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1988-0274.Hawley.92-08-12
ONTARf~ EMPL OYES DE LA COURONNE CROWN EMPL 0 YEFS DE L 'ON TA RIO GRIEVANCE C,O~I$SION DE SE~LEMENT REGLEMENT~ BOARD DES GRIEFS 276/88, 399/88, 400/88, 463/88, 630/88, 666/88, 667/88, 75[/88, 893/88, 924/88 Un,er' THE BE~EN O~SEU Grievor The Crown in Right of Ontario (Minist~ of Natural Resources) EmploYer BEFOg: B. K~r~ood Vice~Chairpers~ M. Lyons Me. er .D. Clark Me. er · FOR THE 'M. Ruby' GRIEVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE P. Pasieka EMPLOYER Counsel Winkler, Filion & Wakely Barristers & Solicitors HEARING April 5, 11, 24, 1989 May 15, 17, 24, 1989 June 26, 27, 1989 July 4, 1989 August 30, 31, 1989 Septe~xber 5, 1989 October 3, 4, 1989 November 10, 1989 December 11, 1989 ...2 ". ONTARIO EMPLOY,f:$ OE LA'C~URONNE CROWN EMPLOYEES OE L'ONTARIO GRIEVANCE .C,OMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS '~' DUNDAS STREET ~E'ST, SUITE 2~00~ TORONTO, ONTARIO· MSG IZ8 TELEPHONE/T~LEP~O~ (4161 HE~[NG (Cont'd) January 23, 24, 30, 1990' April 17, 26, !990 _ May 23, 24, 30, 31, 1990 July 3, 16, 31, 1990 September 18, 26, 27, 1990 October 10, 1990 November 7, 9, 1990 Page 3 DECISION OVERVIEW The grievor, ~Ms. Arlene Hawley was employed with the Ministry of Natural Resources in London as Act'ing Secretary to the Petroleum Resources Department ("Department") from June', 1987 to her dismissal on September This' Board was constituted to hear twelve grievances filed by. Ms. Hawley during the period of her · employment with the Department. At the outset Of the hearing and later in argument, .the Union· withdrew three grievances. This decision ·will determine the remaining nine grievances·. Although the grievances were heard together, the grievances are each separate matters. The hearing extended over thirty- four days. We have attempted to .synthesize the evidence and submissions and rely on the more cogent aspects. The nine grievances fall into three ·broad categories: the dismissal of Ms~ Hawley; the suspensions of Ms. Hawley; and allegations that performance appraisals of Ms. Hawley conducted by the Ministry were contrary to' governing standards and were a form of harassment. Ms. Hawley's supervisor, Mr. Pentti Palonen conducted eight reviews of Ms. Hawley's performance between January 8, '1988 to August 23, 1988. The Ministry alleged that the performance reviews reflected deficiencies in Ms. Hawley's work performance. Page 4 In April, 1988 Mr. Palonen concluded that Ms. Hawley was uncooperative and her performance,, unsatisfactory. Accordingly, he gave Ms. Hawiey a five day suspension for insubordination. After two further performance reviews, Mr. ?alonen ~gain concluded that Ms. Hawley was insubordinate and suspended Ms. Hawley for a furthe~ tan days. Mr. Palonen reviewed Ms. Hawley's work performance frequently during 1988 and on September 1, 1988 the Ministry dismissed Ms. Hawley for poor work performance starting from January 8, 1988; continued failure .to perform her assigned tasks; failure to cooperate with her supervisor; and failure to improve her performance to a satisfactory level. Ms' Hawley grieved each performance review meeting and corresponding written report alleging that. they were performance appraisals, which were contrary t© the policies and .governing standards set by the .Ontario Government for Performance Review and Appraisals. Ms. ~awiey further alleged that the performance appraisals were a form of harassment and sought' the removal of each performance appraisal from her record and apologies for the harassment. Ms. Hawley alleged that she was Unjustly suspended and unjustly dismissed. Ms. Hawley claimed that the Suspensions were part of ongoing discriminatory treatment and harassment by her employer.~ Ms. Hawley claimed that she was improperly trained and therefore was not able to perform her job and that Mr. Palonen had acted in a concerted manner with others during' the course of her acting assignment in his department.to ensure.that she failed. To understand the events that unfolded during the course of the grievor's employment in the Department one must first understand how Ms. Hawley came t.o the Department, how Page.5 t'he Department operated and what were her functions within the Department. Ms.- Hawley's Work. History Ms. Hawley was employed with the Ministry of Natural Resources from 1981 .until her discharge .in 1988. Prior to 3oining the Ministry she held a number of secretarial positions in the private sector. In 1981' she began her employment as the Personnel Secretary in the Finance and Administration Section. In 1983, Ms. Hawley took ~an acting assignment in Fish and wildlife where she was primarily responsible for typing licences and maintaining a filing system. After that assignment, she. returned to the Finance and Administration .Section as PersOnnel Secretary. She remained with the Personnel Section, when the Personnel Secti'on separated from Finance in-1984. In June 19'86, Ms. Hawley was appointed to the posi.t, ion of Acting Regionai· Personnel Assistant, under the supervision of David Watt, the Regional Human Resources Coordinator.. She returned to the position of Personnel Secretary in December 1986. These positions were excluded from 'the bargaining unit. In 1987 the Ministry adopted the OAG' classification' system of positions and re-classified Ms. Hawley's permanent position at the OAG 6 level. Ms. Hawley was told that she was at the OAG 6 l~Vel and not at an OAG 8~ level as she was not fully performing programmable word processing.. Ms. Hawley grieved her' classification under the Public Service Act R'.S.O. 1980, c. 418, as amended, and claimed that she ought to have been classified on an' OAG 8 level. In 1987, Ms. Hawley filed grievances relating to her performance appraisals and to a cautionary letter which she received 'during this period. These grievances were Page 6 resolved by Minutes of Settlement in which the appraisals and the cautionary letter and any other negative statements against Ms. Hawley from November 1986, were removed from her file. The Ministry agreed to place MS. Hawley in an OAG 8 position on an acting assignment with equivalent duties by July 1, 1987 in the London regional office working under a supervisor other than Mr. Watt. This position was within the bargaining unit. Ms. Hawley agreed to apply to all o.P.s. vacancies ~advertised i~ the London area at the OAG 8 or equivalent level and agreed to accept any resulting job offers. The Ministry was~ to actively assist Ms.. Hawley with her applications. ' As a result of the Minutes of Settlement,. on June 26, 1987, Ms. Hawley was assigned to the position of Petrol'eum Resources Secretary in the Ministry of Natural Resources, for a one year term. This arbitration relates to this period of her employment. On September 25, 1987, Ms. Hawley wrote to the Deputy Regional Director, Mr.'Bob Elliot asking for. the position of Petroleum Resources Secretary on a permanent basis. Mr. Elliot advised Ms. Hawley in writing on October. 26, 1987 that she could not be assigned to this position on a permanent basis. On November 17, 1987, Ms. Hawley initiated a complaint before ~he Ontario Labour Relations Tribunal and~a Human Rights complaint against Mr. Watt and Anne Hussey. MS. Hawley claimed that the Ministry was not actively helping her obtain an OAG 8 position. On January ~25, 1988, Ms. Hawley filed a grievance claiming that the Ministry failed to Post the position of Petroleum Resources Secretary, which she alleged had been vacant for si'x months. This grievance is not before us. Page? There was no direct evidence that there were any particular complaints relating to Ms' Hawley's performance during the initial period of her employment in the 'Department. There were no meetings revi'ewing Ms. Hawley's performance~nor were there any specific comments made. On October 21, 1987, Mr. Pa'!onen approved a merit increase for Ms. Hawley to commence January 1, 1988.' From January 8, 1988, Ms. Hawley's performance was frequently assessed on a formal basis by her supervisor, Mr. Palonen. Each performance assessment was grieved by Ms.~ Hawley, as contrary to governing standards and as a form of'~harassment against her. " On ' January 8, 1988, Mr. Palonen appraised Ms. Hawley and on February 8,' 19'88 forwarded her a written performance appraisal. On February 19, 1988, Mr. Pa!onen conducted a formal appraisal and on February 26, 1988 forwarded her a further written performance .appraisal'. MS. Hawley grieved both appraisals and a panel of the Grievance Settlement board chaired by Nimal Dissanayake in its d~cision released on March 2J, '1989, found that MS. Hawley was appraised dontrary to governin~ standards. On March 21, 19'88, Mr. Palonen againtkssessed Ms. Hawley's performance and on March 31, 1988 issued the written performance appraisal. Ms. Hawley grieved that appraisal on April 18, 1988. ~ On April 8, 1988, Ms. Hawley was suspended for five days from April 11, 1988 t~ April 15, 1988. Ms. Hawley returned to work on' April 18, 1988 and grieved her suspension. On April 19, 1988, Mr. Palonen again assessed Ms. Hawley's performance and on April 21,' 1988, issued another Page 8 written performance review. Ms. Hawley was ill for .four weeks in May, but grieved this written appraisal on May 24, 1988'. On June 3, 1988, Mr. Pa'lonen further assessed Ms. Hawley's performance and issued a further written.performance review on June 13, 1988. Ms. Hawley grieved this appraisal on June 15, 1988. In June, 1988, Ms. Hawley's temporary 'assignment as Acting Petroleum 'Resou'rces secretary was extended for--a further six months.' On June 26, 1988, Ms. Hawley was suspended for ten days from June 29, 1988 to July 15, 1988 inclusive, for her Continuing failure to carry out her supervisor ' s instructions, and failing to complete her assigned duties as -documented in her performance review. Ms. Hawley grieved her suspension on June 30, 1988. On July 25, 1988 Mr. Palonen met with Ms. Hawley to review, the target dates that had been assigned in the performance reviews. He issued a formal statement on July 26, 1988. On August t7, 1988, Ms. Rawley grieved this document as constituting a Derformance appraisal. On August 16, 1988, Mr. Palonen reviewed Ms. Hawley's performance and on August 17, 1988, issued the written performance review, Ms. Hawley grieved this review on AuguSt 22, 1988. On August 23, 1988, Mr. Palonen assessed Ms. Hawley's performance and issued a written performance review on August 30, 1988. Ms. Hawley g~ieved this review on September 1, 1988. Page 9 On September 1, 1988, Ms. Hawley was dismissed for her poor work performance from January 8, 1988. She grieved her dismissal on September 1,'!988. The Petroleum Resource~ Department and Ms. Hawley's R01e in the Department Mr. Palonen was the Provincial Petroleum Supervisor, Mineral Resources Co-ordinator for the South West Region. He was responsible for the Petroleum' Resources Program for the Province and the Mineral Resources for the region. He reported to two Acting Deputy Regional Directors of the area, Mr. Bob Beecher and Mr. Bob Elliot. David Johnstone was the Regional Director of the South West Region. ) The Petroleum Resources d.epartment is responsible for the processing of licences and licence renewals of operators Of oii and gas' wells, for explorations, and lessors of certain equipment. Operators are required to hold licences, which must be renewed annually, if. the operator wishes to do explorations, to. produce oil or gas, to operate rigs, or to lease certain equipment. The information Obtained for the licences is kept by the department in the Operator File, and forms the core of the data base in the computer. Up until 1981, the in'formation correlated by the department was on separate files. A computerized system was introduced to integrate all .the information for the department. The system incorporated information on. licences, enforcement of licences, geological data, and calculations on a Common database. Page 10 From 1981 to December 1987, the secretaries used Decmate, a self-contained word processing program (wps) at their work stations. The user created a document using the word processing prQgram, that was then transferred into the WAX, the main system. At midnight, the symbiont in the. main computer correlated all the information entered by the various users. Each member of the staff had access to the computer's information by using their own password. However, the degree of access to the computer's information was dependent upon the nature of each employee's job. In approximately June 1987, PRDS,-a new software system was introduced to replace Decmate. One of its purposes was to issue licences by using information on the computer's database. In order for the system to function effectively and issue licences, .information on each existing operator had to be placed onto the new system, and updated with any new information provided by the operator in the operator's appiication for renewal. 1988 was the first year that the computerized system was used to process licence applications. Ms. Hawley was one of seventeen employees who worked in the London 'office under the direction of Mr. Palonen. Ms.. Hawley was supervised by Mr. Palonen. Although she worked directly for him, she also received work from approximately eleven other people, within the department which included work from inspectors and the laboratory staff. Ms. Hawley supervised Ms. Davidson, a regular partrtime employee who assisted her twenty-four hours a week. Several~ other employees worked in the office, who did not report directly to Mr. Palonen. .Ms. Karen McLeod, was a Petroleum Engineering Technician, and reported to Mr. Rudy Rubanski, the Reservoir Engineer. Mr. Ernie Habib was responsible for the computerized system. Ms. Cathy Hesselman Page 11 (now Owens) .reported directly to ~r. Habib and assisted Mr. Habib in implementing computerization and training the employees how to use the system. Ms' Frances McKeon, Was ' also responsible for entering data onto the computer and transferring data from the old computerized system onto the new computerized system. Ms. Hawley was a secretary. Ms..Hawley's duties were to act' as a receptionist, to answer telephone calls, to sort the mail, to type as required for Mr. Palonen and others in the Department, to file 'Well files' and 'Pool files', and to receive and process licence applications from operators to their issuance. The processing of licence applications and renewals was an important part of the job. Ms. Hawley had many responsibilities for licensing. Ms. Hawley was responsible for sending out notices of licence renewals, entering incoming data, including amendments to earlier licences, and ultimately sending out the licences after payments for the licences were received and their receipts entered onto the system, and the licences approyed. More particularly, Ms. Hawley had to ensure that either the information on the~system was updated to accurately reflect the application, or she had to enter new information on first time applicants. Ms. Hawley had to ensure that the licence fee was paid and recorded. Upon completing~ these initial steps, Ms. ~awley then forwarded the licences electronically to.Mr. Palonen for'his approval. In some cases, approval was also required by the inspectors before a licence could be issued. After the licences were signed by Mr. Palonen, Ms. Hawley was responsible for printing and issuing the licences with a covering 'letter to the respective operators. The' computer generated the covering letters and licences from the information on the database. Page 12 There were four separate ~and complex filing systems. The Well File System, the~ Pool Files and the Spacing. and Unitiza%ion Files. Ms. Hawley was responsible for maintaining these filing systems. The grievor was also responsible for permits, which were different from licences and were used for drilling, operations. Ms. Hawley had telephone responsibilities. Each staff member could be reached through a direct number. If the staff member did not answer, the call came back to MS. Hawley, ,who kad to either locate the staff member or take a message. The grievor also received calls that had not been answered by the Ministry of Trahsportation and the Ministry of Mines and Development, which shared space with-the Petroleum Resources department. Although Mr. Palonen had a direct number,~ he did not receive any calls directly. Ms. Hawley was responsible for receiving all his calls and screening them. The telephone calls reverted to' a main switchboard if Ms. Hawley was not at her desk. Ms. Hawley was responsible for collecting th~ mail for the department and for delivering it to.the appropriate persons. She 'separated Mr. Paionen's mail and reviewed it with him personally each day, until she was removed from this duty in February 1988. Ms. Hawley, as with all staff members, was expected to read any electronic mail daily .that had been sent to her. . The Reviews of Ms. Hawley's' Performance The assessment of .Ms. Hawley's work performance occurred through a series of meetings between Mr. Palonen and herself~ ' in which Mr. Palonen evaluated her performance of gage 13 various job duties. · Subsequent to each meeting, Mr. Palonen prepared a written report setting out his view of the events which occurred in the meeting, comments on the grievor's performance and targets to be met. With one exception, Mr. Palonen classified the meetings as performance reviews. Mr. Palonen classified the review of August, 1988 as a performance appraisal. In his testimony he used appraisal and review, interchangeab!y. M~. Palonen tektified that each of the performance evaluation interviews kad the same format. He prepared a list of items which he wished to discuss With Ms. Hawley. He then reviewed the item noting his comments' as the interview proceeded, and ultimately applied-targets for .work to be accomplished or standards to be improved. Beginning with the . grievor's first egaluation on January 8, 1988, Mr. Palonen documented each area and set out numbe, red targets. Mr. Palonen testified that he endeavoured to refer each target to the target set out in the January 8, 1988 appraisal. There were eight formal reviews of the griev°r's work in the period between January 8, 1988 to August 23, 1988. Two performance reviews dated February 8, 1988 and February 26, 1988 have been considered by a panel of the Board chaired by Nimal Dissayanake. That panel found that the reviews were. performance appraisals which were not in. compliance with the governing principals and standards. That Board directed that the appraisals be rescinded and the appraisals or reference to any of the appraisals be removed from all files and records pertaining to Ms. Hawley. It was agree'd by counsel that notwithstanding the Board's direction, it was necessary to consider them in order that this panel of 'the Board could understand the circumstances that occurred. Page 14 · Ministry' s Argument: Ministry's counsel· submitted that Mr. Palonen's evidence ought to .be preferred to Ms. Hawley's evidence. Ministry's counsel claimed that Mr. Palonen's evidence~ was clear and was corroborated in writing. Ms. Hawley's evidence Was evasive and her ability to recall events varied with the day of hearing.. Ministry's counsel submitted'that Ms. ~Hawley's differences in testimony were motivated by her desire to be reinstated, while Mr. Palonen had· no such motivation. Similarly, Ministry's counsel submitted that evidence of the Ministry's Witnesses ought to be preferred to Ms. Hawley's, as they had no motivation to lie. Ministry's c~unsel submitted that Ms. Hawley's attitude towards her superiors and her co-workers is relevant for assessing the reasonableness of the Ministry's conduct and for assessing~ what courses~of conduct were open to the Ministry. Ministry's counsel submitted that Ms. Hawley's attitude precluded the possibility of resolving any of the difficulties. She submitted that whenever a deficiency 'was .identified to-Ms. Hawley, Ms. Hawley concluded that it was further evidence of a .conspiracy against her, which led to an attitude of defensiveness, anger and hos~ility and prevented her from improving her work performance. Ministry's counsel submittedthat MS. Hawley did not allow herself to do her job properly even before the first performance appraisal. She further submitted that the grievor's attitude and actions were Similar to her earlier actions in the Ministry, Whenever anyone disagreed with Ms. Hawley, she believed that there was a conspiracy against her. Ministry's' counsel submitted that MS. Hawley misunderstood the job from the outset and believed that the purpose· of her assignment was to acquire the skills to Page 15 perform the job on a permanent basis. The job was 'to be 'a temporary job for Ms. Hawley, while she searched for another job. This misunderstanding fueled Ms. Hawiey's conviction that there was a conspiracy against her. The First Suspension Ministry's coUnsel submitted that Ms. Hawiey had been assigned the task to' enter and issue the licences, a task that .was within the scope of her job~description. The ' task was simple and Ms. Hawley 'had received her instructions and her training by mid February. Ministry's counsel Submitted that although the task did not require considerable time to perform, the staff was available to a*ssist her and Ms. Hawley was given repeated time extensions in order that she could complete the work. Even so, MS. Hawley was not able to complete the work ~ntil April 1988. Ms. Hawley did not perform the task accurately nor in a timely fashion. Ministry's counsel argued that there was no basis to Ms. Hawley's contention that the workload had increased. Ms. Hawley had no personal knowledge of the preceding workload. Furthermore, Ms. ~Hawley.could control the workload .by dividing the work between Ms. Davidson and herself. Ministry's counsel submitted that the failure to perform her job responsibilities constituted insubordination by. itself. No culpable behaviour is necessary to constitute insubordination. However, poor performance for .failing to issue the licences combined with an element of culpability' also constitutes insubordination. Ministry's counsel submitted that culpability was found 'in Ms. Hawley's attitude, her refusal to make licenses a priority, her failure to structure Ms. Davidson's time to allow Ms.. Hawley to work exclusively on the licenses, and in her insolence. Page Ministry's counsel submitted that the evidence of delay in performing her work constituted disobedience. Ministry's counsel argued that the position was not intended to be a training ground for Ms. 'Hawley. Ms, Hawley represented herself as capable of performing at an OAG 8 level. If she was incapable she deceived the Ministry by not advising the Ministry that she did not have hands on skills at the computer. Ministry's counsel argued that 'MS. Hawley may have had considerable difficulty understanding~computers, but she did not identify any area where she needed further training. Ministry's counsel submitted that Ms..Hawley had difficulty understanding and following simple instructions, as was seen by her ~response to questions by counsel and the Board at the hearing. Her refusal to acknowledge her ~problems was evidence of culpable behaviour that lead . to her unsatisfactory performance. Ministry'Ts counsel submitted that given the importance of' the job to the department and the opportunities given to Ms. Hawley to do the job that a five day suspension was reasonable. · ' The Second Suspension Ministry's counsel submitted that Ms. Hawley's failure to complete her assigned tasks, which were documented largely in her pe.rformance appraisals, constituted further insubordination for which she received a ten day susPension. In the report dated April 19, 1988~ Ms. Hawley was directed to make a filing system test, produce HELP notes (a procedure manual for the software program) and to check the licences to ensure all entries were complete. She failed'to complete the tasks, by the. June 3, 1988 meeting. Ministry's Counsel Page 17 submitted that Ms. Hawley's attitude was argumentative and challenging and indicative of insolence to the degree that it constituted insubordination. Ministry~s counsel submitted that Ms. 'Hawley's task was to make her bes~ efforts to carry out her duties and was not to question her assignments. Given the failure of Ms... Hawley to correct her behaviour after receiving a five day suspension,-and arbitral author'ity that discharge can be the appropriate recourse for insubordination, a ten day suspension was reasonable in the ~ircumstances. The Discharge -Mr. Johnstone-accepted the recommendation made by Mr. Palonen and discharged Ms. Hawley for her poor performance and her attitude'. Ministry's counsel recognized that some arbitrators have distinguished between an inability 'of an employee to do the work and the failure of the employee to do. the work. Ministry's Counsel argued that Ms. Hawley's dismissal was based both on culpable and non-culpable grounds. Ministry's counsel argued that Ms. Hawley did not perform h%r. work to a reasonable standard. The 'employer had conveyed the standard required to Ms. Hawley in the performance reviews, had provided training to allow Ms. Hawley to meet those standards, had provided sufficient time for Ms. Hawley to meet those standards and yet Ms. Hawley had failed to accQmplish her tasks to the level required~ Ministry's counsel argued that ordinarily, in cases of non-culpable non-performance, the Employer has to consider avenues other than discharge~ Ministry's counsel-submitted that' this recourse was not available to the MinistrY, as'Ms. Hawley refused to admit that she had any performance deficiencies.. Ms. Hawley's re~fusal .to accep~ that her Page 18 performance was deficient in any way deprived the Ministry of any ability to correct the situation. Ministry's counsel submibbed that if .the Board found that. Ms. Hawley was incapable of setting priorities in her work, supervising her peers, getting along with.her peers and using the computer, she failed to work at an OAG 8 level. These were tasks which were expected of an OAG 8. Therefore, 'a lateral transfer was not an alternative. Furthermore, Ms. Hawley would have refused to take a loWer position as She had grieved her OAG 6 position. Ministry's counsel submitted that failure to perform a -job is usually considered cause for disciplinary action for which the employer has the burden of proof to show just cause for its actions. Although it is the Ministry's position, that there need be no culpable behaviour, Ministry's counsel submitted that Ms. Hawley's failure to cooperate, her attitude towards her supervisor and her peers, constituted culpable behaviour and misc6nduct. Ms. Hawley refDsed to accept completion dates and refused to comment on the reasonableness of the completion dates. She was insolent to Mr. Palonen. Ministry's counsel submitted that the production of the procedure manual, which was late and of poor quality, the late entry of the operator records, the poor quality of the work, and her uncohoperative attitude at the final performance meeting, constituted a culminating incident that warranted Ms. Hawley's discharge. 'Ministry's counsel submitted that there was no evidence of any Physical handicap. Ministry's counsel argued that the grievor's health problems, which she did not disclose during the course of her employment, exacerbated her problems. It was further evidence of her distrust and paranoia2 , Page 19 , Ministry's counsel argued that Ms. Hawley Was only. -prepar'ed to work onc~ she saw that dismissal was a real posslbility~ She distrusted her peers and would not go to them for help. Ministry's counsel submitted that in any, event, the Ministry was j~stified in discharging Ms. Hawley as her attitude rendered her unfit for continued employment. Ministry's COUnsel submitted that it was not the' Ministry's attitude that has to be assessed, but Ms. Hawley's. Ms.. Hawley's attitude disabled her and prevented her from performing the job. Performance Apprais'ais: Mini~'try's counsel submitted that the performance evaluations and'reviews are only written~memora~da outlining the facts, which were relied upon to ~upport disciplinary action. They were placed in Ms. HaWley's personnel fil~, not for disciplinary purposes, but because the Ministry expected that Ms. Hawley would g~ieve each one. Ministry's counsel submitted the performance reviews were not disciplinary in .themselves. Theref°re -the onus was on the Union, as in the normal course. Ministry's counsel submitted that the performance' appraisals need only to be examined by the Board, if Ms. Hawley were reinstated. Ministry's counsel argued that· the Board did not have jurisdiction to deal with harassment under~ the Crown Employees'. Collective Bargaining Act R.S.O. 1980, c.108 -as amended. In any event the employer did not harass Ms. Hawley. Page 20 Ministry's counsel argued that the performance review process was not defective. It was not necessary for Mr. Palonen to have a formal discussion On the performance cycle with Ms. Hawley at the commencement of her employment in the department, as Ms. Hawley had been .employed in personnel and was knowledgeable about the system. Counsel further 'argued that the effect of the Dissanayake award is that the employer.must review the job duties and.performance cycle at the commencement of the review period, rather than at the start of the job. She submitted that Ms. Hawley and Mr. Palonen .discussed performance matters generally on .January 8, 1988 and February 17, 1988. Ministry's counsel further submitted that Ms. Hawley was given notice for the later performance meetingS. Ministry's counsel argued that the report of July 26, 1988 was a memorandum reassigning target dates, which was necessary as Ms. Hawley had been absent for the ten day suspension and attendance at a number of Grievance Settlement Board hearings. Ministry's counsel, submitted that the meeting of August 16, 1988 was performance appraisal. Ms. Hawley'had notice Of the.purpose of the meeting from the meeting of July 25, 1988 and the following written memorandum of July 26, 1988. Alternatively, Ministry's counsel submitted the meeting of August 16, 1988 was an informal performance evaluation meeting as contemplated by the standards.~ Remedy Ministry's counsel submitted that if the Board were · to fi'nd that Ms. Hawley's actions did not warrant discipline, her attitude and her inability to get along with her peers Page 21 and her superiors mitigate against any possibility of reinstatement. The employment relationship 'is.beyond repair. If the Board were to find that discharge was excessive, Ministry's counsel submitted that a-monetary compensation would be the most ·appropriate remedy. Ministry's counsel submitted that the cases where a monetary remedy was applied, frequently were found in situations 'where the grievors developed a conspiracy theory. Ministry's couhsel submitted that in Ault Dairies,. a Division o~ Ault Foods Limited and International Union of Operating Engineers, Local 796, September 30, 1985 unreported (Devlin) the.arbitrator found that the% grievor deserved some discipline but discharge was too excessive. The arbitrator found that the board's remedial authority extended to awarding.the grievor compensation instead of reinstatement·, where the grievor's misconduct was connected to job performance and the employer had lost confidence in the grievor's ability to do the job. · f Ministry's counsel further submitted that if the Board were to find ~hat discharge was too severe, taking into account Ms. Hawley's age .and her health, the Board ought to exercise its .remedial authority and award a severance payment, such as six months pay, that would not be subject to mitigation. Union's Argument Union's counsel argued that the MiniStry did not 'have'just cause to discharge Ms. Hawley for either culpable or non-culpable actions. He argued that the factual allegations' supporting discipline against 'Ms. Hawley were substantially unproven. Page 22 Union's counsel argued that the Ministry failed to adequately and clearly outline the standard that it wished Ms. Hawley Lo fulfil. Union's counsel submitted tha~ warnings'the Ministry gave to Ms.' Hawley were not reasonable, as they were contained in.performance review documents, which were contrary to governing standards and principles, and the meetings themselves, were conducted in an oppressive manner. Union's counsel further argued that there were legitimate and personal reasons for all Ms. Hawley's difficulties. Ms. Hawley did not receive adequate training; there were genuine misunderstandings between herself and her supervisor; and there was a heavy workload that prevented Ms. Hawley from doing all the t'asks assigned when requested. Union's counsel submitted that as a.result, any lack of ability that Ms. Hawley'had on termination can only be characterized as. non-culpable non-performance. Finally, Union's counsel argued that as a result of bad faith on the part of Ministry PersOnnel, Ms. Hawley had to work in a hostile work environment. Union's counsel submitted that had Ms. Hawley received sufficient training, a manual, and an environment free Of oppressive actions on the part of'her supervisors, Ms. HaWley could have performed all of her job duties. Union's counsel argued that the Ministry did not meet any of the criteria set out in the decision of Edith' Cavell v. Private Hospital and Hospital Employees' Union, Local 180, (1982) 6 L.A.C. (3d) 229 (H.A. Hope) for the Ministry to dismiss Ms. Hawley for non-culpable non- performance. He submitted that it is widely accepted that in the case of non-culpable non-performance as expressed i'n Edith Cavell ~ (supra): (a) The~ employer must define the level of job performance required. Page 23 . ~i (b) The employer must establish that the standard expected was communicated to the employee. (c) The employer must show it gave reasonable supervision and instruction to the employee and afforded the employee a reasonable opportunity to meet the standard. (d) The employer-'must establish an inability 'on the part of the employee to meet the requisite standard to an extent that renders her incapable of performing the job and that.reasonable efforts were made to find alternate employment within the competence of the employee; (e) The employer must disclose that reasonable warnings were given to the 'employee tha~ a failure to meet the standard could result in dismissal. Union's counsel submitted that the Ministry's actions and inactions were a complete defence against any allegation of non-culpable behaviour by Ms. Hawley. Union's counsel argued that in cases of non-culpable non-performance, the Ministry is obliged to find alternative employment for Ms~ Hawley before taking disciplinary action. Union's counsel submitted that the allegations of insubordination were based on the broad argument that Ms. Hawley was unwilling' t6 perform work, '~ather 'than on any explicit refusal {o perform any assigned task. He argued that Ms. Hawley was not unwilling to perform any assigned task, Union's counsel argued that the combination of unproven allegations, legitimate personal reasons ~ and evidence of bad faith were a comPlete answer' to .any alleqation of insubordination. Union's counsel'further submitted that the actions \ of Mr. Watt and Mr. Palonen supported a finding that the Ministry acted in bad' faith towards Ms..H9wley. He submitted that bad faith was a complete defence to all the grievances. Page 24 ' It vitiated any discipline meted out for culpable non- · performance or insubordination. Union's counsel argued that the underlying current of'bad faith in the Ministry's actions applied to all the performance' appraisals 'and to the ensuing di,scipline. He argued the Ministry had improper motives when performing the performance appraisals. Therefore, Union's counsel submitted that as in Re Drummond Business Forms (1984) Ltd. and ~nergy and Chemical Workers' Union (1989), 8 L.A.C. (4th) ~1 (Frumkin) and Re Sooke Forest Products Ltd and International Woodworkers of. America (1981), 3 L.A.C. '(3d) 252 (Vickers)' cases, the MiniStry's actions must be considered and Ms. Hawley.ought to bE reinstated. union's counsel, argued that although David Johnstone was aware of Ms. Hawley's allegations Of harassment by Mr. Palonen, no investigation was made into the merits.of Ms. Hawley's position. He submitted that the Ministry's attitude and failure to inves{igate the situation was a complete defence to.any allegation that Ms. Hawley's actions were culpable. Therefore, he argued Ms. Hawley ought to be reinstated.~ Performance Appraisals Union's counsel submitted that there was only' one true performance appraisal carried, out by Mr. Palonen and that was carried out on'August 31, 1988 and.reported to.David Johnstone without Ms. Hawley's knowledge. Union's counsel argued that Ms. Hawley was appraised contrary to governing standards as the appraisals were improperly conducted and based upon an improper motive. Union's counsel .argued 'that the remaining performance reviews and the culminating document Were contrary to governing standards and principles for the following reasons: . 1) Ms.. Hawley's duties were not .reviewed at the commencement of h~r ~mployment; no targets were set; and, the performance review cycle was not explained to her. 2) the appraisals contained numerous factual errors and unsubstantiated allegations; and 3) the numerous alleged performance deficiencies were raised for the first time at the "performance review" meetings. Union's counsel therefore argued that the performance appraisals must be removed from all of Ms. · Hawley's files. Union's counsel argued that the~e must be procedural fairness. In this case, the first two performance appraisals conducted in January and February 1988 were considered to be improper by the Dissanayake panel. Union's counsel argued that the p~rformance appraisals before us fall in the same category. He argued.that it was contrary to a fair and objective process to use them to dismiss Ms. Hawley. Procedure AlthOugh .-there is merit to dealing with the grievances together on the basis of a common situation, and common princi~ples, we have -chosen to consider them in chronological order, as the grievances relate to different periods, and the grievances must be viewed from the 'evidence that relates to the particular time period. Page 26 Credibility of Ms. · Hawley and Mr. Palonen The two key witnesses were Mr. Palonen and MS. Ha~tey. The other witnesses had corroborating roles of the various parties' positions. Notwithstanding the'chronology of .the events, there were certain tre~s that were reflected throughout the period of Ms. Hawley's. employment .that were relevant to the Board's assessment of the credibility of the witnesses. On the one hand,' it was apparent that Mr. Palonen. did not want Mp. Hawley in his department, and on the other hand, MS. Hawley became paranoid and distrustful of. the hierarchy, which affected her ability to assess and deal with her'weaknesses. It was clear to the Board that Mr. Palonen did not like losing his ability tO select his own secretary. As he stated to Ms. ~awley,~ MS. Hawley was "parachuted" into his department. Although there' was no direct evidence that Ms. Hawley's request of Bob Elliot, the Deputy Regional Director, in September to be appointed as a permanent employee in this position was conveyed to Mr. Palonen, it is likely, on the balance of probabilities', that Mr. Palonen knew of her request. Although Ms. ~awley had'held the position for six months by January, 1988, Mr. Palonen did ~not post the position. The continuation of the positi6n, then exposed Mr. Palonen to a grievance that there was a vacancy that ough~t to be posted and competed fOr. At the end..of January, Ms. Hawley grieved the failure to post the position. From January, .Mr. Palonen created an atmosphere where the staff 'in the department was watching and' scrutinizing Ms. Hawley's actions. He told staff ~members to take notes on Ms. Hawley, as Ms. Hawley would file grievances. Over the following months, a lot of' time was Page 27 spent by others in the Department taking notes of Ms. Hawley's activities. From early January, 1988, Mr. Paionen began a systematic review of Ms. Hawley's work performance. Although Mr. Palonen met Ms. Hawley in January to discuss her performance, Ms. Hawley spent a couple of hours each day with Mr. Palonen reviewing his mail and taking notes. At these daily meetings, if Mr. Palonen had any desire, .or was exercising any management skills, he would have been able to follow or determine what areas and tasks Ms..Hawley was not able to do and would have been able to help her address t~ose weaknesses.. Instead he chose .to review her performance cna minute basis, setting out tasks, goals and his editorial comments. He increased the pressure on Ms. Hawley by setting the performance review meetings almost every month. Ms. Hawley's evidence was also less .'than satisfactory. Her evidence was also a reflection of certain percePtions she had during her employment with' the Department. It is not relevant when considering her credibility,, if her perceptions matched reality. .For the moment we will discuss the relationship between Ms. Hawley's attitude and her perceptions. ~ . M$..Hawley left her former position, in part, as a result of a personality: clash with David Watt. When. Ms. Hawley went to the Department, the Department was serviced by Mr. Wa~t, as the Regional Human Resources Coordinator. When Ms. Hawley was not able to resolve her probiems, distrust for Mr. Watt and ~he' hierarchy arose and led her to believe that there was a conspiracy of management against her. Ms. Hawley wanted this secretarial position' on 'a permanent basis.' Although in reality, Mr. Elliot could not appoint Ms. Hawley to the position when she requested it in . Page 28 September, because of the posting and competition criteria in the collective agreement, Ms. Hawley perceived that she was being discriminated against, and was being blocked from this opportunity. This perception was fostered when her position was not posted after she had held the position for more than six months. Paranoia tainted Ms. Hawley's actions. Although MS. Hawley was able to voice her complaints to Mr. Johnstone and did manage to see him, Ms. Hawley's Perceptions were, that her complaints were. ~nheeded. Management sided with her supervi'sor. There is no obligatio~ on management to.support Ms. Hawley, and act other than it'did, by responding in writing. to Ms. Hawley; however, poor management skills increased Ms. Hawley's paranoia. It is not a matter of hindsight that allows us to see this problem. Ms. Hawley sent many letters to Mr. Johnstone and Mr. Beecher, which clearly showed that she had serious complaints. Had either Mr. Johnstone or Mr.Beecher given both parties an ability to air .their respective sides, it would have given Ms. Hawley's complaints recognition in a visible ~manner, and shown her that she was being listened to. Instead the letters responding to her complaints increased Ms. Hawley's perception of.a conspiracy. We recognize that the Union was not relying on any theory of conspiracy, but bad faith in its case. However, there~ was overwhelming ~Vidence'through the numerous letters that Ms. Hawley sent to management that a theory, of conspiracy was relevant to her. The effect of Ms. Hawley's belief in a conspiracy of management against her was a growing distrust of the management hierarchy. This distrust was reflected in the manner in which she gave her testimony. When Ms. Hawley was Page 29 asked questions by her own counsel, she refleCted, but, for -the most part, answered the questions asked. However, when Ministry's counsel asked almos~ the' same questions, Ms. Hawley took a great deal of time to answer,· frequently' could 'not~ recall the situation, or gave evidence that conflicted with. her~ evidence in chief. We do not believe that Ms. Hawley had any intention 'to lie, but her inconsistencies were a result of her distrust of the Ministry and her paranoia. As a result, her evidence cannot be relied upon consistently. Therefore we must view the testimony· of' both these witnesses as being founded on a kernel of truth, but viewed from their own different·perspectives. These differ~ences became relevant in assessing the accuracy of the~ performance reports. The ~eports were authored by Mr. Palonen, without any involvement· by Ms. Hawley. Ms. Hawley Contested the accuracy of the rep'orts. The "performance appraisals/reviews" reflected Mr. Palonen's views towards Ms..Hawley and towards her abilities, 'and were not a reflection of Ms. Hawley's views. ~' We find on the ·whole tha~ Mr.. Palonen's review of the events was more acCurate than Ms. Hawley's blanket denial. Mr. Palonen approached the facts in a very. particular and detailed' manner, both in his testimony and in his written documentation. He recorded his interpretation of the numerous meetings in the "performance appraisals/reviews." Although Ms. Hawley challe'nged their accuracy .and forwarded letters . alleging harassment to management, she never set out her understanding of the situation in any written form'. Therefore we are left with assessing Ms. Hawley's memory of the events. Many' times, Ms. Hawley could recall the topic being discussed at the meeting, could accept the details from her counsel but when cross- examined would, refute or deny the existence of those facts. Page 30 When consideriqg the written "performance. appraisal/reviews", as contrasted with Ms. Hawley's testimony, we find that the written reports more accurately described the §tatul of Ms. Hawley's work. However, we do not accept them as being a totally accurate rendition of the events.. We believe that Mr. Paionen was motivated to. create a paper trail that would lead to Ms. Hawley leaving, the department and the reviews .are, to a degree, self-s.erving documents. In this context we 'then consider ~he grievances. The First Grievance DATE April 18, 1988 # 400/88 STATEMENT: I grieve that I have been singled out to be appraised contrary to ali governing principles and standards of performance appraisal and subjected to unlengthy processes. These kinds of tactics on the part of management amounts to continuous harassment and dential(sic) of good working conditions in the work place. SETTLEMENT DESIRED: That performance appraisal dated March 31, 1988 by P.A. Palonen be withdrawn and removed from my file. That performance be ' appraised in accordance to the policy and standards of the Ontario Government for Performance Review and the Performance System of the Ministry of Natural Resources Forms A & B. Harassing tactics should be stopped immediately and that these performance appraisals cease immediately. That.P.A.Palonen and other management, be reprimanded for their a, ctions. That I be awarded any and all compensations due to me. In ~the grievance dated April 18, 1988 Ms. Hawley grieved that she had been appraised on March 31, 1988 contrary to the governing principles and standards of performance 'appraisals and she had been subjected to a Page 31 lengthy process. She sought the removal of the performance appraisal -from her file and a cessation of harassment ~c$. ~.~o. H~w~e~ challenged the process, the report and the accuracy of the report. This specific grievance is the first.of a~series of six grievances of performance appraisals, that we must review. ~' Mr. Palonen advised Ms. Hawley in the February 26, 1988 appraisal of her "next formal performance review" which was to "discuss progress towards target achievement". Mr. 'Palonen told Ms. 'Hawley on March 7, 1988 that she was to meet with him on March 21, 1988 for her next performance appraisal. The targets that formed the foundation of the meeting origina't ed from the FebrUary 8, 1988 written appraisal. The performance' of these tasks and others were · reviawed in the succeeding performance "review" meetings and later formed the foundation for ~Ms. Hawley's dismissal. Therefore, to understand Ms. Hawley's performance we must set out these targets. Although the panel ·chaired by Nimal Dissanayake ordered the recision o~ the first two performance appraisals, ~they still are evidence of the notice that Ms. Hawley had. The targets from· the February 8, 1988 written appraisal were: A. General Secretarial Services 1) Positive attitude in greeting incoming calls, in a-professional manner using tact and ·good judgement when other staff are not accessible to take the call. Target date immediate and ongoing. 2)· 'Ensure that a secretary is available to take all incoming calls and deal with them appropriately. Target date immediate and ongoing. Page 32 B. Supervisory Functions 1) Take the necessary steps to ensure that all work assigned to the part-time employee, passes through your hands. Target date immediate' and ongoing. 2) Obtain a clear understanding of total workload being handled by the part-time position and provide information for' my review and discussion. Target date February 15. ~ 3) Renegotiate, if necessary, the present schedule of work hours to make better use of equipment and coverage of duti~es. r Target date as required.. C. Filing System 1) Provide progress on' the reorganized filing system by scheduling the · · secretarial time and equipment to allow conversion to continue. Target date immediate and ongoing. D. Computerized Word Processing and Data Transfer 1) Develop a 'complete understanding and high proficiency in all WPS procedures available on Decmate and Vax. Target date February 8. '2) Learn the'd~cument index presently on the Decmate and fully understand-the programs and what .they are designed to do.' Target date February 15. E. Initiation and Use of Licence Issuing Package 1) Use the program to get all additional 'data keyed and create the licence documents and arrange to have the . documents copied and mailed. Target date February 15th. 2) Obtain an understanding of how the package works and create a licencing' procedure manual using the HELP screen. Target date February 15th. F. ASSistance in Problem Resolution i Page 33 1) Ensure that no procedural problems 'migrate to the coordinator's desk. Target date immediate and ongoing. G. Training and Development 1) Become aware of .the Decmate operating manuals and· use them to gain an understanding of all Decmate functions. Target date February 15th. The meeting lasted for approximately one and a half hours. Mr. Paionen reviewed· the following tasks with Ms. Hawley. General Secretarial Functions Mr. Palonen liked Ms. 'Hawley to answer all his telephone calls and to take the calls of others in the department when they did not answer their direct lines. When reviewing Ms. Hawley's Secretarial Services, Mr. Palonen said on the one hand, that there were no further problems in her ability to answer incoming telephone calls, but at the same time, he was critical that others were answering his calls, when she was absent from the desk. Ms. Hawley explained that during the morning, while she was 'at her coffee break, or was with Mr. Palonen, reviewing 'the work, the calls had to be received by someone else. They could not be missed, b~cause the calls automatically went back to the'main switchboard, if she was not there. Ms. Hawley did not agree that there were any problems with the telephones. In her view, it was. inefficient 'to remain i'n Mr. Palonen's' office while she reviewed his mail for a ~couple of hours each day. Ms. Hawley suggested that she pick up the correspondence at the end of the day when it was.completed. Page 34 Mr. ?alonen indicated under the target s6ction that there was continuing progress in how she responded to the ~x~ but that there was improvement needed in en~urin9~ ~t she responded to all incoming calls. · Mr. Palonen then .brought up a new ~tem. He commented that inspectors were not getting mail that was copied to them. Ms. Hawley made a constructive suggestion on how to eliminate that problem. Supervisory 'Functions The difficulties arising over these job-duties arose from the written performance appraisai's of February 8, 1988 and February 26, 1988. In January, Mr. Palonen told Ms. Hawley that 'Ms.. Davidson had complained to him' that she was being overworked as she had to d~ the majority of MS. Hawley's workload. Mr. Palonen said that he was concerned with the reduced level of productivity in secretarial servicers, in the second February performance appraisal, Mr. Palonen reported that Ms. Hawley had organized her duties and Ms. Davidson's. In this appraisal, Mr. Palonen said that there was "some progress, but improvemen% was needed". He elaborated in hi~ t.estimony that Ms. Hawley still had to ensure that all work passed through her hands before any was directed to Ms. Davidson. In the body of the March 31, 1988. appraisal, Mr. Palonen indicated that Ms. Hawley had obtained a clear understanding of the workload which Ms. Davidson did, with two minor exceptions, and yet he stated that the target "was not yet completed". Ms. Hawley understood that the target had been met. In Ms. Hawley's view.she always had a clear ~nderstanding of Ms. Davidson's work. Page 35 Ms. Hawley was to' renegotiate MS. Davidson's work schedule to make better use of her time. Ms. Davidson told Ms. Hawley that she would leave if h~r' schedule .was changed, as 'she would not be able to complete her school studies, which she was takin~ during the work.week. Mr. 'Palonen's documentation indicated that Ms. Hawley accepted' -the situation. Ms. Hawley did not agree that that this was an accurate statement of the situation. Mr. Palonen accepted that this situation was resolved. Mr, Palonen stated that Ms. Hawley had addressed this target. Fi%lng System Ms. Hawley's task was to reorganize the the Well File System, the Po01 Files and the Spacing and Unitization Files. Mr. Palonen said that Ms. Hawley understood the system. Ms. Hawley did not agree that she understood the filing systems. Ms. Hawley said that only the Pool files were being reorganized at the time. She felt however,, that 'she did not have enough information to file the Pool files, as she required technical information to do so. Ms. Hawley said the Spacing and Unitization files were not her responsibility, even though they were subfiles of the Pool files. Ms. Hawley claimed that she ~did not.file Well files Mr. Palonen directed Ms .' Hawley to take responsibility for the Well files and to test them within two weeks to see if they were properly filed. Mr. Palonen reported'that "'progress was continuing." Computerized Word Processing and Data Transfer Both Mr. Palonen and Ms. Hawley acknowledged that the report was accurate in this regard. They had discussed Page 36 the use of Decmate and Ms. Hawley had assured M~. ?alonen that she ,was profi¢£ent in us±ng Decmate and .the WorO Processing System. Mr. Paionen recognizeO that- Ms. Hawley had indicated three areas which she did not understand,'which she set out to him in a memorandum ~ebruary 24, 1988. Ms. Hawley sai~ that she needed to learn to print documents on the laser Printer, recall and copy documents to and from the hard disk to floppy disks and to transfer mail to and from the VAX. She wanted to know how to use shortcuts on the VAX. Initiation and Use of Licensing Package Ms. Hawley had to key in all remaining data needed to issue, licences and to create and issue them. M=. Pal0nen-' acknowledged that the bulk of the data for the licenses had been entered, and took the position Ms..Hawley said the'bulk would be mailed by March 25, 1988. Ms. Hawley did not agree that she set a target date, as she did not feel comfortable with'the system and did not understand it. iMs. Hawley advised Mr. Palonen that she had Ms. Hesselman enter most of the information, as she did not know how to make changes to the system. Mr. Palonen reported that she had not met this target. Estimated User .Manual In the February 8, .1988 performance report, Mr. Palonen' directed Ms. Hawley to obtain a proper understanding of the licensing package and create a licensing procedure manual using a HELP screen by March 15, 1988. Mr. Palonen reported that Ms. Hawley said that she had taken extensive ,notes on how to enter the data but 'had not created a .user manual. This .t~rget was not met. Page 37 Log Out P~rocedure This was a new item. The software system allowed a user to work on more than.one program at a time, but the user had to log onto the system and then log off the system when tke user was no longer using the program. Mr. Palonen reported that Ms. Hawley did not log. out of the system properly and. her improper procedure caused program errors. Consequently, considerable time was ~spent by Ms. Hesselman and Mr. Habib correcting the problems. .AS a result, Mr. Habib had to restrict her use of the computer'to Work on one task at a time. Ms. Hawley's view was that she understood the process, but the equipment or the software was not functioning properly. Whether or not Ms. Hawley was t0 be ultimately discharged or reinstated has no bearing on Ms. Hawley's right to grieve an alleged contravention of her performance appraisal. This right is specifically given to the employee under section 18(2)~ of the Crown Employees' Collective Bargaining Act'. We have the jurisdiction to determine whether or not Ms. Hawley was appraised contrary to governing standards. Section 18(2) states: 18(2) in addition'to other rights of. grievance under a collective agreement, an employee claiming, (a') that his position has been improperly classified, Page 38 (b) that he has been appraised contrary to governing principles and'standards; or (c) that he has been disciplined o'r dismissed or suspended from his employment without just cause, may process such.matter in accordance with'the grievance procedure provided in the collective agreement, and failing final determination under such pro'cedure, the matter may be processed in accordance with the procedure for final determination applicable under .section 19. Guidelines to the performance appraisal system are outli~ed in the Ministry's Manual of Administration. These guidelines provide the standard against which we must examine Ms. Haw!ey's performance appraisals. The relevant· policies and standards'are as follows: Ontario Manual of Adminiswation P~rformance Apl~raisaI Guidelines The following performance appraisal guidelines are presented to assist in the development and implementation of effective performance appraisal programs. 1. Define performance expectations that are: set by manage~ and employee at the beginning of each review period;. re-examined during the revieW period and revised where appropriate; . specific to each job; consistent with the position description; results oriented; measurable. 2. Discuss actual performance, with the employee on a day-to-day basis throughout the review period. 3.' Base the evaluation at the end of the review period On the employee's , work performance and accomplishments. 4. Discuss theperformance evaluation at the end of the review period with the employee and where the appraisal is written, provide the emPloyee with a copy.' .Page 39 ~ 5. Include in [he performance evaluation at the end of the review period a summary rating of the employee's performance so that the employee has a clear understanding of whether overall performance has exceeded; met or not met the expectations of the job. 6. Indicate, where performance expectations have not been met, what is required to meet these expectations and whether improvement has been demonstrated through out the review period. 7. Include in the appraisal of managers, their operations of the performance. appraisals. Manual of Administration of the Ministry of Natural Resources Performance appraisal: . Policy:It is ministry policy that employees have a right tO know howtheir performance is viewed and are entitled to an honest review and written appraisal of their performance by their supervisors. It is ministry policy that this be achieved through The Performance Management Cycle .... A' written record of each progress review or formal appraisal is to be prepared at least annually and is to be kept by both the supervisor and the employee. Documentation should be in the form of a memo to the'employee with a copy to the manager of the unit. Performance aPpraisals are not to be placed on the corporate personnel file. There are two exceptions to this part of the policy - one is in the case of a pi'ob&tionary employees where quarterly appi:aisals are.mandatory and must form part of the corporate ' · ' personnel Erie. The other is in the case of any identified performance problems. In this situation documentation (pursuant to the Ministry's directive on progressive discipline) should be included in the corporate personnel file. In the event of a grievance it may be neces'sary to document progress, and the performance appraisals may be required for the corporate personnel f'rie. · · Pgrformgnce Management Cycl~ : The Performance Management Cycle is an ongoing process through which job related goals and objectives are achieved by the joint efforts of employees and supervisors. The Performance Management Cycle involves: a) assessing an employee's work performance against job requirements through both formal and informal communications between the employee and the supervisor on work-related matters, b) assessing an employee's potential for development and providing the employee with an opportunity to make career goals known, Page 40 c) providing a system of identifying performance problems and assisting in their resolution. The Process: The most basic element of the process is a "contracting" arrangement betweea the employee, the .supervisor, and the manager in which they agree to "targets" to be achieved. It should be noted that the nature of the targets can vary with the scope of the job. In simple repetitive based jobs, targets may be no more than basic performance measures, establishing standards as to ~be quality and quantity of work expected in a unit of time. As job complexities 'increase, so should the targets. Targets will have less and less to do with. day-to-day job performance and will increasingly identify areas where there can be growth, improvement, and enrichment in job performance. The. steps in the process should be: 1) The Supervisor and Manager meet and 'agree on an overall direction for the unit, including the units targets, plans and goals. 2) The employee and the supervisor have a preliminary discussion during which the purpose of the Performance Management Cycle is explained, the unit's plans and · objectives are reviewed, and the employee's position specification is reviewed for accuracy and completeness. A. date is set for a formal discussion. 3) The supervisor and'employee independently work on tasks 'or assignments from first meeting and develop ideas and suggestions in preparation for their next meeting. 4) The supervisor and the employee meet again and, through discussion, questioning and examination, try to develop three to six targets which the employee and the supervisor can agree upon. In addition it is often appropriate to set · ' targets in the areas of personal growth and development to ensure the employee's training needs are clearly identified. NOTE: Steps 2, 3, and 4 can be done as one step and accomplished in one meeting in most cases. 5) These targets are reviewed by the manager to ensure compatibility with the unit's work plans and objectives. 6) The agreed upon results are then prepared in writing, and should identify what the targets are and how each p .art? wil. 1 know when they are achieved; what are the minimum required standards and how they can be verified, what check points there are on the way to completing these targets and what reporting requirements have been established; what Page 41 constraints may exist to achieving these targets; what'support is required from the supervisor/manager. 7) Th.e process is not a static one and requires re~ular review of progress towards targets throughout the cycle. Once the cycle is complete, a performance appraisal is prepared. The purpose of performance appraisals is t~ provide' the employee with an objective method' of considering the employee's own performance. The manual distinguishes between the appraisal, the review, and daily discussion~. Et contemplates three leyels of review, the formal performance appraisal, which is usually held annually,' performance reviews, which may be held in the interim, and daily discussions which are to be held during, the performance cycle. Accordingly, the goals of an .apPraisal will be somewhat broader than either that of the performance review or the daily discussions~ The manual suggests that the goals are to assess the employee's wOrk against the emptoyee'-s.job description, to consider the employee's potential .for development and to identi'fy problems and assist in their resolution. Performance reviews can be conducted during the performance cycle to advise .the employee on the employee'b progress. Daily discussions can deal with issues a.s they arise. Although the standards suggest that appraisals occur "at. least annually" the standards do not suggest a monthly review of the employee's work in a formalized manner. The' appraisal looks to the general, not day-to-day, performance. It is based on the employee's position specification. It states that "Targets will have less and less to do with day-to-day job performance and wi'll increasingly identify areas where there can be growth, improvement, and.enrichment in job performance." Therefore, in order for an employee ~o reach goals se~,. the employee · - must be given sufficient time to achieve them. .The Page 42 performance, reviews can be held from time to time together with daily review of job functions. The Dissanayake panel found that the first two performance meetings and. reports were performance appraisals and Were contrary to governing standards. Mr. Palonen only gave Ms. Hawley approximately-one week notice of her first formal appraisal. The Dis'sanaYake panel found that there was. no review period, no measurable expectations defined, and there was no mention of performance appraisals made. Nor was there any notice of the items to be discussed. It was factually inaccurate, as not all the problems mentioned could be Graced to Ms. Hawley. The panel found that the second appraisal was contrary to 'governing standards, as Mr. Palonen decided during the course of the second meeting to turn the meeting into a performance appraisal meeting. We accept the Dissa~ayake panel's finding of.'fact, as no appeal from the decision was ever made. The performance reviews that we are' considering were structured in the same manner. There were formal interviews. Reference was made to these preceding performance reviews and included Mr. Palonen's conclusions as to whether Ms. Hawle~ was meeting earlier targets. This is the link to the earlier per'formance appraisals. Although the standards and principles remain constant, we must 'assess each performance meeting and report against these standards. As each meeting and report, is a separate instance,, the conclusion that the Dissanayake panel .reached that the appraisals were contrary to governing standards is not determinative of the performance appraisals %hat we are dealing with. Each'one must be considered on its merits. The first grievance was based on a meeting between Ms. Hawley and Mr. Palonen on March 21, 1988. On March 31, Page 43 1988, Mr. Palonen summarized the meeting in writing and gave the written report to Ms. Hawley. Although on first appearances it may seem that the meeting of March 21, 1988 was intended to be a review, as Mr. Pa!onen had set target dates that fell after the next scheduled meeting, Mr. Palonen did not treat the meeting as an interim measure. In the written performance· appraisal'.of February 26, 1988, Mr. Palonen advised Ms. Hawley that her next "formal performance review" was scheduled for Monday, March 21, 1988. He cal~e~ the March 31, 1988, written report of the March 21, 1988 meeting, ~a performance'appraisal. He formalized the interview process and he commented in the same · way as he had in the initial performance appraisals. He referenced the meeting to the performance appraisal meeting of January 8, 1988, that was documented by him in the February 8, 1988'appraisal. Mr. Palonen evaluated Ms. Hawley asr if the target dates had passed. 'We find that Mr..Palonen intended the performance review meeting and the subsequent written performance appraisal to be a performance appraisal. Although the short term goals would be more.appropriate to a review, we cannot find that it was a performance review. Mr-. Palonen intended to assess Ms. Hawley's p~rformance.and determine whether the targets had been met. Mr.. Palonen did not intend this meeting and. report to be a performance review fin the sense set out in the manual. Mr. Palonen did not set goals that Were to be reached over a space of time and review the Work done mid cycle. He established the performance appraisal sYstem for Ms. Hawley from their first performance meeting and in each successive performance meeting attempted to duplicate the system and goals established from the beginning. Each meeting and report determined its own cycle, albeit a short one. Page 44 ' The most~ fundamental aspect of a performance appraisal is that it is based on'a cOnt'racting arrangement to enable ~the emp.ioyee to meet goals. The manual emphasizes "joint" efforts, and the process is stated to be "The most basic element of the process is a "contracting" arrangement between the employee, the supervisor, and the manager in which they'agree to "targets" to be achieved." When the ~performance process as outlined in the manual is looked at as a whole, it is to be a positive and constructive'process, one which acknowledges the strengths of the performance and reinforces where there is improvement needed. It is a process where both the.employee, and the supervisor work together to identify three to six target areas for improvement, where standards to be met are articulated.· The most defective feature of the performance appraisal on March 21, 1988, was the failure to have .these contractual arrangements. There was no j~int effort by Mr. Palonen and Ms. Hawley. Mr. Palonen said-that during the meeting Ms. Hawley said very littl'e, and sometimes did not answer his questions. Mr. Palonen testified that Ms. Hawley became defiant at the end of the meeting. The meeting with Ms. Hawley lasted between one to two hours.. A contract requires a mutuality of interest and a joint desire to reaCh each one's particular goal. In this situation, there was no mutuality. Mr. Palonen was determining the agenda and dictating the goals. Ms. Hawley was Participating minimally. This however, does not mean that an employee can thwart the procedure by failing to co-operate. 'In those circumstances, the employer can continue, with the proceeding, and the employee is subject to discipline. Furthermore) if Page 45 the employee wishes to contest the appraisal, the employee must follow the common accepted'practice to "obey. now, grieve later." As we find tkat this me,ting and written 'report. was a performance appraisal, we must consider if the .appraisal has other ~serious defects that are contrary .to governing 'standards. The performance appraisal system is not intended to surprise the employee. The emPloyee must be given notice of the process, the length of the cycle and ~targets that the e~pl0yee is to strive for. It was incumbent upon Mr~-Palonen to advise Ms. Hawley of the p~ocess he wished to follow and to give her notice of the items to be discussed in the meeting. ~ We accept that Ms. Hawley must have had some familiarity with the appraisal ~process in general', as she had worked in the Personnel in the Ministry since 1981', ~ad been appraised on earlier Occasions .and had conducted her own appraisals. However, the process in each department may vary, as the~Manual is intended to be a guideline to be used by management in imPlementinq a performance review cycle and can be applied in different ways. Although Ms. Hawley was not advised at the beginning of her job of the performance appraisal process, we do not find that this failure vitiates any and all subsequent appraisals. The intent described in Ontario Manual of Administration is to give, the employee notice in order that the employee will know what is expected of him or her, and when it is to be expected. Ms. Hawley did not receive prior notice of all~ the items that. Mr. Palonen said were discussed. For instance, Mr. Palonen mentioned, for the first time, that inspectors ~were not getting their copies of mail, and were Page 46 , not shown as copied on the correspondence. Although Ms. Hawley came up with a solution which was noted by Mr. Palonen, he had not given her a chance to consider what was expected of her. This example, also reflects a further deficiency. The nature, of ~his problem ~s a reflection of a day to day problem that could have been .dealt with'ina daily discussion. This type of problem did not relate to the performance cycle, nor to any existing target. There is no specific format that an appraisal has to follow. The important aspect is whether it meets the goals' and intentions of the appraisal system, to assess the employee's standard against his or her position description and to help the employee achieve his or her potential. It must be readily understandable by the employee. We find that Mr. Palonen's method of documentation was confusing, even though he tried to use the same numbering 'system in the written description of the meeting and in the target section. The numbering 'of the targets was not consistent in each report so that if read in isolation, Ms. .Hawley would sometimes be confused, as to whether the'targets had been met. in some areas the information in the body of the appraisal and the Status on the targets conflicted. For instance, in the body of the appraisal, Ms. Hawley's responses to telephone calls was satisfactory, and yet the target said that there was "continuing progress." However, we do not agree-with Ms. Hawley's position that "it was incomprehensible". There were some areas of confusion where the targets had to be looked at in the context of the written' documentation. Time had to be spent to determine what Mr. Palonen's position was in each area. Although this lack of clarity is a defect in the performance appraisal, it terms of an employment relationship, Ms. Hawley worked ,with Mr. Palonen and ought to have asked for clarification in'areas she did not understand. ' . Page 47 , A supervisor can direct staff and assign tasks. However a performance appraisal i$ not the p!ac~ ~ ~£si~n ~immediate ·tasks. · Communication is intrinsic to a performance appraisal. Mr. Palonen faiied to communicate his goals and what he felt Ms. Hawley needed to meet the goals. Although there-is no specific format for an appraisal, this appraisal . was .difficult. to follow. The format represented minut'es of a meeting. Although it attempted to relay the discussions, it was difficult to determine what Mr. Palonen wanted in all cases. He failed to give Ms. Hawley measurable standards, against which to assess he~ own performance. Mr. Palonen ' s report said that Ms. Hawley represented she knew how the Pool files, the Well files and· the Unitization and Spacing files functioned; Mr. Palonen criticized Ms. Hawley for misfiling Well files. We accept Ms. Hawley's evidence. Ms. Hawley was not responsible for the Unitization and Spacing files. She did not file the Well files, and she explained whys·she needed technical assistance for the Pool files. Although..maintaining and testing the Well fil~s is an example of an immedia~ task, Mr. Palonen failed to convey it as a goal and provide the employee with the tools and time '- to accomplish it. We ~ccept that due to the emphasis given to the licences and to implementing .the new system, that there had not been the time available to complete this task. Goals must be honestly set. They must be attainable. Mr. Palonen knew. that Ms. Hawley would not be able to produce a user's manual .within the time constraints of both the February and March appraisals. In the February 8, 1988 appraisal, Mr. Patonen asked Ms. Hawley to produce a Page 48 user's manual for the computerized programs by February 15, i988. The'system was not working consistently at that stage- and Ms. Hawley had little training. It was apparent from Ms. Hawley's comments, to Mr. Palonen that she did not know how to operate the sy~stem and did not have enough exposure to the system to create'the manual by March 2i, 1988, the date ~f this appraisal. On the Ministry's evidence, Ms. Hawley did n0't even un'derstand logging on and off .the system, a basic operation that was needed to access files by March 17, 1988. To write a procedu're (usgr's) manual was quite clearly beyond the scope ~f her abilities at the'time Yet Ms. Hawley had been asked to produce the procedure manual within a sho'rt period of time. We could understand' that an appropriate goal for a performance apPraisal for a. person in Ms. Hawley's position ~ould have been to P.r0vide a procedure manual over a period of time, after the system was in place and a period of familiarization had occurred, but not immediately. There is one further serious flaw in this performance appraisal. It was a cautionary letter. Mr. Palonen specifically warned MS. Hawley that discipline and discharge were a possibility, iHe stated: "I also informed you that because you were not perf0rmi~g at an accePtable level, I could only conclude that you were unwilling and/or .unable to do the work. You were 'told that unwillingness to perform your assigned work could result .in serious discipi~nary action' including poss'ible dismissal. Inability 'to perform your assigned work at an OAG 8 level could lead to termination." Mr. Palonen then retained the appraisal in her personnel file. The Ontario Manual of Administration allowed an appraisal to be retained in a persognel file only if these are mandates, quarterly appraisals and they form part of the corporate personnel file, (which is not the case here) or where there are identified performance Problems. If Mr. Palonen retained the file in accordance'with the manual, then Page 49 he recognized that the~e were performance problems and · retaining it, was in support Of progressive discipline. In summary, we find the process to be that of a performance appraisal. We also find. that Mr. Palonen intended this interview and report to be a performance appraisal. By the'nature of the goals that were set out in the performance appraisal of February 26, 1988, which related to day to day functions, the short time that Ms. Hawley had to improve her performance and the 'setting of target dates subsequent to the next performance review, ~placed Ms~. Hawley in a position that she would not have a'reasonable chance of meeting the targets for the next review. Therefore her performance appraisal of March 21, 1988 was defective. In any performance evaluation there will be a strong subjective element in either setting the standards .or ~omparing the .performance to specific standards. However, we find that Mr. Palonen's reports were highly subjective and documented his view of the meeting. We find that although any one defect would not be substantial, when 'reviewed in its totality we find that there ara so many defects' that this performance appraisal is ~oid. Although the appraisa~ is disciplinary in tone, as the' employer~ is not relying on the appraisal as a form of discipline., we do not have to consSder whether the appraisal can remain in Ms. Hawley's file for that purpose. We hereby Order that this performance appraisal be removed from any and all of the grievor's records or any file that relates to Ms. Hawley. Grievance 2 On April 5, 1989, Mr. Palonen met with Mr. Beecher, Mr. Elliot, Mr. Watt and two persons from Human Resources in Toronto to consider how to deal with the "serious problem that was developing" with Ms. Hawley. Mr.. Palonen based his Page 50 conclusions on complaints he received from' Ms. McLeod, Mr. Rubanski and Ms. Hess~lman. The group considered Mr. Palonen's position, reviewed Ms. Hawley's work by-~ considering her p~rformance appraisals, and r~viewed the memoranda that Ms.. Hawley had sent tO Mr · Johnstone. It was Mr~. Palonen's position that Ms. Hawley was intentionally not completing the. work as he had given. Ms. Hawley many opportunities' to do the work and Ms. Hawley had failed to do so. Mr. Palonen recommended that~ MS. Hawley be suspended. It was Mr Palonen's view that a five day suspension could "shock" her into performing. The group .accepted'Mr.' Palonen's 'position that Ms. Hawley's'performance had not improved. TheY considered suspension and the possibility that MS. Hawley's'poor performance may ultimately 'lead to discharge. They considered.reSurning Ms. Hawley to her original job, but decided that they could not as she had left. that job due to. personnel problems. 'Ultimately, the. group accepted Mr. Palonen's recommendations. Mr. Beecher / recommended Mr. Johnstone follow Mr. Palonen's suggestion. On April 6,' 1988', Mr. Palonen asked. Ms. Hawley to attend a meeting on April 7, 1988. Mr. Palonen advised Ms. Hawley that the'meeting might result in disciplinary action. MS. Hawley met Mr. Palonen and was represented by a union official. 'At the April '7, .1988 meeting, Ms. Hawley learned that Mr. Palonen was recommending that she be suspended. On April 8, 1988, Mr. Palonen summarized his view of the meeting in written form for Mr. Johnstone including his recommendation to Mr. Johnstone'to suspend Ms. Hawley. Mr. Palonen's letter placed the sole responsibility for the failure to issue licences on time on MS. Hawley. He outlined incidents to show that Ms. Hawley needed time to work on the licences, did not meet deadlines, and entered information incorrectly. In his view, Ms. Hawley was responsible for Page 51 ' casting the Ministry in a poor light in the eyes of the operators. Mr. Johnstone reviewed Mr. Pa!onen's letter and Ms. · Hawley's performance appraisals. Mr. Johnstone queried Mr. Palonen On various aspects of his letter. Mr. JohnstOne had also been kept advised of Ms. Hawley's situation by Bob Beecher. Mr. Johnstone concluded that Ms. Hawley had been trained, given sufficient time to produce the work, had keen warned to improve and had failed to do so. Therefore, Mr. Johnstone ·formally suspended Ms. Hawley,~ in writing, for five working days and' warned her that failure to follow either written or oral instructions could result in severe disciplinary action, including dismissal. Ms ~Hawley alleged that the " ~was un . suspension, just and alleged that the suspension was a part of the continuous harassment by management. Ms. Hawley filed the following grievance: DATE: April 18, 1988 399/88 STATEMENT: I grieve that I have been unjustly suspended from my job for five · days, April H - 15, 1988, without pay and this is further ongoing and continuing harassment on the part of management. SETTLEMENT DESIRED: That this suspension be rescinded and that I. be reimbursed for all losses, benefits, salary, interest, costs, etc. and any and. all compensations due to me. That management of the Ministry of Natural Resources be reprimanded for their actions. The MiniStry conceded that~the suspension was based solely on Ms. Hawley's inability to produce the .licences and failure to meet minimum standards of accuracy and quality in producing and issuing licences. page 52 Ministry's counsel submitted that Ms. Hawley had been~ assigned the task to enter and issue licences. This task was .within the scope of Ms. Hawley~s job description. The task was simple and Ms. Hawley had received her instructions and h~r training by mid February. Ministry's counsel submitted that although' the task did not require consfderabie t~me to perform, Ms. Hawley was given repeate~ time extensions to. complete the work and staff was available to assist her. Yet Ms. HawleY had not completed the tasks by April. Ministry's counsel argued that the position was not intended to be a training ground for Ms. Hawley. Ms. Hawley had represented herself to be capable of performing at an OAG '8 level. If Ms. Hawley was incapable, she deceived the Ministry by not advising the Ministry that she' did not have hands on skills at the co'mputer. She submitted that Ms. Hawley did not identify any area where she needed further training. Ministry's coun'sel submitted that poor performance in issuing the licences combined with an element of culpability also constitutes insubordination. Ministry's counsel submitted that culpability was found in Ms. Hawley's attitude; her refusal to give licenses 'priority, her failure to structure Ms. Davidson's time to allow Ms. Hawley-to work exclusively on the licenses and Ms. Hawley's insolence. Ministry's counsel submitted that the 'evidence of delay in performing her work constituted disobedience, Ministry's counsel submitted'that Ms. Hawley's failure to complete work in an accurate and timely fashion constituted insubordination. No culpable behaviour was necessary. Ministry's counsel submitted that given the importance of the job to the department and the opportunities Page 53 given to Ms. Haw!ey to do the job, a five day suspension was reasonable'~ union's counsel argued that the bad faith 'on the part of the Ministry was a complete defence to any allegation of insubordination. In the alternative, Union's counsel argued that Ms. Hawley didt not get 3her instructions to proceed with the licensing until February 8, 1988, when she received the written appraisa'l. Although Mr. Pa!onen had instructed Ms~ Hawley to issue the licences using the new system, the sys'tem was not in its final form. There were factors such as computer breakdowns, and changes· made. to the licensing package that were outside Ms. Hawley's control and contributed to the delay.. Union's counsel argued that. the training was inadequate to enable Ms. Hawley to produce the licences.in a timely manner. There were only large technical manuals available, but none were in a format that would be able to readily assist her. There was' no HELP screen or procedure manual tO help her when hecessary. She was given the responsibility to create one. Union's counsel argued that the Ministry unfairly criticized Ms. Hawley for not issuing the licences immediately. Ms. Hesselman had ~stated in.- her cross- ~xamination that due to the .status" of the licensing package~ and the time required to produce the licences, the licences could not be released until MarCh. In the last three or four years the iicences had also been issued late. Union's counsel argued that Mr. Palonen fa'lse.ly advised David Johnstone when the instructions were given and when Ms. Hswley was in the .position to follow 'the Page 54 instructions. Mr. Palonen did not advise David Johnstone that after data had been entered in the third week of ~=~uar=, .... program had to ~ changed The issue before us is whether the employer had just cause to suspend Ms. Hawley for five days. The basis of the' · suspension was Ms. Hawley's failure to follow instructions, to meet minimum standards .of accuracy and quantity when producing licences, and her failure to issue the .iicences in a timely manner. The questions that must be asked are: 1) what were Ms. Hawley's instructions; 2) did Ms . Hawley .fail to follow those instructions'; 3) what was the Status of the licences on the date of the suspension'; 4i if she did fail to follow instructions and meet minimu~ standards, was the failure, intentional or due to an inability.to perform her job; 5) are there any mitigating circumstances to be Considered. Mr. Palonen testified that initially he instructed Ms. Hawley. to prepare the licences in November and' he formally reassigned her to prepare the licences in January. Ms. Hawley denied that she was instructed to enter and issue the licences in January. Ms. Hawley testified that she did not receive any instructions to issue the licences until February 8, 1988, when she received the written Page 55 ~ performance appraisal.. Although the appraisal refers to the target being set in the January 8, 1988 appr. aisal meeting, Ms. Hawley testified Ghat no target dates were given at that meeting. In order to process.the licences MS. Hawley first had to log onto the system. To issue the !icences, the information from the applications had to be entered onto the database, and any changes from ~the existing application had to be entered. The receipt number was 'added on payment of the licence fee~ the l~i~ences were sent to the inspectors, if their approval was necessary, and then; .to Mr. Palonen, for his' approval. Mr. Palonen indicated to Ms. Hawley through the electronic, mail'system that they were ready for issuance. The licences then had to be printed onto' existing forms and forwar'ded with a covering letter to tie applicant. Ms. Hawley's notes indicated that she had learned to log onto the system by February 12~ 1988. Although the~ evidence on the training sessions was somewhat vague, 'there were most likely two sessions' which were held by February 15, 1988. Ms. Hesselman testified that Ms.~Hawley was trained t© log in~and log ou~, enter ahd edit ticence applications, to print licences, to receive and transfer mail, and to change 'her password. Ms. Hesselman testified tha~ She provided one hour training on February 5, 1988 to enter the licences and Ms. Hawley enter'ed 15 licences in her presence. On 'February 15, 1988 Ms. ~esselman taught Ms. Hawley how to make changes to the System. Ms. Hawley recalled t~o training sessions, each of approximately, one. hour in length. The first taught her to enter data onto the sy'stem and the second taught, her to make changes to the system. 'It was her position that she did not. receive training in other areas. Page 56 By February 22,.1988, Ms. Hesseiman reported to Mr. Palonen that 120 applications had been entered and that 102 aDplications still had to .be entered. At ~ ~.,e same tim~ Ms. Hesselman criticized Ms. H~wley for entering data' from applications of new operators. By February. 24, 1988, Ms. Hesselman reported to Mr. Paionen~ that the remaining applications were entered. Ms. Hawley testified that she did not know how to enter information on new operators by February 22, 1988. Ms. Hawley testified that Ms. Hesselman entered the bulk of ~hese licences. Mr. Palonen testified that there was a hiatus from 'February 24, 1988 to March 21, i988. One of his memoranda states 'the staff were making changes to the program. On · March 21, I988, Ms. McKeon advised Mr. Habib that the operator names were being entered incorrectly. AS Mr. Habib did not .want either MS. McKeon or MS. Hesselman to screen the Operator files, Mr. Palonen directed Ms. Hesselman, Ms. McKeon and Ms. McLeod to ensure that Ms. Hawley did the work.' Mr. Palohen testified that he approved all remaining .licences from M to Z on March 22 and March 23, 1988'. Ms. Hawley was ill on March 22, t988. On March 25, 1988, Ms. Hawley asked Ms' Davidson to assemble the 'licenses for mailing. Ms. Hawley found deficiencies and inconsistencies when sorting the applications, licences, and covering letters. On March 28, 1988, Ms. Hawley sent a'memo advising Mr.. Palonen of the problems. She advised him that Ms. Hesselmanfhad found that licences M.to Z had not been approved, that some licences were issued without covering letters, some nad covering letters without ticences or without applica'tions on file. As a result of Ms. Hawley's memorandum, Mr. Palonen held a meeting on March 29, 1988 with Ms. Hawley, Ms. Hesselman, Ms. McLeod, Ms. McKeon and Mr. Habib to resolve Page 57 the Problems with the licences. Mr. Palonen use·d Ms. Hawley~s memorandum as the agenda for the meeting. Ms. Hawley was only able t© attend part of the meeting. Ms.. Hesselman and Ms. McLeod composed a memorandum of the meeting and Ms. ~cKe0n typed it. The memorandum also contained an someone's comments on directions given to Ms. Hawley by Ms. Hesselman and Ms, Hawley's activities in the afternoon. No a~thor was identified. Although the memorandum is not proof of the events of the meeting, Mr. Palonen admitted in testimony tha~ there were only two t·o·three licences which were printed which did not have covering letters. Ms. Hesselman admitted that there were less than· ten applications and covering letters which did not have licences,~ and that problem was'solved within five minutes. Even on t·he "minutes" ~there was only one operator application missing by theL end of the meeting. Three iicences were entered incorrectly. There was very little left to be done. As.Ms. Hawley· was only present for the beginninq of the meeting, Ms. McLeod told Ms. Hawley later in the day that issuing the licence$ was to be top priority. Later that afternoon, Ms. Hawley was unable to enter the system~.. First she received a message that she,was not authorized to do so and later when she tried again the symbiont was down. Ms. Hesselman testified that she told Ms. Hawley on March' 29, 1988 that the symbiont was up and that she was to type five missing licences, three ~overing letters and find th~ missing application. Ms. Hawley tried to enter two new applications, but had difficulty. She called upon Ms. Hesselman for assistance twice. No ~icences were issued on Ma'rch 29, 1988. Mr. Palonen said that one half of the Page 58 licences.were printed, and were waiting to be mailed by March 29, 1988. On March 30, 1988 Ms. MCLeod told Ms. Hawley to ~issue the remaining licences, to o~qanize the applications and to check that the operators had .received the licences 'they had applied for. Ms..McLeod assumed control. Ms. Hawley found that two out Of ninety-four iicences were missing covering letters. Ms. Hesselman reviewed the licences and found tha't there was one misprint and one missing. Mr. Habib brought down the symbiont to correct two new Operator Files from the previous day. When Ms.. Hawley 'began to issue the licences, she again~needed Ms. Hesse!man's 'assistance. It is li~ely that Mr. Palonen's memorandum of April 4, 198'8 to David Johnstone was dated in error as April 4, 1988 was a statutory holiday. The error in. the date is not significant. The memorandum is important to show that Ms. Hawley needed a full day to complete the licences. Ms.~Hawley spent the following day on the 'licences. She found problems with two applications. This evidence is consistent with Ms. McLeod's notes which indicate that Ms. Hawley spent the day cross-checking the information. .By April 8, 1988, all the licences had been mailed except for eight requiring inspectors' approvals and except for a few new applications that had arrived. The new. applications were processed by April 11, 1988. We do 'not find that Ms. Hawley was "grossly insubordinate", r The department was responsible for issuing the licences. The department knew that the licences were to be Page 59 issued as soon as possibl9 after January 1, as they expired each December 31. Ms. Hawley was aware of this general responsibility. We accept MS. Hawley's evidence and the finding of the Dissanayake panel that targets were not ~given to Ms. Hawley in the January 6, 1988 performance appraisal meeting. Therefore the written appraisal dated February 8, 1988 is the only evidence of any forDal instructions given to Ms. Hawley. This is also consistent with the status of the system. We recognize that there is a statutory obligation that all operators have a current licence to operate by the conclusion of the calendar year Althou'gh past practiCe is not an excuse for delay beYond deadlines, we must consider the practice of the department when'considering Ms. Hawley's position. This was not the. first year that.the licences were issued late. Most years the licences were late. In 1988, issuing licences was made more complex by the introduction of ~the new software program. The program was established in the fall of 1987 to enable the new software system to issue the li~ences. Ms. Davidson and Mr. Habib worked on the system and it's forms. The system however incurred problems. The VAX crashed from November 26 1987 to December 8, .1987. Ms. Hawley noted each time she had tried to access VAX and was Unsuccessful from.January 12; 1988 to February 18, 1.988. The VAX was not operational from January 22, 1988 to February 5, 1988. This period was. corroborated by Mr. Habib. There were five other times that Ms. Hawley was not able to .access the system. . Although Ms. Hawley was instructed formally to key in data and to issue the' licences in the February 8, 1988 performance appraisal, Ms. Hawley was not given the' tools at the time to perform the task accurately and efficiently. Page 60 We accept that there were two training sessions. However, we do not find that the training sessions Were o~~'~=~iently comprehensive' to equip Ms. Hawley· with the knowledge to pperate the system effectively. Ms. Hawley had to rely on her own note taking capabilities to accurately report the steps req.pired to complete a' task. Ms. Hawley. was not. taught how the system works and why. Ms. Hawley wa~ only taught to copy steps that she saw to achieve a specific result. As a result, although she was able to enter the receipt, number, and make entries to the data base during~ the training session, when 'sh.e was left to her own resources she had difficulty doing so. Ms. Hawley did not understand the system. If Ms~ Hawley.keyed in the wrong key or 'made a typographical error, she was not able to find the source of the problem and correct it. Ms. Hawley had to call upon Ms. Hesselman.or Mr. Habib for assistance, since t.~ey had an overall knowledge of the system. Ms. Hesselman had been working with the system for many months and her special skills and knowledge enabled her to work with computers. MS. Hesselman helped Mr. Hab~b set up the system. Ms. Davidson also helped had Mr. Habib. set dp some of the forms,lin the /p~evious fall. In order for Ms. Davidson to help Mr. Habib, Ms. Davidson had to .have had a basic knowledge of-the System. Ms.. Hawley did not have-this exposure.' We accept'Ms. Hawley's evidence that there, were mahy times that she attempted to access the system and.found the .system down. Some of the times may have been due 'to her own fault as she ~ad difficulty logging on and off the system. Her' inability to d° so created problems for the others as well. Ms.. Hawley. did not understand the system and could not 'rely on manuals to help her resolve her problems, as no Page 61 useful manuals were available to her. There were only technical computer manuals. They ought to have been made' available to her. When the Sys%ems ~Opera%ionai' Review Committee reviewed the new system it specifically addressed this problem and recommended that-a Quality Review Board be established to address information systems and to ensure that the applications' are properly completed with acceptable 'documentation using the proper procedures. We find that Ms. Hawley attempted to meet the goal to issue the licences and applications notwithstanding her inability to do so. The performance appraisal dated February 26, 1988, referring to the performance interview on February 19, 1988, said that'three quarter of the receipt numbers had been entered and approXimately one half of the address changes had been made. Ms. Hawley requested a week of uninterrupted time to enter the data. This is consistent " With a person who is given .a simple task and is unable to understand how to do it. .When the system functions and is used by ~hose who are capable of using it, then entering data is'not a complex matter. However, as Ms. Hawley testified, ~ she had difficulty using the computer and needed time to follow the various steps. The March 21, 1988 performance appraisal acknowledged that the bulk of the licences had been entered. Although Mr. Palonen led David Johnstone to believe 'that Ms. Hawley had assured .him that the licences would be issued by Friday, March "25, I95~, we believe that this was Mr. Palonen's target date.' Although MS. Hawley had entered some of the applications, Ms. Hawley had Ms. Hesselman enter the majority of the licences, as MS. Hawley was not sure about the system. Ms. Hawley had never issued a licence and she was wary of the difficu],ties that might occur when 'printing the licences and the accompanying forms. ~Page 62 We do not ac'cept Ms. Hawley's ·evidence that she was not ·aware of the March 25th deadline. Although Ms. Hawley was ill on ~a~~ 99, 1988, she =++~~ Po .... ............... ~?~ ~ m .... the March 25, 1988 deadline by assembling the material .with Ms. Davidson. Ms. Hawley 'then presented a memorandum on the status of the licences on March 28,' 1988. ' Mr. Paloneh called the meeting on March 28th and' used Ms. Hawley.'s memorandum as an agenda. Ms. Hawley was only there for a sho'rt ·time as she had to attend a second step grievance meet.ing. Therefore, Ms. Hawley was not there to be able to either defend herself or to -learn what was the source of th~ problems .or how to correct the errors, The working environment made it exceedingly · difficult to learn the .program., Ms. Hawley could n6t turn to Ms. Hesselman for help. .There was no evidence that Ms. Hawley was responsible for the poor relationship. The erosion of the working environment stemmed from Mr. Palonen's direction to Ms. Hess~lman and to Ms. McLeod as ~arly as january. 1988, to take notes aboUt MS. Hawley, as. Ms. Hawley" had indicated that she was going to grieve her performance- appraisals and Mr. Palonen knew of other grievances that .she had instituted. Mr. Palonen had concluded that 'Ms. Hawley was litigious and he wanted his department to be prepared. In his desire ~o succeed on the grievances, he forgot about the purPose of the work group and the necessity to' create a good working environment to. ensure productivity. In co'ncluding that Ms .· Hawley was being insubordinate, Mr. Palonen relied in part, on .information from Ms. Hesselman. Ms. Hesselman's memos .showed that· she was watching MS. Hawley closely and was looking for · everything Ms. Hawley did wrong. Page 63 Ms. Hesselman prepared a detailed memorandum' for Mr. Palonen on Ms. Hawley's activities and inabilities on M~rch 29, 1988. The memorandum was misleading. Ms.. Hesselman knew that Ms. iHawley had left work durinq 'the meeting on the previous day, yet, Ms. Hesse!man's memorandum also indicated that MS. Hawley had not been able to get onto the symbiont. Ms. Hesselman als0 suggested in the memorandum that 'Ms. Hawley was not reading her electronic mail and based her conclusions on finding six new mail messages 'in Ms. Hawley's account by 10:00 a.m. Ms..Hesselman's testimony also indicated that she was condescending towards Ms. Hawley. Her attitude towards Ms. Hawley created many barriers for Ms. Hawley to overcome. The memorandum indicated that Ms. Hesselman was monitoring MS. Hawley closely. At 11:20 a.m. Ms. Hesselman gave her a small amount of work to do - to type five licences that had been missing,~three covering letters and to find a ,missing application. By 1:20 a.m. Ms. Hawley had not done the work, but had t01d Ms. Hesselma~ that she had been interrupted many times. She then began .to enter new licences, and had difficulty doing~ so. -Ms. Hesselman recogni.zed that Ms. Hawley needed help constantly, and then was unable to issue the' remaining licences as the printer was / required for Mr. Rubanski's'Energy Board RepOrts. On March 30, 1988, Ms. Hesselman was monitoring Ms. Hawley's actions and difficulties on a minute by minute basis. Again this memorandum was slanted unfairly against Ms. Hawley. It stated that Ms. Hawley had not yet picked up the computer prfntouts. Yet, the computer could not be used the previous day, as it was being used-for Mr. Rubanski's work. MS. Hawley could not turn to Mr. Habib for help. Ms. Hawley did not log in. and out properly, with the result that her errors affected o~her~ who'were trying to access ~he system. To alleviate the problem, Mr. Habib curtailed Ms. Hawley's access to the computer to one file at a time. He was arrogant in doing so, with the result that Ms~ Hawley perceived his actions to be directed against her. Hi~ memorandum to her that she was "intentionally abusing her privileges" was inflammatory. Although we accept that Ms. Hawley was not able to log out'properly by March 17, 1988 and that Mr. Habib was acting within the scope of his duties to allow.her only to use one session of the program at a time, his 'methods isolated Ms. Hawley further. When Ms. Hawley was '~uspended,. there was very little left to do on the licences.' .Her difficulties with the licensing were compounded, when she was also assigned tasks which she was not comfortable doing. On March 3~, 1988, the PRDSWPS (PRDS word Processing) was to be deleted and Ms. Hawley had to transfer any documents that she required to.her Decmate 'and to delete unwanted documents. Ms. Hawley had been directed tO do so on March 29, 1988 and March 30, 1988, but She did not start the transfers until after the deadline. Ms. Hesselman's memorandum of March 31, '1988 showed that Ms. Hawley was having difficulty doing this task, and was reiying on Ms. Davidson's assistance. .MS. Hawley 'accomplished this task by the,end of the day. Although Ministry's counsel .took the posit'ion in argument that it was only relying on Ms. Hawley's failure to produce the licences in an accurate and timely mann~r, David Johnstone reviewed MS. Hawley's performance reports, Mr. Palonen's comments and recommendations', which included other areas. Page 65 However, restricting ourselves to the elements in contention, we find that the licensing was not complete by. ~.~3. 'Hawley's suspension date, although what remained to be done or corrected was insignifiCant when considering the totality of the operation. We find that Ms' Hawley had· attempted to meet the target to issue the ·iicences as soon as possible. However Ms. Hawiey's failure to complete the work was in part due to 'Ms. Hawley's inability· to operate the system. Ms. Hawley did not have a strong background in computers', and ought to have advised Mr. Palonen of all the areas that she ~needed help in. However,. we cannot penalize her for failing to do so, .aS she was being subjected to criticism from the staff for not understanding or learning the system quickly.' Furthermore, ·the system was not establishe~ for a Person to easily adapt~ to its requirements. It was being chgnged in the course of its'application for the licences. A Systems Operational Review committee reviewed the new system. As .this committee found that the system was not working properly, we cannot find that all the errors'~ can be attributed to Ms. Hawley. A further significant factor-is the working environment that 'Mr. Palonen had established.· Mr. Palonen was' under pressure to have the licences issued. He admitted that the whole Department was under stress to Complete the licences, to sort out the word processing and to enter old data into the system. In addition, the Department ~also ·had to help Mr. RubanSki prepare for 'an Energy Board hearing. Mr' Palonen passed this stress onto'Ms. Hawley by instructing Ms. Hesselman, Ms. McKeon, ~and Ms. McLeod to check on MS. Hawley to ensure that the work was done. The person with the least experience was being scrutinized, by those with experience. This difficult situation was compounded with the note-taking that had been going on since early January. Page 66 The Union presented Ms Juliet .Webster as' an expert .... rcductzon cf computers in .the workplace. We accepted Ms. Webster as an expert witness in automation and the Use of computers in the workplace.. However, the role of the expert, witness is to provide expertise in areas where t~e board 'is unable to understand issues and facts without an ~expert's assistance. Notwithstanding this role, however, ~he rote of the expert witness is not to supplant the adjudicative role of the' board. This remains so, even though we are not bound by the rubles of evidence. The Board in OPSEU {Khan) and The Crown in Right of Ontario (Ministry of the Attorney General) G.S.B. %1610/84 (Swan) referred to the Supreme ~ourt of .. Canada decision in which that Court eloquently reviewed the role of an expert to consider polygraph evidence by stating: [16] The role of the expert witness was defined in this Court in-R. V. Abbey, [1982] 2 S.C.R. 24; 43 N.R. 30. Speaking for the Court, Dickson J., (as he then was) said at p. 42 S.C.R: "With respect to matters calling f~r'special 'knowledge, an expert in the field may draw inference and state his opinion. An expert's function is precisely this: To provide the judge and jury with a ready-made inference which the Judge and jury, due to the technical nature of the facts, are unable to formulate, 'A~ expert's opinion is admissible to furnish the Court with scientific information which is likely to be outside th~ experience and knowledge of a judge or jury. If on the proven facts a Judge or Jury can form their own conclusions without help, then the.opinion of the expert is unnecessary' (T~rner (1974), 60 Crim. App. R. 80, at 83, per Lawton, L.J.)- It was said in D~vld V. Mag{str~te of the C{ty of Edinburgh= [1~53] S.C. 34, at p. 40, by Lord Cooper: Page 67 ''~Their duty is to furnish the Judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the Jud. qe or jury to form their own independent judgement by the application of these criteria to the facts. Proved in. evid~n6e." The function of the expert witness is to provide for the jury or other trier ~of fact an expert's opinion as to the significance of, or the inference which'may be drawn from proved facts in a field in which the expert witness possesses special knowledge and experience beyond that of the trier of fact. The expert witness is permitted such opinions for the assistance of the jury, Where the question is one which falls within the knowledge and experience of the trier of. fact, there is no ne~d for expert evidence and an opinion will not be received. Our' role is determine ~whether Ms. Hawley's difficulties in learning the Computer system is attributable to her own. lack of ability or to other factors. ~We do not find that the facts or issues so. complex that we have to rely on Ms. Webster's evidence to understand the issues or the facts.' Furthermore, Ms. Webster was only present to give evidence and did not have the benefit.of hearing the other witnesses testify. Ms. Webster did~not have all the facts before her. We have had'the benefit of hearing from'much 'Of the staff in t'he Department and find that the working environment was' a strong factor to consider 'when assessing Ms. ~awley's "capabilities and production and 'it was not merely the result of the introduction'of a fairly new system to an'inexperienced employee. We find that although MS. Hawley was given instructions to produce, the licences, she did not have sufficient training to produce them accurately and efficiently. She was not given an understanding of the system which' allowed her to enter the data accurately on a consistent basis. Ms. Hawley did not~ have an innate Page 68 understanding of computers, .nor did ~she have previous experience that gave her an abi.iity to learn the system without additi~n~- ...... assistance. Notwithstanding these handicaps, Ms. Hawley did try to produce the licences as efficiently as possible. We do not find .that she had any intention to thwart the system', or to slow dow~ the production of licences. Ms. Hawley was limited by her inexperience. Therefore due to the difficulties with the new system, changes in procedure, insufficient training for Ms. Hawley, and the oppressive working .environment,. we do not find th~at Ms. Hawley was insubordinate. 'Therefore this grievance is upheld. Ms. Hawley is to be reimbursed for any lost wages and benefits. Grievance 3 DATE: May 24, 1988 463/88 S'TATEMENT: Unjust discipline and 'harassment through Continuous, unnecessary and unusually lengthy monthly performance appraisals. SETTLEMENT DESIRED: That performance appraisal dated April 21, 1988 be removed from all records. This Performance Appraisal is inaccurate and does not conform to Ministry and Government Policy on Performance. Appraisals. That these monthly Performance Appraisals cease immediately as they are continuous ongoing and unnecessary discipline and continuous harassment. That disciplinary action be taken against .P.A. Pal°hen. That I be awarded any and all compensations due to me. When Ms. Hawley received her March 21, 1988 performance appraisal, she was notified that her next performance appraisa~ meeting would be April 4, 1988. · This review was three and a half weeks after the'last performance appraisal meeting. It was postponed a week to accommodate Ms. Hawley's five day suspension. Ms. Hawley returned to work on April 18, .1988 and the following d~y Mr. Palonen'met Page 69 Ms. Hawley to discuss her performance. Mr. Palonen put his comments in writing in a performance review document dated . ,,~,~e~ raceived the written ~evi~w on April 25~ 1988. We must look to the substance of the appraisal as Ms. Hawley contests its a~curacy and the employer relies upon the events as oUtlined and as testified to, to support the ten day suspension and MS. Hawley's subsequent.discharge. Ms. Hawley claimed that she did not understand the targets and claimed that she did not understand much of what Mr. Palonen meant in his appraisal. 'We cannot accept her. position.. Ir'was not that Ms. Hawley did not understand the performance appraisal, but that she did not-agree with it. This performance appra.isal differed from the March 21, 1988 appraisai in that Mr. Palonen clearly stated the targets that he wanted MS. Hawley to meet. He did not rely on Ms. Hawley having to relate t? earlier performance appraisals and to interpret the earlier targets. The written performance appraisal continues to record Mr. Palonen's view on the status of Ms.' Hawley's work. By Continuing to refer to the headings that Mr. Palonen has used, we now consider the status of her work. .A. General Secretarial Services. There no longer was any problem with the inspectors receiving their copies of correspondence. Ms. Hawley had established a system to ensure that theY. received the mail. Mr. Palonen was still critical of the, number of telephone calls that where forwarded to the switchboard. Ms. Hawley acknowledged that she was unable to answer all the Page 70 telephone calls, but attributed her inability to' the time .required to issue the remaining licences. .. B. Supervisory Functions There was a conflict in the evidence between what Mr. Palonen and Ms. Hawley believed was said over the assessment of the section's needs and the.negotiation of Davidson's hours. Mr. Palonen said that Ms. Hawley said she had-to assess the section's .needs before she could renegotiate Ms. ]Davidson's hours. The March 21, 1988 performance appraisal set a target date of March 25, 1988 for Ms. Hawley to obtain a clear understanding of all the work that Ms. Davidson was doing. Mr. Palonen stated, that Ms. 'Hawley acknowledged that she had not done this, In his view, as Ms.-Hawley had not done this by March 25, 1988, Mr. Palonen set a new target date for April 22, 1988. Ms~ Hawley took the position that she had already provided Mr. Palohen with the information on Ms. Davidson's duties. We find that Ms. HaWley had provided information on · Ms. Davidson;s duties to Mr. Pal0nen' by the March 21, 1988 meeting· Mr. Palonen li?ted the duties that Ms. Hawley had ' reported in the March 31, 1988 appraisal. Once Mr. Palo~nen set a new target date, then Ms. Hawley must be deemed to know that she had not provided Mr. Palonen the information that he was seeking. However, although Mr. Palonen was entitled, to the information, he failed to cohvey what information he was missing ~and what further information he required. His own evidence ~conflicted on whether or not he believed that Ms. Hawley had provided the information. He acknowledged that she only had to give him the information orally, which she did and then he testified that 'the problem was that Ms. Hawley did not give him the information in writing. Page 71 Similarly, Mr. Palonen provided a ~onfusing message over wi'~t had 'to be 'done with Ms. Davidson~s hours. Initially, Mr. Palonen suggested tha~ Ms. Hawley 'assess Ms. Davidson's duties and then renegotiate her hours if 'Ms. Hawley felt that it would help get the work d'one. Ms. Hawley had given a list of Ms. Davidson's duties to Mr. 'Palo~en and had attempted to renegotiate Ms. Davidson's hours-with Ms. · 'Davidson. Ms. Hawley accepted the status quo, as Ms. D'avidson was unwilling· to change he~ hours and the performance· appraisal of March 2t, 1988 indicated that the target was met. Mr. Palonen unfairly.inferred that Ms. Hawley had not renegotiated the hours in this performance appraisal, and.then set a new target for April 22, 1988. C. Filing system- Ms. Hawley agreed that she had not run the test on thc three drawers to see if the files were in order.' Mr. Palonen set a new target for May 6. D. .Computerized Word Processing and Data Transfer Mr. Palonen refers to two new problems tha~ had arisen since the last appraisal, on March 29, 198'8, Ms. Hesselman had advised Ms..Hawley that the word processing system Ms. Hawley had been using,.was to be deleted on March 31, 1988. Ms. Hesselman advised her that she and MS. Davidson would receive new user names. Any information that she needed from the VAX had to be transferred into the Decmate. Ms. Hesselman advised Ms. Hawley the next day that her-new username would be USERUSER.' Ms. Hawley agreed that she had been told to set up a new account, but said that she had not received instructions'.how, to do so. Ms. Hawley had completed the pag8 72 ~' transfer of information, as requested with Ms. Davidson's help. Ms. HawleY said that she had not changed her password as she was confused between a password and a user name. -She did not know how. to change her password as'Margaret McSavage, -the previous secretary, had entered her password for her when she came tb the department. Ms. Hawley'was fortunate that the word processing account that she had been using was not deleted as scheduled, as Ms. Hawley did not transfer the data until March 31, 1988. She worked with Ms. Davidson to do so on March 31, 1988. She did not Change her.password until April 19, 1988. Mr. ~Palonen then introduced another new matter.. He found that certain letters had not 'been typed. MS. Hawley did not accept responsibility for this 'failing. She testified that Ms. McLeod was to have t~ped, them, but did not as she ha~ other .priorities. AS a result,. Mr, Palonen specifically directed Ms. Hawley to check'her mail each.day and assign work to MS. Davidson as required. E. Use of Licenclng Package Mr. Palonen gave Ms. Hawley confusing instructions ' on licensing. He told Ms. Hawley that all outstanding licences had 'been entered while she was away, and she was to issue any new licenees the day.after the 'application arrived. At the same time he asked Ms. Hawley to'complete the Operator files by keying in remaining data such as the contact person. These instruction's were unclear, as all information ought to have .been entered on the Operator files before the ticences were issued. Ms. Hawley did not. disagree with. Mr. Palonen's ins%ructions, although she Stated that it requ'ired.three to Page 73 four days t'o issue a'licence from the date the application was received. Ms. Hawley understood that she was to create a procedure (HELP) manual by typing her notes on .~ystem's operation onto the Decmate. She had not done so. Mr. Palonen set a new target date of May 6, 1992. Mr. Palonen summarized the targets 'that MS. Hawley now bad, to meet as follows: A. General Secretarial Services 1. Ensure that as many as possible of the telephone calls received at .the secretarial switch board are dealt with by secretarial staff. Target date: ongoing. B. Supervisory Functions 1. Provide a report on all duties assigned to Brigitte and obtain a clear understanding of that work. Target date May 6th. 2. Provide a repor~ on an assessment of the Section'.s ~peak time secretarial needs, along with a proposal to schedule Brigitte's work hours. Target date April 22nd. C. Filing System 1. C6mplete a test examination of 3 file drawers of the Well files and provide a report on any- discrepancies in the organization of those files. Target date May 6th. D, Computerized Word Processing and Data Transfer 1. Change.the password on your P.R.P.S. account. Target date 'immediately. 2. Check the P.R.P,S daily 'for mail and messages, clear the work for processing or transfer to the P,R.P.S.A. account. Target date- ongoing. E. Use of,Licencing Package Page 74 . 1. Maintain the currency of the ·package by entering application data on the 'date of its receipt and printing, tke licence on the date of its approval'. Target date - ongoingr 2. Complete the Operato~ Records file .by keying' the remaining data on contact persons, address changes etcetera from the applications. Target date - May.6th. 3. Provide HELP notes for the secretarial entry screens for ~the licencing, program to Ms. Hesselman. Target date - May 6th. We find the meeti'~g of April 19, 1988 that Mr. Palonen recorded in the written "Performance Review" was intended, as in the· March performance appraisal meeting and corresponding report, to be a performance appraisal. It again related to the earliest performance appraisals, was a formalized interview and-there was little discussion. Again neither Mr. Palonen nor Ms. Hawley entered into this meeting with~the intention that they would reach'an agreement on areas that needed to be improved. Nor was there any consensus on the level-of performance of the work that had been done. The performance appraisal was defective as there was no contractual basis for the performance appraisal. There were' many new issues that arose in this performance~ appraisal for which MS.. Hawley had 'no' notice. Comments on transferring data, creating a new passwgrd or re~e~otiating Ms. Davidson's time were new. Ms. Hawley had no notice that she had to confront these~ issues. We recognize that Mr. Palonen can assign these tasks in the course of MS. Hawley's work, but they do not have any pllce in the ·overall goals of a performance appraisal. It would be relevant to an appraisal, for instance, if a general goal was set to understand the system, and these examples were used to show that the goal·had not been reached. / Page 75 Even accepting that the previous targets were. justified, th~e was-little opportunity for ~.~s. Hawley to meet the targets that Mr. Palonen had already set. As Mr. Palonen testified, the department was under considerable stress to issue the licences and to assist Mr. 'Rubanski in p~eparing for an Energy Board hearing. The time required to focus on the licensing and the difficulties with the system made it difficult for Ms. Hawley to deal with the other aspects in the March appraisal. We find that this appra%sal suffers from the same problems as the earlier appraisal, 'in that it. was .not a cont~actuai document that~ both Mr. Palonen and Ms. Hawley were working on. It was imposed by Mr. ~alonen, with little input from Ms. Hawley. New items were pla.ced on the table without any prior discussion or notice. As the Department's primary focus was to issue the licences, there was little time left to perform the other tasks and there'fore Mr. Palonen did not give Ms. Hawley sufficient time to meet the targets, we therefore find that this performance appraisal is contrary to governing standards and is to be removed from MS. Hawley's records and. from any file that relates to Ms. Hawley. Mr. Palonen viewed Ms. Hawley' s work as deteriorating .and reduced the time for~' the next review to t'hree weeks. He outlined factors which he considered to be acts of insubordination, and warned Ms, Hawley that failure to improve could result in termination. Ostensibly, Mr. Palonen offered to discuss the requirements or provide additional training. As in the March 21,. 1988 performance appraisal, this appraisal is disciplinary in tone. However, .again, as the employer 'is not relying on the appraisal as a form of discipline, we do not have to consider whether the appraisal can .remain in MS. Hawley's file for that purpose. Page Grievance 4 DATE: June 15,'1958 630/88 STATEMENT: I grieve against continued harassment through unnecessary and unusually lengthy and so called PerformanCe Appraisals to which I. have been subjected for a 10ng period of time. Mr. Palonen has initiated disciplinary action through faire accusations arid has grossly misused the Performance Appraisal process in his efforts ' to put me out of work. SETTLEMENT DESIRED: That disciplinary action be taken against. P.A. Palonen for misuse of the Performance Appraisal process. My rights as a government employee be respected as accorded by .the Collective Agreement. Mr. Palonen apologize in writing for the shabby treatment he has subjected me to. That I be awarded any and all Costs due to me. That Performance Appraisal Review dated June 13, 1988 be removed from all records. That these continuous PerfOrmance Appraisals cease immediately. Ms. Hawley was Scheduled to have her next performance review on May 10, 1988. As Ms. Hawley was ill from May 2, 1988' to May 25, 1988, Mr. Palonen advised her on her return to work that the performance review 'meeting would be held on June 3, 1988. Mr. Palonen again followed the same format. He assessed whether Ms. Hawley m~t the targets set out in the April 21, 1988 performance appraisal. When he produced the written performance review on 'June 13, 1988~ he referred back to the.April 21, 1988 appraisal when considering whether Ms'. Hawley met the targets. Mr. Palonen accepted that Ms. Hawley had met .some of the targets. She had given him a list of a proposed schedule for Ms. Davidson, had changed her password, and had entered licence applications and issued licences 'as they were received by the department. In his view, Ms. Hawley had partially met'the target to handle all incoming calls. In Page 77 all other respects, Mr. Pa!onen saw the targets as not being met. A. General Secretarial Services Mr. Pa'lonen recognized that therLe had been some improvement in responding'to the telephone calls after the last performance review, but the improved level had not been maintained when Ms. Hawley returned to Work after her illness. Ms. Hawley explained that she was catching up on the work she missed during her absence. A new ~ssue appeared. Mr. Patonen reported that Ms. Hawley stopped sending covering letters to operatOrs along with the drilling permits~ The report inferred that this had been discussed earlier and she had not heeded it. Ms. Hawley cla~imed' that Mr. Palonen told her not t~ 'send covering letters to the inspectors and to the lab. The parties agreed that this probiem was a matter 'of miscommunication. It was corrected after it was brought to Ms..Hawley's attention. B. Supervisory Functions Ms. Hawley'sent Mr. Palonen a memorandum of a proposed schedule for 'Ms. Davidson'.s hours on May 26, 1988. It did not increase Ms. Davidson's hours, but rearranged them. As requested by Mr. Palonen, Ms.. Hawley had discussed and approved them with Ms. Davidson. On May 30, 19~8, Mr. Palonen 'told MS. Hawley that "'any change had to be done properly". Mr. Palonen explained that he meant it had'to be approved by Human Resources and by the employee. Mr. Palonen also found that Ms. Hawley had not provided a report on the department's peak hours needs as he had targeted. He. noted however,, that Ms. Hawley believed the list that she had provided him satisfied his requirement. Page 78 Mr. Palone'n introduced, as a new issue, a conflict ove~' vacation times. Mr. Palonen suggeste~ in the report that Ms. Hawley resolve it with Ms. Davidson. C. Filing System Ms. Hawley acknowledged that she had'not tested the filing system for the Well files. D. Computerized Word Processing and Data Transfer Mr. Pal°nen again complained that Ms Hawley was not checking 'and processing her mail. Ms. Hawley denies discussing this topic, but admits that she may have missed a day when she came back. E. Use ~f Licencing Package Ms. Hawley agreed that the discussion on the status on the licences .and . entry of remaining data on the applications ·was accuratel~ reflected in the performance appraisal. She.had entered and issued licence applications as they~ ·arrived. Ms. HawleY testified that she did not check to see if all data was in the operator files, as she believed that Mr. Palonen had told her that it had been done.~ Ms. Hawley -had not done the procedure (HELP) ~anual. Ms. Hawley claimed she only had rough notes and Mr. Palonen claimed that she said that she had no notes at all. Two further new items arose. Mr. Palonen advised Ms. Hawley that he needed three days notice if she was going to be absent for grievance meetings. Page 79 Mr. Palonen also.chastised Ms. Hawley for not acting on two urgent matters,' processing two Well Permits fcr consumer's Gas and processing a licence for Canex. While Mr. Palonen recognize~, that Ms. Hawley was away on May. 22, 1988, he alleged that she neglected these duties. We again find that Mr. Palonen intended this meeting and report to be a formal performance appraisal~ There was no change in the system'or method used to assess and evaluate Ms. Hawley's performance. It too raised new matters, and reflected day to day 'assignments and were not in accordance with any overall goal. Mr. ~P~lonen again did not clearly commun'icate what'he wanted Ms. Hawley to do to meet the standards. He did not provide' her any measurable standards against which to measure her progress. We therefore find that the performance meeting of June 3, 1992 Which was reduced to 'writing in a report dated June 13, 199.2 was intended to be and ~was a performance appraisal. This performance appraisal contravened governing principles and standards, and is to be removed from all. of Ms. H~wley's files and any file relating to Ms? Hawley. Although the grievance sought an apology from Mr. Palonen and disciplinary action against Mr. Palonen, the Union'properly did not press this claim. This grievance is upheld. Grievance 5 DATE: June 30, 1988 667/88 STATEMENT: I grieve Sat I have been unjustly suspended from my job ~r ~e ~llowing pe~od: June 29, June 30, 1988, July 4, 6, 7, 8, 11, 12, 13 and 15, 1988. July 5 and 14 to be considered as being in anendance due to grievance hearhhgs~ This is wi~out pay. This is Page 80, discriminatory and unjust discipIine imposed by management in continuation of ongoing harassment I have been receiving for some time in order that management continue in their attempt in actions to put me out of work. SETTLEMENT DESIRED: '~ That this suspension be rescinded and I be reimbursed for all losses,; benefits, salary, interest, costs, etc. and any and all compensations due to me. That management of the Ministry of Natural Resources- be reprimanded. Mr. Palonen advised Mr. Beecher, the Acting Regional Director, in a memorandum dated June !7, i988 that Ms. Hawley's work had not improved. He claimed that Ms. Hawley was no longer co-operating and had failed to answer questions about her job. She failed .to comply with performance targets and had to have·c6ntinuous supervision on short term tasks. Mr. Palonen relied on Ms. Hawley's failure to log onto the computer daily, failure to'enter licence data for new licences when they arrived, and failure to enter all ' the data for the current year. Mr. Palonen recommended Ms. Hawley be suspended for ten days. Mr. Beecher reviewed Mr. Palonen's report and~Mr. Palonen's recommendation. Mr. Beecher accepted Mr. Palonen's position and advised Ms. ·Hawley on June ~6, ·1988 that he. was suspending her for ten days for continued insubordination, in failing to follow her supervisor's instructions and failing to complete her assigned duties. The allegation of "continued insubordination" was founded primarily on~ Ms. Hawley's performance appraisal of June 3, 1988 although it was linked to the'April 21, 1988 written appraisal. The April 21, 1988 Performance appraisal clearly assigned the tasks that' Ms. Hawley had to attend to. We accept Ms. Hawley's position that she did not believe that there was more to do on the Operator files, as Page 8I she understood that they'were done. Mr. Palonen had .told Ms. Hawiey that the remaining licences, had been issued in her absence, and therefore it followed that all remaining data h·ad been ·'entered. However the 'other tasks .assigned were within the scope of Ms. Hawley's duties, and within her capabilities, but she chose not to try to complete the tasks. Ms. H~wley's'absence would have created an increase in the work that had to be done. However~ the main function, that of issuing the licences had been completed. Even though there had only been fifteen working days since the last review, Ms. Hawley had enough time ·to attend to the other tasks had she so desired. Ms. Hawley did not log in daily. Mr. PalOnen noticed that when he checked her computer on MOnday, May' 30, 1988, Ms. Hawley's last log in was the Wednesday before. Ms. Hawley had no adequate explanation for not logging in. Mr. 'Palonen said that Ms. Hawley. did not want to provide a detailed list of Ms. Davidson's duties as- she . considered herself as having done it. Ms. Hawley forwarded a proposal for Ms. Davidson's. hours in response to the April 22, 1988 target on May 26, 1988. However, Ms. Hawley did not~ make a report on the section's peak hours needs as requested. If Ms. Hawley had felt that there was insufficient time to do. her work, rearranging Ms. Davidson's schedule if possible, or showing Mr. Palonen the department's needs.and requirement- for more labour would have been in her interest. In this situation it was not only part of Ms. Hawley's assigned wor~, but it was' in her own interest to respond and she did not comply. This refusal is indicative of a .problematic attitude. Ultimately on June 17, 1988, 'Ms. Hawley completed testing the Well files and provided a m~mor~dum to Mr. Page 82 Palonen on June 24, 1988. There was no explanation why it' could not have bean done earlier. Ms. Hawley had not provided the HELP. notes, nor had she given any satisfactory explanation. Althou'gh she may have claimed that she was incapable of doing so,' she also misled Mr. Palonen by sayiqg that she had notes, and'then she did not have notes. Ms. Hawley made no attempt to' try to meet the target. If an employee is assigned a task that is within .the scope of the employee's position, the employee must do the task to the ·best of the employ'ee's ability. The common rul~ of "work now, grieve later" was developed to allow production to continue while providing a right to question and challenge an alleged contravention. As stated in U.S.W. and~ Lake Ontario Steel Co. Ltd. (1968) ~19 L.A.C. 103 (Weiler): ...an industrial plant is not a'debating society. Its object is production. When a controversy arfses, production cannot wait of the exhaustion of ' the grievance procedure. While that procedure is being pursued, production must go on. And someone must have the·authority to direct the manner in which it is to go on until the controversy is settled. That authority is vested in supervision. It .must be vested there because the responsibility for production is also vested there'; and responsibility must be accompanied by authority. It is fairy vested there because the grievance procedure is capable of adequately recompensing employees for abuse of authority by supervision. The office environment is no different·than that of an industrial plant. 'Ms. Hawley's complaints were ~irected against the performance appraisal, system. She had the right to grieve them, which she did. We have found that her grievances on these accounts to June 3, 1988 as valid. However, although in hindsight they were valid and Ms. Page 83 Hawley's complaints were justified, they do not give her the right to decide'their validity within her own mind at the time and react by chaiienging the aushorisy of management, either through an aggressive and challenging atti{ude and demeanor or by choosing'not to do the work. As in the case of Re Douglas Aircraft Co'. of Canada and United Automobile Workers (1972) 2 L.A.C. (2d) 56 (Wei!er), the refusal to follow the instructions of super%ors , unless the instructions are either illegal or dangerous, is unjustified. Ms. Hawley's situation does not fall within the exception. We find that Ms. Hawley was. insubordinate -by intentionally failing to complete her assigned tasks. Ms. Hawley's reaction and lack of attention to her job was wrong ,and was a serious matter. We find that Ms. Hawley's intention to complete the'tasks was 'diminishing and that she . was developing an attitude of challenging Mr. Palonen's instructions. On June 3, 1988, Ms. Hawley complained to Mr. Patonen that he kept changing his~ instructions to her and therefore asked Mr. Palonen to put'his instructions to her in writing. Although we fault Mr~ Palonen on many occasions ~for not communicating clearly what he wanted, there is an obligation on an employee, if' the employee does not understand what is required, to seek clarification. Ms. Hawley met with Mr. Palonen each day, but refused to seek any clarification of instructions. She chose instead not to do the work. Ms. Hawley's request fOr written instructions indicates a breakdown in the working relationship and takes on the appearance of a challenge to Mr. Palonen's authority. Ms. Hawley had been inappropriately suspended for five days, and therefore there was no preceding discipline. This therefore becomes a first offence. Although there may be occasions where discharge or a lengthy suspension is justified for insubordination, in this situation Mr. Palonen's attitude to Ms. Hawley must be considered. He was / 'Page 84 · V h direct rsuperior and' made no attempt to direct her. :Instead,~ he chose to put M~. 'Hawley through a series ~of gruelling performance apprais'als, which increased the pressure' on Ms. Hawley as' there was little time to work between them'. They created~ further pressure as 'they..were not performance appraisals, but were written commentary on Ms. Hawley's day to day tasks, that then formed part of her work~ record. Therefore Mr. ?alonen was contributing to Ms Hawley's perception of harassment. 'The employer had just cause to discipline Ms. Hawley for her insubordination. Howe~er, Mr. Palonen's attitude was not justified and was not fair to Ms. Hawley, and must be taken into consideration when assessing the penalty.. In the~e circumstances, we substitute a five day penalty, in the exercise of our authority' and under section 19 (3) of the Crown ~mployees' Collective Bargaining Act %ch states: whiCh states: 19(3) Where the Grievance Settlement Board determines a disciplinary penalty or dismissal of an employee is.excessive, it may substitute such ~other penalty for the .discipline or' dismissal as it considers just 'and reasonable in all the circumstances. Grievance' 6 DATE: August 17, 1988 751/88 STATEMENT: [ grieve that I have been unjustly: disciplined and harassed, threatened and have received many derogatory remarks, discriminated against and singled out to be appraised contrary to alt governing principles and standards of performance appraisals on a continuous and ongoing basis,~and denial of good working conditions in the work place. Page 85 SETTLEMENT DESIRED: I want justice. My performance to be appraised in accordance ~o the policy and standards of the Ontario Government for Performance Review and the~Pefformance System in the Minisu-y of Natural Resources Forms A and B. Harassing tactices (sic) should be stopped 'immediately and that these Pefformafice Appraisals cease immediately. As this is something like grievance #I5, I want the wisdom of management assessed. That P:A. Palonen and other management be reprimanded for their actions. That I be awarded any and all compensations due to me. The Performance Appraisal dated .ruly 26, 1988 be withdrawn and removed from my file. Also that the Performance Appraisal discussion of August 16, 1988 be cancelled and any written documentation of this appraisal be treated as invalid because .this was conducted in a discriminatory manner and in violation of government standards policies and practices. One week after Ms. Hawley returned to work after her suspension, Mr. Palonen set up a meeting to reset the targets. At Ms. Hawley's request, the meeting was postponed to Monday July 25, 1988. The meeting lasted one and a half hours. Mr. Palonen claimed that Ms. Hawley was belligerent and had no intention of performing the work. Mr. Palonen took notes of the meeting which he incorporated into a memorandum to Ms. Hawley dated July 26, 1988. He provided Ms. Hawley with a copy. Ms. Hawley had understood that the purpose of the meeting was to deal with the targets that had been set up in the'earlier performance appraisals, and to assign her work while Mr. Palonen was on his vacation. Ms. Hawley did not grieve this report until she was told on August 17, 1988 that the meeting of July 25, .1988 was a performance review. Ms. Hawley alleged that the memorandum constituted a performance appraisal and again was part of the ongoing harassmen~ by Mr. Palonen. The format of this report is different from the other performance reports. We find that it is a directive as Page 86 ' to work to be done and is not analyzing Ms. Hawley's work. This memorandum provides clear instructions' on the work to be. done. T~e. memorandum recognizes that !some of .the targets have been met, burl sets a target date for the completion of al~ the work. Ms. HaWley was to provide a report on Ms. Davidson's duties, to provide'an assessment of t'he Section's peak hours and times when two secretaries are required, provide a copy of the test on the three file drawers, complete the Operator records and create the HELP -manual by August 16, 1988. The memorandum also advised Ms. Hawley to ask Ms. Hesselman'or Ms. MqLeod for help if it was needed. Ms. Hawley claimed in her letter to Mr. Palonen on A~gust 17, 1988 that she learned' the preceding day that the meeting of July 26, 1988 was a performance ~ppraisal. We find that the document dated July 26, 1988 was not a performance appraisal, but was a reassignment of the target dates for the tasks that Ms. Hawley had' to do. To h01d a meeting to. discuss work does not make it a performance appraisal or review. When .reviewing the document's content and the manner by which the direction was given we-find that it was not' a performance.appraisal nor a.performance review and that it was properly within t~'e job functions of a supervisor. These instructions are properly within the scope of management's right's and 'not within our jUrisdiction. Notwithstanding how Mr. Palonen referred'to the meeting when 'h~ discussed the meeting of August 16, 1988 with Ms. Hawley, the content of the memorandum is' 0nly that of instructions and target dates. Therefore'this grievance fails. Page 87 ' -'i~' Grievance 7 DATE: August 22, 1988 751/88 STATEMENT: I grieve that I have been unjustly: disciplined and harassed, threatened and have received many derogatory remarks, · discriminated against and singled out to be appraised contrary to all governing principles and standards of performance appraisals on a continuous and ongoing basis, and denial of good working conditions in the work place. SETTLEMENT DESIRED: I v~ant justice. My performance to be appraised in accordance to the policy and standards of the Ontario Government for Performance Review and Performance System Of the Ministry of Natural Resources Forms A & B. Harassing tactics should.be stopped 'immediately and that these Performance Appraisals cease immediately, Based ot~ the numerous grievances filed, I. want the 'wisdom of management assessed and that P.A. Palonen and other management be reprimanded for their actions. That I be awarded any and all compensations due to me, That Performance Appraisal dated August 17, 1988 be withdrawn and removed from' my file.. Ttds Performance. Appraisal was a/so conducted in a discriminatory manner and violation of Government standards, Policies and Practices and therefore is invalid. Mr. Palonen and Ms. Hawley met:on August 16, 1988 to review Ms. Hawley's progress. Mr. Palonen documented the meeting as a "Performance Review", dated August I7. 1988. He sent copies of this repo.rg tO Human Resources and to Payroll. Mr. Palonen did not consider this meeting nor report as a performance appraisal. Mr. Palonen testified that Ms. Hawley was belligerent, laconic, and uncooperative. Mr. Palonen -testified that Ms. Hawley took copious'notes, to the degree that Ms. Hawley could not remember the question by the time that she was finished note-taking. Ms. Hawley both denied taking notes and admitted taking notes saying that she took notes "out of total frustration." Page 88 Due to the atmosphere that was present and the fervent note-taking ·on all parts, the .knowledge that Ms. Hawie~ had of th~ arbitration system, and the usefulness of notes of the situation, we find that on a balance of p~obabi~ities, Ms~ Hawley did take notes of th~ meeting. Mr. Palonen's position was that most of the·targets set on April 21, 1988 had not been met. The filing was the only task that had been accomplished. Mr. Palonen did not consider that Ms. Hawley had given'him a complete report on Ms. Davidson's duties, nor had she progressed in determining the section's peak need times. She had only reviewed twenty Operator files to ensure that all the-data was entered and was correct. Nothing had been done to ~reate a procedure manual. Mr.. Palonen instructed .Ms. Hawley to prepare a memorandum ~o the staff explaining the filing system and the care that had to be taken, and to verify all Operator files and enter remaining data the next day. He instructed Ms. Hawley to spend the following week when Ms. David$on would be present to prepare the manual for their next meeting on August· 23, 1988. Ms. Hawley was to present the manual or h~r notes, if she was not able to Prepare the manual. Mr. Palonen would not allow MS. Hawley Go work in the evenings to prepare the'manual. Ms. Hawley's position was that she had/ done most of the work. 'She had completed the list of Ms. Davidson's duties, had advised Mr. Palonen about the~ peak times and had tested the filing System, Ms. Hawley's evidence o~ the Operator files was inconsistent. Ms. Hawley admitted that she had not verified all the Operator files. She had worked on some of the files, verifying the information· on the screen against the Page 89 information on the printed form. Ms. Hawley said that she could not complete the files as she did not know what new information ~ad been given to Ms.. Hesselman, Ms.: McLeod,- Ms. McKeon and Ms. 'Davids~n in her absence. At .the same time, 'Ms. Hawley also said she had forgotten how to enter new information such as the. contact person. Ms. Hawley said that Ms. Hesselman would not help her do the work, if asked, but rather Woul.d take it upon herself Co do it. Ms. Hawley also explained that she did not have sufficient time to complete her work as Ms. Davidson had been on'holidays Ms'. Hawley agreed she had not done the procedural manual. As Ms. Hawley-had been away for a week, and had not been able to complete the work by August 10,' 1988, MS. Hawley asked for overtime during the weekend of August 13,-1988, but · was not allowed to do the overtime work. We find that the. "Performance Review"' dated August 17, 1988 was intended .to be a performance appraisal and was contrary to governing Standards'. Although Ms. Hawley knew the targets .that she had to meet, she did not know that it was to 'be a performance appraisal. The memorandum Of July 26/ 1988 spoke only. to' meeting, to review targets and to consider the work assignments, Therefore Ms.' Hawley did not have notice of the true intention of the meeting. Although, the written performance review could be considered a report on a meeting as alleged by Mr. Palonen, when looked at in isolation', when considered with the others, it followed the Same formal format. It was labelled 'a performance review. If this were not to have an impact on the appraisal of Ms.' Hawley's performance, copies would not be sent to Human Resources, and to Payroll. We order this document, to be removed from any file relating to or referring to Ms. Hawley. Page 90 Mr. Palonen set a new date to review Ms. Hawley's work for August 23, 1988. Mr.'Palonen again followed the same format for the meeting and the resulting report dated August 30,. 1988. Ms. Hawley grieved the performance appraisal' on September 1, !988. Grievance 8 DATE: September 1, 1988 893/88 STATEMENT: I' grieve that I have been unjustly 'disciplined and harassed and singled out to be appraised contrary to all governing principals and standards of Performance Appraisals and subjected to unlengthy processes. These kind of tactics and abuse of management's power amounts to continuing and ongoing harassment in order to put me out of work and denial of good working conditions in the work place. SETTLEMENT DESIRED: I'want justice. That Performance Appraisal dated August 30, 1988. be withdrawn and removed from my file. That my performance be apprals, ed in accordance to Policy and Standards of the Ontario Govt. For Performance Review and the Performance System in the Ministry of Natural Resources Forms A& B. Harassment to be stopped immediately and Performance Appraisals ceased immediately. That the wisdom of management be' assessed and that P.A, Palonen and other management be reprimanded for their actions. ! be awarded any and all compensations due to me. Mr.' Palonen documented the meeting of August 23, 1988 in a ."Performance Review" dated' August 30, 1988. At the commencement of. the meeting on August 23, 1988, Ms. Hawley provided Mr. Pal0nen a report on the items that Mr. Palonen had targeted' for the meeting. Ms. Hawley resubmitted the list of duties that Ms. DavidsOn had prepared Page 91 ' ~', which MS. Hawley had submitted previousl'y on Ma~ch 2, 19'88. ' Ms. Hawley also proposed that the seLtion needed one secretary and one clerk typist and that Ms. Davidson's hours be scheduled according to Ms. Hawley's proposal of May 26, 1988, 'and increased by. three and a third to three and three quarter hours to do the section's work, including Mr..Habib's projects. Ms. Hawley believed that this assignment was complete. Ms. Hawley advised Mr. Palonen that the Operator files were now complete, the file drawers tested and she provided him her rough not'es for the manual. Mr. Palonen still considered that the report on Ms. Davidson's duties incomplete. Mr. Palonen told Ms. Hawley to~ refine what was required by the 'section. Mr. Paionen was critical of the way Ms. 'Hawley had reviewed the Ope:ator' files. On August 17, 1988 and August 18, 1988, he had stood by her desk and had timed her with a stopwatch. He expected ~hat as it took Ms. Hawley approximately fifteen seconds to review a file, she ought to have completed the task in approximately two and a, half hours. He concluded that she-was not devoting all her time t~o the applications and was too slow. Ms. Hawley defended her position by stating that she had had been unable to complete the work earlier as there had not been enough 'time to enable her to schedule other ~eople to cover other work, and the VAX had been down.. Mr. Palonen directed Ms. Hawley to complete any backlog of work that.she might have,, and .to'turn her mind to new projects .that she should do. Again we find that Mr. Palonen intended the meeting to be a performance appraisal and that the appraisal is ?age92 contrary to governing standards. Mr. Palonen testified that his notes which were labelled "Performance Review" was only a report on the meeting, yet at the same time he stated that he was appraising Ms.. Hawley on the targets which he had previously set. There was no attempt to meet any contractual requirements of a performance appraisal by either Mr. Palonen or MS. Hawley. Mr'. ?alonen did not intend to consider any long range constructive goals. Although he directed MS. Hawley to.consider what long term projects in which she might be interested, this ·direction was a .farce.~ Mr. Palonen acknowledged that when he ~eturned from his vacation, he had decided to fire Ms. Hawley. Simultaneously with preparing this performance appraisal, Mr. Palonen was preparing a comprehensive report to David Johnstone recommending MS. Hawley's discharge. The performance appraisal was yet. another step to document Mr. Palonen's position and to bolster his recommendation to fire Ms..Hawley. Ms. Hawley was not given notice that the meeting was intended to be a review of her performance, although it could certainly be expected from the many earlier meetings. Ms. Hawley's attitude was not cooperative. She said she was withdrawn during thi~ meeting. Her apathy was reflected in Mr. Palonen's performance appraisal. Mr. Palonen's appraisal stated that Ms. Hawley took copious notes and threatened that "his day would come". Although Ms.-Hawley denied threatening Mr. Palonen, in light of her attitude, her many letters to David Johnstone, Mr. Beecher and others, and expressions that she used during the· hearing, we find that /the attitude and threat that was reflected in the appraisal most likely occurred. Page 93 As this performance appraisal was contrary to governing principles and 'standards, we order that this document be removed from any of Ms. Hawley's personnel files or any file that may relate to Ms. Hawley. ~- Mr.. Palonen met with Ms. Hawley on August 31, 1988 to review'her performance agai~%~ Mr. Palonen provided Ms. Hawley with a copy of his comments on her performance review, which was dated August 30, 1988. He then reviewed iher work and concluded the meeting by telling Ms. Hawley that he was recommending'that she be discharged as her. work did not reach' the 'minimum standard' of acceptability. Mr. Palonen documented his' comments in a memorandum to file re "Performance Review - Ms. Ms. Hawley." .dated September 2, 1988. A copy of this document was not forwarded to Ms. Hawley. -This memorandum is different from the others in that it attempted to record the conversation between Ms. Hawley and Mr. Palonen verbatim. Mr. Palonen commented that Ms. Hawley also took extensive notes. Ms ' Hawley' s evidence was evasive' and contradictory. Ms. Hawley stated that she did not recall much of 'this meeting, but it -was similar in tone to the others. Again 'Ms. Hawley both admitted and denied taking notes. Ms. Hawley admitted that she may. have made the comments which were attributed to her and l'ater denied that she suggested that Mr. Palonen was~trying to put her out of a job. We accept Mr. Palonen's memorandum as a reasonably accurate rendition of the course of events, as it corresponded materially .to Ms. Hawley's testimony. We accept that she took notes, but they were not produced. We also accept that the comments allegedly quoted in the memorandum were said by Ms. Hawley. The comments were co'nsistent~ with the attitude Page 94 which MA. Hawley had, and she did believe that Mr. Palonen wanted her out of the job. We find~ that by August .30, 19.88, Ms. Hawley still had not performed her assignments satisfactorily. Accepting that the standards, save and except for the procedure manual, that Mr. Paionen had set for Ms. Hawley were reasonable, Ms. Hawley had not met these standards. Mr. Palonen did not find that Ms. Hawley's report to him of August 31, 1988 setting out her assessment of the Department's peak times would enable him to determine whether Ms. Davidson's hours had to be changed. We must agree that it would not be sufficient, and although .the readjustment'of Ms. Davidson's time could have helped Ms. Haw!ey,. she was not. prepared to help herself. Mr. Palonen was not satisfied with the status of the Operator files. He had had Ms~. McLeod review'some of the Operator files for accuracy. On August 26, 1988, Ms. McLeod made a random check of 22 Operator files and found nine errors. The mostZ., common error was ~he lack of mailing addresses. Ms. Hawley's position was that the Operator files were complete; however she had forgotten the contact person. Once again Ms. Hawley had not completed .the Operator records on file accurately. She did not input the individual operator's name in all cases by surname as required, and had not ensured that the current mailing addresses were inputted. It was quite clear that Ms. Hawley still did not know how to enter =the contact person and t~e contact person's address. Ms. McLeod explained that the user had to move to the next screen to enter this information. Ms.. McLeod's accbunt of the procedure provides an explanation Page 95 why MS. Hawley'still had not inputted all the information. She did not understand what ha'd to be done and how t~e system worked at this late date. Ms. Hawiey's used a mailing last that she received fro~ Ms. McLeod, and manually typed the addresses onto envelopes for maiiinq li'cences to operators. She ought to have used the information that was in the data base, which would then be printed on a form that could then be inserted into a window envelope. " Ms. Hawley finally had produced her notes for the HELP screen. Mr. Palon6n gave them to another secretary to test whether they could be used to' produce licences. They could not be' used. There were five or six serious flaws that prevented the operations from being completed as directed. Two flaws caused the system to log out. Ms. Hawley gave Mr.. Palonen further details on work that c'ould be done in response to his request for further assignment of duties'. We accept that the comments 'articulated by Mr... Palonen and attributed to Ms. Hawley were said by Ms. Hawley. We find that MS. Hawley"s attitude was insolent, unco- operative and rude. Her response to further refinement of Ms. Davidson's assignments was sketchy and her-response to new projects unsubstantiated. Only the filing was accomplished without any problem. Mr. Palonen gave his lengthy memorandum, dated September l, 1988 to David Johnstone advising him that he recommended that Ms. Hawley be discharged as she was unco- operative and unwilling to d0 her assigned' tasks. He gave David Johnstone his appraisal'of Ms. Hawley's work from the time she started in the department. Mr. Palonen suggested that problems surfaced as early as october 1987. Page 96 Mr. Palonen's summary of the problems were similar to his performance. ~eviews. Mr. Patonen explained that Ms. Hawley had received extensive training, had been given work that she ought to have_ been able to do, and 'reasonable targets to accomplish this work. When the targets were not attained, Ms.. Hawley received further training. By April h~ felt that Ms. Hawley's work was deteriorating and he suspended her for five days. A further 'failure to complete her work resulted in a ten. day suspension. The assignments were still not completed by July 25, 1988 and a new target date of August 16, 19S8 indicated that the~e was little progre.ss. Mr. Palonen stated that in his .view, by August 16, 1988, Ms. Hawley had no intention of completing her assignments. To test Whether'this was so, he. scheduled exclusive time for ~Ms. ~awley ·to do two assignments, to complete the Operator files and to completa a proceddral manual. Ms. Hawley failed to complete them satisfactorily. David Johnstone accept e~d' Mr. PalOnen ' s recommendation to discharge Ms.. Hawley. Mr. Watt was not part of the decision making process, but prepared . the necessary letter for David Johnstone's signature. Ms. Hawley· was called to a meeting with David Johnstone. He asked her if she wanted a~union representative present. Ms. Hawley chose not to have a union representat'~ve .present and attended by herself. There was a short meeting with.. David Johnstone, Mr. Palonen and herself, at which she was told that she was being discharged. Ms.. Hawley' protested that Mr. Palonen had not been telling the truth, but Ms. Hawley said that she was told by David Johnstone that it-did not matter. David Johnstone gave he= the dismissal letter and Mr. Palonen escorted Ms. Hawley to her desk while 'she removed her belongings. As a result Ms-. Hawley filed her final grievance. Page 97 Grievance 9 DATE: Septegnber 1, 1988 g924/88 ' ~ STATEMENT: I grieve that I have been unjustly dismissed. SETTLEMENT 'DESIRED: That I be reinstated and awarded the position of Petroleum' Resources Secretary with full pay, benefits and interest retroactive to my date of dismissal. That I be awarded all and any costs due to me. Ms. Hawley was discharged for poor job per'formance starting from January 8, 1988 and for failing to cooperate with her supervisor to ·improve her pe'rformance .to a satisfactory level. The Ministry relied on both culpable and non-culpable grounds in dismissing Ms. Hawley. Ministry's counsel argued that Ms. Hawley's actions.~and inactions and her attitude in the eight months prior to her termination, as supported by the evidence, allowed the Ministry to dismiss Ms. Hawley. Union's counsel urged the Board to consider several defences to the Ministry's ~llegatlons of culpable actions by Ms. Hawley. Union's counsel submitted that Ms. Hawley's training was inadequate, there were misunderstandings qoncerning assignments, there was a heavy workload that was exacerbated by Ms. Hawley's absences for illness and suspensions, and there was a hosti, le work ·environment. Union's counsel further submitted that the Ministry had acted in bad faith towards Ms. Hawley. . Union's counsel submitted that the Ministry failed to meet the criteria established in the Edith Cavell case Page 98 (supra) for nonrculpable performance. Union'§ counsel argued that the Ministry failed to adequately define the level of job performance, required', and 5nerefore failed to communicate that standard to Ms. Hawley. Ms. Hawley was' not p~operly ' instructed on the licensing program and other computer functions and therefore never had a reasonable opportunity to meet the standard~ expected of her. Union's counsel argued that although warnings were given to Ms. H~wley, th'ey were not "reasonable", as they were contained in performance appraisals that were contrary. .to governing standards. Union's counsel submitted that had Ms. Hawley r'eceived', .sufficient training, a written manual; a work environment free of oppressive-actions, .M~. Hawley could have pe'rformed her job. '. The earlier part of'this decision deals in part with the discharge grievance and we now highlight the more relevant facts and findings relating to the discharge. Poor work performance can be treated by the' employer as culpable or.non-culpable. If we find that Ms. Hawley was justly dismissed for non-culp:able performance we need not deal with Ms.' Hawley's culpability as the latter ground is broader than the former ground. The criteria set out in the gd£th C&vell (supra) case has been commonly accepted and applied tO determine if the employer's actions were ~'justified in terminating an employee for non-culpable performanCe. Non-culpable performance places the onus on the employer to prove that the employee has been advised, of what is required, has been instructed how to reach the standards required, has been afforded the opportunity to live T~P to those standards, but is incapable of doing so. That being the case, non-culpable performance infers that the ~employee has done his or her best page 99 to reach the standards required but is unable to do so. The employee is blameless. - \ On the other hand, culPable actions attract discipline and the employer has the onus .,to show that an employee had committed a disciplinable offence and therefore, the employer had just cause to discipline the employee by discharging the employee. Arbitrator Burkett di'stinguished between disciplinary and non-disciplinary~responses on the basis of an employee"s culpability, .by reference ~to the decision of C.U.P.E., Local 79 and City of To~onto Planning Boa~d (December 15, 1976), unreported (Burke~t) in Re American Standard,. division o£ Wabco-Standard' Ltd. and International Brotherhood of Pottery & Allied Workers, (1977), 14 L.A.C. 139 (Burkett) at page 144: The authorities clearly distinguish the disciplinary response and the non-disciplinary response on the basis of the culpability of the employee. If the e~ployer responds to a situation in which the employee· is innocent of culpable behaviour but which nevertheless undermines the employment relationship the response is said to be non-disciplinary. The medical or physical disability cases; see I.N.C.O. and U.S.W. (1975), 8 L.A.C. (2d) 411 (O'Shea) and ~he cases cited therein, Re Consumers Gas and International Chemioal Workers Union, supra, the absenteeism cases; see Re U.A.W., Lo=al 112 and De Havilland Aircraft of Canada Ltd. (1964), 15 L.A.C. 41 (Laskin), Re U. A. W., Local 397 .and Barber-Ellis of Canada Ltd. (1962) 19 L.A.C. 163 (Schiff); Re Pepsi Cola and United Brewery Workers (1972), 1 L.A.C. (2d) 140 (Curtis); Re Atlas Steel Co. and Canadian Steelworkers' Union (1975), 8 L.A.C. (2d) 350 (Weatherill), and those cases dealing with the inability of the 'emplgyee to perform for reasons beyond his control; see -Stew art-Warne = Corporation of Canada and U.A.W. .(unreported)~ (O'$hea) substantiate the proposition that a non- disciplinary employer response, including' dis'charge, can only follow upon the innocent or. Pag~ '1 O0 non-culpable employee conduct which undermines the employment relationship. If on the other hand, the employer!s response is in respect of will'ful or blameworthy conduct~ then the response is said to be disciplinary. " The distinction between disciplinary _and non- disciplinary responses in the area of demotion for unsatisfactory work (a situation'analogous to the one before the Bo'ard) has'been.dealt with in Re Steel Co. of Canada Ltd. and U.S.W., Local 1005 (1974), 7 L.A.C. (2d) 132 (Beatty), and follows the voluntary - involuntary, culpable - non-culpable differentiation as established in the previous paragraph .... The board continued at para. 21: The board must look to the facts' and determine if, on the one hand, the alleged incompetence Stems from some ."involuntary employee, defect, some physical or mental incapacity preventing an employee from mastering the technique of his job", in which case the resulting discharge is non- disciplinary or, on the other hand, the Board must determine if the alleged incompetence stems from laziness, inattentiveness or some other factor or factors within the control of the employee (i.e., when the shortcoming(s) are reasonably the subject of corrective discipline), in which case the resulting discharge must be found to be disciplinary in nature and dealt with as such .... The characterization of the' actions may have different consequences. Culpable non=performance is disciplinary and can lead to termination. If'the fail~re to do the work is attributed to non-culpable performance only, there is a duty on the employer to canvass alternative employment for the employee. However, even non-culpable non- performance may lead to discharge, when the employment relationship has been undermined. To achieve the end result of determining .whether Ms. Hawley's actions were culpable or non-culpable~ we must consider: Page 101 1) did Ms. Hawley do' the job; and 21 if MS. Hawley failed To do the 3oD, was the failure willful or beyond her control. Ms. Hawley was given notice of the tasks that she had to perform. Although we have found that the performance appraisals were contrary to governing standards, because, in part, they failed to. provide Ms. Hawley with measurable standards, the performance appraisals nevertheless directed Ms. Hawley'to the tasks she had to perform and advised her that she had'not met the required standards. We find that Ms. Hawley was incapable of performing the licensing functions in any consistent manner. The licensing functions' were a core feature of the job and the use of computerization was contemplated by the position specification. Part of Ms. Hawley's duties as outlined in her Posftion specification, is "provides fully programmable word processing/data entry services, by:.., identifying errors in source documents prior to entry and initiating discussion with'originat0r of documents ... to make corrections." At the time of.Ms. HaWley's termination, Ms.'Hawley still did not perform key computer functions accurately and ?consistentlY. Ms. Hawley could not remember how to input certain information into the computer when she returned from her ten day suspension. Ms. Hawley had difficulties entering new Operator records. On July 29, 1988, 'Ms. Hawley could not log on properly and needed Ms. Hesselman's help. When Ms. McLeod reviewed some of the Operator files in August, they did not contain all the information.. As late as August 10, 1988,. Ms. Hawley tried six times to print a licence that had 'not been approved. At this late, date' Ms..Hawley still did not have an understanding of the basic operations involved in Page 102 processing iicence$. This lack of understanding was furthe~ substantiated by her notes for the procedural manual. We find that Ms. Hawley was incompetent. Ms. Hawley had difficulty understanding and using computer software. She had taken computer courses prior to employment at in the Department, but had missed the hands-on training as she had had a car accident and was-not able to complete those classes. As a result, Ms. Hawley came to the Department with a poor understanding of computer· operations. We think there is a strong possibility'that as a result of her temporary reclassification to an OAG 8 level, which she agreed to, she placed herself in a position where she was not capable of performing the computerized f~nctions which were a requirement of this level. However, the jurisprudence makes it clear that before the employer could dismiss Ms. Hawley for non-culpable non-performance, it had to make a reasonable effort to train her. We accept that Ms. Hawley did not receive sufficient training in the early part of 1988 to allow her'to use the system efficiently and,accurately. The only training that Ms. 'Hawley was given, was the first week.of familiarization with the precedinq secretary, training in logging onto' and off the .new system, and two training sessions directed to entering and changing data on the new system. There were changes to the system and Ms. Hawley was not trained how 'to adapt to those changes. Nor did she have any manuals to rely upon. The Ministry did not give MS, Hawley a reasonable opportunity to meet the standards as it did not provide Ms. Hawley with the necessary tool's. Lack of training was an important, factor in our decision to' uphold the Union's grievance of MS. Hawley's five day suspension in April 1988. Ms. Hawley's inability at that stage was non-culpable. Pa§e~ 103 After April, the ~atmosphere was poisoned and adversarial, and there were no adequate efforts to train Ms. Hawley. i'~ is irrelevan~ for the purpose of 5his discussion whether the training could have brought, success. we must then considSr whether Ms. Hawley's inability was culpable. Was the failure on her pa~t to do the job willful, or did it arise'from circumstances that were essentially beyond her control? Firstly, Ms. Hawley knew that licensing was a core function of the job and that she' had tO produce licences accurately, Using a computer. Ms. Hawley must be faulted for not takihg control of her own situation. MS. Hawley failed to accept any blame for any errors Or to accept that she was · unable to perform the job.~ Ms. Hawley always represented that she'had'the skiils necessary to perform the job, even though she could see that she made errors and did not understand the system. By refusing to recognize her own inabilities, Ms. Hawley did.'not take responsibility for her job performance. She did not take any constructive steps to learn the system. Ms. Hawley had a good relationship with MR. Davidson. When Ms. Davidson learned how to process licences in April, Ms. Hawley did not come to her for- assistance. Instead of resolving her problems 'by 'actively seeking training or hsing resources available to her to learn her job, she ignored the problem, became defensive ·and became aggressive. Secondly, Ms. Hawley failed to complete assignments within a reasonable and timely fashion'.' Excluding licensing, in areas such as setting· out Ms. Davidson's duties and determining the needs of the department, which Ms.. Hawley was quite capable of doing., MS. Hawley failed to 9roduce what Mr. Patonen wanted. We accept that initially, .Ms. Hawley believed that she had provided Mr~ Palonen with what he had Page 10~ asked for. However, when Mr. Palonen repeatedly made the same demands in the performance reviews, Ms. Hawley refused to ackno~iedge the demands and did not comply in a complete and a timely manner. If we were to accept~ Ms. Hawley's position that she dfd not know what Mr. Palonen wanted, she ought tO have asked. She'saw him daily. We do not accept the Union's contention that Ms. Hawley had a busy job that did not allow her enough time to complete her tasks. Although the workload could have increased by virtue of Ms. Hawley's absences, MS. Davidson carried on and completed Ms. Hawley's primgry obligation, the issuance of licences. Ms. Hawley, however, did not use the remaining time after.April, to complete the other tasks assigned in-the performance appraisal. She ignored them. The . only task that was completed to the· Ministry's satisfaction, albeit late, wes the testing of the Well filing system. Ultimately Ms. Hawley did her assignments when Mr. Palonen directed MS. Davidson to attend to the routine tasks. Ms. Hawley was r%sponsible for directing Ms. Davidson's time and she could have assigned Ms. Davidson many months earlier to.look after her daily.tasks. By delegating her work, it would' have allowed Ms. Hawley sufficient time to complete the assignments or learn the computer system. MS. Hawley failed to do so. Ms. Hawley did not ask for. overtime to complete her work until August. By August, it was too 1.~t~le, too fate. If Ms. Hawley had seriously intended to do her assignments and was only constrained by the time'that the other tasks were taking, .this problem and ~ request for overtime ought to have been discussed with her supervisor much earlier. Thirdly, from June 1988, Ms. Hawley developed an attitude that .constantly challenged management. 'From =he ten Page I05 day suspension onwards, there was a further marked change in Ms. Hawley's behaviour and attitude. There was open, aggressive hostility towards Mr. Palonen. ~z'.'~alonen acted reasonably on July 25, 1988 by resetting target 'dates ~fter Ms. 'Hawley's suspension, and by providing direction during hi~ absenta for his vacation, but by this time Ms.' Hawley could not ~accept any direction from him. We accept Mr. Palonen's testimony that in the meeting to reset targets,. Ms'.- Hawley was belligerent and her answers'were short. In the following two'months, the .situation deteriorated further. Therefore, when Ms. Hawley was discharged, Ms.. Hawley could not perform the key function 'of her job, the issuance of licences and was unwilling to make reasonable .attempts to succeed. She had not completed any of her tasks assigned in the performance appraisal in a timely fashion, and her assignments when performed did not meet' a reasonable level of acceptability. She had an attitude.that was insolent', aggressive and hostile, and prevented her from continuing to Work in the department. Therefore Ms. Hawley's actions were not Just non-culpable, but also intentional, insubordinate and therefore culpable. There'fore the Edith Cavell (supra) decision is not applicable to this case. The Edith Cavell (supra) decision rested solely on non-culpable non-perfgrmance. The grievor in Edith Cave11 (supra) was a 10ng term employee who made a series of .mistakes. She was discharged 'for poor performanc'e and not for any disciplinary infractions. The employer had accepted her level of performance, for a number of years. The grievor did not'know the standard that she had to meet. Some of the grievor's deficiencies that the employer relied upon were duties that the grievor had not performed and had not been required to perform for some time prior to the termination. 106 The facts in Re Childs and The Royal Bank of Canada (1981), I L.A.C. (3d) 268 (Borowicz) appear, at first glance, to be similar to our case, in that the Board found ' ~hat management failed to use the}r resources to dispel tension between the grievor and her co-employees, and the negative perception the grievor's co-employees had towards the grievor and her work performance. That Board found that on the facts before it, that the grievor's failure to perform her job was non-culpable. There were no actions on the grievor's part for which she could be held responsible. That grlevor was a victim of-circumstance. She had been absent for extensive periods of time for legitimate illnesses, yet her co-workers perceived that she was a malingerer. Accordingly the Board upheld the grievance, but due to the working environment, gave the grievor monetary compensation and not reinstatement. Our case is different from Re Childs (supra) in that we find.that Ms. Hawley was culpable and was not purely a victim of circumstance. ~Union's counsel'urged the Board to review and apply the decision of Re B.C. Hydro and Office and Technical EmploYees' Union, Local .378, 14 L.A.C. 69 (MacIntyre) in which the union took th~ position that the grievor was a victim of a personality conflict with the person for 'whom she worked as a secretary, and that her performance was not substandard. The employer c~aracterized the grievor.'s actions as culpable and alleged that the Personality Conflict was the fault of the grievor, or if not, was no excuse for poor performance. The Board .found that there 'was non- culpable non-performance and the predominant cause of the non-performance was lack of adequate training. At first blush, this case seem to be the same as the case before us; however, in B.C. Hydro (supra), the Board did not find t~e grievor at fault. The Board found that the employer did not have just cause to dismiss the employee as it was not a. discipl'inary 'matter, "there was not 'a failure to meet Page 107 standards since the opportunity to meet those standards was missing, due t'o the peculiar circumstances." · In our case, on the facts before us, at the time of termination, Ms. Hawley failed more than meeting. ~he licensing requirement, she fa~led t0 comply with the standards as we have canvassed earlier. We have found that Ms. Hawley's failure to meet the Ministry'.s standards was culpable. In' addition, we have found that Ms. Hawley's attitude towards her work and work environment~ had deteriorated beyond an acceptable standard. Therefore, as the employment relationship had been totally undermined: by Ms. Hawley's failure to meet a minimum standard, of performance, and by an ·antagonistic attitude towards her job, we find ~hat the employer had cause to dismiss MS. Hawley. A finding of cause for dismissal does not end' the matter. We-must consider whether we should exercise our .remedial ' authority under section 19(3) of the Crown ~mployees Collectlve ~Bargaining Act and substitute such other penalty as we find just and reasonable when considering al~ the circumstances. Although we have· found Ms. Hawley's behaviour culpable, we must look to the e~ents surrounding the culpable behaviour to determine whether such culpable behaviour warrants dismissal. Union's counsel argued the presence of bad faith vitiates any discipline. He argued 'that Mr.·David Watt, Mr. David Johnstone and Mr. Palonen acted in bad faith towards Ms. Hawley. Union's counsel argued that Mr. Wart's bad faith was substantiated by:· a letter from Ms. Murray to Mr. Watt dated APril 27, 1987, offering to assist Mr. Watt in terminating 'a difficult employee; by his involvement in drafting disciplinary letters to Ms. Hawley: and his failure to volunteer evidence on the April 5, 1988 meeting i.e. when Ms. ~awley's situation was discussed. Page 108 . / We do not find that Mr. Watt acted in bad faith towards Ms. Hawley. Although ~here is a slight discrepan,cy in the evidence between Mr. Watt and Ms. Murray, we do not find that it is material hot substantiates the Union's allegation that Mr. Watt was lying about their conversations. We conclude that Mr. Watt and Ms. Murray attended a seminar together and discussed methods of dealing with difficult employees, including termination. As a result of those discussions, Ms. Murray forwarded a letter to Mr Watt offering her assistance if he wished to consult her when terminating a difficult employee. Although Ms. ·Hawley discovered the letter when openin'g Mr. Wart's mail for him, and felt'that '~he letter referred to herself, there was no evidence that tied the ·letter to her. Ms. Hawley brought the letter to the attention of Mr. Johnstone, but did not follow .Mr. Johnstone'.s direction to bring the' matter up with Mr. Watt. .~ ~ W~ only. have an inference alleged by the Union that M~. Watt wanted to terminate Ms. Hawley. Had Ms., Hawley pursued Mr. Watt at the time of the let.ter, Mr. Watt could have clarified the sit'uation. Even .~f Mr. Watt had considered terminating Ms. Hawley, of which there"is no evidence, Mr. Watt did not pursue· the offer. On the other hand, Mr. Watt was a signatory to Minutes of'Settlement that subsequently transferred Ms. Hawley to this acting position. He did not terminate her. We find that Mr. Wart's involvement with Ms. HaWley's case was minimal and within the scope of his duties. Mr..Watt attempted to distance himself from Ms. Hawley. Mr. Palonen relied on him as a consultant, .in'the area of his job functions and expertise as a Regional Human Resources Coordinator. He revieWed sOme of Ms. Hawley's performance apprais'als and'was the author, although not the signatory of Page 109 the disciplinary letters. Mr. Watt relied on the performance appraisals, as presented to him by'Mr. Palonen and listened to Mr. Palonen's 'interpretation of the .fadts. He was not the author of the performance appraisals nor did he initiate actions or participate in actions with the view that they. would lead to Ms. Hawley's dismissal. Although Mr. Watt was present at the April 5, 1988 meeting, we do not fault Mr. Watt for not. volunteering evidence' on that meeting, as the questions posed' to him during his testimony did'not require.him to offer information on the meeting. The.April 5, 1988 meeting-was an appropriate arena to consider probiems that Mr. palonen was having. Although discharge was considered, it was only one course of action considered.. There is a difference between discu'ssing various outcomes Shat' are possible, and deciding upon a course of action that leads to termination. 'We a're satisfied that Mr, Beecher, Mr. Watt, and Mr. Elliot accepted the facts. as presented by Mr. Palonen and recommended to Mr. Johnstone that Ms. Hawley be given a lengthy suspension. There was no evidence of any concerted action.by them to ensure Ms. Hawley's demise. Nor do we find that Mr. Johnstone's involvement constitutes bad 'faith~ Mr. Johnstone was the Regional Director and had the responsibility of deciding when, and what discipline ought to be given. As is appropriate when 'there is a hierarchical structure, he must rely on the information of those closer to the situation at hand. Mr. Johnstone relied on information provided by Mr. Palonen. After consultation with Mr. Palonen~ he accepted' .. Mr. Palonen"s recommendations and implemented them. There was no evidence that there was any bad motive on the part of Mr. Johnstone, nor that he acted irresponsibly nor arbitrarily. Page 110 '.. We do find however, that Mr. Palonen acted in bad Mr. Palonen's perceptions of the term of MS. Hawley's 'employment in his department and Ms. Hawley~s Perception.'of her' entitlement to the job clashed almost from the beginning. It was clear that Mr. Palonen resented Ms. Hawley being parachuted into his department as his secretary, without any input from himself. He did not want her in the department. He wanted to choose ·his-own secretary. Mr. Palonen acknowledged in 'his memorandum to Mr. Johnstone on Sgptember 1, 1988 that Ms. Hawley ~had wanted to become ~more proficient in word processing and that he was directed by Mr. Elliot to provide.training and assignments in those areas. This was in direct opposition .to what Mr. Pal6nen wanted. Mr. palonen wanted someone who would require little training. Therefore Ms. Hawley was. disadvantaged from the start. Mr. Palonen began, the process of intensive peKformance'reviews. With the benefit, of being-able to see the process from the beginning, we see a rigorous, and u~relenting process of review. Mr. Palonen. indicated in ~January 1988, that although Ms. Hawley~ was qualified, he wanted a 110% secretary, which standard he admitted, his former' secretary, Ms. McSavage, could not match. Therefore, f'rom the time he began appraising Ms.. HawleY's performance, he expected more than was possible for Ms. Hawley to give..~ There was no real attempt to help Ms. Hawley perform her job. Ministry's counsel submitted·that we ought not to look at Mr. Palonen's feelings, but onlY consider if he acted 'reasonably. We find th·at not only did Mr. Palonen act negatively towards Ms. Hawley, but he did not act reasonably Page 111 in the circumstances. He did not ensure that the system was operational, ~he had daily Contact with Ms. Hawley and saw that she 'was lncapab~ of producing results and ye~ he' dio nog ensure that she received more training. He offered her a'n opportunity to use Decmate in front of him in order that he could determine what she was unable to do. However, we accept in'the circumstances of the criticisms levied against her and the notetaking in the office that this opportunity, which in ocher Circumstances could have been useful and of assistance to Ms. Hawley, was intimidating to her and did not offer her a solution. Many of the ~tems set out in th~' performance reports could .have been dealt with in a simple daily follow up. ~ Mr. P.alonen also began the process Of alienating Ms. Hawley by directing employees in the department to take notes of anything that they deemed noteworthy about-Ms. Hawley's' inabilities. Ms. McLeod and Ms. Hesselman were to~d to take notes as early as January 1988. At the 'same time, MS. Hawley was taking notes of' the situation. Ms. Hawley then exacerbated the problem, by sending .copies' of her memoranda outside the department to Mr. Johnstone, Mr. Beecher, Mr. Elliot and others. Mr. Palonen was rigid,' uncompromising, and .did nothing positive to provide'Ms, Hawley the tools to succeed. To the contrary, to use a colloquial saying/ ."he gave her. enough.rope to hang herself." He knew that Ms. Hawley did ~ot know how to use the computer properly and yet he chose Ms. Hawley to produce a procedural manual.' There was no manual for her to follow. Although it is not our duty to substitute our decision for management, in this case Mr. Palonen's actions were so unfair that we must take his 'actions into consideration. Mr. Palonen had other better resource persons to rely upon for the manual, whether it was Mr. Habib who set up the system, Ms. Hesselman, who ran the Page 112 system or Ms. M~Keon who transferred the technical data from the 01d system'to the new. These employees had ~he expertise to ~un and modify ~he software program, not Ms. Hawley. The committ'ee reviewing the system, recognized in its report, that a manual was necessary and. that ther~ had to be a review of the procedures. Although Mr. Habib, who was responsible for the system, did.not admit to having read the report, the Ministry must be deemed to have knowledge of its. contents, as the report was prepared for the Ministry. It was tota.l!y unjustified that Mr. Palonen, and therefore, the Ministry g%ve' the task~of developing a procedure ~anual to Ms. Hawley, whom Mr. Palonen knew did not understand the system. Mr. Palonen admitted that tOwards the end of Ms. Hawley's employment, he "set her up" to 'fail by forcing her to Produce her notes on th~'procedures. We believe that he set her up much earlier to fail and exercised poor management skills in demanding her to produce the procedpre manual, when she could not do. it. Mr. Palonen was mean spirited and unfeeling to the end. Discharge is a serious matter to an employee, even when the employee has contributed to the cause. A manager must respect an employee's rights, even on termination. Once Ms. Hawley 'was fired, Mr. Palonen acted outrageously. He escorted her to her desk, and gave her eight minutes to "clear out", counted down to two minutes, at which time he told her if she was not off the property within two minutes he would have her charged.with trespassing. 'There is no humanity in such behaviour. Although we are .not here to provide ,rules of behaviour for management emPloyees, we see this attitude as the culminating 'attitude which Mr. Palonen had towards. Ms. Hawley, which had been building over the months. .~ Blagk's dictionary defines bad faith as follows: Page .113 The opposite of "good faith," generally implyfng or involving, actual or constructive fraud, or a design ~ ..~'~l~ad eM~ deceive 'another, or a neglec~ or refusal..to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one's rights or duties, but by some interested ~r sinister motive. In this case, we have "an interested or sinister motive". Mr. Palonen needed someone to bear the responsibility for the licences being issued late, and he was not pleased with the method by' which Ms..Hawley came to be his secretary. Nor was he pl'eased to have Ms. Hawley as his §ecretary. we find that much of Ms. 'Hawley's culpab'~e behaviour flowed directly as' a result of ~Mr.. Palonen's culpable- behaviour. Mr. Palonen's behaviour was so outrageous~ that it' would be almost impos~ible to imagine a normal human being not reacting. In the circumstances at hand, we find Mr. Palonen significantly more to blame than Ms. Hawley'and %o 'a large degree motiVated.by a desire to create a .situation where Ms. Hawley would be found to be culpable, or non-culpable, in the sense, that she was unable to perform her duties adequately. Mr. Palonen's improper behaviour and-his failure to assist Ms. Hawley are serious factors that must be considered when assessing Ms. Hawley's behaviour. Ministry's counsel submitted that our role is to co~sider Ms. Hawley.'s actions and no6 Mr. Pa!onen's. We agree that it is not Mr. Palonen's actions that are under review by this Board; however, Ms. Hawley'-s actions cannot be considered in a vacuum. 'Her actions must be considered in the context of the employment relationship and the employment environment, in its totality. P~g¢ ! 1~ We do not accept that "bad faith" automatically vitiates the penalty. We may have been able to accept-that premise',-had Ms. Hawley acted in "good faith" during her perlod of employment in the Department. However, Ms. Haw!ey's culpability'created a disciplinary offence. Ministry's counsel submitted that we adopt the approach taken in Re Continuous Colour Coat Ltd, and .United Steelworkers 9 L.A.C. (2d) 326 (Abbott) and .uphold the discharge as Ms. Hawley's attitude was not compatible' with continued employment. In the .Re Continuous Colour Coat Ltd, (supra) case, Arbitrator Abbott .stated: ...In the first place, "attitude" i.s a subjective factor. ItS existence can only be determined from its outward manifestation in objective behaviour. The employer must..show that the proven behaviour of the discharged employee does indeed manifest' the purported attitud&. The employer then must Show that the attitude is essentially one which disables, or is likely to disable the employee, from the proper performance of his job~ Finally, the employer must show that discharge is the appropriate response-to that attitude. ...This brings me to the last issue of whether the .employer's response,' discharge was the proper one. ...But if his behaviour clearly indicated that he was beyond hope of. reformation, beyond hope of changing his unacceptable attitude, ~hen discharge would be justified. Ms. Hawley was not. blameless and certainly contributed to the problems that arose in the employment Situation. We find that Ms.-Hawley's attitude was negative, distrustful' and exhibited no intention' to improve herself. We have no evidence that indicates that'Ms. Hawley's behavior or attitude would change. We have considered whether due to Mr.' Palonen's behaviour, we ought to reinstate Ms. Hawley, but we find it is not possible in these circumstances. By the time of Ms. HawleY's termination, Ms. Hawley's working relationship in ~hat department was ir'retri.evably lost. Ms. Hawley .had =~ .... ~ ~-~ from her co-workers with the ~esult hha~ at the time of her termination she could not call on any of her co-workers for assistance. Ms. Hawley's failure to learn to log on and off the computer had create~ serious problems'for · ' the department 'in March~ and had frustrated and angered Mr. " Habit, Mr. Habib, within the proper scope· of his work, limited Ms. Hawley's access privileges to one file at a time. MS. Hawley perceived, it as an attempt to discipline her and due to the outbursts between them, she no..longer could go to him for help after ~arch 31, 1988. In June, Mr. Habib erupted angrily at MS. Hawley in public and embarrassed Ms. Hawley. ALthough Mr. Palonen rebuked .Mr. Habib, this incident'indicates that by June; Ms..Hawley and Mr. Habib had not Worked out their differences. Ms. Hawley' aHd Ms. Hesselman had a terrible personality clash. Ms. Hesselman had no time for Ms. Hawley. Ms. Hesselman was condescending and impatient towards Ms. Hawley from the beginning and her attitude was very apparent in her examination. Her many notes reflect an arrogant and nitpicky approach. Ms. Hgsselman's noteta.king reached such a trivial nature that she documented such insignificant details as stating in a memorandum that Ms. Hawley had difficulty with the computer when she' did.not ensure that the computer was properly plugged int'o' the wall. MS. Hesselman went further and sen~ misleading memoranda, such as alleging that Ms. Hawley is not picking up 'her computer reports, when Ms. Hawley was not in the workplaCe. Ms. Hawley had had a good working.relationshiP with Ms. Davidson. ,However, by July, even Ms. Davidson was taking notes of Ms. Hawley's deficiencies. Page 116 We do not believe that if we were to return Ms. · Hawley to her job, that she would be able to perform her job prcperly. KS. Hawlsy-herself .acknowledged that she was not sure that she would be able to work in that department. The evidence Showed that she was not able to work 'with Mr. Paionen, Ms. Hesselman, nor with Mr. Habib. As a result we cannot reinstate Ms. Hawley to th~ Department. We also cannot reinstate. Ms. Hawley to a position in' the Ministry. Although the Union did not rest its case on the theory of conspiracy, there was substantial evidence, which leads us to conclude that Ms. HaWley perceived that there was a conspiracy that extended beyond her department. Nor do we find that we can reinstate Ms. Hawley to a position somewhere in the government, solely on the principle that the "employer" is defined under section l(h) the Crown Employees Callective Bargain£~g Act as "the Crown in right of Ontario." In order to reinstate the grievor we must be satisfied that the restoratibn of a viable ~mployment relationship is not only feasible, but like!y~ In Ms..Hawley's situation, Ms. Hawley's attitude, as well as level of ability, affected her ability to perform her job. We had no evidence that would lead us to conclude on a balance of probabilities that Ms. Hawley can put her %ttitude behind her, and be capable of performing a job within, the government. This is not Ms. Hawley.'s first employment with the qovernment that resulted in a Series of grievances. .Taking into account the notoriety garnered by the case, the attitude of the government and Ms. Hawley's attitude, we cannot, see returning her .to the government as being a productive solution to this problem. Page 117 After weighing the culpability of Ms. Hawley with the mitigating factors, we find that discharge is too severe in ~ circumstances and we exercise our jurisdiction under section 19(3) of the Crown Employees' Collective Bargaining Act to modify the penalty and substitute "such other penalty for the discipline or dismissal as it considers just and reasonable in all the circumstances." In this case, we find that compensation by monetary damages, is.appropriate. We find ourselves in a similar posi%ion as in Aul~ Dairies, a Division of Ault Foods Li'mite~ and International Union of Operating Engineers, Local 796, September 30, 1985 unreported (Devli'n) in which the arbitrator found that the grievor deserved some discipline but discharge was too excessive. The arbitrator found that the board's remedial authority extended to awardihg the grievor compensation instead of reinstatement where the grievor's misconduct was connected to job performance and the employer had lost confidence .in' the grievor's ability· to do the Job. Similarly a,s in Re Simunovic and The Ministry of Natural ResoUrceS G.S.B. %28/76 and 46/77. (Swan) we are of the view that a monetary payment in mitigation ~f the dismissal, is the only way that a just result can be obtained for both the Ministry and Ms. Hawley. We are cognizant that Ms. Hawley is a single person and is self-suppo~ting. The loss 'of her job'eroded her self esteem, and has .lead to her ill health. In addition she has lost' the' benefit of the security of her job and.its remunerative benefits especially her pension. We also take cognizance of the fact 9hat' the Ministry's behaviour was oppressive and irresponsible and caused Ms. Hawley a certain justifiable anguis'h. However, Ms. Hawley's contributing behaviour does not persuade us that MS. Hawley receive damages to the issuance of this award. Ms. Hawley was dismissed in September 1988, during a period of heightened r Page 118 economic activity in the province of Ontario .and her abilities were such that she-Ought ,to have been able to get employment had she desired. we therefore order the Ministry to pay Ms. Hawley a sum equivalent to sixteen months wages and benefits, at the rate that she was earning at the time of her dismissal. If the parties.subsequently negotiated an increased rate for her position that would have effected her rate retroactively, that increased rate is to be applied. These damages are not subject to mitigation. Interest on the wage portion of the damages shall be applied as in the decision of Hallowel .. HOuse Limited and service Employees' International Union, LocaI '183 [1980] 1 Can. L.R.B.R. 499 (Picher').. We will remain seized of this issue should there be any difficulty with the implementation of our decision on a~Ly of the grievances. We'wish to thank Ms. Pasieka a~d Mr. Ruby for their extensive preparation and very.capable presentation of the evidence and argument. Their cooperation and assistance was appreciated by the panel through the lengthy and difficult proceeding. Dated at' Toronto, this 12th day of A.u§ust, 1992. B.A.~Kirkwood, Vice-Chairperson "I Partially Dissent" (partial dissent to follow) Michael Lyons, Union Member ~t. ~,. ~(addeudum to lollow) Don 'Clark, Employer Member