HomeMy WebLinkAboutRickard 14-06-25IN THE MATTER OF AN ARBITRATION
BETWEEN: ONTARIO PUBLIC SERVICE EMPLOYEES UNION,
LOCAL 557
CANADORE COLLEGE
( the "Union")
(the "College")
AND IN THE MATTER OF THE GRIEVANCE OF SYLVINA RZCKARD
OPSEU $#201.2-0657-0006 (ACADEMIC)
BOARD OF ARBITRATION
APPEARANCES
For the Union
For the Employer
Robert D. Howe, Chair
Pierre Martin, Union Nominee
Rock Foy, College Nominee
Jane Letton, Counsel
Sylvina Rickard
Tom Hanrahan
John Patterson
Wallace Kenny, Counsel
Susan Pratt
Lisa McCool-Philbin
A hearing in the above matter was held in North Bay, Ontario,
on September 18, 2013, and on April 2 and 3, and May 8, 2014.
On November 1, 2012, a grievance containing the
following information was filed with the College by Sylvina
Rickard (the "Grievor"):
STATEMENT OF GRIEVANCE
I grieve that the college has violated specifically,
but not exclusively, Articles 4 and 6 of the College
Agreement and the Ontario Human Rights Code in that it
has not addressed my concerns regarding bullying and
harassing behaviour directed towards myself by a senior
manager at the college. I feel that this unwanted and
unwarranted behaviour has been directed at me because
of my status as a First Nations person. This continued
behaviour led me to tender my resignation from the
college as of December 31/2012. As a result, the
college has removed me from my classroom duties.
Moreover, I see the removal of my teaching duties
as further harassing behaviour with the intent to
humiliate me and attack my professional reputation and
human dignity.
SETTLEMENT DESIRED
That the college immediately reinstate me to all of my
classroom duties.
That the college cease and desist form all harassing
and bullying behaviours.
That the college provide me with a written letter of
apology.
That the college rescind my letter of resignation.
That the college compensate me for the undue stress and
suffering that this situation has caused me.
During her opening statement, Union counsel advised
the Board that reinstatement was no longer being requested.
The Grievor's request for rescission of her letter of
resignation was also not pursued in these proceedings.
However, in addition to a letter of apology and a direction
that the College cease and desist from all harassing and
bullying behaviours, damages and compensation in the amount of
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$50,000 plus three years' salary were sought on behalf of the
Griever.
Facts
The Grievor is a Registered Nurse who has also been
trained as a Nurse Practitioner. She chose to become a nurse
because she felt there was a need in her community as First
Nations people had a lot of very preventable health issues,
and because she felt that she could be a role model. She was
originally from Moose Factory. Although there were locally
trained First Nations nurses at the hospital at which she
wanted to work, she chose to go south to experience diverse
populations. After graduating from the College with a nursing
diploma, she obtained a Bachelor of Science in Nursing from
Laurentian University and then a certificate as a primary
health care Nurse Practitioner from Queen's University.
After teaching a nursing course at the College as
a sessional instructor during the spring of 2011, the
Grievor applied unsuccessfully for a position as a clinical
instructor, having previously worked one term for Nipissing
University as a clinical instructor in a community
placement. However, she was subsequently contacted by Lisa
McCool-Philbin, the College's Dean of Health Sciences, Human
Care and Wellness (the "Dean"), who offered her a position
(for which she had not applied) as a full-time nursing
professor commencing in mid August of 2011. The Dean has been
with the College since October of 2006, and has approximately
a hundred full-time and part-time staff reporting to her.
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In describing the courses that the Grievor would be
teaching, the Dean told her that the College was planning to
implement a cultural safety course to create student awareness
of First Nations culture, that she was very excited about the
course, and that she wanted the Grievor to teach it. The Dean
told the Board that she also wanted to hire the Grievor for
that position because she thought it would be a good idea to
have a First Nations professor teaching in the College's
nursing program, which has many aboriginal students.
It was the Grievor's evidence that when she asked
about the salary for the position, before giving her a figure
the Dean said "You don't pay taxes, right?", to which she
replied that she was offended by her comment and that she did
pay taxes because she was employed off the reserve. The
Grievor told the Board that this offended her "because the
general population believes that First Nations people get
everything for free and we don't pay taxes for employment but
that's not true, and I was offended that this comment came
from an educated employee at Canadore College who is
spearheading a cultural safety course".
The initial salary offered to the Grievor was about
$62,000. However, when the Grievor expressed dissatisfaction
with that amount, the Dean undertook to discuss it with Human
Resources based on the Griever's education and experience.
Through that discussion, the Dean managed to obtain an
additional $5,000 for the Grievor, who then accepted the
position. (The Grievor's salary subsequently rose to
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approximately $69,000 in the fall of 2011, as a result of a
negotiated increase.)
The Dean's recollection is that when she offered the
Grievor the final salary amount, she asked the Grievor if she
lived on the reserve or in town because she "thought that if
she didn't pay taxes, her take-home pay would be more". She
raised that matter because she really wanted the Grievor to
work at the College and was attempting to persuade her to
accept the position. The Dean did not mean any offence by
that question, and has no recollection of the Grievor
indicating that she was offended by it in any way until many
months later, when the Dean met with her and a local Union
official to discuss student complaints about the Grievor.
Although the Grievor was offended by the Dean's
reference to her taxation status because she felt that
the Dean was stereotyping her, she acknowledged in
cross-examination that the Dean hired her, obtained a higher
salary for her than was initially being offered by the
College, was very enthusiastic about the cultural safety
course, and "bragged about how good it was to have [the
Grievor] employed by the College". During cross-examination,
she also told the Board:
At the beginning of my employment [the Dean] and my
relationship was respectful and we got along. As my
employment progressed, there was deterioration in my
employment and my relationship with her. Initially she
was happy but then our relationship took a turn when I
had confronted her about the students going directly to
her, not following the lines of communication, and not
providing me with the details of the perceived issues.
During the fall of 2011, the Grievor was only
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assigned to teach one course, because it was her first term as
a professor. The course which she taught was Nursing Practice
Two (PNE 128), which teaches students nursing skills such as
dressing changes, catheter insertion, administration of
medication, and documentation. A number of the students in
that course had issues with the manner in which the Grievor
was teaching it.
In early November of 2011, Dave Morrissette, who is
the Coordinator of the College's nursing program, had a
hallway discussion with the Grievor in which he indicated that
he had received some student complaints about her. When she
indicated that she needed to have the complaints in writing,
he advised her that he would have to get student consent
before providing them to her. After speaking with the Dean
and obtaining student consent, he emailed the Grievor a list
of complaints on November 8, 2011, but omitted the student's
name, as requested by the student who had compiled the list by
talking to students in the course to obtain examples of the
situations that were arising. The eleven examples on the list
include allegations that the Grievor failed to fulfill her
responsibility to ensure that class content was accessible to
the students in a timely manner, that she continually lectured
students about not being prepared yet was never prepared
herself, that she did not know how to address a group of
people, and that she put students on the defensive by talking
at them rather than to them. In her testimony in these
proceedings, the Dean indicated that this list was a
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reasonable summary of the complaints that were coming to her
from the Grievor's students in the fall of 2011.
The list concluded with the following request to Mr.
Morrissette:
If you could just give us some direction on what to do
because we are all feeling really frusterated [sic].
We don't want to approach her because we are far too
intimidated and i [sic] feel it is impacting our
learning extremely.
The Grievor acknowledged in cross-examination that if
that was the perception of students in her class, that would
be of significant concern to her. However, she also
acknowledged that her emailed response to Mr. Morrissette does
not reflect any such concern. In that response, she expressed
disappointment that Mr. Morrissette had not referred the
student directly to her so that a collaborative solution could
be achieved, and indicated that she did not believe that the
Dean needed to be involved in the process unless there was no
resolution. She characterised the list as "a lengthy list of
questionable concerns not validated by a signature", and also
wrote as follows:
In a discipline where we stress professionalism, I
think it's important that we role model these
behaviours. Constructive criticism cannot be achieved
by the student or myself if the normal process is not
followed. I feel that this student or students have
manipulated the system and faculty which ultimately
creates conflict amongst us.
What I have noted from these "concerns" are a handful
of disgruntled students who are nit-picking apart my
teaching methods.
I would like to add "lines of communication" and
"complaint process" to the next full faculty meeting
agenda.
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In her testimony in chief concerning the first
paragraph in that quotation from her emailed response, she
expressed the view that the complaining students "were being
enabled to act unprofessionally by Lisa and Dave", and that
"essentially they were holding their hands and were already
biased"
The Grievor testified that nursing students are
expected to have a math level competency of eighty percent for
drug calculation. When some of her students came to her to
express anxiety about meeting that requirement, she instructed
them to seek tutoring and also developed a practice test.
Since there was not enough time available to permit the test
to be administered during class, the Griever permitted her
students to take the test in a testing centre at their
convenience, over a specified period of time.
The Griever also testified that because the nursing
profession has a high standard of professionalism, it was her
expectation that students could communicate effectively with
each other and the faculty, and that they would come to her
and speak directly to her if there was a "perceived issue",
but found that this was "not the case". When she was asked
(in direct examination) how that was "not the case", her
response was:
Students would not come to me when there was a
perceived issue. At times they discussed their
perceived issues with the lab staff, amongst
themselves, with my colleagues, and eventually with
Lisa [McCool-Philbin] .
Her evidence regarding what she characterised as "perceived
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issues" also included the following testimony:
I heard about the perceived issues from Lisa. I guess
what really brought out a lot of perceived issues was
the math test.... Apparently students went to Lisa and
indicated there were a couple of typos on the test. I
agreed to meet with Lisa to discuss the perceived
issues and the math test.
The Grievor met with the Dean on November 24, 2011,
to discuss concerns which had been raised by her students.
That meeting was initially pleasant but became rather heated
while they were discussing the math test and the Dean's
recommendations on how to teach math, as they both became very
frustrated. The Grievor testified that the Dean "opened up
her statement about how to teach math" by making the comment,
"It's not because you're First Nations". In describing her
reaction to that statement, the Grievor told the Board:
I was confused why she would even mention that. I
didn't understand what that had to do with math or the
perceived issues. In my mind, if those were not about
my grades, then why even mention it.
In her testimony regarding that meeting, the Dean
provided the following explanation for making that
comment:
I remember the conversation. I was trying to review
the student complaints. I was frustrated because
Sylvina was blaming the students. I did make the
comment that this was not about her being aboriginal as
the students were frustrated because she was telling
them that she was different in terms of teaching
because she was an aboriginal professor. I then tried
to give her some strategies around teaching the dosage
calculation formulas. T used my hands because I was
advising her to teach it incrementally, step by step,
and to ensure that she checked for understanding.
I also asked her to ensure the students had an
opportunity to rewrite the test as her questions were
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wrong and the students knew that.
I believe she believed it was the students' fault
[and that] they were disgruntled, nit-picking, immature
and irresponsible. I advised her that it was her
responsibility to ensure the students understood the
concepts.
That the Dean's comment was responsive to statements
which the Grievor had made to students is confirmed by the
fact that the Grievor told students in her class that she
taught things differently because she was a First Nations
person. when this was put to the Grievor during
cross-examination, her response was "not during every class".
Implicit in that response is an acknowledgement that she had
made statements to that effect in some of her classes.
The Grievor testified that during this meeting, the
Dean became upset and made hand gestures. It was also her
evidence that the Dean's tone and facial expressions changed.
The discussion became particularly heated when the Grievor, in
refusing to accept the Dean's recommendation that she work her
students up incrementally to achieve the eighty percent level
of competency, "insisted that it was inappropriate given the
time frame". This prompted the Dean to try to reiterate her
Point more forcefully. The Grievor also refused to accept the
Dean's recommendation that she make changes to the math test
because she felt it was "unethical of her to expect me to make
changes to a math test when students were still writing the
test [and when] I didn't know how many students had failed
that math test yet"_ The Grievor's refusal to accept the
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suggestions being offered was a source of frustration for the
Dean, who was attempting to assist the Grievor to become a
more effective teacher_
The Grievor told the Board that she felt threatened
by the Dean's tone and hand gestures, and that she left the
meeting feeling frustrated and humiliated. She subsequently
went to Human Resources and spoke with Susan Pratt, the
College's Senior Human Resources Consultant, about the Dean's
aforementioned comment that "It's not because you're First
Nations" and her earlier mention of taxation. Ms. Pratt
suggested that the Grievor could either put in a formal
complaint or go back to the Dean to make an attempt to resolve
the issues. The Grievor decided to take the latter approach.
When the Dean asked the Grievor during the November
24th meeting if she would like to have a mentor or support
person, the Grievor indicated that she would like to receive
support from Peggy Morrison, who was another full-time nursing
professor and also a local Union official. Accordingly, the
Dean contacted Ms. Morrison and arranged for her to meet with
the Grievor. After they had discussed the situation, the
Grievor and Ms. Morrison had a meeting with the Dean on
December 6, 2011. At the beginning of that meeting, the
Grievor told the Dean that she did not appreciate the Dean's
reference to her ethnicity during their November 24th meeting,
and that she had also been offended by the Dean's earlier
reference to her taxation status. The Dean responded by
telling the Grievor that it was not her intent to offend her,
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and that if the Grievor wanted to have a fuller discussion she
would call Human Resources down. The Grievor said that would
not be necessary because Human Resources already knew about
her concerns. She also said that she wanted to "turn the
page" and move forward. Accordingly, the Dean thought that
the Grievor's concerns were resolved. The validity of that
view was confirmed by the Grievor's own evidence that, having
informally aired her concerns, she left that meeting wanting
to move forward from that point. She did not raise either of
those issues again until she filed the grievance which gave
rise to these proceedings.
During the December 5th meeting, the Dean suggested
that the Grievor and Ms. Morrison work together and meet with
the Grievor's students to resolve all outstanding issues.
Both the Grievor and Ms. Morrison agreed with that suggestion
but their conflicting timetables precluded them from
scheduling the classroom discussion until December 14th.
During that class, student concerns were raised about a number
of matters including new software which had been introduced at
the College, staff turnover, a strike which had occurred
during that term, and the amount of theory that students were
expected to learn in a short time frame. There was also a
discussion regarding conflict resolution and appropriate ways
of addressing concerns. Although the Grievor felt that the
session went well, only about half of the students enrolled in
her section of the course attended that class, and the
students who had previously raised the "perceived issues" were
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not there.
During cross-examination the Grievor gave the
following testimony concerning the issues that were being
raised by her students and concerning who bore responsibility
for those issues:
Q. Did you feel at this point that you were able to
put those issues with the students behind you as a
result of this meeting?
A. I can only speak on behalf of myself. I believe
these issues were acknowledged. Were they resolved?
Perhaps not, but I certainly had more information of
where the issues stemmed from. It was not
exclusively because of me.
Q. But did you have something to do with it? Was it
partially your responsibility for the problems the
class had?
A. It is possible.
Q. What would be the problem?
A. Today's students are very privileged. There's a
sense of entitlement. They lack communication
skills to speak face to face with anybody, not just
professors. They live in a virtual world where
texting and emailing is their everyday life. I
can't be responsible for students who lack the very
basic skills in communication and conflict
resolution. The expectation of the College is that
they would have some ability to speak to people.
In early February of 2012, while walking by the
Grievor's office the Dean popped in and asked her how she was
doing. The Grievor said that she was very frustrated and had
left the class because the students did not bring their
textbooks. After making some suggestions regarding how the
Grievor could handle the situation, the Dean encouraged her to
go back to her classroom to deal with it. After doing so, the
Grievor sent the Dean the following email on February 9, 2012:
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Hi Lisa
First off, thanks for coming and taking the time to
come by and assess the situation that occurred in
class. I do apologize.
I did go back to class and apologize for allowing my
frustration to become too apparent. I continued with
instruction. At the end of class, 1 tactfully gave
them a little blurb on the appropriate lines of
communication. This must have had a profound effect
because the student, Andrea came to my office and
apologized and admitted to making a complaint directly
to you.
Anyway, I was receptive to her apology. She accepted
my apology and I think it was a learning experience for
all. She did express a deeper appreciation for my role
and the importance for accountability in this
profession.
So it's all good. Tomorrow is another day!
Sylvina
After receiving that email, the Dean thought that her
relationship with the Griever was on an even keel.
A few days later, the Grievor heard that her mother
was dying and requested bereavement leave from Thursday
February 16th until Tuesday February 21st. That request was
granted by the Dean. Although the Grievor believed that her
mother would pass away while she was in Moose Factory on that
leave, this did not occur. When her mother passed away after
the Grievor had left Moose Factory, the Grievor did not seek
any additional time off work to return to Moose Factory to
attend her mother's funeral because she had exhausted her
entitlement to bereavement leave under the collective
agreement (the "Agreement") and because she, along with dozens
of other professors, had received the following email which
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was sent to them by Deans' Office Coordinator Lyse Rocheleau,
on behalf of the Dean:
Subject: Cultural Safety; Day 1 & IPE; Day 2
When: Tuesday, February 28, 2012 8:30 AM to Thursday,
March 01, 2012 4:00 PM
This invitation is mandatory for the Health Science,
BScN and Human Service Departments, and an OPTIONAL
invitation to attend is extended to Social Sciences and
Counselling Office areas.
The Griever attended that training session and during
a morning break was approached by the Dean, who thought she
would be up north with her family and was consequently
surprised to see her. After confirming with the Grievor that
her mother had passed away, the Dean asked her why she was
there. The Grievor responded that she was there because she
had been told (through that email) to be there and because she
had not been told that she could go to her mother's funeral.
Although the Grievor had exhausted her entitlement to
bereavement leave under the Agreement, if she had requested
additional leave the Dean would have granted it. When she was
asked (in cross-examination) why she did not call the Grievor
and offer additional leave to her, she noted that she has over
a hundred people reporting to her and that people typically
ask her for leave of absence if they need it.
By the time the Grievor left that training session,
it was too late for her to go to her mother's funeral. She
testified that the travel time to Moose Factory depends on the
time of departure from North Pay, with the shortest time being
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about ten hours if one leaves North Bay at 4:00 a.m. and
drives to Cochrane to get the train from there to Moosonee.
Flying to Moosonee was not an option because it would have
cost in excess of $1500 for each of the six people who would
have been going. The Grievor greatly laments having missed
her mother's First Nations funeral ceremony and the
opportunity it would have given her to obtain closure.
The College's cultural safety course was developed
during the spring and summer of 2012. The lead on the
development of that course was assigned to Mary Wabano, a
First Nations person who is the Director of College's First
Peoples' Centre, which is a resource centre where First
Nations students can access support. The professors who
worked on the development of the course, and who were each
going to be teaching it, were the Grievor, Randy Sawyer, and
Peter Beaucage. Mr. Sawyer and Mr. Beaucage are also First
Nations persons who report to the Dean. They are both
longstanding faculty members who have been with the College
for over twenty years.
As indicated above, the Dean was very excited about
the College's plan to implement a cultural safety course to
create student awareness of First Nations culture. During her
cross-examination by Union counsel, she acknowledged that she
recognized the need for both First Nations students and other
students to be educated about First Nations culture and
history because many students lack knowledge about it, and
because learning about it would hopefully make them more
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competent in interacting with First Nations people. She also
acknowledged that there are many negative stereotypes in
Canadian society about First Nations people.
The College's cultural safety course was developed on
the basis of five competencies that came out of an Aboriginal
Nurses Association of Canada conference. It was also the
Grievor's understanding that the course was intended to teach
students about First Nations issues, including historical
events, differences between Western culture and First Nations
culture, and myths about First Nations people. Although the
Dean initially told the Grievor that the course would commence
in January of 2013, the start date was later changed to
September of 2012. This change was of concern to the Grievor,
as she was of the view that it did not allow enough time to
prepare a quality course that maintained academic integrity
for the students. The Grievor was also initially told that
she would be teaching the course exclusively to nursing
students, but the scope of the course was subsequently
expanded to also make it a mandatory general education course
for dental hygienist students and environmental students.
When the Grievor began teaching the cultural safety
course in the fall of 2012, she felt unprepared. She found
the design of the room in which she was assigned to teach the
course to be unsatisfactory in that it had round tables at
which some of the students faced away from her while she was
teaching. She was also dissatisfied with the lateness of the
time of day (5:00 p.m.) at which the course was scheduled to
begin.
On September 12, 2012, Jeremy St. Onge, who is the
Coordinator of the College's Environmental Technician and
Environmental Management Programs, wrote the following letter
to the Dean:
Hi Lisa,
I'm fielding complaints from 1st -year students about
CLT100, and this is the issue:
One section has Sylvina Rickard, and one section has
Randy Sawyer.
The section with Sylvina is grouped with respiratory
and nursing students; Sylvina is "teaching to the
nursing students" and is using a lot of medical
terminology that the environmental students do not
know. In addition, she is requiring them to purchase a
$50 medical textbook for terminology. In contrast,
Randy's section does not have to purchase this book and
does not deal in medical terminology_
Because there is such a big discrepancy between the two
sections, although it is the same course, Sylvina's
students are very angry about the additional textbook
purchase and having to learn terminology outside their
comfort zone.
I'd like to be able to resolve this for the students,
and am available outside of my Scheduled class all week
if you get a chance to discuss this or update the
situation for me.
Thanks,
Jeremy
Receiving that letter prompted the Dean to send the
following email to Ms. Wabano, the Grievor, and Mr. Sawyer:
Subject; FW: Complaints re: CLT100
Hello Everyone; could you verify for me what texts are
required and why they may not be the same for both
sections since there is one outline. Given there is a
mix of students from Health and Human Services, is the
course program specific? Thank you for any information
you can share for faculty_ Lisa
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On the following day, the Grievor emailed the
following response to the Dean:
For my class I am using 1) The Healthcare
Professional's Guide to Clinical Competence and
2) First Nation Peoples. I understood that as a
faculty member I can select the appropriate text books
that contain academic integrity in order to achieve the
deliverables. Has this changed and not been
communicated to me? I am a bit confused.
In response to the complaints in question. I can
appreciate the Environmental group concern for being
placed in a section that may not pertain to their
field of study. I was upfront with the entire group
regarding the first resource since they may find it a
bit difficult to understand some of the relevancy with
their respective programs.
On another note, I did have an interesting response to
one student in particular whom I believe is responsible
for this questionable complaint. The student blatantly
vocalized her ignorance by sharing with the class that
First Nation people are responsible for the high rates
of suicides in reserves. After her comments, this
student expressed fear of reprisal from the students in
her Environmental Group since everyone didn't share
the same sentiment. I conveyed to her, this course
would benefit her most of all since she lacked the
understanding, education and history to make such a
shallow comment. When I accepted this role, I knew
I had to contend with some very uneducated people
regarding First Nation issues. That was a challenge
I was willing to take on. Now when we examine the
relevancy to the Environmental group, I believe it
absolutely does affect and will benefit them since they
could potentially be negotiating with First Nation's
Land Claims and other natural resources that exist in
Traditional Territories. Also, I don't believe that
one student is truly representative of the entire group
since I had an opportunity to sit and chat with other
students in the Environmental group who were motivated
to learn the content
As a First Nation faculty member, I have conformed to
the culture of this college and set my own beliefs
aside to make accommodations. It is time for everyone
to do the same by making it a priority to engage in
effective collaboration and communication so we can
achieve our goals.
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The Grievor gave the Board the following explanation
of why she wrote the last paragraph of that email:
Because it was the College's and Lisa's expectation
that I adhere to the policy and learning outcome of the
courses that I taught. I did not always agree with
them. I did not always agree with the ethical
positions or position I was placed in. As being the
only First Nations faculty, I didn't have a strong
voice in the nursing department. When I conveyed my
concerns about the course, I feel that Lisa was
unsupportive and that she was very ignorant of our
concept of time from a First Nations perspective. Our
time concept is traditionally on harvesting practices
and seasons. We're not slaves to time and the clock.
So I think that's very hard for people of Western
culture to understand, and in the time frame she wanted
this course delivered it was just very unreasonable to
get a quality course to the students.
On September 27, 2012, the Dean sent the Griever the
following email:
Hello there; I am redirecting a student back to you
to discuss her concerns. Please be sure you hear
the complaints with respect and openness. I would
appreciate it. Thank you.
The Griever's reply asked "Who is the student?" to which the
Dean responded: "Let's see if she comes to see you first. She
said to Lyse you told the class not to go to the Dean's office
with complaints. Lyse told her I would not see her until she
went to see you first." This in turn generated the following
response from the Grievor:
I did articulate the lines of communication at the
beginning of the term. Even after clearly articulating
the lines of communication I should not assume that all
students would behave like adults. I had anticipated
this student would be upset after I questioned her
priorities when she told me in front of a whole row
of students, "I am leaving after the test to study for
A&P [Anatomy and Physiology] because it's more
important than sitting in this class"
Thank you for your referral.
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The Griever's statement that she "should not assume
that all students would behave like adults" was a cause of
concern for the Dean, as it indicated that the Grievor was
"again blaming the students".
The Grievor had a rule in all of her classes that
students not use their tablets or electronic devices while she
was teaching the class, out of respect for her role and their
fellow students. She also had a rule that if she caught one
of them on their cell phone texting, watching videos, or on
facebook, the student would be required to teach part of the
class the following week. When the Grievor confronted a
student named Meagan Birtch who was using her cellphone during
one of the Grievor's classes, Ms. Birtch told her that she was
waiting for a call from her Dad because her son was sick.
However, one of the Grievor's other rules was that if a
student was expecting an important phone call, the student had
to let the Grievor know at the beginning of the class so that
the student could take the call in the hallway. Since Ms.
Birtch had not complied with that rule, the Grievor told her
that she would have to teach part of the class the following
week. Ms. Birtch did not like that penalty, but when the
Grievor tried to approach her in the hallway after that class,
she told her that she had to get her son off the bus and
walked away from her. Ms. Birtch subsequently expressed her
dissatisfaction to the Dean.
Students also raised a number of other complaints
about the Grievor during the fall of 2012. Students were not
20
only going to the Dean to complain; they were also going to
the President's office and to the Vice -President's office.
Consequently, the Dean was eager to meet with the Griever to
discuss and resolve those complaints. Accordingly, on Monday
October 1, 2012, she ,sent the following email to the Grievor:
Subject: student complaints
Hello Sylvina; could you give me some times this week
to review for me some of the issues that are coming
into my office with respect to students. Additionally,
I would like for you and I to meet with Meagan Birtch
on Friday at 9:00. I understand from her that she is
to teach an entire class on Hygiene this week? Please
clarify for me the expectation for her next class.
Thank you, Lisa
On the following day, the Grievor sent the following
reply:
Lisa
I have not spoken to this student since last week and
even when I attempted to speak to her she told me she
had to attend to a personal matter.
Sylvina
Since that reply was non-responsive to the Dean's
requests, she sent another email to the Grievor three minutes
later, in which she wrote: "Hello Sylvina; I would like to
talk to you; what is a good time this week?" The Grievor did
not respond to that email and did not meet with the Dean. and
Ms. Birtch as previously requested by the Dean. (Ms. Birtch
did not teach any or all of the next class as she was sick
that week.)
On Wednesday October 3, 2012, Ms. Rocheleau sent the
following email to the Grievor on behalf of the Dean:
"I
Subject: Program Discussion
When: Friday, October 5, 2012 2:30 PM-3:OOPM
Where: 0222
Importance: High
Good Day Sylvina,
After having reviewed your class schedule it appears
that this is the best time to book an appointment for
you and Lisa.
The Griever emailed the following reply to the Dean
on Thursday October 4, 2012 at 9:41 a.m.:
I am leaving to [go] out of town tomorrow after I meet
with my students. And I do want to see you too_ T
have some important things to discuss with you.
The Dean immediately responded to that email as
follows: "Hi there; we need to meet before you leave tomorrow.
Please give me a time in which we sit and review the student
issues. Much appreciated, Lisa". At 12:53 p.m. that day the
Grievor emailed the following reply:
We have a faculty meeting today at 1:00 p.m. and I
have just returned from a meeting with a student and
a preceptor. Could you please give me some details
regarding these "student issues"?
At 12:57 p.m. the Dean emailed the following
response:
Hi there; yes I want to discuss their feelings of
embarrassment and fear of asking questions. I also
want to touch base about resources for the course. I
am thinking you might want to have a course pack
instead of a nursing text purchase. I still have you
down for 2:30 tomorrow so I will see you then and we
can chat more.
The Grievor did not reply to that email and went out of town
on Friday afternoon as previously planned, without meeting
with the Dean. When she testified in these proceedings, she
was unable to recall why she went out of town that day.
22
The explanation that the Grievor provided to the
Board regarding why she did not comply with the Dean's
repeated requests to meet with her was that she was attempting
to arrange for a Union representative to attend with her
because she felt "threatened and unsafe being in a room
alone with Lisa" and "felt harassed by here due to what
she had previously experienced with the Dean during their
aforementioned meeting on November 24, 2011, which she
characterised as "bi-polar behaviour" and "threatening
behaviour".
Some evidence was also adduced regarding a
misunderstanding which arose in October of 2012 between the
Grievor and Clinical Technologist Patti Burke. However, it is
unnecessary to refer to that evidence in this award, as it is
not of assistance in deciding this matter.
On October 12, the Dean sent the following letter to
the Grievor:
I have attempted to meet with you on several occasions
since October 1, 2012. The times I have scheduled
appointments for us to meet have been when you are not
conducting classes and yet you have refused to attend
the meetings.
The purpose of the meeting is to discuss the number of
student concerns from both your nursing theory class
and the cuitural safety course. Faculty and the
Coordinators have also received complaints and have
directed the students back to you, in order for you to
address their concerns either individually or as a
class.
Both the VPA and the President's office have also
received complaints and have redirected the students to
myself so that I may provide you with support on how to
address their concerns.
The students have expressed feeling embarrassed,
23
humiliated and singled out. They also state they
are concerned about complaining formally and then
experiencing repercussions in class.
Please provide me with a written plan and timelines for
addressing these concerns by October 19, 2012. As
well, we will meet on October 22, 2012 to review your
plan so I may be of assistance with any additional
resources you may require.
On October 12, 2012, the Grievor sent the Dean the
following response to that letter:
I've indicated to you via email on October 4, 2012 that
I was unable to meet with you due to conflicting
schedules. In my email to you on October 4, 2102 Isic]
I also stated that due to the mounting concerns you
were bringing to my attention (attached as a separate
email) I thought it best to set up a meeting with Tom
Hanrahan my Faculty Steward and request that he attend
our scheduled meeting. Unfortunately, it took a few
days for Tom and I to get together. I have since been
able to discuss with Tom my concerns and he is willing
to attend the meeting with me_
It is important that we meet to discuss your concerns
and share our perceptions. I am also looking forward
to discussing and developing a plan to resolve any and
all outstanding issues. It is essential that faculty
and administration model effective communication with
one another and with our students. I am concerned that
on several occasions I have requested specific
information to facilitate a resolution with students
who were coming directly to you with issues. I was not
aware that students had "issues" in the classroom and
had I been made aware of whom these individuals were, I
would certainly have ensured that T addressed their
concerns on an individual basis and in a timely manner.
As a faculty member, effective classroom management is
critical to ensuring that all students receive quality
instruction that achieve [sic] the learning outcomes in
their field of study. It is extremely important to me
to maintain open dialogue with all my students. After
all, we are preparing future professionals who will
require essential communications skills. We must model
these skills.
It is my desire to resolve the "issues" that you have
acknowledged in your communications. However, I can
address them most effectively and appropriately only if
I am given more information. Please refer to our email
exchange of October 4, 2012. I am quite amenable to
24
discussing and implementing solutions that with your
support will resolve existent student issues.
It was my understanding, in speaking with faculty, that
when students have concerns with a course or their
professor, the process is that students should first
approach the faculty member to address the issue and
find a resolution. If a resolution is not achieved,
a the [sic] student might approach the Program
Coordinator who would facilitate a solution. Should a
resolution still not be found, then the issue is
appropriately brought forward to the Dean. In each of
these instances you referenced in your emails, I was
not made aware of any issues by the students you refer
to, nor was there any feedback from my Coordinator.
Is [sic] seems that students were going directly to
you. This is why I requested specific information from
you to facilitate a resolution. I am still not aware
of whom the students are and to what course you refer
to.
In closing, I look forward to our discussion as well
as the development of a clear plan as to how we will
work together to ensure quality and a safe learning
environment for all of our students. I am requesting
that you forward me an agenda for this meeting. I am
proposing that we meet on October 24 at 1000. Please
confirm via email. Finally, I am requesting that Tom
Hanrahan and Marguerite Donahue, VPA attend our
meeting. I am copying them on this email.
During her evidence in chief in these proceedings,
the Griever also made the following comments about the student
complaints and concerns referred to in the Dean's letter:
I am a very direct person. That comes from working in
the emergency department [and] also from my culture.
I believe the students were not accustomed to speaking
with my type of personality. I think that stems from:
(1) they were intimidated by me because of my rank in
the nursing profession and (2) they had never or rarely
encountered aboriginal faculty.
On Monday October 22, 2012, the Dean sent the
following email to the Grievor at 12:33 p.m.:
Hello Sylvina; just a reminder that on Friday I set a
date for us to meet at 4:00 o'clock today as you
declined to attend the original meeting set for 2:30.
You subsequently set a meeting for 10:00 which I
declined as I have a number of Promotion Meetings this
25
week including 10:00 this morning. Please advise you
are attending today_ Much appreciated, Lisa
The Griever did not meet with the Dean on October 22
nor did she respond to that email until the following morning,
when she wrote: "I apologize. I have just opened these emails
this morning. I would very much appreciate an agenda." Later
that day, the Dean responded as follows:
Hello Sylvina; the following items will be discussed on
Wednesday:
1. Plan for resolution of student complaints
2. Communication during 44 - hour work week
(timely responses to all e-mails and meeting
requests, and attendance at meetings with the
Dean)
Hope this helps. See you on Wednesday. Lisa
The Griever did not reply to that email until 12:30
p.m. on Wednesday October 24th, when she sent the following
email to the Dean:
I am confused why you had requested a meeting for
Wednesday when you indicated in my discussion with you
after our promotions meeting yesterday you had another
commitment. I then suggested Thursday at noon in which
you agreed. I had since spoken with my union reps to
confirm this date. October 25th at noon.
I have noted that my union rep and Marguerite were not
invited to this meeting. I will not be in attendance
because this is a new development for me and I am
sure you can appreciate my confusion. I have every
intention of working towards a resolution with you to
ensure the best interest of the organization and all my
students. Thank you for this agenda.
At 3:10 that afternoon, the Griever sent the Dean
another email advising her that she and Tom Hanrahan would be
at her office the following day at noon, but the Dean sent the
following response at 5:12 p.m.: "I will not be meeting with
you and Tom tomorrow at noon in my office."
26
A meeting ultimately did take place on October 25th.
The persons in attendance at that meeting were the Grievor,
Mr. Hanrahan, the Dean, John Patterson (a Social Sciences
Professor at the College, who is also a Union steward),
Academic Vice -President Donahue, and Bruce Sutherland (from
Human Resources)_ The Grievor gave the following evidence
regarding that meeting during her examination in chief:
Q. What happened in that meeting?
A. We were discussing some of the reasons why the
students felt some of the feelings they were
feeling. I explained the reasons: partly their lack
of ability to communicate with me, the cultural
differences, the perceived power imbalance, and my
attempt to rectify this earlier but wasn't given the
particulars.
Q. What was the outcome of the meeting?
A. Basically they told me they would get back to me.
They didn't give me any disciplinary action. There
was no resolution in my mind, other than hearing my
side of the story.
On October 29, 2012, the Grievor handed in the
following letter of resignation, which was addressed to Susan
Pratt (the College's aforementioned Senior Human Resources
Consultant) and copied to the Dean:
Please accept this letter of resignation effective
December 31, 2012. Thank you for this employment
opportunity.
The Grievor gave the Board the following explanation
of why she submitted that resignation:
[I resigned) because I didn't feel safe with Lisa not
being supportive in my role, singling me out. I felt
it was a poisoned atmosphere. I also felt that that
meeting didn't resolve the issues of the perceived
student complaints. It was not addressed as a meeting
to resolve. Like it was about me and not the issues
that Lisa consistently stressed in her emails. That
27
was not fair and open. We didn't really discuss
issues. There were really no suggested solutions
from the faculty and senior management. It was almost
like a hearing, like I was on trial, because they
didn't offer solutions. No one suggested how to
resolve issues with students. It was more about they
wanted to know why these complaints had started. I
explained about my communication method - very direct.
I guess some people would say I'm a "no bull shit" type
of gal. Some people don't know how to receive people
like that.
Later that day, Ms. Pratt sent the following letter
to the Grievor in response to her resignation:
This letter confirms that the college accepts your
letter of resignation delivered to Human Resources on
October 29, 2012. As indicated in your letter, you
will remain a full time employee until your resignation
date of December 31, 2012.
This letter also summarizes the issues that were
discussed with you at your meeting with the college on
October 25, 2012:
The college received complaints from your
students arising during the first half of the
Fall 2012 semester. Students complained that
they felt embarrassed, humiliated, belittled and
singled out in your class. You did not take
steps to address these complaints.
- Over the month of October, Lisa tried several
times to schedule meetings with you to talk about
how to resolve these student complaints. Lisa
specifically scheduled meetings with you when you
did not have classes. Your refusal to meet with
your Dean on several occasions amounts to
insubordination.
Accordingly, this letter is to inform you that you
are being released from all of your college duties
effective October 30, 2012. As such, you will not have
access to any college resources effective that date
(including email, course materials and your office).
Please return all college property including any laptop
and college keys to Security by October 30, 2012.
You will remain on full pay and benefits until December
31, 2012.
28
As indicated above, the grievance which gave rise
to these proceedings was filed on November 1, 2012. The
College's Step 1 response to the grievance is set forth in the
following letter dated November 13, 2012 from the Dean to the
Griever:
This letter confirms that the parties met at Step One
of the grievance procedure on November 7, 2012.
It is our understanding that your grievance claims that
the college has violated the collective agreement by
accepting your resignation letter and releasing you
from your duties until your resignation date.
The resignation letter delivered to Human Resources on
Monday October 29, 2012 clearly and unequivocally
indicated your intention to resign. The college
notified you the next day that it had accepted your
resignation. As such, your employment is deemed
terminated per Article 27.03D(iii) effective on the
date of your resignation.
The decision to place you on a paid leave of absence
and release you from your duties was a reasonable
action taken by the college and within its rights and
responsibility as outlined in Articles 6 and 4.02 A 7.
This action was taken because of the college's concerns
about your classroom performance as expressed to you in
our October 25, 2012 meeting.
Truthfully, your resignation letter pre-empted
the college's decision that it would he in the best
interests of all concerned that you be released from
your probationary contract. Had you not resigned,
the College was planning to give you written notice
of your release. In these circumstances we think it
appropriate that you be relieved of the remainder of
your responsibilities pending your resignation date.
Your grievance is therefore denied.
Summary of Union Counsel Is Submissions in Chief
The College has violated Articles 4 and 6 of the
Agreement in the circumstances of this case. The Grievor's
employment relationship began with an ignorant and hurtful
comment by the Dean. Her comment about taxation was
29
paternalistic and offensive. It does not matter whether she
intended it to be offensive or not, because that is not the
test. The test is whether or not the comment in and of itself
was offensive. The Dean also harassed the Grievor on November
24, 2011, when she made the comment, "It's not because you're
First Nations". When she became aware in early 2012 that the
Grievor's mother had passed away after the Grievor had
exhausted her bereavement leave entitlement under the
Agreement, the Dean should have contacted the Grievor to offer
her additional leave for the purpose of attending her mother's
funeral.
The Dean's vexatious behaviour continued throughout
the Grievor's period of employment, during which students
complained to the Dean instead of raising their concerns
directly with the Grievor. The cultural safety course, which
was expanded on short notice to include non -nursing students,
predictably generated student complaints. instead of working
with the Grievor, who felt unsafe and unsupported by the Dean,
the College accepted her resignation and advised her that if
she had not resigned, she would have been terminated.
The cases relied upon by Union counsel in support of
her able submissions were Fanshawe College and Ontario Public
Service Employees' Union (Grievance of Y.J. Lovelock),
unreported award dated January 23, 1986 (Brent); and Re Cara
Operations Ltd. and Teamsters Chemical, Energy and Allied
Workers' Union, Local 647 (2005), 141 L.A.C. (4th) 255, [2005]
O.L.A.A. No. 32 (Luborsky).
30
Summary of College Counsel's Submissions
The Grievor quit her employment with the College and
has not rescinded that resignation. The resignation makes no
mention of harassment or discrimination. That allegation was
not raised until after the College released the Grievor from
her duties and put her on a paid leave of absence. The
College had the right under Article 6 to put the Grievor on a
paid leave of absence until the resignation date and did so
because of legitimate concerns the College had about the
Griever's behaviour with her students as well as her behaviour
with her Dean. When confronted with issues raised by her
students, the Grievor blamed the students instead of
identifying fault in her own behaviour. When confronted with
criticism of her teaching by the Dean, she blamed the Dean and
characterised herself as a victim. When the Dean sought to
meet with her to discuss the situation and assist in resolving
it, the Grievor insubordinately did everything possible to
avoid meeting with her. The Grievor's inability to deal with
criticism does not convert the results of that inability into
discrimination.
The Dean raised the matter of taxation with the
Grievor because she was attempting to encourage her to accept
the job which she was being offered. While the Dean's
understanding of the Grievor's tax status may have been
erroneous, it was part of a practical business discussion that
they were having and was not intended to be derogatory. One
of the very reasons that the Dean was attempting to hire the
31
Griever was because she was a First Nations person. That
comment had no job related consequences of any kind, as the
Grievor was hired.
The Dean's November 24, 2011 comment that it was not
because the Grievor was First Nations was made by the Dean
because the Grievor had told her students that she taught
differently because she was a First Nations person. Having a
fulsome discussion about teaching issues, attempting to assist
the Grievor in becoming a better teacher, and discussing
things that the Grievor had discussed with her class cannot be
construed as discriminatory.
Rather than filing a formal complaint, the Grievor
chose to deal with her concerns about those comments
informally. She did so in her December meeting with the Dean.
If the Grievor was being discriminated against by her Dean and
did not feel supported by her, the exchange reflected in the
email which the Grievor sent to the Dean on February 9, 2012,
would not have taken place.
The Dean granted the Grievor bereavement leave when
she requested it, If she had requested additional leave to
attend her mother's funeral, it would have been granted. It
was not the Dean's responsibility to offer it.
If the Grievor believes that she has been bullied or
discriminated against in some manner, she is mistaken and has
provided no evidence that would objectively support that
belief.
32
Summary of Union Counsel's Reply Submissions
Although the Grievor was hired and did get an
increased salary as a result of her initial discussions with
the Dean, College counsel's contention that the Dean's
taxation comment had no adverse job results takes a narrow
view of the workplace and the employment relationship. That
comment started the Grievor's employment relationship off on
the wrong foot and demonstrated that the Dean held erroneous,
stereotypical views. While at one point the Grievor's
concerns about the Dean's comments may have appeared to have
been resolved, they were still there in the background and it
was not inappropriate for the Grievor to rely upon them in
support of her grievance.
Decision
As indicated above, the grievance alleges that the
College has violated Articles 4 and 6 of the Agreement. The
relevant portions of those Articles provide as follows:
Article 4
NO DISCRIMINATION/BULLYING/PSYCHOLOGICAL HARASSMENT
4.01 A The parties agree that, in accordance with
the provisions of the Ontario Human Rights
Code, there shall be no discrimination or
harassment against any employee by the Union
or the College, by reason of race, ancestry,
place of origin, colour, ethnic origin,
citizenship, creed, sex, sexual orientation,
gender identity, gender expression, age,
record of offences, marital status, family
status or disability.
4.02 A 4 The College shall make reasonable provisions
to ensure that employees are free from
bullying/psychological harassment as defined
within this article.
33
The College and focal Union shall cooperate
to the fullest extent possible to ensure
the work environment is free from
bullying/psychological harassment.
4.02 A 5 Bullying/psychological harassment refers to
any vexatious behaviour that is known, or
ought reasonably to be known, to be unwelcome
and that:
(a) Adversely affects an employee's dignity,
or psychological or physical integrity
and/or
(b) Takes the form of repeated conduct
which could reasonably be regarded as
intending to intimidate, offend, degrade
or humiliate, and/or
(c) Results in a harmful work environment.
Examples of bullying/psychological harassment
include, but are not limited to, the
following:
* berating/belittling an employee or
individual;
* making repeated unwarranted criticism;
* undermining or deliberately impeding a
person's work;
* spreading malicious rumours or gossip;
* making physical gestures intended to
intimidate, offend, degrade or humiliate
an employee or an individual;
* making comments that are threatening,
derisory or defamatory.
4.02 A 6 Actions which may be deemed to the
bullying/harassment could be carried out by
a manager and/or a supervisor, students,
employees, individuals or groups.
4.02 A 7 Reasonable action by a College, a manager
and/or a supervisor, by the Union or its
representatives, by students, by employees,
individuals or by groups is not
bullying/psychological harassment.
Examples of this include, but are not limited
to, the following:
* the transfer, demotion, discipline,
counsel or dismissal of an employee in a
M
reasonable manner;
* a decision, based on reasonable grounds
and facts, not to promote or grant another
benefit in connection with an employee's
employment or performance;
* the legitimate right and responsibility of
managers to conduct ongoing evaluation of
employee performance at work, which may
include reasonable criticism of
performance and/or may result in
reasonable changes to a person's
assignment as a result of an evaluation;
* the legitimate right of Union members and
officials to reasonably conduct grievance
investigations, file grievances, conduct
inspections, lawfully picket and, without
limiting the aforementioned, generally
conduct Union business in a reasonable
manner;
* the legitimate right and responsibility of
employees to correct inappropriate student
behaviour and maintain order in the work
environment in a reasonable manner;
* respectfully expressing disagreement or
reasonably stating a contrary point of
view;
the legitimate exercise of freedom of
thought and inquiry, and expression.
Article 6
MANAGEMENT FUNCTIONS
6.01 It is the exclusive function of the Colleges
to.
(i) maintain order, discipline and
efficiency;
(ii) hire, discharge, transfer, classify,
assign, appoint, promote, demote, lay
off, recall and suspend or otherwise
discipline employees subject to the
right to lodge a grievance in the
manner and to the extent provided in
this Agreement;
(iii) manage the College and, without
restricting the generality of the
foregoing, the right to plan, direct
and control operations, facilities,
programs, courses, organization,
35
methods and the number, location and
classification of personnel required
from time to time, the number and
location of campuses and facilities,
services to be performed, the
scheduling of assignments and work, the
extension, limitation, curtailment, or
cessation of operations and all other
rights and responsibilities not
specifically modified elsewhere in this
Agreement.
6.02 The Colleges agree that these functions will
be exercised in a manner consistent with the
provisions of this Agreement.
As noted by Arbitrator Brent in Fanshawe College and
Ontario Public Service Employees' Union (Grievance of Y.J.
Lovelock), supra, at page 4, ,in a situation where there has
been discrimination on any prohibited ground, it would be rare
to have an admission of wrongful behaviour", so it is
"therefore necessary to examine all of the evidence and to
draw inferences from that evidence". Moreover, as indicated
by Arbitrator Luborsky in Re Cara Operations Ltd. and
Teamsters Chemical, Energy and Allied Workers' Union, Local
647, supra, at paragraph 19, "an objective standard is to be
applied in determining whether workplace abuse and/or
harassment have occurred, as opposed to the subjective
impressions of the alleged victim". Similarly, the subjective
impressions or intent of the alleged harasser are also not
determinative.
It is clear from the totality of the evidence that
the Grievor was of the view that there was little or no
validity to the numerous student complaints which arose during
her probationary period as a full-time employee at the
36
College, and that she insubordinately refused to meet with her
Dean in a timely manner to discuss them. It is also clear
from the totality of the evidence that what the Grievor
characterised as "threatening behaviour" was the Dean
legitimately performing her role in dealing with student
complaints and offering advice on how best to address them.
Moreover, what the Grievor characterised as "bi-polar
behaviour" was the not unreasonable difference between the
manner in which a supervisor may react when an employee
accepts proferred suggestions on how to deal with a situation
(as occurred in February in respect of the Grievor's having
left her classroom in frustration), and the manner in which a
supervisor may react when an employee rejects the supervisor's
suggestions (as occurred in November in respect of the
students' complaints regarding how the Grievor was teaching
and testing math).
Although some student complaints may have been
inevitable in view of the compressed time frame in which the
cultural safety course had to be developed, the expanded
student complement required to take the course, the sensitive
subject matter of the course, the time at which the Grievor
was scheduled to teach it, and the physical layout of the room
in which it was being taught, those mitigating circumstances
did not absolve the Grievor from her responsibility to meet
with the Dean in a timely manner to discuss those complaints
and to develop effective strategies for addressing them.
While the Dean's taxation question may have reflected
37
an erroneous understanding of the Grievor's income tax
responsibilities as a First Nations person, it did not
constitute bullying or harassing behaviour, nor was it
violative of the Agreement or of the Human Rights Code. The
Dean raised that matter with the Grievor because she really
wanted the Grievor to work at the College and was attempting
to persuade her to accept a position as a full-time professor
in the College's nursing program. The extent to which the
Dean was desirous of hiring the Grievor is reflected by the
fact that she contacted the Grievor to offer her the position
even though the Grievor had not applied for it. It is also
reflected by the fact that after contacting the Grievor and
hearing her express dissatisfaction with the salary being
offered by the College for the position, the Dean
undertook to discuss it with Human Resources based on the
Grievor's education and experience, and through that
discussion managed to obtain an additional $5,000 for the
Grievor, who then accepted the position. It is also
noteworthy that the Grievor herself acknowledged during her
testimony in these proceedings that she and the Dean had a
respectful relationship at the beginning of her employment.
The Dean's telling the Grievor, "It's not because
you're First Nations", before making recommendations on how
the Grievor should teach math also did not constitute bullying
or harassing behaviour, and was not violative of the Agreement
or of the Human Rights Code. Indeed, it was the Grievor, not
the Dean, who suggested that her First Nations status had a
28
bearing on her teaching methodology. As indicated above, the
Grievor told students in her class that she taught things
differently because she was a First Nations person. Thus, the
Dean's comment was responsive to statements which the Grievor
herself had made to students. As further indicated above, the
discussion at that meeting became quite heated when the
Grievor, in refusing to accept the Dean's recommendation that
she work her students up incrementally to achieve the
requisite mathematical level of competency, insisted that it
was inappropriate given the time frame. The Grievor's refusal
to accept the suggestions being offered by the Dean was
understandably a source of frustration for the Dean, who was
attempting to assist the Grievor to become a more effective
teacher.
Article 4.02 A 7 of the Agreement provides that
reasonable action by a manager or supervisor is not bullying
or psychological harassment. One of the examples of this
specified in that provision is "counsel ... of an employee in
a reasonable manner". Another is "the legitimate right and
responsibility of managers to conduct ongoing evaluation of
employee performance at work, which may include reasonable
criticism of performance". Having regard to all of the
circumstances, we find that it was reasonable for the Dean to
raise the Grievor's First Nations status at that meeting in
order to specifically remove it from the equation, and that
it was also reasonable for the Dean to become increasingly
emphatic with the Grievor when she continued to blame her
39
students, refused to accept any responsibility for the issues
they were raising, and refused to accept the Dean's
suggestions on how to more effectively teach the required
calculations.
It is very unfortunate that the Grievor missed her
mother's funeral, but neither the Dean nor the College can
legitimately be held responsible for that given that the
Grievor, who had exhausted her entitlement to bereavement
leave under the Agreement, did not seek any additional paid or
unpaid leave in order to attend the funeral.
In view of the numerous student complaints which
the College received regarding the Grievor, and in view of the
Crievor's insubordinate refusal to meet with her Dean in a
timely manner to discuss those complaints, the College was
justified in releasing her from all of her duties effective
October 30, 2012, in the exercise of its management functions
under Article 6 of the Agreement. Indeed, under the
circumstances, the Grievor was fortunate that the College
permitted her to remain on full pay and benefits until
December 31, 2012, rather than terminating her pay and
benefits by discharging her from her probationary employment
prior to the effective date of her resignation.
For the foregoing reasons, we find that no violation
of the Agreement or of the Human Rights Code occurred in the
circumstances of this case. Accordingly, the grievance is
hereby dismissed.
its]
DATED at Burlington, Ontario, this 25th day of June, 2014.
4 1
----------- �� ��, e e
Rohert D. Howe
Chair
T concur.
"Pierre Martin"
Union Nominee
concur.
"Rock Roy"
College Nominee
41