Mr. Lall was problematic. We appreciate that Ms. Elliott and Mr. Fairman did not hear all of the conversation in the copier room and did not know how Mr. Lall, Mr. Latimer and Ms. Higginson came to be in the copier room. They did not have the whole story. But their first instinct was not to end the discussion, but to understand it. 22. Consequently, while we are satisfied that Ms. Higginson spoke loudly and forcefully to Ms. Elliott, as she had been speaking to Mr. Lall, Ms. Higginson was not insubordinate. She did not speak in a manner that challenged Ms. Elliott’s authority, directly or indirectly, but continued to try to convince Ms. Elliott of the merits of her position. We also think it is more likely than not that Ms. Elliott became more animated. Mr. Latimer and Ms. Higginson both recall Ms. Elliott raising her voice with “what’s Jocelyn Piercy got to do with it?” Ms. Elliott’s approach to try to understand why Ms. Higginson was speaking so loudly and forcefully, instead of trying to end it immediately, would have left Ms. Higginson with the impression that a continued discussion was appropriate. It took Ms. Elliott and Mr. Fairman a couple of efforts with “let’s table this” and “Judy stop” to end the conversation but ultimately, Ms. Higginson did stop talking. 23. The conduct that Ms. Higginson engaged in is worthy of discipline for two reasons. She spoke to Mr. Lall in a loud and insistent manner and overall, treated him without respect. She criticized him for not coming to the employer interview, blamed him for the “phony job” postings, led him to the copier and scanned the document, as if he would not know how to do it. She continued to berate him for not agreeing with her view about the “phony jobs” posting for some time, and in a very loud voice. Ms. Higginson began talking to Mr. Lall in private, but then continued in the more public space of the supply room where students and other staff could overhear. She spoke so loudly and with such agitation, that two managers were attracted to the room. This conduct towards Mr. Lall occurred over a number of minutes and both upset and embarrassed him. Moreover, it was the very sort of behaviour that Ms. Higginson had been counselled not to repeat in the letter of expectation. -6- 24. While we conclude that Ms. Higginson was not insubordinate to Ms. Elliott, Ms. Higginson’s behaviour in the supply room was inconsistent with the model that Ms. Higginson and her colleagues should be demonstrating to students. Ms. Higginson works in the Career Centre. As Ms. Elliott testified, staff in the Career Centre should not be leaving the impression that it is acceptable to yell at your work colleagues. In our view, the setting and fair expectation that Ms. Higginson model appropriate employment behaviour are aggravating factors. Having concluded that Ms. Higginson engaged in misconduct, we see no basis to reduce the employer imposed discipline of a one day suspension. Signed at Georgetown, this 13th day of March 2014 Mary Ellen Cummings, Chair “Ron Davidson” I concur/dissent “Michael Riddell” I concur/dissent