HomeMy WebLinkAboutSeguin 03-01-20
IN THE MATTER OF AN ARBITRATION
BETWEEN:
The Children's Aid Society of
Ottawa-Carleton,
Employer,
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Ontario Public Service Employees Union,
Union
BEFORE: Michael Bendel, Arbitrator
APPEARANCES: For the Union:
Susan Ballantyne, Counsel
Dave Calvert, President, Local 454
Carolynn Séguin, Grievor
For the Employer:
Carole Piette, Counsel
Pat Steward, Director, Human Resources
Susan Abell, Executive Director
Marion Roberts, Director, Family Services and Child Protection
Marie Petruska, Supervisor, Central Services
Valerie Flynn, Coordinator, Employment Services
Heard in Ottawa, Ontario, on May 22, June 4 & 5, July 31, August 1,2 & 7, September 4 & 5,
October 7, 8, & 28, November 7 & 13, and December 3 & 10, 2002. Written submissions
completed on December 18, 2002.
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ARBITRAL A WARD
The grievance of Ms. Carolynn Séguin, a Social Worker, challenges the termina-
tion of her employment on January 29,2002.
The employer based its decision to discharge the grievor on various incidents that
had led it to lose confidence in her honesty and integrity. It also relied on allegations of derelic-
tion of duty by the grievor. In addition, it was concerned about the rapidly deteriorating quality of
her work, particularly about her failure to prepare required documents. It acknowledged at the
hearing that the documentation issues, although figuring prominently in her supervisor's testi-
mony as to why she was discharged, would not have led to her discharge by themselves.
The union replies that the grievor was carrying an unusually heavy workload for
such a new employee, which led to her feeling overwhelmed. The grievor had a new supervisor
who was exercising minimal supervision and did not realize the pressure on her. In addition,
although the employer was not fully informed of this at the time, the grievor was suffering from
serious medical conditions, which led her to become depressed. She sought professional help for
her depression and was prescribed medication, as side-effects of which she became confused and
forgetful. The union says that the allegations about her honesty, integrity, dereliction of duty and
poor quality of work, to the extent they have a factual basis, can be largely attributed to her over-
work, confusion and forgetfulness, as well as to her misguided attempts to cover up her short-
comings so as to save herself from embarrassment. It further says that the drastic decline in the
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quality of the grievor's performance, which should have led the employer to question whether she
was fit for work, merely confirms the turmoil in the grievor's life at the time.
The grievor had not been the subject of any discipline before these events.
Despite the length of the hearing and the voluminous documentary evidence
presented, there was very little conflict in the evidence in the final analysis.
THE GRIEVOR AND HER WORK: JUNE 1999 TO JUNE 2001
The grievor had worked as a volunteer and as a part-time employee with autistic
children and other children with special needs since age 18. She graduated from Laurentian
University with a BSW (Hons.) in 1999, aged 24.
In June 1999, she was hired by the employer, receiving a basic orientation at that
time. She later received some further training, but far less than the three or four days per week for
10 weeks that some other new employees received. She took over the cases of a Social Worker
who was on extended sick leave. She was by far the youngest Social Worker in her unit.
The cases assigned to the grievor at the start were all "Crown Ward" cases. Crown
Wards are children whose legal guardian is the Government of Ontario. In accordance with the
Child and Family Services Act, R.S.O. 1990, c. C 11, as amended, the Government assigns the
care of these children to the employer (and to other similar agencies elsewhere in the Province)
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while supervising the cases through the Ministry of Community and Social Services. The legisla-
tion and regulations prescribe standards to be followed by such agencies, and the Ministry satis-
fies itself that the standards are being met by reviewing the agencies' files. The documentation
generated by a Social Worker, as well as being necessary for the purpose of satisfYing the Minis-
try, is also crucial in terms of the employer's legal liability and in terms of enabling back-up
workers to respond to after-hours calls. The principal document required on each file is a Plan of
Care, which records information about the child, including the goals that have been set for the
child in consultation with foster parents and the child. A new 50-page tool to replace Plans of
Care, known as an ONLAC (an acronym for Ontario Looking after Children), was being intro-
duced on an optional basis at the time. ONLAC's and Plans of Care had to be reviewed and
updated regularly.
The grievor was assigned over 30 Crown Ward files on her first day of work,
which would have been a heavy case-load even for an experienced Social Worker. The provincial
standard, according to the employer's witnesses, was 22 to 24 such files per Social Worker. She
had had no prior exposure to such files. Moreover, none of the files she was assigned was in
compliance with the legislation at the time, in that they lacked Plans of Care and other documents
that were supposed to have been prepared. The grievor was surprised at the volume of work she
received. She performed a lot of overtime in order to keep up. A visit by the Ministry's represen-
tatives was due in August 1999, and the grievor was instructed to get the files in the best possible
shape by then. At the same time as fixing the deficiencies in the documentation, she was having
to respond to an unusually large number of crises affecting her wards, such as breakdowns in
foster home arrangements, court appearances by the wards, etc.
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Mr. Terry Kirkpatrick, the grievor's supervisor, scheduled one meeting every two
weeks with the grievor as a formal supervision session, although sometimes other commitments
prevented them from meeting. At the meetings, they reviewed the state of her files and any prob-
lems on the files. He also performed surprise audits. He gave the grievor a lot of help, as did her
other senior colleagues. By the spring of 2000, the grievor's workload was still high, but was
down from its peak of 31 files, and was considered manageable. It was, however, never lower
than 24 cases.
Mr. Kirkpatrick conducted an evaluation of the grievor's performance in May
2000. His summary was positive:
Carolynn performs all required duties within the expected level of performance.
Beyond this, she shoulders her fair share of extra duties and she has been a strong
performer on the Central Services Team this year...
In June 2000, the Ministry's annual Crown Ward Review was conducted. Overall,
80% of the files managed by the employer were found to be in full legislative compliance. The
only deficiencies noted in the grievor's files, however, related to matters that were not within her
control, despite the files having been in very poor state when she inherited them a year earlier.
In January 2001, the grievor started seeing a psychiatrist, Dr. Edward Krul. The
grievor felt she needed to talk to a professional about the problems in her life. In addition to her
grandmother being seriously ill and a close friend having recently committed suicide, the grievor
had just been diagnosed with serious health problems, which she was having difficulty accepting.
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(The grievor testified about her health problems, but counsel agreed that there was no need for
any details to be given in this award.) She was depressed. She testified that she had difficulty
keeping her emotions intact and keeping her thoughts organized. She had panic attacks. Some
mornings, she had difficulty getting out of bed. She saw Dr. Krul once every two weeks, if he
was available. He gave her a sample of Celexa, an anti-depressant, in January or February 2001.
She was reluctant to take it, and did not do so until about June, when she felt she had no option.
She realized she was not performing well at work. Later that summer, Dr. Krul increased the
dosage of Celexa. She was also taking various medications for her other health problems, some of
which made her groggy and nauseated.
On April 17, 2001, Mr. Kirkpatrick sent an administrative note to the grievor to
draw her attention to missing case notes on her files and to the importance of making timely case
notes. In his testimony, Mr. Kirkpatrick stated that the grievor had been honest in admitting her
failure to make adequate case notes. The grievor testified that the missing notes were attributable
to her health problems and to her heavy workload.
In June 2001, the grievor had her second annual performance evaluation. While
she was still rated as meeting all her goals, it was not as positive as the one from a year earlier.
The problem of the missing case notes had been corrected by June. She agreed with
Mr. Kirkpatrick's principal conclusion in the evaluation, namely that she needed closer supervi-
sion. He acknowledged that some of his criticisms of the grievor noted in the evaluation might
have resulted from his failure to provide enough supervision during the previous year.
Mr. Kirkpatrick felt though that the grievor should have been taking the initiative more in asking
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for advice and guidance. He also acknowledged that "at times her workload rose to extraordinary
levels". Mr. Kirkpatrick testified that, in part, the lengthy and detailed performance evaluation
was to help his successor since he was due to leave the employer shortly.
Mr. Kirkpatrick stated in the 2001 evaluation that it was important that her case
notes "reflect your activities truthfully and comprehensively". He also stated that, as an
employee, she was expected to be "honest, hard-working, caring, committed". He also referred to
her occasional "youthful indiscretions". In his testimony, he explained that these comments
probably arose from reports he had received from other team members that they had had diffi-
culty locating the grievor when she was not in the office and from their perception that she was
not pulling her weight. He testified that if he had had problems with the grievor's honesty, he
would have addressed them squarely in the evaluation, which he did not do. There was one issue
he raised with the grievor, in a memorandum of April 20, 2001, namely her use of the employer's
cell-phones and vehicles: he reminded her that they were intended for official business and that
he expected her to act in a "responsible and professional" manner in this regard. In his testimony,
he stated that she had been slow in returning cell-phones or cars after using them on business and
that she had also used them on personal business, which had led to complaints from her
colleagues. Following his memorandum, he was not aware of any other instances of poor judg-
ment by the grievor in the use of the employer's phones or cars.
The grievor was starting to fall behind on her files in the spring of 2001. She felt
that closer supervision would help her to stay on top of her files and might perhaps lead to an
offer of some time off from her other duties to catch up with her documentation. She had told
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Mr. Kirkpatrick in about March 2001 that she was feeling stressed and was taking medication.
She had told him she was seeing a doctor or a counsellor, but she did not describe him as a
psychiatrist. Mr. Kirkpatrick had expressed concern and had been supportive. He had offered to
adjust her hours of work. The grievor did not even tell her parents she was seeing a psychiatrist.
She testified that she felt that, as a Social Worker, she was expected to help others to cope with
their problems, and she was embarrassed to admit to anyone that she could not handle her own.
The Crown Ward Review conducted by the Ministry in June 2001 revealed, again,
that the grievor's files were in full legislative compliance, except as regards deficiencies beyond
the grievor's control in three files.
THE GRIEVOR AND HER WORK: JUNE 2001 TO JANUARY 2002
In June 2001, Mr. Kirkpatrick left the employer. He was replaced by Ms. Marie
Petruska, who started on July 16.
Ms. Petruska had had extensive experience as a Social Worker in the field of child
protection and held the prestigious designation of Child Welfare Specialist. She had previously
worked for the New Brunswick Department of Health and Community Services for seven years.
This was her first supervisory position, although she had been an acting supervisor. She had had
no supervisory training before July 2001.
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The grievor did not tell Ms. Petruska at first that she was seeing a psychiatrist or a
counsellor. She testified that, in August, after missing an important appointment, she mentioned
to Ms. Petruska that her occasional forgetfulness resulted from the medication she was taking, but
Ms. Petruska testified she did not remember any mention of medication. In about October, in
requesting a late start at the office one day, she told Ms. Petruska that she had an appointment
with her counsellor. She was in fact seeing Dr. Krul every two or three weeks in the summer and
fall, except when Dr. Krul was away from Ottawa. The grievor testified that she did not want her
new supervisor to think that she (the grievor) was not in control of her life. She testified that a
colleague, who was also suffering from depression, had told her that Ms. Petruska had not been
cooperative or sympathetic when told of the depression.
Dr. Krul switched the grievor from Celexa to Prozac, another anti-depressant, in
the summer or fall, since the grievor attributed her confusion, panic attacks, fatigue and forgetful-
ness to the Celexa. She testified that she was missing appointments and forgetting telephone
numbers, even those of close family members. Her workload at the time was very heavy. While
she was conscious of falling behind, she testified that she was too embarrassed, in view of the
stigma of mental illness, to go on sick leave, so she took some vacation leave instead. She was off
for two weeks in July and two weeks in August. Later, in November, she asked to take some
more vacation leave (for which she had the credits), but she was denied because she was behind
in her work and was scheduled for some training. The grievor testified that she was "a total mess"
in the summer and the fall. The switch from Celexa to Prozac was helping her somewhat. While
she experienced the same side-effects, they were milder. She felt the benefits of the switch in
October or November. On November 20, Dr. Krul increased the dosage of the Prozac since it
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seemed to be having the desired effect and he felt that an increased dose would lead to even
greater benefits for her.
Realizing that she was falling behind at work, the grievor asked Ms. Petruska for
some "recording days", days when she would be relieved of any other duties and allowed to
concentrate on bringing her documentation up to date. In September or October, she was given a
couple of recording days, but her other requests were denied.
Ms. Petruska provided much less supervision to the grievor than Mr. Kirkpatrick
had. She did not perform any random audits of the grievor's files. According to the grievor,
Ms. Petruska did not appear to have read any of her files until the eve of the discharge.
Ms. Petruska, who had read Mr. Kirkpatrick's observation that the grievor needed closer supervi-
sion, scheduled supervision meetings with her for every Monday morning. Few such meetings
were actually held, however, either because the grievor had other commitments or was absent on
leave, or because one or other of them was on a training program, or because the dates were
public holidays. According to the grievor, they first met on August 3, when Ms. Petruska briefly
reviewed the highlights of each of her files. The grievor testified that they did not have another
formal supervision meeting until November 1. Ms. Petruska, in her testimony, recalled a few
other Monday mornings when they likely met, although, contrary to her normal practice, she did
not document any such meetings. At the November 1 meeting, the grievor told Ms. Petruska that
she was feeling "overwhelmed", to which Ms. Petruska replied that the grievor should set a goal
of completing two formal recordings per week to try to catch up. Ms. Petruska took no steps to
lighten the grievor's case-load at the time, given the difficulties in reassigning cases where rela-
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tionships had already been established, but she decided to refrain from giving the grievor any new
cases for the time being. (Mr. Kirkpatrick testified that if the grievor had told him she was "over-
whelmed", he would have taken that very seriously. Exactly what he would have done would
have depended on the context, he stated.) Ms. Petruska did not document any shortcomings in the
grievor's management of her cases before their November 1 meeting.
By the time of their meeting on November 21,2001, Ms. Petruska had realized the
extent to which the grievor had fallen behind on her files. Of the grievor's 24 files, only three
contained completed, timely Plans of Care or ONLAC's.
The grievor testified that, in the summer and fall of 2001, she felt she was not
performing her work to the best of her ability, but still considered herself to be capable of doing
her job. She did not believe that she put any children at risk. In retrospect, she testified, she
should have taken some sick leave.
The Crown Ward Review conducted in May 2002, after the grievor's discharge in
January 2002, covered the period from April 1, 2001, to March 31,2002. It revealed numerous
deficiencies in the grievor's former files, principally failure of the Social Worker to visit the child
as frequently as required, and failure to prepare or to update Plans of Care or ONLAC' s or to file
them, most of which were referable to the period before the grievor's discharge.
It was not until December 19, 2001, after the grievor's suspension, that she
submitted, through a union representative, a medical note. Signed by Dr. Krul and dated Decem-
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ber 19, it stated that the grievor had been under his professional care since January 8, 2001; that
she was being actively treated with psychotherapy and psychotropic medication; that she was not
fit to participate in a disciplinary interview scheduled for that date; that she would be receiving
intensive treatment; and that she would be able to participate in an interview in a competent
manner within a few weeks. A further medical note from Dr. Krul, dated January 8, 2002, stated
that she was fit to return to her normal duties, and was able to participate in a disciplinary inter-
View.
INCIDENTS OF ALLEGED DISHONESTY AND DERELICTION OF DUTY
Expenses for a trip to Montreal
On November 2, 2001, the grievor traveled to Montreal on business with a
colleague, Mr. Dominique Leeman, who reported to a different supervisor. The trip was to visit a
client of the grievor's whose status was changing and for whom Mr. Leeman's section would
now be responsible. They drove there and back in Mr. Leeman's car. Both the grievor and
Mr. Leeman claimed mileage for the trip. Before payment was made to the grievor, the employer
realized that it had received two mileage claims for the same journey, and investigated.
Mr. Leeman testified that the grievor had told him she was nervous about driving
to Montreal and she had suggested he drive. They did not discuss who would claim the mileage.
He expected that, since it was his car, he would make the claim. According to Mr. Leeman, once
in Montreal, they had difficulty finding the address where they had to go. The grievor telephoned
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for directions, but they got lost. They stopped in a gas station and the grievor bought a map and
made another telephone call. They drove again to what they thought was the right place, but it
appears that there are two streets, at opposite ends of Montreal, with almost identical names, and
they went to the wrong one. They stopped for lunch. The grievor paid for lunch for the two of
them since Mr. Leeman was short of cash, and she said that she would claim the lunch expenses
for both of them. There was still no mention, according to Mr. Leeman, about mileage expenses.
After lunch, they tried to find the address again, but were unable to do so. They returned to
Ottawa without having accomplished what they had intended to do in Montreal. On the way back,
he testified, they were both feeling frustrated about the wasted day. The grievor, he testified,
asked him if he thought he would have difficulty with his expense claim since they had not
accomplished anything. He replied: "No way I'm not getting reimbursed for this!" There was no
other discussion between them, according to Mr. Leeman, about expenses for the trip. As they
arrived back in Ottawa, he looked at the odometer on his car and said: "Oh my gosh, we traveled
460 kms. today!"
The grievor's testimony was not markedly different from Mr. Leeman's. She testi-
fied that she was uncomfortable about driving to Montreal, so they went in Mr. Leeman's car. A
trip to Montreal was a very unusual occurrence for an employee of the employer, and she had to
get prior approval for the trip from Ms. Petruska. They got lost in Montreal. The grievor bought a
map. Mr. Leeman told her he had no cash on him. She paid for lunch for the two of them. The
grievor testified that she told him that since they were visiting a client of hers, it might be easier if
she claimed for "everything", by which she meant the meals, the map and the mileage, although
she did not spell this out to him. When they returned to Ottawa, she asked him "What's the
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damage?", meaning how many kilometers had they traveled. She asked him to write down the
mileage. She was worried about the claim being approved since the mileage was much higher
than it should have been as a result of them losing their way.
The grievor testified that she had thought it would be easier for the employer if all
the trip expenses were submitted together. Since they were visiting her client, she thought it
would make more sense if she made the claim. She stated in her testimony that the two lunches
were on one receipt. By submitting one claim form, she testified, she would be giving the
employer a complete picture of the expenses of the trip. She had intended to give Mr. Leeman
cash for the mileage expenses once she was paid by the employer. She had thought that
Mr. Leeman had understood this. Since she was suffering from confusion and forgetfulness at the
time of the trip, the grievor testified, she might not have an accurate recollection of everything
that was said between them. She acknowledged in her testimony that it was perhaps illogical to
claim mileage expenses for a trip in someone else's car, but she added that a business trip to
Montreal was a rare occurrence. In addition, her previous business travel had been in the
employer's cars.
Restitution to a ward's former employer
In March 2001, one of the grievor's wards (who will be referred to as "M") was
caught stealing money and lottery tickets from the gas station where he had a part-time job. The
total amount of the theft was over $1,400.00. The police were called. A police officer met with
M, his foster parents, the gas station manager and the grievor. It was verbally agreed that, instead
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of being prosecuted, M would be given one month to find himself a new job, would enter a drug
rehabilitation program and would pay half of every pay-cheque to the gas station by way of
restitution.
In June 2001, M went to live at a group home run by Walker Youth Homes Inc.
Mr. Jeff Walker, the Executive Director of the home, and his staff saw the grievor several times
in the summer and fall of 200 1 and gave her money for remittance to the gas station as part of the
restitution agreement. In all, according to Mr. Walker, the grievor received $545.00 in cash, plus
a cheque, made payable to M, of which $200.00 was to be put towards restitution. On one occa-
sion, September 13, the grievor telephoned the group home to say that she was going to drop off
money at the gas station that day and to ask for M's next installment immediately. The grievor
provided no receipts. On September 29, M gave the staff at the home a further $120.00, which the
grievor did not come to pick up.
It is common ground that the grievor failed to pay any money to the gas station on
behalf of M. The only mention of any of this in M's file was a hand-written note made by the
grievor at a meeting on August 29,2001.
The grievor testified that, at the meeting with the police officer, she was told that
M was not welcome at the gas station, and she agreed to act on his behalf in making the restitu-
tion payments. She had never been involved in any such arrangement previously. She naively
thought this was the Social Worker's responsibility. When she received money from Mr. Walker
or his staff, she simply put it all in an envelope, which she kept in her brief-case and later trans-
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ferred to a fire-safe box. She did not think of providing receipts. She kept no records, although in
the hand-written note she made at the meeting on August 29, 2001, she wrote that she had
received sums of $380.00, $170.00 and $200.00, and that Mr. Walker had a further $385.00 in his
possession for this purpose. Her intention was to hold onto the money until she had a larger
amount. She denied taking any of M's money for herself. On one occasion, in September 2001,
she testified, she went to the gas station with the cash, but the manager was not there and she did
not want to leave any money with the clerk, the only person there. She testified that she intended
at one point to hand over all the money to the police officer, but never did so. She was pressed for
time and did not follow up with either the gas station or the police officer. She did not feel that
she was jeopardizing M's interests since both the gas station and the police officer had her tele-
phone number if they needed to talk to her.
In the summer of 2001, M was in breach of his agreement as regards drug abuse,
drug rehabilitation, holding a job and restitution, and the grievor informed Ms. Petruska of this.
She left a voice-mail message for the police officer, to tell him that M was not complying with
the agreement, but he did not return her call. She felt it would have been in the best interests of M
for him to be charged with the theft, since a mandatory counselling order could have been made
under the Young Offenders Act.
On December 13, 2001, the grievor was suspended from her job pending further
investigations. On January 14,2002, Mr. Dave Calvert, a colleague of the grievor's and the local
union president, gave Ms. Petruska an envelope on behalf of the grievor which contained $800.00
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in $20 bills, and told her that this was the money the grievor had been holding for restitution on
behalf of M.
The grievor, in her testimony, could not explain the discrepancy between (a) the
$800.00 in $20 bills, which Mr. Calvert gave to the employer in January 2002, (b) the various
sums (not divisible by 20) which she mentioned in her hand-written note of August 29,2001, and
(c) the sums mentioned by Mr. Walker in his testimony. She maintained that the $800.00 in $20
bills was all she had received.
In the letter of discharge, the employer claimed that the grievor's lack of docu-
mentation made it impossible to verify the extent of M' s efforts to make restitution, that she had
not made reasonable efforts to account for the money or remit it to the gas station, and that she
had been negligent.
Claim for meal and snack
When Ms. Petruska was reviewing the grievor's Statement ofIncidental Expenses
for November 2001, after she had become suspicious about the grievor's honesty, she noticed that
the grievor had claimed $3.11 for a snack on November 12 and $8.22 for dinner on November 14
in connection with the "B" children. The grievor was responsible for three siblings from the B
family, who were all Crown wards. While it was expected that Social Workers might take their
wards for a snack, for which they would be reimbursed, Ms. Petruska knew, from the grievor's
schedules, that she was not due to visit any of the B children during the week of November 12 to
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16. The grievor had submitted receipts with her Statement of Incidental Expenses. The snack for
$3.11 had been bought at a Tim Horton's at 11: 17 a.m. on November 12; the receipt indicates that
the grievor bought one bagel and two small chocolate milks. The dinner for $8.22 had been
bought at a McDonald's at 5:36 p.m. on November 14; the receipt indicates that the grievor
bought one "Big Mac", one "Cheeseburger Happy Meal", one medium orange juice, one medium
fries and one children's orange juice.
On December 11, Ms. Petruska spoke to the foster mother of the B children,
Ms. Barbara Barrett, who told her that the grievor had not taken any of the B children for a snack
or a meal within the previous month. (Ms. Barrett confirmed this in her testimony.)
When questioned about these expenses on December 13, the grievor confidently
stated that she was working on an ONLAC with one of the B children on November 12, during
school hours, as the foster mother had kept the child at home that day. They went to Tim
Horton's, she told Ms. Petruska, during a break in their meeting. As for November 14, the grievor
confidently stated on December 13, that she had gone with one of the B children to McDonald's
or to a pizza restaurant. She was not sure if the occasion was the child's birthday, but she remem-
bered that they were working on an ONLAC on the day in question.
At a further interview, held on January 14,2002, the grievor admitted that she had
lied about the dinner and the snack. Ms. Petruska testified that the grievor did not exhibit any
remorse, either verbally or in her facial expression, when she admitted to having lied.
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In her testimony, the grievor stated that she could not remember who she was with
on November 12 when she went to Tim Horton's. She was definitely working that day. On the
basis of the items ordered, she felt she must have been with a child. Similarly, when she went to
McDonald's on November 14, she must have been with a child, but could not remember with
whom. The grievor added that she was on a strict diet at the time and would not have consumed
all that food by herself. When she filled out her Statement of Incidental Expenses for November,
she assumed that she must have been with one of the B children since she was working on their
ONLAC's at the time. In November, she was disoriented, confused, forgetful and discouraged.
Gift certificates for the "B" children
On the grievor's Statement of Incidental Expenses for November 2001, she
claimed $30.00 for birthday gifts for two of the B children. A receipt from Chapters Bookstore
indicated she had bought three $10.00 gift certificates on November 7. Ms. Petruska wondered
why three $10.00 certificates would be bought for two birthday gifts.
Ms. Petruska spoke to Ms. Barrett, the B children's foster mother, on December 6.
Ms. Barrett told her that two of the children had birthdays in November (on the 7ili and 15ili), that
one of them had received a birthday card from the grievor, with no gift, and that the other had not
even received a birthday card. When Ms. Petruska asked the grievor about birthday gifts for the B
children, on December 10, the grievor stated that she had given each of the two children $15.00
in certificates; that she had made separate trips to visit them on their birthdays; that she had put
the certificates in a birthday card, to which she had attached a bow; and that she had participated
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in birthday dinners for the two children with the whole family, with pasta being served. On
December 11, Ms. Petruska again spoke to Ms. Barrett, who confirmed her earlier account of
what the children had received from the grievor, and stated that the grievor did not attend the
children's birthday dinners. (Ms. Barrett confirmed all of this in her testimony.) On December 13,
the grievor maintained that she had given each of the children Chapters gift certificates to a value
of $15.00. She explained that the certificates were in $5.00 denominations. She said that she gave
one of the children his certificates in his hand, that she dropped off the birthday card, and that she
returned later for the birthday dinner. When she went to the other child's birthday dinner, she
gave him his gift certificates privately, before the meal. She repeated that she had been at each of
the dinners with the foster parents and the siblings.
At her interview on January 14,2002, the grievor changed her story. She said that
she had intended to give the younger child a $10.00 certificate and a "Harry Potter" book, which
was the grievor's own, and to give the older child a $20.00 certificate. She stated that she had
misplaced the certificates and was too embarrassed to admit to having done so. She also admitted
that she did not stay for the birthday dinners.
In her testimony, the grievor explained that she had intended, when she bought the
certificates, to give $20.00 to the older B child, and $10.00 to the younger one. However, she
misplaced the certificates. She tried to find them, but was unsuccessful. She thought she would
make it up to the children at Christmas. She was too embarrassed to admit to the employer that
she had lost them, so she tried to cover this up. She did not want anybody to know how badly she
had screwed up, she said. She was particularly scared by the presence of Ms. Val Flynn, the
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employer's Coordinator of Employment Services, at the interviews in December. She could not
believe that she was so disorganized as to lose something of such importance to the children. Nor
could she believe that the words of the concocted story came out of her mouth at the meetings in
December. After she realized how much importance the employer was placing on the gift certifi-
cates for the B children, she searched for them high and low, and located them under the seat of
her car. She gave them to Mr. Calvert, who returned them to the employer.
Purchase of two $150.00 2ift certificates
As noted earlier, the grievor was suspended with pay on December 13, 2001,
pending further investigation. She was informed that she was not to have any contact with the
employer's staff, clients or foster parents until further notice and that she was to return all keys in
her possession.
On December 19, Mr. Calvert remitted to Ms. Petruska, on behalf of the grievor,
two $150.00 gift certificates from a shopping centre and two Christmas cards for children in care.
The grievor had bought the certificates with the employer's funds. Although Ms. Petruska had
other concerns about these certificates at the time, the employer's criticism at the arbitration
hearing was limited to these certificates having been purchased by the grievor after she was
informed she was suspended. It appears that she was issued a cheque to make these purchases
early in December, but only bought them after her suspension. For Ms. Petruska, the cheque was
among the items the grievor should have handed over upon being suspended.
- 22-
In her testimony, the grievor simply stated that she had wanted to make sure the
two children had gifts for Christmas.
The 2:rievor's handlin2: of the case of "J"
One of the grievor's wards, "J", was admitted to a foster home supervised by Open
Arms Family Homes in January 2001. The legislation required that a Plan of Care (or ONLAC)
be completed within 90 days of the admission. Ms. Hilda Wilson, a supervisor at Open Arms,
made several attempts to set up a meeting with the grievor to start the process of developing a
Plan of Care for 1. On one occasion, according to Ms. Wilson, the grievor told her she was too
busy to meet for the next few weeks. On another occasion, the grievor told her she was scheduled
for training. On a further occasion, she replied that she was busy doing ONLAC's for other chil-
dren. On December 3, 2001, the grievor had to go to J's school with Ms. Wilson and J to deal
with a disciplinary matter. According to Ms. Wilson, the grievor had promised to meet afterwards
to start work on the Plan of Care, but the grievor reneged, claiming she did not have time. The
grievor, according to Ms. Wilson, added that since J was over 18, no Plan of Care was required.
From Ms. Wilson's experience, she knew that this last statement was not true, and she told this to
the grievor, who replied that she only had to give Ms. Wilson the cover-sheet of a Plan of Care.
Ms. Wilson knew that she had received complete Plans of Care for other children over 18. The
grievor then told her she would be doing an ONLAC instead of a Plan of Care for J, but later she
contradicted herself. By now, Ms. Wilson testified, she was totally confused, and she informed
the employer about the grievor's lack of service for J, the first time in six years with Open Arms
that she had had to complain to the employer about the service provided by a Social Worker.
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In her testimony, Ms. Wilson added that J had a number of issues that needed to be
addressed, including an overdue psychological test, anger management training, and disciplinary
problems at school resulting from violent behaviour. Ms. Wilson, from her experience, knew that
the Plan of Care (or ONLAC) process would have brought all these issues into focus and would
have led to them being addressed. She had previously requested anger management training for J,
but the grievor had told her he was not eligible since he was developmentally delayed.
In addition to the above, Ms. Wilson testified that the grievor was supposed to
apply to the Ontario Disability Support Program ("ODSP") for a disability pension for J, to which
he became entitled on his 18th birthday in March 2001. The grievor, she testified, applied to
Ontario Works instead, for which he was not eligible. Ms. Wilson told the grievor about this error
in May 2001, and the grievor told her that J first had to undergo a psychological assessment.
Ms. Wilson followed up with the grievor about the psychological assessment, but to no avail. It
was not until January 2002, after a new Social Worker had taken over the grievor's cases, that J
was assessed. He was also referred to an anger management program for which the grievor had
earlier stated he was ineligible.
The grievor's testimony painted a different picture of the service she provided to J.
In the first place, she testified, J had come to the Open Arms home in January 2001, following
allegations that he had been abused at his former foster home. The former foster home was run by
Ms. Wilson's sister. The grievor stated in her testimony that J was reluctant to open up and
discuss anything in Ms. Wilson's presence since he was afraid that it would be reported back to
the former foster home. Secondly, the grievor testified, an ONLAC had been completed in 2000,
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and she and Mr. Kirkpatrick agreed that there was no point in doing another one at the time.
When she had completed an ONLAC with J the previous year, it had taken three or four times
longer than usual in view of his developmental disabilities. He had also become very anxious in
answering the questions about his family, and she felt that doing another ONLAC would do more
harm than good. She testified that she had discussed the goals for J with one of Ms. Wilson's
supervisors and with J's foster mother. For the grievor, this discussion fulfilled the purposes of a
formal Plan of Care.
The grievor also explained in her testimony the delay in having a psychological
assessment completed for 1. She agreed that one was needed. She was advised by one of the
employer's supervisors to contact J's school. The school officials said they had to contact the
school board. Then the summer vacation arrived, and it was impossible for her to speak to anyone
at the school or the board. The grievor spoke again to one of the employer's supervisors, who
suggested that J's family doctor could perhaps do a psychological assessment. J's family doctor,
however, declined to do one. She discussed with the employer's psychologist whether he could
perform an assessment. She also discussed with him some anger management training for J, but J
did not qualify. By November, the grievor was scheduled for more training. In December, she
was suspended. As a result of all of this, no psychological assessment was completed, despite her
efforts.
The purpose of the psychological assessment, the grievor testified, was to qualify J
for benefits under the ODSP. She telephoned the Ministry to inquire about registering him for the
ODSP, but she received incorrect information and made application to Ontario Works instead.
- 25 -
This was the first time she had tried to apply for ODSP. All of this happened after
Mr. Kirkpatrick left and before Ms. Petruska arrived. The grievor testified that she wanted to
figure out herself how to apply for ODSP benefits, and so she did not seek advice from anyone
else.
The 2:rievor's handlin2: of the case of "M"
Reference was made earlier to the case of M, one of the wards for whom the
grievor was responsible. M was admitted to a home run by Walker Youth Homes Inc. in June
2001. On August 8, the staff at the home prepared an initial report on M, which was sent to the
grievor. A meeting of M, the grievor and Mr. Jeff Walker was held on August 29. There, they
reviewed some of the goals stated in the previous ONLAC, but Mr. Walker was not given a copy.
Nor was he given a family history on M, a discharge report from M's previous placement or any
medical information. All of this would normally have been provided to the home by the Social
Worker. Mention was made at the meeting ofM's sexual misbehaviour at a previous foster home,
but no details were provided to Mr. Walker, who felt he needed it to assess whether M posed a
danger to other residents at the home and also as a prelude to the counselling that he was due to
do with M. The grievor told Mr. Walker that she would check to see what was available.
Mr. Walker followed up on August 30 and October 15 with faxed requests to the grievor for
documentation. Although some information was given verbally by the grievor, the requests for
documentation went unanswered.
- 26-
On November 19, M was taken to hospital by the police after having consumed
large quantities of alcohol. M was crying, vomiting, and holding onto Mr. Walker's hand at the
hospital. M told the doctor that he was upset about his mother. Neither Mr. Walker nor his staff
had yet received any documentation about M's history or medical history. Mr. Walker testified
that he was angry that, after M had spent five months in one of his homes, he still had so little
understanding of what was going on in M's life. On November 20, Mr. Walker complained to the
employer about the dearth of documentation he had received on M and how this was impacting
on the care that Walker Youth Homes Inc. could provide. He was worried about his own legal
liability. Verbal and written reports were also made to the employer by one ofMr. Walker's staff.
The grievor failed to respond to any of this.
On December 4, Mr. Walker again complained to one of the employer's supervi-
sors about the lack of documentation concerning M.
After the grievor's replacement by another Social Worker early in 2002,
Mr. Walker received a written social history on M, that had been prepared in May 2001.
The grievor testified that she was assigned M's file in June 1999. It was in very
bad shape, with no case notes and no social history. When M was placed at the home run by
Walker Youth Homes Inc., she met with an intake worker from the home, whom she briefed on
all aspects of M's life. The grievor told this intake worker everything she knew about M. The
meeting lasted about one hour. She handed over M's immunization record, which was needed for
school enrolment. The grievor knew that an ONLAC was due for M. She did not remember
- 27 -
receiving Mr. Walker's faxed requests for documentation. On several later occasions, she again
spoke to Mr. Walker and his staff at M's home to provide further information about M, including
about his drug abuse history and the incidents of sexual misbehaviour. She gave them all the
information she had on M, but everything was done verbally, since she was under so much pres-
sure from her heavy case-load. She could not remember when the social history on M, dated May
2001, was actually put on M's file.
The 2:rievor's completion of ONLAC's
Prominent among Ms. Petruska's criticisms of the grievor's performance was her
complaint that the grievor did not devote as much time as was needed to complete ONLAC's and
did not follow the ONLAC procedure. As noted earlier, ONLAC's are an optional tool. However,
the grievor had chosen to convert all her cases to the ONLAC model.
The ONLAC is a 50-page document that is used to record information about the
child and establish goals for him or her. It is designed to give a total picture of the child's func-
tioning and needs. It is sub-titled "Background Information & Assessment and Action Record".
The background information portion of the questionnaire, covering eight pages, requires infor-
mation on reason for current admission, details of current placement, information on the Social
Worker, and information on foster parent. The balance of the questionnaire, the Assessment and
Action Record part, seeks information on the child's health, education, identity, family and social
relationships, social presentation, emotional and behavioural development, and self-care skills. In
addition to multiple-choice questions, there are blank pages where the Social Worker is asked to
- 28 -
prepare a draft of a plan of care for the child, and there are "prompts" for this purpose for the
Social Worker. The ONLAC is designed to be completed collaboratively by the team working
together in the best interests of the youth, i.e. the Social Worker, the child and the foster parent
(or other adult care-giver), although some questions are intended just for one of these people. If
there is no consensus on the answer to be given to a particular question, this is to be noted. The
goals established in the ONLAC process are to be reviewed every three months.
Ms. Petruska testified that the ONLAC requires eight to ten hours to be completed.
To do it properly involves more just than recording answers to the multiple-choice questions. It is
designed to facilitate a flow of information between the participants. The Social Worker is
supposed to use the ONLAC discussions as a means of establishing goals and priorities for the
child. To complete an ONLAC properly requires several meetings.
After concerns about the grievor's honesty and performance first surfaced,
Ms. Petruska spoke to various care-givers with whom the grievor had been working. Several of
them complained to her about ONLAC's, specifically that they had been kept in the dark by the
grievor about the ONLAC's, that the grievor was dictating what the goals should be, that she was
not inviting the care-givers to participate in the process, and that she was completing the
ONLAC's in two hours or less. Ms. Petruska, who has not personally completed ONLAC's, testi-
fied that the grievor confirmed to her that she did an entire ONLAC in one and one-half or two
hours. Ms. Petruska did not agree that an ONLAC always took less time to complete if it was an
update of the previous year's ONLAC since there might have been changes in the child's life in
the interim. Ms. Petruska added that she did not review any of the grievor's completed ONLAC's
- 29-
until mid-November 2001; although she found them to be poorly completed, she did not have an
opportunity to discuss this with the grievor before the discharge.
Ms. Barrett, the foster mother of the B children, testified that grievor met one of
the siblings to work on her ONLAC on October 22, 2001. That meeting lasted about one hour.
The grievor left a partially completed document with Ms. Barrett.
Ms. Barrett further testified that, on November 6, when the grievor met one of the
other children to work on his ONLAC, the meeting was private and lasted about 90 minutes,
following which the grievor met with Ms. Barrett. Ms. Barrett failed to grasp some of the ques-
tions, and the grievor had to explain them to her. The grievor left the partially completed ONLAC
with Ms. Barrett, with the request that she return it to the grievor upon completion. The grievor
did not in fact complete the ONLAC before her discharge.
The ONLAC for the third B sibling, according to Ms. Barrett, was started on
November 8, but had to be discontinued since the grievor had brought the wrong form. The
grievor returned on November 13, when she spent about 90 minutes with the child and with
Ms. Barrett's husband. This ONLAC was completed by the grievor, but it had to be completely
re-done after her discharge since the grievor had used the wrong form.
In her testimony, the grievor denied that she only spent about two hours on each
ONLAc. She testified that she generally spent two or three hours interviewing the child and
foster parents. Following that, she reviewed the questionnaire and made notes on issues, goals,
- 30 -
etc. Then, she drafted the goals, which she reviewed with the foster parents, soliciting their input.
In all, she estimated, it took her seven or eight hours (exclusive of travelling) to complete an
ONLAc.
REASONS FOR DECISION
As noted earlier, there was little conflict in the evidence. Most of counsels'
submissions dealt with the conclusions to be drawn from the evidence.
For the employer, the evidence revealed a pattern of deceit and dereliction of duty
by an employee who had been adequately trained and supervised. The grievor's conduct had
irreparably damaged the employment relationship. The employer could not be expected to have
any confidence in her work on behalf of the vulnerable children for whom she was responsible.
For the union, on the other hand, the evidence showed that the grievor was an
inexperienced but competent Social Worker who, in addition to being depressed, was over-
whelmed with an excessive workload and inadequately supported by her supervisor. The union
acknowledges that some disciplinary action might be warranted for her inappropriate conduct, but
her misconduct did not constitute a breach of trust, and there was no reason to believe that the
relationship could not be salvaged.
The first matter I wish to examine is whether any of the grievor's conduct qualifies
as dishonesty or a breach of trust.
- 31 -
The first incident described above is the claim for mileage expenses for the trip to
Montreal, where the employer alleges attempted fraud on the part of the grievor. It is perhaps
unfortunate that the employer did not pay the grievor's claim since her subsequent conduct would
have revealed convincingly whether she was being honest or not. As it is, the employer can only
ask me to draw conclusions about her intentions from the surrounding circumstances. When a
party relies on circumstantial evidence in this way, it must satisfY the trier of fact that the infer-
ences it seeks to draw from those circumstances are the most probable ones. In an unreported
award dated June 27, 1986, Re Sunnybrook Hospital and Sunnybrook Hospital Employees
Union, Loc. 777 (Gastis), cited in Re Ontario (Attorney-General) and O.P.S.E.D. (Khan) (1989),
18th LA.c. (4th) 260 (Swan), arbitrator Michel Picher put it this way:
In the arbitrator's view, where the evidence is principally circumstantial, it must be
determined whether, in balancing the probabilities, there are other reasonable
explanations equally probable or more probable than the proposition which is
advanced by the party that bears the burden of proof. If there are no reasonable
alternative possibilities of equal or greater probability, it may be concluded, as a
matter of evidence, that the allegation advanced is established on the balance of
probabilities.
In the present case, while I cannot totally rule out the possibility of a fraudulent intention by the
grievor, the interpretation that there was a misunderstanding between the grievor and Mr. Leeman
appears to me to be at least as likely. I cannot therefore be satisfied, on the basis of the evidence I
received, that this is a case of attempted fraud or breach of trust.
The second incident relied on by the employer is the grievor's handling of the
restitution agreement made between M and the gas station. To say that the grievor exercised
- 32 -
extremely bad judgment is to state the obvious. She should probably never have accepted the
responsibility of collecting the money and remitting it to the gas station in the first place. Having
done so, however, she should have given receipts for all the cash she received; she should have
kept records; and she should have made more of an effort to hand over the money to the gas
station. What lessons must the wayward M have learned from her conduct in this case!
It is important to note, however, that the employer has not alleged in the letter of
discharge that the grievor acted with any fraudulent intention. Given the specificity of the
grounds stated by the employer in the letter of discharge, and in the absence of argument on the
matter, I am not inclined to allow the employer to expand the grounds for the discharge by alleg-
ing that the grievor had a fraudulent intent in this matter.
Accordingly, while I am satisfied that the grievor exercised extremely poor judg-
ment and acted in a negligent manner in relation to the restitution agreement, I am not prepared to
find that she acted with any fraudulent intent.
The third incident described above was the claim for the meal and the snack. The
grievor had claimed a total of $11.33 for a snack and a dinner, stating that she had been with the
B children. It is common ground that she did not take the B children to the restaurants on those
days. While the employer does not seriously dispute the grievor's suggestion that on the days in
question she must have been with one of the other children for whom she was responsible, its
main concern is that she lied about this in interviews, when she could have admitted that she
might have been mistaken about which child had accompanied her to the restaurants on those
- 33 -
days. This incident, even by the grievor's own admission, involved dishonest replies by her to the
employer's legitimate questioning of her expense account. In addition to her replies being
dishonest, she concocted a story - about the foster mother having kept one of the B children
home from school that day - and failed to acknowledge any wrongdoing or to apologize when
she finally admitted the lie to Ms. Petruska on January 14, 2002, which are aggravating factors, in
my View.
The fourth alleged incident involving breach of trust had to do with the gift certifi-
cates for the B children. The employer has two criticisms. In the first place, the employer is skep-
tical about the grievor's claim to have misplaced the certificates and to have found them only
after the investigation into her wrongdoing had started. Secondly, the employer notes that the
grievor lied during the investigation about the certificates and the birthday dinners. The grievor
admits she lied to the employer, which she attributes to a misguided attempt to cover up the
extent to which she was no longer in control of her life, but denies any fraud.
There was no suggestion by the employer that the gift certificates that Mr. Calvert
returned to the employer were not the same ones purchased on November 7. I find it unlikely,
although by no means impossible, that a dishonest employee would purchase gift certificates for
her own use and wait for a couple of months before using them. In my view, this adds some
substance to the grievor's claim that she purchased the certificates for the two B children and then
misplaced them. Her claim in this regard does not appear to me to be implausible. Fraud must be
proven; it cannot be lightly inferred from the circumstances. I am not prepared to conclude that
the grievor acted with a fraudulent intent as regards the purchase of the certificates.
- 34 -
It is, of course, admitted by the grievor that she lied to the employer about the
whereabouts of the gift certificates, which obviously constitutes a breach of trust. I shall have
more to say on this below.
The fifth alleged incident of wrongdoing was the purchase of the two $150.00 gift
certificates. The criticism here, as stated by the employer at the hearing, was that the grievor
disobeyed the instructions given to her at the time of her suspension not to conduct any of the
employer's business or have any contact with clients, staff, etc., until further notice. In order to
determine whether the grievor breached the instruction I would need to know exactly what she
was told at the time of suspension. What the grievor did, in purchasing the gift certificates while
on suspension, was not so obviously improper that I could conclude, without that information,
that she was guilty of insubordination. I note that, in the letter of discharge, the criticism is made
that "[i]t was not appropriate for you to continue to do Society work while you were suspended".
Perhaps there is some validity to that charge. However, there is no clear case of insubordination
here and certainly no behaviour that could be characterized as dishonest or as a breach of trust.
It would be convenient to consider next the allegations concerning the grievor's
handling of the cases of J and M. It would be an understatement to say that the grievor failed to
perform her duties adequately in these respects.
In the case of J, despite the grievor's suggestions to the contrary, I accept that she
failed to attend, with the required diligence, to preparing a Plan of Care (or ONLAC) for him, to
arranging a psychological assessment for him, or to applying for ODSP benefits for him. The
- 35 -
interests of J may very well have been compromised by the grievor's unsatisfactory handling of
his file, as the employer alleges.
In the case of M, it is quite possible, as the grievor claims, that she provided some
verbal information to the staff at M's home about this youth's social history and medical back-
ground, but that cannot compensate for the absence of documentation. The whole régime in
which she worked was dependent on documentation. One reason for this insistence on documen-
tation was brought into sharp focus when M was hospitalized for alcohol intoxication and
Mr. Walker was able to find nothing on M's file to help him understand this incident or respond
to it. This episode could have led to tragic consequences for M. It is also a mystery to me why the
grievor did not provide Mr. Walker the written social history on M that had been prepared in May
2001. As for Mr. Walker's faxed requests for documentation, which failed to elicit any response
or even acknowledgment from the grievor, it may be true that, at the time of testifYing, she could
not remember having seen them, but I have no reason to believe that she did not see them when
they were received in her office.
There was some conflict in the evidence about the grievor's completion of
ONLAC's. She denied the allegation that she polished them off in two hours or less.
Ms. Barrett's testimony suggests the contrary, and also indicates that the grievor was inefficient
and confused regarding the completion of ONLAC' s. The grievor testified that while she was
knowledgeable about them, she was generally in a state of confusion and forgetfulness in the
summer and fall of 200 1.
- 36 -
Looking at the evidence as a whole, I find that, prima facie, discipline was
warranted for her dishonesty in responding to her supervisor's questions in December 2001.
However, apart from her untruthful replies and the stories she concocted - about the birthday
gifts, the birthday dinners and the snacks for the B children - I have concluded that none of the
employer's other allegations of dishonesty has been proved. And as regards the lies and the
concocted stories, I am satisfied that she was not attempting to acquire any monetary benefit for
herself: she fabricated them in a foolish attempt to cover up the extent to which she had fallen
behind in her work.
I am not satisfied that discipline was warranted for any deficiencies in the
grievor's performance of her duties. There was certainly poor judgment and careless work by the
grievor, but I do not regard any of the deficiencies as being in the category of voluntary malfea-
sance. Although described by the employer as instances of dereliction of duty, I regard her
handling of the cases of J and M as examples of sloppy, ineffective work by her rather than wilful
neglect of her duties.
I must now consider the central plank in the union's defence of the grievor,
namely that, at the material times, she was depressed, was taking medication that produced side-
effects, and was carrying an excessive workload, challenges that were exacerbated by the inade-
quate support and supervision she received from Ms. Petruska. The union argues that the defi-
ciencies in her work, as well as the predicaments in which she found herself and from two of
which she tried to extricate herself by lying, have to be viewed in this context.
- 37 -
I note, in the first place, that no medical evidence was called to substantiate the
grievor's claim that she had been diagnosed with serious health problems, that she was depressed,
that she was taking medication (both for the depression and her other health problems), or that (as
a result of her depression or her medications or both) she was in a state of disorientation, confu-
sion and forgetfulness during the summer and fall of 200 1.
The employer has cited two awards where a grievor who had been discharged for
dishonest conduct attributed the conduct to health or emotional problems, namely Re Canada
Safeway Ltd. and Retail, Wholesale and Department Store Union (1999),82 LA.c. (4th) 1 (Ish)
and Re City of Hamilton and Canadian Union of Public Employees, Local 1041, [1998] O.LA.A.
No. 286 (Bendel). Ms. Piette, counsel for the employer, noted that, in the first of these cases, the
arbitrator stated, at page 20, that medical or scientific evidence was usually called to establish the
existence of an illness or condition; that it was often supplemented by the evidence of colleagues
or family members who had observed changes in the grievor's behaviour; and that expert
evidence was also usually called to establish a nexus between the illness or condition and the
grievor's aberrant conduct. In the second of these cases, counsel observed, there was extensive
expert evidence on the grievor's addiction and its impact on his behaviour, as well as evidence of
family members and colleagues.
In addition to drawing attention to the absence of any evidence, other than the
grievor's own, to support the claims concerning her health, Ms. Piette argued that the grievor had
been inconsistent on these issues in her testimony. In particular, it seemed too convenient for the
grievor to allege, in December 2001 after she was suspended, that she had been disoriented and
- 38 -
confused in the summer and fall of 2001, without having ever previously alerted the employer to
any such health problems, and then to submit a medical note, dated January 8, 2002, in which she
was said to be fit to resume her normal duties.
In all these circumstances, Ms. Piette argued, the grievor's evidence about her
alleged health problems should be regarded with suspicion.
Having given these questions careful consideration, I must state that I share the
employer's concerns about the evidence of the grievor's depression and medication side-effects.
No explanation was given by Ms. Ballantyne, counsel for the union, for the failure to call the
grievor's psychiatrist, Dr. Krul, to testifY. Like Ms. Piette, I am troubled by a comparison of the
two medical certificates issued by him within a three-week period: in the first, dated December
19, 2001, he described the grievor as being unable to participate in a disciplinary interview that
day and as needing "intensive treatment", whereas in the second, dated January 8, 2002, he says
that she is fit to return to her normal duties and to participate in a disciplinary interview. I should
also observe that, while there is no rule of evidence requiring that health matters be addressed by
a health care professional, arbitrators certainly expect to receive something more than the
grievor's own say-so where a discharge is challenged on the basis of the grievor's state of health.
Accordingly, while I do not reject the grievor's evidence on her depression and on
the side-effects of her medication, I am not prepared to place great reliance on it.
- 39 -
As regards the grievor's workload, there was conclusive evidence, in my view,
that she had been carrying a workload that would have been heavy even for an experienced Social
Worker, although it was down from its peak.
I must address next the adequacy of the supervision and support the grievor
received from Ms. Petruska. I find that very few supervision meetings between them actually
took place. According to the grievor, she only attended three such sessions, on August 3, and
November 1 & 21, 2001. I am inclined to rej ect Ms. Petruska's testimony that other sessions were
held if only because Ms. Petruska, who was in the practice of meticulously documenting all her
contacts, had no documentation to confirm that any other meetings had taken place. Of greater
significance than the number of meetings, however, is that Ms. Petruska seems to have had no
inkling before November that the grievor was falling behind in her work or was doing a poor job
of completing ONLAC's. Mr. Kirkpatrick, it will be recalled, had recorded in his performance
evaluation of the grievor that she needed closer supervision and that she did not have a good
grasp of which issues she should bring to her supervisor for the purpose of receiving guidance,
and Ms. Petruska had intended to follow up on this by meeting the grievor every week. It is not
part of my mandate to judge whether Ms. Petruska was at fault in this regard. However, I have no
reason to find that the grievor was avoiding supervision sessions with Ms. Petruska.
I am also satisfied from the evidence as a whole that, in this milieu, there is an
expectation that Social Workers, particularly inexperienced ones, will receive close supervision.
Not only are the decisions that Social Workers make about the lives of vulnerable children too
important to be left to their sole discretion, but it is critical that there be appropriate follow-up on
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files. Since the Social Workers' young clients are generally incapable of complaining of lack of
appropriate service, proper supervision is all the more important. It is easy, it seems to me, for
inexperienced employees to become snowed under by their weighty responsibilities, and some
evidence was presented that other employees, including the one from whom the grievor inherited
her initial batch of Crown Ward files, had suffered that fate. These employees need to be care-
fully monitored and they need support.
It should have been obvious to the employer, long before November 21, that the
grievor was seriously behind in her work. She had stated, on November 1, that she was "over-
whelmed", but even this articulation by the grievor of the burden she felt she was bearing did not
set off the ringing of alarm bells in the way it should have. I note, in this regard, the evidence of
Mr. Kirkpatrick about the reaction he would have had to a statement like that from one of his
staff. In my view, it is no coincidence that the bulk of the criticisms of the grievor's work and
conduct relate to the period after November 1.
Accordingly, while I am not inclined to give much weight to the grievor's claim
that she was suffering from depression and from the side-effects of her medication, I find that she
was carrying a heavy workload and was inadequately supervised and supported in the summer
and fall of2001.
In all these circumstances, I must decide whether discharge was an appropriate
response by the employer.
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I regard this case as a very sad one. The grievor was an inexperienced young
Social Worker who got in over her head. Her promising career has been derailed. Service to the
employer's clients has been disrupted. The employer must bear some responsibility for allowing
this situation to have developed, although it is obviously unfortunate that there was a change in
her supervisor at the material time. I do not mean to criticize Ms. Petruska, but it seems highly
probable to me that, if Mr. Kirkpatrick, with his extensive supervisory experience and his strong
working relationship with the grievor, had been there in the summer and fall of 2001, the situa-
tion would have been promptly identified and nipped in the bud, the grievor would have received
some help or some relief, and she would have long since resumed her career as a productive,
caring Social Worker.
I do not intend to suggest that the grievor had no responsibility to alert her super-
visors to the state she was in at the material times. Quite the contrary. In Re Timmins Board of
Education and Association des enseignantes et enseignants franco-ontariens (unreported award
dated September 22, 1995), a board of arbitration I chaired had to consider the discharge of a
school teacher who, because of the stress she was under, had treated her students roughly and
insensitively. At page 28, a majority of the board stated the following:
Weare satisfied that the incidents for which the grievor was disciplined can be
traced directly to her frustration in the fall of 1993. This, however, does not
provide a defence to the grievor for the wrongdoing of which she is charged. A lot
of people experience high levels of frustration or anxiety in their personal or
professional lives. An employer cannot be expected to condone or excuse miscon-
duct just because the employee in question is upset or feels under pressure. An
employer has a legitimate interest in keeping its operations running smoothly
regardless of the emotional state of its employees. In a school environment, it is
particularly legitimate, it seems to us, to expect that employees' frustrations
should not produce adverse repercussions for vulnerable children.
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Later, at page 33, the majority commented on the teacher's responsibility to ask for help:
We have already stated that, in our view, it would be wrong to excuse such
conduct towards vulnerable children on the grounds of a teacher's emotional state.
If a teacher feels unable to handle a class of children by reason of stress, tension,
frustration, etc., the teacher has some responsibility, in our view, for seeking help
or removing himself or herself from the classroom, as a general rule.
Similarly, in the case of the grievor, she acted improperly, in my view, in attempting to conceal
from the employer the extent to which she was falling behind and was overwhelmed by her
professional responsibilities and personal circumstances. She had an obligation to inform the
employer of her situation.
I view the grievor's misconduct in this case as being closely related to the
emotional state she was in as a result of her workload and lack of support. Although I have not
been satisfied that the health concerns she relied on have been proven, the evidence as a whole
tends to confirm that she was "a total mess" (to use her phrase) in the summer and fall of2001. I
do not regard the lies she told the employer as evidence that she is not a person who can be
trusted. Rather, I view them as a product of her feeling of being overwhelmed. While this expla-
nation does not excuse her misconduct, it does tend to negate the employer's argument that the
employment relationship is not salvageable.
In all these circumstances, I am satisfied that the discharge should be set aside. It
would not be appropriate, however, to award her compensation for lost salary or benefits. In the
final analysis, the grievor was guilty of lying to the employer, not for the purpose of securing any
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financial advantage for herself, but for the purpose of covering up the extent to which she had
fallen behind in her work. While she had an obligation to alert the employer that she was not able
to keep up, rather than conceal the fact, the employer must also bear some responsibility for the
situation in which she found herself. None of the other charges of dishonest conduct has been
proven.
It seems to me that the employer might want to satisfy itself that the grievor is fit
to return to work, and it should therefore have the right to require a medical assessment of the
grievor before she resumes work.
My order is as follows:
(a) the discharge is set aside;
(b) the employer shall reinstate the grievor in employment within four weeks
of the date of this award (or such later date as the parties might agree to);
(c) if the employer so desires, it may require the grievor to undergo a medical
assessment by a doctor of its own choosing before allowing her to return to
work;
(d) there will be no monetary compensation for the grievor for the period she
has been off work; and
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(e) I will remain seized to deal with any disagreement concerning the grievor's
return to work.
DATED at Thornhill, Ontario, this 20th day of January 2003.
Michael Bendel,
Arbitrator