HomeMy WebLinkAboutGhosh 06-02-22
IN THE MATTER OF AN ARBITRATION
BETWEEN:
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
(the" Union" )
- AND -
SHERIDAN COLLEGE INSTITUTE OF
TECHNOLOGY AND ADVANCED LEARNING
(the II College" )
AND IN THE MATTER OF DISCIPLINE AND DISCHARGE GRIEVANCES OF
GUNNAR GHOSH - OPSEU FILE #01C391 (ACADEMIC)
BOARD OF ARBITRATION
Robert D. Howe, Chair
Michael J. Sullivan, Union Nominee
Robert J. Gallivan, College Nominee
APPEARANCES
For the Union
Boris Bohuslawsky, Counsel
Wilma van den Hurk
Gunnar Ghosh
For the College
Brenda Bowlby, Counsel
Erin Hall
Don Wiles
A hearing in the above matter was held in Oakville, Ontario,
on January 14, October 28, and November 7 and 8, 2002;
September 8, October 29, November 17, and December I, 3,
and 8, 2003; January 14 and 16, May 6, June 18, November 17,
and December 3, 2004; and February 23 and 25, March 7 and 8,
June 29, July 15, September 21, October 26, and December 7,
2005.
A WAR D
This award pertains to four grievances filed by
Gunnar Ghosh (the "griever"), alleging that the College (also
referred to in this award as the "Employer", for ease of
exposition) has disciplined and discharged him without just
cause.
The first grievance pertains to a five-day suspension
imposed in April of 2001.
The second grievance pertains to a
ten-day suspension imposed in September of 2001, and also
covers three contemporaneous letters which were sent to the
griever and placed in his human resources file.
The College
characterizes those three letters as letters of counselling
and does not rely upon them as discipline.
However, the Union
characterizes them as letters of reprimand which raise issues
regarding the grievor's competence, and contends that they are
subject to the just cause standard of the collective agreement
because they are disciplinary in impact.
The third grievance pertains to a fifteen-day
suspension imposed in January of 2002.
The fourth grievance
challenges the grievor's discharge, which occurred on
April 30, 2002.
When the hearing commenced on January 14, 2002, only
the first grievance (pertaining to the five-day suspension)
had been placed before this Board of Arbitration (the
"Board") .
However, at the October 28, 2002 continuation of
hearing, the other three grievances were consolidated with the
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original grievance on the agreement of the parties, to enable
all four of the grievances to be heard together and to be
decided by the Board in a single award.
During the course of these protracted proceedings,
the Board heard extensive oral evidence from a total of
I I
slxteen wltnesses.
In addition to their testimony, 122
exhibits were entered into evidence.
In making the findings
and reaching the conclusions set forth is this award, we have
duly considered all of that oral and documentary evidence, the
extensive and very helpful submissions of counsel, and the
usual factors germane to assessing evidentiary credibility and
reliability, including the witnesses' opportunities for
knowledge, their powers of observation, their judgment, the
firmness and clarity of their memories, their ability to
resist the influence of self-interest when giving their
version of events, the internal and external consistency of
their evidence, and their demeanour while testifying.
We have
also assessed the harmony of their evidence with the
preponderance of the probabilities which a practical and
informed person would recognize as contextually reasonable,
and considered the inferences which may reasonably be drawn
from the totality of the evidence.
The grievor was born in 1940 and came to Canada in
1965, after completing a five-year apprenticeship and
obtaining a general tool and die certificate.
He subsequently
obtained a journeyman tool and die maker card from the U.A.W.
(prior to the establishment of the C.A.W.), and a certificate
2
of qualification for the tool and die maker trade from the
Ontario Ministry of Colleges and Universities.
He also
obtained an interim vocational teaching certificate by
attending the Ontario College of Education (from September 21,
1970 to May 7, 1971), but decided to return to industry as a
tool and die maker rather than completing the additional
required course and obtaining the two years of teaching
experience necessary for a permanent vocational teaching
certificate.
After working in that trade for a number of
different companies in southern Ontario, he commenced
employment with the College in January of 1989.
The program in which the grievor initially taught at
the College was a Canada Manpower program for pre-apprentices
(and some apprentices).
During his thirteen years of
employment with the College, he also taught a number of other
technical courses, including continuing education courses
offered by the College's Skills Training Centre ("S.T.C.").
During the period from 1993 to 1998, he was assigned to teach
continuing education courses on a full-time basis.
He
obtained additional teaching experience by teaching various
technical courses as a sessional instructor at Seneca College
(during the period from 1989 to 1992) and at Mohawk College
(in 1991) .
He also taught technical subjects as an occasional
teacher (during the period from 1989 to 1998) in Halton high
schools.
Students taking continuing education courses at the
College are given an opportunity to fill out a continuing
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education assessment form, which includes an assessment of
instructor effectiveness.
Their assessments of the grievor
were generally quite positive, as reflected in a memo which
S.T.C. Program Administrator Wendy Piasentin sent to the
grievor (and copied to the program coordinator) on
December 20, 2000, regarding his Fall 2000 assessment report:
I have reviewed your Assessment Report and am attaching
a copy of the results.
Your report reflects that you are a well-prepared,
enthusiastic, motivating and approachable instructor.
Your students also found you to be very knowledgeable
of your subject material and that your assignments and
tests were fair and appropriate.
Congratulations on a good report and thank you for your
contribution toward the success of our programs.
In addition to student assessment forms for
continuing education courses taught by the grievor between
1993 and 2000, the Union relies upon testimony given by Anna
Petryshen in support of its contention that the grievor was
a knowledgeable, attentive, and well-liked teacher.
Ms.
Petryshen took a continuing education module consisting of six
hours each Saturday for a period of ten weeks in the fall of
1999, and a second similar ten-week continuing education
module in the winter of 2000, with the grievor as her
instructor for both modules.
She subsequently became an
apprentice who won medals at provincial and national skills
competitions.
After obtaining certificates for mouldmaking
and tool and die making, she enrolled in applied science at
Queen's University.
She testified that the grievor was
"pretty organized" in the way he showed students the machines
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and taught them the material in those two continuing education
modules.
It was also her evidence that he was always on hand
to answer questions and very patient in answering them.
She
further testified that she has no criticisms of the griever as
a teacher.
However, she acknowledged that the continuing
education modules were very basic introductory courses.
Although we have duly considered them, we have found
the continuing education student assessment forms and Ms.
Petryshen's testimony to be of limited value in assessing the
quality of the grievor's teaching in the College's tool and
die Pre-Apprenticeship Program (the "P.A.P."), as the P.A.P.
courses taught by the grievor were considerably more demanding
than the continuing education courses which he taught.
The
P.A.P.
(also referred to in this award as the "Program") is
one of the programs offered by the College's School of Science
and Technology.
That program is designed to introduce
students to the foundation skills required in the metal
cutting industry.
Topics covered in the Program include
turning (lathes), milling operations, grinding techniques,
bench work, assembly techniques, introductory CNC operations,
applied shop mathematics, blueprint reading, and
communications (letter and resume writing).
P.A.P. students
spend two-thirds of their course time in a shop environment.
The grievor became heavily involved in the P.A.P.
beginning in 1998, and his involvement continued in the
ensuing four years.
During each of those years he taught both
trade theory and trade practice in the Program.
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Prior to the disciplinary action which gave rise to
these proceedings, the grievor received the following written
reprimand on January 27, 2000 from Elizabeth Theriault, the
Dean of the College's School of Science and Technology:
I am writing as a follow-up to our meeting on January
7, 2000, and as an official Letter of Reprimand.
As employees of Sheridan College, and in accordance
with the Ontario Human Rights Code, we each have a
legal responsibility to ensure that both the work and
learning environment is free of harassment and
discrimination.
Following an investigation, it has been confirmed that,
during the work day, both inside and outside the
classroom, you made certain comments and jokes which
were of a sexual nature or were denigrating to women,
and which you knew or ought reasonably to have known,
would be unwelcome or would tend to encourage an
unwelcoming working or learning environment from a
Human Rights perspective. This conduct was contrary to
the Ontario Human Rights Code and our corporate policy
on Harassment and Discrimination.
Since the circumstances of these issues arise
context of a Human Rights Complaint, I remind
again, that all information pertaining to the
must be treated confidentially and should not
discussed with anyone other than your union
representative and the union's legal representative,
without my permission.
in the
you once
complaint
be
That written reprimand was placed in Mr. Ghosh's personnel
file, and was not grieved.
The grievor's five-day suspension was imposed by the
following letter dated April 23, 2001, which was written to
him by Donald G. Wiles, the Associate Dean of the School of
Science and Technology:
This will confirm our meeting of today's date. Also in
attendance at this meeting were you, Wilma van den
Hurk, Robin Whitelock and me, Donald Wiles.
By letter dated March 26th, 2001, I raised with you a
number of individual issues. I have considered your
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response to my letter of April 2, 2001. It is clear
that you are unprepared to accept responsibility for
all of your actions or acknowledge when you are wrong.
The incidents of concern are as follows:
1. Pre-Apprentice Policy and Procedures Manual: At a
meeting of the Pre-Apprenticeship teachers on March
2nd, the issue of the currency of the Pre-Apprentice'
Policy and Procedures Manual was brought up. As you
know, this book is to be kept on College property at
all times and is to be available in order for you to
write the student's progress into the book. The other
two teachers at the meeting acknowledged that they had
fallen behind. You were adamant that your students'
Policy Manuals were always kept current. However, when
I attempted to collect the books from your students, I
found that only four students were able to retrieve
their Policy Manuals and the others indicated to me
that you had told them that they had until March 19th
to get their books up to date. This was entirely
inconsistent with what you told me at the March 2nd
meeting and I expressed my belief to you that you had
misled me at the March 2nd meeting. Your response was
that you left it up to students to comply and that you
were disappointed that only four students were able to
comply with my request. You did not address, at all,
the concerns which I expressed that you misled me in
the March 2nd, 2001 meeting. This is a trust issue
which, were it isolated, might not be significant.
However, the incident is not isolated.
2. Failure to follow attendance policy: Attendance is a
major concern in the program which you teach. It was
agreed in a meeting on October 27, 2000, that a
four-step process would be followed. It was
specifically understood that all teachers in the
program would follow this policy and that this was not
a matter of choice. However, by March 26th, 2001, it
had come to my attention that you were not, in fact,
following the policy. Your response to this was that
you had only followed part of the process but would
follow the rest of the process in the future. You went
on to suggest that this policy is more onerous than "at
any other post-secondary program in the college" and
question whether the process was consistent with
college policy.
3. Falsifying attendance records: You have not been
maintaining accurate attendance records. If fact, you
have been falsifying your attendance records, which is
unacceptable in a program where attendance is
mandatory. For example, I advised you that on March
21st, 2001, I visited the shop three times in the
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afternoon, at 3:00 PM, 3:30 PM and 4:00 PM and that on
each occasion I counted the number of students in your
area of the shop. On each occasion there were only 8
students present. Since you have only 17 students in
your class, 9 students should have been marked absent.
However, the attendance register indicated that one
student was absent. I indicated to you that in
industry this was known as pencilling or falsifying
records. You did not deny that you had been falsifying
the attendance records that day and you responded that
many of your students "have to go to work before the
end of class." In your written response dated April 2,
2001, again you did not deny that you had been
falsifying attendance records, but suggested that my
letter only documented the students working [in] the
machine area and asked "how many "C" section students
were working in the shared bench area?" In fact
the bench area is part of your responsibility and
your suggestion that students were in the bench
area and that I failed to count them is a total
misrepresentation. Your class is the only class in the
C-16/C-20 shop area on Wednesday afternoon at the time
in question. With eight people working in the shop, it
is virtually empty. You implied in your response that
your students were mixed with other students which was
impossible. Moreover, I remind you that students must
not be in any other shop area. Such a practice is in
total violation of shop safety procedures and all
teachers, including you, have been made well aware that
students must not work out of the line of sight of the
supervising teacher.
4. Pe~itting students to operate machines in an
improper manner and failing to ensure proper
supervision: I have learned that you have permitted
students to operate a milling machine in a manner which
causes sparks. On separate occasions, John Shaw and
Les Bolger spoke to your student about this. On
another occasion you were observed sitting at the desk
marking projects while this was occurring. I made the
point to you that you are not to spend time in class
marking projects since time is allotted on your SWF for
that activity and it is important that you remain on
your feet, mobile and observant of what is occurring in
the area. You excused the incidents, suggesting that
sparking is common when using carbide tools. However,
sparking most often indicates that the speed of the cut
is too high and is also an indication of potential
danger to the operator and an indication that the
cutting tool is being damaged. It is highly likely
that the cutting teeth on the carbide tool were ruined.
The cost is approximately $30.00, a cost which can
mount up if the misuse of the tool is allowed to be
repeated often enough. Your job as a teacher is to
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stop the student and turn the situation into a learning
experience so that the incident never happens again.
When I wrote to you on March 26th, I offered to have
senior skilled trades people meet with you if you
disputed my assessment of the situation which was very
different from your assessment. In your written
response, you did not reassert your position that
sparking was common and acceptable. You also
acknowledged that Mr. Shaw and Mr. Bolger did speak to
the student, but did not explain why you had taken no
action. You did suggest that you told the student to
change the carbide tip and that you could have been
more assertive with the student. You also inferred
that other faculty are spending class time marking
projects (which does not fall within the definition of
"in process" evaluation) when they should be
supervising students. I have heard of this concern and
if it is your allegation that other professors are
engaging in this conduct, I expect that you will report
to me the details so that I may deal with them on this
issue. Your response to this matter is of grave
concern to me. Telling the student to change the
carbide tips on the cutter is totally insufficient
action by a skilled trades instructor. The problem was
either the speed of the cutter, the speed of the feed
or a combination of both items. Moreover, you failed
to speak to the student on each occasion and another
teacher was obliged to so do. The action you should
have taken was to recognize the problem yourself, stop
the dangerous or inappropriate action and turn it into
a learning experience. You should have walked the
student through the reasons for the problem occurring
and explained to the student how to avoid this problem
in the future.
5. Incident with tool crib attendants: In our meeting
of March 26th, when I reviewed an incident which
occurred with the tool crib attendants, following the
issuance of a bolt to a student which had a course
[sic] thread instead of the fine thread that was
required, you clearly indicated that Bill (the tool
crib attendant) had shouted at you first, prompting you
to shout back and that you backed away from the
situation to avoid further conflict. The recollections
of the Tool Crib Attendants is [sic] very different.
Bill advises that you started to admonish him publicly
for shortcomings which you perceived and that you
raised your voice first and that he raised his back.
He also advises that you also stated in a loud voice,
after the student left the tool crib area: "If you
cannot do the job right, you should not be behind the
counter." Your written response accuses me of being
unprofessional since I am prepared to take the word of
the Tool Crib Attendants over yours and you also
9
suggest that you were concerned about the correct
issuance from the tool crib because of the cost
involved. Your response provides no reason for me to
change my acceptance of the version of the Tool Crib
Attendant's [sic] about the incident over your version.
The whole incident raises a serious concern about
improper and unprofessional treatment by you of support
staff as well as presenting yet another situation where
you have misrepresented facts to me.
6. Further incident of mistreatment of administrative
staff: At the March 2nd meeting of pre-apprenticeship
teachers, my assistant, Valerie, volunteered her
services to assist with some of the issues being
raised. Her actions were in accordance with my
instructions to her to help and support faculty members
whenever she can. Your response in the meeting was to
turn to her and tell her that she was not to tell the
faculty how to run the place, that the faculty knows
what they are doing. Your comment was unprofessional
and disrespectful and was entirely out of order. Your
written response to me is to point to the fact that I
did not witness the incident and you suggest that the
facts as relayed to me by another faculty member (which
are supported by Valerie) are "innuendo" which you will
not address. It would appear that the truth is that
you choose not to address the "accusations" since they
are true.
During my time as Associate Dean, I have attempted to
work with you and counsel you with respect to various
performance concerns. It has become clear in reviewing
all of the foregoing incidents that there is a common
thread running through all of these and that is
attitude. Despite the fact that I have in the past
made clear to you that you are to follow instructions,
policies and procedures, including agreements reached
about the manner in which programs will be delivered,
you have persisted in doing things the way you want to
do them. Your treatment of others, and in particular
administrative and support staff, also reflects this
attitude which seems to suggest that you are above
others and, therefore, are not bound by the normal
rules. Your repeated misrepresentation of facts to me
is also a serious concern: you hold a position of
responsibility in that you are in charge of a classroom
and are solely responsible for ensuring that your
students receive the curriculum which the College has
contracted to provide to them. I must be able to trust
that you will conduct your classes properly and safely
and that I must be able to rely on what you tell me
since I am not in a position to provide close
supervision of your actions.
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Anyone of the incidents which I have set out above
would merit discipline. Were I to deal with these
incidents individually, the cumulative effect of
progressive discipline would be that you would be
subject to dismissal by the time I finished with the
incidents. Rather than take this approach, you will be
given a five day suspension. This suspension will be
served Monday April 23rd to Friday April 27th inclusive
in order to minimize disruption to your students.
I wish to make very clear to you that I am giving you a
final warning here. You are to ensure that you follow
all instructions and pertinent policies and procedures,
which include complying with departmental agreements on
how programs are to be delivered; you are to keep
appropriate and up to date attendance records; you are
to take all required steps to ensure safety in your
classroom, which includes maintaining proper
supervision and ensuring the proper operation of
equipment by your students; you are to treat all of
your colleagues, whether faculty, administrative or
support staff, with professionalism, courtesy and
respect; and you will not make any further
misrepresentations to me.
Should you engage in any further inappropriate
behaviours in carrying out your duties as a professor,
you will face further discipline, which may include
dismissal from your employment with the College.
The griever's ten-day suspension was imposed by Mr.
Wiles' letter dated September 14, 2001:
On August 31, 2001, there was a meeting involving you,
Robin Whitelock, Wilma van den Hurk and me in which we
discussed several issues involving you that occurred at
the end of the spring term 2001. I wanted to meet with
you earlier about these issues. However, you explained
to me that your wife was gravely ill after surgery.
Therefore I felt it inappropriate to raise these items
when you needed to be actively involved in her
recovery. A meeting was suggested at a date in July
but your union representative indicated that you were
unavailable during the vacation period. Therefore, the
meeting was postponed until August 31st.
I will summarize and list the issues discussed at the
meeting:
1. During the spring term you requested that the
guard unlock the electrical panel in the
Level 3 Machine Shop to permit a student of
Mr. Ramharrack, a Con-Ed colleague, to use
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the power equipment.
2. One of your pre-apprenticeship students came
to me with an extensive list of concerns.
These included:
a. A claim by the student that you are
often not in the shop area when a
class is in session and he had to
request help from Mr. Shaw who
occupied the adjacent shop.
b. An incident in which you used
extremely foul language toward the
student and toward a faculty member,
Mr. Shaw, in the shop adjacent to the
. .
area you were supervlslng.
c. Comments made by you that "The school
is out to get me". The student
indicated that you said that the
college is attempting to fire you.
d. Derogatory statements made by you
about other faculty members.
e. Comments made by the student about the
quality of the instruction in shop
theory received in you classroom.
You admitted that you permitted a student to work in
the level 3 shop. Indeed, you indicated that the event
had happened on two occasions. The first time the
panel was not locked. On the second occasion, you
requested that the guard unlock the panel. The guard
reported that he did unlock the panel because you, a
full-time professor, requested the action. What you
did not indicate on August 31st is that prior to the
second occasion, you had a conversation with Alan Reid,
the STC coordinator for both apprenticeship and
continuing education. In this conversation Mr. Reid
pointed out to you the reason the level 3 shop is off
limits for all students except level 3 apprentices.
You blatantly ignored his instructions and approved the
use of the shop by a continuing education student. You
were fully aware of the restriction and totally ignored
the rule. In the August 31st meeting, you indicated
that the student involved normally attended Trevor
Benjamin's day school classes in level 3 apprentice-
ship. You said you were permitting this student to
work in the area at Mr. Benjamin's request. This is
not true. The equipment sign out slips for the day
indicated the equipment was used by one of Mr.
Ramharrack's students. This student is a long time
continuing education student, a student you would
readily recognize from his years in the program.
The complaint I received from one of your
pre-apprentice students is very compelling.
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The student asked to meet with me and I interviewed him
over the period of one hour. He was very succinct in
his description of what has been happening in your
classroom and shops. He indicated that his concerns
were not of a personal nature; he was more concerned
about the quality of the instruction that he had
received. I wrote up all of what the student related
to me in a one-page memo. I interviewed him again and
asked him if my description of the events was correct.
Again, he was very direct when he indicated that the
events described in the memo reflect what had been
occurring in the classroom and shop during his class.
Based on your fabrication of the incident around the
power panel in the machine shop and the confidence with
which the student described his experiences with you, I
have no reason to accept your version of what has been
occurring with the pre-apprenticeship students.
Mr. Ghosh, your on-going behaviour in the classroom!
shop is unacceptable and is having a negative effect
upon students, faculty and staff. Therefore, I am
suspending you from teaching at Sheridan for a period
of ten full-time teaching days. You are excluded from
Sheridan College property Monday to Friday for the next
two weeks. You will be permitted to teach your
Continuing-Education class on Saturdays. On Saturday,
you are to come to the college for that purpose only.
If you have a meeting with your union representative,
you may come to the college for that event. You are to
go directly to and from that meeting and do nothing
else on college property.
Now I must point out to you that you have been
disciplined twice for the same type of behaviour. The
first time was the letter of reprimand and a five-day
suspension that you received on April 22, 2001. Any
further incidents will result in the termination of
your employment.
As always, if you are unclear about the expectations
for you regarding your behaviour, please come and speak
to me.
In addition to that ten-day suspension, the second
grievance also covers three letters which Mr. Wiles sent to
the grievor, with copies to Dean Theriault and the grievor's
human resources file.
The first letter (Exhibit 18) is dated
September 14, 2001, and reads as follows:
On Tuesday September 11, 2001, you made some comments
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in the front hallway of STC that were at the very least
very insensitive and very inappropriate. At that time,
a television set was operating in the front hall and
people were watching the tragedy in New York City.
There were two quotes attributed to you:
1. "Those Americans are always poking their nose
into other people's business. This will show
them. "
2. " Shi t happens."
The person who heard these comments was very
concern [sic] that a friend and family member might
have been in that building at the time of the collapse.
Yours comments were very hurtful.
As an individual, you are entitled to your views.
As a Sheridan College professor, you are expected
to show far superior judgment. Sheridan College is
a multicultural establishment. People from all corners
of the world live and work in this environment. All
faculty and staff are expected to display respect for
each other and a high level of sensitivity during
difficult times. You are instructed to make certain
that any insensitive comments are not spoken in the
open corridors of the college.
The second letter (Exhibit 19) covered by that
grievance is also dated September 14, 2001:
On Wednesday September 12, 2001, you were in the "A"
corridor at 10:49 AM. Your class does not finish until
11:00 AM. I went back to the shop area at 10:51 AM and
some of your students were filing out of the shop
area. The power was turned off, which is the safety
requirement. However, I was disappointed that you were
not in the shop area. Your responsibility includes
escorting students out of the shop at the end of class.
I expect you to check that all machine tools have been
cleaned, all components have been put back into the
toolboxes and the boxes are locked. This work cannot
be correctly completed if you are in the front hall
before your students have left the area. Please ensure
that you follow the correct procedure for all classes
as outlined in the Policies and Procedures document you
received on August 26, 2001.
The following letter dated September 21, 2001, is the
third letter (Exhibit 20) covered by the second grievance:
During your absence, the work your students were doing
and the projects that they were assigned were reviewed.
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I found that the students did not have sufficient
background and extra classroom time was assigned. In
addition, you assigned projects out of the suggested
sequence. These projects were far too difficult for
pre-apprenticeship students this early in their
training. Therefore, adjustments were made in the
projects assigned to the various groups.
You are expected to pick up where the replacement
teacher left off. You will approach the coordinator,
Alan Reid and review with Mr. Reid the expectations
for your students. Those instructions are to be
followed precisely. There will be a meeting of the
pre-apprenticeship teachers. At that meeting, a course
of action will be determined for the next several
weeks. You will follow that plan. If there are any
difficulties you are to report them to Alan so
adjustments can be made. All three sections of the
pre-apprenticeship class are to follow the same
training plan and to remain very close with respect to
timing and execution of the plan. Please communicate
with your colleagues teaching pre-apprenticeship.
If you have any questions or concerns that the
coordinator cannot resolve, please contact Dr.
Elizabeth Theriault, Dean Science & Technology.
Dr. Theriault is covering for me during my vacation
and will be visiting STC on a regular basis.
The grievor's fifteen-day suspension was imposed by
Mr. Wiles' letter dated January 18, 2002:
This will confirm a meeting which was held with you and
your Union representative on Thursday January 10, 2002
at which we discussed a number of serious concerns
arising out of my classroom visit on Tuesday November
27, 2001. As you know, you had advance notice of this
visit. I must note your refusal to discuss the
particulars of my review of your classroom performance
makes it more difficult for me to assess the situation.
If reflects your on-going attitude that you may
to [sic] teach to your standards instead of accepted
industry practice.
Totally apart from any issues concerning poor teaching
methodology which is set out in my memo of November 27,
2001 and which will be addressed separately, is the
fact that on a number of occasions throughout Section 1
of the class, you intentionally, recklessly and/or
negligently communicated wrong information to your
students. As an experienced tool and die maker and a
teacher of more than 10 years experience, that is
unacceptable.
15
In particular, I note the following:
1. You proceeded to teach the correct method of sizing
a hole for tapping, but then effectively undermined
this by encouraging students to use the "Gunnar Ghosh"
method which is, quite simply wrong and is contrary to
what you are to be teaching.
2. Again in connection with tapping, you gave wrong
information about the use of a 1/4 reamer after
drilling a hole.
3. In connection with Reaming, the information which
you gave on speeds was wrong.
4. In connection with Counter Boring, you gave wrong
information on the size by which the hole should be
oversized and also effectively provided wrong
information to students by failing to provide them with
a diagram.
5. Finally, contrary to College policies and directives
and the law on copyright, you handed out a "quiz" which
you had photocopied without authorization from a
textbook. You are well aware that you are expected to
develop your own tests and that they cannot be "stolen"
from copyrighted material.
In relation to the teaching errors, there is no excuse
for this given your experience and the fact that the
correct answers are available in the teaching
materials. As I noted, the only explanation is that
you acted recklessly and negligently and without taking
the steps necessary to check your facts and ensure that
the material you are teaching is accurate. You are not
to teach procedures which are different from those set
out in the textual material. This is simply not fair
to the students.
All of this appears to be the continuation of an
attitude problem on your part in relation to the manner
in which you carry out your duties.
You were given a ten day suspension and a warning on
September 14, 2001 that any further incidents would
lead to the termination of your employment. Although
you might have been dismissed as a consequence of the
foregoing incidents, I have decided to give you one
final opportunity, and accordingly, I am providing you
with a 15 day suspension. However, I must advise you
that any further incident of violations of policies or
directives, or failure to provide students with correct
information or supervision, or failure to show respect
16
for others at the College will prompt your immediate
dismissal for cause.
The grievor was terminated by the following letter
dated April 30, 2002, from Mr. Wiles:
This will confirm our meeting of April 30, 2002 to
discuss an incident relating to the improper marking of
a student's project by you and the resulting referral
of that student to the Ontario Skills Competition. In
attendance at the meeting were you and your Union Local
Representative, Wilma van den Hurk and John Bowman,
Director, Human Resources and myself.
Each year, the Skills Training Centre runs a contest
for pre-apprenticeship students. The goal is to
determine the best student from the pre-apprenticeship
class on turning and milling exercises. The
College sponsors this student at the Skills Ontario
Competition. Winning the competition is a prestigious
event and provides the student with valuable experience
that can be added to his/her resume. The quality of a
student's work also directly reflects on the college.
The rules of the Sheridan Competition indicated
that the winners from each section of the
pre-apprenticeship class would be compared and the
overall winner would be permitted to go to the Ontario
Skills event. Each teacher marked his own students and
the mark sheets indicated that a student from your
class out performed the top students from the other two
sections.
However, a visual scan of the projects suggested that
there was a concern with the marking of your student's
project. Therefore, the project was thoroughly
examined and re-marked. The results of the re-mark
were dramatically different than the mark that you
recorded. Indeed, the coordinator was not able to mark
certain sections of the project due to the number of
burrs on the item. A file had to be used to clean off
the burrs before a measuring instrument could be
employed. This indicates that you never measured the
item. A threaded hole was produced in one end of the
project. The requirement was for a bolt to thread into
the unit for a minimum of 3/4 of an inch. Even with a
wrench applied, the bolt would not go more than 1/4 of
an inch into the hole. It is obvious that you did not
check the project even though you gave the student full
marks in this area. There were many other areas that
did not measure correctly.
Mr. Ghosh, the act of awarding this student the winning
17
grade in the Skills Competition displays at the very
least, reckless and negligent behaviour. It amounts to
academic fraud. If the projects had not been reviewed,
the student who legitimately won the chance to compete
at the provincial level would have been cheated out of
that opportunity. An undeserving student would have
been in the competition and the reputation of Sheridan
College would have been damaged.
During the past year you have been involved in a
progressive discipline procedure. You were advised
that if there were any further serious incidents,
dismissal from your position as a professor at Sheridan
College would occur.
Taking into account your prior record, I must inform
you that your position at Sheridan College as a full
time professor is terminated immediately. This
termination includes any teaching in the Continuing
Education classes. You are not to return to the
college except to meet with you union representatives
in the union office. Please return all materials,
equipment, keys, tools, student marks and projects and
any parking passes belonging to Sheridan College.
Twenty hearing days were devoted to the evidentiary
portion of these proceedings, followed by four days of oral
argument which supplemented written submissions, all of which
have been duly considered in the arduous task of deciding this
case.
However, in the interests of brevity and expedition, we
do not propose to detail all of the evidence and argument in
this award.
The award will focus on what we consider to be
the most salient points¡ leaving less important evidentiary
matters and unpersuasive arguments either unmentioned or
mentioned only very briefly.
Having carefully considered all of the evidence, we
have concluded that substantially all of the allegations
contained in the suspension and discharge letters quoted above
have been duly proven on the balance of probabilities by clear
and cogent evidence.
Although the grievor denied any
18
culpability, we did not find him to be a reliable or
trustworthy witness.
His testimony contained numerous
inconsistencies, was subject to embellishment, and was often
not in harmony with the preponderance of the probabilities
which a practical and informed person would recognize as
contextually reasonable.
Moreover, his evidence conflicted
with the testimony given by each of the witnesses called by
the College: Mr. Wiles, the aforementioned Associate Dean of
the College's School of Science and Technology; Alan Reid, a
tool and die maker who has been employed by the College in the
academic bargaining unit since 1979 and who has been the
coordinator of all of its technical skills training for many
years; Bill Ursacki, who has been a part-time tool crib
attendant at the College since 1999; Valerie Hughes, who was
Mr. Wiles' administrative assistant referred to in his letter
dated April 23, 2001; Steve Pezzaniti, the P.A.P. student
referred to in Mr. Wiles' letter dated September 14, 2001, who
came to Mr. Wiles with an extensive list of concerns; and
Chris Calleja, who was a P.A.P. student taught by the grievor
during the 2001-02 academic year.
We found each of those six
witnesses to be candid and credible.
Portions of the
grievor's testimony were also contradicted by some of the
witnesses called by the Union in these proceedings.
Furthermore, some Union witnesses who could have testified
about factual issues on which Mr. Ghosh's evidence conflicted
with that of College witnesses were not questioned about those
issues, giving rise to the inference that their evidence on
19
those issues would not have been supportive of Mr. Ghosh's
testimony.
The grievor's untrustworthiness as an employee and as
a witness is exemplified by the varying explanations which he
gave concerning the attendance records for March 21, 2001.
Prior to imposing the aforementioned five-day suspension, Mr.
Wiles met with the grievor on March 26, 2001, in the presence
of the Union's chief steward, Wilma van den Hurk, to discuss
his concerns.
He then documented those discussions in a
letter (dated March 26, 2001) and requested the grievor to
write a response to each item.
The portion of Mr. Wiles'
letter which pertains to those attendance records reads as
follows:
The accuracy of your attendance records is in question.
On Wednesday March 21st, I visited the shop area three
times in the afternoon. I was there at 3:00 PM, 3:30
PM and 4:00 PM. On each occasion, I counted the number
of students in your area of the shop. There were eight
students present. Since your class has only 17
students total that means that nine students should be
marked as absent. The attendance register indicates
that one student was absent. I indicated to you that
in industry terms this is known as penciling the
results or falsifying the records. You responded that
many of your students "have to go to work before the
end of class". Therefore, I assume that you are
covering for them by falsifying the records. You must
explain to me why you are following this practice.
In his written response dated April 2, 2001, the
grievor provided the following explanation regarding that
aspect of Mr. Wiles' concerns:
As per your direction in the fall, students in the C
section have been assigned to the machine and/or bench
area in the machine shop. Your letter only documents
the students working in the machine area and accuses me
of "pencilling in attendance". How many "C" students
were working in the shared bench area?
20
After hearing the College's evidence which negated
any possibility of the absence of the nine students being
explained away on the basis of them working in the shared
bench area, the grievor testified that some of the students
may have gone to the tool crib to get tools, that some may
have been smoking in the parking lot, and that some may have
gone to the cafeteria.
He also testified that some were in
the cut-off saw area and that some were in the computer room
looking for jobs on the internet.
Indeed, during examination
in chief, he embellished upon that explanation by purporting
to provide the names of seven students who had gone to the
computer room that day.
However, when he was asked in
cross-examination to repeat those names, he was unable to
provide a single name.
In evidence totally lacking
credibility, he also testified that when he told Mr. Wiles
that many of his students had to go to work before the end of
class, he meant that they had "gone to work in other areas
such as the lay-out tables, obtaining materials and tools from
the tool crib, and so on".
However, it is evident from the
testimony of Nik Dragun (who was one of the nine witnesses
called by the Union in these proceedings) that it was not
unusual for students to leave early in order to go to work.
During cross-examination by Employer counsel, Mr. Dragun told
the Board,
"I'd usually leave like an hour early from class
because I had to start work around 4:30".
He also confirmed
that other students left early to go to jobs as well.
As noted by Employer counsel during the course of
21
argument, the grievor's testimony concerning the whereabouts
of the nine students not only represents a significant change
from his initial response to Mr. Wiles, but also fails to
account for the fact that exactly the same number of students
were away each of the three times that Mr. Wiles walked
through the area.
Having regard to all of the evidence, we
are satisfied that most if not all of the nine students in
question should have been marked absent for at least part of
the class on March 21, 2001, and that Mr. Ghosh's failure to
mark them absent was culpable misconduct on his part.
In this
regard, we are unable to give credence to his testimony that
there has never been a requirement to mark attendance on an
hourly basis for pre-apprenticeship students.
That evidence
was contradicted not only by Mr. Wiles (who testified that
this obligation was discussed at pre-apprenticeship teachers'
meetings) and by Mr. Reid (who testified that hourly.
attendance marking had been in place for a number of years),
but also by the testimony of Trevor Benjamin and Keith Buxton,
two other Sheridan College professors (who were called by the
Union to testify in these proceedings).
It is also
inconsistent with Pre-Apprenticeship policies and Procedures
Manual (the "Manual"), which indicates that students who
"leave early without a substantial reason, will be considered
absent for the purpose of record keeping".
P.A.P. professors
distribute the Manual to their students and are expected to
review it with them in class.
It is the responsibility of the
P.A.P professors to ensure that the policies and procedures
22
contained in the Manual are duly applied.
Moreover, in the
context of the professional relationship which exists between
a professor and the College, the directions contained in that
Manual satisfy the requirements of the criteria set forth in
Re Lumber & Sawmill Workers' Union, Local 2537, and KVP Co.
Ltd.
(1965), 16 L.A.C. 73 (Robinson), as do the Minutes of the
October 27 and November 17, 2000 Pre-Apprenticeship Meetings,
which record the four-step procedure which was to be applied
to students missing class without a proper excuse.
Union counsel submitted that the discipline imposed
upon the grievor for falsifying attendance records and for
failing to follow the four-step procedure should be voided on
the grounds of discrimination.
However, we are not persuaded
that discipline was discriminatorily applied to the grievor,
as we accept Mr. Wiles' testimony that he was unaware of any
other faculty members having engaged in similar misconduct.
It is consequently unnecessary for us to determine whether any
other faculty members did in fact do so.
All six of the incidents described in Mr. Wiles'
letter of April 23, 2001 have in substance been duly
established on the balance of probabilities.
Although the
first incident (in which the grievor, in a show of bravado,
falsely bragged that his students' Manuals were always kept
current) was relatively minor and would probably have
warranted no more than a warning if it had been an isolated
incident of untrustworthiness, the other five incidents are
, .
more serlOUS In nature.
Both of the attendance incidents
23
raise additional concerns about the grievor's trustworthiness.
The sparking incident raises further concerns about the degree
to which the grievor can be trusted to properly fulfil his
professional responsibilities.
The last two incidents covered
by that letter both involve the grievor's disrespectful and
unprofessional treatment of support staff (tool crib attendant
Bill Ursacki and administrative assistant Valerie Hughes).
Although we do not share the view expressed in Mr. Wiles'
letter that if those incidents were to be dealt with
individually the cumulative effect of progressive discipline
would be that the grievor would be subject to dismissal, they
clearly did warrant substantial discipline.
Consequently, we
have concluded that the five-day suspension which the College
imposed upon the grievor in respect of those incidents was
within the range of reasonable disciplinary responses to the
serious misconduct in which the griever engaged.
In his submissions challenging the validity of
the grievor's ten-day suspension, Union counsel focused
considerable attention upon the manner in which Mr. Wiles
investigated the matters described in the suspension letter.
However, as submitted by Employer counsel, the critical issue
is not how the investigation was carried out but what the
evidence adduced in these proceedings establishes.
The first matter raised in that letter is the
allegation that the grievor permitted a continuing education
student to use the Level 3 Machine Shop.
That shop was
equipped with very good equipment which had been leased to the
24
College at a reasonable price on the agreement that it would
be maintained at a high level and well looked after.
In order
to live up to that agreement, the College restricted use of
that shop to advanced apprenticeship students.
The existence
of that restriction was well known by S.T.C. faculty members,
including the grievor.
The grievor acknowledged that he permitted a student
to use the Level 3 shop on the day in question, but testified
that it was one of Trevor Benjamin's advanced apprenticeship
students and not a continuing education student.
He initially
testified that he was told by Mr. Reid and by Mr. Benjamin
that this was okay.
However, he subsequently indicated that
rather than speaking directly with him, Mr. Reid had told Mr.
Benjamin to inform him that the student would be coming in to
finish a project.
During examination in chief, Mr. Benjamin
testified that in the spring of 2001 he "would have asked that
[the griever] allow a student to come in on [the griever's]
Saturday class", but added that he "would not be sure what
part of the shop the student would be using".
However, during
cross-examination by College counsel, Mr. Benjamin candidly
conceded that although he was told by the grievor that it had
occurred, he had no recollection of such a conversation.
Mr.
Reid also had no recollection of any such conversation.
Moreover, he testified that although an apprenticeship student
might be permitted to come into a continuing education
teacher's shop on a Saturday if the continuing education
teacher was willing to assume responsibility for the safety of
25
the student, it would not be permissible for the student to
use the Level 3 Shop.
That the student whom the grievor
permitted to use the Level 3 Machine Shop was in fact
a continuing education student and not an advanced
apprenticeship student is established not only by the sign out
slip referred to in Mr. Wiles' letter of September 14, 2001,
but also by the testimony of Mr. Ursacki.
Union counsel also submitted that this discipline was
discriminatory, citing in support of that contention the fact
that Mr. Reid's son Michael, who was a part-time continuing
education teacher, had also permitted continuing education
students to use the Level 3 Machine Shop.
When this came to
Mr. Reid's attention, he immediately contacted his son and
"told him in no uncertain terms that no part-time studies work
was to take place in that shop".
There is no evidence that
Mr. Reid's son ever permitted that shop to be used again.
Thus, his situation is not comparable to that of the grievor,
who ignored Mr. Reid's instructions that the Level 3 Machine
Shop was off limits for all students except level 3
apprentices.
Moreover, there is no evidence that Mr. Wiles
knew anything about what Michael Reid had done.
In this
regard, it must be noted that Mr. Reid's coordinator status
does not make him a member of management.
He remains a member
of the bargaining unit who does not have any disciplinary
powers.
For the foregoing reasons, we have concluded that the
College had just cause to discipline the grievor for
26
permitting a continuing education student to use the Level 3
Machine Shop.
The ten-day suspension was also imposed upon the
griever on the basis of concerns raised by Steve Pezzaniti,
who was one of the griever's pre-apprenticeship students
during the 2000-2001 academic year.
Mr. Pezzaniti testified
that during his four-hour afternoon shop classes, the grievor
was absent from the shop for ten, fifteen and twenty minute
periods which could total up to an hour each afternoon.
He
also testified that when the grievor was not available for
necessary consultation, he sometimes obtained assistance
from John Shaw, a full-time P.A.P. professor who taught
another section of the Program in an adjacent area.
When he
approached Mr. Shaw at a time when the grievor was in the
shop, Mr. Shaw declined to assist him and told him that he
should ask the grievor for assistance.
When Mr. Pezzaniti
did so, the grievor refused to assist him and told him to
"go ask [his]
fucking friend over there".
Mr. Pezzaniti also
testified that during the theory classes which he taught in
the morning, the grievor often said that the school was out to
get him.
It was also his evidence that the griever said that
particular teachers did not know anything about what they were
teaching.
He described the instruction which he received from
the grievor as being "extremely poor" in comparison with the
instruction which he subsequently received in the general
machining apprenticeship program at Mohawk College.
He also
testified that the grievor's lectures often contradicted
27
information contained in the course textbook, and stated that
"if you wrote down the answers from Mr. Ghosh's notes on the
board you would likely get the wrong answer".
Union counsel submitted that Mr. Pezzaniti had
rather formidable credibility problems.
In support of that
submission, he drew the Board's attention to the time frame
referred to in the following portion of the "one-page memo"
(Exhibit 25) referenced in Mr. Wiles' above-quoted letter of
September 14, 2001, which memo was prepared by Mr. Wiles and
signed by Mr. Pezzaniti to confirm the information contained
. .
ln It:
You indicated to me that Mr. Ghosh has been commenting
to his class on many occasions that the "School is out
to get me." Mr. Ghosh indicated to you that the school
wants to fire him. I asked how long this behaviour has
been occurring. You said it has been happening since
at least just before Christmas.
Union counsel submitted that this timing makes no sense, as
the grievor's first suspension did not occur until April of
2001.
However, as noted by Employer counsel in her reply
submissions, the grievor received a written reprimand on
January 27, 2000 from Elizabeth Theriault, the Dean of the
College's School of Science and Technology, for harassing a
female student in his pre-apprenticeship class.
Moreover, the
first suspension letter indicates that prior to suspending
him, Mr. Wiles had attempted to counsel the grievor with
respect to various performance concerns.
In attacking Mr. Pezzaniti's credibility, Union
counsel also contrasted the following portion of the "one-page
memo" with Mr. Pezzaniti's testimony that the instruction
28
which he received from the grievor was "extremely poor":
I asked you about your impression of the quality of the
instruction provided by Mr. Ghosh. You indicated that
the shop instruction was "fairly decentll. "When I ask
for help in the shop when he is present, I get it and
then he walks away. The classroom situation is not
good. His notes do not match the (text) book. If you
use Gunnar's notes you will likely get the wrong answer
on the test."
However, as noted by College counsel, unlike some of the other
students who testified in these proceedings (such as Mr.
Dragun) , Mr. Pezzaniti had a valid basis for comparison, as he
had the benefit of working with and being tutored by his
father and uncle who were tool and die makers.
Moreover, by
the time he gave his testimony in these proceedings in late
October of 2003, he also had the benefit of being able to
compare the instruction which he had received from the grievor
with the instruction which by that point in time he had
received at Mohawk College as part of his general machining
apprenticeship program.
Union counsel also argued that Mr. Pezzaniti's
veracity was undermined by the fact that he did not approach
Mr. Wiles until the end of the school year.
However, Mr.
Pezzaniti provided the following explanation of why he did not
raise his complaints earlier:
... As a student talking to someone in authority
you are afraid to complain - afraid to voice your
I ,
oplnlon. . . .
Mr. Pezzaniti's concern about not jeopardizing his year by
raising his complaints at a time when the grievor might be in
a position to retaliate against him has the distinct ring of
truth, and does not in our view detract from his credibility.
29
We also find no merit in the suggestion that the
motivation for Mr. Pezzaniti's complaints was anger at the
grievor for declining to provide him with a letter of
reference.
In this regard, we accept Mr. Pezzaniti's evidence
that he voiced his complaints to Mr. Wiles before he asked the
grievor for a letter of reference.
We also find no
inconsistency between his raising of complaints and his
subsequently asking for a letter of reference because, as
contended by Employer counsel, Mr. Pezzaniti had no real
choice but to request a letter of reference from the professor
who had taught him both trade theory and trade practice, which
are the key components of the P.A.P.
The Union attempted to contradict some of Mr.
Pezzaniti's evidence by calling Kevin Rodgers as a witness.
Mr. Rodgers, who candidly acknowledged that he would like to
see the grievor get his job back, was also a student in the
griever's section of the P.A.P. during the 2000-2001 academic
year.
However, he did not testify in these proceedings until
March 8, 2005, and his recollection of what occurred four
years earlier had understandably faded with the passage of
time.
Thus, the fact that he had no recollection of the
griever being away from the classroom, and did not recall the
grievor ever talking about other teachers in class or stating
that the College was out to get him, does not in our view
detract from the credibility of Mr. Pezzaniti, who testified
on October 29, 2003, and whose recollection of events was
recorded by Mr. Wiles on June 4, 2001, when Mr. Pezzaniti came
30
to Mr. Wiles' office to express his concerns about the
.
grlevor.
The grievor's tendency to make derogatory comments
about other faculty members in the presence of students, and
to tell students that the College was out to get him, is also
confirmed by the testimony of Chris Calleja, who was one of
the griever's pre-apprenticeship students during the 2001-2002
academic year.
Mr. Calleja told the Board that it was hard
for him to testify in these proceedings because he had viewed
the grievor as "a friend" and "more of a buddy".
However, he
"really lost confidence" in the griever after other teachers
were brought in to replace him during his suspensions.
Those
other teachers, who included Mr. Reid, noticed and pointed out
things which the grievor had missed.
They also marked much
harder than the grievor.
Mr. Calleja also testified that
students liked the grievor because "they got away with stuff".
He described the grievor as being "more lenient" than other
professors, and testified that the grievor gave students
higher marks, longer breaks, and not as much homework.
He
further testified that the grievor "mentioned a couple of
times about Alan Reid and Don Wiles being stupid and that they
didn't know what they were doing, and that they were after
him". He also testified that the I said "some nasty
grlevor
things about those two guys" to him in confidence, because
they were friends.
He expressed the view that the
pre-apprenticeship program did not prepare him for
apprenticeship, and stated that he "felt really ripped off".
31
He dropped out of the Program before the end of the second
semester, but was subsequently able to pass the first year
tool and die apprenticeship exemption exam by studying on his
own.
Having duly considered all of the pertinent evidence
and argument, we find the allegations contained in Mr. Wiles'
letter of September 14, 2005 to have been duly proven.
We are
further of the view that in the context of progressive
discipline following a valid five-day suspension, the ten-day
suspension imposed on the grievor for the matters covered by
that letter falls within the range of reasonable discipline
for that misconduct.
Union counsel submitted that the grievor's
fifteen-day suspension should be overturned because, as a
matter of substance, Mr. Wiles is alleging incompetence in his
letter of January 18, 2002, and because the College has failed
to satisfy the criteria which must be met in order to justify
the dismissal of an employee for non-culpable deficiency in
job performance (as set forth in Re Edith Cavell Private
Hospital and Hospital Employees' Union, Local 180 (1982),
6 L.A.C.
(3d) 229 (Hope) and subsequently applied in a number
of arbitrations across the country, including 366838 Ontario
Limited, carrying on business as City Wide Taxi and Retail
Wholesale Canada CAW Division, Local 414, unreported award
dated February 12, 2002 (Schiff), and the awards cited
therein) .
However, as contended by College counsel, Mr.
Wiles' letter imposed a suspension, not a dismissal, and
32
elected to treat the grievor's poor performance as being
culpable rather than non-culpable, as clearly indicated by the
allegation that the grievor "intentionally, recklessly and/or
negligently communicated wrong information" to his students.
Although the evidence does not establish intention and also
falls somewhat short of establishing recklessness, it does
establish that the grievor engaged in culpable conduct by
negligently communicating to his students the misinformation
noted in the portions of that letter numbered 1 through 4.
In
this regard, we accept the evidence of Mr. Wiles, as confirmed
by his contemporaneous notes, that the grievor did in fact
communicate that misinformation to his students, and we are
unable to give credence the grievor's denials of having done
so, in view of the unreliability of his testimony.
We also
accept Mr. Wiles' evidence, as confirmed by the testimony of
Mr. Reid, that there is no valid excuse for the grievor having
done so, given the grievor's extensive experience and given
the fact that the correct information was readily available to
him.
Union counsel argued that the College was precluded
from suspending the grievor for conveying that misinformation
to his students because¡ prior to imposing the suspension,
Mr. Wiles required him to re-teach the material in order to
correct those errors.
It was submitted that this constituted
an election to take a non-disciplinary approach.
However, we
are not persuaded that by taking the eminently sensible action
of directing a professor to correct misinformation which he
33
has provided to students, the College was precluded from
disciplining that professor for his negligence.
Such action
does not infringe upon the principle by which arbitrators
protect employees against receiving multiple discipline for
the same misconduct, as requiring a professor to correct such
misinformation does not constitute discipline.
Moreover, we
are not persuaded that it is analogous thereto, as argued by
union counsel.
We are further satisfied that the grievor engaged in
culpable misconduct by using a "quiz" which he photocopied
from a workbook without authorization.
Although the grievor
testified that the College does not forbid such photocopying,
we are unable to given credence to that evidence, which was
contradicted by the testimony of Mr. Wiles, Mr. Reid, Mr.
Benjamin, and Mr. Buxton. Irwin Stanley, who has been a
part-time teacher at the College for the past twenty-five
years and who was the final witness called by the Union, was
also aware that it was necessary to obtain permission from the
copyright holder before making photocopies from a textbook or
workbook, although he was unable to recall whether he obtained
that information from the College or from the school board
which employed him as a high school teacher for twenty-four
years.
We are satisfied on the totality of the evidence that
although the College does not prohibit professors from
photocopying from textbooks and workbooks in current use by
students as prescribed course materials, it does prohibit them
from violating copyright by photocopying from other textbooks
34
and workbooks, such as the one from which the grievor
photocopied the "quiz" in question.
We are also satisfied
that this prohibition was known by the grievor, just as it was
known by other professors at the College.
As an alternative argument, Union counsel contended
that the grievor's intention to use the photocopied material
to test students' knowledge about an area that was part of the
curriculum but which was not covered in the assigned textbook
or its accompanying workbook was a mitigating circumstance.
However, as argued by Employer counsel, the grievor was
attributed hours on his S.W.F.
(Standard Workload Form) for
the creation of evaluation tools, and should have used some of
that time to create his own quiz rather than taking the "short
cut" of photocopying a copyrighted quiz.
Thus, we are not
persuaded that the grievor's motivation mitigates his
culpability.
For the foregoing reasons, we find that the
misconduct alleged in Mr. Wiles letter of January 18, 2002 has
been duly established on the balance of probabilities through
clear and cogent evidence which has not been credibly
contradicted by the grievor's testimony, nor by any other
evidence adduced by the Union.
We also find that in the
context of progressive discipline following valid five-day and
ten-day suspensions, the fifteen day suspension imposed on the
griever falls within the range of reasonable discipline for
that misconduct.
As indicated above, the grievor was discharged by the
35
College for the reasons contained in Mr. Wiles' letter of
April 30, 2002.
The grievor's testimony concerning what
occurred at the discharge meeting which was held on that date
further exemplifies the unreliability of his evidence.
William Van Dyne was the student whose mill and lathe projects
(also referred to collectively in the evidence and in this
award as Mr. Van Dyne's "project") were submitted by the
grievor as the winning entry from his section of the
pre-apprenticeship class.
He gave the projects and his
marking sheets for them to Mr. Shaw, who in turn delivered
them to Mr. Reid, along with the winning projects from the
other two sections of the pre-apprenticeship class¡ after
marking them wi th a red" A" ,
liB", and "C" for purposes of
identification.
The grievor testified the project bore
William Van Dyne's name on heavy masking tape¡ which he
removed for marking purposes but then restored prior to
delivering the project to Mr. Shaw.
During examination in
chief, the grievor testified that at the termination meeting
he asked Mr. Wiles what happened to the name tags on Mr. Van
.Dyne's project and was told by Mr. Wiles that he did not need
to know.
It was also the grievor's evidence in chief that
when he was shown the project at the termination meeting,
there was no red magic marker "A" on it.
He further testified
that he told Mr. Wiles,
"That's not the project that belongs
to William Van Dyne".
During cross-examination, the grievor indicated that
he was not disputing that Mr. Shaw put a red "A" on Mr. Van
36
Dyne's projects with a magic marker after they were submitted
to him.
He further testified that he did not have a chance to
examine the projects at the termination meeting.
When this
apparent contradiction of his earlier evidence was put to him,
he stated that he was "not changing any evidence".
However,
he then proceeded to testify that when he asked Mr. Wiles what
happened to the name tags on the project, no answer was given
to him.
That response, which also contradicted his earlier
evidence, was followed by an exchange which clearly
demonstrates the mutability of the grievor's testimony:
Q. You told us that you told Mr. Wiles that the two
projects at the meeting were not the projects of
William Van Dyne?
A. I can't really remember what I said then.
. . . .
Q. So you didn't tell Mr. Wiles that the two projects
were not the projects that belong to William Van
Dyne?
A. Probably I did.
Q. But you're not certain?
A. 11m certain.
Q. So we've gone from 1 can't remember, I probably did,
to I'm certain?
A. Yes, because it's all coming back to my memory now.
The griever adamantly denied that Mr. Wiles pointed
out the red magic marker "A" to him at the termination
meeting, and further denied that Mr. Wiles said anything to
him about that "A" having faded due to handling.
However, we
accept Mr. Wiles' testimony that he did so.
Mr. Wiles' candid
and credible testimony about what occurred at that meeting is
37
corroborated by the testimony of John Bowman, the College's
Director of Human Resources, who attended the meeting as a
representative of the Employer to witness what occurred and to
take notes.
Moreover, although Ms. van den Hurk was in
attendance at that meeting in her capacity as the Union's
Chief Steward and was called by the Union as a witness in
these proceedings, she was not asked any questions about that
meeting.
Thus, it may reasonably be inferred that her
recollection of what occurred at that meeting would not have
been supportive of the grievor's testimony.
The College was unable to call Mr. Shaw as a witness
in these proceedings due to medical considerations.
Mr. Van
Dyne was called as a witness by the Union, but was unable to
determine whether or not the project produced at the hearing
was his project.
After twice indicating that he could not
tell if the project was his, he hesitantly suggested that he
did not think that it was.
However, that hesitant suggestion
may well have been influenced by the fact that when the
griever told him that he had been fired and asked him to
testify, the grievor also told him that he did not think that
it was his project.
It may well also have been influenced by
the fact that at the hearing he was shown his project along
with the visibly superior winning entries from the other two
sections of the class, placing him in the embarrassing
position of being asked whether the obviously inferior project
was his own.
When Mr. Shaw brought the winning projects to Mr.
38
Reid, they bore the red magic marker notations of "A", liB",
and "C" to denote the sections of the class from which they
had been obtained.
In addition to those letters, the projects
from section B had the student's name (Alister) written on
them with an electrical etcher, and the projects from section
C had the abbreviated name of the student ("Mike McC",
referring to Mike McCarthy) written on them with a magic
marker.
The "inspection report" marking sheets submitted with
those projects indicated that "William"
(Van Dyne), who was
the winner from section A, had received final marks of 84 (out
of 100) for the lathe project and 90 (out of 100) for the mill
project.
However, the grievor had mistotalled both of those
sheets, as they actually totalled 88 and 95 respectively.
The
marks for the other winning projects were 37 and 59 for
section Band 59 and 84 for section C.
Since despite their
much higher marks the section A projects were visibly inferior
to the winning projects from the other two sections, Mr. Reid
took some rough measurements of
filing off burrs that prevented
the . A projects, after
sectlon
some of the necessary
Those rough measurements
measurements from being taken.
indicated that the section A projects were "out of spec" in
many areas.
When he was apprised of the situation, Mr. Wiles
had the projects remarked by Mr. Shaw, the long-time faculty
member who was the organizer of the competition, and by Barry
Stillion, who was a part-time faculty member.
Those re-marks
each yielded a mark of 39% for the lathe project.
Mr. Shaw
assigned the mill project a mark of 40%.
The mark assigned to
39
that project by Mr. Stillion was 38%.
Mr. Wiles included the following observations
regarding those re-marks in a memo dated April 29, 2002,
to Erin Hall, the College's Manager of Human Resource Client
Services:
The re-marks were not identical but they were less than
half the original mark given by Mr. Ghosh. The lathe
project re-marks had identical totals but there were
two spots where Shaw and Stillion found a different
value. This is not surprising because you can pick up
different surfaces on which to establish the
measurement and there can be slight differences between
those doing the measurement. However, a mark that is
less than half the original value is not a slight
difference.
The mill project re-marks were far more problematic.
The project was so badly done that it was very
difficult [to] find a base surface from which to
establish a marking point. Each instructor gave the
student the benefit of the doubt and selected an
average point as the base. Technically, the project is
so poorly done that it is really impossible to mark
various cuts. For example, in one area there were two
cuts when there should have been only one. Depending
on which cut is selected determines the measurement.
This accounts for the variation between the markers in
this case.
Each of Mr. Ghosh's student projects was extremely
poorly done. The one was extremely difficult to
measure for any mark at all. These projects
should never have been placed as a winner in the
pre-apprentice class.
The grievor testified that after his initial marking,
he went back a "second time" and a "third time around to mark
William Van Dyne's project to make sure that [he] did the
marking okay on it."
However, we are unable to give credence
to that evidence.
The presence of burrs on the project
precluded some aspects of the project from being measured at
all without firs"t using a file to clean off the burrs, which
40
did not occur until after the project came into Mr. Reid's
hands.
Moreover, many of the actual dimensions of Mr. Van
Dynes' projects which were outside of the specified tolerances
were given full marks by the grievor.
If the grievor did in
fact mark those projects, it is evident that he did so in a
grossly negligent and highly subjective manner in blatant
disregard of many of the specifications listed on the marking
sheets.
As noted in Mr. Wiles' above-quoted letter of April
30, 2002, if this had gone undetected, the student who
actually won the internal competition would have been
wrongfully deprived of the opportunity to compete at the
prestigious Skills Ontario Competition, and an undeserving
student would have been sent, with the distinct possibility of
seriously damaging the reputation of the College.
It is also evident that the manner in which the
grievor marked Mr. Van Dynes' competition pieces was not an
aberration from his normal approach to marking.
After another
professor took over the grievor's class following his
termination, a number of the students' grades decreased
substantially since their ability was not up to what was
expected, leading Mr. Wiles to justifiably conclude that the
grievor's grades "had been rather dramatically inflated".
One of those students was Mr. Van Dyne, who was expecting
his grade for the trade practice course to be an A, based upon
the high marks (including eight marks of 100%, two marks of
95%, two marks of 90%, and one mark of 82%) which he had
received from the griever for his class projects.
When the
41
grade which he received was only a C+, Mr. Van Dyne contacted
Mr. Wiles and accepted his invitation to bring those projects
back to the College for reassessment.
That reassessment
indicated that the marks which the grievor had assigned were
far too high, as dramatically exemplified by the fitting
exercises which the griever had awarded 90% and 85% being
awarded only 50% and 36% when Mr. Reid remarked them; the
threading exercise which the grievor had awarded 95% being
awarded only 25% by Mr. Reid; and the 45 60 30 tapered drift
which the grievor had awarded 100% being awarded 0% by Mr.
Reid.
In attempting to defend the marks which he assigned
to Mr. Van Dyne's class projects, the grievor suggested that
two people measuring a project can come to different results
by holding the measuring instruments in different ways.
However, it is clear from the totality of the evidence that
while this might well explain minor discrepancies, it does not
explain the aforementioned dramatically different results.
The griever also attempted to defend those marks on the basis
that it was within his discretion to take into account not
only whether the dimensions were within the specified
tolerances, but also a variety of other factors including the
student's effort, integrity, attendance, class participation,
and ability.
In support of his contention that the grievor had the
right to mark projects in that discretionary manner, Union
counsel relied upon the classification definition for the
42
position of "Professor" appended to the collective agreement,
which includes the "teaching of assigned courses,
including... evaluating student progress/achievement and
assuming responsibility for the overall assessment of the
student IS work within assigned courses."
However, as noted by
counsel for the College, that broad language is subject to the
limitation imposed by the opening words of that definition,
which expressly indicate that a Professor is to carry out his
or her responsibilities" [u]nder the direction of the senior
academic officer of the College or designate".
Thus,
professors must follow the College's directions regarding
evaluation of students.
In the context of the P.A.P., those
directions are set forth in the Manual, which includes the
following passages with respect to the evaluation of projects:
INSPECTION SHEETS
Section 4
In this section you will find an inspection sheet
for each project you are required to complete.
The inspection sheets clearly show how each project
is [sic] will be marked.
If the dimension is within tolerance, then you will
receive the full mark. However, if the dimension is
outside of the tolerance then you will receive a zero
for that dimension.
. . . .
PROJECT EVALUATION PROCEDURES
Section 5
The final mark for the practical component of the
program will be based upon each practical project being
marked in accordance with the inspection sheet in your
policies and procedures manual.
As these projects have varying degrees of difficulty
and complexity, a weighted percentage has been applied
to each project.
43
These combined percentages will form the basis of your
final practical mark.
As indicated above, it is the responsibility of the P.A.P
professors to ensure that the policies and procedures
contained in the Manual are duly applied.
In describing the pedagogical concerns which arise
from a professor engaging in the highly subjective type of
discretionary marking which the grievor employed, Mr. Wiles
stated:
It's very unfair to the students. There's a degree of
competition between the students for work placement
eventually. We try very hard to mark as objectively as
possible. It's also difficult then for a potential
employer to measure the skill set of the student. If a
student is really a 70% student and you've given him a
mark that shows him in the 85 or 90% range, the
employer is going to expect a greater agility than
perhaps what this young person can deliver.
The undue favouritism which the grievor's highly
subjective approach to marking may engender is clearly evident
from the following comments which the grievor made about Mr.
Van Dyne during the course of his evidence:
[William Van Dyne was] a magnificent student. As being
in the trade for a number of years, my knowledge
[enables me to determine] what kind of a calibre of
student William Van Dyne was - very, very polite. All
the characteristics you can describe in a student, he
had the best - not argumentative. He was doing what he
was asked to do.... To my experience and knowledge
over the years of instructing students, I was able to
determine that he was one of the good students that I
had... .
The griever also expressed the opinion that Mr. Van Dyne was a
worthy student to represent the College at the Ontario Skills
Competition, and that the College should not have deprived him
of that opportunity.
44
As acknowledged by its counsel, the College cannot
rely upon the manner in which the grievor marked Mr. Van
Dynes' class projects as a basis for discipline or discharge
in these proceedings, as that misconduct was not discovered
until after his employment had been terminated.
However, the
College can and does rely upon them as one of the bases from
which it may legitimately be concluded that the projects which
the grievor was shown at his termination meeting (and which
were produced at the hearing of this matter) were William Van
Dynes' projects which the griever submitted as the winning
entry from his section of the pre-apprenticeship class.
In
this regard, it is noteworthy that the substantial disparity
between the marks assigned to Mr. Van Dyne's class projects by
the grievor and the marks assigned to them when they were
re-marked parallels the disparity between the marks which the
grievor assigned to the aforementioned competition projects
and the marks which they received when they were re-marked by
other faculty members.
The College also can and does rely upon the manner in
which the griever marked Mr. Van Dynes' class projects as one
of the factors to be taken into account in determining whether
the griever's untrustworthiness renders it inappropriate to
reinstate his employment with the College.
Having regard to all of the evidence, we are
satisfied that the projects which the grievor was shown at his
termination meeting were William Van Dynes' projects, which
the grievor submitted as the winning entry from his section of
45
the pre-apprenticeship class.
We are also satisfied that the
griever engaged in serious misconduct by marking those
competition projects in the above-described grossly negligent
and highly subjective manner which blatantly disregarded the
specifications listed on the marking sheet.
Counsel for the Employer submitted that this
misconduct was so serious that it would justify the
termination of the grievor's employment in and of itself.
However, in the circumstances of this case it is unnecessary
to determine the validity of that proposition.
It suffices
for present purposes to find that this serious misconduct
constituted a culminating incident which, in the context of
the aforementioned progressive discipline, clearly warranted
the griever's discharge.
Article 32.05 G of the collective agreement provides:
Where the arbitration board determines that a
disciplinary penalty or discharge is excessive, it
may substitute such other penalty for the discipline
or discharge as it considers just and reasonable in
all the circumstances.
In requesting the Board to exercise its discretion to
substitute a lesser penalty for the grievor's discharge, Union
counsel raised as a mitigating factor the economic hardship
which the grievor experienced following his discharge.
The
grievor, who was 61 years old and in rather poor health at the
time of his termination, testified that despite substantial
efforts on his part he has been unable to obtain alternate
employment.
His wife, who is also in poor health, is unable
to work.
Although she receives a small disability pension, it
46
is insufficient to meet their living expenses, which include
mortgage payments.
The griever has exhausted his savings,
borrowed money under a line of credit, and also borrowed money
from family members including his two daughters and his
brother-in-law.
He has also found it necessary to visit a
local food bank monthly in order to feed his family.
His dire
financial circumstances have also caused domestic strife.
In
summarizing his situation, the grievor stated,
"It is a
terrible life that I am living for the last three or four
years."
In the oft-cited case of Re United Steelworkers of
America, Local 3257 and the Steel Equipment Co. Ltd.
(1964) ,
14 L.A.C. 356, Judge Reville identified as one of the factors
to be taken into consideration where an arbitration board has
the power to mitigate the penalty imposed on a grievor
II [w]hether the penalty imposed has created a special economic
hardship in the light of his particular circumstances".
We
respectfully agree with Union counsel that the griever's
economic circumstances bring him within the ambit of that
factor.
Indeed, if the griever were not already past his
retirement date and if he had exhibited a potential for
rehabilitation by candidly acknowledging his misconduct rather
than continuing to demonstrate untrustworthiness through his
lack of candour with the Board, we might have found it
appropriate to give him one last chance to redeem himself as a
professor at the College by reinstating him without
compensation.
However, as acknowledged by Union counsel,
47
reinstatement is not an option in the circumstances of this
case, because the grievor is now past his retirement date of
October 31, 2005.
Moreover, the grievor's untrustworthiness
strongly militates against the substitution of a lesser
penalty.
Thus, we are not persuaded that we should overturn
the griever's discharge or award him any compensation, in
light of the serious misconduct described above and his
unwillingness to accept responsibility for it.
Since we have decided not to substitute a lesser
penalty for the griever's discharge, it is unnecessary to
determine whether Exhibits 18, 19, and 20
(as quoted
above) are disciplinary (as contended by the Union) or
nondisciplinary (as contended by the Employer), as that
issue has become moot and determining it would serve no
useful purpose in the circumstances of this case.
For the foregoing reasons, we have concluded that the
College had just cause to suspend the grievor (for five days,
ten days, and fifteen days) and to discharge him.
We have
also concluded that this is not an appropriate case in which
to substitute a lesser penalty for any of those suspensions or
for the discharge.
Accordingly, the grievances are hereby
dismissed.
48
DATED at Burlington, Ontario, this 22nd day of February, 2006.
~LJð~L
Robert D. Howe
Chair
I concur.
"Robert J. Gallivan"
College Nominee
D IS S E N T
Although I agree with Chairman Howe's findings of
fact in this matter, I find myself dissenting due to the
College's inability to correct Mr. Ghosh's perceived or
alleged inability as a Professor at Sheridan College.
It is apparent to this Nominee that Mr. Ghosh's
problems surfaced when Mr. Wiles became Associate Dean at
Sheridan in August of 2000.
Union counsel provided the Board with Continuing
Education Assessment Reports for the Machine Shop Levell
course which Mr. Ghosh taught at the College's Brampton
Campus.
These three reports (Exhibit #92) were based upon
responses provided by students, who graded the course and
course content and gave Mr. Ghosh extremely high marks.
As
late as December 20, 2000, the Continuing Education assessment
49
forms completed by students confirmed that Mr. Ghosh was
performing fine in all his assignments.
These forms would
have been completed just as Mr. Wiles started his employment
with Sheridan as Associate Dean.
The first suspension by Mr. Wiles is detailed in a
letter dated April 23, 2001 (5 days).
The second suspension
by Mr. Wiles is detailed in a letter dated September 14, 2001
(10 days).
The third suspension by Mr. Wiles is detailed in a
letter dated January 18, 2002
(15 days).
This suspension in
my opinion could have been prevented.
This suspension related
to a classroom visit by Mr. Wiles, where he contends that Mr.
Ghosh intentionally, recklessly, and/or negligently
communicated wrong information to students.
Finally Mr. Wiles terminated Mr. Ghosh in a letter
dated April 30, 2002.
The termination letter followed a
morning meeting earlier that day.
Needless to say there appeared to be a strained
relationship between Mr. Ghosh and Mr. Wiles.
This is
reflected in Mr. Wiles' visit to Mr. Ghosh's class on
November 27, 2001.
Mr. Ghosh was aware of the planned visit
and continued to instruct the students as he had in previous
classes.
Mr. Wiles alleges that there were numerous
inaccuracies in Mr. Ghosh's lesson.
In fact Mr. Wiles
insisted that Mr. Ghosh re-teach the lesson.
With all the resources available to the College,
one has to ask why the College would not have offered Mr.
Ghosh some form of mentoring, rather than the suspensions
50
and termination.
When this hearing commenced the grievor was 62
years old.
The grievor was over 65 at the completion.
Unfortunately, the hearing lasted over 3 years and 25 hearing
dates.
Had the College or Mr. Wiles exercised a little more
discretion and not reacted as quickly as they did to terminate
Mr. Ghosh, I am confident that the alleged deficiencies could
have been worked out with Mr. Ghosh, and he could have retired
from Sheridan instead of being terminated.
The cost of this arbitration to the College probably
surpassed $100,000.00, which certainly could have gone a long
way in mentoring a Professor with over 10 years of experience.
As I said in the opening, I do not find the Chairman
at fault for his findings.
However, at the end of the day,
all parties could have been better served avoiding this
arbitration.
"Michael J. Sullivan"
Union Nominee
51