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HomeMy WebLinkAboutBouvier 04-01-06 0 ~-- (P3~ - G \5 Concerning an arbitration Between: Jeanne Sauvé Family Services and Ontario Public Service Employees Union Grievance of Laurianne Bouvier, Dismissal Arbitrator: Joseph W. Samuels For the Parties Union Will Presley, OPSEU Representative Maurice Drolet, Local Steward Laurianne Bouvier, Grievor Employer Guy Wainwright, Counsel Mac Hiltz, Executive Director Yves Barbeau, Assistant Executive Director Hearings in North Bay on April 29, and then in Kapuskasing on July 24, September 17 and 18, December 22 and 23, 2003 1 On January 23,2003, Laurianne Bouvier was dismissed from her employment as a Casual Residential Worker at Jeanne Sauvé Family Services. She was still in her probation period. She grieved her dismissal. Article 5.02 of the collective agreement provides that "An employee who has not completed his probationary period may be discharged without just cause and at the sole discretion of the Employer". The parties agree that Article 5 .02 governs this grievance and that the Employer is not obligated to show just cause for the dismissal. However, it is also agreed that, in exercising its sole discretion, the Employer must not act arbitrarily, or in a discriminatory manner, or in bad faith. In this .case, the Union alleges that the Employer did act arbitrarily or in bad faith, because there was no valid reason to dismiss the grievor. From its opening statement to the end of the hearing, the Union has argued that the Employer acted arbitrarily and in bad faith by giving different reasons for the dismissal from time to time and because there was no factual basis for the reasons which were given. The Employer says that the grievor was unsuitable for the position and this is why it decided to terminate the grievor's employment during her probation period. Jeanne Sauvé Family Servic,es operates a number of programs and facilities to assist families in need of assistance. One of the facilities is a residential unit for young people, called the "Pavillon". This is where Laurianne Bouvier worked as a Casual Residential Worker. Ms. Bouvier was hired on a call-in basis on October 28, 2002. At the time, she resided in North Bay and she moved to Kapuskasing to take up her position. She expected to get enough work for full-time hours or close to full-time hours. Within three weeks of coming to Kapuskasing, she applied successfully for a contract position as a Casual Full-time worker. She would be replacing Linda Desbiens, who had recently been appointed as an Acting Supervisor. 2 The decision to dismiss Ms. Bouvier was made by Mac Hiltz, the Executive Director of Jeanne Sauvé Family Services. The Union agreed that he based his decision on information and recommendations from managers (Yves Barbeau, the Assistant Executive Director, and Jean Raymond, the Supervisor of Residential Programs), who said that the grievor could not do her job and would not progress. Given this admission, I made a preliminary decision that Mr. Hiltz did not act arbitrarily or in bad faith. There remains the issue of whether the information and recommendation~given to Mr. Hiltz were arbitrary and in bad faith. Jean Raymond, the Supervisor of Residential Programs, has been with Jeanne Sauvé Family Services for 15 years, as a Child Protection Worker, then a Child Protections Supervisor and, for three years, in his current position. He told us about the structure of the organization, and the part played by the PavilIon, where the grievor worked. He explained th~ routine that is prescribed for the clients, and the need for the Residential Workers to ensure consistency within the program. He spoke about the principles and practices in dealing with the clients. He was involved in hiring the grievor. He recommended her to Mr. Hiltz. He had little personal contact with the grievor after her hire, relying on information he received from the supervisors on shift, Linda Desbiens and Sylvie Boudreault. Be told us that, as time went on, he heard that there were repeated concerns about the grievor's performance-she was having power struggles with the children, she was giving inappropriate supervision, her interventions were inappropriate, and she came to,the facility once off-shift and once on shift smelling of alcohol. He testified that he advised the supervisors on how to deal with the grievor's performance-they should set goals, go over interventions and explain to the grievor how to deal with a situation more effectively. 3 Ms. Bouvier told us that she spoke to Jean Raymond on January 20 about a complaint by a client concerning something Ms. Bouvier had done. I was not told in the testimony precisely what this discussion was about. Whatever it was about, Ms. Bouvier testified that she told Mr. Raymond that none of it was true and he said that he would talk to the client, to find out how the client felt about Ms. Bouvier. They discussed how Ms. Bouvier should deal with the issue and with the client. It had to be dealt with. You couldn't just let it go. Ms. Bouvier said Mr. Raymond was very helpful. He had always been very helpful. She told Mr. Raymond that she would follow his instructions. Three days later, Mr. Raymond handed her the dismissal letter and, when she asked "why?", he replied that there was no need for him to explain because she was on probation. I have no difficulty whatsoever understanding the grievor's shock at this decision, coming so soon and with no warning after her discussion with Mr. Raymond on January 20. J Mr. Raymond told us that, on January 21 or 2i, he decided that the grievor: should be terminated and reported this to Mr. Hiltz. On January 23, he filled out an Employee Performance Appraisal form for Ms. Bouvier. Under "Limitations" , he wrote: . Does not take constructive criticism well . Very confrontational with clients and co-workers . Poorllimited intervention skills. On cross-examination, Mr. Raymond was asked his reasons for recommending Ms. Bouvier's dismissal and he gave the three points mentioned in the form on January 23, and he added that there had been two incidents involving alcohol on her breath-one in January involving Linda Desbiens (which I will review in detail when I look at the evidence of Ms. Desbiens), and an earlier incident in December, between Christmas and New Years Day, when a co-worker reported that the grievor had come to work "seemingly intoxicated" for a 7 AM shift start. The co-worker had not 4 reported this until several weeks later and Mr. Raymond was upset about this late report. He never raised the incident with the grievor. Linda Desbiens had been an Acting Supervisor at the PavilIon since October 16,2002, which is just before the grievor came to the place. Linda Desbiens had been a Residential Worker there since March 1995. As Acting Supervisor, Ms. Desbiens remained in the bargaining unit. Ms. Debiens supervised the grievor for the grievor's whole time with the Employer. Ms. Desbiens told us that the grievor did very well at the start. The grievor was told the policies and procedures and was put on a shift with an experienced worker. Ms. Desbiens said, once the grievor became full-time, there were concerns. The grievor did not follow some of the routines; she did not follow through with some "consequences" (which are issued to residents when they do something wrong); there were complaints that the grievor screamed at residents; the grievor got into "power struggles" with residents . .\ ("Do it", "No", "Do it", "No"), rather than saying what needed to be said and walking away. However, Ms. Desbiens did not appear to have any first- hand knowledge of these concerns and there may have been no factual basis for them. Indeed, Ms. Desbiens said in examination-in-chief and in cross- examination that, from her own observation, the grievor was fine in potential power struggles. Ms. Desbiens told us about the evening of January 7,2003, when the Grievor and a co-worker, Renée Seguin, came in while off-shift. Ms. Seguin had something to do concerning a health and safety inspection (Ms. Seguin was the health and safety officer for the PavilIon). Ms. Desbiens testified that she smelled a strong odor of alcohol when she entered the room and found the grievor and Ms. Seguin. Ms. Desbiens asked the women if they had been drinkin.g. She said that the grievor's eyes were red; that Ms. Seguin told her that she herself had wine with supper; and that the grievor said she had consumed a Mike's Hard Lemonade. Ms. Desbiens was concerned about the image that all of this would leave with the impressionable residents. 5 At the time of this incident, the grievor was living with Ms. Seguin. Ms. Seguin testified that she had one glass of wine with supper and that she did tell this to Ms. Desbiens. She told us that she did not think the grievor had been drinking that evening. Ms. Seguin had dinner with her three children at her ex-husband's place and had then returned home to find Ms. Bouvier napping on a couch. Ms. Seguin needed to get her health and safety inspection and talk to Ms. Desbiens about it and Ms. Bouvier drove her to the PavilIon. The grievor testified concerning this evening. She insisted that she had consumed no alcoholic beverage and she said that she did not tell Ms. ,Des biens that she had drunk a Mike's Hard Lemonade. I accept the evidence of Ms. Sequin and Ms. Bouvier. I find that Ms. Bouvier had not consumed alcohol on the night of January 7. Ms. Desbiens told us about a conversation she had with Ms. Bouvier on January 8 concerning the way in which Ms. Bouvier had dealt with a child , who used vulgar language, and Ms. Bouvier's responsibility for this child who was from outside Jeanne Sauvé Family Services. With respect to the vulgar language, the grievor replied that she did not give "consequences" because, on an earlier occasion, she had done so and other staff had told her she was giving too many consequences. With respect to her responsibility for the outside child, the grievor said that other staff had told her that he wasn't the responsibility of Jeanne Sauvé staff. Ms. Desbiens was not happy with either of these responses. In Ms. Desbiens' view, the grievor ought to have given consequences, and Ms. Desbiens had instructed staff at a meeting that they were responsible for this child (though she was not sure that the grievor had been at the meeting). She told us that she had the distinct impression that Ms. Bouvier could not take constructive criticism and had a "rationalization" for everything. In my view, Ms. Bouvier's uncontradicted explanations were the truth and were a good reply to Ms. Desbiens. If experienced staff had instructed Ms. Bouvier that she was giving too many consequences, then Ms. Desbiens cannot criticize her for following this advice. Ms. Desbiens 6 corrected the advice and it appears that the grievor was quite willing to follow Ms. Desbiens' instructions. And I find that the grievor had been told by other staff that this boy was not the responsibility of Jeanne Sauvé staff. Even Ms. Desbiens acknowledged that there had been an issue about the responsibility of Jeanne Sauvé staff for this person and that is why she had clarified it at a meeting, but the grievor wasn't at the meeting and can't be faulted for having acted on the basis of the advice she had from experienced staff on this point. After Ms. Desbiens corrected her, the grievor was perfectly willing to follow Ms. Desbiens' advice. On January 11, Ms. Desbiens met with the grievor to discuss her performance and the Notes de Supervision that Ms. Desbiens had prepared concerning the grievor. Ms. Desbiens wanted the grievor to set out her personal goal and her means of achieving it, but the grievor was not ready to do this and never responded to this request before her dismissal. As well, the grievor appeared unwilling to say a number of things which were on her mind, p8.rticularly with respect to the changes in staff scheduling which were proposed and which would have a significant impact on the grievor's opportunity to visit her daughter in North Bay. Ms. Bouvier later added written comments on the Notes de Supervision, saying that she needed one or two months to come to grips with the changed schedule and her feelings about it. The Union's cross-examination about these Notes de Supervision and this meeting between Ms. Desbiens and Ms. Bouvier highlighted why this matter went to arbitration. Ms. Desbiens acknowledged that, by January 11, she had concluded that the grievor did not take constructive criticism well, that she had a confrontational attitude with clients, and that she had poor intervention skills. But none of this was mentioned in the Notes, nor was it discussed with the grievor! When asked "why not?", she replied that she did not intc:nd to re-hash issues, just to address new matters. Ms. Desbiens felt that the grievor already knew that management had these concerns. And Ms. Desbiens had no real answer to the next question "Couldn't Ms. Bouvier 7 assume that there was no longer a problem in these areas - that she had taken advice and had improved?" We know from Ms. Bouvier's testimony that, in fact, that is precisely what was in her mind. In my view, that would be in the mind of any employee after this meeting with Ms. Desbiens. Curiously, Ms. Desbiens testified in examination-in-chief that she was not satisfied with how the grievor dealt with residents-she screamed at them, she did not follow through on consequences, she did not give consequences, she engaged in power struggles. Yet, in cross-examination, she testified that, in the meeting on January 11, she did the opposite of telling the grievor she was too confrontational with clients. "I told her she wasn't tough enough" . I have no difficulty understanding why the grievor was confused about what were and were not Ms. Desbiens' concerns. Later on January 11, Ms. Desbiens received a complaint from a client who said that Ms. Bouvier had screamed at her and had slammed her bedroom door, and described a power struggle over a whole evening. She said that Ms. Bouvier had "freaked out" and was in a bad mood that night and had screamed at another resident. Ms. Bouvier had doubts about the client's story and scheduled a meeting with Ms. Bouvier for January 23. But, before this meeting, another worker came in to tell Ms. Desbiens about that evening and confirmed the client's story. Furthermore, this worker told Ms. Desbiens that she was concerned about Ms. Bouvier's professionalism and her interventions and was very frustrated and wanted a supervisor to deal with this. Ms. Desbiens says that she had no reason to doubt this worker's story. Ms. Bouvier was dismissed before Ms. Desbiens had a chance to talk with her about these allegations. On January 20, Ms. Desbiens asked Ms. Bouvier for a form concerning clients. Ms. Bouvier took it out of her bag-the one she used to carry things to and from home. Ms. Desbiens told the grievor that she was not to take confidential information home. Ms. Bouvier said that she hadn't known this and accepted the advice. 8 But the next day, when Ms. Desbiens asked for the "diagnostic conference report" she had lent to the grievor as a model for one the grievor was doing, Ms. Bouvier took the document out of her bag. Ms. Desbiens was bothered. The day before, she had instructed Ms. Bouvier not to take such material home and Ms. Bouvier had done it again a day later. The grievor was asked about this in her cross-examination and she was adamant that it never happened. Indeed, on re-examination, the grievor said she had no idea what a "diagnostic conference report" was. Both witnesses on this point were very credible. I am left with finding that there was some serious misunderstanding in this situation and I make no finding of wrongdoing on the part of either witness. By the end of Ms. Desbiens' testimony, it seemed clear to me that her most serious concerns arose from information she received from clients and other staff. But these people were not called as witnesses and I have no way of determining whether there was any factual basis for these problems that were reported to Ms. Desbiens. In particular, Ms. Desbiens heard from ~thers that the grievor did not handle power struggles well, but Ms. Desbiens' own observation was to the contrary. More importantly, Ms. Desbiens was still in the middle of her investigation of the complaint by a client in January when the grievor was dismissed. Even in Ms. Desbiens' opinion, it was necessary for her to complete the investigation before coming to a final conclusion about the legitimacy of the complaint. Sylvie Boudreault started working at Jeanne Sauvé Family Services in 1993 as a Residential Worker. She became a Shift Supervisor at the PavilIon three years ago. She was on leave for most of November 2002, so she did not work much with Ms. Bouvier until about a month after the grievor started work. Ms. Boudreault testified that, on December 12, she observed Ms. Bouvier in a power struggle with a client. She suggested quietly to Ms. Bouvier that she give the client choices and walk away. Ms. Bouvier 9 accepted this and it worked. Ms. Boudreault was not concerned because Ms. Bouvier was a new employee. But a few hours later, Ms. Boudreault observed Ms. Bouvier in another power struggle with the same client. This time the client was outside at recess and was threatening to run away and Ms. Boudreault went out to tell Ms. Bouvier that it was best to do some "planned ignoring" -just leave the client and walk away and he will follow into the house. The women did this and the client returned as Ms. Boudreault predicted. Now Ms. Boudreault was concerned about Ms. Bouvier's performance, because in the morning she had counselled Ms. Bouvier on how to handle a power struggle with this particular client and Ms. Bouvier let it happen. again several hours later. The grievor testified in re-examination that she had no recollection of the first incident about which Ms. Boudreault testified, and, with respect to the second incident, Ms. Bouvier recalls dealing with a client who did not want to return to the house, but she says that there was a co-worker there but there was no supervisor, and she wasn't engaged . . in a power struggle with the client. I accept Ms. Boudreault's recollection of these events. On December 18, Ms. Boudreault heard from Nathalie Rochon, the Family Consultant, that the grievor had not handled a situation well when Ms. Bouvier gave a client privileges in a situation where the client should have been subjected to greater structure. We will look in a moment at Ms. Rochon's testimony. Ms. Boudreault spoke to the grievor to ensure that the grievor understood the need for consistency in the routines. At the same time, Ms. Boudreault spoke to Ms. Bouvier about filling in the logs properly. Ms. Bouvier said that she didn't know she had done wrong and Ms. Boudreault accepted that. But Ms. Boudreault was troubled by the way the grievor always had an answer-"Ya, I was going to do it" -and Ms. Boudreault "wondered". Ms. Boudreault said that over the next month, the problems did not go away. Ms. Bouvier was still struggling to get the clients to follow her directions. Ms. Boudreault said that she wondered if this was Ms. Bouvier's 10 field. "Some have it. Some don't." But, in her cross-examination, Ms. Boudreault testified that she tries to document all her discussions with staff. It is very curious that there appears to be no entry in her notes after December 18 that refers to any problem involving Ms. Bouvier and her dealings with clients. I "wonder". Ms. Boudreault testified that, on January 13, Ms. Bouvier asked for time off to see her daughter in North Bay. She wanted to switch shifts with another employee and had talked to the other employee to try to arrange it. Ms. BoudreauIt did not think the switches were fair to the other employee who would be coming off a week of" graveyard" shifts and needed time off to recuperate. Ms. Bouvier was upset and Ms. Boudreault told her that she ought to do her work as scheduled. In her cross-examination, the grievor was adamant that this conversation never took place and that she never asked another employee to switch shifts with her. Ms. Boudreault recorded the discussion on January 13 in her notes, I which went into the grievor's file. I find that the discussion did take place. However, the final result is recorded somewhat differently in Ms. Boudreault's notes from her recollection in her testimony. In her notes, she wrote that she told Ms. Bouvier that she could take time off, but she would not accept the switches proposed. And the grievor concluded that she would take time off because her plans were already made. In cross-examination, Ms. Boudreault acknowledged that it was common for employees to request a shift-switch, and that in the vast majority of cases, the request was granted. It appeared that the grievor's request was not at all out of the ordinary. The grievor, in her testimony, spoke about her difficulty accepting the new shift schedule. When she was hired, she worked eight-hour shifts. But then management decided that the staffing should be based on a 12-hour shift schedule. When Ms. Bouvier learned about the change at the staff meeting on January 6, 2003, she became emotional. She had tears in her eyes. It would now be difficult for her to see her daughter in North Bay as often as 11 she was used to. She spoke out and, though Linda Desbiens and Sylvie Boudreault said "We understand" , Ms. Bouvier felt "brushed off'. Apparently Ms. Bouvier was the only staff member to speak against the changed schedule. In sum, Ms. Boudreault said that she gave Ms. Bouvier suggestions on how to do her work when things went wrong, but the same circumstances recurred. In Ms. Boudreault's opinion, the grievor was not using her supervisors' suggestions. Ms. Boudreault could see no improvement in the future. I don't understand how Ms. Boudreault could come to this conclusion. In my view, it is entirely unsupported by her evidence. How could she say she sa~ no improvement when, having counselled the grievor several times in December about how to do deal with clients (and the grievor ultimately followed this advice each time), Ms. Boudreault saw no such problems throughout January? Surely any reasonable person would have concluded that the grievor håd improved. Ms. Boudreault had no basis for h~r conclusion that there would be no improvement in the future. Therefore, this was an arbitrary conclusion. Nathalie Rochon is the Family Consultant at the PavilIon. She counsels clients and families. She has been with the Employer for four years. She has an MA in Psychology. She has an office in the Pavillon that looks out on the living room in the Pavillon and from which she can hear much of what is going on in the central areas. She is in the bargaining unit. The Employer called her as a witness. She testified about a number of situations involving the grievor. She was not sure when these incidents occurred. She told us that, about two or three weeks after the grievor arrived, she heard clients swearing and cursing and Ms. Bouvier was doing nothing to stop this behaviour. Ms. Rochon testified that this was the only time she observed Ms. Bouvier allowing such behaviour. Ms. Rochon can't recall if she reported this incident to Ms. Bouvier's supervisors. 12 She testified about a boy, who had been suspended from the school at the Pavillon, who was permitted to walk about the place by Ms. Bouvier, when he was supposed to bring his desk out from his room and place it in the middle of the living room and do his schoolwork at the desk. Ms. Rochon told us that the grievor knew what was to be done, and that the classroom teacher had come out to tell both Ms. Bouvier and Ms. Rochon that the boy was suspended from class. Ms. Rochon said that Ms. Bouvier was trying to get the boy to go to his room and then, when Ms. Bouvier mentioned that she had to go out shopping, the boy said he wanted to come, and Ms. Rochon overheard Ms. Bouvier say "Can I trust you to come shopping with me?" Ms. Rochon called Ms. Bouvier into her office to tell Ms. Bouvier not to do this. Ms. Bouvier said she didn't know the boy had been suspended from class, but she had been trying to tell the boy that he couldn't go shopping but must do his work in the living room. Ms. Rochon told us that she heard it all and Ms. Bouvier had not said this to the boy. Ms. Rochon told Ms. Bouvier to go shopping and she would mind the boy. When Ms. Bouvier returned, the boy negotiated with her to play with a Lego set, instead of doing his homework. Ms. Rochon spoke again with Ms. Bouvier to tell her that the boy was to do his homework in the living room and was not supposed to be playing in his room with a Lego set. Ms. Bouvier said that this was what she had told the boy. Again, Ms. Rochon testified that she had heard the conversation with the boy and Ms. Bouvier had not told this to the boy. Ms. Rochon testified that this was the only occasion on which she had observed the grievor giving an unwarranted privilege. Ms. Rochon could not recall when this incident occurred, but it appears to be the one that Ms. Boudreault said had occurred on December 18. Ms. Boudreault told us that, on that day, Ms. Rochon told her about the incident and Ms. Boudreault spoke to the grievor to ensure that the grievor understood the need for consistency in the routines. Ms. Rochon testified that, after the incident with the boy, in individual meetings she had with two residents, the residents talked about Ms. Bouvier 13 coming in and screaming at one of the girls. Ms. Rochon agreed that residents may try to get workers in trouble, but, before she heard it from the residents, Ms. Rochon had heard about this screaming from a worker who had said she observed it. Ms. Rochon believed that the screaming had occurred and reported it to Ms. Bouvier's supervisor (Ms. Rochon could not recall if it was Linda Desbiens or Sylvie Boudreault). This appears to be the incident that was the subject of the complaint from a resident that Linda Desbiens said she received on January 11. And the worker who confirmed the incident to Nathalie Rochon appears to have been the person who told Linda Desbiens that it occurred. Ms,. Rochon told us that one day she answered the phone and it was Ms. Bouvier seeking the phone number of a former resident with whom Ms. Bouvie.r wanted to get in touch and whose phone number the grievor had lost. Ms. Bouvier told Ms. Rochon that she had exchanged personal phone numbers with the client. Ms. Rochon was very concerned because she had ~ learned in her university courses that it was unethical for a care-worker to give her personal phone number to a resident, that this created a dependency. Ms. Rochon also testified about a suicide watch done by the grievor just before she was dismissed. She had been called upon to take a turn watching a resident who was threatening to commit suicide in various ways. Ms. Rochon told us that the grievor did a good job and she confirmed the grievor's testimony that Ms. Rochon had told her that she had done a good job. It is time to say something about the standard of review and onus of proof in this case. Arbitrators and courts have not been consistent in their decisions concerning the right of a probationary employee to grieve dismissal, and, if the employee has a right to grieve, concerning the standard of review of the employer's decision to tenninate the employment. A good statement of the 14 scene is to be found in Brown and Beatty, Canadian Labour Arbitration (3rd Edition), at 7:5020. In my view the preferable approach in the case of a provision like Article 5.02 of this collective agreement (which provides "An employee who has not completed his probationary period may be discharged without just cause and at the sole discretion of the Employer") is the one adopted by sole arbitrator J. P. Sanderson in Re McRae Waste Management and International Union of Operating Engineers, Localll5 (1998), 71 LAC (4th) 197. This was one of the cases on which the Union relied here. In McRae, Mr. Sanderson was dealing with the dismissal of a probationary employee under a collective agreement which said in Article 11.I(a) "A probationary employee may be dismissed at....the Employer's discretion"-a provision which is essentially the same as the one I am dealing with. After an extensive review of the jurisprudence, Mr. Sanderson quoted at length from a previous award and said (at page 211) "In my view, these words provide a thoughtful outline of the appropriate factors to bel considered in judging whether an employer was acting arbitrarily when exercising its discretion in terminating an employee during his probationary period". The previous award referred to by Mr. Sanderson happened to be a decision I made in 1995 in Air Ontario Inc. and CUPE Airline Division (Carter Grievance), [1995] CLAD No. 731 (QL). I have not changed my view of the proper way to deal with this type of case. Mr. Sanderson quoted the following passage from Air Ontario (at page 4 and following): In my view, the best conclusion and summary of authorities is to be found in an older decision of Arbitrator Brandt, in which he dealt with a collective agreement almost identical to the one before me-Re Air Canada and Canadian Airline Employees' Association (1979),23 LAC (2d) 241. In particular, Article 9.04 of the Air Canada contract was virtually identical to Article 13.02 of the Air Ontario agreement here, reserving to the Company the "sole right to make decisions 15 regarding the termination, retention.... of an employee at any time during the probationary period". The learned arbitrator said (at pages 245 to 246): The more widely-held view is that during a probationary period an employer has a right to examine "the suitability of employees on the broadest grounds": see Re U.E.W., Local 514, and Westinghouse Canada Ltd., supra. (referring to (1972),24 LAC 74 (Palmer)) The types of factors that may be taken into consideration include the employee's character, his ability to work in harmony with others, his potentiality for advancement and his general suitability as an employee: see Re United Rubber Workers, Local 561, and Rosedale Plastics Int'l (1960),11 L.A.C. 71 (Anderson). As to the proper role of an arbitration board reviewing the decision of a company terminating the employment of a probationary employee the I general trend in the cases is to indicate that role should be a limited one in which, broadly speaking, it is recognized that the employer is exercising a discretion which ought not, except in certain limited and exceptional cases, to be interfered with: see for example Re U A.W., Local 195 and Chrysler Corp. of Canada Ltd. (1949),1 loA.C. 387 (Lang); Re Board of Education for City of Windsor and Ontario Secondary School Teachers' Federation (1975), 10 LA.C. (2d) 165 (Kruger); Re Town of Mississauga and C.U.P E., Local 66 (1972), 1 LA.C. (2d) 270 (Hinnegan). One of the best and most recent reviews of the law with respect to the standard against which an employer's decision to terminate a probationary employee's employment is to be measured is found in the case of Re Cassiar Asbestos Corp. Ltd. and U.S.W., Local 6536 (1975), 10 L.A.C. (2d) 1, [1975] 1 Can. loR.B.R. 212 (Murphy). In that case the board makes disapproving reference to the Frontenac Floor & Wall Tile Ltd. case, supra (referring to (1957), 8 LAC 105 (Little)), and adopts instead the criteria accepted in another case, 16 Re V.S.W., Local 5046 and Construction Aggregates Corp. (1958),9 L.A.C. 187 (Robinson). In that case the board attempted to set out the various principles applicable to the situation of the termination for a non-disciplinary reason of a probationary employee and the case of discharge of a probationary employee. It is appropriate to set those principles out [po 191]: (a) by providing for a probationary period the parties to the collective agreement have themselves agreed to a distinction between two types of employees, namely, probationary employee and regular employee (b) once the probationary period is over the employee changes his status and acquires seniority rights with considerably more job security than the probationary employee (c) during the probationary period the employee is, in effect, on trial to determine whether or not he possesses satisfactory qualifications and suitability for regular employment (d) in this respect during the probationary period the employee is required to meet the standards laid down by the company (e) these standards are not necessarily confined to those relating to quality or quantity of production but may include consideration of the employee's character, ability to work in harmony with others, potentiality for advancement and general suitability as an employee of the company concerned (f) unless otherwise provided in the agreement, the employment of a probationary employee may be terminated by the company at any time during the probationary period, if in the judgment of the company the probationary employee has failed to meet the standards set by the company and is considered to be not satisfactory (g) however such decision by the company must have been made after giving the employee a bona fide trial during his probationary period and the termination of the services of the probationary employee must have been for a reason which was, in the view of the company, an adequate one and which was related to the failure by the probationary employee to meet the standards required by the company. Thus, in my view, the Company's decision to dismiss the grievor is a decision "which ought not, except in certain limited and exceptional cases, to be interfered with". And, as said at the end of the passage quoted from Mr. Brandt's award, "such decision by the company must have been made after giving the employee a bona fide trial during his probationary period and the termination of the services of the probationary employee must have been for a reason which was, in the view of the company, an adequate one and which was related to the failure by the probationary employee to meet the standards required by the company". j This last paragraph captures the standard of review in Ms. Bouvier's case. In my view, the Employer did not give Ms. Bouvier a bona fide trial. I say this for a number of reasons. Firstly, the Employer deliberately did not raise with her major concerns about her performance and did not make any reasonable effort to ascertain if some of these concerns were based on real facts. There are a number of serious examples of this- . Mr. Raymond, who w~s the effective decision-maker with respect to her dismissal, said in cross-examination that one of the reasons he dismissed her was because he thought she had come to work under the influence of alcohol in late December 2002. He heard this from an employee several weeks after it is alleged that it occurred. Mr. Raymond never asked the grievor about this. He assumed the 17 18 employee's report was correct. In my view, this failure to make any proper investigation into such a serious allegation against the grievor was totally unreasonable. When Mr. Raymond used this allegation as a basis for deciding that Ms. Bouvier's performance was unsuitable, he was acting in an arbitrary manner. . Mr. Raymond appears to have taken into account an allegation by a client that Ms. Bouvier acted inappropriately one evening. Linda Desbiens was to meet with Ms. Bouvier on January 23 to get Ms. Bouvier's side of the story. But Mr. Raymond dismissed her without even giving her an opportunity to tell her story. This was arbitrary conduct. . Ms. Desbiens, the grievor's closest supervisor, met with the grievor on January 11 in a formal discussion about Ms. Bouvier's performance. At the time, Ms. Desbiens had three serious concerns about the grievor's suitability as an employee-Ms. Desbiens felt that the grievor ~ j did not take constructive criticism well, that she had a confrontational attitude with clients, and that she had poor intervention skills. But none of this was discussed. The grievor had every reason on January 11 to take from the meeting that there were no such problems. She was given no opportunity to discuss these serious concerns with Ms. Desbiens, and, more importantly, she was given no idea at all that the Employer expected better of her in these areas. She was given no help whatsoever to improve, if in fact there was some deficiency (as we will see in a moment, I have serious doubts about whether in fact there was a deficiency by that time). . On January 20, the grievor met with Mr. Raymond to discuss a possible complaint by a client. Mr. Raymond was all helpfulness about this particular matter. Yet again, Mr. Raymond had an opportunity to let the grievor know of the deficiencies he thought she had, and to discuss with her the Employer's standards, and to suggest ways in 19 which she could improve. But he remained dead silent about all this. And then he handed her a dismissal letter three days later! 1. find in all this a high-handed and arbitrary treatment of Ms. Bouvier. An employer can't leave an employee in the dark about serious concerns the employer has, and then dismiss the employee when the employee fails to live up to the unknown standards. In his testimony, Mr. Raymond said that he asked his supervisors what they had done to help the grievor set goals, improve her interventions, and learn how to deal with situations more effectively. But these things weren't done. I heard about several incidents in December and earlier, when the employer says that the grievor handled interventions with clients improperly, but for the whole of January, the supervisors either saw no problems involving interventions or dealing with situations, or the supervisors deliberately avoided discussing them in detail with the grievor (except for the complaint from the client which was never fully investigated). Again, in my view, it is critical that, on January 11, when Ms. De"sbiens met with the grievor, Ms. Desbiens had serious concerns (which mayor may not have been valid), but she consciously stayed away from discussing them with the grievor. This is exactly the opposite of what is necessary to give a probationary employee a bona fide trial period. If an employee walks out of a discussion like that with no idea that the employer thinks there are serious problems, then the supervisor is simply not doing the job properly. In particular, the supervisor is not following the scheme that Mr. Raymond told us he wanted-help the grievor set goals, improve her interventions, and learn how to deal with situations more effectively. In Re Abex Industries Ltd. and United Food and Commercial Workers' Union, Local 173W (1995),48 LAC (4th) 353 (H. D. Brown), the arbitrator dealt with the discharge of a probationary employee under a collective agreement with a more restrictive provision than the one in our case. In Abex, Article 11.01(a) provided that "During the probationary period, an employee may be discharged by the Employer without the 20 employee or Union having any recourse to the Grievance or Arbitration procedure". In spite of this prohibition of any recourse, the Employer accepted that the arbitrator did have jurisdiction under the Labour Relations Act, and that the test of the company's action was whether it acted arbitrarily or with bad faith. The arbitrator adopted the definition of "arbitrary" in Black's Law Dictionary-"In an unreasonable manner, as fixed or done capriciòusly or at pleasure.... not done according to reason or judgment; depending on will...". He then went on to say (at page 365): ".... The company has an obligation... to assess the probationary employee on an objective standard and to fairly set out, in clear terms, what the company expects of that employee in that period to successfully complete his probation and become all employee with seniority..A probationary employee.... is entitled to know what will be expected of him in the job and on what measures he will be assessed." Ms. Bouvier was not told the standards in clear terms. Instead, Ms. Debiens deliberately did not even raise her concerns on January 11. And Mr. Raymond said nothing on January 20. And then, to compound it all, after Ms. Bouvier was dismissed, and she asked Mr. Raymond "Why?", he told her she didn't have to be told. She was judged against hidden standards. And, once judged inadequate, she wasn't even told what she had done wrong! Secondly, a bona fide trial involves judging the employee after a reasonable effort to ascertain the real facts. Even though the decision is left "at the sole discretion" of the employer, the employer must exercise this discretion properly. It is arbitrary to simply accept as fact incidents or reported conduct. The employer must base its decision on the facts it finds after a reasonable investigation. Mr. Raymond's conclusions about the grievor were arbitrary. He wrote in her Employee Performance Appraisal on January 23,2003, that she was "very confrontational with clients and co- 21 workers" and that she had "poor/limited intervention skills". In fact, there appears to have been no evidence whatsoever on which he could base a conclusion that she was confrontational with co-workers. And, with respect to "confrontational with clients" and "poor/limited intervention skills", I heard evidence to suggest there were some problems in the first month or so of Ms. Bouvier's employment (Ms. Desbiens told us of reports she had of power struggles, but they were unconfirmed), and in December (Ms. Boudreault concerning December 12 and 18), but nothing thereafter, except the complaint by a client which had not yet been fully investigated when the employer dismissed the grievor. Mr. Raymond told us that he met with the grievor's supervisors every week and every week there were problems reported to him, but there was no evidence to support this statement. Indeed, the evidence strongly suggested otherwise! Ms. Desbiens and Ms. Boudreault were being quite careful through January to document any problems with the gri~vor in their notes kept in the grievor's file. I wa~ asked by the parties to read these notes. I did. Ms. Debiens wrote about the complaint she had received from a client-the one that was still under investigation when the grievor was dismissed. In all of January Ms. Boudreault had nothing to write about problems with the grievor's intervention skills or confrontations with clients. The Employer relied in part on Nathalie Rochon's observations of the grievor's performance. As we have seen above, Ms. Rochon's office was well situated for Ms. Rochon to know what the grievor was doing a lot of the time. From Ms. Rochon's testimony, we know that she didn't observe any problems with Ms. Bouvier's intervention skills or dealings with clients in the house in all of January. Mr. Raymond was asked in cross-examination when did the alarm go off in his head about Ms. Bouvier? He answered that there was no alarm, but there was an ember that got brighter and brighter. He had to avoid an "inferno". But there was no evidence on which he could base his view that the ember was getting brighter and brighter. 22 Mr. Raymond also wrote in his Performance Appraisal of January 23 that the grievor "does not take constructive criticism well". This appears to be based on several remarks by Ms. Desbiens and Ms. Boudreault that, when told she was doing wrong or needed to try another approach, the grievor gave some "excuse" or "explanation" for what she had done. But there is not onè shred of evidence anywhere to suggest that, when told what to do, the grievor didn't do it! Some of her explanations were legitimate-for example, on January 8, when Linda Desbiens was upset that the grievor had not given a consequence to an outside boy who used vulgar language (I explained the situation and my reasoning above, in the review of the testimony of Ms. Desbiens). In conclusion, I find that the Employer acted arbitrarily in dismissing Ms. Bouvier. The remedy in this situation is not easy to find. In my view, it would i ( be very uncomfortable for Ms. Bouvier to return to the workplace pursuant to an Arbitrator's Order. She may not want to return to Kapuskasing, now that she has moved back to North Bay. The Employer may not want her back and her treatment in the workplace may not be appropriate. If she is to return, it should be by agreement of the parties, with suitable arrangements worked out by them. At this point, I will confine my Order to this - the grievor must be returned to the financial position she would have been in had she not been dismissed arbitrarily. This means a consideration of her losses since her dismissal, and a consideration of what her future would have been had the Employer not violated the collective agreement. 23 I will leave it to the parties to fashion a suitable remedy in light of these considerations. I will retain my jurisdiction to put flesh on these bones, if the parties are unable to come to agreement on the remedy. Done at London, Ontario, this 6th day of January, 2004