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HomeMy WebLinkAboutAnderson 04-08-04 . I .,' IN THE MATTER OF AN ARBITRATION Between: NETWORK NORTH, THE COMMUNITY :MENTAL HEALTH GROUP (the "Employer") - and - THE ONTARIO PUBLIC SERVICE EMPLOYEES' UNION (the "Union") and in the matter of two grievances relating to Carole Anderson. Russell Goodfellow - Chair Lloyd Harris - Employer Nominee Pamela Munt-Madill - Union Nominee APPEARANCES FOR THE EMPLOYER: Jack Braithwaite and others APPEARANCES FOR THE UNION: James Gilbert and others AWARD This award deals with two grievances filed on behalf of Carole Anderson. The grievances relate to Ms. Anderson's removal from a temporary position as secretary-receptionist at the Employer's Positive Steps facility and her return to her permanent position as secretary-receptionist at the Employer's PineGate Addiction Services facility. The reason given for Ms. Anderson's removal was her inability to adequately type clinical notes and reports regarding patient visits that had been dictated by physicians on audio-tape and transferred to her location via telephone lines. The Union does not dispute that the gnevor had difficulties with the transcription function. Indeed, an appreciable amount of Employer resources was devoted towards helping her improve in that area. However, the Union takes the position, in the first grievance, that the grievor had been "set up to fail by [her] immediate supervisor, Lilianne Lamontagne, when she made derogatory comments about [the grievor] to co-workers prior to [the grievor's] arrival at Positive Steps". The second grievance simply characterizes the grievor's removal as "unjust discipline". Both grievances contain the further assertion that the complained of activity constituted ongoing harassment of the grievor by Ms. Lamontagne. We cannot fail to observe at the outset that the hearing in this matter was marked by an unusually high level of suspicion and distrust on the part of the Union of the Employer's motives - a distrust that was exacerbated by the Employer's unwillingness to particularize, in any detail, the basis for its assessment of Ms. Anderson's work relative to others. Although an internal memorandum that was generated by the Employer outlining the reasons for Ms. Anderson's removal noted that she fell dramatically short of the "5% error rate" for the performance of such work in the relevant department, the Employer opposed any and all efforts by the Union to obtain particulars or documents that would substantiate any such error rate. This reluctance commenced at the beginning of the hearing - when the Employer took the position that such particulars or documents were irrelevant because the evidence would show that the grievor's work was "so bad" that comparisons to other employees were unnecessary - 2 and continued throughout the proceedings. Other manifestations included an ongoing reluctance on the part of the Employer to provide samples of the work of other employees engaged in the same activity, a failure to meet deadlines in respect of orders for production made by the Board, and the destruction of documents (ostensibly in error and as part of a routine six-month purge of the system) contrary to a specific order for documentary preservation. Ultimately the Union submitted in argument that the Board should rely on all of the foregoing to draw an adverse inference in respect of the Employer's reasons for removing Ms. Anderson from her position. On the other hand, as apparently viewed from the perspective of the Employer, the grievances were entirely specious. As noted, the Employer, having made known its concerns about the grievor's transcription abilities and having worked with her and the Union over the course of several months to help her improve in that area, could apparently see no legitimate basis for the Union's challenge to its decision. Keeping in mind the fact that the grievor's permanent position was within the same classification, that it involved the same work (without the transcription function) for the same pay and that it reported to the same supervisor, the Employer appeared to view the proceedings as lacking not only legal but practical merit. Perhaps even more to the point, since at least at the time of the filing of the grievances the grievor was no stranger to the grievance procedure (having filed numerous grievances against her supervisor in the past), the Employer appeared to have chosen to draw the proverbial line in the sand: it would defend the grievances vigorously, providing none of the procedural cooperation that is a standard feature of most grievance arbitration. Having offered this background - which was more than a subtext to this case - we will make no further comment on it. We have endeavoured to make our findings of fact without regard to the foregoing atmospherics We have concluded that, despite the grievor's proven difficulties with the work in question, which both she and the Union appear to acknowledge, and despite the Employer's efforts to assist her in improving her skills, the first grievance must succeed. The principal reason for this conclusion is simple: the absence of any answer to the evidence given by several Union witnesses that Lilianne Lamontagne, the grievor's supervisor, was manifestly opposed to 3 the grievor's arrival at Positive Steps and, in particular, to the evidence of Wendy Robertson, the Union Steward, that Ms. Lamontagne told her that she would use the transcription function as a vehicle for achieving the grievor's removal from the position. In view of this evidence, and the other facts noted below, it matters not that the grievor's transcription work was inadequate. (Although, it must be said, the Union was ultimately able to establish - largely through the much-resisted documentary production - that the grievor's work was nowhere near as bad, relative to others, as the Employer attempted to maintain.) The thrust of Ms. Robertson's evidence was that that was the point: the grievor was weak in the area of medical transcription and assigning her the transcription work would bring about her failure. The evidence in support of our conclusion is as follows: 1. The job description for the position of temporary full-time secretary receptionist at Positive Steps outlines the "details" of the position and includes a number of "requirements". Midway through a list of eight such requirements is the following blJllet point: "capable of filing, typing, transcribing, record keeping, receiving clients, arranging appointments, maintaining client files and staff schedules" (emphasis added). It was in meeting the italicized requirement that the grievor failed. However, in assessing the significance of that requirement to the position, it is noteworthy that it appears as only one of a series of elements in a single bullet point, that the bullet point itself appears half-way down the list (and, typically, the order of appearance corresponds to the order of importance), and the word "capable" sets a much lower standard, for example, than "excellent" (which appears in relation to the requirements set out in the first two bullet points - 'oral and written skills" and "interpersonal skills") or "extensive knowledge and experience of' (which appears in relation to the third bullet point - PC operating systems hardware... and related components). 4 2. Despite the relatively insignificant role accorded the transcription function in the job description, and in the subsequent posting for the position, such duties were assigned to the grievor for tlvo solid hours each day. Apart, perhaps, from the situation of the employee who briefly filled the position immediately prior to the grievor's arrival (on which, see below), this appears to have been the first time that the transcription function had formed such an important part of the job. 3. The assignment of the transcription functions appears to have been in the hands of Ms. Lamontagne - the grievor's direct supervisor and the Office Manager. The person who was responsible for reviewing the work - Linda Deshevy, the Director of Clinical Records - who was the Employer's principal witness in the case - was categorical that she was not responsible for including this work as part of the grievor's duties and that it was not her decision to remove the grievor from the position if she failed to perform those duties adequately. Ms. Deshevy's only concern was in knowing, once the assignment had been made, that the work would be performed satisfactorily and at a regular time each day. 4. After the grievor was awarded the position but prior to her arrival (the grievor was completing a maternity leave at the time that she successfully posted into the position), Ms. Lamontagne made a number of derogatory comments about her to the clinical staff at Positive Steps. These were the people with whom, and for whom, the grievor would soon be working. Ultimately, six of the approximately seven members of the clinical staff (who had previously signed a letter to the Employer opposing the grievor's removal) testified about these comments. Without setting out the text of those comments, suffice it to say that they cast the grievor in an extremely negative light, characterizing her as a disruptive influence and as someone who could not be trusted. Fortunately for the grievor, as noted by at least one of the individuals who testified for the Union, the clinicians are a fairly independent-minded group and appear to have resolved, as individuals, to make up their own minds about the grievor. 5 None of the evidence concerning Ms. Lamontagne's attitude towards, or comments about, the grievor was contradicted. 5. Surpassing all of the foregoing evidence, however, in terms of importance to the ultimate disposition of this case, was the testimony of Wendy Robertson, an R.N., a Community Psychiatric Nurse at Positive Steps, and a former Union Steward. Ms. Robertson testified that she was away on vacation at the time that the other members of the clinical staff learned of the grievor's impending arrival, that she had heard "through the grapevine" that Ms. Lamontagne was not pleased, and that Ms. Lamontagne had said that the grievor "would be trouble" and would not "work out". Having heard these comments from her co-workers, Ms. Robertson took it upon herself to "check it out" with Ms. Lamontagne. She testified that Ms. Lamontagne "said words to the effect that she's a trouble-maker; she will pick and choose which clinicians she likes and, if she doesn't like you, she will cause problems for you - she will make complaints to your boss about you". Having also noticed, at about this time, that the secretary-receptionist who was occupying the position temporarily prior to the grievor's arrival was being assigned dicta- typing duties for two hours each day - an oddity in Ms. Robertson's experience - and that the clinical staff was being asked not to disturb her during this period, Ms. Robertson raised the matter with Ms. Lamontagne one day when they were "outside having a smoke". Ms. Robertson testified that Ms. Lamontagne said that: "She wanted Nicky (the interim secretary) to be able to concentrate on doing the task, that [ she] was a good dicta-typist and she wanted her to set a standard prior to Carole wming over to the clinic. She indicated that [Carole's] weak area was dicta-typing and she felt that Carole would not be successful in that area of the job. And, she indicated that she didn't œally want her at Positive Steps. She indicated that this was a way to get rid of her as an employee of Positive Steps." 6 When asked whether she was certain that Ms. Lamontagne made these comments - particularly, the last - Ms. Robertson stated in examination-in- chief that she was "absolutely certain" that Ms. Lamontagne said "words to that effect". Finally, Ms. Robertson indicated that the 1 :00 p.m. to 3:00 p.m. dicta-typing assignment is no longer performed at Positive Steps. None of the Union's evidence in this area was contradicted. Despite being present outside of the hearing room throughout the proceedings, Ms. Lamontagne was not called to testify. As noted, Ms. Deshevy, the Director of Clinical Records, to whom the grievor did not report, gave evidence about her concerns about the quality of the grievor's transcription work and about the not-insubstantial efforts that were devoted towards reviewing that work and assisting the grievor in improving it. Although we found Ms. Deshevy to be an entirely sincere and truthful witness, dedicated towards ensuring that the work for which she was ultimately responsible was properly completed, her evidence was insufficient to blunt the effects of Ms. Robertson's testimony. A second, very brief, Employer witness, Dr. Koka, some of whose dictation the grievor had transcribed, testified about his own quality concerns. For the same reasons - we are satisfied that the grievor's work in this area was inadequate - Dr. Koka's evidence did not materially advance the Employer's case. The only other, even briefer, Employer witness was Bonnie Rymal, the Executive Director of Clinical Programs and Services. Ms. Rymal testified that it was the Director of the Clinic, Margaret Garrison, who ultimately made the decision to return the grievor to PineGate, that Ms. Garrison was concerned about the grievor's performance and that she, Ms. Rymal, approved of the decision. However, since Ms. Garrison, like Ms. Lamontagne, also failed to testify about these matters herself, the Board ruled that any evidence of Ms. Garrison's concerns was hearsay and would not be admitted. Ms. Rymal was not cross-examined. In the result, despite what we are satisfied were legitimate concerns about the grievor's transcription abilities and despite the efforts that were made to assist her in improving them (albeit, it must be said, more sporadically and less extensively than promised), we have concluded, on a balance of probabilities, that Ms. Lamontagne made good on her stated objective of bringing about the grievor's failure in the job. 7 In coming to this conclusion, we appreciate that it might be said to give effect to what might pejoratively be described as a "conspiracy theory"; that is, that given the efforts that were made by various people to review the grievor's work and assist her in improving it, that others would need to have been "in on the act". Alternatively, it might be said that such individuals would have to have been the "unwitting dupes" of Ms. Lamontagne. Finally, there is the question of why Ms. Lamontagne, herself, might wish to achieve this outcome given that the position was initially temporary (it later became permanent for reasons unrelated to the grievor's departure) and that the grievor would simply be returning to PineGate where Ms. Lamontagne would continue to supervise her. These are legitimate observations and we have considered them in coming to our conclusion. Indeed, had they been accompanied by any evidence from Ms. Lamontagne or, perhaps, Ms. Garrison, who were obviously the key players in the decision-making process, we may have been led to a different conclusion. However, that did not happen and we have concluded that these points are insufficient to overcome the weight of the Union's evidence. As a matter of remedy, however, we have decided to limit ourselves to a declaration. The grievor was occupying a temporary position and it was expected to come to an end long before it did. Further, in being returned to her permanent position the grievor suffered no loss of wages or benefits. Finally, while the experience was clearly upsetting to the grievor, we are of the view that a declaration, supported by the findings of fact in these pages,. will provide adequate redress for the Employer's breach and will assist in bringing closure to these events. Accordingly, the first grIevance is upheld. We hereby declare that the Employer breached the collective agreement by removing the grievor from her position as temporary secretary-receptionist at Positive Steps. The second grievance, alleging unjust discipline, is dismissed. The decision was not disciplinary but, even if it were (and even if it were found to have been improper) it would not have caused us to grant any other remedy. 8 DATED at Oakville this 4th day of August, 200n --" (r~..r----- ..) , I~ .." , -----!--, /' \ // ~/ \/ Russell Goodfellow - Chair Partial dissent attached. "Lloyd Harris" Employer Nominee Partial dissent attached. "Pamela Munt-Madill" Union Nominee IN THE MATTER OF AN ARBITRA nON Between: NETWORK NORTH, THE COl\1MUNITY J\ÆENTAL HEALTH GROUP - and - THE ONTARIO PUBLIC SERVICE EMPLOYEES' UNION and in the matter of two grievances relating to Carole Anderson. PARTIAL DISSENT OF EMPLOYER NOMINEE I concur in the Chairman's decision with respect to the second grievance. Unfortunately I must dissent from the view of the Chairman in terms of the disposition of the first grievance. I would have dismissed this grievance as well. The Chairman has summarized this extremely lengthy case very well. However, the conclusion reached by the Chair, that the Employer breached the Collective Agreement in returning the grievor to her permanent position at Pinegate from the temporary position at Positive Steps, is in my view wrong. First, I would point out that the employer went to very unusual lengths to attempt to assist the grievor to master the skills required in the transcription part of the job at Positive Steps. This was a part of the job, which although not emphasized in the job description had become critical to successful performance of the job. Secondly, even though there appeared to be significant antagonism between the grievor and her supervisor, Ms. Lamontagne, it was Ms. Deshevy, the Director of Clinical Records who ultimately refused to accept the work of the grievor in dictation. This was the reason that the grievor was returned to Pinegate. In any case, it appears to me to make no logical sense for Ms. Lamontagne to care whether the grievor was at Pinegate or Positive Steps, she still had to supervise her at either site. In fact, one could argue that it would be to Ms. Lamontagne's advantage to have Ms. Anderson stay at Positive Steps as she would have less contact with her there. 2 Finally, this particular Collective Agreement has a very strong "management rights clause" . Article 3: 0 1 states: "The Union acknowledges that it is the exclusive right and function of the Employer to hire, assign, retire, discipline or discharge for just cause, classify, transfer, layoff or recall employees." And Article 3 :02 states: "Generally to manage Network North - the Community Mental Health Group and all its enterprises in which the Employer is engaged in all respects and in accordance with its obligations, and without restricting the generality of the foregoing, ... the qualifications of employees, ... reasonable standards of performance of all employees, and all other matters concerning the Employer's operation not otherwise specifically dealt with elsewhere in this Agreement." In my mind the Employer clearly established through Ms. Deshevy's evidence that the grievor was not capable of performing a significant part of the job at Positive Steps. As a result, the Employer had the right to remove Ms. Anderson from this position and put her back to her permanent job at Pinegate. The antagonism between Ms. Anderson and Ms. Lamontagne was not a significant factor in making this decision. For all of the above reasons I would have dismissed the first grievance as well as the second. Dated at Toronto this 4th day of August, 2004. "Lloyd Harris" Employer Nominee ~ . IN THE MATTER OF AN ARB ITRA TI 0 N Between: NETWORK NORTH, THE COJ'v1MUNITY MENTAL HEALTH GROUP - and - . THE ONTARIO PlJBLIC SERVICE El\1PLOYEES' UNION and in the matter of two grievances relating to Carole Anderson. PARTIAL DISSENT OF UNION NOMINEE I concur with the Chair's award in upholding the first grievance. However, I must dissent from the Chair's finding that the remedy should be limited to a declaration. In my respectful opinion, in view of the gravity of the manager's conduct, a further, and more appropriate, remedy would have been to place Ms. Anderson into the position at Positive Steps on a permanent basis and I would have so ordered. Dated at Toronto this 4th day of August, 2004. "Pamela Munt-Madill" Union Nominee