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HomeMy WebLinkAboutTurner 06-07-21 IN THE MATTER OF AN ARBITRATION BETWEEN GEORGE BROWN COLLEGE OF APPLIED ARTS & TECHNOLOGY (the "Employer") - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION (the "Union") AND IN THE MATTER OF A GRIEVANCE OF MS NEZLYN TURNER (2004-0557-0009) (the "Grievor") BEFORE: C. Gordon Simmons, Chairperson Ms Ann E. Burke, Employer Nominee Mr. Ron Davidson, Union Nominee APPEARANCES ON BEHALF OF THE EMPLOYER: Mr. Fred Hamilton, Counsel APPEARANCES ON BEHALF OF THE UNION: Ms Hilary Cook, Grievance Officer Ms Christine Legault, Chief Steward Ms Bronwyn Walker, University Student Observer Ms Nezlyn Turner, Grievor Hearings into this matter were held in Toronto, Ontario on April 25 and June 13, 2005. 2 The grievor received a written warning dated March 10, 2004 for poor work performance and attitude. She seeks to have this disciplinary action cease and desist and have the warning letter removed from her personnel file. The letter in issue was written by the grievor's immediate supervisor, Ms Nisha Panchal. It details the nature of the problem as seen from the eyes of Ms Panchal and reads (ex. 1, tab 5): Re: Summary of February 23, 2004 meeting and disciplinary notice Nezlyn, this memorandum serves as both a summary and extension of our discussion on Monday, February 23, 2004. A copy of this memorandum will be placed in your employee file. You have been working here since end of October 2003. We have reviewed your job description and other documents with respect to office procedures. We have also had regular meetings to review your work, office procedures, and so on, as well as numerous discussions regarding things that are your responsibility and which need to be done, but are not done. I had hoped that when you started working for me that you would have been enthusiastic and enjoyed working in the Industry Liaison Office (ILO), which can make a valuable contribution to the Technology division. Unfortunately, regardless of how often and how thoroughly we discuss your job your overall performance of your responsibilities fall short of what is expected at a minimal level for this position. Since we have discussed these issues numerous times and your general performance has not improved, I am confirming this to you in writing that you are required to make changes to your performance and behaviour to meet the minimal expectations of this position. When we discussed this on Monday, February 23, 2004, you indicated that you thoughtlhatit was insulting of me to tell you the above. I let you know that my interests lie in getting the work of this office done, and as such, I need to see some changes made for the interests of this office. I need to see the following changes in your work performance and attitude: [1] O You are expected to check your voicemail and e-mail and keep current with these. This means checking your email first thing in the morning and throughout the day and following up with the action required for each message. I have suggested to you that you may want to keep a log for all your messages so that you don't forget about things. Whether it is doing this or building time into your schedule to include e-mail, I have to be able to depend on you to receive and act upon the messages that you receive during your work hours. This is a core component of your job because so much of your other work depends on it such as putting out job postings. 3 We have discussed this many times, nonetheless, you forget to check your email, forget about messages once they are no longer highlighted, don't read the entire message, and continually question the importance of this. You mentioned during our meeting that you have one of the oldest computers of any staff member. I do recall in November that we had taken care of this issue and an IT Technologist had come and updated the memory on your computer. This memorandum will reinforce the expectation that you will organize yourself so as to ensure that all messages sent to you are acted upon as soon as possible. [2] O You are expected to reference the resources you have when dealing with student questions and other aspects of your job. For example, when dealing with Railway program inquiries, you have either received from me or were referenced by me on where to locate numerous resources that detail the specifics of the program, making it possible for your to be able to answer questions. This talk is to reinforce the importance of accessing all available resources given to you to provide accurate and helpful service to technologystudent, s. You will need to improve on the continual organization of the information you have, communicating with me any additional needs you to have [sic], so as to be able to provide student service effectively. [3] O Following through throughout the course of our work we have agreed to a number of protocols and there are also many requests that I ask of you to continue on an ongoing basis, such as sending weekly and monthly messages to students through (ILO) tech, keeping job postings current, informing me when class schedules are up, etc. These things have not been happening regularly and do not happen unless I have pointed them out to you. You need to organize yourself in such a manner that the duties that you are responsible for are taken care of without reminders from me. [4] O Be respectful of me as your manager You are the front line representative of the (ILO). How you treat and communicate with people sets the tone and gives a message to students and staff regarding how this office runs. I understand that you have been saying things about me in my absence, which therefore undermine my role at the College, something that you admitted during our meeting. If you have any problems with me, I expect you to discuss them directly with me first. If necessary you can then discuss them with someone in HR or my manager. I understand that we will need to continue to discuss how best to do certain things in the office, but to continue debating key duties and their importance (such as checking messages) must cease. Repeatedly arguing the merits of the tasks assigned to you is at least disrespectful and could be interpreted as insubordination. In addition, you continue to accuse me of being 'up to something', going so far in our last meeting to tell me to 'keep piling in [sic] on' (a statement you refused to explain or expand upon), that you 'knew' from the moment you started working here that 'this would happen' (which you explained b be in reference to the reprimand I was issuing you) and closed off the meeting by posturing to me that you guarantee that you will not leave 4 the college until you decided to and that I could not get you to leave. Not only were these comments disrespectful to me as your manager they were also abusive and intimidating to me personally. Performance issues aside, this negative attitude that has painted all of our meetings and all of my attempts to help you be successful can no~t continue. Should you choose to express yourself in this matter again, you will subject yourself to further disciplinary measures. We have reviewed your workstation and resolved all the issues you have raised to me. We have arranged for one-on-one and formal training for computer software applications for you and we have reviewed the expectations of your job and how to do the tasks required. Therefore, it is expected that you can now fully perform all of your duties. Please let me know if you have any further questions about this. We will have ongoing meetings to discuss your performance. I expect that you can meet the expectations outlined above and fulfill your duties and responsibilities. I know that together we could offer a valuable and helpful service to Technology. However, if you choose not to meet the outlined expectations, or fail to make changes to your demonstrated performance, then please be advised that you may subject yourself to further corrective and/or disciplinary actions. As stated earlier, a copy of this letter will be put in your employee file. Prior to the commencement of this meeting it is noted that the college has requested a meeting with you to discuss the aforementioned matters and have provided you with the option of having a union representative present. [The "bullets" in the above letter have been numbered by the panel for easier reference.] A few background comments might be helpful in fleshing out the issue. The Industry Liaison Office (ILO) is attached to the Faculty of Technology. It came into existence in late 2003. Its main purpose or goal is to provide summer employment opportunities to students in the Technology Department as well as placement opportunities upon graduation. The ILO is the recipient of various job opportunity notices from employers. Students who wish to participate in these job opportunities may do so by subscribing to the ILO Tech Mailing List as well as by visiting the ILO office and viewing the job noticeboard where the various job opportunities appear. In addition to the manager, Ms Panchal, there is also her Administrative Assistant in the office who is the grievor. Her duties and responsibilities include 5 updating the job opportunities list on a priority I:asis. The ILO Manager receives the information from industry and passes it to the grievor by e-mail with instructions how the messages are to be distributed. They may include messages for faculty members of the Technology Department or they may be job opportunities for students. In the latter case, the grievor is to distribute the information to the students on the ILO Tech/ID TechJobs E-mail List in order that the student subscribers receive the information concerning the job opportunities that are available. The grievor is also required to post a hard copy on the noticeboard in the office for student viewing purposes. Ms Panchal was first engaged in November 2002 on a contract basis to start up the Liaison Office. This was followed by being appointed Manager of the office. The grievor has been an employee since May 1, 1984. Before moving to the ILO Office she had been employed as Assistant to one Robert Barnett who is no longer employed with the college. While the grievor was not asked many details about her previous duties and responsibilities, she volunteered they included answering phones; putting packages together; mailings and various other assignments Mr. Barnett would give her from time to time. She commented her present job is different in that she had not previously been required to send e - mails and was not connected as much with students as this current position requires. The grievor explained she prepares spreadsheets and has distribution lists for students to whom she sends job postings electronically. Hard copies of the job postings are placed on the noticeboard and in binders denoting the names of employers with explanations about the nature of the employer's business, etc. Students come in to the office and look at job postings, read the information provided by employers, and presumably make a determination as to -6- whether or not to apply for the available positions. There is also a fax machine in the office for students to use in faxing resumes, etc. to employers. The griever assists the students in this regard. In addition, the griever is the frentline person who acts as a receptionist to assist students who have enquiries. The griever soon began encountering problems in carrying out her assigned duties and responsibilities. These problems are documented in the March 10 disciplinary letter reproduced above. The letter contains what was referred to as bullets (paragraphs) which contain the problems with respect to the alleged poor work performance and attitude. We will review the allegations seriatim. In the first bullet [para. 1] the grievor is criticized for failing to check her voice mail and e-mail consistently and frequently. She had a tendency to '~forget" to check her e-mail and 'forget" about messages once they were no longer highlighted and did not read the entire messages and questioned the manager about the importance of doing so. The grievor admitted these criticisms were valid except that she took issue about 'forgetting" the messages but rather said that she failed to deal with them promptly and not returning to them quickly after they were no longer highlighted. She explained she would go in to read a message and may read only a portion of it to determine its priority. She would, depending on the contents of the message, often leave it before reading it entirely if she determined it was not a priority message. She would often get caught up in doing other tasks and because the e-mail she had previously opened was no longer highlighted wou ld '~forgef' to return to it. As she said, "If it was not highlighted I'd forget - it was not intentional - I'd get 7 caught up doing other tasks that day." She further stated in cross-exam ination that many of the messages were lengthy which required a lot of time to read but acknowledged after having been taken through a sampling of typical e-mails they were not lengthy. She then stated that she would be interrupted by students from time to time as well as the telephone after which she would continue doing what she had previously been working on without returning first to reading the remainder of the e-mail message. The grievor explained another reason for her initial difficulties was attributable to the computer that had been assigned to her. She said the computer had insufficient memory capabilities to accommodate the various programs working at the same time. She said, for example, if she attempted to move from Excel to Outlook she would lose Excel when she tried minimizing the screen to move to Outlook. Furthermore, the computerwould then shut down. The panel was informed this problem was corrected in November 2004 with additional memory being added to her computer. The second bullet in the March 10 letter [para. 2] refers to "Resources". This, as we understand it, refers to information made available by enquiring companies which enabled students to acquaint themselves with the nature of the employers' businesses and apprise on the available opportunities presented to the students by the various employers. Ms Panchal testified the grievor had certain duties and responsibilities relating to following through with tasks the grievor was committed to doing. However, the undertakings promised by the grievor were not happening. The third bullet [para. 3] relates to the sending out of messages and keeping postings current, etc. This bullet also comprises the second bullet to a degree in that both refer to -8- keeping information current and keeping students informed with current information respecting available opportunities with prospective employers. The grievor testified that at the beginning there were many steps to follow in sending out the postings to students by e-mail, placing the hard copies on the noticeboard, and putting another copy in employer binders. The grievor acknowledged that at times while doing different tasks she would miss taking down postings at the end of the day once they had expired. The grievor testified she believed that if she missed taking down postings from the noticeboard by noon the following day that would be appropriate. But that was not appropriate according to Ms Panchal. Once the posting had become no longer available or useful it was to be removed promptly so students would no longer be led to believe job opportunities continued to be available. According to Ms Panchal, job postings had to be kept current and this had not been happening. On the other side of the coin Ms Panchal had problems with the grievor in failing to get posters up promptly thereby not affording all students to see the postings and apply. In this event, it was possible the responses to employers would be Iow thereby impacting negatively on the program (ex. 1, tab 7). Another problem was centred around the e-mail student mailing list. One problem concerned wrong e-mail addresses either through typos or other errors. Students who subscribe to the list would not receive the information as intended when these errors occurred (ex. 1, tab 12). The fourth bullet [para. 4] can best be characterized as a personal matter between the manager and her support. It expresses her opinion that apart from the grievor's poor performance the grievor has demonstrated an unacceptable attitude toward the manager that -9- can not continue. Ms Panchal expanded on her statement in the letter by testifying she did not understand why the grievor continued to be argumentative but found it intimidating and made it difficult to run the office. She stated she is passionate about having the office grow and that she be successful. She is newly out of school and possesses a lot of enthusiasm which is not being shared by the grievor. She believes her expectations of the grievor are reasonable. She had hoped no one would consider the fact she is younger would be a factor, a fact she cannot help, but now believes this has not been the case. The remarks she attributes to the grievor in para. 4 having been made to others about her has not made it easier for her to get her job done. The grievor explained she thought Ms Panchal was"up to something" when Ms Panchal would send her a lengthy e-mail while she was performing a task. These e-mails would be in blue ink (presumably as opposed to black) which the grievor felt was intended to be a distraction for her. She said when she would see an e-mail in blue ink "I'd know right away it was a documentation on me- I could tell something was not right." The grievor acknowledged in cross-examination she felt the manager had not set out to see her fail in the job but felt Ms Panchal had someone else in mind for the position. This could perhaps explain the reference in para. 4 to the grievor not leaving the college but it was not explored in evidence and is speculation only on the part of the chair and plays no part in the decision made. Basically, the grievor admitted to having difficulties in the initial months being in this new job but maintains these difficulties are now behind her. EMPLOYER SUBMISSIONS -10- The employer argues it had just cause to discipline the grievor. The job requirements had been fully described to the grievor through many weekly meetings and ongoing communications by e-mail. The manager was highly motivated and enthusiastic to ensure the office was a success. Her motivation and enthusiasm was not shared by the grievor. The job duties and responsibilities of the grievor were not difficult or complex. Yet she had been reminded time and time again she was failing to perform her duties adequately. The grievor's long service is not a defence nor is it a protection to a job. The last paragraph of the manager's March 10 letter is directed to turn the grievor's failures around to perform her work. The grievor's evidence reveals she has been challenging the manager as to why the work needs to be done by debating key duties and their importance with the manager. Even in cross-exam ination the grievor continued to offer excuses such as her not being forgetful about performing the tasks given to her by e-mail, rather she simply failed to perform them on time. The grievor must ask herself why does she not simply perform the assigned tasks and not offer alibis why she has not done so. She must accept responsibility to properly perform the duties assigned to her. She has not done so to date and by continuing in this manner will only lead to further discipline. The employer requests the grievance be dismissed. UNION SUBMISSIONS The grievor never intended to intimidate Ms Panchal. She may have been overwhelmed at first with the requirements of the job. It is possible that at times the grievor did not do what was asked of her. At times the manager wanted her to do a number of things at one time -11 - which, it may be argued, the griever was unable to do. But at no time was the grievor's alleged poor job performance done deliberately. The union submitted Re Edith Cave# Private Hospital and Hospital Employees' Union, Local 180 (1982), 6 L.A.C. (3d) 229 (Hope) in support of its position that situations where job deficiencies in performance without deliberate conduct on the griever's part do not give rise to discipline. Moreover, the union argues the employer erred in giving a written warning instead of first giving a formal verbal warning. Furthermore, because of the passage of time the warning ought to be removed from the griever's personnel file. In essence, the union asks that the discipline be removed and that the disciplinary letter be removed from the griever's file. -12- DECISION This is a fact-driven case. The panel heard evidence from the two individuals who have been placed together in an office which is new to the college which has been given the responsibility of providing a new and exciting liaison service between the Technology Department and employers at large. One of the employees, the manager, is new, young, full of enthusiasm and wants desperately to have this new venture succeed. The other employee, the assistant, has been a long service and, no doubt, highly respected employee with the college who was first hired on May 1, 1984. From the evidence the panel suspects the duties and responsibilities the assistant was assigned were daunting and, as she admits, overwhelming to her. She, of her own admission, made errors and failed to get all of the work done. But now we are eight months into the program. She must either be capable of performing the required duties and responsibilities or she must recognize that she simply does not possess the qualifications necessary to perform the job as mentioned in the Edith Cavell case, supra. Her comments made to others, captured in para. 4 of the discipline letter, which were not denied, project an image of frustration, perhaps insecurity, and conceivably a tinge of intimidation toward her supervisor. All of this must stop immediately. In light of the foregoing comments the panel concludes the employer had cause to impose the discipline contained in the March 10, 2004 letter and the grievance is dismissed. -13- The union seeks to have the letter removed from the grievor's personnel file. In this regard, the panel refers the grievor to art. 16.4 of the collective agreement which addresses this issue. Dated at Kingston, Ontario, this 21 st day of July, 2005. C. Gordon Simmons Chairperson Ann Burke I concur/dissont Ann Burke Employer Nominee Ron Davidson I concur/dissont Ron Davidson Union Nominee