HomeMy WebLinkAbout1989-1720.Ward.92-05-15 ONTAR;O EMPLOYES OE LA COURONNE
CROWN EMPLOYEES OE L'ONTARIO
GRIEVANCE C,OMMISSION DE
SETrLEMENT REGLEMENT '
BOARD DES GRIEFS
I80 {~UNOAS STREET WEST, SUITE 21~0, TORONTO, ONTARIO· MSG IZ8 TELE.°'HOIqE/TEL_EP~ONE: (4 ~j 32~-
tSO. RUE DU~OAS OUEST, ~UREAU 2~. TORONTO (ONTARIOL MEG IZ8 FACStt~ILE,'TE[ECOPlE : ~ ~6] 326-
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Be~o~o
BB~BN
O~S~ (Ma~d)
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The C~o~ ~n R~h~ o~ Ontario
BEFOg: N. Dissanayake Vice-Chai~erson
T. Browes-Bugden Me~er
G~, Milley' Me~er
POR'THE K.' Hughes
GRIEVOR Counsel
Cavalluzzo, Hayes & Shilton
Barristers & Solicitors
· 0R ~ R. Dunsmore
P/~PLOYE~ Counsel
Hicks, Morley, Hamilton, Stewart & Storie
Barristers & Solicitors
HNARING May 14, 1990
September 11, 12, 25, 1990
October 1, 2, 3, 15, 16, 1990
November 7, 24, 1990
December 21, 1990
2
DECISION'
These are two grievances filed by ~r. Scouter Ward, a
Race Relations Consultant (RRC) employed by the Ministry of
Citizenship. The first grievance dated October 25, 1989
relates to two letters of discipline and reads, "I grieve that
I have been disciplined without just cause by letters dated
October 10, 1989 and October 23, 1989 .~ from Raj chopra,
Supervisor~ Metro Region,.Race Relations Directorate." The
second grievance dated N~vember 10, 1989, relates to his
removal from the RRC position in Hamilton, Ontario and re-
assignment effective October 30, 1989, as a Multicultural
Progra~me Consultant in Toronto. That grievance reads "I
grieve that I have been disciplined without just-cause".
The hearing commenced on May 14, !990 and.consumed a
total of 12 days to complete the evidence. Following that,
the Board-received written submissions from the parties.
In the management hierarchy, below the Minister and the
Deputy Minister, was Mr. Dan McIntyre, Race Relations
Commissioner (later changed to Executive Coordinator) who was
directly responsible for the Race Relations Directorate.
Reporting to Mr. McIntyre were two Supervisors. The first,
Ms. Raj Chopra was based in Toronto and was responsible for
the directorate's operations in the greater Toronto area. The
second supervisor, Mr. Eric Whist was also based in Toronto
3
and was ~esponsible for the 7.other regional offices in the
Province, including the South-East Region office in Hamilton.
In October 1989 there were 7 RRC's in the greate~ Toronto area
reporting to Ms. Chopra. Each of ~he other 7 areas had one
RRC. They reported t° Mr: Whist. The RRC's basic function
was to work with minority groups (eg. ethnic organizations)
and other community organizations (eg. Municipality Race
Relations Committees, School Boards) providing assistance and
guidance to develop race relations policies, and to-mediate
and diffuse racial conflicts in their region. Their role was
that of educating and. mediating rather than enforcing
government policy. .Due to the nature of the job a RRC had to
spend the majority of his or her.time in "~he field" working
with client groups.
.Mr. Ward joined the government service in 1985 as a Human
Rights officer with the Race Relations Division of the
Ministry of Labour. In 1987 the Ministry of Citizenship took
over responsibility for race relations in the province under
the Race Relations Directorate. At the time Mr. Ward also
moved to that Ministry in the. capacity of a' Race Relations
Consultant. Mr. Ward was based in Hamilton and was the RRC
for the South East Region of the province. In August 1988 Mr.
Ward applied successfully for a secondment to the Ministry of
the A.G.. Due to reasons not relevant, he did not complete
the secondment period. He could not return to his Hamilton
4
position because a contract employee Mr. Saleem Yacoub, had
been hired for that position until March 1989. Accordingly,
in December 1988, supervisor Mr. Eric Whist enlisted Mr. Ward
to assist him in organizing a provindial conference for
municipal race relations. After this conference was
successfully completed, in February 1989Mr. Ward was assigned
to the Toronto office as a RRC to work with seven municipal
clients. In this position he Worked under the supervision of
Ms. Raj Chopra. He remained there until his reassignment as
a multicultural consultant in October, 1989, which is the
subject of the second grievance.
The First Grievance
a) The discipline letter dated O~tober 10, 1989:
Ms. Raj Chopra, Supervisor of the Central Metro Unit
issued the following letter dated October 10-, 1989 which was
titled "letter of. reprimand".
This is to inform yo9 that your actions in regard
to leaving a draft of the Invitation Summary,
attached to the Brampton Mayor's letter and list of
community organizations were inappropriate,
unacceptable and displayed extremely poor judgement.
In doing so you failed to follow established
policies/procedures and discharge your duties in a
professional and responsible manner.
The result of your actions caused embarrassment to
the Directorate and has seriously damaged our
credibility and reputation within the Ministry.
Your action is surprising in view of your experience
and knowledge of protocol. I cannot ignore this
instance and the severity of the situation causes
me to issue' a written reprimand.
Further to our previous discussion your duties will
be confined to the Toronto office. Effective
October 6, 1989 you will terminate all contact with
client groups until further notice.
We heard extensive evidence as to the events (herein-
after referred to as "The Brampton incident") which led to
this letter. The evidence indicates that there was a need to-
temporarily fill a RRC position in Toronto. During
discussions between Ms. Chopra .and Mr. Whist, the latter
informed that Mr.' Ward was available and recommended that Ms.
Chopra .obtain his services on a secondment. Mr. Ward started
in Toronto in March 1989. His role was to act .as a RRC to a
number of Municipal race relati'ons committees and to assist
these municipalities in their race relations activities.
one of the municipalities to be assisted by Mr. Ward was
Brampton. The evidende indicates"~hat for some time, th~
Directorate had attempted to encourage Brampton to establish
a race relations committee. However, the mayor, Mr. Ken
Whillans felt that it was unnecessary. Following a successful
race relations conference, however, the mayor appeared to
change his mind and in February 1989 sought the assistance of
the Race Relations Directorate to establish a race relations
committee in Brampton. Ms. Chopra assigned Mr.' Ward to
p~ovide that assistance.
6
Ms. Chopra testified that on October 4, 1989~ Mr. Ward
came ~nto her office around 10 a.m.. She was surprised to see
him because his normal start time was ll:00 a.m.. Mr. Ward
showed her a number of papers. These had to do with an
invitation from Mayor Whillans to the Minister of Citizenship,
Mr. Robert Wong, to be key-note speaker at a breakfast meeting
on October 31, 1989 to "kick-off" the Brampton R.R. committee.
The package included the letter of invitation from the mayor
to the minister, a list of some 100 invitees (community
leaders and organizations and the media), a ministry form
called "invitation summary" filled out by Mr. Ward, and a
printed invitation card showing the Minister as the keynote
speaker. Mr.~Ward informed Ms. Chopra that because of the
urgency of the s~tuation, he came in early and left the
package in the .Minister's office. Ms. Chopra became very
upset when she heard this because she felt that Mr.. ward~had
failed to follow the Directorate's "protocol". When Ms.
Chopra read the material, she was'further distressed because
it was apparent that invitation cards had been already printed
on the assumption that the Minister will attend, although the
Minister had no~ agreed to .do so. In addition, Ms. Chopra,
took offence to a reference in the invitation ~summary sheet
(prepared .by Mr. Ward) to the Minister as "Bob". She felt
that it was disrespectful on Mr. Ward's part to refer to the
Minister by first name. Ms. Chopra immediately called the
Minister's office and tried to retrieve the material, but was
7
told that it was too late. It should be noted that ultimately
the "kick-off" meeting for October 31, 1989 had to be ~
cancelled because the Minister did not accept the invitation,
and the Brampton Committee felt~that the meeting, should not
proceed without the Minister.
The letter of discipline which is reproduced above refers
only to, Mr. Ward's conduct of leaving the invitation material
in the minister's office .and' thereby failing to follow
established policies/procedures. On the face of the letter
that is the only allegation of wrong-doing 'relied on by Ms.
Chopra. However', when asked during the examination-in-chief
what caused her to issuethe letter, Ms. Chopra testified that
Mr. ward "ignored established protocol and 'failed to follow
standard practice and secondly, Used ~mproper language by
calling the Minister'"Bob". Later during the examination, s~e
claimed that Mr. Ward had also misled the Brampton Mayor's
Committee and that that was a further factor she took into
account.
Ms. Chopra testified that she made the decision to
discipline Mr. Ward and determined the ext~nt of the penalty,
in consultation with Mr. McIntyre and the Human Resources
staff,~ When employer counsel asked why client contact was
taken away indefinitely, Ms. Chopra replied that at the time
she was aware that some client groups in the South East Region
8
had made certain complaints against Mr. Ward and that an
investigation of those complaints wa~ underway. She testified
that the ongoing investigation was a significant factor in her
decision to remove Mr. Ward's client contact indefinitely.
Under cross-examination, she testified that the on-going
investigation of the complaints against Mr. Ward was a key
issue in Mr. McIntyre's mind at the time and that it was Mr.
McIntyre who ~uggested to her that it was appropriate to
remove Mr. Ward fr~m all client contact until the conclusion
of investigation.
During her testimony, Ms. Chopra has relied on three
aspects of Mr. Ward's conduct as justifying discipline. It
was alleged that (a) he failed to follow established ministry
protocol-and procedure; (b) that' he used inappropriate
language; and (c) that he misled the Bramptoh Mayor's
Committee. We will now examine each of these allegations.
Failure to follow established protocol
This refers to Mr. Ward leaving the invitation material
in 'the Minister's office directly. According to Ms. Chopra,
established protocol requires that such material be reviewed
by herself, by Mr. McIntyre, and the Deputy Minister before
submission to the Minister's office. The letter of discipline
claims, and Ms. Chopra also testified, that this protocol was
known to Mr. Ward, and that he chose not to follow it.
Mr. Ward testified that he was not aware of a protocol
whereby the invitation material was supposed to go through
the various levels of management~ He conceded that normally
he would have submitted such material to Ms. Chopra for
review. However, Mr. Ward testified that on October 3, 1989
he found out for the first time that the committee had printed
invitation cards for October 31, 1989 and that he was shocked
because there had been no indication that the Minister'had
agreed to attend that meeting. The mayor had planned to send
out the invitations after, the next 'c~'uncil meeting. Mr. Ward
was quite c~ncerned that the mayor and the committee will be
in a very embarrassing situation if the minister did not
'accept the invitation. Therefore, Mr. ward made up his mind'
to get the invitation to the attention of the Minister and ggt
his decision one way or. the other, as quickly as possible.
Mr. Ward'testifi~d that he had no intention of insulting his
superiors by by-passing them and that it was the urgency of
the situation, which caused him to take the material to the
minister directly.
We are satisfied that the grievor was not aware of any
established protocol which required that invitation material
go through a multi-tiered review procedure. With considerable
hesitation, Ms. Chopra testified that she thought the protocol
was somewhere in the policy and procedure manual. However,
10
that was not produced in evidence. 'We are satisfied that
there was no such procedure in any written document. Ms.
Chopra also testified that she explained the protocol to all
consultants during a st~ff meeting. However, under cross-
examination she conceded that she was not aware if Mr. Ward
was at this meeting, and indeed agreed that this meeting could
have been held before Mr. Ward came to work in her office.
In our view, what occurred here was this. Mr. Ward
departed from his normal practice of submitting invitation
material to his ~upervisor, because of his~desire to expedite
the process of ministerial approval. In his judgement, he
decided that the urgency of the situation (.it was October 3rd
already, invitation'cards stating that the Minister will be
speaking at a function on October 31 were about to be sent
out; and the Minister had not yet agreed to attend) justified
leaving the material in the Minister's office directly. We
are satisfied that he acted in good faith, driven by his
desire to avoid embarrassment to a lot of people, and that he
had no intention of being disrespectful to his supervisors,
Ms. ChoPra testified that in the government service, you
do not cut through "red-tape" under any circumstances. As she
put it, "We don't expedite in the government". While we agree
that as a general rule it is necessary to follow established
procedure, considering the absence of knowledge of any formal
procedure and Mr. Ward's good intentions, his conduct was not
culpable, and did not warrant a disciplinary response. This
at most was a situation, which warranted non-disciplinary
counselling, particularly considering that the gri~vor had
hitherto had a discipline free record and had not received any
negative performance evaluations.
Use of imp.~omer languaqe
The invitation summary is a form filled out by the RRC
wherein he provides information about the function to which
the minister is being invited and recommends whether or not
the minister ought to accept. In one place, in filling this
out, Mr. Ward referred to the Minister of Citizenship Mr.
Robert Wong, as "Bob". Ms. Chopra testified that in the
public service there is a code of behaviour which requires
that an employee "accor~ proper respect to superiors." She
felt that it was very disrespectful for Mr. Ward to have
referred to. the Minister as "Bob" in the invitation summary,
eventhough it was an internal document. She testified that
"we are all instructed to refer to the Minister as ~Mr.
Minister'". She testified that in her 12 years in the public
servic~ she 'had never referred to a minister by first name and
that she considered it serious' misconduct to do so.
The grievor testified that Mr. Wong's predecessor, Mr.
Gerry Phillips and the Deputy Minister Ms. Maureen O'Neill had
instructed the staff to call them by 'their first names. A
note was submitted in evidence wherein Ms. O'Neill addresses
Mr. Ward as "Scouter" and signs off as "Maureen".
It is obvious to us that Ms. Chopra has a particular view
of the proper protocol for a public service employee. She is
of the belief that a public servant should not cut short the
usual red-tape or procedures in order to expedite matters
under any circumstances. She believes in a formal
relationship b~tween superiors and subordinates. We are not
Batisfied that this is a view which is necessarily shared
by everyone. We are satisfied that Mr. Ward meant no
disrespect by referring to the Minister by'his first name.
Given the uncontradicted evidence that the previous minister
and the deputy minister had requested that they be addressed
by first name, ~nd the absence of any contrary instructions
from management, we are of th6 view that the reference to the
minister as "Bob" in an internal document is not culpable
conduct attracting any discipline.
Misleadin~ of the BramDton Committee
In concluding that Mr. Ward had misled the Brampton
Mayor's Committee, MS. Chopra relied, on information she
received from Mr. Frank Kovrig, a member of the committee,
during a telephone conversation. She testified that she was
informed by Mr. Kovrig that Mr. ward adVised the committee to
13
go ahead and print the invitations and that he will get the
minister to attend.
Mr. Kovrig during his testimony could not recall
specifically that at any time Mr. Ward advised the committee
to proceed with the printing of the invitations or assured
that the minister will attend. However he surmised that the
committee would not have proceeded without a verbal
confirmation from Mr. Ward that the minister will attend,
because the committee had appointed Mr. Ward as the contact-
person with the Minister's office with the responsibility for
arranging his attendance.
Mr. Ward testified that while he Was the ministry contact
person, the Mayor- told him that he will deal with the
Minister personally and arrange for his attendance because'the
Minister was a "buddy" of his. The Mayor had passed away
shortly after these events. Mr. Ward insisted that he learned
for the first time that October 31 had been fixed for the
· event, When on October 3rd he saw the printed invitation
cards. Mr. Kovrig att'empted to recall when the committee made
the decision to hold the event on October 31 and to print the
invitations, and when Mr. Ward may have be~omeaware of these
decisions. However, it became clear that Mr. Kovrig had no
clear recollection of the sequence of e~ents and during cross-
14
examination he conceded that he was having "a lot of
difficulty with dates".
In the result, we have no reliable evidence-which causes
us to reject the grievor's evidence. We cannot conclude that
he misled the committee by advising them to go ahead with the
printing of the invitations or that he gave any assurance that
the Minister will attend on October 31, 1989. On the
contrary, Mr. Kovrig did not give us the impression that he
personally or the committee as a group, felt that Mr. Ward
misled them. He testified that he was aware that the Mayor
knew the Minister quite well, and'that the mayor had written
several, letters and called°~the Ministmr several times. The
employer counsel asked Mr. Kovrig what impact this whole
episode had on his regard for the Minister, the Ministry and
Mr. ward. Regarding the Minister Mr. Kovrig testified "I
wasn't sure. Just annoyed." Regarding the Ministry he said
"I was annoyed. Not very happy. Some negative thoughts - too
much red-tape, too much protocol." When asked how these
events affected his ~egard for ?r. Ward, he said "I wasn't
sure if it was 'his fault or someone else's. I had no
information really as to what happened.'"
Ms. Chopra agreed that she relied solely on information
provided by Mr. Kovrig in concluding that the grievor had
misled the committee. This is understandable since she would
15
not have had any independent knowledge~ of what happened
between the committee, the Minister's office and Mr. Ward.
Mr. Kovrig's testimony in the end is that he does not know
what went wrong.. He certainly was not prepared to put the'
blame on Mr. Ward. In fact he testified that even after these
events he was prepared to work with Mr. Ward because he had
been giving "solid advice and quidance" to the committee. He
called the directorate to obtain Mr. Ward's assistance again,
but was advised that he was no longer available.
The evidence does not establish on a balance of
probabilities the allegation that Mr. Ward misled the
committee. Therefore there was no just cause for discipline
on that basis.
The result of the foregoing findings is that the evidence
doe~ not establish any of the three grounds offered by Ms.
Chopra justifying discipline. The letter of.discipline is to
be removed from all files and expunged from all records.
(b) The discipline 1Dtte~ dated October 23, 1989
This lette~ from Ms. Chopra to Mr. Ward reads:
This is to inform you that the language you have
used in the above-mentioned memo in reference to
"getting clearance from the moguls who control our
lives" is totally unacceptable to me. I suggest
that you refrain from using such unprofessional
language in the future.
I also bring to your attention other previous
'- incidents where you made derogatory statements
regarding the Chinese community (October 10, 1989)
and for which you were verbally reprimanded.
i w~sh to advise you that any further incidents of
unprofessional behaviour will warrant further
disciplinary action.
As a result of the October 10th letter, Mr. Ward was not
permitted to interact with clients. Therefore, when Mr. Ward
was invited to attend the wedding of a member of one of his
former client groups, he felt it was necessary to obtain
permission from Ms. Chopra. Hew rote the following memorandum
dated October 17, 1989 to her:
In light of the October 10th letter of reprimand,
and in light of the Perception some decision makers
in the Ministry seem to have of my skills, intellect
and common sense, it would be with great fear and
trepidation for my job that I would dare to accept
this invitation without first getting clearance from
the mogul~ who control our lives. Please let me
know if the consensus of all involved is that it
would be in the best interest of the directorate
and the Ministry to accept this invitation.
The letter of October 23rd was issued because of Mr.
Ward's reference to his supervisors as "the moguls who control
our lives". Ms. Chopra.testified that the reference had
negative connotations and she understood that by using the
term "moguls" the grievor was claiming that his supervisors
were abusing their power. Ms. Chopra testified that the
language used was derogatory and unprofessional. It was her
17
evidence that since Mr. Ward had previously been verbally
reprimanded for use 'of inappropriate language she felt that
a u~'itten reprimand was warranted.
That previous incident is referred to in the letter of
reprimand. Ms. Chopra ~lso testified aboUt that. During the
examination-in-chief she said that on October loth she handed
Mr. ward the first letter. He read it and appeared to be
quite s~rpris~d. Then she said'"As he was leaving-my office
he made some remarks with r~gard to "chinks". I called him
back into my office, i said you have just been given a letter
of reprimand and you are using unprofessional language again.
~lease refrain from doing that. I said i~ you continue I'll
· take disciplinary action. To the .best of'my recollection he
just listened and then he left." That ~as the extent Of Ms.
Chopra's testimony on this event in direct examination.
Under cross-examination Ms. Chopra testified at first
that as he was leaving her office, "Mr. Ward 'mumbled'
something about the Chinese". When union counsel asked "so
he mumbled?" Ms. Chopra said "No. Mumble is the wrong word.
He said it." She insisted that it was not possible that she
did not hear Mr. Ward use the term "Chinks" or that she may
have misheard what he said. She was not only sure that he
used that term, but she went on to say that after he had
18
reprimanded him, Mr. Ward said "I am sorry. I will not say
it again."
A memorandum written by Ms. Chopra i~mediately after the
incident to Mr. McIntyre was filed in evidence. It states
in part that "... he made negative comments about the Chinese
community. He stated that whenever he visited the minister's
office, he noted the minister meeting with the Chinese
community ...". The m~morandumwas writtmn in blue ink. -On
the margin adjacent to the portion of the memorandum quoted,
was written the word "Chinks" in black ink.
Under cross-examina~ionMs. Chopra agreed that her only
objection was to the alleged use. of the word '"Chinks". She
agreed also that she added the' word "chinks" in the margin
later the Same day after she had written the rest of the
memorandum. When asked to explain why she did not say that
the grievor used the word "chinks" "when she wrote the.
memorandum in the first instance, her response was that she
wrote the memorandum "in a rush".
In all of the circumstances we cannot accept that the
grievor used the word "chinks". Ms. Chopra conceded that the
only inappropriate conduct on the part of the grievor was the
use of the term "chinks". It is inconceivable that she will
not refer to that term in writing the memorandum if at the
time she was certain that the word was used. If the one and
only concern she had was the use of the word "chinks", why
would she not write that word when she wrote the memo? It is
more likely that she subsequently reconstructed the events and
came to a conclusion that the word was used. This conclusion
is supported by Ms. Chcpra's initial testimony that the
grievor "mumbled something about the Chinese" as he went out.
We do not accept Ms. ChoDra's insistence in cross examination
that the qrievor in effect admitted wrong-doing by stating
that he was sorry and by promising not to'say it again. This
testimony is in direct conflict with her evidence-in-chief
when she said that to the best of her recollection the grievor
just listened and left.
Mr. Ward has worked with the Chinese community on a
regular basis over the 5 years he had been employed as a RRC.
Mr. whist, who had been his supervisor for the majority of
that time testified that he had never heard Mr. Ward use that
term. In our view the use of a derogatory and racist term
like "chinks", particularly by a person holding a RRC position.
would be a serious infraction justifying more than a
reprimand. It may even put into question that person's
suitability, to hold a RRC position in the first place.
However, before we find such an.infraction we must have clear
and cogent evidence. The evidence presented to us does not
20 ~
enable us to conclude on a balance of probabilities that Mr.
Ward used the term "chinks".
Ms. Chopra's testimony was not frank and was internally
inconsistent. On balance we prefer Mr. Ward's evidence that
he did not use the word "chinks", although he referred to an
observation someone else had made to him that whenever that
person went to the Minister's office the Minister was
surrounded by Chinese people and that that was not good for
the Minister's image.
In the result, Ms. Chopra was not entitled to rel-y on
this incident. The issue thus is whether the "~oguls"
memorandum by itself justified a letter of reprimand. We
agree with Ms. Chopra's reading of Mr. Ward's memorandum. It
conveys by inference an imputation that Mr. Ward's
supervisors, including at least Ms. Chopra and Mr. McIntyre,.
who were instrumental in removing the grievor's client
contact, were misusing their authority or acting in a
dictatorial fashion. Mr. Ward'~ explanation'was that be was
merely joking. We do not accept that. It is more likely that
Mr. Ward was quite angry about receiving the October 10th
letter and particularly about the removal of the client
contact. We are satisfied that Mr. Ward's reference to his
supervisors as "moguls who control my life" was an expression
of that anger.
Mr. Ward's anger is understandable. As we had found, he
had acted in good faith in attempting to help the Brampton
committee get out of a difficult situation. He was severely
punished fo~ that. From time to time, employees may feel that
they have been unfairly treated by their supervisors. They
might be quite upset by that. Yet it is not proper in those
circumstances to insult the supervisors in question. The
grievor did not agree ~ith the-letter of October 10 and he
exercised his right to grieve. This Board should not condone
or encourage resort to retaliation by an aggrieved employee
.... bY belittling the supervisors. In our view, that is exactly
what Mr. Ward was doing by referring to his supervisors as
"the moguls who control my life". That conduct was culpable.
It is a form of self-help which is not to be condoned. Even
when viewed as a first offence, we see no reasoh to interfere
with the penalty of a written reprimand, particularly
considering that Mr. Ward did not appear t~ realize or accept
that use of such languag~ is inappropriate.
In summary then, the first grievance of the grievor is
partly allowed to the extent that we find that there was no
just cause for the letter of discipline dated October 10,
1989. The grievance is dismissed as it relates to the letter
of reprimand dated October 23, 1989.
22
The second Grievance re removal from RRC position
The removal of Mr. Ward from his RRC position and
reassignment as Multicultural Program Consultant in Toronto
was effected by letter dated October 27, 1989 from Mr. Dan
McIntyre, Executive Coordinator of the Directorate. That
letter reads:
As a result of serious complaints from client groups
regarding your performance, I hav~ assessed your
ability to carry out all the responsibilities of a
race relations consultant with the assistance of
your supervisor,-Eric Whist and an independent
investigator.
I have found that you are unable to perform the
· duties and responsibilities of the position of race
relations consultant to the satisfaction of the
Directorate and some of your client groups.
In light of this finding you are being' reassigned
to Toronto to the position of multicultural program
consultant reporting to Tom Vu in the Citizenship
Development Branch. This reassignment is effective
October 30, 1989.
As you are being reassigned beyond 40 kilometres of
your previous headquarters, you will be entitled to
household relocation expenses should you wish to
move. Your commuting allowance will terminate
January 1, 1990.
Employer counsel submits that the employer action should
be viewed as a non-disciplinary re-assignment of an employee
ih the exercise of an exclusive management right. On that
basis, he submits that this Board has no jurisdiction to hear
this grievance. Alternatively, counsel, submits that if the
23
employer action is viewed as discipline, there has been
misconduct on' the part of Mr. Ward which justified such
discipline.
We.do not feel it is necessary to review the extensive
case-law relating to the distinction between disciplinary and
non-disciplinary employer action, cited to us by the parties.
The employer has relied on 4 concerns as justifying its
action:
1. Complaints from the Kitchener-Waterloo Committee and
the Brantford Committee.
2. The allegation that .Mr..Ward misrepresented to Ms.
Raj Varma that he was-a priest..
3. Mr. Ward's alleged involvement with th~.;Ahmadiyya
Movement forum contrary to his'supervisor's directions.
4. Two previous letters of discipline issued by Ms.
Chopra.
The employer agreed that the two letters constituted
discipline, and in'turn relied on that discipline, in deciding
to remove Mr. Ward from his RRC position. The employer
counsel has submitted that by getting involved in the
AhmadiyYa forum, Mr. Ward engaged in."insubordination" and
"blatant disregard for instructions". Insubordination
involves intentional conduct. Similarly, the allegation that
Mr. Ward misrepresented to Ms. Varma that he was a priest
24
involves an allegation of intentional misconduct. Thus, at
least 3 of the 4 grounds relied upon by~ the employe~ as
justifying Mr. War4's reassignment involve an allegation of
intentional misconduct. In addition some of the allegations
of the K-W and Brantford committees also involve alleged
intentional conduct. One consequence of the letter of
discipline dated October 10 was the removal of client contact.
The employer's own evidence is that this step was taken as a
result of the complaints fro~ the 2 committees. Therefore
that discipline was partly related to the complaints by the
2 committees.
In the circumstances, we are convinced that the employer
conduct constituted discipline. Accordingly, this Board has
jurisdiction to entertain the grievance.
The Board will now review each of the grounds relied upon
by the employer.
Prior disCioline:
The Board has already concluded that the employer had no
just cause to issue the letter of discipline dated October 10,
1989, but has upheld the letter of reprimand dated October 23,.
1989.
The priest incident
Ms. Raj Varma was a new member of the Brantford RR
Committee. Ms. Varma testified that when she attended the
meeting between Mr. Whist and the K-W Committee, she Qas not
aware that the purpose was to deal with Mr. .Ward.
Nevertheless,. when other individuals raised various
allegations of misconduct (which we will return to later in
this award) Ms. Varma related an experience she had had with
Mr. Ward some l0 days earlier. In Mr. Whist's notes of the
meeting it is stated that Ms. Varma told him that when she met
Mr. Ward on a train Mr. Ward "intr6duced himself as a priest".
Several times during his testimony'Mr. Whist referred to Mr.
~..War~ "posing as a priest".
Ms. Varma testified about this allegation. In
examination-in-chief she said that while on the train from
Toronto to Brantford she and Mr. Ward sat next to each.other
and got to talking about various things. When she mentioned
that her daughter's friend went to Huron College to study
theology, 'Mr. Ward stated that he also studied theology and
that after he finished his theology he worked as a priest for
a while, .before he joined the government.
under cross-examination, Ms. Varma admitted that Mr. Ward
did not introduce.himself as a priest as such, but that the
topic came up during conversation. She stated that Mr. Ward
stated that he was a priest and not that he i~ a priest. The
following dialogue next took place under cross-examination:
Q. He then said he spent some time working
at the St. Pious Parish?
A. He said he worked as a priest. I am not
a Christian so I won't know. I don't
know who is a declared priest. If he
told St. Pious Parish I wouldn't
remember. All I know is he said he was
a priest.
Q. He said he worked in St. Pious Parish and
you assumed he was a priest?.
A. Yes.
Q. would it surpFise you if he was not a
priest?
A. I don't know.
Q. Were you made aware ~hat he had to-apply
to Rome for dispensation from vows?
A. No.
Q. You don't know about catholism?
A. True.
Q. He said he was studying to be a priest?
A. All I remember is he said he finished his
theology and worked as a priest,
Mr. Ward denied that he had ever told Ms. Varma or
anyone else that he was a priest. He testified that he told
Ms. Verma that he studied to be a priest in the seminary
and that after completing his theology he worked, in a Parish.
27
We are satisfied that Mr. Ward did not intend to mislead -
Ms~. Varma into believing that ~e was a priest. It is clear
from the evidence that Mr. Whist's belief that Mr. Ward
"introduced himself as'a priest" or that he "posed as a
priest" is wrong, i Ms% Varma's own testimony is that she
believed Mr. Ward to be an ex-priest. Mr.'Whist testified
that Mr. Ward had told him also that he had been in the
Seminary studying to be a priest, but that he had never told
him that he was a priest. We heard testimony from a number
of people who had interacted with Mr. Ward in his 5 years in
government. There was no evidence that he had told any of
them that he was a priest.
In the circumstances, it is hard' to understand why Mr.
Ward would pick Ms. Varma alone to mislead her into believing
that he had been a priest. There lis no explanation we can
.think of as to what advantage Mr. Ward could hope to gain by
so doing. The true situatio~ is that Mr. Ward had been
studying to be a priest but before he was ordained a priest,
he decided not to pursue .that vocation. He had as part of
his training worked in a parish church.
Ms. Varma candidly admitted that as a non-catholic she
does not understand when someone is a "declared priest".
Under cross-examination She also admitted that when Mr. Ward
stated that he had worked in a church she assumed that he had
28
been a priest. On balance it is probable that Ms. Varma
misunderstood from W~at Mr. Ward stated of his working in a
parish' church, that he was a priest. To her, working in a
parish equalled being a priest. On the basis of the evidence
we are not able to conclude that Mr. Ward misrepresented
intentionally that he was a priest. Thus no culpable conduct
has been established and the employer was not entitled to
rely on this incident as a justification for its decision.
The Ahmadiyya Movement incident
Following complaints from the Brantford RR Committee
against the possible return of Mr. TWard as RRC in the region,
Mr. McIntyre and Mr. Whist met.with members of that committee
on September 14, 1989. Mr. 'McIn~yre assured the committee
that Mr. Ward will not be involved in the region until their
complaints were resolved and the committee informed of the
management's decision.
However, on September 19, 1989 Mr. Whist received a call
from an irate committee member, Ms. Laura Bishop, who had
seen a flyer advertising a Religious Founders Day Symposium
organized by The Ahmadiyya Movement scheduled for October 22,
1989. The programme indicated that Mr.-Ward was scheduled to
make closing remarks at this symposium. She was very
critical of Mr. McIntyre and Mr. Whist because she felt that
29
they had lied by assuring that Mr. Ward will not be involved
in the region. "
Mr. Whist testified that Mr. Ward had been heavily
involved in this annual event in the past, acting as its
9rganizer and moderator. However, at one point Mr. Whist
felt that the Ahmadiyya Movement was sufficiently established
that it did not need much help from the DirectOrate. Mr.
Ward Was therefore instructed to reduce the time he spent on
that. As a result', during the two previous years Mr. Ward
was-not involved in the organizing of the symposium, bu~
acted as moderator on the day of the event. Mr. Whist
testified that in 1988, he instructed.Mr. Ward that he could
moderate'the 1988. event,' but that "this should be the last
time".
While it was part of Ms. Bishop's concern that the flyer
contained a number, of inaccuracies, the evidence' is clear
that Mr. Ward had no part in its preparation and did not see
a flyer in advance. Under cross-examination.Mr. Whist agreed
that Mr. Ward cannot be held responsible for those errors.
He also agreed that"Mr. Ward had accepted the invitation in
May, at a time when he believed that by October he would be
back in the South-East region, and that officially, Mr. Ward
remained the RRC for the South-East region throughout since
he had been in Metro only temporarily on a secondment.
However, Mr. Whist testified that the Directorate's
management was put in a very embarrassing situation because
they had assured the committee that Mr. Ward would 'not be
involved in the region. He repeatedly testified that this
embarrassing situation could have been:a~oided, if Mr. Ward
had informed him of his intention to be involved in this
event.
We find that Mr. Ward is not to be held responsible for
the embarrassment caused to management. The evidence is
uncontradicted that while management gave specific assurances
to the committee, Mr.. Ward was not informed at any time that
~his was. done. Thus, he could not have foreseen the
possibility of embarrassment.
Since Mr. Ward was not responsible for the errors in the
flyer or for the embarrassment vis-a-vis ~he committee, the
issue is whether Mr. Ward acted improperly by defying clear
directions from Mr. Whist not to be involved in the Ahmadiyya
movement symposium in 1989 and by failing to inform Mr. Whist
that he intended to participate. CounSel for the Employer
suggested that Mr. Ward was fUlly aware that he was under
directions not to participate, but chose to participate
anyway without informing Mr. Whist.
31
There is a conflict in the evidence in this area. Mr.
Ward testified that for several years when this event came
up, Mr. Whist told him that he should cut-back his
i~volvement with the Ahmadiyya Movement to a bare minimum.
When Mr. Ward reminded Mr. Whist of the legitimacy of the
group and the importance of its activities from the
Ministry's point of 'view, Mr. Whist informed him that his
concern was Mr. Ward's time and not the importance of the
activity. Mr. Ward vehemently denied that Mr. Whist' at any
time directed him to cease a%~ involvement with the movement.
According to Mr. Ward as a result of Mr. W~.ist's instructions~
in the last two years he had restricted his involvement to
attending the symposium on the Sunday.
.Mr. Whist agreed that his major concern was that the
committee members felt that he and Mr. M~Intyre had lied by
breaking the promise that Mr. Ward will not be involved in
any race relations activity in the region until its
complaints about him Were resolved. He agreed that Mr. Ward
was not made aware of this promise and that therefore Mr.
Ward 'could not. be accused of intentionally' causing
embarrassment to anyone. When Mr. Whist was asked in cross-
~xamination-whether he told Mr. Ward to withdraw all contact
with the Ahmadi~a event, he replied: "This was an event
which stood uD Without the need for our help. It was not a
priority. At first he organized ~and moderated the event.
32
Three years earlier I said you can only moderate it, Next
year I said you can moderate it this year, but this will be
the last time". Mr. Whist conceded ithat no direction was
issued in writing. Nor was there any docmaentation of a
verbal direction.
Mr. Whist met with Mr. Ward on September 20, 1989, about
his concern. Mr. Ward's~e~anation was that his involvement'
was minor and that he put in very little time and effort. He
felt he had done nothing wrong by doing that. Mr. Whist kept
notes of that meeting. That. indicates that Mr. Whist
confronted Mr. Ward about not informing him of his
involvement, but makes no mention of failure to follow a
direct order. It appears to us that if Mr. Whist felt that
he had given, a clear and direct order and that Mr. Ward had
defied it, that would have been. a serious concern. It would
have been natural for Mr. Whist to remind Mr. Ward that he
had given an order to withdraw all contact and demanded an
explanation. Instead Mr. Whist's own notes indicate that his
only concern was Mr. Ward's failure to advise Mr. Whist of
his involvement. Mr. Ward ~was not confronted with an
accusation of failure to follow an order or insubordination.
Similarly, the Crichley report does not mention that there
was a direct order from Mr. Whist that Mr. Ward should cease
all activity with the Ahmadiyya Movement event. The
allegation in %hat report is ~lso that Mr. Ward failed to
inform Mr. ~%ist o~'his intended activity.
During his testimony,· Mr. Whist stated several times
that his major concern was'about Mr. Ward not telling him of
his involvement. One would think that a blatant disregard
for a direct order should cause Mr. Whist at least as much
concern. His failure to confront the grievor on September
20th and the absence of any mention of a failure to fallow a
direct order, suggest that at the time Mr. Whist did not feel
that there had been such insubordination. Even if Mr. Whist
had intended that Mr. Ward should completely withdraw from
involvement in the Ahmadiyya event, we are satisfied that
that intention was not made clear to Mr. Ward. Mr. Ward
understood from discussions~ with Mr. Whist that his
directions were to minimize his involvement and he felt that'
he had done that by agreeing to attend only on the Sunday.
Thus he explaihed to Mr. Whist, that his involvement was
minor and that he had put in little effort and time. When
asked during testimony for his reaction to this explanation,
Mr. Whist's response was: "It was not minor. It gave rise to
a very nasty complaint and flew in the face of our assurance
that he will not be involved in the region."
As noted Mr. Ward cannot be blamed for causing
embarrassment to the management, becaUse he was not even'
aware that management had given such an assurance. His
uncontrad~cted evidence is that he reported his involvement
in the Ahmadiyya event in the activity log in the Metro
Toronto Region, 'which went to his supervisor there.
Unfortunately, Mr. Whist had no access to those. Without
doubt, if Mr. Ward had chosen to advise Mr. Whist of his
plans, this situation could have been avoided. However, his
failure to do so at most constitutes poor judgement on his
part. For reasons earlier given, we find that there was no
clear order contravened by Mr. 'Ward. Therefore, no
insubordination has been established.
Complaints from the Kitchner-Waterloo and Brantford Race.
Relations Committees
Mr. Ward's secondment to the Metro-Toronto Region was
initially to end in March 1989. At that time' he was
scheduled to return to his position as RRC in the South-East
Region. Therefore, the contract employee, Mr. S. Yacoub, who
replaced him in. the South-East Region (which included the K-
W and Brantford areas), had a contract which was also to
expire in March 1989. However at some point Mr. Ward's term
of secondment was extended to August 11989. Mr. Yacoub's
contract as RRC in the South-East Region was also extended
till August to coincide with Mr. ward's new anticipated
return date. It was at this stage that the management of the
Directorate received a letter dated February 1, 1989'from the
35
Interim-Chair of the K-W Committee, Mr. K.S. Chatwal, in ·
which he strongly indicated that the committee had been
pleased with Mr. Yacoub, that it had concerns with Mr. Ward's
"methods and style ~f operation" and expressed the
committee's dismay that Mr. Ward was due to 'return to the
region. The letter stated clearly that the committee will
· not find it acceptable to work with M~.~ Ward.
A similar letter dated February 2'2, 1989, from the Chair
of the Brantford Committee, Ms. ~vonne Wright was addressed
to Mr~ McIntyre. She wrote that when the committee became.
aware that Mr. Ward will be returning to the~'region, 6
members of~ the ~committee indicated that they would resign
from the-committee. The letter states that these members
"had very strong convictions against working' with ~scouter,
due to unpleasant personal experiences they have encountered
in their line of work with respect'to Scouter's actions."
The Directorate's management had meetings with the two
committees at which concerns about Mr. Ward were elaborated.
Following the meetings with the two committees, there were a
n%u~ber of letters from the committees to the Directorate's
management seeking assurances that Mr. Ward will not re~urn
to the Region and demanding that a decision be made soon.
Some of these letters were copied to 'the Minister of
Citizenship and other politicians. Of particular note is a
36
letter dated July -18, 1989 from the Chair of the Brantford
Committee which states that it would be "a tragedy if a
questionable person such as Scouter Ward is placed in a
position of trust" and warns "Please be advised that we will
fight your decision". In general,' the Directorate's response
was that a decision will soon be made. The committee was
qiven an assurance that Mr. Ward will have no involvement in
race rglations activity in the South-East Region until the
committee's complaints were resolved.
Suffice it to state that at these meetings it was made
clear that the committees were not prepared to work with Mr.
Ward. Mr. Whist used the terms "unbelievaDle vehemence" and
'!adamant" to describe the attitude of the committees.
Following these meetings, Mr~ McIntyre and Mr. Whist met
with the Deputy Minister, who decided that an independent
investigation should be conducted of the allegations against
Mr. Ward. Mr. Bruce Crichley, Manager of Human Resources
with the Ministry of Tourism and Recreation, was appointed to
conduct that investigation.
Mr. Crichley interviewed a number of individ6als who had
made allegations against Mr. Ward and also met with Mr. Ward.
Following the investigation, on October 24, 1989, Mr.
Crichley submitted a "Confidential Report" to Mr. McIntyre.
Mr. Whist testified that in deciding'to remove Mr. Ward
from his RRC position, a number of factors were taken into
account. These are set out in a briefing note he,prepared ~s
follows:
Concerns about consultant Ward's conduct were:
I) Complaints from the two committees
The investigation report suggested that
Consultant Ward inability to successfully
work with the. two race relations
committees showed a lack of skills and
'failure to meet the expectations of the
Directorate to provide its services. The
vehemence of these two key regional race
relations organizations in refusing to
ever work with Consultant Ward was noted.
2) The incidents around the,p~ies~ identification
The belief of the independent
investigator that Consultant Ward
misrepresented himself as a priest again
rai~edquestions around Consultant Ward's
conduct. Th~ Directorate felt a
~isrepresentation of this kind is indeed
work related. Consultants must be always
mindful of the fact that members of the
public-are potential clients. This is
amply demonstrated in this case when it
is revealed that the complainant, Raj
Verma is a member of a race relations
organization.
3) The Ahmadiyya Forum invitation
a) Consultant Ward accepted an
invitation to this event without
supervisor's knowledge or approval.
b) Consultant Ward acknowledged he
agreed to attend this function
despite the fact that 'he was not
currently active in Southeast
Ontario and that he knew he was-not
responsible for this area.
c) Consultant Ward accepted the
invitation despite the fact that he
knew that Directorate participation
in activities with this group was
a sensitive issue and that the
supervisor wanted to. withdraw'
direct assistance to this group.
This incident suggests Consultant Ward
disregarded Supervisor's directions and
authority.
4) Written reprimand for approaching the
Minister's Office
This recent reprimand shows a lack of
judgement and fundamental understanding
of consultant's role and ministry
processes.
5) Written reprimand on inappropriate language
Again lack of judgement, tact and ability
to deal-with a situation consultant did
not agree with.
From these concerns, the following conclusions are
drawn:
It is the management's conclusion that these
identified incidents collectively constitute
evidence that Consultant Ward does not have the
judgement nor all the skills necessary to work as
race relations consultant in the field. He
significantly failed to serve the needs of two key
client groups. He does not take adequate direction
from client groups or his supervisor. He lacks the
facilitating and communication skills to deal with
clients and to be flexible to client's practices.
Finally, there is a question regarding how he had
represented himself in the field, raising the
question of his credibility and integrity.
39
The Board has already considered the concerns referred
to in items 2 to 5. We have upheld the written reprimand in
item 5, but ~oncluded that there has been no culpable conduct
on the part of Mro Ward relating to the events referred to in
items 2, 3 and 4.
Now we turn to an examination of the complaints by the
K-W and Brantford Committees.
Ki~chener-Waterloo Comg~aint
This committee's concerns about Mr. Ward were related to
Mr. Whist at a meeting held on February 7, 1989 and are set
out. in a memorandum to file prepared by Mr. Whist as follows:
During the course of the meetin~ the following
concerns were made:
1. Scouter.'s manner and judgement are
questionable. In the case around getting
the Waterloo County Board of Education tb
develop a race relations po'~Cy, it was.
felt Scouter inappropriately gave
positive reinforcement to the Board's
efforts and failed to remain impartial or
to respect the concerns of 'the community
over the quality of the document and the
intentions of the Board.
2. The Waterloo Regional Race Relations
Council (W.R.R.R.C.) was. essentially a
creation of Scouter's developed without
support from the community.
3. Scouter's aims in a project are seldom
clear. He doesn't listen to the
community. "His community development
style does not build, it is imposed".
This is not just a concern.in Kitchener,
Committee members have heard similar
concerns in other communities.
4O
4. People have avoided Scouter because of
the energy needed to work with him. An
example was cited - in Kitchener Waterloo
there is a well established community
infrastructure that deals with a lot of
issues. However, over the last two to
three years the community could have used
some help in the area of race relations
because there have been problems. The
issue is that people did not come forward
to Scouter because of his manner and
practices, and probably was not even
aware of this dissatisfaction. The
unfortunate result is that it is only now
that a body such as the Kitchener Race
Relations Committee is being formed when
under the right conditions it ~hould have
been formed three years ago.
5. Scouter is a likeable person but
sometimes insensitive. He is insensitive
in his use of language, (i.e., use of
term' "Indian"). He tends to ~manage'
activities and convey notion of ~I know -
do it his way'.
6. With regards to the Ontari° Municipal
· conference, Scouter sent out an
invitation to the Waterloo Regional R~¢e
Relations Council using the ~ddress of
the Kitchener Multicultural Centre. The
W.R.R.R.C. had not used this address in.
two years and had not met for at least a
year, if not two years. Why was such an
invitation ~sent? Why did Scouter not
know the state of affairs with the
Committee that it was effectively
moribund?
7. Scouter imposes a structure and style in
his interaction with communities. Can
this be changed? Does he.want to change?
8. Scouter is interested in the biggest
'bang for a buck' for the RRC which is
not always to the communities' benefit.
9 An occasion was cited when Scouter has
asked to speak to 15 to 18 social service
representatives on Race Relations. At
the end of the presentation people were
incensed at his attitudes and
paternalism. Another Committee
representative noted she was aware of a
number of social service people who were
not prepared to work with Scouter.
The first item deals with a race relations policy that
had been prepared by the Waterloo County Board of Education.
The K-W committee members met with the Board of Education to
discuss the adequacy of the policy. The committee ' s
complaint was'that at this meeting Mr. Ward supported a
~olicy which committee members felt was flawed and
inadeqUate. This matter came to Mr. Whist's attention
shortly after the event. Mr. Whist testified that Mr. Ward
explained that all he was doing was give some "positive
reinforcement" to the Board of Education because they were'
trying to come up with a race relations poli~y. Mr. Whist
testified that while giving positive reinforcement by itself
was not improper, the question was whether .it was appropriate
to do that at a public meeting. In his view, it was not a
"good tactic" on Mr. Ward's part to have done so. Although
Mr. Whist became aware of the Committee's displeasure about
Mr. Ward's conduct, no action was taken at the time to either
document that Mr. Ward had acted improperly or to discipline
him.
The committee's main dispute with the Board of
Education was its plan to teach' "The Merchant of Venice" at
42
the grade 9 level. The committee members, led by Prof. Mona
Zentner, objected to this becausethey felt that the teachers
lacked the skills to sensitively deal with Shakespeare's
portrayal of jeQs in the book. Prof. Zentner testified that
the committee expected Mr. Ward to speak up against the
teaching of the play, and was distressed that he did not do
so. However, the evidence of Mr. Whist was that the
Directorate had instructed Mr. Ward specifically that he
should not take any position on this issue. Prof. Zentner
testified in cross-examination that the committee was not
aware of these instructions.
The second allegation against Mr. Ward was that he had
appointed members to the old committee 'without regard to the
wishes of the community, This is not substantiated by any
evidence. On the contrary, the evidence is that any.
appointment of members had to be approwed by the committee.
There is no evidence that Mr. Ward made any appointment
without such approval. It is clear from the evidence that
the new K-W committee had a poor opinion of the old
committee. In thi~ comDlaint they were claiming that the old
committee consisted of people personally preferred by Mr.
Ward and not representative of the community. There is no
evidence whatsoever to support that complaint.
43 ~
The concern expressed in item 6 is related to the
allegation in item 2. Mr. Ward sent an invitation to the
Ontario Municipal Conference to the old K-W committee. He
testified that he addressed it to the Kitchener Multicultural
Centre because he was not aware of a change of address or
that the old committee was inactive. Indeed, the evidence
suggests that the old committee was not completely inactive.
In any event," when the'issue was raised, Mr. Ward was will.inq~
to accommodate bothi committees. We d6-not find any wrong
doing on Mr. Ward's part in this matter.
Item 5 alleges use of insensitive language, namely,
referring to~ native people as "Indians". We were not
informed of the context in which this term was used, whether
he used the term ih .'addressing. a native group or in an
internal ministry communication. In any event, there is no
evidence to suggest that Mr. Ward used the term in a
derogatory sense or with an intention to insult or upset
native people. There is no evidence that Mr. Ward had ever
been told by anyone, that the use of the term "Indian" to
refer to native people was not a~ceptable. In the absence bf
such evidence, we cannot accept the Ministry's position that
Mr. Ward ought to have known that the term was inappropriate.
We can take judicial notice of the fact that in Canada we
still have the Indian Act in the statute books. A member of
the cabinet holds the portfolio of "the Minister of Indian
44
Affairs" and we have a "Department of Indian Affairs".' While
it may be that some natives may find the use of the term
"Indian" unacceptable, we cannot conclude that the use of the
term by itself constitutes misconduct.
We deliberately avoid dealing with the allegation that
Mr. Ward acted inappropriately with regard to Ms. Terri
Saunders' daughter, since Mr. Whist was very clear that that
allegation was not a cons~deratio~ in the employer's
decision.
The balance of the K-W committee's concerns ultimately
amount to an attack on Mr. Ward's style in dealing with
community groups. From all of the evidence, we got the
impression that the committee member's felt'that Mr. Ward was
not assisting the group to carry out What it wished to do.
Instead he decided what must be done and imposed it on the
group. In other words, the complaint was that Mr. Ward was
too dominating and paternalistic when dealing with community
groups.
Prof. Zentner's evidence is significant in this respect.
Her complaint against Mr. Ward was that while the committee
was interested in dealing with specific incidents of racial
discrimination, Mr. Ward "kept coming back to the structural
issues". The impression we got was that Mr. Ward's interest
45
Qas not in resolving specific incidents of racial
discrimination, but in developing general policy and
establishing a framework or structure which can deal with
race relations issues. The committee was upset because of
Mr. Ward's pre-occupation with general or policy issues and
his reluctance to get involved in individual cases of racial
discrimination.
The Brantford complaint
The allegations against Mr. Ward from the Brantford Race
Relations Committee were presented to the Directorate's
management at two meetings held on May 17, 1989 and September
14, 1989. In minutes prepared.by Mr. WhiS~, it.is no~ed that
at the May 17 meeting allegations were' levelled at Mr. Ward
by the individuals named below:
Ms. Lil~ Petrella:
- that Mr. Ward dominated discussions and "imposed
overwhelming control" that committee members felt it was the
"Scouter Ward Show".
- that she had heard that Mr. Ward got into a fight the
previous summer while act.ing as a Marshall during a .....
multicultural festival and that Mr. Ward had beaten up two
youths and had been charged.
Michael F1ynn:
- that Mr. Ward had exploited and abused individuals.
- that he believed there was "documented proof of
violence" on the part of Mr. Ward.
- that Mr. Ward had been kicked out of the seminary, but
went around saying he was an ex-priest.
- that he believed Mr. Ward had been kicked off his
cable TV show "for having too many young boys on the
program".
Patrice.Burke:
- that some of h~r clients (she was a social worker) who
were developmentally handicapped, were sexually and
physically assaulted by Mr. Ward.
- that Mr. Ward 'sex,.ally assaulted a young adult and
broke his glasses and that the victim ended up in hospital.
- that young males would stay in Mr. Ward's apartment,
which became "a well known spo~ to agencY workers".
- that she believed that Mr. Ward would cash the
boarders' benefit cheques and financially exploit them.
- that she feared exploitation may!still be occurring.
- that Mr. Ward used to pick up people at the bus-stop
and that some of those people had later told her that they
had found a place to live - with a priest.
47
- ·that she believed ·Mr. Ward "has demonstrated the
symptoms of a psychopath".
Mr. Whist's minutes of the September 14, 1989 meeting
with the Brantford committee records that the following
allegations were made against Mr. Ward.
- amplified on the allegation that Mr. Ward beat up two
boys at a multicultural festival and that she had ,heard
through the office grapevine that charges may have been laid
against Mr. Ward.
.Michael Flvnn:
- that he heard young males complain of abuse.from Mr.
Ward.
- that he heard that Mr. Ward was saying he was a member
.of St. Pious Church in Brantford, when he was not.
- that a young man on social, a~sigtance was physically
abused by Mr. Ward.
- that Mr. Ward was "involved in a case with young
twins", but that no chaFges were laid because the twins had
criminal records and their credibility would not stand up in
court and because they would also suffer going through the
process.
Patrice Burke:
- that she heard stories of sexual and physical abuse of
de-institutionalized men in their 20s and 30s by Mr. Ward,
and that many of them ended up in hospital emergency wards.
- that in one case one of her clients went to hospital
"black and blue with his teeth knocked out sayinq that
Scouter was the cause of this".
· - that Scouter would befriend young men on the street
and they would end up abused and penniless.
- that she believed Mr. Ward "would take family benefits
cheques of persons boarding with him".
Ra9 Verma
- Related the allegation that Mr. Ward misrepresented
that he was a priest. This allegation has been dealt with
earlier in the award.
We have sec out the foregoing allegations despite Mr.
Whist's testimony that that the sex and violence related
allegations were not factors considere~ in deciding to re-
assign Mr. Ward, He testified that those allegations were
not considered since they relate to a period before Mr. Ward
became an employee of the Ministry. Thus the only
consideration was Ms. Petrella's allegation that Mr. Ward had
been the domineering and paternalistic as a RRC.
While the other allegations were not considered by the
employer in making its decision, we have absolutely no doubt
that those allegations were directly responsible for the
Brantford committee's vehement stand against Mr. Ward's
return as the region's RRC. Mr. Whist candidly admitted that
he believed that those allegations played a role in the
Committee's position. He further testified that he found it
difficult to believe that~ these allegations, of sexual
misbehaviour and violence were true. However, his position
was that the truth of those 'allegations was irrelevant from
the Ministry's perspective b~cause they predated Mr. Ward's
employment with t~e M~n%stry>
The main accusers of Mr. Ward, Mr. 'Flynn and Ms. Burke,
.were~ not called to testify. · Nevertheless, the evidence
clearly indicates that from the investigation undertaken by
the Ministry, it was established that at least some of the
allegations were not true. Yet the employer did not'inform
the accusers that their allegations were false. While Mr.
Whist testified that he did not believe the allegations, he
did not at any time convey that to the accusers, when asked
why he did not-do so Mr. Whist responded that he did not wish
a confrontation with the committee members. At another point
he testified that that would have served no purpose because
50
he believed the committee members would not have changed
their minds about not working with l~r. Ward.
When all of the evidence is considered, the only
complaint substantiated against Mr. Ward, from both
committees, is that he had a domineering style. He decided
what has to be done and expected the committee to go along
with his decision. This offended the committee members, who
felt that they should be in control and should be making the
decisions.
Mr. Whist during his testimony described the proper role
expected 'of a RRc 'in dealing, with community groups. He
stated that the RRC should "lead from behind". That was the
ideal. However, at another time during his testimony, Mr.
Whist testified that "at times the RRC must lead and give
directions. But that is one skill. He also must be
flexible. It appears that the committee felt that he (Mr.
Ward) was playing just one role and they were upset about
it". At another point in his testimony, Mr. Whist testified
that ~he RRC "has to be a catalyst in race relations issues".
Mr. Whist's evidence was that unlike in Toronto in the South
East region there was little race relations activity. He
went on "So the RRC had to be a catalyst in initiating
activity." It appears to us that what the Ministry expected
was the skill of being a leader and a catalyst without being
51
seen to be 'so. Prof Zentner, in describing why the committee
was so pleased with Mr. Yacoub, the contract employee,
stated: "He is never a leader of the group. We have to ask
him for his opinion. He stays in the background unless he is
asked." .It is not clear to us whether a RRC who stays in the
background and does not give an opinion unless asked, fits
into the Directorate's model of a catalyst.who leads from
behind. In any event, the evidence suggests that Mr. Ward
was directive to a degree that the clients felt that he was
dominating. Mr. Whist testified that when Mr. Ward was
informed of the complaints against him he admitted that he
had been directive and that it was necessary to be directive
to get the work done. Under.questioning Mr~ Whist .agreed
that a RRC has %o be'directive "at time~"~
We agree with Mr. Whist that Mr. Ward did not adequately
walk that line between being a catalyst and a leader and not
dominating the group. However · does that justify the
employer's conclusion that Mr. Ward lacked the skills to be
a RRC. We do not think so at all. The evidence establishes.
that for over 5 years Mr. Ward has functioned as a RRC.
Between 1985 and mid-1988, Mr. Whist was his direct
supervisor. In the 5 years, annual performance appraisals
were conducted on Mr. Ward, three of them by Mr.-Whist. The
employer agrees that the appraisals were satisfactory and
does not raise any performance concerns. 'Mr. Whist also
52
agreed that Mr. Ward met all performance goals that were sat.
The evidence is that the South East region is the largest in
the province with the greatest number of client groups. It
was intended to be serviced by two RRcs, but for financial
reasons was covered by Mr. Ward alone. Mr. Whist admitted
that he had no doubts about the "energy and diligence" Mr.
Ward put into his work, and agreed that Mr. Ward put in a
substantial amount of extra-time to get the work done. He
started as a contract employee and subsequently obtained a
classified position through a competition. Mr. Whist
recommended Mro Ward for the secondment to the Ministry of
the AG, and Mr. Ward won that competition as well. Mr. Whist
testified that Mr. Ward did "some goodlwork" assisting him to
organize the Municipal Race Relations Conference which was a
big success. Mr. Whist had no hesitation recommending Mr.
Ward to fill in for a RRC position in Metro-Toronto. During
his period in Toronto,there were no complaints from client
groups. On the other hand, 3 client groups wrote 'to
management, commending Mr. Ward's work. Mr. Hafiz-Zadeh of
the Ahmadiyya Movement who was called to testify about the
"flyer incident", was of the opinion that Mr. Ward gave
"solid advice and guidance" to the group and was disappointed
when he was told that Mr. Ward was no longer available for
assistance.
53
The evidence is that only the K-W and Brantford
committees found Mr. Ward unacceptable. As far as the latter
com~ittee is concerned, of.all of the individuals w~o made
allegations, only Ms. Petrella had eve~ worked on 'the
committee while Mr. Ward was RRC in the region. She worked
with Mr. Ward for 3 years and made no complaints. The other
accusers, including Mr. Flynn and Ms. Burke had neger worked
with Mr. Ward.
There was evidence that at least one member of the K-W
committee discussed with Ms. Petrella about the personal
allegations of sexual misbehaviour, violence and dishonesty.
While there was no specific evidence, given the close
proximity of the communities of K-W and Brantford, the fact
that all of the individuals were active in the race relations.
field, and given that the allegations are of the most serious
kind, it is likely that some or all. of the K-W committee
members were aware of the stories about Mr. Ward. It is
equally likely that these stories would have contributed to
the "vehemence" of the two committees in deciding not to work
with Mr. Ward. As far as the Brantford Committee is
concerned, apart from Ms. Petrella's complaint that Mr. Ward
was too domineering, the committee was driven by rumour and
gossip about Mr. Ward. The allegations are extremelY' serious
and involve crim%nal conduct. The employer was not provided
a shred of evidence supporting any of these allegations. Nor
54
did the Board hear any evidence supporting any of the
allegations.
The employer's position simpiy is that these personal
allegations pre-datedMr.-Ward's employment with the Ministry
and as such were irrelevant. While that may be true with
regard to most allegations, this is not true for others. For
example, the allegation that Mr. Ward was kicked out of the
cable TV show f.or having to~ many young boys on the show,
relates to a period when Mr. Ward was a RRC. In fact the
evidence is that Mr. Ward had approval from the directorate
to do the TV show and that Mr. McIntyre has appeared on the
show.
We are greatly troubled by the .manner in which the
employer dealt with these, allegations. The accusers were not
asked to substantiate any of the allegations. For several
months the grievor was not informed details of the
allegations. Mr. Whist knew beyond doubt that at least some
of the allegations were untrue. He knew or could easily have
verified that the grievor was not kicked out f~om the TV show
for having too many boys. The show was terminated because of
a cut-back in funding. The Crichley investigation
conclusively proved that Mr. Ward had not been charged for
assaulting two male youths. Mr. Whist agreed that .the
Brantford Committee members were driven by their belief in
these stories. Yet no steps, were taken to advise the
committee that they were under a mistaken belief, at least as
far as these two specific allegations were concerned. When
asked why this was not done, Mr. Whist~s response was that he
believed that nothing would have caused the committee to
change its mind· about not working with Mr. Ward~
From all of the evidence, and particularly from the
tenor of Mr. Whist's evidence, we cannot help·concluding that
Mr. Whist was intimidated by and pre-occupied with the two'
committees' adamant refusal to work with Mr. Ward. It
appears to us, that he concluded that no matter what' is done,
the committees would not change their minds. Thus on
numerous occasions Mr. Whist emphasized that the two
committees were "key groups" in the region. Some of the
individuals in the committees were described as "high-profile'
people" in'the race relations field.
The evidence establishes that the only valid concern the
Directorate had as a result of the complaints of the two
committees was Mr. Ward's dominating style. The evidence
further suggests that even Mr, Whist did not believe that Mr.
Ward lacked the skills' to be a RRC. However, he was facing
two hostile community groups, who he felt were indispensable.
In the result, Mr. Whist and Mr. McIntyre felt that he had to
56
decide between Mr. Ward. and the two committees. The decision
was that Mr. Ward was dispensable but not the two committees.
There is ample evidence to support our conclusion that
the employer did not really believe that Mr. Ward lacked the
required skills of a RRC. As already noted, on numerous
occasions, when Mr. Whist was confronted in cross-examination
about the merits of the allegations against Mr. Ward, his
attitude was that it does not matter and that the fact was'
that the environment had been poisoned and the committees were
not willing to work with Mr. Ward. Mr. whist engaged in the
following dialogue in cross-examination:
Q. .If you could have arranged the 2 clients
t~ have worked with Mr. Ward, he would
have returned in November?
A. Possibly
Q. Why do you say possibly?
A. OK. He would have.
We are convinced that whatever concerns the employer may
have had, Mr. Ward Would have been returned to the South-East
region as RRC. The only reason that Was not done was, not
because the employer believed that Mr. Ward lacked the skills
required to be a. RRC, but because the two client groups
refused to work with Mr. Ward. It must be noted that Mr.
Crichley, made recommendations following his investigation.
He started with the following 4 options:
57
Option
Carry on with the proposed return of Mr. Ward-to the
Southeast Region after October 31.
Option 2
Change the regional alignment so that Mr. Ward does
not have responsibility for Brantford or Kitchener-
Waterloo.
Option 3
Reassign him to Metro Region permanently.
Option 4
Reassign him to a position that is not client
service related.
It is apparent that Mr. Crichley's concerns were also
about the K-W ahd Brantford committees' position, on Mr. ward's
return. Thus at p.21 of his report Mr. Crichley states:
I am reluctant to say that Mr. Ward does not possess
the skills to be a consultan~ because he has in the
past and most recently in'his assignment in Metro
demonstrated that he has done a good job for his
clients. ~is work with the Brantford and Kitchener-
W~terloo committees, however, is not consistent with
either their expectations of him nor the
Directorate's expectations of a Race Relations
Consultant.
His recommendations are as follows:
Recommendations:
I offer the following recommendations, taking into
consideration the findings of the report, my Human
Resources Management background and the interests
of the Race Relations Directorate, and the Ministry'
of Citizenship.
0Dtion 1 should not be a consideration. A~though
I understand why Mr. Ward would like to return to
the region that he lives in, to do So,would cause
serious harm to everyone involved. The Race
Relations Committees would refuse to work with Mr.
Ward.. The Race Relations Directorate and Ministry
of Citizenship would suffer a lack of credibility
and possible embarrassment from any public
disclosure by the committees involved. Mr. Ward
would be unable to do his job in the way it is
intended because of a lack of cooperation or support.
from the communities concerned.
Option 2 and 3 are possibilities but depend heavily
on the ability of the Race Relations Directorate to
support these kinds of changes from both a financial
and human resources perspective.
Option 4 is also a consideration,however again, a
job for which he is qualified would have to be found
within another part of the organization. His rights
under the Collective Agreement would also have to
be considered, i.e. (salary protection).
Final Recommendation
It is my opinion that Mr. Ward's style of operation
and personal beliefs have re~ultedin his inability
to work with the two Race Relations Committees
involved. The skills most needed'in this type of
position are those of-communication, good judgement,
tact, diplomacy andthe ability to foster harmonious
relationships.
I tend to agree with the committee's evaluation of
Mr. Ward as it relates to their Operation. In their
view, he was unable to demonstrate to them that he
-possessed these skills and abilities.
In this regard, the Race Relations Directorate
should remove Mr. Ward from any further contact with
the Brantford and Kitchener-Waterloo Race Relations
Committees.
Mr. Ward should be advised of the inappropriate
conduct and performance shortcomings. The
Directorate should take the necessary action to
correct the inappropriate conduct.'and assist Mr.
Ward to overcome his performance shortcomings.
59
It is clear from these recommendations that Mr. Crichley
has not concluded that Mr. Ward lacks the.skills to be a RRC.
He sees options 2 and 3 both involving Mr. Ward in the role
of a RRC with client contact as possibilities, his concern
being the ability of the Directorate to implement, these
options from a financial and human resources perspective. If
Mr. Crichley felt that Mr. Ward lacked the skills to work
effectively with client groups, he would not have seen options
2 and 3 as viable. His finaI recommendation is that
"Directorate should remov~Mr. Ward from any further contact
with the Brantford and Kitchener-Waterloo Race Relations
Committees" and not from all client contact.
It is 'also to.be noted that while Mr. Crichley rules out
option 1, that is returning Mr. Ward to the South East Region,
he does so because, he felt that the two groups would refuse
to work with Mr. Ward. He.states that Mr. Ward will be
"unable to do his job in the way it is intended" not because
Mr. Ward lacked the required skills, but "because of' a lack
of cooperation or support from the communities concerned".
In other words, it all comes back to the vehement stance taken
by the K-W and Brantford committees.
Even more significant is Mr. Whist's evidence in' this
regard. Employer counsel asked Mr. Whist if he considered
transferring Mr. Ward to another region'as RRC, which was
6O
option 3 offered by Mr. Crichley. If Mr. Whist felt that Mr.
Ward lacked the skills to be a RRc, the answer would have been
a clear."no". Instead, his answer was "yes. But we rejected
that option for several reasons. There wasn't a logical place
to transfer him. I had asked him if he would be willing to
move to Toronto and he had said no. The other positions were
all filled. At certain points we felt it may be a question
of ability and we will have problems.whatever community he
works in."
In our view, that answer does not indicate a conviction
on Mr. Whist's part that Mr. Ward lacked the skills to be a
RRC. As already noted, Mr. Ward has dealt with numerous
client groups over a period of 5 years. His performance
appraisals do not indicate any concern about his skills. Mr.
Whist agreed that whatever goals' were set out for him, Mr.
Ward met them. He had never been formally disciplined or
counselled about his work. Mr. Whist testified that he
followed a management philosophy of 'putting things in a
positive light and that he constantly engaged in "gentle
coaching" in order to assist Mr. Ward do a better job.
However, under cross-examination, Mr. Whist agreed that that
was nothing more than day-to-day supervision and that Mr. Ward
was not informed at any time that his level of performance was
not. acceptable. Indeed, the positive performanCe appraisals
and Mr. Whist's recommendation 'of Mr, ·Ward to other job
postings would have conveyed to Mr. Ward that he was
performing well. Mr. Whist agreed that it was in the
employers' letter of October 27, 1989 (the notice of
reassignment to a position with no client contact) that th~
employer informed Mr. Ward for the first time that he had no
skills to perform as a RRC.
In addition to Mr. Whist's concern about Mr. Ward's
dominating style, he also alleged that Mr. Ward had failed to
keep ~him informed of his- activity in the region.
Specifically, it' was alleged that Mr. Ward failed to inform
him about (a) his involvement in the Ahmadiyya Movement event
and (b) ~about the K-W'committee's concerns. We have dealt
with (a) above.
As to the K-W committee's c~ncerns, the evidence is that
the committee members did not at any time indicate to Mr. Ward
that they were dissatisfied-or upset about his style or
service. Employer counsel points to the fact that the
committee revised Mr. Ward's description, of duties, reducing
his involvement in the committee's activities, and that this
Should have indicated to Mr. Ward that the committee had
difficulty with.his work. We disagree. Mr. Ward testified
that he felt that by re-writing his duties the committee was
attempting establish an arms-length relationship with the
directorate and that he did not understand that as a result
of dissatisfaction with his own performance. This is not, in
our view, an unreasonable, way to reason. In any event, any
employee would tend to believe that he is performing
satisfactorily unless he is clearly told that he is not. It
is 'simply too much to expect an employee to make assumptions
and deductions and almost speculate that his clients may be'
unhappy with his work and to expect that employee on that
basis to bring that to the attention of his supervisor's
attention.
Th~ evidence is that On the occasions when Mr. Ward knew
that his clients were upset about him he did bring that to Mr.
Whist's. attention. For example, the Board of Education race
relations policy incident and the Teri Saunders incident. No
action was taken against Mr. Whist on these occasions. The
evidence is that RRC's ~repare daily activity logs on all of
their activity. Even a telephone c~ll is recorded in this
manner. These logs are then placed in the file of the
particular client group. The uncontradicted evidence is that
Mr. Ward followed this practice, which was the formal way of
communicating the RRC's field activity. As supervisor, Mr.
Whist had access to all the client files and the activity logs
of the RRC. The evidence is Ghat on an average Mr. Ward sent
40 to 50 daily activity logs a week. There is no evidence
that Mr. Ward was ever told that he was not communicating
sufficiently with his supervisor.
63
Tothe extent thatlMr. Ward may have been too dominating
in his inter-action with client groups or that he may not have
communicated to the level expected by M_r 'Whist, there is not
an iota of evidence suggesting that the employer's
dissatisfaction, in these areas was ever brought to Mr. Ward's
attention. There is no formal discipline. There is no
indication of ~nacceptable performanc'e in any performance
'appraisal. There is no evidence that even informally, Mr.
Ward was ever told that his performance level was
unacceptable, that he lacked the skills to be an RRC or that
his job was in jeopardy~ As a result, we are satisfied that
Mr. Ward never had an opportunity to address any concerns the
employer may have had about his performance.
Mr. Whist testif-i~d that he did not believe that Mr.
Whist could·"change his ways". We see no reasonable basis for
such a belief. The evidence is that whenever remedial action
was suggested Mr. Ward was always cooperative. For example
Mr. whist testified about an incident at the Hamilton
Municipal Committee. Mr. Whist's own evidence was that when
it was suggested to Mr. Ward that he should upgrade his
knowledge on employment equity, Mr. Ward readily agreed.
Similarly when Mr. Whist was asked what 'Mr. Ward's reaction
was when finally informed of the complaints against him, Mr.
Whist ~9~tified: "The tone was - yes there are complaints but
64
he will go back and endeavour to do good work, that he had the
skills." The Crichley report does not indicate that based on
his investigation, Mr. Crichley concluded thatMr. Ward lacked
the skills to function as a RRC. On the contrary, Mr.
Crichley states that he is reluctant to say that. In his
final 'recommendations he does not suggest thatMr. Ward cannot
overcome his shortcomings, on the contrary he recommends that
the Directorate "... assist Mr. Ward to overcome his
performance shortcomings. From all of the evidence we did not
get the impression at all that Mr. Ward was unwilling to
reflect upon the complaints against' him or that he was
unwilling or unable to change his ways.
In summary, we find no evidence justifying a conclusion
that Mr. Ward lacked the skills to perform as a RRC. To' the
extent that 'he may have had some short-comings, neither the
complaining client groups nor the employer brought the
concerns to Mr. Ward's attention and gave him an opportunity
to correct those. Indeed we are satisfied from the evidence
that the employer did not itself believe that Mr. Ward lacked
the skills to be a RRC and that the only reason Mr. Ward was
re-assigned was because of the refusal by two client groups,
who the employer viewed as key groups with high profile
people, to work with Mr. Ward. As Mr. Whist candidly
admitted, if there was someway the employer could have changed
the position taken-by the two groups about not working with
65
Mr. Ward, we have no doubt that the employer would have
returned Mr. ward to the region as scheduled. '"
While this argument was not articulated and no
authorities were cited, employer counsel suggested that since
for whatever reason Mr. Ward is unable to work with two key
client groups in the South-East Region, his employment
contract has in effect been frustrated, in that he is unable
~to function effectively in the region. We do not agree. The
evidence iff that Mr. Ward has functioned as a RRC for over 5
years and has dealt with numerous client groups. Other than
the K-W and Brantford groups, there is nothing to suggest that
there were any concerns about Mr. Ward's ability. The only
available evidenCe is complimentary of his performance and
service. Even within the South-East Region, the evidence is
that there are numerous client groups, -including 25 to 30
large client groups. The only complaints are that from the
two committees.
Based on the evidence relating toMr. Ward's interaction
with the 2 committees, we cannot justify a finding that Mr.
Ward lacked the skills to be a RRC. We are satisfied that the
Brahtford committee was to a large extent motivated as a
result of unsubstantiated gossip and rumour. The evidence is
that at least some members of the K-W Committee were also
aware of these rumours. It is likely that they were also
influenced by them. That probably explains why some persons
who had never worked with Mr. Ward, such as Ms. Bishop, took
such a strong position against Mr. Ward's return. To tke
extent Mr. Ward had any deficiencies the employer was
obligated to bring them to his attention and indicate clearly
what is expected of him. It is simply not appropriate to take
away an employee's job merely because two clients, albeit two
key clients, refused to work with Mr. Ward. Decisions
affecting an employee's r~ghts must be made by the employer.
In so doing, the employer remains bound by the collective
agreement. It can only discipline an employee for just cause.
The refusal of the two groups, in the absence of evidence that
Mr. Ward lacked the skills to work as a RRC, does not
constitute just cause.
There can be little doubt that the position to which Mr.
Wa~d was re-assigned was markedly different from-the position
he held a~ RRC. While the latter involved direct involvement
in the race relations activity in the region with Constant
client contact, his new position is an office job of a
clerical nature with no client contact. Eventhough the wage
rate remained the same, the move constituted a demotion for
Mr. Ward. Moreover, it was a permanent demotion. There was
no justification for such action.
67
For all of the reasons we have reviewed, we find that
there was no just cause for the employer to remove Mr. Ward
from his position as RRC in the South-East Region. The
emplo~er has failed to establish that Mr. Ward lacked the
skills to perform the duties of a RRC. The vehement position.
taken by two client groups in the region cannot take away Mr.
Wa~d's~rights under the collective agreement.
Accordingly, the Board directs that Mr. Ward be re-
assigned to the position he held as RRC of the South-East
Region forthwith. The union sought reimbursement for costs
incurred'by Mr. Ward in travelling between JBrantford and
Toronto to work and to be paid for the hours involved in
travelling. The employer made.no Submissions on this. m~netary
claim. The. Board sees n6 reason not to a~ard the
reimbursement as claimed, since the loss is a direct result
of the employer's contravention of the collective agreement.
In summary the result of this proceeding is as follows:
Grievance dated October 25, 1989
(1) The letter of reprimand dated October 23, 1989 is
sustained.
(2) The grievance is allowed with regard to the letter
of discipline dated October 10, 1989. That letter is to be
removed from all files and expunged from all records.
68
GrievaD~e dated November 10, 1989 (1) The grievance is allowed.
(2) The griev0r is to be returned to his former position
as RRC of the South-East Region forthwith.
(3) He is to be reimbursed for costs incurred in
travelling between his home in Brantford and his w6rkplace in
Toronto.
(4) He is to be paid at his regUlar wage rate for the
additional travel time incurred as a result of the employer's
breach.
The Board remains seized in the event the parties are
unable to agree upon the proper implementation of thi~
decision.
Dated this l§th day of May, 1992 at Hamilton, Ontario
'N. Dissanayake.
VicerC~irperson~ ~%
Member ~
"Partial Dissent" (see
G. Milley
Member
~ OpSEU (WARD) 1720/89
PARTIAL DISSENT
I am unable to agree with my colleagues that the grievor be excused
-for his "failure to follow established protocol" in the B~ampton
incident.
Primarily, they rely (pg) on the grievor's testimony that. he was
not aware of a protocol whereby invitational material was supposed-
to go through the various levels of management. He conceded that
normally, he would have submitted such material to Ms. Chopra
for review.
Notwithstanding that the protocol was not produced in evidence, I
find it less than credible that the grievor, who had worked
under Ms. ~Chopra's supervision since March 1989, would not be'
aware by October of her avowed disciDiined adherence to protocol
and the probable consequences of fts disregard.
I would not excuse his action on the basis of his desire to ex-
pedite the process of ministerial approval. A potential crisis
was in the making and he had to be aware that, not only he, but
more significantly, Ms. Chopra as well would be open to severe
criticism if' it materialized. Regardless of whether the
protodoi was manualized, it became doubly important that he
follow his normal procedure and submit the material to his
superv~sor~ Ms. Chopra for review. Once aware of the emergency,
clearly, it becomes the resDonsibilty of Ms. Chopra to decide
what action to take to expedite the process.
I find not credible the testimony of the grievor that Ms. Chopra
was appraised of the situation the night'before and that" she
had no problem" with the procedure contemplated by the grievor
page 2
for the following morning.
When asked by his counsel why not let Ms. Chopra deal with the
minister, the grievor s.aid: "It was my responsibility to help
my client... I intended to do what's best for my client" And,
in cross examination when asked if it would not have been the
smartest thing to phone Ms. Chopra the day before (Oct. 3) the
grievor answered: No! she was not handling it,'he (the grievor)
was responsible. He worked for his clients and he had told them
that he would deliver the letter, not that he.would take it on.
I must conclude from the grievor's own testimony that he consid-
ered the Brampton Race Relations Committee to be his personal
client rather than a client of the Race Relations DireCtorate.
He had promised the Brampton Mayor, he said, to take the letter
direct to his minister and, it appears he had no intention of'
being hampered by the protocol or the "Bureaucratic procedures&
of the ministry.
While I am satisfied that the grievor's Purpose was to expedite
the process of ministerial approval, it is likely he was well
aware of the established protocol which required that invitat-
ional material go first to his supervisor for review. Even
though there was a need for urgency, I do not see this as a reason
to disregard the normal channels, take matters into his own hands
an6 go direct to the Minister.
Respectfully Submitted,
lley
Member