HomeMy WebLinkAboutSequin 03-01-20
/"" Ut:./ .Lü/ UU .Lü;.L~ rftA .L U.Lù /ù/ U/üù ur"r,u U.L.Lfi!!fi
;- --.------ ..., D~UL.J\Y.LLLß 'I!:I UU.L
- .~~.
~~,... {
~
IN THE MA TIER OF AN ARBITRATION
BETWEEN:
The Children's Aid Society of
Ottawa-Carleton,
Employer,
.. and ..
. 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, Hwnan Resources
Susan Abell, Executive Director
Marion Roberts, Director, Family Services and Child Protection
Marie Petruska, Supervisor. Central Services
Valerie Flynn, Coor~nator, Employment Services
Heard in .Ottawa, Ontario. on May 22, June 4 & 5, July 31, August 1, 2 & ?-, September 4 & 5,
October 7, 8, & 28, November 7 & 13, and December 3 & 10, 2002. Written submissions
completed on December 18, 2002.
. Ut:./.Lü/ UU .Lü;.L~ rfiA .L U.Lù /ù/ U/üù ur;:)r.u U.L.Lfi!!fi
------ - - - "" D~UL.nY.LLLr. 'I!:I UUt:.
:, ,', ...'.
-2-
ARBITRAL AWARD
The grievance of Ms. CarolylUl Séguin; a Social Worker, challenges the tennina-
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 grlevor. 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 Dot 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 infonned 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, ~epression and was ~rescribed medication, as side-effects of which she became confused and
forgetful. The ~on says that the allegations about her hon~sty, integrity, dereliction of duty and
poor quality of work, to the extent they have a factual b~is, can be largely attribùted to her over-
work, confusiQD 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
".
. U¡;'/.Lü/UU .Lü;¡;'U rfiA .L U.Lù /ù/ U/üù ur;:)r.u U.L.Lfillfi -> D~UL.n Y .L LLr.
'I!:I UUù
. ¡
- 3 -
. quality of the grievor's performance, which should. have led the empl~yer to question whether she
was fit for work, merely confmns 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 Goveniment of Ontario. In accordance with the
Child and Family Services Act, RS.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)
'"
" U¡;.I .Lül UU .Lü;¡;'U rfiA .L U.Lù lù/ U/üù ur"r.u U.L.Lfinfi
..., D~UL.J\Y.LLLß 'I!:IUU'i
:'. ~ I '.0.
-4- I
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 tenDS of the employer's legal liability and in tenus of enabling back-up'
workers to respond to after-hours calls. The principal docutnent required on each file is a Plan of
Care, which records infonnation 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 bad to be reviewed and
updated regularly.
The griev9r was assigned over 30 Crown Ward files on her first day of work,
which would have been a heavy <?ase-Ioad 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 perfonn~d a lot of overtime in order to keep up. A visit by the Ministry's represen-
tatives was due in Au~t 1999, and thè grievo~ was instructed to get the files in the best po"ssible
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.
U¡;.I .Lül UU .Lü;¡;'U rftA .L U.Lù /ù/ U/üù ur;:)r.u U.L.Lfi!!fi
..., DßUL-n y .L LLr. 'I!:I UUü
. ,
- 5 "
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-
terns 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 griever's performance in May
2000. His swnmary 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 tQ be in fu111egislative compliance. The
only deficiencies noted in the grievor's files, however, related to matters that were not witmn her
control, despite the files having been in very poor state when she inherited them a year earlier.
In January 2001, the griever 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, wmch she was having difficulty accepting.
U¡;'/.Lü/UU .Lü;¡;.u rfiA .L U.Lù /ùl U/üù
ur;:)r.u U.L.Lfillfi
..., D~UL.nV.LLLr. 'I!:IUUU
. ~ ,
... .
-6-
(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 ParPc 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 sampl~ of Celexa, an anti-depressant, in January or February 2001.
She was reluctant to 'take it, and did not do so un~l about June, when she felt she had no option.
Y'
She realized she was not perfonning 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 hme 2001, the grievor had her second annual perfonnance evaluation. While
she was still rated as meeting all her goals, it was not as positive as the one from a year ear1ier.
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 needèd .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
, U¡;'/.Lü/UU .Lü;¡;'.L rfiA .L U.Lù /ù/ U/üù ur;:)ßU U.L.Lfi!!fi ..., D UL.
------- --------..-.--- n J\V.LLLß Ift: UU/
. l
- 7 -.
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 perfonnance evaluation
was to help his successor since he was due to leave th,e employer shortly.
Mr. Kirkpatrick stated in the 2001 evaluation that it was important that her case
notes "reflect your activities tru~ful1y and comprehensively". He also stated that, as an
employee, she was expected to be "honest, hard-working, caring, committed". He also referred to
her occasipnal "youthful indiscretions". In his testimony I 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. F,ollowing 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 griever 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
. U¡;'/.Lü/UU .Lü; ¡;'.L rfiA .L U~_~~~------yr;:)r.u U.L.Lfi!!fi
I ..., D~UL.nY.LLLr. 'I!:IUUO
':,. . ".
-8-
. Mr. Kirkpatrick i~ about March 2001 that she was fe,eling 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
th~ir 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 ~hild
protec~on and held the prestigious designation of Child Welfare Specialist. She had previously
worked for the New Brunswick Department of Health and Co~unity 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.
, U¡;'I .Lül UU
.Lü;¡;'.L rfiA .L U.Lù /ù/ U/üù ur;:)ßu U.L.Lfi!!fi
..., D~UL.nY.LLLß 'I!:IUU~
. ,
- 9"
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 ta1cing, but
Ms. Petruska testified she did not remember any menti~n 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. Krol 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 tall, since "the grievor attributed her confusion, panic attacks, fatigue and forgetful-
neBS 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 Ptozac since it
, U¡;'I .Lül UU .Lü;¡;'¡;' rfiA .L U.Lù /ùl U/üù
ur;:)r.u U.L.Lfi!!fi
..., D~UL.J\ Y .LLLr. 'I!:I U.LU
\ . . .
- 10.
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 fITst 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
fonnaI supervision meeting until Novem~er 1. Ms. Petruska, in her testimony, recalled a few
other Monday mornings when they likely met, although~ contrary to her nonnal practice, she did
not document any such meetings. At the November 1 meeting, the grievor told Ms. Petruska that
she was feeling '.overwheb.ned", to which Ms. Petruska replied that the griev9r should set a goal ,
of completing two fonnaI 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-
. U¡;'/.Lül UU .Lü;¡;'¡;' rfiA .L U.Lù /ù/ U/üù ur;:)r.u U.L.Lfi!!fi
..., D~UL.l\Y.LLLr. 'I!:I U.L.L
. . ¿
- 11 -
tionships had already been established, but she decided to refrain from giving the. grievoI 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 seIi.ously. 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 ~bility. 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 griever's discharge in
January 2002. covered the period from April I, 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 refer~ble 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-
.
U¡;'/.Lü/.~ü;¡;'¡;' rfiA .L U.Lù /ù/ U/üù ur;:)r.u U.L.Lfi!!fi
..., D~UL.nV.LLLß 'I!:I U.L¡;'
. . .. .
- 12.
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 sh~ was not
fit to participate'in a disciplinary interview scheduled for that date; that she would be receiving
intensive treatment; and that sh~ would be able to participate in an interview in a contpet~nt .
manner within a few weeks. A further medical note from Dr. KruI, 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.
INCID~S OF ALLEGED DISHONESTY AND DERELICTION OF DUTY
Exuenses for a trio to Montreal
On November 2, 2001, the grievor .traveled to Montreal on business with 'ä
colleague, Mr. Dominique-Leeman, who reported to a different supervisor. The trip was to visit a
..
client of the grlevor'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 claiIned mileage-for the trip. B~fore payment was made to the grievor, the employer'.
realized t11aÙt had received two mileage claims for the sanie 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
U¡;'/.Lü/UU .Lü;¡;'¡;' rfiA .L U.Lù /ù/ U/üù
.------.. ur;:)r.u U.L.Lfi!!fi ..., D~UL.J\V .LLLß 'I!:I U.Lù
- . 1"'
- 13-
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 t~ 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 mentiori,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 o'dometer on his ~ar and said: "Oh ~y gosh, we traveled
460 kIDs. 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, sh~ asked him "What's the
U¡;'/.Lü/UU .Lü;¡;'ù rfiA .L O.Lù /ù/ U/üù
- ur;:)ßu U.L.Lfi!!fi ..., D~UL.nY.LLLr.
'I!:I U.Lq
)' #.
-14 "
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 tQgether. Since they were visiting her client, she thou~t 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. Leem~
cash for the mileage -expenses once she was paid by the employer. She had thought that
Mr. Leeman had understood this. Smce she was sUffeÔflg from collÍQsion and forgetfulness at the'
time of the trip, thegrievor testified, she might not have an accurate recollection of everything
that was said between them.. She acknowledged in her testimony that it was perhaps illogical10'
claim mileage expenses for a trip in so~eone else's car, but she added that a busine~s trip to
Montreal was a rare occurrence. In. addition, her previous business travel had been - in the
-
employer's car~.
Restitution to a ward's former employer
In March 2001, one of the grievor's wards (who will be referred to as "M") w~
caught stealìng money and lo~tery 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 griever. It was verbally agreed that, instead
U¡;'/.Lü/UU .Lü;¡;'ù rfiA .L U.Lù /ù/ U/üù
ur;:)r.u U.L.Lfi!!fi
..., D~UL.J\Y.LLLr. 'I!:I U.Lü
. . r I
- 15 -
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, Mwent 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 of2001 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-
sian, 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 conunon 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 me'was a hand-written note ~ade by the
grievor at a meeting on August 29, 2001.
The grievor testified that, at the meet~g with the police officer, sh~ was told that
M was not welcome at the gas station, and she agreed to act on his behalf in roiling 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-
-,-
"
U¡;'/.Lü/UU .Lü; ¡;'ù l'fiA .L U.Lù~.u / üù
ur;:)r.u U.L.Lfi!!fi
..., D~UL.nV.LLLr. 'I!:I U.LU
'J . -.
- 16 -
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
possess'ion 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 ~e D?-anager was not there and she did
not want to leave any money with the clerk, the only person there. She testified that she int~nded
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 t1u~t
she was jeopardizing M's interests since both the gas station and the police officer had her te1e-
phone number if they needed to talk to her:
In the summer of 2001, M was in breach ofms agreement as regards drug abuse,
drug rehabilitation, holding a job and restitution, and the grievor informed Ms. Petruska of tms.
She left a voice-mail message for th~ police officer, to tell him that M was not complying with
. the agreement, but he did not return her cé1,ll. 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 ID,ade
under the Young Offenders Act.
On December, J3, 2001, the grievor was suspended from her job pending further
investigations. On January 14,2002, Mr: Dave Calvert, a colleag~e.,drthe grievor's and th~ local
union president, gave Ms. Petruska an envelope on behalf of the grievor which contained $800.00
. U¡;'/.Lü/UU .Lü;¡;'~ rfiA .L U.Lù /ù/ U/üù
_ur;:)r.u U.L.Lð!!fi
..., D~UL.J\V.LLLß 'I!:I U.L /
'd
- 17 -
in $20 bills, and told her that this was the money the grievor had been h01ding for restitution on
behalfofM.
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 r~ceived.
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 reas"onable efforts to account for the money or remit it to the gas station, and that she.
had been neglige~t.
Claim for. meal and snack
. .
When Ms. Petruska was reviewing the. grievor's Statement of Incidental Expenses
for November 2001, after she had become suspicious about the .grlevor'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 mew, ñom the grievor's
schedules, tha~ she was not due to visit any of the B children during the week of November 12 to
U¡;'/.Lü/UO .Lü;¡;.q rfiA .L U.Lù /ù/ U/üù ur;:)r.u U.L.Lfi!!fi ..., D~UL.J\ Y .L LLr. 'I!:I U.LO
... '".
-18 -
16. The griever 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 confmnedthis 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 TiJ?
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 dåy ,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 th~t the grievor did not exþibit any
remorse, either verbally or in her facial expression, w~en she admitted to having lied.
U¡;'I .Lül UU .Lü;¡;'~ rô~ .L U.Lù. /ù/ U/üù ur;:)r.u U.L .Lô!!l~ ..., D~UL.J\Y.LLLr.
'I!:I U.L~
.. '
- 19 -
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 ~d would not have consume'd
all that food by herself. When she filled out her Statement of~cidental 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 boughtJor 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 7tl1 and 15th), 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
, -
U¡;'/.Lü/UU .Lü;¡;'~ rfiA .L U.Lù /ù/ U/üù ur;:)r.u U.L.Lfi!!fi
..., D~UL.J\ Y .LLLr. 'I!:IU¡;'U
, '.
.
- 20 -
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 confmned 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 confinned 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 dinn~r, she
gave him IDS 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 chariged 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 explainèd tl;1at 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
-
U¡;'/.Lü/UU .Lü;¡;'ü rfiA .L U.Lù /ù/ Ulüù
ur;:)r.u U.L.Lfi!!fi ..., D~UL.J\Y.LLLr. 'I!:I U ¡;'.L
- ...:.
- 21 -
employer's Coordinator of Employment Services, at the interviews in Dece¡p.ber. 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 pl~cing 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 th~ employer.
Purchase of two $150.00 2ift certificates
As noted earlier, the grievor 'Yas suspended with pay on December 13, 2001,
pending further investigation. She was infonned 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 limit~d to these 'certificates having been purchased by the grievor after, she was
infonned she was suspended. It appears that she was issued ~ cheque to make these purchases
early in December, but O1ùy bought-them after her suspension. For Ms. Petruska, the cheque was
among the items the grievor should have handed over upon being suspended..
U¡;.I .Lül UU .Lü;¡;'ü rfiA .L U.Lù /ù/ U/üù
ur;:)r.u U.L.Lfi!!fi ..., D~UL.J\Y.LLLr.
'I!:I u¡;.¡;.
:... ..
- 22-
In her testi~ony, the grievor simply stated that she had wanted to make sUre the
. .
two children had gifts for Christmas.
The eIievor's bandline: of tbe case of "J"
One of the grievor's wards, ~'J", was admitted to a foster home supervised by Open
Anns 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 J. On one occasion, according to Ms. Wil~ori, the grièvor 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 occaSio~, she replied that she was busy domg 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,
, '
grievo~, 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. Wi1s~n knew that she had received comp'lete 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
contradic~ed 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.
U¡;'/.Lü/UU .Lü;¡;'ü rfiA .L U.Lù /ùl U/üù ur;:)r.u U.L.Lfi!!fi ..., D~UL.nV.LLLr.
'I!:I U¡;'ù
,
- 23 -
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, anØ 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 fonner foster home. Secondly, the grievor testified, an ONLAC had been completed in 2000,
U¡;'/.Lü/UU .Lü;¡;'ü rfiA .L U.Lù /ùl U/üù uror.u U.L.Lfi!!fi
..., D1\UL-J\Y.LLLr. 'I!:I U¡;.'t
'. .
. .
- 24 -
and she and Mr. IS-irkpatrick 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 v~ew 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 dis~ussion fulfilled the purposes of a
fonnal Plan of Care.
The grievor also explained in her testimony the delay in - having a psych~logical
assessment completed for J. 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. AB.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.
U¡;'/.Lü/UU .Lü;¡;'U rftA .L U.Lù lù/ U/üù ur;:)r.u U.L.Lfi!!fi ..., D~UL.J\Y.LLLß
'I!:I U¡;'ü
...'.
- 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 e:rievor's handline: 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 bome 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
gclevor. 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 infonnation. 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. WRlker 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.
--- U¡;'/.Lü/UU .Lü;¡;'U rfiA .L U.Lù /ù/ U/üù ur;:)r.u U.L.Lfi!!fi
..., D~UL.nY.LLLr. 'I!:I U¡;.U
~, . ..
- 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 4e 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 50 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 Y ou~ Homes Inc. could provide. He was worried about his own legal
liability. Verbal and written reports were also made to the eniployerby one of Mr. Walker's staff.
The grievor failed to respond to any of this.
On December 4, Mr. Walker again complamed to one of the employer's 5upervi-'
sors about the lack of documentation concerning M.
After .the grievor's replacement by another Social Worker early in' 2.002,
Mr. Walker !eceived a written social history on M, that had been prepared in May 2001.
The grievor testified that she was assigned M's filein 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 i~take 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
U¡;'/.Lü/UU .Lü;¡;'U rfiA .L U.Lù /ù/ U/üù ur;:)r.u U.L.Lfi!!fi
..., D~UL.J\V.LLLr. 'I!:IU¡;'/
. '\'
- 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 allthe
information she had on M, but everything was done verbally, since she was Wlder so much pres-.
,
sure from her. heavy case-load. She could not remember when the social history on M, dated M~Y
2001, was actually put on M's file.
The e:rievor's comvletion 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 "BackgroWld 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 questiOlUlaire, the Assessment and
Actio~ Record p~, 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
.
U¡;'/.Lü/UU .Lü;¡;'U rfiA .L U.Lù /ù/ U/üù ur;:)r.u U.L.Lfi!!fi
..., D~UL.nV.LLLr. 'I!:IU¡;'O
'.j' -
- 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 S9cial 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 reqt.rlres 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
chiid. To complete an ONLAC properly requires several meetingS.
After concerns about the grievor's honesty and performance rust surfaced,
. , '
Ms. ~etruska spoke. to various care-givers with whom the griever had been working. Several of
them complained to her about ONLAC's, specifically that they had been kept in the dar~ 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-
tied that the grievor confmned to her that she did an entire ON LAC in one and one-half or two
. '
hours. Ms. Petruska did not agree that an ONLAC always took less time to complet~ 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
.
U¡;'/.Lü(UU .Lü;¡;'/ rfiA .L U.Lù /ù/ U/üù ur;:)r.u U.L.Lfi!!fi ..., D~UL.J\Y.LLLß 'I!:I U¡;'~
...
- 29 ~
until mid-Nov~mber 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 docwnent with Ms. Barre~.
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 a,nd lasted about 90 minutes,
following which the grievor met with, Ms. Barrett. Ms. Barrett. failed to grasp some of the ques-
lions, 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 fonn. The
grievor returned on November 13, when she spent about 90 minutes with the child and with
. Ms. Barrett's husband. This ONL~C 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,
U¡;'/.Lü/UU .Lü;¡;'/ rftA .L U.Lù /ù/ U/üù ur;:)r.u U.L.Lfi!!fi
..., D~UvJ\ Y .LLLr. IW UùU
- 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 ~d supervise4. 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 8?d inadequately supported by het supervisor. The union
acknowledges that some disciplinary action might be warranted for ber 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 ma~er I wish to examine is whether any of the grievor's conduct qualifies
as dishonesty or a breach of trust.
U¡;'/.Lü/UU .l,ü; ¡;../ rftA .L D.Lù / ù I U / üù
ur;:)r.u U.L.Lfi!!fi
..., n~UL.J\Y.LLLr. 'I!:I Uù.L
. . ~
- 31- '
The first incident described above is the claim for mileage expenses for the trip to
Montreal, where the employer alleges attempte~ 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 mos't probable oneS. In an unreported
award dated June 27, 1986, Re Sunnybrook Hospital and Swmybrook Hospital Employees'
lliĊ¸on. Loc. 777 (Gastis), cited in Re Ontario (Attomey-Genera~ O.P.S.E.U. (Khan) (1989),
18th L.A.C. (4111) 260 (Swan), arbitrator Michel Picher put it tlús way:
In the arbitrator's view, where the evidence is principally circumstantial, it must ~e
~etennined 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 fraudul~nt intention by thè
. 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
'It
received, that tIDs 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
."
.,-
U¡;'/.Lü/UU .Lü;¡;'./ rfiA .L U.Lù /ù/ U/üù
ur;:)r.u U.L.Lfil!fi
..., D~UL.n Y .L LLß I4!:JUù¡;'
,~ .. , ,
- 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 ~ash 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 o~ the
grounds stated by the employer in the letter of discharge, and in the absenc~ 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 thb matter.
Accordingly, while I am satisfied that the grle'Vor 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 claim.ed a total of $11.33 for a snack arid 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 ín interviews, when she could have admitted that she
might have been mistaken about which child had accompanied her to the restaurants on those
U¡;'/.Lü/UU .Lü;¡;.o rfiA .L ~.Lù /ù/ U/üù ur;:)r.u U.L.Lfi!lfi
..., D~UL.J\Y.LLLr. 'I!:I Uùù
, . ~
- 33 -
days. This incident, even by the grievor's own admission, involved dishonest replies by her to the
employer' 5 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, wlùch 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 clûldren. 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 wruch 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 empl~yee 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 tlûs 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.
U¡;'/.Lü/UU .Lü;¡;.o rfiA .L U.Lù /ù/ U/üù
ur;:)r.u U.L.Lfi!!fi ..., D~UL.nY.LLLß
'I!:I Uù'i
~" . .
- 34 -
It is, of co~se,. 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
detennine whether the grievor br~ached the instruction 1 would need to ¡mow exactly ~hat she
was told at the time of suspension. What the grievor did, in purchasing the gift certificat,es while
on suspension, was not so: obviously improper that J could conclude, without that ,infoÌmation,
tha1 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 insubordi~ation
here and certainly no behaviour that could be characterized as dishonest or as a breach of trust.
.,It would he convenient to consider next the allegations concerning the grievor's.
handling of the cases of J and M. It" "Y°uld be an understatement to say that the griever faíled 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 ON LAC) for ~ to
arranging a psychological assessment for him, or to applying for ODSP benefits for him. The
U¡;'/.Lü/UU - .Lü;¡;.o rfiA .L U.Lù /ù/ U/üù
ur;:)ßu U.L.Lfi!!fi
..., D.KUL-J\Y.LLLr. 'I!:IUùü
. .).
- 3S -
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, bot that cannot compensate fur the abseoce of documentation. The whole régiroe 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
griever 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 gclevor was inefficient
and confused regarding the completion of ONLAC's. The griever testified that while she was
knowledgeable about them, she was geuerally in a state of confusion and forgetfulness in the
summer and fall of 200 1.
U¡;'/.Lü/UU .Lü;¡;.o rftA .L U.Lù /ù/ U/üù ur;:)r.u U.L.Lfi!!fi
..., D1\UL-J\Y.LLLr. 'I!:I UùU
,(.. ~.
- 36 -
Looking' at the evidence as a whole, I find that, I2rima facie. discipline was
warranted for' her dishonesty in responding to her supervisor's que~tio~ 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 peiformance of her duties. There was certainly poor judgment and careless work by the
grievor, but I do not regard ,any of the ~eficiencies as being in the category of voluntary malfe::,-. .
san~e. 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.-
ciendes 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.
U¡;'/.Lü/UU .Lü;¡;'~ ~~ .L U.Lù lùl U/üù
ur;:)r.u U.L.Lfillfi
..., D~UL.J\Y.LLLß 'I!:I Uù I
.. .).
- 37 -
1 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 tha~ (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 of2001.
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
Safewav 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 Emplovees. Local 1041. [1998] O.L.A.A.
No. 286 (Bendel). Ms. Piette, counsel for the employer, noted that, in the first of these cases, the
arþitrator 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 aild 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
griever's own, to support the cla4ns ~onceming 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 .
U¡;'/.Lü/UU .Lü;¡;'~ rfiA .L U.Lù /ù/ U/üù
ur;:)r.u U.L.Ll\!!fi
--> D~UL.J\Y.LLLr. 'I!:I UùO
.. ,.(-. ""
- 38.
confused in tb.e summer and fall of 2001, without having ever previously alerted the employer to
any such health p~oblems, and then to submit a medical note, dated January 8,2002, in whicli she
was said to be fit to reswne 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 UIÙon, for the failure to call the
grievor's psychiatrist, Dr. Krul, to testify. Like,Ms. Piette, I 8I11 troubled by a comparison of ~e
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 nonna! duties and to p'articipate in a discipliriary 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 'certainiy 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.
- U¡;'/.Lü/UU
.Lü;¡;'~. rfiA .L U.Lù /ù/ U/üù ur;:)r.u U.L.Lfi!!fi
..., D~UL.J\Y.LLLr. 'I!:I Uù~
" .),
. - 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.
.1 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 ac~ally
took place. According to the grievor, she only attended three such sessions, on August 3, and
November I & 21, 200 I. 1 am inclined to reject 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 w<?rk or w~ doing a poorjob
of completing ONLAC's. Mr. Kirkpatrick, it will be recalled, had recorded in his perfonnance
evaluation of the grievor that she needed closer supervision and that she did not have a good
grasp of whicl;1 issues she should brmg 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 fmd 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 sale discretion, but it is critical that there be appropriate follow-up on
~-~- l.Lü/UU .Lü;ùU rfiA .L U.Lù /ù/ U/üù ur;:)r.u U.L.Lfi!!fi
..., D~UL.J\V.LLLr. 'I!:I U'iU
¡ ~. ,.. ".
- 40 -
files. Since the Social Workers' young clients are generally incapable of complaining of lack of
appropriate service, proper sup~rvision 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 f11es, 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 I, 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 c~incidence 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 fmd that she'
was carrying a heary workload and was inadequately ~ supervised and supported in the ~~er
and fall of 2001.
In all these circumstances, I must decide whether discharge was an appropriate
response by the employer.
_J¡;'/.Lül UU .Lü;ùU rfiA .L U.Lù /ù/ U/üù
ur;:)r.u U.L.Lfi!!fi
..., D~UvJ\ Y .L LLr. IW U'i.L
: 1 :" -17
- 41 -
. 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 clie~ts 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 swnmer 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.
1 do not intend to ~uggest 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
Educatión 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:
.We are 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 enviromnent, it is
particularly legitimate, it seems to us, to expect that employees' frustrations
should not produce adverse repercussions for vulnerable children.
¡;'/.Lü/UU .Lü;ùU rfiA .L U.Lù /.>/ U/üù ur;:)r.u U.L.Lfi!!fi
..., D~UL.J\Y.LLLr. 'I!:IU'!¡;'
\ .J.. ." ~,
-42-
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 overwhehned 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 b~ing 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 of 200 1. 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 argwn~nt that the
employment r~latiónship 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 anal:ysis, the grievor was guilty. of lying to the employer, not for the purpose of sec1,l1'ÌJlg any
---'--J¡;'I .Lül UU .Lü;~U rfiA .L U.Lù /ù/ U/üù
ur;:)r.u U.L.Lfi!!fi ..., D~UL.J\V.LLLr. 'I!:I U'l:ù
, ."" .:.'
- 43 -
. .
.financial advantage for herself, but .for the purpose of covering up the extent to which she had
fallen behind in her wor~. While she had an obligation to alert tþ.e 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. N one of the other charges of dishonest c.onduct 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 4ate 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
"¡¡;'/.Lü/UU .Lü;ù.L rfiA .L U.Lù /ù/ U/üù ur;:)r.u U.L.Lfillfi ..., D~UL.J\Y.LLLr. 'I!:I U't'i
~-
\ <.1. .... , ':'.
- 44-
(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