HomeMy WebLinkAbout1989-1578.Speevak.91-09-19 ONTARIO EMPLOY~'$ DE LA COURONNE
CROWN EMPLOYEES DE L'ON TAFtlO
GRIEVANCE COMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS ., -.-
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180, RUE DUNDAS OUEST, BUF~EAU 2;~00, TORONTO (ONTARIO). MSG ~ZB FAC$IMiLE/TELECOPiE : (4t6.1 fl26-I396
IN THE MATTEI~ OF 2~N ]tlIBZTRAT[0N
Under
THE CRO~ ~P~YEE8 ~L~CT~ B~AZNZN~ ACT
THE GR~E~CE SETT~~ BO~
BETWEEN
0PSEU (Sgeevak)
Grievor-
The Crown in Right of Ontario
(Teachers' Pension Plan Board)
Employer
BEFORE: R. Verity Vice-Chairperson
M. Lyons Member
A. Merritt Member
FOR THE S. Grant
GR[EVOR Counsel
Gowling, Strathy & Henderson
Barristers & Solicitors
FORT HE A. Tarasuk
EMPLOYER Counsel
Smith, Lyons, Torrence, Stevenson & Mayer
Barristers & Solicitors
April 23, 1990
August 15, 16, 17, 1990
November 20, 21, 1990
January 8, 9, 15, 1991
DECISION
This matter involves a decision by the Teachers'
Superannuation Commission (now known as Teachers' Pension Plan
Board) to release Pamela Speevak, a probationary employee, on
December 5, 1989 on grounds of failure to meet the requirements of
her position. In a grievance dated December 7, 1989, Mrs. Speevak
alleges that she was discharged without just cause and by way of
remedy seeks reinstatement with full remedial redress.
No issue of standard of arbitral review arises in this
case because the Employer does not seek to justify its actions on
the alternate grounds of a disciplinary response. The following
provisions of the parties collective agreement are relevant:
ARTICLE 19 - TERMINATION OF EMPLOYKENT
19.2 The Director may release from employment an
employee at any time during the first nine (9)
months of employment as a full-time regular
employee for failure to meet the requirements of
her/his position.
ARTICLE 22 - GRIEVANCE PROCEDURE
RELEASE DURING PROBATION
22.8 Any probationary employee who is released shall
not be entitled to file a grievance.
By Regulation 232 under the Crown Employees Collective
Bar~aininq Act, the Teachers' Superannuation Commission is a Crown
Agency within the meaning of s.l(2) of the Crown Employees
Collective Bar~aininq Act.
In the instant grievance, the Union disputes the bona
fides of the purported release and alleges that Mrs. Speevak's
performance was not fairly assessed during the probationary period.
The Union contends that the release was, in fact, a dismissal
without just cause and that the Employer's decision was motivated,
at least in part, by reasons of anti-Semitism and anti-union
animus.
We are not concerned here with a release under the Public
Service Act. We are concerned with a release under the Teachers'
Superannuation Act, as it was at the time, on the facts of the-
instant case. The Grievance Settlement Board has developed a large
body of jurisprudence in release cases ~hich has been neatly
summarized by Vice-Chairperson Swan in OPSEU {Peter Clarke) and
Ministry of Correctional Services, 443/82:
The Board's jurisdiction has been developed in a number
of cases, including Leslie, 80/77, Haladay, 94/78,
Tucker, 206/78, Pecoskie, 95/80, Atkin, 323/80, Turcotte,
344/80, Keane, 596/81 and Walton, 612/81 and 613/81.
While the test has been differently expressed from case
to case, we think that in essence the question before us
is whether the Employer reasonably and in good faith
exercised the authority in Section 22(5) of the Public
Service Act to release the employee on probation, and did
not seek merely to cloak a disciplinary discharge behind
the release procedure. In essence, this is a question of
fact, and therefore depends upon all of the circumstances
of the case.
Beginning with the Leslie decision, the Grievance
Settlement Board .has consistently held that a termination of
4
employment that may properly be characterized as .a. bona fide
release is beyond its jurisdiction to disturb. If it is not a bona
fide release, it is a dismissal under s.18(2)(c) of the Crown
EmploYees Collective Baraaininq Act. That determination is a
question of fact which is dependent upon all the circumstances of
the case.
Before descending to the particulars of the case, a few
general observations would seem to be appropriate. We do not for
a moment discount the reality of anti-Semitism in our society for
it is a danger that should be combatted by every available tool.-
It presents itself in various forms from flagrant openness to
subtle insinuation but the poison is as abhorrent however
presented. Briefly stated, the grievor's case is this - that the
grievor was a competent employee, that she properly discharged her
duties given her status as a probationary employee, that she was a
victim of a prejudicial attitude on the part of her supervisor
including the prejudice of anti-Semitism.
To these allegations, in essence, the Employer's case
amounts to this - assuming without admitting that the grievor was
a competent employee who performed her services adequately, the
release was grounded on her persistent refusal to co-operate in a
manner consistent with the necessity for teamwork, and her failure
to recognize the fundamental importance of teamwork, and her
release was untainted by any prejudice against her, anti-Semitic or
otherwise
At the outset it should be stated that Mrs. Speevak is a
well educated and bright person who seems to have the innate
ability to do the job to which she was assigned. Confirmation is
to be found in the testimony of other employees - Mrs. Maud, Mrs.
Lovisotto, Mrs. Mandel and even her supervisor Miss Mitra Singh.
We turn now to a consideration of the evidence. We do
not refer to all episodes attitudinal or otherwise but fairness
dictates that there be some mention of significant events. The-
evidence lends itself to a division of two parts: first, the
allegations of anti-Semitism and second, the allegations of.
performance concerns. We postpone consideration of the aspect of
anti-Semitism until later in the Decision.
In this particular case, we do not feel ourself able to
accept unreservedly either the whole story as told by the grievor
or the whole story as told by the supervisor, Miss Singh. We have,
however, stated the impression left upon our minds and the reasons
which have lead us to accept or reject a particular statement.
When assertion is met by counter-assertion, we have sought guidance
by consideration of probability or by extrinsic evidence.
Naturally we studied with particular care the demeanour
and the personality of the two principal witnesses, Mrs. Speevak
and Miss Singh and the manner in which they gave their evidence..
An allowance must be made for the operation of emotional stress and
injured vanity in a case such as this and of a partisanship not
always conscious. In making findings of fact on matters in
dispute, we are mindful of the test as laid down by Mr. Justice
O'Hallaran of the British Columbia Court of Appeal in Faryna v.
Chorn¥ [1952] 2 D.L.R. 354 at p. 356 where he stated in part:
The credibility of interested witnesses, particularly in
cases of conflict of evidence, cannot be gauged solely by
the test of whether the personal demeanour of the
particular witness carried conviction of the truth. The
test must reasonably subject his story to an examination
of its consistency with the probabilities that surroun~
the currently existing conditions. In short, the real
test of the truth of the story of a witness in such a
case must be its harmony with the preponderance of the
probabilities which a practical and informed person would
readily recognize as reasonable in that place and in
those conditions. Only thus can a Court satisfactorily
appraise the testimony of quick-minded, experienced and
confident witnesses, and of those shrewd persons adept in
the half-lie and of long and successful experience in
combining skilful exaggeration with partial suppression
of the truth. Again a witness may testify what he
sincerely believes to be true, but he may be quite
honestly mistaken. For a trial Judge to say "I believe
him because I judge him to be telling the truth", is to
come to a conclusion on consideration of only half the
problem. In truth it may easily be self-direction of a
dangerous kind.
Pamela Speevak commenced work with the Teachers'
Superannuation Commission as a pension administration clerk on
March 6, 1989. She was one of seven clerks in Unit 2 of the
Pension Administration section which is located on the 5th floor of
5650 Yonge Street in Toronto. The purpose of the position is to
administer the payment of allowances under the. Teachers'
Superannuation Act (as it then was) to ensure compliance with
Commission policies and procedures, to maintain accurate pension
records, and to answer enquiries from pensioners and their
representatives. The duties and related tasks of the position are
accurately described in a Position Specification form dated August
20, 1988 (Exhibit 5). Mrs. Speevak was assigned to process ali
files where a pensioner's S.I.N. number ended in 6.
To elaborate upon the grievor's antecedents: She
graduated (cum laude) from Concordia University with a Bachelor of-
Arts degree in Honours Sociology. She had the benefit of
university courses in economics, statistics, accounting and
business administration. Prior to employment with the Commission,
Mrs. Speevak worked for approximately one year in a similar
position as benefits clerk, Employee Benefits branch of the
Ministry of Government Services. In addition, she had experience
with various Toronto law firms as office manager - accounting and
some general business experience in both Toronto and Montreal.
Mitra Singh became the grievor's supervisor on March 13,
1989, approximately one week after the grievor began her
probationary term. Miss $ingh h~d seven years previous experience
with the Ontario Hospital Association where she served for the
final nine months.as supervisor of pension and group benefits. At
the Teachers' Superannuation Commission, Miss Singh reported to
8
Doug Lyons, assistant manager, Pension and Administration section..
For the first several months.~ll went well, although Miss
Singh observed that the grievor was critical of several of her co--
workers.
It was during the month of June that various incidents
occurred which gave management the feeling that Mrs. Speevak could
have an attitudinal problem. For example, she and fellow employee
Jennie Maud got into a dispute which the grievor felt was
insignificant but which, caused Mrs. Maud, a long term employee, to_
complain to her supervisor Miss Singh about the grievor's attitude.
The dispute arose when Mrs. Maud, pursuant to her duties, had
attempted to check the accuracy of the grievor's monthly medical
reports. Although Miss Singh successfully settled the dispute,
Mrs. Maud's complaint about the grievor being overly critical and
hard to work with was to surface again.
On June 30, Miss Singh met with the grievor to advise her
that there was a general office concern that she (the grievor)
complained too much about the heavy workload and that she was
disrupting the team atmosphere by excessive talking (Exhibit 7).
~On the same day, a staff meeting was held in the Pension
Administration section to establish a special three month project,
to accommodate the early retirement of some 4,000 teachers.
9
Pension administration clerks were told to be on standby.to go down
to the third floor where the Benefits section is located to assist
with the "coding" of forms. This special project was the prime
responsibility of the Benefits section, with assistance as and when
required from the Pension Administration section.
As the sequel developed, on the morning of July .4 a
meeting was held for all members of Unit 2 in which Mrs. Speevak
was assigned to go down ,to the Benefits section to assist with
coding of July inceptions. Later in the day, the grievor
questioned her supervisor on two separate occasions why she (Mrs.-
Speevak) had been assigned to the third floor and insisted upon
justification. To this, Miss Singh made plain to the grievor that
she perceived her attitude as being negative (Exhibit 8).
The grievor's attitudinal problems continued. On July 5,
Miss Singh met with the grievor and orally reviewed the job
description and the performance appraisal form. The supervisor's
memorandum (Exhibit 9) confirms that key areas were identified
where the grievor needed improvement, including attitude to'work
and team participation.
On July 27 occurred the Kerr incident, where .the
grievor's handling of a pensioner's concern was the subject of a
complaint. Miss Singh investigated the incident and concluded that
the grievor had misunderstood the pensioner's request and had
10
forwarded an inappropriate letter (Exhibit 10). The problem was
corrected by the grievor under Miss Singh's direction. The
incident itself is of small moment, but is consistent with Miss
Singh's testimony that she made reasonable efforts to assist the
grievor through the probationary period.
Two incidents occurred on August 11 when Miss Singh and
senior clerk Vanda Lovisotto were absent from the work place.
Assistant manager Doug Lyons requested Mrs. Maud to send a pension
administration clerk to the third floor. Mrs. Maud was in charge
of Unit 2 in the absence of the supervisor and the senior clerk.-
According to Mrs. Maud's evidence, the only person available at the
time was Mrs. Speevak. Mrs. Maud testified that the ~rievor
refused the asskgnment, became argumentative, raised her voice, and
stated that the request was unfair because she had performed the
same task the previous day. Mrs. Maud then reported the refusal to
Mr. Lyons who insisted that the grievor be instructed to go to the
third floor. Mrs. Maud testified that although she informed the
grievor of Mr. Lyon's direction, the grievor made no effort to
comply. On Mrs. Maud's evidence, the grievor later advised her
that she (the grievor) had telephoned the project co-ordinator and
had been told that assistance was not required.
It is common ground that this incident provoked a scene
in the office. The grievor's version is to this effect - that Mrs.
Maud had no authority, as far as she was aware, to order her to
11
take on this assignment, that she (the grievor) had pgrformed the
same duty for the past week and one-half, that it was unfair to
continue an already over-extended assignment, and that she would
have explained the circumstances to Mr. Lyons had she been made
aware of his order. It will be observed that the two versions 'of
this incident are in conflict. It is not unusual to find a witness
recalling the same incident with different versions with both
expressing their honest beliefs. To the point in question, we
prefer Mrs. Maud's recollection. The incident is significant,
however, to the degree it reveals the grievor's attitude towards
direction.
On the same day, a second incident occurred which is
worthy of note. On August 11, Doug Lyons was made aware that
personal correspondence addressed to the survivor of a pensioner,
· dated June 22, 1989, had been found in a pension kit in the
resource centre on the fourth floor. This kit, along with a
letter, was supposed to have been sent by the grievor to one of her
clients in June of 1989. Since the kit contained confidential
information, finding it in a public area and at such a late date
understandably exasperated Mr. Lyons. Almost immediately, Mr.
Lyons, on the basis of information then available, wrote an inter-
office memorandum to Miss Singh (Exhibit 11) which briefly outlined
the problem and began with the words, "I want this lady gone" and
concluded with the words "See whether we have enough to let her go
or how we should address this"
12
A word of explanation is necessary as to the grievor's
duty in respect to the kit and letter in question. She was
responsible for preparing the material for mailing. According to
her evidence, she placed the material in an addressed envelope and
then placed the envelope unsealed in the section mail tray. Had
the letter been sealed there would be no doubt that the grievor had
fully completed the task. Evidence indicated that all mail so
handled should have been sealed. However, the evidence also
indicated that the sealing requirement was more honoured in its
breach than in its fulfilment. In these circumstances, Mrs°
Speevak was not at fault for the breach of procedure inasmuch as
she was following what appeared to be the normal practice. With
the benefit of hindsight, it appears that Mr. Lyons too quickly
assumed that the fault lay at the hands of the grievor. There was
no explanation given to the Board on the issue of responsibility
for leaving the survivor's kit containing confidential
correspondence in the resource centre and we do not speculate in
that regard.
Counsel for the grievor urges the point that Mr. Lyons'
memo of August 11 manifested the prejudicial attitude of the
supervisory staff to fault the grievor immediately without making
sufficient effort to investigate the matter. We do not underrate
the force of this argument on behalf of the grievor. On the other
hand, in fairness to Mr. Lyons, his reaction must be viewed in
light of the grievor's previous attitudinal behaviour including the
13
incident involving Mrs. Maud that had occurred earlier the same
day.
On August 12, the memorandum prepared by Doug Lyons came
to the attention of Miss Singh with the comments attached as
previously referred to. Miss Singh prepared a summary of incidents
(Exhibit 14) which reflected adversely on the grievor's ~overall
performance. She then met with the grievor on August 15 for
approximately one and one-half hours, reviewed the performance
history of some seven complaints and for a second time orally
reviewed her performance analysis. According to Miss Singh, the-
grievor failed to appreciate the significance of management's
concern about her performance and f~lt ~"she.was being picked on".
Miss Singh wrote a letter to the grievor dated August 25
which in effect was a general summary of the discussion between
them on August 15. It is important to quote this letter:
25 August 1989
MS. Pam Sp~evak
c/o Pension Administration
Teachers' Superannuation Commission
Dear Pam:
This will confirm our discussion of 15 August 1989 when
you were advised of areas of concern regarding your
attitude and behaviour at work and certain aspects of
your performance as a Pension Administration Clerk.
There have been several incidents over the past two
months of unacceptable behaviour on your part which has
14
resulted in complaints from your co-workers and.
management.
It was noted that on two occasions you challenged.
directions given'to you to go to the 3rd floor to process
new pension inceptions. As you know, this is a task
stated as one of your job functions. You also approached
management and other staff members to solicit support for
challenging the justification and rationale of such
action.
Your willingness to accept directions and changes has not
been evident and this has made the implementation of
procedures and functions extremely difficult.
There were also other incidences involving conflicts with
other members of your work unit which resulted in loss of
production time and frustrations, as well as complaints
from peers that you were constantly talking and causing
disturbance in the team's atmosphere. This made it-
difficult for others to concentrate and carry on with
their work.
You will recall that these concerns were brought to your
attention as they occurred.'
Another, more serious, area of concern resulted from your
performance in two specific incidents:
- complaint from a pensioner (Dorothy Kerr) that
you were insensitive to her situation. The
information you provided over the telephone was
ambiguous and wrong when compared to the
information you sent in your letter. The result
was a possible loss in OHIP coverage and
frustration to the pensioner.
- failure on your part to mail a survivor pension
application form to a spouse of a pensioner.
Despite the fact that you signed the covering
letter, you did not ensure that it was properly
inserted into an envelope and placed in an
outgoing mail tray. When we discussed this
matter you could not account for the fact that
this letter (no envelope), complete with personal
financial information respecting the death of the
pensioner - name, address, SIN, amount of
pension, date of death, etc. was discovered in a
service pension application kit located in the
Resource Centre on the 4th floor.
As you know from the training sessions ~YQU attended
entitled "FIPPA Awareness", the Commission has a very
serious responsibility for the maintenance of
confidentiality of personal information obtained for
purposes of its. administration. As you are also aware,
the Resource Centre is a public place. The discovery of
records such as the above letter by another member of the
public, would cause considerable embarrassment and dismay
to members of the Commission and its staff. Further,
such a discovery could instigate a complaint from the
Office of Freedom and Information and Protection of
Privacy. I am sure you will appreciate the seriousness
of your actions.
In order to meet the requirements of your position, an
immediate and continued improvement must be evidenced in
the following areas:
- your attitude towards your duties and
responsibilities in following directions and_
acceptance of established procedures.
- you must portray a more positive attitude towards
your job, co-workers and your supervisOr.
- .less disruptive talking and socializing during
working hours.
- you must apply your knowledge to maintain strict
standards of performance to provide accurate and
timely information and to protect the right of
confidentiality of personal information.
You are reminded that you are still on probation.
Failure to demonstrate improvement in the areas mentioned
will be taken into consideration in determining your
eligibility to be placed on regular staff and could
result in termination of your employment with the
Commission.
Yours truly,
"Mitra Singh"
Mitra I. Singh
Supervisor, Unit 2
Pension Administration
It will be observed that the letter concluded with a
16
warning to the grievor that "failure to demonstrate~improvement"
could jeopardize her appointment to the regular staff. There was
no reply to Miss Singh's letter of August 25. In the
circumstances, we do not think that it called for a formal
response.
September and October passed without notation of further
incident. At some point during this period, the grievor was
alerted to the fact that she would be assigned to the task of co-
ordinating year-end activities. She was forewarned to allow her
preparation time, although according to Doug Lyons the task itself_
would not commence until about mid-December. We accept Mr. Lyons
testimony on this point.
As already mentioned, the grievor and,her co-workers were
advised on June 30 that their section was to assist in a special
program to accommodate the early retirement of some 4,000 teachers.
That special program was completed on or about October 1. The
section staff successfully completed the special project only to be
confronted by a resultant backlog in meeting payroll deadlines,
processing medical refunds and information respecting pensioners.
In early November, five clerks prepared a proposal to
address the backlog problem, which was accepted and readily
implemented. The grievor expressed concern to both Doug Lyons and
Mitra Singh as to the reason for her inclusion as a participant'in
17
this latest initiative when she had been assigne~'to-co-ordinate
the year-end activities. On the evidence of both Miss Singh and
Mr. Lyons, her inclusion in the backlog clearance initiative was
reasonable since the actual year-end duties would, not commence
until mid-December. The grievor was directed to suspend
preparations for the year-end activities and to assist with
clearing the backlog. The grievor did accede to that request but
according to Miss Singh did so with little enthusiasm and in an
unsatisfactory manner.
Miss Singh testified that on November 20, the grievor was-
asked to process a routine dependent file, gather the facts and
recommend action, hereinafter referred to as~"the routine dependent
file" Miss Singh later learned that there had been no follow-up
on the part of the grievor. By memo dated November 20 (Exhibit
17), Miss Singh drew the grievor's attention to the issue and
insisted that she process the file immediately. We accept Miss
Singh's account of this incident.
On the same day - November 20 - there occurred what wa~
described throughout as "the Khan incident" (Exhibit 18). There
are two versions of this contentious matter. Miss Singh's version
is best related in her own words as set out in her letter to the
grievor dated November 30, 1989 (Exhibit 19):
18
30 November 1989
Ms. Pam Speevak
c/o Pension Administration
Teachers' Superannuation Commission
Dear Pam:
You will recall that my 25 August 1989 letter
specifically outlined key areas of your job which you
were required to improve. Since then I have noticed on
several occasions that you have not made significant
attempts to meet the standards which were set.
There were two incidents where your poor performance
resulted in a complaint and dissatisfactory service to a
pensioner.
On Monday, 20 November 1989, I asked you to follow up a
telephone inquiry from a pensioner (Mr. H. Khan). I gave
you the specific details and requested that you look up.
the file and call back the pensioner. Mr. Khan
telephoned me twice on Thursday, 23 November 1989, asking
me to follow up his inquiry because he did not receive a
satisfactory answer.
Mr. Khan also lodged an official complaint with Mr.
Foster, the Divisional Director. On Friday, 24 November
1989, when I investigated the matter, you informed me
that you resolved the file and had promised to Mend a
copy of the OHIP letter. Upon further investigation, I
found that you did not and had not completed the file.
For the past month the department attempted to clear out
the backlog. As a result five clerks were asked to co-
ordinate the work schedule, when this contingency plan
was made, you were asked to assist with file processing
and suspend the year-end activity function. You
expressed concern regarding these arrangements and
continued to question the rationale for this action. You
approached the Assistant Manager, to again express your
concern about year-end, even though a general meeting was
held and details were provided to all clerks in the
department. The Assistant Manager met with you and
explained the reason. You continued to slow down your
production by lingering and socializing during regular
working hours. I met with you after observing this and
advised you that you were required to assist in these
short term measures. However, you continued questioning
and socializing.
Pam, from your performance and attituder it~is evident
that you are not making any attempts to improve. You
have made it extremely difficult for'the department to
accomplish its goal. You continue to disrupt the working
environment, and put the Commission at risk by providing
inadequate service to pensioners.
In spite of repeated instructions to you, your attitude
indicates a lack of interest or concern in improving your
performance and meeting the requirements of your
position. You are reminded that you are nearing the end
of your probationary period that an immediate improvement
is required in order to be considered eligible for
appointment to regular staff. Failing any evidence of
efforts to meet this requirement, your employment will be
terminated at the end of your probationary appointment.
Yours truly,
"Mitra Singh"
Mitra Singh
Supervisor
Immediately upon receiving this letter, the grieVor met
with both Doug Lyons and Mitra'Singh. The grievor impugned the
veracity of the contents of the letter in question. Mr. Lyons
suggested that-she provide a written response. To this suggestion
the grievor acquiesced.
The grievor's written response was delivered by Miss
Singh and to members of senior management on December 4. For
accuracy, we produce the letter in response:
3 - DEC - 1989
Subject: YOUR LETTER OF 30 NOVEMBER 1989
Dear Mitra,
The gravity of your letter of 30 November 1989, warrents
2O
a prompt response. The following is the response.
Concerning Paragraph 1:
No standards have been communicated to me either orally
or in writing.
Concerning Paragraph 2, 3, & 4 (Re: Mr. H. Khan)
" .... the specific details" (see Para 3.) consisted solely
of the words "Handle It" written on a yellow 3M Post-It
note, which was attached to a telephone message to Mitra
Singh from the counsellors. The information in the file
(H. Khan) indicates that the counsellor was trying
repeatedly to have Mitra Singh deal with Mr. H. Khan.
Dates and proof will be shown on demand.
Some simple investigation/review of Mr. H. Khan's file
would have revealed the following to you.
OHIP was fully covered with arrears taken. Mr. H. Khan's-
previous address on file was not his correct one.
Initially the OHIP letter was forwarded to Mr. H. Khan's
former address.
I contacted Mr. H.-Khan as soon as instructions were
given to me. He was relieved that someone finally
responded to him. I explained that he was fully covered
and this would reflect-in his November pension cheque.
I then determined in speaking with H. Khan that he had
never received our letter. He changed his address
without notifying us of the change. I immediately sent
a copy of the letter on file to his proper address
(PRIORITY POST) I then updated his file to reflect his
current address to prevent a repetition of the same. His
letter of confirmation of his new address is forthcoming.
Mitra, if you require assistance reviewing the file of
Mr. H. Khan, regarding the above matter, I will be more
than happy to help you.
Concerning the Remaining Paragraphs:
The remaining allegations in your letter can similarly be
shown to be devoid of factual basis.
Review of my work would demonstrate that I have been
actively participating in clearing the stated backlog of
files.
While I find your letter to be without factual basis,
often it contradicts readily available information. It
further surprises me in view of the following, facts:
There was a note of commendation from yourself to me
regarding collection of tax overpayments and the
summarizing .the list of T4A's and sending letters to the
government to collect overpayments. Your note stated
"This is very good" The savings to the commission when
collected will be $4,029.33.
There were numerous other instances of positive feedback
from yourself to me. I also received a positive feedback
letter from aPensioner (Mr. G. Heggarty) Copy available
on request. It is understood that this type of feedback
is rare.
There were numerous, instances of positive oral feedback
from Vanda Lovisot%o, senior clerk and yourself as to~my
accuracy and how timely my work was completed.
I also handled all the balancing and writing up
.associated with the Monthly Medical Reconciliation_
Reports for the pension payroll department. I did this
over and above my daily workload for the months of May,
June and July 1989. The heaviest months especially in
view of the extra 4,000 pensioners taking advantage of
the OPEN WINDOW. In August 1989, the task was reassigned
to two other clerks. They could not successfully perform
the function and I stepped in to complete the task, at
your request. It then was successfully completed.
Subsequently this task has been reassigned to the
Analysis unit and my assistance is still requested and
given on a monthly basis.
On several occasions you told me ;that" .... you are going
to be put into a responsible position of co-ordinating
year-end activities and utilizing your accounting and
supervisory skills."...You are going to be a supervisor,
for some reason you stated this in mid November 1989.
Over the months I have given in many ideas and proposals
for changes in methods of production and streamlining of
work. One such proposal was given to you in September
1989. It has largely been largely implemented save for
allocation of specific staff members. It is understood
that the anticipated efficiency gains are being achieved.
Mitra, we are charged with the task at working toWards
and meeting the Department goals. This requires
teamwork. If you have any questions on the above matters
or any other aspect of my work, let's discuss it ASAP, to
ensure goals are continuing to be met."
Yours truly,
PAMELA SPEEVAK
The Board is now faced with a choice between two versions
of the Khan incident. The main issue arising from the Khan
incident is the allegation of the grievor's delay in processing the
file. While already noted, Miss $ingh asserts that she gave the
grievor instructions on November 20. The grievor as confidently
asserts that she did not receive instructions until November 23.
On a careful review of all the evidence including the external
circumstances, we are unable to determine the probable date on
which the assignment (the Khan incident) was given to the grievor.
In any event, this incident was resolved to Mr. Khan's satisfaction
within a day or two on or about November 24.
On December 4, for the first:time, the grievor advised
senior management including Shirley Heath, Manager, Administration
and Finance and Doug Lyons that she had experienced anti-Semitism
by supervisor Mitra Singh. Mrs. Speevak met with Doug Lyons to
express that concern. Subsequently, the grievor spoke with
Divisional Director Bill Foster and advised him of the alleged
anti-Semitic remarks. A meeting was scheduled for the grievor to
meet with Mitra Singh to review her written response at 10:15 a.m.
on December 5. That meeting was cancelled by Miss Singh without
explanation. At 4:20 p.m. on December 5, ten minutes prior to the
end of the probationary period, Miss Singh terminated the grievor's
23
employment by giving her the following letter: _..
5 December 1989
'Ms. Pam Speevak
c/o Pension Administration
Administration & Finance Department
Dear Pam:
This is further to my letters of 25 August 1989 and 30
November 1989, when you were advised of areas of your
performance, and attitude towards your job, which
required improvement.
As there has been no evidence of efforts on your part to
meet these requirements, I regret to advise you that you
are not eligible to be appointed to the regular staff of
the Teachers' Superannuation Commission.
Your employment is therefore being terminated as of
today, 5 December 1989, for failure to meet the
requirements of your position during your probationary
period.
Yours truly,
"Mitra Singh"
Mitra Singh
Supervisor, Pension Administration
The grievor maintains that she had been "an exemplary
employee" during her probationary period and that a number of the
alleged incidents were "blown out of all proportion" and
'embellished in her words "to satisfy Doug Lyons"~ In the grievor's
words, "I did nothing to warrant what was happening to me" Mrs.
Speevak was critical of the fact that there had been no formal
appraisals and no comprehensive performance review. One comment
arises on Mrs. Speevak's criticism of no formal review. Although
a formal performance review is' not mandatory,, it would seem
24
reasonable to expect such an appraisal where a -probationary
employee is not viewed as performing to the required standard.
We now turn to consider the allegations of anti-Semitism.
In this connection it is useful to begin with the evidence of Mrs.
Ruth Mandell. Mrs. Mandelt is a pension administration clerk who
has worked for the Commission for approximately 15 years. She
testified as to three incidents which involved her where Miss $ingh
made uncalled for remarks. These remarks were alleged to have been
made by the supervisor early in the morning, prior to 8:00 a.m.,
and in the absence of other employees. Mrs. Mandell recalls that-
the first remark made by the supervisor was "you must be rich"
According to Mrs. Mandell she replied: "I am not rich, you must
have more than I do because you have a home". The second remark
was to the effect "what's it like to be Jewish?". Mrs. Mandell
testified that she replied: "what's it like to be East Indian?"
Mrs. Mandell recalled that she was taken aback by the second remark
and felt that the conversation was unbecoming to a supervisor. The
third remark made by Miss Singh to Mrs. Mandell was to enquire if
her husband was Jewish. Mrs. Mandell testified that at no tim~ did
she hear Miss Singh make similar remarks to the grievor.
Mrs. Mandetl was an impressive witness and we accept her
testimony without reservation. Her evidence at the hearing went
unchallenged by the Employer.
It should be stated that the grievor testified that she
heard Miss Singh "tease" Mrs. Mandell by making such comments in
the workplace as "Ruthie, so you're Jewish"; "is Max Jewish also?";
"hey look, Ruthie is Jewish"; "aren't you loaded Ruthie?"; and
"tell us how rich you are" It will be observed that the grievor's
recollection of the words attributed to Miss Singh are much more
prejudicially coloured than Mrs. Mandell's. AS already indicated,
we accept the evidence of Mrs. Mandell.
On June 6, the grievor took Miss Singh to lunch.
.Initially the conversation focused on the grievor's education and
background and other pleasantries. On the basis of the grievor's
evidence, Miss Singh made a number of "bizarre comments" including.
"what's it '~ike to be Jewish?"; "how do you know someone is
Jewish?"; and "is it hard to be Jewish?". The grievor asserted
that she was extremely uncomfortable with these questions but was
unsure at that stage whether they resulted-from bona fide curiosity
of the Jewish fait~ Or overt feelings of anti-semitism. According
to Mrs. Speevak, Miss Singh surmised that the grievor was Jewish.
Miss Singh counter-asserts that the grievor volunteered the fact
that she is of the Jewish faith and that'she (Miss Singh) casually
let it' pass and denied the remarks attributed to her. It seems
strange that Miss Singh who was the luncheon guest of the grievor
would gratuitously raise the matter of the grievor's religious
faith.
Continuing her allegation of anti-Semitism, the grievor
referred to an incident on an unfixed date when she was putting on
her coat to leave the office. She testified that Miss Singh pulled
on the sleeve of her coat and said to her in the presence of other
employees "Wow, would you take a look at this jacket. Pam is
Jewish. She must be rich to afford such a jacket". Mrs. Speevak
stated she spoke to Miss Singh the following day and that the
supervisor apologized for the incident, denied that she was anti-
Semitic and stated that it wouldn't happen again.
Miss Singh acknowledged this particular incident. On the_
day in question the grievor was wearing an attractive black leather
coat and according to Miss Singh she said "is it true Jewish people
are'wealthy?" To this it was said that Mrs. Speevak smiled and
replied "yes, some of them are". The evidence differs on the date
of the apology. On Miss Singh's version, the grievor told her that
she had spoken to her husband about the matter and thereupon Miss
Singh apologized for what she described as an "inadvertent remark".
She fixes the date of the apology on the basis of her own
memorandum as being several weeks after the coat incident.
Further allegations of anti-Semitic prejudice on the part
of Miss Singh are as follows: On unspecified dates in July,
August, SePtember and October, 1989 Miss Singh was alleged to have
made a number of racial remarks to the grievor in the workplace in
27
the presence of other employees, including Mrs. Ruth Mandell, to
the effect: "you must be rich"; "all Jews are rich"; "how can you
work if you are Jewish?"; "what's it like to beJewish' ~". ; and "is
your husband Jewish?" Mrs. Speevak testified that kindred r~marks
were made by Miss Singh to her "over and over again as frequently
as twice a day~'.
Miss Singh categorically denied these repetitive
allegations of a prejudicial nature. It is noteworthy that Mrs.
Speevak testified that these repetitive prejudicial remarks'-~ere
made to her in the presence of other office employees. It is not-
without significance, that no other office employee was called tO
support these allegations.
We note that the grievor's allegations of racial slurs
repeated over a period of some three months stand in isolation. It
is of significance that Mrs. Ruth Mandell, a long time fellow clerk
throughout the relevant period and a member of the Jewish faith has
no recollection of such remarks directed to the grievor by Miss
Singh.
On this point, the Board accepts the testimony of Miss
Singh. This is not to say that the grievor said something she did
not honestly believe. In the retrospect of an emotional stress
arising from termination of employment and the circumstances of
this case, the grievor may have been led to a partisanship on this
25
point not conscious, which is not altogether surprising in view of
the sensitivity of the issue. It was evident to the panel that the
grievor was labouring under considerable emotional turmoil.
One must look at the evidence of anti-Semitism not in
isolation but rather in the setting of the whole case. we find
that there were four incidents and that it would be difficult for
the grievor to hear these remarks without a sense of outrage. The
impugned remarks admittedly made to Mrs. Mandell and Mrs. Speevak,
standing alone, might give colour to a suspicion of an anti-Semitic
prejudice. However, on a careful and critical examination of the-
whole of the case, and with the benefit of hearing the evidence of
each of the principal witnesses, we do not believe that the
grievor's termination of employment was tainted by any anti-Semitic
prejudice. We believe that the reason for termination was the
employer's perception that the grievor had an unacceptable
attitudinal problem.
On the issue of anti-Union animus there was simply no
evidence to support that allegation.
The Board was advised that Mitra Singh left her
employment with the Teachers' Pension Plan Board in the fall of
1990 to return to employment with the Ontario Hospital Association.
The employer introduced post-release/discharge evidence involving
a person called "Pam" who allegedly made three unsolicited
29
telephone calls to the O.H.A., purportedly to cast ~doubt on the
employment of Mitra Singh and to blacken her reputation. In
particular, we heard evidence from Nancy Vose, O.H.A. manager of
human resources as to a telephone call she made to a person called
"Pam" on September 10, 1990. This evidence was tendered by the
Employer for purposes of credibility over the strenuous objection
of counsel for the Union. The Board wishes to make it clear that
we exclude from our consideration all such evidence which in our
view has no probative value to the issues before us.
It would appear that most arbitrators in both the public-
and private sectors accept the principle that the employer is
entitled to assess suitability for full-time employment "on the
broadest of grounds" See generally, Re Porcupine Area Ambulance
Service and Canadian Union of Public EmploYees, Local 1484 (1974),
7 L.A.C. (2d) 182 (Beatty) where the arbitrator stated at p. 184:
Suitability would appear to encompass such notions as the
character and compatibility of the probationary employee
..... as well as a determination that such an employee is
not likely to meet either a present or future standards
and requirements demanded by the company .....
It can be said that capacity to perform the job and
attitude are both components of the requirements of a position.
Grievance Settlement Board jurisprudence makes it clear that
failure to correct an attitudinal deficiency, in appropriate
circumstances, can form the basis of a bona fide release. See
generally, Keane_, 596/81 (Roberts); Bargello, 61/82 (Roberts); and i
Blackshaw, 557/83 (Verity).
In the instant case, we are satisfied that there is ample
evidence to conclude that this is not a bona fide release and that
the grievor was dealt with in a disciplinary fashion.
Despite a number of errors made throughout the
probationary period, we find that the grievor was fully able to
perform the technical requirements of her position. By all
accounts, she is intelligent, well-spoken and has the ability to
learn new concepts quickly and accurately. As Miss Singh candidly
acknowledged, the grievor has an aptitude for numbers and a solid
background of training and experience in accounting procedures.
Presumably for that reason, she was chosen to co-ordinate the year-
end activities, a duty previously performed at the supervisory
level. We find it strange that the year end co-ordination project
was assigned to Mrs. Speevak towards the close of her probationary
period if she had, in fact, been performing in a markedly
unsatisfactory manner. It should be stated that the year-end
project was to commence in mid December after the grievor's
probationary period had ended.
It is true that the grievor demonstrated a number of
attitudinal deficiencies, particularly between June and August
1989, which reflected adversely on her overall performance and
31
which were brought to her attention. Mrs. Speevakl_s rg!uctance to
accept constructive criticism was naturally a source of concern to
the employer. It is a given that any employee, probationary or
regular full-time, has a duty to act in accordance with the
reasonable directions of a supervisor'
The evidence satisfies us, however, that there was a
notable improvement in the grievor's general attitude following
Miss Singh's letter of August 25. Having requested the grievor to
undertake the co-ordination of year-end activities, it is not
altogether surprising that Mrs. Speevak questioned her supervisor.
and Mr. Lyons on being assigned to the backlog team. A preparation
period for co~ordination activities is perfectly understandable,
parti6ularly for a probationary employee as'suming a first time
duty. In our view, the Employer unreasonably faults the grievor
for questioning the diversion from the preparation period for co-
ordination activities to the backlog project.
There was no notation of any incident reflecting
adversely on the grievor's performance during the m~nths of
September and October, 1989. 'indeed, it was not until mid
November, some two' weeks prior to the end of the grievor's
probationary period, that the employer documented two further
concerns, to which reference has' already been made. To avoid
misunderstanding we refer to the two incidents on November 20;
namely, "the Khan incident" and "the routine dependent file". In
32
essence, the employer relies upon these two documented incidents in
mid November to conclude that there was a recurrence of an
attitudinal problem. In our opinion, the evidence suggests that it
is unreasonable to justify such an assessment. Briefly stated,
Miss Singh viewed the grievor's attitude as an unacceptable
problem. In our view, Miss Singh took an unreasonably adverse view
of the grievor's attitude.
On the other hand, we find that the grievor's conduct was
not totally free of criticism. Mrs. Speevak did not sufficiently
recognize that the office was labouring under the burden of
considerable back-log of work and that management expected a little
extra by way of co-operation of the staff.
With some five days remaining in her probationary period,
including a weekend, the grievor was given a letter critical of her
performance with instructions for immediate improvement or
termination of employment. Not surprisingly Mrs. Speevak submitted
a strong response (Exhibit 23) in defence of her performance. At
first blush, this letter has the colour of impertinence on the part
of an employee towards her supervisor. However, on careful
analysis of the circumstances it is, in our view, more consistent
with the response of a distraught employee who clearly saw there
were differences between herself and her employer that needed to be
dealt with in frank and forthright words. An allowance may fairly
be made for the fact that it was a response from an employee who
felt she had been unfairly dealt with and feared that she would be
terminated at the eleventh hour of her probationary period.
.It is worthwhile to repeat verbatim the two final
sentences of Miss Singh's letter to the grievor dated November 30,
1989 (Exhibit 19), which was received by the grievor late in the
morning on December 1:
You are reminded that you are nearing the end
of your probationary period that an immediate
improvement is required in order to be
considered eligible for appointment to regular
staff. Failing any evidence of efforts to
meet this requirement, your employment will be
terminated at the end of your probationary
appointment.
The probationary period in question ended'at 4:30 p.m. on
December 5, 1989. In other words, the grievor's probationary
period would expire within five days of Miss Singh's letter of
November 30 which included a non-working weekend.
In effect, the grievor was given two days to demonstrate
"an immediate improvement" "in order to be considered eligible for
appointment to regular staff".
Given the time frame of Miss Singh's demand for
improvement, it appears to us that her letter was unreasonable and
out of touch.with reality.
On the evidence, we find that the employer did not
reasonably and in good faith exercise its authority to release the
grievor during her probationary employment period. In the result,
this grievance must succeed on the finding that the facts do not
support a bona fide release and that the employer's actions must
then be characterized as disciplinary in nature.
The grievor shall be forthwith reinstated to her position
as a Pension Administration Clerk with compensation for lost wages
and benefits together with interest subject, of course, to the
usual rule of mitigation of damages. The Board shall retain
jurisdiction in the event of any difficulty encountered in the
implementation of this decision including the appropriate quantum
of compensation.
DATED at Brantford, Ontario, this 19th day of September,
~ VERITY, Q.C. '- VICE-CHAIRPERSON
:?. ...........
A. MERRITT - EMPLOYER MEMBER
G.S.B, 1578/89
SPEEVAK (OPSEU ~ Teachers' Pension P. lan Board).
ADDENDUM
I fully support the comment in the award that "...the reality
of anti-Semitism in our society...is a danger that should be
combatted by every available tool. It presents itself in
various forms from flagrant openness to subtle insinuation
but the poison is abhorrent however presented."
In the present case, although it was found that the Grievor's
termination was not tainted by anti'-Semitic prejudice, there
is no doubt that the Grievor's supervisor, Mitra Singh, made
anti-Semitic remarks to both.the Grievor and Ruth Mandel on
several occasions. It is totally inappropriate for a super-
visor to make such comments, especially to a subordinate, even
if the supervisor believes such comments were "innocent" or
"I didn't mean anything by them" or "I didn't know they were
offensive". Nor does the fact that the Grievor may have raisled
the issue of religion confer on the supervisor the right to
make such comments.
Regardless of how 'innocent' they may have been, I found the
anti-Semitic comments of ).;itra Singh abhorrent. I trust she
has learned something from these circumstances and that she
will avoid making any similar comments in 'the future.
a~ Toronto this 9th day of July, 1991.
DISSENT
Having read the award of the majority in the Speevak case, I find that
I must dissent from its findings. I would Iike, first of all, to briefly
review the facts of the case, perhaps from :a somewhat different point of
view than that that was set out in the award.
The grievor, Mrs. Speevak, a well-educated and bright person, seems
to have the innate abiility to do the job to which she was assigned. This
ability was confirmed by her fellow employees, Mrs. Maud and Mrs. Lovisotto,
ane even by her supervisor, Miss Mitra Singh. She also had previous
experience in the type of work to which she had been assigned.
However, there is a great deal of difference between having the
ability to do a job and actually doing it successfully. The attitude which
one brings to a job can make al! the difference between being a successful'
employee and a valued member of the team -- and the one who is consistentIy
causing problems.
The Question then that must be answered; whether management was
justified in releasing the grievor when it did or was it not? In presenting
its case, the management cited a considerable number of incidents where
it believed that the grievor was in error and where her attitude, in
particular, lay at the root of her problems. In looking at these problems,
one cannot help but be struck by how her attitude generally had caused
the problem, or if it did not, it had exacerbated the problem once it had
occurred. And one must remember that, in looking at each of these prob!ems,
the grievor was on probation and was learning the job, supposedly trying
to convince her'empIoyee that she would be an employee worth'retaining at
the end of the nine month probationary period.
It was during the month of June, t989, that various incidents
occurred which gave management the feeling that Mrs. Speevak was going to
be a problem. On June 14, for example, she and a fellow employee, Mrs.
Jenny Maud, got into a dispute which the grievor felt was insignificant,
but which caused'Mrs. Maud, a long-term employee, to go to her supervisor,
Miss Singh, to complain about Mrs. Speevak. Although the dispute was
settled, Mrs. Maud's complaint about the grievor being hard to work with
and overly-critical was to surface again and again.
Indeed, at the end of June, another episode had occurred where the
grievor's supervisor had had cause to reprimand Mrs. Speevak regarding
other employees' concern that she complained too much and that she caused
a disruption in the work area. Specifically, the grievor complained
that the medical report for the month of June, that she had been asked to do,
was not her job and that she had too much work to do. After a discussion
with Miss Singh, the grievor ilad agreed to do better in the future, but'this
was an attitude which one would not expect of a probationary employee.
However, it had been only a few days later, on July 9, that the
grievor questioned not only Miss Singh, but also her other supervisors
as to why certain changes in work pIans were being made, and more
specificalIy, why she should have [o go down to the 3rd floor to help with
an overload concerning receptions. Once again, Miss Singh had told her
she was perceived as having a negative attitude to her work and not being
adaptable. Obviously, by the end of July, the grievor is seen by both
the supervisors and her fellow emplc>ees as hard to work with and arguTentative.
There then occurred over a period of time a number of incidents in whi. ch
which she had mistakes in dealing with clients and fellow employees, such as
in the "Kerr incident", for example on pages 9-10 of the award, where the
grievor's handling of the case left much to be desired, t believe it is safe
%o say that i% would have not occurred if the grievor had been more careful in
the handling of the whote matter. In itself, what she had to do was not
difficult; it was just that she had bandied it rather carelessly and gave the
impression that she had felt that her errors Were not al! bad and that people
in the department had been overly "picky".
Another episode, one of two incidents which occurred on August Il, wa~
the finding of an opened package containing a Survivor Kit with an accompanying
confidentia! letter in the Resource Centre -- an area !eft open to the pubIic.
This package was to have been sent to a Mr. Cross, one of Mrs. Speevak's clients,
and was supposed to have been sealed. Testimony at the hearing reveaIed that
the sealing was not always carried out as it shouId have been by members of 'the
department. Still, the fact that not everyone following the order strictly does
not necessarily excuse the grievor. At any rate, when the Kit was discovered
by another employee, who then reported it to another supervisor and then to
Mr. Lyons, Mrs. Speevak~s supervisor, Mr. Lyons was naturally more than a 11ttIe
upset. In fact, he was so upset that such information of a confidential nature
had been left lying about that he wrote a memo to the grievor's immediate
supervisor in which he stated, "I want this lady gone!" -- a sentence on which
the Union placed great store as to She reason for the grievor's ultimate
dismissal, which would occur four m~nths later!
Although it was never proven at the hearing that the grievor had been
responsible for the Survivor Kit finding its way to the Resource Centre,
· it is obvious that two major incidents alt in the same day, in which Mrs. SpeevaK
had been the key person, caused Mr. Lyons to lump to the conclusions that he
did. In addition, Miss Singh pointed out at the hearing that there were errors
in the letter accompanying the Kit. Mr. Lyons's memo had requested Miss Singh
to investigate further and report back to him. The upshot of the whole matter
was another interview with the grievor with the gravity of the matter being
pointed out. It seems obvious that Mrs. Speevak was being given another
opportunity to improve with the expectation that she might show that she could
get along with her fellow employees and be more careful with her work.
The other incident that occurred ~on the same day of August II involved
a fellow employee, Mrs. Jenny Maud, who, while being temporarily in charge
of the department, had requested that the grievor go down to the 3rd floor to
help out. The grievor refused to'go saying that Mrs. Maud had no right to give
her orders, it was unfair, and that she had just been down there the previous
day. Mrs. Maud, backed by other employees, believed that she did have the
authority and said that the grievor was at the time the only one free from
pressing tasks and should go. The upshot of this whole matter was that the
grievor contacted the key person, Mr. Tunney, on her own authority and Mr.
Tunney, who was evidently upset by the delay tn getting help, then said for her
to forget it and that she was no longer needed.
The next example of her somewha~ careless attitude was the complaint
made by a fellow worker, Ms Jovette Lefebvre, that the grievor had left
information of a confidential nature with a client's roommate, much to the
chagrin of the client. This incident seemingly occurred in Iate August and was,
of course, against the policy of the Commission. Miss Singh, in her evidence,
says that the grievor admitted that she had done this and expressed her regret,
but in her testimony, Mrs. SpeevaK said she could not remember the incident.
Weighing the credibility of the two people over the days of the hearing, I have
no problem in believing that Miss Singh's evidence is the more credible.
Early in November, there then occurred the first of three incidents which
were to play a major role in the dismissal of the grtevor. The first incident
had to do with the "backlog", a problem created by the early retirement of
some 4,000 teachers and how to deal with the resultant problem usin§ the
existing staff. A committee of five clerks worked out a solution which was
quickly accepted and implemented. The grievor, however, had expressed concern
to her supervisors about her incIusion in the plan when she had already been
assigned to coordiante year-end activities. According to both Mr. Lyons and
Miss Singh, her actual year-end duties would not begin until mid-December so that
there was no real problem in her assisting. The grievor took the explanation
with ill-grace and resisted her incIusion. Eventually, she did agree to assist
but did so according to Miss Singh with "little enthusiasm and in an
unsatisfactory manner". In other words, her problem came first and the good of
the organization was secondary.
There then occurred the second and third incidents both on November 20
as the grievor's probationary period was nearing its end. A dispute arose
between the grievor and her superiors over the processing of a dependant's
file. Showing that she seemed to have learned little and that her attitude
had not changed, the grievor basically refused to do what she had been asked.
What's more, she never did do the job; eventualIy, saying that it was too
difficuIt for her to Go, although she had originally argued that it was
something that shouldntt have been done at all. Whatever the ins and outs
of the problem were, her attitude was stilI uncooperative and insubordinate.
The other episode was the grievor's handling of the Khan problem,
when she was, according to Miss Singh, requested to handle a problem in
regards to a pensioner, Mr. Khan. The details are set out on pages 18, 19,
and 20 of the award. Miss Singh and the grievor gave conflicting testimony.-
Essentially, Miss Singh claimed that she had given the grievor a telephone
message from Mr. Khan on November 20 and had told her to handle the problem
after consulting the file. Whatever happened between November 20 and 24
is.unclear with the grievor claiming to have looked after the matter while
Miss Singh stating that she had not. In the interim, the pensi.oner had
complained to Mr. Foster, a supervisor. The central fact remains that the
grievor did not send the letter until November 24, although she claimed to
have handled the problem earlier, if so, then why had Mr. Khan felt it was
necessary to phone Mr. Foster on November 23? I found that the grievor's
testimony in this matter was evasive and not straightforward, particuIarly
~n comparison to that of Miss Singh's. In my opinion, the grtevor did not
follow through with what she had been requested to do on November 20 and her
explanation for her actions on page 20 of the awarddo not ring true.
Certainly it was the last straw as far as the management was concerned
and was followed on November 30 by a letter from Miss Singh to the grievor,,
putting the grievor on short notice. The letter outlined the grievor's short-
comings, particularly stressing the Khan incident and the grievor's
uncooperative and insubordinate attitude along with the fact that she did
not seem to be making any effort to improve her attitude in any way. To quote
the letter:
You have made it extremely difficult for the
department to accomplish its goal. You continue
to disrupt the working environment and put the
Commission at risk by providing inadequate service
to pensioners.
It requested an immediate improvement and failing that, the grievor would
be terminated.
The grievor and her two immediate supervisors, Miss Singh and Mr.
Lyons, met on December I to discuss the letter of reprimand. The grievor
was given an opportunity to write a response over the weekend. This letter
was received on December 4 and rather than being conciliatory or cooperative
in tone, it was just the opposite. Two passages from the letter are all
that is needed to show its tone:
?) Mitra, if YOU require assistance reviewing
the file of Mr. H. Khan, regarding the above
matter, I wili be more than .happy to help you.
2) Mitra, we are charged with the task at working
towards and meetin§ the department's goals.
This requires teamwork. If you have any
questions on above matters or any other aspect
of my work, let's discuss it ASAP to ensure
that goals are continuing to be met.
Under severe cross-examination, the grievor admitted that the tone of the
letter left much to be desired, a feeling with which management certainly
agreed. When one reads the two above excerpts, one can only wonder as to
who i$ the supervisor and who is the employee, and if this is the way
the grievor acts as a probationary employee, how would..si~e, act if...
appointed to permanent .staff?
Faced with this offensive and unrepen'~ attitude on the part of
the grievor, management released her on December 5.
Having 'set out tile facts of the case as I sea them, I should like
to point out that I do agree with the findings of the majority that the
dismissal of the grievor was not motivated by anti-Semitism on the part
of the management and particularly, not on the part of i.ls Singh. The
~itole matter has been thoroughly analyzed by the majority on pages 24 to
26 of tae award, but I s~ouId Iike to make two comments in regards to the
allegations.
First of all, it is indeed ~r~,'~ strange that the grievor had
waited until December 4 before making any'accusations of anti-Semitism.
She had been employed for nearly nine months; yet, she had not raised
~he issue with Mr. Lyon~or Mr. Foster nor had her fellow Jewisl~ employee,
Mrs. ~ande11, heard any anti-Semitic remarks directed at the grievor.
In regard to the large number of alteged incidents of anti-Semitism
supposedly directed at the. grievor by Ms Singh, one can only wonder how
Mrs. I.landell heard none of them when her desk was in the immediate vicinity.
Furthermore, one would have thought that in her self-serving letter
of December 4 Ms Speevak would have raised the issue since it was likely
going to be the last opportunity to ~ustify her position. Of course,
the obvious answer is that there is no reason to raise it since it did
not figure in the reasons for her disagreement with ~s Singh and her
threatened dismissal.
However, I must say that beyond this, I cannot accept the conclusions
reached by the majority. The majority has included the exceIlent statement
of Mr. Justice O'Hallaran on page 6 of the award regarding the attitude and
demeanour of witnesses on the stand and how carefully their evidence must
be examined and weighed by those sitting in judgment, particularIy in regard
to witnesses who are "quick-minded, experienced and confident witnesses, and
of those shrewd persons adept in the half-lie and of long and successful
experience in combining skiIful exaggeration with partial suppression of the
truth." One could, I think, assume that in this case one of the two major
protagonists, either Miss Singh or Mrs. Speevak, must fail into this category
or why should it be included in the award? No clear comment is made at the
end of the quotation by the majority, but to my mind it is sureIy the grievor
who is being described for she is far more experienced and quick-minded' and
far more at home on the witness stand than Miss Singh, who struck me as being
somewhat naive, inexperienced, and lacking the confidence and verbal skiIIs
of the grievor. I think that the award bears this out for, in nearly every
case, when there is a choice to be made as to whose evidence is preferred,
Miss Singh's evidence is chosen.
Consequently, it is difficult to understand the statement of the
majority on pages 27 and 28 that says;
This is not to say that the grievor said something
she did not honestly believe. :In the retrospect
of an emotional stress arising from termination of
employment and the circumstances of this case, the
grievor may have been led to a partisanship on this
point not conscious, which is not aItogether
surprising in view of the sensitivity of the issue.
It was evident to the panel that the grievor was
IabourJng under considerable emotiona! turmoil.
First of at1, I cannot agree with this last statement, particularIy as an
excuse for her not telling the truth and secondly, in my opinion, most of
the grievors are in that state when on the stand and I must say that Mrs.
Speevak seemed to handle whatever emotiona! stress she was under far better
than the majority of grievors and witnesses with whom I have come into
contact. It is simply an explanation with which I find difficult to agree
particularly when one looks at the considerable amount of experience the
grievor has had, as for example, with a number of law firms in Toronto and
the self-confidence which she showed during the case. There is, in my
opinion, little doubt that the grievor was not a credible witness. One must~
therefore heed the appropriate remarks of Mr. Justice O'HalIaran in Weighing
the grievor's testimony at every turn.
Another exceIlent quotation, used on page 29 of the award,'is that of
Arbitrator Swan from Re Porcupine Area Ambu!ance Service and Canadian Union
of Public Employees, Local 1484 (1974), 7 L.A.C. (2d) 182 (Beatty) which
states
Suitabi]ity would appear to encompass such
notions as the character and compatibility
of the probationary employee...as welI as
a determination that such an 'employee is
not likely to meet either a present or
future standards and requirements demanded
by the company ....
Furthermore, the award states that
the employer is entitled to assess suitability
for full-time empIoyment "on the broadest of
grounds".
In general then, the probationary employee must not only have good technical
ski!is, but her attitude must be cooperative, she should be compat£bIe and
be of good character. In this case, it was the attitude of the grievor which
was the problem. It would appear from the evidence that, even from the firs-~
day when at her first meeting with Miss Mitra Singh, she complained about the
fact that the office was not computerized and as well as criticizing two
of her fellow empIoyees, there was going to be an attitude problem down the
road. This overl¥-critica! attitude continued to be evident during the nine
months of probation.
There was also a certain arrogance and'condescension in her attitude
to fellow employees like Mrs. Jenny Maud and to her supervisor, Mitra Singh.
The two above-mentioned excerpts quoted from her December 4th letter, on
page 7 of this dissent, are a perfect example of this condescension.
The majority, in the ~ward, felt that she had done better during the
months of September and October after her interview in August with Miss
Singh; in fact, so well that she had been requested to coordinate certain
year-end activities. It cited that this as evidence that management had
intended to keep her on staff and that she had been doing good work. This
is no doubt true, but once again, Et was her attitude that had caused the
trQubIe. Management no doubt felt that, during this period, she had changed
her attitude and could be an useful employee, but it was the attitude
displayed in the three incidents in November, as she was nearing the end of
her probationary period, that brought her dismissal. They were: (a) the
unnecessarily uncooperative attitude re heIping with the backlog project
instead of accepting the change gracefully and pitching in to help (pp. 16-17
of the award); (b) the routine dependant file mentioned above (p. t7 of the
award); and (c) the Khan incident atso covered above on pages 17-18 of the
award. In each of these incidents, she showed that she had not'changed and
that she was not going to be a cooperative employee. So, although she
obviously had the a~ility to coordinate the year-end work, her attitude to
it and to the excIusion of the more pressing needs of the whole organization
showed management that she did not have the "team" attitude they had been
looking for. And even though the majority may find it "strange that the
year-end coordination project was assigned to Mrs. Speevak", one can easily
see how management, feeling that the employee did have good skills and
wanting to show confidence in her, could appoint her.
And, indeed, is that not the whole purpose of a probationary period?
It is to assess the whole person and see if she fits into the organization,
and as'mentioned above, arbitrators ha~e given management wide latitude in
this assessment. On page 32 of the award, the majority assert that
the empIoyer relies on...two documented
incidents in mid November to conclude that
there was a recurrence of an attitudina!
problem. In our opinion, the evidence
suggests that it is unreasonable to justify
such an assessment .... In our view, Miss
Singh took an unreasonably adverse view of
grievor's attitude.
Let us examine this statement in detail. If these November incidents had
been the first, then one might possibly agree. But, they were not the first.
Indeed, there was a period of calm in the fail, but when the pre-August
attitude of the grievor resurfaced in N~vember, it was not by any manner
or means unjustified for Miss Singh to take the view that she did. To my
mind, it was a very reasonable view that the grievor was stil! argumentative,
uncooperative, and arrogant. She had not changed. Given the approaching
end of the probationary period~ Miss Singh acted in a very normal and
reasonable way.
The late date of the letter from Miss Singh to Mrs. Speevak with
request for "immediate improvement" has been criticized by both the Union
counsel and the majority on page 33 of the award. At first reading, one might
believe that there was some truth to their position. It would appear that
it would be difficult to effect improvement in the five days that were left
before the probationary contract ended. To my mind, however, the improvement
being sought by management is in the attitude of the grievor, not in her
technical skills. An improYement or a promise of an improvement is Quite
possible within the time restraints. Seeking proof of such changes even at
the eleventh hour, Mr. Lyons and Miss Singh at %he meeting of December
gave the grievor the opportunity to write a response. Therefore, the letter,
which Mrs. Speevak now had the opportunity to wr~te, was crucia! in the
extreme and the key to whether or not she would go or stay. If the letter
had been conci!iatory and promises had been made to be more cooperative and
to work with management, then it is Quite 1~ke1¥ that the grievor, given her
technica! skills, would have been retained. However, when one reads the
letter that the grievor had sent to Miss Singh on December 4, one finds no
evidence of any conciIiation whatsoever. One finds instead a long list of
points of seif-justification in defence of what she had done. There was
no evidence that she had even been ten percent to blame, only that she had
been one hundred percent correct on all points. The fina! paragraph of the
letter, on page 7 of this dissent, is, in my opinion, condescending,
impertinent, and arrogant to such an extent that it aIone would be atl the
proof necessary that, indeed, Miss Singh was correct when she stated
evidence that Mrs. Speevak did not realize what her problems were and was
not likely to ever come to such a realization. The letter, combined with
the accusation raised for the first time by the grievor on that same day ~
December 4 that she had been the subject of anti-Semitic treatment, was
all that was needed for management -- and not just Miss Singh -- to agree
that she should be terminated as an unsuitable probationary employee.
Indeed, what strikes one after a careful analysis of what had happened on'
December 4 is that the grievor, instead of being somewhat conciliatory, is
now taking an offensive position.
Consequently, after one studies the details of November 30 to December
4, it is difficult to agree with the majority that the grievor's letter was
"the response of a distraught employee". The majority suggest~ that "an
allowance may fairIy be made for the fact that it was a response from an
employee who felt that she had been unfairly dealt with and feared that she
would be terminated at the eleventh hour of her probationary period." To
my mind, it is more the letter of an employee who, for her whole probationary
period, had seldom seen why she was criticized by her supervisors and thus,
who is'sure she has not been at fault and does not have the words "conciliation"
or "cooperation" in her lexicon.
Obviously, then I cannot agree with the majority that the employer
did not act in good faith and that the release was not a bona fide one and
must be characterized as disciplinary in nature. The release was made after
nine months of attempting to change the attitude of the grievor and to get
· her to see that she must cooperate and work with the team. When her attitude,
as set out in her letter of defence, ~ad shown no change at the eleventh
hour, then how could management not be justified in finding her unsuitable for
the ]ob? The fact of the matter was that she was unsuitable!
The line between being found suitable in the job and being discharged
for disciplinary reasons is very narrow. Was Mrs. Pamela Speevak discharged
because she was unsuitable or because management just wanted to get rid of her
without just cause? As Arbitrator Swan has stated on page 3 of the award, each
release must be examined and a decision made on al! the circumstances of each
case. In this instance, it would seem that the majority is resting much of its
own case on the short,period of time which the grievor was given to improve.
As I have set out above, I be!ieve that the majority has misinterpreted how much
and what kind of improvement was necessary and how long such improvement might
take. The fact of the matter is that there was no attempt at improvement, even
in the three or four days at hand nor had there been over the full nine months,
for the grievor had always felt that she was always right. Therefore, for the
majority to use this as a main reason for overturning the dismissal is simply,
in my opinion, incorrect.
Consequently, given the uncooperative and negative attitude of the
grievor, one cannot help but agree that the dismissal on the grounds of
unsuitabiIity was ~ustified and should have been upheld.
A.~erri:~, ~ember