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HomeMy WebLinkAbout1991-2722.Orcheson.95-08-22 ' . ... · >-.:: '_ .11' .... ., "' ;-:-,'-' ONTARIO EMPLOYES DE LA COURONNE · '. ',:.i.~-il ~i ?;' C~OWN EMPLOYEES ~E~.'O~TAR~O GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STF~EET WEST, SUITE 2~00, TORONTO, ONTAF~[Q MEG lZ8 TE~.EPI-iONE/T~..~'pHONE: ~416~. ~26- 1358 "l$0, FtUE DL,)NDAS OUEST, BUREAU 2~00, TOF~ONTO ((~NTA~IOL MSG 1Z$ FACSIMILEIT~L~COPiE : (416) 325- t396 September 29, 1995 .. NOTICE RE: 2722/91 OPSEU (Orcheson) and the Crown in Right of Ontario (Ministry of the Environment) Attached is a Summary of the decision in the above noted matter prepared for general information purposes only. It does not form part of the decision. L. stickland Registrar LS/dbg Encl. The balance of the board's 104 page description of the parties' evidence and argument has been omitted from this editted copy of the decision. Persons referred to in the balance of the decision are: Willy Brink -- Acting Manager Of the Project Services Section of the Project Engineering Branch from and after March 1991 and the grievor's immediate supervisor from then until her termination in March 1992. Ken Adams -- Manager of the Project Services Section of the Project Engineering Branch when the grievor joined the section in August 1989 and the grievor's immediate supervisor from then until March 1991 when Mr. Brink became Acting Manager. George ~erzynski -- Director of the Project Engineering Branch from and after September 1989, to whom Mr. Brink and, earlier, Mr. Adams, reported. C. E.'McIntyre -- The Executive Director to whom Mr. Mierzynski and his predecessor reported from in or before 1986 to late 1989, when Boris Boyko took over the position, then entitled Assistant Deputy Minister, Environmental Planning and Prevention Division. C. Mialkowski -- At the time of the Wiarton payment in 1966, Director of the branch said to have been responsible for making the payment. Later, Director of the Management Audit Branch where Ms. Orcheson worked until her transfer to the Project Engineering Branch in November 1987. Boris Boyko ~ From and after late 1989, Assistant Deputy Minister, Environmental Planning and Prevention Division, to whom Mr. Mierzynski reported. A. Beatty -- a fellow worker of the grievor's in the Management Audit Branch who was also transferred to the Project Engineering Branch in 1987 and retired in or before 1989. Gerry Mros -- a systems officer with the Project Engineering Branch who became involved in repairing the grievor's computer. R. Clark - Director of the Human Resources Branch of the Ministry. Stephen George -- a local union steward. A. Miernicki -- another employee of the Project Services Section who', like the grievor, was involved in reviewing grant claims submitted by municipalities. Dick Choy -- another employee in the branch. - :~' ~' "'":"~' ~ ' ' CROWN EMPLOYEES DEr'ONTARIO GRIEVANCE C,OMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS f~O DUNOAS STREET WEST, SUITE 3~, TORONTO, ONTAR~. MSG tZ8 TELEPHONE/T~L£PHONE: (4~6~ 32~ 180, RUE DUNDAS OUEST, BUREAU ~;~.' TORONTO (ONTARIOJ, USG ?Z8 'FACStMtLE/T~LECOPIE : (416) 32~ GSB # 2722/91, 1281/92· OPSEU # 92A135-7, 92E702 IN THE MATTER OF ~.N ARBITRATION Un,er THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE ~ETTLEMENT BOARD BETWEEN · OPSEU (Orcheson) ~rievor - a~ - The Crown in Right of ontario (Ministry of the Environment) Employer · BEFORE O. Gray Vice-Chairperson J.C. Laniel Member J.R. Scott Member FOR THE 'I. Roland GRIEVOR Counsel Gowling, Strathy & Henderson ~arristers & Solicitors FOR THE M. Parson EMPLOYER Counsel Fra~er & Beatty Barrfster & Solicitor HE~RING November 12, 13, 20, 1992 December 8, 1992 January 5, 6, 7, 11, 1~, 13, 27, 1~93 March 29, 1993 · April'13, 14, 15,.27, 1993 May 4, 1993 June 1, 8, 21, 22, 1993~ August 31, 1993 October 26, 29, 1993 November 24, 1993 December 21, 1993 Decision The Ministry of the Environment terminated Lorna Orcheson's employ- ment effective March 25, 1992 for insubordination. That discharge and three prior suspensions in November and December of 1991 for insubordinatien were the subject of grievances which came before us for arbitration in 26 days of hearing between November 12, 1992 and December 21, 1993. Evidence The part/es presented extensive oral and documentary evidence which covered not only the conduct for which the grievor was disciplined and dis. charged, but also a number of surrounding 'and prior events. The.following de- scription of that'evidence, while detailed, is not exhaustive. We have not repro- duced every relevant document, nor recounted every event to which reference was made in testimony. We have, however, considered all of the documentary and testimonial evidence in arriving at our conclusions. Background ~ Ms. Orcheson began working for the Ontario government in January 1981 in the Ministry of Revenue. She Worked in that Ministry in various accounting roles until July 1983, when she transferred to the Management Audit Branch of the Ministry of the Environment. While employed in that branch, Ms. Orcheson · was involved in auditing the transfer payment function -- the paYment'of grants to municipalities in connection with the construction of water and sewage treat- ment facilities. That review functioa was transferred f~om the Management Audit Branch to the Project Engineering Branch in late 1987. Ms. Orcheson was transferred to theProject Engineering Branch in November 1987. 4 The Wiarton Payment The grievor believes that events relevant to the issues in this proceeding begin in 1986, when an Unapproved payment was made to the Town of Wiarton. Ms. Orcheson testified that Mr. C. Mialkowsky would have been the' Director of the branch responsible for making that payment at the time it was made. He re- ported to Mr. C. E. McIntyre, who was then the Executive Director. Some time' after the unauthorized payment was made and before December of 1986, Mr. Mialkowsky became the Director of the Management Audit Branch, where Ms. Orcheson then worked. In December 1986, Ms. Orcheson and Mr. A. Beatty, another auditor, and. Mr. B. Malik, their team leader, were performing an audit of the direct grant function. Mr. Beatty discovered the unapproved payment to the Town of Wiartbn during that audit. His initial impression, which he reported to Mr. Mialkowsky, was that Ms. Orcheson's earlier work as an auditor had somehow been responsi- ble for the unapproved payment. Ms. Orcheson became aware of that report. She 'testified that she then performed her own review of the files and demonstrated that she had not been responsible. Mr. Beatty's initial finding was then re- drafted. At around this time the Provincial Auditor arrived in the offices where' Ms..Orcheson and Mr. Malik worked. Ms. Orcheson recounts that Mr. Malik re- sponded to this arrival by picking up a newspaper, remarking that h~ was look. ing for another job and suggesting that she do the same. The Provincial Auditor's staff asked to see the file in which'the unauthorized payment had been made. Ms. Orcheson provided the file to them after her supervisor said it would be ap- propriate to do so. Although she cannot remember what question would have prompted her to do so, she believes that when she delivered the file she told the Provincial Auditor's staff that she had initially been blamed for the unapproved payment. She acknowledged in cross-examination that she had no reason to be- lieve that management blamed her for the payment. The Grievor's Transfer to the Project Engineering Branch The next event recounted by Ms. Orcheson was a meeting in the summer of 1987, at which Mr. Mialkowsky, the Director of the branch where she then worked, announced that Ms. Orcheson was "moving~ on." She testifmd that up to that point, neither Mr. Mialkowsky nor anyone else in management had spoken to her directly.about "moving on." She acknowledged in cross-examination, how- ever, that the audit function was being reorganized at that point in time, that the function in which she was engaged, auditing of transfer payments, was to move from the Management Audit Branch to the Project Engineering Branch and that she knew all this at the time of the meeting. She said'she believes that ' he announced her transfer the way he did -- at a meeting, without speaking to her individually first -- because of the Wiarton payment audit report. ~r.hereafter, Ms. Orcheson had discussions with Mr. A. Castel, the then Executive Director of the Corporate Resources Division, Mr. Bray, then Director of the Project Engineering Branch, and Mr. Mialkowsky concerning her transfer to the Project Engineering Branch. Ms. Orcheson began working in the Project Engineering Branch on No- vember 23, 1987. She was initially placed in the Budget Control Section, and was assigned to assist a grant review engineer, Mr. A. Miernicki, in reviewing grant claims. Shortly thereafter she was reassigned to the Projects section, where she spent several Weeks acting as supervisor of the processing of certain claims. She felt she had had a commitment that she would be assigned to supervise the Grant Payment process and perform variance accounting on a permanent basis. She asserted at the time that such a commitment had been made. Her immedi- ate superiors would not acknowledge that there had been any promise that they would give her that role on a permanent basis, and they did not. She believes that is because Mr. McIntyre would not approve it. As a result of further staffing changes there was need for another individ- ual in the grant review process. In the spring of 1988, Ms. Orcheson was re- turned to doing that work with Mr. Miernicki, who became Co-o~-dinator of that function. Mr. Charles Letman was her supervisor at that time. During her testi- mony' she produced one of his business cards, with the words aThanks for a great yeaF' handwritten on the back. She testified that Mr. Letman wrote those words. Ms. Orcheson and Mr. Letman had disCussions from time to time about Ms. Orcheson's job responsibilities and the prospect of expanding them to include further duties which might attract a higher classification level and salary. Ms. Orcheson had. been under the impression, since her transfer to the branch_ that there was some ,undertaking to upgrade'her position from the AM 16 salary level, at which she transferred to the Project Engineering Branch, to an AM 17 level. Ms. Orcheson's job description still had not been finalized, however, when George Mierzynski replaced Mr. Bray as the Director of the Project Engineering Branch in July 1989. At that point, Mr. McIntyre was still-the Executive Direc- tor. Mr. Mierzynski r~ported to him until the latter part of 1989, when Mr. Mcln- tyre was replaced by Boris Boyko in a position which was by then entitled Assis- tant Deputy Minister, .Environmental Planning and Prevention Division. In light of Mr. Mierzynski's treatment of her between the time of his arri- val in 1989 and her discharge in 1992, Ms. Orcheson now believes that he was determined, on behalf of Mr. McIntyre, to retaliate against her for her inVolve. ment in the audit of the unauthorized payment to the Town of Wiarton in 1986. When he was asked about his relationship with Mr. M¢Intyre, Mr, Mierzynski acknowledged having known Mr. McIntyre at work before taking this position in which Mr. McIntyre was his superior. He t~stified that they were both smokers and saw each other outside the building, where they had to go to smoke. Mr. Mierzynski said that Mr. Mclntyre told him about the employees in the branch generally, and acknowledged that he would have spoken about Ms. Orcheson. He remembered being told that Ms. Orcheson had transferred to the branch from the Management Audit Branch. He stated, however, that he was unaware of the Wiarton matter at the time of the events in question in these pro- ceedings. Shortly after Mr. Mierzynski's arrival, Ms. Orcheson approached him to discuss the matter of her job description and position. She gave Mr. Mierzynski a copy of a memo she had written to Mr. Letman, which purported to confirm, that. at a meeting at the end of May 1989 Mr. Letman had promised to pursue an up- grade of her position to the AM 17 level. She attached to it a hand-written note suggesting that "implementation is long overdue.'' Mr. Mierzynski responded with a hand-written note which said that he would be reviewing the structures of all sections is time permitted, but that the'classification review of individual positions should continue to be concluded with section supervisors. Mr. Mierzynski testified that after this exchange of notes he asked Mr. Letman to conclude a position description for Ms. 0rc~eson's position. Ac- cording to Ms. Orcheson, during a subsequent cqnversation, on .this subject Mr. Letman suggested that she might pursue reclassification to the AM 18 level instead, by taking on the functions which had been performed by the aforesaid Mr. Beatty. Mr. Beatty had'transferred to the branch at the AM18 level at about the time of her transfer, and had recently retired. At the end of July 1989, Ms. Orcheson wrote again to Mr. Mierzynski, stating that she and Mr. Letman had prepared a draft position description which was "intended to provide the same consideration in terms of duties 'and remu- neration'' that Mr. Beatty would have received. She noted that neither her draft positi°n nor her existing position appeared on a proposed organization char~ she " had seen. She also noted that there was a Financial Administration Officer posi- tion shown on that chart as reporting to Mr. Ken Adams "to which my transfer is contemplated." She wrote that the details of the transfer had not been discussed with her, and asked .for a discussion with him before those initiatives were final- ized. Mr. Mierzynski did not meet with her. She was transferred to Ken Adams' section in August of 1989. Mr. Adams then discussed with Ms. Orcheson the position description for her position in his section. In mid-September 1989, Ms. Orcheson again wrote to Mr. Mierzynski on the subject of her draft position description. She alleged in this memo that her discussions with Mr. Letman and Mr. Adams had been "held on the understanding 'that a position description would be dev, etoped which would be recommended 'at the AM 18 classification level", but that Mr. Adams' draft job description had excluded the concept that her position would be ac- countable for conducting the more comple:~ eligibility audits. She asserted that this was an "unwarranted change in my responsibilities." She said. I believe the exclusion of more complex audits for my position description would be an ~attempt t~ downgrade my job. It was stated that the position,, description would likely be rated at the AM 16. This is contrary to my understanding with both supervisorswhen this process began. Mr. Adams testified that there had never been an understanding with him that the position he had set out to describe would be recommended at an AM 15 clas- sification level. Ms. Orcheson met with Mr. Mierzynski later in September 1989. She says Mr. Mierzynski told her he had sent the position description to the Human Re- sources Branch and did not think it was an AM18 position. She testified that he told her she was "screwed" and that her only recoume was to f~le a grievance. She testified that he also said that he did not want her in the branch. Mr. Mierzynski testified before Ms. Orcheson did. V/hen it.was put to him that he told Ms. Orcheson that she was "screwed", he said it was Ms. Orcheson who said "I .got Screwed". He said he may have repeated her statement after she made it, but did not otherwise tell her she had been "screwed." He denied telling her that she would not get the classification she .wanted. He said his position was that it was not his function to classify positions. It was not put to him that dur- lng the September 1989 meeting he had told her he did not want her in the branch. The Classification Grievance In March 1990, Ms. Orcheson was informed that her position would be classified at the FO 3 level. In April 1990, Ms. Orcheson filed a grievance under the Public Service Act alleging that the employer had failed to honor a commit. ment to offer her an AM 17 position as of the date of her transfer to the Budget Section in November i987 and a position as an AM I8 as of the time of her as- signment to the Project Services and Contracts Section in September 1989. She also grieved that she had been improperly classified as an AM 16 from November 1987 until April 1990 and as an FO 3 since April 1990. In the fall of 1990, Brad Adams of the Ministry's Human Resources Branch called Ms. Orcheson and offered her an AM 17 position elsewhere. Ms. Orcheson testified that he said if she did not take the offer her "work rela- tionships would suffer." Mr. Mierzynski denied union counsel's suggestion that this must have been a result of something'he said to Brad Adams. He testified that he was not aware that the HR branch had either looked for, found or offered Ms. Orcheson another position. He did not recall saying anything to Brad Adams 'that might have prompted such a comment. Brad Adams was not called as a witness. Ms. Orcheson declined the offered AM 17 position. She testified that she wanted to keep the job and position description she then had, and was happy to be in the bargaining unit. ("FO" positions fall within the bargaining Unit. "AM" positions do not J) Her grievances about her classification were not pursued thereafter. The First Distribution List Dispute In November 1990, Ms. Orcheson' complained about the fact that she was not copied directly with a document approving a final grant figure for a 'sewer project in the Town of Picton. The document had been prepared by Jason Fani, who was the Acting Co-ordinator for the 'program under which the grant was being made. It was in the form of a memorandum from Mr. Mierzynski to Mr. McIntyre, seeking .approval of a particular grant figure, with a space at the foot of the memoranddm for Mr. McIntyre to sign indicating his approval. Below that was a "cd" list which included Mr. Ken Adams and Mr. Miernicki, but not Ms. Orcheson. Ms. Orcheson was apparently involved in the auditing of this proj- ect at some stage, Upon becoming aware that she was not shown as receiving a c°Py, Ms. Orcheson complained to Mr. Ken Adams that the omission was "demeaning" .to her. Mr. Adams did not agree. Ms. Orcheson then spoke to Mr. Mierzy .nski. Mr. Mierzynski responded with a memo which said that The particular memorandum to which you referred showed Andrew Miernicki as a copy recipient and the procedure is that Andrew will pass that copy to you after he has seen it. This procedure does not prevent you from doing your job and I consider it routine and normal. Ms. Orcheson then wrote a memo to Mr. Mierzynski, alleging that "the existing practice in this Branch is to include my name on the distribution list or to inform me verbally that an approval has been obtained from the Executive Director for projects for which I am accountable." She added that "it is both a courtesy and a necessity that ! be informed that the approval has been obtained". She concluded her memorandum with these assertions: The recent procedural change which requires copies of memoranda enroute to me to be redirected to a co. worker for his perusal is contrary to the normal routines in the Branch. This change and your recent comments undermine my position here and add new aspects of efficiency and ineffectiveness which prevent me from doing my job as I did it in the past. Mr. Mierzynski replied to this in a memorandum, of November 23, 1990: Your memorandum to me, dated November 23, 1990, in response to my memorandum, following a lengthy discussion, of November 21, 1990, is acknowledged. quite frankly, I fred your latest memorandum a Wtal waste of time for both you and I and do not appreciate an internal paPer exercise for something that has clearly been resolved, discussed and explained. This is an example of inefficiency and ineffectiveness. For the record, let me restate the following points, all of which we discussed before: ~ 1) The project file should contain a copy of the approval memorandum. 2) The file is available to you. 3) If the file is deficient through the absence of an approval memorandum, then your review will identify such a di~fieiency and steps will (as in ~he past) be taken to resolve this. 4) There has not bben'a recent procedural change as you suggest - in fact,. you requested such a change, i.e., you [sic] name on each copy of the particular memorandum. 5) There has not been, nor is there now, any intent to undermine your · ' position by not putting your name on a copy of a particular memorandum. The only positive aspect in your memorandum of November 23, 1990 is your statement that you work directly with the project engineers to obtain documents and that verbal communication works. I encourage you to build on the latter principle. In his cross-examination, Mr. Fani denied that Ms. Orcheson would have an interest in the subject matter of the memo which sparked this debate. He said it was his function, not hers, to inform the municipality of the approval -- he would be ihe one to prepare the letter to the municipality for Mr. Mierzynski's signature. He noted that Andrew Miernicki was the co.ordinator of the audit files, and that the information about .the approval would go through him to Ms. 0rcheson. He said he had not previously copied Ms. 0rcheson with memo- randa of this kind -- they had always gone through Andrew Miernicki. In her cross-examination, Ms. 0rcheson acknowledged that the signing of this approval memorandum did not trigger her doing anything in respect of the file. Her part in the matter .had already been completed. She said it was the principle, the con- cept that she would not be copied, that she was concerned with. She considered it a "change in practice." Ms. Orcheson testified that around this time Mr. Mierzynski told her she did not belong in the Branch and that shd could transfer out of the Branch but that he would not initiate her transfer. This was put to Mr. Mierzynski during his cross-examination. He testified that he did not recall having any such conver- 'sation with her. Encounter With Ken Adams Over The Reason For An, Absence At the offices where Ms. Oreheson and other section and branch employ- ees worked, there is a board near the reception desk on which employee where- abouts are noted. 'Ms. Orcheson was away from the office on November 21, 1990. A, notation on the board indicated that Ms. Orcheson was at a "course". Ken Adams, who was then her manager, did not recall discussing her attending a course on that day. He resolved to speak to her about it. The following day, he went to her office and asked her to come to his office to discuss something. She · asked him what he wanted to discuss, and he told her that they would discuss thatin his office. She 'then asked to have a union representative present for the discussion. Mr. Adams testified, and notes he made within a day or two of the event record, that he then said the discussion was to be about her job and that she .was not entitled to have a-representative present. She replied~that she was going to check that before coming to his office. Mr. Adams then had some discussions with the Human Resources Branch. Following those discussions he told Ms. Orcheson that he did .not know whether she had the right to have a union representative present, but was content to have one present if she vdshed. Ms. Orcheson testified that she asked to have a union representative pre- sent because Mr. Adams seemed so official and formal and did not want to say. what the subject of the discussion was. She said that he agreed to give her time to find a representative. The requested meeting took place the .following morning. Mr. Adams. asked what course Ms. Orcheson had been at. She said that it was a course on dbase III software which had originally been scheduled for earlier in the year but had subsequently been rescheduled. Mr. Adams then remembered that she had mentioned some time earlier that the course would be ~escheduled, but had not remembered that conversation on November 21st, when she was absent. Mr. Adams testified, before us that he doubted that she had told him that the course had been rescheduled to November 21,'.1990, but did not pursue the mat- ter. Performance Concern, Performance Review In late November 1990, because of concern about .the backlog of work in the grant review process, Ken Adams spoke to Andrew Miernicki, the coordinator of grant reviews. He asked Mr. Miernicki to give him the number of audits per- formed during the current and proceeding year, divided to indicate th6 number performed by Mr. Miernicki and the number performed by Ms. Orcheson. The information he received from Mr. Miernicki indicated that the number of final, · interim and revised audit statements completed by Ms. Orcheson during the tar- get period was considerably lower than the number completed by Mr. Miernicki. Mr. Adams then turned his mind to conducting a performance review of Ms. Orcheson, who h.ad not been the subject of a performance review since her arrival in the branch. Indeed, although it is not clear whether Mr. Adams knew this, it appears that there had been no formal appraisal of Ms. Orcheson's per- formance in the civil service since April 1982, when she was appraised by a Mr. E. J. Canessa on her work as a Senior Auditor in the Retail Sales Tax Branch of the Ministry of Revenue during the period of a six month secondment to its head office. Although there is no suggestion that Mr. Adams was aware of its contents, the commentary in that appraisal was referred to in argument and this seems a convenient point at which to reproduce it: Reliabi/ity of Judgement On technical matters, Lorna exhibits good judgement. However, although she has many ideas on various aspects of auditing, she should use better judgement in how forceful she is in trying to get her ideas across. She should realize others with considerably more retail ~sa]es tax experience than her · may have ideas that are ~ust as valid. Her forcefullness ]ed to complaints from other staff members. Technical Competence During this period, Lorna has performed a number of audits in order to test the new audit program which is being developed. She has done an acceptable job on the audits completed, but the program was not really tested. She feels that other auditors should have been used to test the program as she was involved in its development. Lorna, with limited experience in the Retail Sales TaX Branch, still has much to learn in the area of policies and procedures. She should be able to learn all this as she performs in the audit area in the future. Oreanization Ability Lorna is very well organized and all work completed is neat. Communicatipn Skills Lorna is able to express herself very well both verbally and in writing. She can improve her communications dramatically if she listens more carefully to what is being said by others. This could lead her to be more cooperative in completing assigned work. COMMENTS Lorna has been seconded to Head Office for the past five months. The basic purpose for the secondment was to give her a broader perspective of the Branch operations in order to develop the potential she appears to ~have. She feels that some of the things she was asked to do would not develop }mr as an auditor, the job she is most interested in doing. Therefore, the secondment was ended and she was asked to report back to Toronto District Office on April 16, 1982. Basically, Lorna has her own ideas of what she wants to do and how sl~e wants to do it. She must consider that sometimes when her ideas conflict with others, she should Change. If she cannot do this, she will not progress within this Branch..~She has ali the ability to enable her to progress aS far as she wants, but must correct the areas addressed above. Ms. Orcheson acknowledged having signed this appraisal. She produced a copy of a document dated June 23, 1983, signed by a Mr: Leung and purporting to set out the results of a "Check of Character Reference By Phone." Mr. Leung was Ms. Orcheson's supervisor at the Management Audit Branch of the Ministry of the Environment when she joined it in 1983. She stated that he gave the document to her. It purports to record the answers given by a Mr. R. Water to questions asked of him, apparently in connection with the application Ms. Orcheson made to transfer to the Ministry of the Environment after her job with the Ministry of Revenue was moved to Oshawa. The document records Mr. Water as saying, among other things, that Ms. Orcheson got along very well with staff, was very pleasant all the time, quiet but receptive, very tactful and diplomatic. When asked in chief whether Mr. Water was her manager, she re- plied that he was a manager that she worked with. When pressed on this in cross-examination, she stated that "I reported strictly speaking to Mr. Canessa. I worked more with this manager." Returning to Ken Adams' activities in November 1991, there was a stan- dard document entitled'"Performance Planning and Review" (a "PPR") for use in the performance review process. Mr. Adams began 'preparing a draft on this standard form, using the position description which had been settled in April 1, 1990 as a Statement of the expectations and standards against which the Per- formance Planning and Review was being conducted. Under the heading "Overall Evaluation of Performance", Mr. Adams wrote the following with respect to Ms, Orcheson's project cost and final gr~nt eligibility review duties: During the fiscal year 1989-90, Lorna carried out a total of 87 Grant Reviews (final, interim and Lifelines). During the elapsed l~ortion of the fiscal year 1990-9I (i.e. April 1, 1990- November 27, 1990) Lorna has carried out a total of 28 Grant Reviews (final, interim and Lifelines). The quality of Grant Reviews carried out by Lorna is quite satisfactory, but the quantity falls below expectations. It is recognized that Grant Reviews v.ary in complexity and the number is not an absolute criterion of performance. However, higher productivity should be achieved. Mr. Adams also noted in the draft that "Lorna has been vigilant in identifying a number of areas of questionable eligibility and has discussed their resolution with colleagues and with ' " manager, and that her attendance and punctuality had been good. He was not aware (he testified) of her activities in the areas de- scribed ~in certain of the paragraphs of her position description.~ He put headings corresponding to the paragraph numbers of those paragraphs, in the portion, .of the PPR document dealing with "Overall Evaluation of. Performance." Beside the blank spaces below those headings he put yellow sticky notes which read "Lorna, please make entries here if applicable." Under the next part of the form, entitled "Future Objectives Planned for Next Period", Mr. Adams wrote that Ms. Orcheson should "carry out and complete 36 Grant Reviews during the re- mainder of the 1990-91 fiscal year," With a target date of March 31, 1991. Mr. Adams testified that he delivered this draft~ performance review document to Ms, Orcheson under cover of a hand.written memo dated December 12, 1990. That memo said "Would you please look this over. We can discuss its completion on the seventeenth. (Dec. '17190)." He testified that the drait and coy- ering memo were returned to his office unaltered on December 14, 1990. Ms. Orcheson testified that she did not see the draft at any time before Decem- ber 17, 1990, when She and Mr. Adams first met to discuss it. The meeting of December 1'7, 1990 to discuss Mr. Adams' draft perform- anco review docUment stalled almost immediately, when Ms. Orcheson objected to the way her position was described at the beginning of the document, Blanks at the beginning of the docUment call for "Job title", "Present classification", and' "Length of time in this position", among other details. Mr. Adams had put "FO-3' ' in the "Present classification" box and "1 year 5 months" in the "Length of time in this position" box. Ms. Orcheson argued that her position had not been classi. fled as FO 3 during the entire period which the review purported to cover, be- cause prior to April 1, 1990 she had been an AM 16. Mr. Adams' initial response was that the evaluation was with respect to her performance in the job, regard- less of the classification assigned to the job from t~me to 'time. He'asked her to deal with her objection to the process by noting the objection on the form, but she would not do that. In the face of her refUSal to move on from that Point, Mr. Adams agreed that their discussion would not proceed until someone else had given "a ruling" on this issue, and that Mr. Adams would refer the matter to the Human Resources Branch. Mr. Adams then sent a memo about this to Stella Moore in the Human Resources Branch, and got an oral reply that it did not matter what the classifi- cation was during the review period. Mr. Adams recounted this tO Ms. Orcheson on January 4, 1991. She asked to see something in writing. Mr. Adams conveyed that to Ms. Moore, who responded with a memorandum dated January 24, 1991. That memo stated that where, as in ·Ms. OrchesOn's case, there had been a change in classification without a significant change in duties and responsibili- ties, the Performance Review should b~ based on the full period of' employment. It added that the present classification box should indicate "Financial Officer III" and could, if Mr. Adams wished, indicate that for part of the period the employee was classified at the AM 16 level, but that "Length of time in the position" should indicate the length of time Ms. Orcheson had been in th~ position, · whether or not a classification change had occurred. This memorandum was copied to Ms. Orcheson, who acknowledges having seen it. Mr. Adams testified that he then met with Ms. Orcheson on February 1, 1991, either in his office oX in hers, to discuss the completion· of the appraisal form. Following that meeting he wrote the following memorandum to Mr. MierzYnski: RE: PERFORMANCE APPRAISAL. L.C. ORCHESON ' On Friday, February l, 1991, I'discussed the completion of Form A with Lorna. She said she would not sign the form. contending that: .The number of grant reviews carried out in a certain time is no proper criterion for performance. -In her own judgement, her performance is satisfactory. .I told her that I do not agree with these contentions. Would you please sign the form and return it to r~e for distributiori and There is a notation at the foot of the memorandum which indicates.that it was to. be copied to Ms. Orcheson and to Mr. R. Clark, who was the Director of the Hu- man Resources Branch. Mr. Adams testified ~hat he had no present recollection of the meeting of February 1, 1991. The Form A which accompanied this memorandum from Mr. Adams to Mr. Mierzynski was a type-written version, with certain changes, of the hand- written draft which was to have been discussed at the meeting of December 17th. The box "Present classification" had been. changed to read "FO-3 (Formerly AM- 16)." The' areas which had been left blank for completion by Ms. Orcheson were labelled "no activity." The target set out under "future objectives planned ,for next period" has been modified to read "carry out and complete 30 grant reviews during the next 3-month period" with a target date of April 30, 1991. At the end of Form A there are spaces for "Comments" by the emploYee, the supervisor and the supervisor's supervisor. The draft forwarded to Mr. Mierzynski for signature had the notation "Better performance is required" under the heading for superv~- sor's comments. Under the "Supervisor~s Supervisor" heading .Mr. Mierzynski added "Lorna tends to work in isolation which makes for difficult rapport with other Branch staff." Ms. Orcheson testified that she did not meet with Mr. Adams to discuss her Performance Appraisal on February 1, 1991. She says the_next thing that happened after she received the memorandum from the Human Resources Branch was that a copy of the appraisal, typed up and signed by both Mr. Adams and Mr. Mierzynski, appeared in the "in basket" in her office. She said that she never refused to sign the document, that she was never asked to sign the docu- ment and that she never saw the memorandum from Mt. Adams to Mr. Mierzynski until it was produced at the hearing. Mr. Adams testified that Ms. Orcheson was the most difficult employee he had ever had to work with. He thought she was a "slacker", based on what he understood to be the substantial difference between her productivity and that of Mr. Miernicki. He was also troubled by her having falsely alleged that he had been party to an understanding that her position in his Section' would be the same as Mr. Beatty's had been and that it would attract an AM 18 classification. Willy Brink Becomes Acting Manager Ken Adams left the position of Manager of Project Services and Contracts Section at the end. of February to take up an Acting Manager position elsewhere in the Ministry. He was replaced by Willy Brink, who was appointed Acting Manager. Mr. Brink had been in the Branch since August o£ 1988. He had been em- ployed by the Ministr~ of the Environment, and the Ontario Water Resources Commission before it, since June 1977. Prior to being appointed Acting Manager of the Project Services .and Contracts Section, he had served as Supervisor in two .. other Sections for a total of 12 years. When he took up the position of Acting Manager of the Section, Mr. B~nk' was aware of the prior coaflict between Ms. Orcheson and Mr. Adams. He re- counted having heard a commotion involving banging doors on February 1, 1991. He said that he had spoken to Mr. Adams about it later that day, and that Mr. Adams had told him that the commotion had concerned Ms. Orcheson's .Per- formanCe Appraisal. Mr. Adams made Mr. Brink aware of the contents of that appraisal and, particularly, his Concern about Ms. Orcheson's productivity. He also advised Mr. Brink that in dealing with Ms, Orcheson he should be precise with facts and keep notes. On his first day as Acting Manager of the Section, Mr, Brink came to work~ wearing a black cloak and a sign on his' back saying ~Aeting Managerf' Ms. Oreheson remarked onthis in her testimony. While she recognized it as an attempt at levity, she did not think that levity was appropriate. Ms, Orcheson also testified that she thought that one of the decorations in Mr. Brink's office was a ~witeh's head" which was "skewered" on a metal post. She so described it after hearing Mr. Brink testify, When her characterization was put ~o him in cross-examination, that the item in question was a bust his former girlfriend had made of Frangois VilIon, whom he described as a thirteenth century French poet. In mid-March of 1991, Mr. Brink had occasion to speak to Ms. orcheson about the "c¢' list on audit statement memoranda. He had noticed differences in the way Ms. Orcheson and Mr. Miernicki set out that list in the memoranda they prepared. He gave Ms. Orcheson direction as to the way he wished the "cc" list to read. He testified that Ms. Orcheson responded to this direction by requesting that he put it in writing. He said that he found that request odd-and unneces- 4 sary, but put the direction in writing nevertheless. Ms. Orcheson testified that she could not recall saying that she would fol- low the new procedure if it was put in writing. She does recall a~king Mr. Brink to hold a meeting with the entire Section to advise everyone on any new proce- dures he wished to implement. He declined, preferring to deal with matters in- dividually as they came up. The next point of conflict, from Ms. Orcheson's perspective, involved a di. rect grant to the Town of Maxville with respect to certain sewage works. Ms. Orcheson testified that there had been a final audit of this project in Febru- ary 1990 and that both Mr. Adams and Mr. Miernicki had agreed with he~' at that time that a portion of the lands purchased by the Town for a sewage lagoon were not eligible for subsidy, Her' description in her testimony in chief about what then happened in April and May of 1991 was that Mr. Brink was a new manager and the municipality decided to "try him on" in an attempt to get the grant to cover all of the lands, including the portion which she had previously de. retrained to be ineligible. In the result, Mr. Brink instructed her to revise the statement of cost and payments for the. project to treat the subject 'land as eligi- · hie for grant. It was part of Ms. Orcheson's function in these matters to prepare a memorandum from Mr. Mierzynsld to the Director of the Financial and Capital Management Branch requesting payment in accordance with the statement of COsts and payments which would be attached to it. The last paragraph of memo- randa she prepared with respect to projects in which she was involved ordinarily ~ stated that "if you have any questions, please do not hesitate to contact Lorna Orcheson CMA." After Mr. Brink directed her to do so, Ms. Orcheson prepared the statement of costs and payments for the MaxvilIe project on the basis that all of the lands were eligible for grant, but altered the standard_ covering memo so that the last paragraph referred questions to Mr.' Brink rather than to her. She said she did this because she could not have .explained the change in treatment of the subject lands. During cross-examination Ms. Orcheson was shown a memorandum to Mr. Brink from Ken Adams in his new capacity as Acting Manager'for NW/NE & SE Regions, supporting the argUment that all of the lands in question were sub- . ~ ject to grant and requesting that he agree and instruct Ms. Orcheson accordingly. The memorandum bears the initials of Mr. Brown, the Ministry Engineer in- volved in this project. Ms. Orcheson said she had not seen this memorandum be- fore the hearing. She Said that had she known Mr. Adams was in agreement with the eligibility of the lands, it."would not have been a problem." She questioned, however, whether the memorandum was legitimate, on the basis that other memoranda prepared by Mr. Brown had been signed by him personally and not prepared for signature by others. Encounter With' Willy-Brink Over Reasons For Absences Like others, Ms. Orcheson was required to complete and submit to her immediate supervisor a personal attendance report at the end of each month, representing that she had been in full attendance during the month with the ex- ceptions indicated in the report. The report she 'submitted to Mr. Brink for the month of May 1991 indicated one days' absence: a vacation day taken on May 10, 1991. Mr. Brink compared that information with information available at the reception desk, which indicated to him that Ms. Orcheson had also been absent for a half day on May 6, a full day on May 24 and perhaps also a half day on May 23. Mr. Brink testified that he had not heard from Ms. Orcheson prior to any of those days about a proposed or anticipated absence or a reason for ab- sence. His experience with other employees was that they would check with him as a matter of course and obtain his approval before taking vacation days. In that context he wrote the following memo to Ms. Orcheson: Please review the attached attendance report. My records do not agree with what you have reported to me in terms of vacation days taken during the month of May and for this reason I will not countersign the attendance report until we have clarified thd discrepancies. In order to avoid the potential for disagreements in the future I require the following from you: 1: When advising the Reception [sic] of your whereabouts during the week, send the computer message to me as well, including phone numbers where you can be reached, when conducting business out of the off, ce. 2: Obtain my approval (or my designate) for vacation plamaed, before any vacation days are taken. The above noted two requirements come into effect from the date of this memorandum. Ms. Orcheson responded by returning the attached attendance report to Mr. Brink's office, unaltered and unaccompanied by any explanation. She testi. fled that she did this because she felt the form she had prepared was correct. Al- though she had been absent on days other than the one shown on her sheet, she considered those other absences to be compensating time off earned under the compressed working hours arrangement. There was no form on which to report days taken off for that purpose, she testified. Mr. Brink returned Ms. Orcheson's personal attendance report to her of- rice again, with an attached hand-written note stating that they 'would have to discuss the discrepancy referred to in his earlier memo before he would sign her attendance report. His note asked that she see him to arrange a time for this dis- cussion. When.she did not see him to arrange a time, he went to her. They had a discussion in which she stated that the other times off were compensating time off pursuant to the compressed working hours arrangement. In the course of' the discussion she told him that she did not understand that there was any form to be completed in that connection, that the compressed working hours arrange- ment involved working an additional 20 minutes per day in return for one paid day off for each 19 days so worked, and that up to 2 full days Off could be accu- mulated before being taken off under that arrangement. Each of these assertions was inconsistent with Mr. Brink's understanding of' the compressed working hours arrangement, which was that participants were to work 25 additional minutes per day and could not accumulate earned days. Ms. Orcheson testifi,ed that at this meeting she told Mr. Brink that she would have preferred that he speak to her about the attendance form rather than write a memo. She said she also told Mr. Brink that she no longer wished to be involved in the compressed working hours arrangement. Mr. Brink denies that she said this. Indeed, later that day he wrote the following memo to Ms. Orcheson: As explained by you the discrepancy between my vacation days count and yours as per your attendance record were [sic] one and a half days which you taken [sic] on May 6 (1/2 day) and May 24 (one day) as compensation for compressed work hours. ~ Since you did not had [sic] the courtesy of informing me, before you took the one and a half day in compensation for compressed work hours, it was not possible for me to distinguish these from vacation days. Based on your explanation I have now countersigned the attendance r~eport. · In order to ensure that both of us have the san~e understanding on the~ compressed work hours procedures/rules, I will ensure that you shortly be given ths procedures/rules, which will apply to the compressed work hours from now on. Ms. Orcheson testified that she thought and still thinks this memo confirmed that she had advised Mr. Brink that she would no longer participate in the com- pressed working hours arrangement. .As a result of his conversation with Ms. Orcheson about the compressed working hours arrangement, Mr. Brink asked Mr. Mierzynski to re-circulate cer- tain documentation relating to the compressed working hours arrangement: a document dated April 18, 1988, setting out the details of the compressed working hours arrangement for the Project Engineering Branch and a "tally sheet" for re- cording extra hours worked. This documentation indicates that a day off is earned by working an additional 25 minutes per'day for 19 days, that days off so earned cannot' be accumulated, but must be taken within 2 weeks of being earned, thai 3 days' n0~ice is to be given before taking the day off, and that days taken off are to be recorded in a particular way. Mr. Mierzynski circulated the documents to all staff in the Branch under cover of a memo of June 5, 1991. By..hand-written memo dated June 6, 1991, Ms. Orcheson wrote to Mr. Brink that "this is to inform you that I expect to take tomorrow off' and "for the record my hours should be established at 7:45-4:00. Regarding compressed work hours option I will advise you." As the hours referred to in the latter pas- sage are regttlar working hours without the additional 25 minute increment, Mr. Brink interpreted that comment as a withdrawal from the compressed working hours arrangement, and so informed Ms. Orcheson by memo. Mr. Brink's memo of June 3, i991 directed that Ms. Orcheson obtain his approval for vacation days before they were taken. Ms. Orcheson testified that her practice with previous managers had been to give them a note to indicating that she intended to take a day off for vacation and then take the day without awaiting express approval. She stated in a general way that it appeared Mr. Brink had found this acceptable.prior to the June 3rd memo. She testified that she understood the direction "obtain my approvar'- to mean that she was to inform him of intending absences on vacation, wait for him to appr_ove or disap- prove "within a reasonable time" and treat any f~Iure to respond as approval. Thereafter, Ms. Orcheson informed Mr. Brink by action memo (a handwritten memo on a telephone message sized, pre-printed form) when she intended or ex- Pected to take a day off for vacation. Almost invariably, she would deliver the note at some time on the day immediately preceding the intended absence. Sometimes Mr. Brink saw the note in time to note his approval on it and return it to her. Ou other occasions he did' not see the note until the day of the absence. He found this troubling, 'but did not raise it again as an issue until September Mr. Brink's discussion with her about what he learned from the records maintained at the reception desk prompted 'Ms. Orcheson to visit the reception- ist, Jeannine Caron, on June 5, 1991. Ms. Orcheson testified that in the course of the ensuing discussion about Mr. Brink's use of those records, the receptionist told her that she .did not want to be a policeman and Ms. Orcheson told her she agreed that that was "beYond her job description." Ms. Orcheson said that the discussion was friendly and that she does not ~recall accusing anyone of putting incorrect information on the board at the reception desk. On June 7, 1991, Mr. Brink leah'ned that the receptionist had complained to her supervisor 'that Ms. Orcheson had treated her unpleasantly during this conversation. 'The recep- tionist was not called to testify about this, and we do not treat Mr. Brink's recital of this report as proving the truth of its contents. The fact that Mr. Brink re- ceived the report is relevant on/y as the context in which he gave the following direction to Ms. Orcheson in a memorandum dated June 7, 1991: I also hereby direct you to mark on the board your whereabouts yourself from now on and not rely on this service by others such as Jeannine or myself and then accuse them later .of putting on the wrong information. Today I had to mark the board for ~you as you had not marked on the board that you were off on vacation today. This is your responsibility. Ms. Orcheson's response to this and the earlier instruction about informing Mr. Brink by e-mail was to continue to give Mr. Brink hand-written memos con- corning her intended absences and provide photocopies of those notes to the re- ceptionist, leaving it to the receptionist to marl~' the board. "No Comment" Response to Mr. Brink's Course Evaluation Request During May 19.91, Ms. Orcheson had attended two software training courses given by the Ministry: 'an advanced WordPerfect course on'May 16 and 17 and an advanced Lotus course given on May 30 and 31. The Ministr~ has a standard form course attendance repo~ form. The form instructs that the em- ployee is to complete the form and forward it to the employee's manager within 10 working days of attendance at a course. It is apparent on its face that the form was intended for use with respect to courses provided by the Ministry as well as courses provided by third party providers. On June 7, 1991, Mr. Brink left copies o£ these forms .on Ms. Orcheson's desk together with a hand-written note which said Could you please-fill out these forms for the last 2 courses you attended · recently. Especially your feedback on WordPerfect advanced course is appreciated. ' · Ms. Orcheson returned the forms on Monday June 10, 1991, having written "very interesting" on the form. for the advanced Lotus course and "no comment at this time" on the form with respect to the advanced WordPerfect course. Ms. Orcheson testified that she had not previously been asked to frll out course evaluation forms for courses given by the Ministry. She said she did not want to be part of criticizing anyone e!se~s efforts or being criticized by or causing controversy with Mr. Brink. She said there was an expectation that a Crown cor- potation would soon be createcl that would take over the functions of the Branch, and that she and others were concerned about who would be selected to be em- ployed by the C~own corporation in continuing to perform those functions. She stated that she gave "no comment" responses to management's questions or communications on this and other occasions because she wanted to avoid contro- versy in order to enhance her prospect of being selected to work in the Crown corporation. She testified that she added the phrase "at this time" because she was prepared to provide her viewz after she knew whether she had been selected to work in the Crown corporation. There is no evidence that she ever gave any member of management this, or any, explanation for her many "no comment at · this time" responses to management questions and communications. Mr. Mierzynski Expresses Concern, Again Mr. Brink was troubled by this "no comment" response to what he saw as a reasonable request for her comments on the courses she had taken. He gave a · report to Mr. Mierzynski about these events, as he had on the attendance report matter. Mr. Mierzynski then sent Ms. Orcheson the~following confidential memo- randum dated June 11, 199'1: I have been advised by your supervisor that he has had considerable difficulty in maintaining a normal, and expected working relation [sic] with you as an employee in his section. - 22 - It has been apparent for some time now that you continually avoid communication with your supervisor as well as other staff in this Branch. You seem to prefer working in isolation as exhibited by closeting yourself behind closed doors when in the office. Most recently your supervisor questioned your May, 1991 attendance record ' which you initially ignored by simply returning the record, (minus the note) with this question had, of course, no response to the question. Earlier this year, your performance evaluation was completed, which bi' the way, estabhshed certain targets for'work output which are now due for further evaluation. I am concerned that your working relationship with others in the Branch and general attitude to this work environment is deteriorating over time. This is not a very satisfactory situation for you or this Branch. if you require any support from management to improve the work situation, it is available. Naturally any working relationship is a two-way street and a resolution of an apparent problem has to be mutually supported. Should you wish to discuss, on-going problems with me, in confiden6e, I am prepared to do so. If not, working relationship including regular reporting, performance review and other job requirements will, of necessity, have to be mandated. Ms. Orcheson did not take up the invitation to meet with Mr. Mierzynski, and did not otherwise respond to this memorandum. Ms. Orcheson testified that she chose not to meet with Mr. Mierzynski because of the position he had taken on the carbon copy issue in November of 1990 and the comment she said he made at that time to the effect that she did not belong in the Branch. Town of Perth -- Dispute About Allowable In-House Engineering Costs In the afternoon of June 1 I, 199 I, Mr. Brink asked Ms. Orcheson to at- tend a meeting the following day at 10:00 a.m.' The purpose of the meeting was to deal with an issue which had arisen in mid May, when Mr. Brink received a letterfrom the Town of Perth. That letter complained that the grant paid to the. Town with respect to a sewer project made insufficient allowance for its in-house engineering costs. The letter noted that only 5% of actual construction cost had been allowed for construction inspection and that the combined allOWance for construction inspection and pre-engineering consultants amounted t~o 9.9% of the A . actual construction cost. The Town asked that consklerat~on be given to allowing 'for these items an amount equal to 12% of'ti~e actual construction costs. When he received the letter,. Mr. 'Brink had copied it to Ms. Orcheson un- der cover of a handwritten note asking her to brief him whether the Town's re- quest was reasonable. Her initial response was to prepare a memorandum to "File" which she copied to Mr. Brink. This memorandum asserted that, as a mat- ter of policy, the maximum amount allowable for unsupported in-house design or supervision costs was 12% of the construction cost, of which 7% was for design and 5% Was for supervision. She noted in the memo that the Town's design' costs had been supported by third party invoices, but that its supervision costs we, re unsupported and were therefore allowed on the basis of the 5% factor "in keeping with the policy which prevailed at the time of construction." Mr. Brink also understood that 12% of the construction ~ost was the tra- ditional allowance for in. house engineering costs, bUt he thought that that was broken into 6% for design and 6% for supervision. He decided to meet with Ms. Orcheson and Mr. Miernicki to discuss this, both in the context of Perth's re- .quest and as a general matter. . There is a dispute about what was said in the conversation on the aftek- noon of June 11, 1991, when Mr. Brink asked.Ms. Orcheson to attend a meeting the folloWing day. Ms. Orcheson says that the formality of Mr. Brink's request and the fact that it was more than project related led her to ask him for an agenda. She says that he replied that he would provide such an agenda at 9 a.m. the following morning. Mr. Brink testified that she did not request an agenda. He testified that Ms. Orcheson asked that she be given the Perth file and an op- portunity to familiarize.herself with it before the meeting, and that he agreed to provide the file the following morning and delay the meeting until 10 a.m. Mr. Brink testified that he handed the Perth file to Ms. Orcheson at 9 a.m. on June 12, 1991. Ms Orcheson says Mr. Brink did not arrive at his office until 9:30 a.m., and that when she asked for an agenda he said "just be there." In any event, at that point Ms. Orcheson told Mr. Brink that she would not attend the meeting he had called for 10 a.m. and offered no reason for her refusal. Mr. Brink then prepared and delivered to Ms. Orcheson a memorandum directing that she attend the meeting at 10 a.m. and bring the Perth file with her. ~ Having received the memorandum directing that she do so, Ms. Orcheson attended the meeting Mr. Brink had called for I0 a.m. There wasa discussion of the breakdown of the 12% allowance. Mr. Brink explained that his understand. lng that it was' to be broken down 6% for design cost and 6~% for supervision cost was based on a memorandum prepared by Mr. Mierzynski in January 1991. One of the issues discussed was whether that memorandum was effective with re. spect to projects approved prior to that date. ._ There followed an exchange of memoranda. Ms. Orcheson prepared and delivered to Mr. Brink three memoranda dated June 12, 1991. One concerned the subject of in-house engineering costs. It asserted that Mr. Brink had called into question the reliability of Ms. Orcheson's quotation of policy in her memo of May 22, 1991. It attached a copy of the docu. ment from which she said she quoted. Another of her memoranda to Mr. Brink of that date had attached to it the 2 memoranda from him to her dated June 7, 1991. The body of her memorandum said simply '~our memos dated June 7, 1991, copies attached, contain errors." The third of Ms. Orcheson's 'memoranda of June 12, 1991 had attached to it Mr. Brink's memo of that date directing her to attend the 10 a.m. meeting that morning. The body of her memorandum said "Your memo dated June 12, 1991, copy attached, contains errors." Mr. Brink responded to the two "Contains errors" memoranda with a memo to Ms. Orcheson o£June 13, 1991. That memo noted that she had not indi- cated what the errors were and went 'on to say: I consider my memoranda to you factual and consistent with what took place. If no specific details with respect to the alleged errors are received by June 21, 1991 the content of these memo's tsic] will stand as the record.' In a second memorandum of June 13, 1991, Mr. Brink responded tO the manner in which Ms. Orcheson had completed the course attendance reports: I perceive the comments provided as almost insulting. Certainly the comments "no comment at this time" and "very interesting" are not helping me at all in receiving feedback whether the course is good or not. Feedback from participants helps me in deciding whether staff members, including myseff, could benefit from this course. This memorandum went on to say that he wanted to know what~s~e had gained from the courses, whether in general the Branch should continue to send its staff to these courses, what others specifically could learn from these courses and, in particular, what useful knowledge she had learned which she could use in her .daily work activities. He directed that she provide him with a more detailed re- port no later than June 21, 1991. Ms. Orch~son testified that she believed, and had believed at the time, that the. reason Mr. Brink gave in this memorandum was not the only reason he · wa~ asking for her comments. She felt his objective was to create conflict be- tween her and the branch of the Ministry which provided these courses. She wanted to delay resp°nding. She felt that if she provided a response then,' the "ensuing disagreement" would prejudice her position with the new Crown corpo- ration. In that connection, she saiel she thought Mr. Brink "could easily disagree ., with my view". Once the Crown corporation had been formed and she was in- cluded in it, she said, "I would have discussed all outstanding .matters," She ac- knowledged that she did not tell Mr. Brink that her "no comment" responses were due to this concern about the Crown corporation. She said sh~ ass:umed he would know that she did not want to engage in any arguments at that time. Ms, Orcheson responded to Mr. Brink's memoranda of June 13, 1991 by attaching copies of them to a memorandtun to him which said "Regarding your 2 memos dated June 13, 1991, copies attached, I have no comment at the present time." One of the things Ms. Orcheson said during the discussion of in-house en- gineerihg costs was that, in her view,, the Ministry had earlier made a represen- tation to the Municipality of Metropolitan Toronto (with whom she regularly dealt) was that there would be an allowance for in.hoUSe engineering costs of up to5% for design and up to 7% for supervision without the necessity of supporting documentation. Mr. Brink testified that he was aware of her belief that there had been such a communication but he had never seen a copy of it. In any event, he said, it did not matter what had been said on that earlier occasion: Mr. Mie.rzynski's memorandum of January 30,. 1991 reflected the policy on which the Branch and his section were to act.. As a follow-up to the meeting of June 12, 197!~ Mr. Brink w~ote a memo- randum dated July 29, 1991 to Ms. Orcheson and Mr. Mieraicki on the subject of in-house engineering costs. It stated that he had clarified with Mr. Mierzynski the intent of his memorandum of January 30, 1991, which was that the limits of 6% and 6% for design and field supervision were to be implemented as of its date for all projects undergoing final grant review regardless of the date when the project was started. Mr. Brink's memorandum also stated that this was not for "unsupported" costs. He said that in-house engineering costs would generally have to be supported by adequate records before there could be any grant. He noted that there could' be an exception to the requirement that supporting rec- ords be verified where doing so would be especially time consuming. The memo- randum closed with the observation that "I trust that this clarifies the matter and that final grant reviews will now be conducted in a consistent manner with respect to in. house engineering." Ms. Orcheson responded to this memo with one of her own dated July 30, 1991, which read as follows: Your memo dated July 29, 1991 (copy attached) contains inaccuracies and' ambiguities which I may address at a future time. If you intend to send additional funds to the Town of Perth re Project 03- 0526.02, please advise. Mr. Brink testified that at that point his intention with respect to the Town of Perth matter was' that Ms. Orcheson would deal with it in accordance with the clarified policy described in his memorand~m of July 29, 1991. He interpreted the last sentence of Ms. Orcheson's memo of July 30, 1991 as suggesting that he intended some impropriety in relation to the Town's request, and' he took offenSe at that. Ms. Orcheson's explanation for that sentence is that the Town of Perth had not supplied any supporting documentation with respect to their claim for design costs and, in accordance with the policy described by Mr. Brink in his lat- est memorandum, any approval of unsupported costs would be an exception which he would have to approve. Mr. Brink Begins Performance Assessment Around the beginning of July 1991, Mr. Brink turned his mind to .the question whether Ms. Orcheson was meeting the productivity target set out in the evaluation which had been performed by Mr. K~en Adams. In a/nemorandum to Ms. Orcheson of July 5, 1991, Mr. Brink asked her to provide him with a list of all the projects assigned to her for grant review purposes which remained un- completed at that time, together with certain information co'ncerning each proj- ect. Ms. Orcheson provided a preliminary version of the list on July 8 and a fma~ version on July 23, 1991. - At some point be£ore the end of July, Ms. Orcheson had a discussion with Mr. Brink concerning the matter of work load. She told him of a discussion she recalled having with Mr. Miernicki, Mr. Letman and Mr. Dormer (a former co- ordinator ,of grant reviews), in which the view was expressed that an auditor could be expected to co/nplete 2 projects per week if the projects involved only a si-ngle contract and 1.6 projects per week if the projects involved multiple co? tracts. Mr. Brink expressed a different conclusion, in the memo he wrote to Ms. Orcheson on August 1, 1991 concerning her pending mid-term performance evaluation. That memorandum read as folIowsi On February i, I991 Ken Adams concluded his appraisal of your performance in the preceding one and one half year period. Also a Future Objective, an Action Plan and a Target Date for meeting the Objective were estabhshed at that time. As of March l, 1991 I took 6n the position, of Manager of this Section in an Acting capacity. As you know I have.just completed an extensive analysis of the Grant Review Workload. I provided you with a copy of my memorandum, dated July 30, 199t to George Mierzynski dealing with that issue. Through my analysis I have come to the conclusion that an experienced Project Review Officer should be able to do about 210 projects per year or 1.18 "grant review" working day per grant review. Since you hav,e, been in this position or been doing this type of work for some time, I must assume that you should be "experienced". I am therefore of the opinion that the target estabhshed in your last performance appraisal of 30 grant reviews for the period February 1, 1991 to April 80, 1991, i.e. 30 grant reviews in a three months period, is not an overly ambitious target. My review of your output over the last six months reveals that you have · completed a total of 25 grant reviews over a six months period.. Projecting this output over a year would mean that you are performing at about 25% efficiency level. It is not only well below the target established in the performance appraisal, but also does not come close to what'I have assessed an experienced person in your position should be able to accomplish. I must therefore conclude that you are not doing.an a.cceptable job.' With the significant increase in workload in the grant review area, I can not tolerate unacceptable performance. Your performance will have to improve. significantly starting immediately. I had hoped to sit down with you and discuss the content of this memorandum with you, but my busy schedule prevented me from given you adequate adv. ance notice for such a meeting during my past seven days in the office. I, therefore, have decided that I will d~ a mid-term evaluation when I return from my vacation in the Netherlands. I will keep the mornings of September 4, September 10 and September I1 open for this purpose. Please advise me by no later than August 23, which of the three suggested dates is preferred by you. On a lighter note, I challenge you to start making use of ~he laser printer, connected to the network. The final grant review memoranda and attachments, which you prepare, will have a much more professional look to it when done on the laser printer. With the knowledge you .gained in the Wordperfect Advance course, you recently attended, adapting your documents from one printer to another will be easily mastered. My own experience with the laser printer on the network over the last three months has been extremely positive. August 1, 1991 was Mr. Brink's'last day at work before departing on ~ 8 week vacation. On July 31, 1991 Mr. Brink wrote a memorandum to Mr. Mier- zynski with copies to his section staff and others in the Branch, indicating that Mr. Miernicki' and Mr. Fani would be Acting Acting Manager in the first and third weeks of his vacation, respectively. 'Under the heading "Section duties will be discharged as follows", Mr. Brink put Ms. Orcheson's name beside the words "Grant Review Issues." Ms. Orcheson apparently received these two memoranda after Mr. Brink's departure: Ms. Orcheson responded to the memorandum about her pending mid- term performance evaluation with a memo which said "Your memo dated August 1, 1991 (copy attached) contains inaccuracies for which I have' no comment at the present time.~ Ms. Orcheson's explanation for this is that she did not war~t to carry on a disagreement with her supervisor in writing. She responded.to the va- cation memorandum with a memorandum to Mr. Brink (who was then on vaca- tion) saying tha~ she presumed that the section duties referred to as "Grant Re- view .Issues" were those detailed in her position description, and that Mr. Ramsden would be acting' manager during the second week of his vacation. She testified that she made the observation about Mr. Ramsden because she considered that Mr. Mierzynski's memo of June 11, 1991 required her to adhere to a regular reporting relationship. Friction With Jason Fani On August 23, 1991, while Mr. Fani was filling in for Mt. Brink, Ms. Orcheson left a note for him which said "I'm at MTO 1201 Wilscax and will be there for several days:" Mr. Fani responded with a l~andwritten note which said: Thank you for the note indicating that you will be away for several days. It is however not clear as to how many days or which part of MTO you will be Isle]. It is also a good idea to sign yourself out (on the board) and indicate where. you are going to be so that your co-workers know where you are in case they have to contact you. Mr. Fani testified that sometime after he delivered this note, Ms. Orcheson came to his office and said to him something to the effect that he had a long way to go before he could write a memo like that. He also attested to the accuracy of this account (set out in his memo to Mr. Brink of S~ptember 4, 1991) of an incident Which 'also occurred during his tenure as "Acting" Acting Manager: On Tuesday August 20, 1991 while I was acting as the section manager, , George Mierzynski asked me to brief him on an audited project. After assessing the file, since Lorna Orcheson was the auditor for that project, I approached Lorna and kindly requested her to review this file and brief George. A few minutes later she brought the file and dropped it in my in tray and verbally said "you can find tlie answer in the f~le'. Since I was busy at the time I did not comment. I also assumed that I might be able to fred the answer myself. I'examined the fde the next day and found out that it is best ff she handle it. Iapp. roached her the next day and asked her to brief George directly. She refused and said that since I am the Acting "Acting Manager" and she is now reporting to me, it is my duty to talk to George. I told her that George is our director and we all report to him, she insisted that she is going Strictly by the book and that she only reports to the immediate manager and it manager's responsibility to report to the director. In summary, I found Lorna's attitude unpleasant, very hard to tolerate and it is very difficult to work with her. Mr. Fani'z account of these events was uncontradicted. Mr. Brink's Instructions About the Perth Claim and Office Procedures On September 6, 1991, Mr. Brink wrote memoranda to Ms. Orcheson on two of the subjects which had been canvassed in earlier communications. One was on the subject of the Perth engineering costs: RE: IN-HOUSE ENGINEERING COSTS- DIRECT GRANT PROJECTS In my memorandum, dated July 29, 1991 I clarified how in-house engineering costs should be treated with respect to final grant reviews. ' At the same time by "yellow sticker" I requested you to review again the already completed final grant review of Perth (Pumping Station and' Sanitary Trunk) in hght of the July 29, 1991 "clarification" memo. In your July 30, 1991 [sic] you wrote: "Your memo dated July 29, 1991 (copy attached) contains inaccuracies and ambiguities which i may address at a future time. ~ If you intend to send additional funds to the Town of Perth re project 03. 0626-02, please advise." I am perturbed by the content of your memorandum for the.following reasons~ 1: My July 29, 1991 memorandum was to clarify how in~house engineering costs were to be dealt with for final grant reviews done since January 30, 1991. My goal was to ensure consistency between reviews regardless of who would bb performing the review. If there are "inaccuracies and ambiguities" then it is up to you to point these out to me in order that I can be more precise in my clarification. 2: It is not my intention "to send more money to the Town of Perth" just on a whim. Perth did send in a letter requesting that we reconsider the assessment of "engineering costs" for this project. While dealing with' the Town of Perth's request, I discovered some discrepancies in the assessment of "in-house engineering costs" for £mal grant reviews. To ensure a common approach for final grant review, I called the June 12 meeting and subsequently issued my memorandum, dated July 29, 1991. It is now up to you, as the staff person involved in the final grant review for the Perth project, to identify in view of the July 29, 1991 memo whether any adjustments are to be made. I have already been contacted by Perth. They have waited long for a reply. We are not providing them with the service they should expect. In summary I direct you hereby to make your re-assessment of the Perth project and present your findings with explanation to me before noon, September 11, 1991. If you can not accomplish this task because of "inaccuracies or ambiguities" in my July 29, 1991 memo then I require that you identify these in writing to me no later then noon, September I1, 1991. Mr. Brink's other 'memorandum to Ms. Orcheson of September 6, 1991 was on the subject of office procedures: RE: OFFICE PROCEDURES In my memoranda, dated June 3 and June 7, 1991, I gave You instructions regarding obtaining approval for planned vacation days prior to going on vacation. I also instructed you to advise me and the reception of your whereabouts, including phone number where you can be reached, when. conducting business out of the office and mark this information on the "board by the reception area" yourself. I had not instructed you earlier of these requirements as I was of the opinion that such office procedures are standard and do not require special attention on the part of an incoming manager. It is sad that you can not fulfil completely ~ these not very onerous requirements. I am referring here specifically to three incidents: . August 28, 1991: You advised Jason (my designate) that you would be at MTO, 1201 Wilson Ave. A phone number, where you could be reached was not provided. Based on the note from Jason to you, you did not sign out on the board; August 30t 1991: You advised me: "1'11 be on vacation this afternoon" and put this note on my desk in the late morning hours. Hardly time for me to approve you taking off that afternoon. The receptionist was not advised and you did not sign yourself out on the board. I did that on your behalf. September 6. 1991: .You advised me: "I'll be on vacation tomorrow (Sept 6)" and put this note on my desk late September 5, 1991. Again hardly enough time for me to approve or disapprove you taking off the Friday. You did inform our receptionist but did not mark on the board that you would be on vacation' Friday, September 6. Again, I did this on your behalf. Your current attitude to these normal and 'certainly not onerous office procedures has to change drastically. 1 will be discussing my expectations with you as part of the mid-term performance, evaluation, scheduled for Tuesday September 10, 1991 in my office at 9.30 a.m. I am almost sure that, as matter of routine, you will want to reply to me by memorandum saying that my memorandum contains errors and/or inaccuracies. May be you can consider bringing it up in our discussions on Tuesday morning rather than waste paper on what appears to me a useless exercise. Performance Evaluation Meeting September 10, 1991 On the morning of September 10, 1991, Mr. Brink met with Ms. Orcheson for the previously scheduled mid-term performance evaluation meeting. Near the beginning of the meeting he handed her the following agenda: MID.TERM PERFORMANCE EVALUATION I: Communication 2: Office Procedures Signing in/out; . Vacation days; - Assignments out ot~office; Feedback from courses.; Computer use 3: Normal Working Relationship Errors/Inaccuracies June 12, 199I meeting ' Attitude to other staff (Jeannine & Jason) Not signing up for First Aid Course Refusal to brief George ,~ Perth project 4: Work Output Reasons why below expected level September 10, 1991 C.W. Brink Ms. Orcheson complained that she had not had time. to prepare~ for the meeting. Her attitude about this appears in notes she claims to have made about the meeting shortly after it took place. Those notes include the follow_lng: Regarding the agenda. I said I have nothing prepared to say since I had not been given the agenda beforehand. We had gone through this exercise before regarding another meeting so that WB knew full well the terms and conditions of my involvement in these meetings. Ms. Orcheson also objected to Mr. Brink's use of the term "mid-term per~ formance evaluation," apparently on the basis that she had not signed the docu- ment prepared by Mr. Adams earlier in the year. In a memo he later wrote to Ms. Orcheson to recapitulate his view of that meeting, Mr. Brink noted that at · this point in the meeting: Since we could not reach' consensus on this issue after some discussion, I proceeded with what I considered to be a mid-term performance evaluation meeting, whereas you considered it just a meeting. Ms. Orcheson testified that Mr. Brink at one point used the phrase "discussion of stuff' to describe the meeting, so she had later responded to what she considered a digression from the agenda by suggesting that they also discuss her carPeting 'and the plants in her office. On the subject of "communication," Mr. Brink told Ms. Orcheson that he thought their communication was poor, and that .he wanted suggestions from her as to ways in which it could be improved. He testified that she would not offer a deadline by which she would notify him of suggestions for.improvement. He de- nied that he refused to meet to discuss improvement in communication. Ms, Orcheson testified that he did refuse~ While her notes of the ~meeting also suggest that he refused to meet on that subject, they go on to record that "I found it difficult to establish a date by which I could discuss improvements." On the subject of office procedures, Mr~ Brink reiterated that Ms. Orche- son was responsible for signing in and out at board in the reception areg, arid that she had to get his approval before taking any vacation days. His memo tO her of September 20, 1991 records the following elaboration on the latter theme: Giving mc, repeatedly less than one/two day notice, is not acceptable, even when taking only one vacation day. Although not mentioned in Mr. Brink's memo of September 20, 199 i, it is apparent from Ms. Orcheson's notes that the topic of "assignments out of office"' was also addressed. She testified that she said she would continue to inform Mr. Brink of her work locations and phone numbers. On the topic of "feedback from courses", Mr. Brink reiterated that her comments on the course forms in June were not helpful and that her failure to provide a more specific feedb~ack in response to his memorandum of June 13, 1991 was unacceptable. The topic of "computer use" had to do With Mr. Brink's desire that Ms. Orcheson make us'e of the laser printer attached to the office network for her communications, rather than the dot-matrix printer located in her office. This was the topic to which Ms. Orcheson responded, she testified, by suggesting that they discuss her carpeting and plants, because she felt .he had strayed from his agenda. Mr. Brink's memorandum of September 20 records 'his version of what happened next at the meeting of September i0, 1991: 3: NORMAL WORKINGRELATIONSHIP I expressed as my wish that ff you have any problems with the content of memoranda from me to you, that you point out these errors/inaccuracies in your return memorandum. Upon your question why I write these memoranda I. replied that I may have to refer to these at some point in time in the future. The meeting then rapidly deteriorated with you accusing me of "Gestapo tactics". My reply to you was that I am quite sensitive to such accusations as I. Was under German occupation forces. You then stood up, handed me two memoranda, both dated September 9, 1991, attached fi) this memorandum and walked out of the meeting at 10.40 · a.m. While leaving you stated that you consider your performance to be adequate. Ms. Orcheson denies having used the term "Gestapo tactics." Her testi: mony is that she said "What kind of kangaroo court tactics are these," and that this was with reference to Mr. Adams' having finalized the previous evaluation and filed it with the Human Resources Branch without giving her an opportunity to discuss it or sign it. She denied using the word "Gestapo", saying that Mr. Brink's objection to references to the Gestapo came "out of left field." She re- calls he then said "this is going to come down to winning and losing and you are on'the lOSing side, mai/e no mistake about it." ~Ms. Oreheson testified that she " found this remark derogatory and insulting and, having.earlier told Mr. Brin~k that she would leave if he insulted her again, she left. Notes which Ms. Orcheson says she made after the meeting record the following: At the end of the conversation he Said that this 'was a mid-term per[ evaluation. The one [done] by KBA was placed on file unsigned. If I didfft sign it how do you know I saw it, what kind of tactics are these. He responded that he didn't like these references to the Gestapo. He was under occupation. I asked him what he learned but I didfft get to complete the question when he launched into my loosing [sic] ultimately, who will be believed, I will be on the loosing [sic] side. This is a win/loss situation. I'll be the [loser]. Told me he wrote memos to defend himseff, to build a case. There seemed to be no point in continuing this insulting meeting. I returned to his office within minutes with a memo. He unlocked his office door. I said I considered my performance completely satisfactory. He announced that he does not consider it satisfactory,.I will get a memo to that effect, said this in hall in front of Jennifer and Jason. The memoranda which Ms. Orcheson gave ~Mr. Brink at or shortly after the end of the meeting of September 10 were two memoranda dated Septem- ber 9, 1991 responding to Mr. Brink's two memoranda of September 6, 1991. Her response to Mr. Brink's memo of September 6, 1991 on "office procedures" read as follows: You or your designate have been notified of my planned.leave of absence in advance. You have also been informed of 'my work locations including telephone numbers, Any statments [sic] in your memo dated September 6, 1991 (copy attached) which attempt to assert otherwise are incorrect. Her response to the memorandum with respect to the Town of Perth claim said: My audit/review of the above-noted project was ~ompleted on March 26, 1991. If you intend to send the Town of Perth a~ditional funds, please advise. The concerns regarding in-house engineering have been presented to you recently on several occasions. Ms. Orcheson testified that her intent in writing this memorandum was to rec- ommend that he pay the roughly $700 in issue without requiring that ~hey be supported by documentation, but she did not want to say that in the memo.. · Having had no ~other response to his memorandum~of September 6, 1991 on the Town of Perth matter, in the afternoon of September 11, 1991 Mr. Brink wrote the following memorandum to Ms. Orcheson: In my memorandum, dated September 6, 1991 I directed you to make a re- assessment of the Perth project and present your findings with explanation to me before noon, September 11, 1991. I further mentioned in the same memorandum that ff you could not accomplish this task because of "inaccuracies or ambiguities" in my July 29, memorandum, which dealt with *'In-house Engineering Costs", you identify these in writing to me no later then noon, September 11, 1991. The only item I have received~before the indicated deadline is your memo, dated September 9, 1991, which neither presents your findings on the Perth project, nor identifies any inaccuracies or ambiguities in my July 29 memorandum. You ~lso stated in your September 9, 1991 memorandum to me the following: "The concerns regarding in-house engineering have been presented to you recently on several occasions." This statement is totally erroneous as I have not received'from you any explanation/concern on this topic' since I provided you with my memo, dated July 29, 1991 in which I clarified how in.house engineering costs should be treated with respect to final grant reviews. I conclude therefore that you are failing m perform yoUr duty With respect to the Perth project and I direct you hereby to rectify this immediately. Ms. Orcheson then contacted the Town of Perth to arrange for a further audit on this issue, and delivered the following hand-written note to Mr. Brink on September 12, 1991: Town has agreed to revise final costs. This statement will supersede their letter dated May 17 '91 as the nature of their claim has changed. Her note went on to say: I may be on vacation leave tomorrow. Mr. Brink did not receive this in time to discuss it.'~ith her on September 12. Al- though she did not sign out on the board by the reception desk, Ms. Orcheson was absent from work on Friday, September 13, 199 I. Ms. Orcheson acknowledged in cross-examination that she did not change her approach to the matters addressed'in Mr. Brink's "office procedures" memo of September 6, 1991 after receiving that memo. The First Aid Course Discussions One of the agenda topics not reached in the meeting of September 1991 before Ms. Orcheson walked out was the matter of Ms. Orcheson's atten- dance at a First Aid course. In July 1991, the Ministry introduced a requirement that all staff members using Ministry vehicles must hold a valid First Aid Cer- tificate. Ministry employees at Ms. Orcheson's work location were offered the op- portunity to attend the appropriate First Aid course on August 27 or 28 or Sep-~ tember 18 or 19. This offer was circulated to Ms. Orcheson and six others (including Mr. Brink), with a request that they indicate their preference as to course date. When Ms. Orcheson received this list she passed it on without sign- lng up for the any of the course dates. She testified that she did that because there was attached material to read and she did not have· time to read it. She~ claims she thought it Would come back to her, but says it did not. In the result, her name did not appear on the list of attendees for any of the four course dates. That is what had prompted Mr.' Brink's interest in the matter and his inclusion of that item on the agenda for the meeting of September, .1991. It is common ground that Mr. Brink went to Ms. Orcheson's office on the morning of September 16, 1991, informed her that a spot had come open in the First Aid course for September 19, 1991 and asked her whether she would attend the course on that date. According to Mr. Brink, Ms. Orcheson said she would think about it, and he left it at that at that'point. Ms~ Orcheson testified that she had by this time arranged through someone else in the Ministry to attend a First Aid course on September 17, 1991. She says that when Mr. Brink asked whether she could attend the course on September 19 he also told her that he had can. celled her planned attendance at this September 17 course. She says her reply to his question about attending On the September 19 ~was that she hid a vacation day planned for that day. Mr. Brink denies ever knowing anything about a planned attendance at a course on September 17, and says Ms. Orcheson did not say she had a firm plan to take a vacation day when he spoke to her on Septem- ber 16. By the end of the day on September 16, Mr. Brink was tired of awaiting £or Ms. Orcheson to say whether she would attend the First Aid course on Sep- tember 19. He wrote her a memo directing her to attend the course on that date. His memo said that "If you can not make it due to prior commitments, which can not be 'changed, please'discuss this with me." He delivered this along with an- other memo of the same date, which told Ms. Orcheson that he expected her to attend a meeting on the afternoon of September 20, 1991 with him and others'to discuss "a number of issues relating to the final grant review of projects." These two memos would have been in' Ms..OrcheSon's office when she arrived at' work on September 17, 1991. She testified in this connection, as she had at other points in her testimony, that her practice was to delay reading any memoranda she received from Mr. Brink until the end of the day. This was .offered to explain why Ms. Orcheson's first response to' these memoranda dated September 16 was by way of hand-written note delivered in the morning of September 18, 1989. That note said simply "I will be on vacation leave' Sept. 19 + 20." Mr. Brink was then at a First Aid course, as Ms. Orcheson would have known from an atten- dance form posted by the elevator. He first saw her nOte during the lunch hour that day.'He responded with this memorandUm: RE: REQUEST FOR VACATION I have evaluated your request for vacatiOn-leave for September 19 and 20, 1991 which you put on my desk the morning of September 18, 1991. Copy of th~ request is at~ched. You know very well that your request is conflJct)ng with your assignments, i.e. the emergency first aid course of September 19 and the final grant review meeting, which I have set up for Friday afternoon, September 20, I991. You were advised of these assignments in writing by memoranda, dated September 16, 1991. My expectation is that you will be at work on September 19, 1991 and attend the one-day emergency first aid course. Should it occur that you chose not to come in tomorrow, I will ha~e no alternative but to withhold payment for the day. With respect to your vacation-leave request for Friday September 20, 1991~ this is permissible despite the short notice, provided you advise me in writing by 4.00 p.m. today that you can meet with both Andrew, ROss and myself on Tuesday morning, September 24, 1991 6r Friday, September 27,. 1991. If you are available for one of these days, I wilt reschedule the meeting. In the event that you can not make yourself available for the meeting on one' of the suggested days next week or in case you do not advise me of your avaflabihty for one of these days in writing, 1 will expect you at the meeting on Friday afternoon, September 20~ 1991 as originally scheduled. Failure to 'comply will result in the withholding of payment for that day. Ms. Orcheson said that she saw this memo. at the end of the day on Sep- tember 18, 1991. She testified that she had made a commitment to a third party with respect to Septe~nber 19 and could not change her "vacation" plan t'or that day. She said-that the commitment was personal, and refused to answer further questions about what the commitment was,or why it could not be changed. Her -refusal continued even after the Board informed her that her refusal to answer could'support an inference adverse to her claim to a prior unbreakable commit- ment to a third party. Ms. Orcheson's only response to Mr. Brink's memo of September 18 was a hand-written note of the same date which said "Schedule the meeting for Tues- day Sept. 24 '91." She was not at work on September 19, 1991 and did' not attend the First Aid course that day. On September 20, 1991, Mr. Brink prepared the memorandum to which we have referred earlier, setting out his experience of the mid-term evaluation meeting of September 10, 1991. That memorandum concluded with the following "assessment": ASSESSMENT Your conduct at the mid-term performance evaluation meeting was very unsatisfactorily. Your accusations and walking out were uncalled for. Due to your walking out during the meeting we never made it to the most significant part of the mid-term performance evaluation meeting, i.e.~your performance which is significantly below expected level. As I pointed out in my memorandum, dated August 1, 1991 you performance over the las~ six months has been only at about 25% efficiency level. Your. performance has even dropped during the months [sic] of August. I am therefore reviewing the meeting and Will take the appropriate action on several items including mid-term performance evaluation. On September 23, 1991, Ms. Orcheson wrote Mr. Brink a hand-written memo setting out her understanding of "the agenda" for the meet£ng scheduled for the following day, September 24, 1991. Mr. Brink testified that he had not considered that the meeting required a formal agenda and that this was the first time Ms. Orcheson behaved in this way. The Meeting of September 24, 1991 The meeting of September 24, 1991 was concerned with ways of dealing with projects on which the final claim had not been received from the municipal- ity · but which appeared to have been completed. There was a discussion about whenr a grant review Should be treated as "interim" and when as "final.'' There was a concern to have projects deleted from a "blue book" database when they became inactive, and a discussion about whether that could be accomplished by removing from the database projects which might later have to be reinserted in it. Ms. Orcheson opposed this approach, citing the difficulty she felt that employ- ees in the Budget Control Section would have in reinserting a project into the da- tabase after it had been deleted. It was Mr. Brink's understanding that the af- fected staff in the Budget Control Section did not share Ms. Orchesoffs assess- .ment that this Was difficult. Mr. Brink felt Ms. Orcheson was dominating the meeting over this issue, expressing her views on i~ at excessive length. He testi- fied that when he attempted to regain control of the meeting, she walked out. It was put to him in cross-examination that she did this after he said to her "what you're saying is of no value whatsoever." He denied saying that, but acknowl- edged that he might have that what she was saying was "of no value on the topic under discussion." Ms. Orchesoffs testimony was that Mr'. Brink said her com- ments were not worthwhile, she replied that there was no need to be sarcastic, he said "I'll say what I like" and she then walked out. Also on September 24, 1991, Ms. Orcheson prepared a memo to Mr. Brink with reference to his memo of September 20, 1991 COncerning the mid-term per- formance evaluation meeting of September 10, 1991. Her memo Said: Your version of the events of our "discussion of stuff', the term you used to describe the nature of this meeting contains inacctiracies and omissions for which I have nocomment at the present time. During her testimony Ms. Orcheson noted, with reference to a circulation list dated September 24, 1991, that Mr. Brink had not removed her name from the circulation list used in the Section nor otherwiJe altered the list following the mid-term performance evaluation meeting at which he had said he was "building a case." She testified that this "negates" any kind of warning that her employ-. merit was going to be terminated as a result of her behaviour. · ~ -40- Warning About Performance and Conduct- September 27, 1991 Mr. Brink had been keeping Mr. Mierzynski informed of the developments in his dealings with Ms; Orcheson.' On September 27, 1991, Mr. Mierzynski sent this memorandum to M~. Orcheson: RE: WORK PERFORMANCE AND WORKING RELATIONSHIP ~ I have reviewdd the working relationship between yourself and your acting manager, Willy Brink, and I am very concerned about its current state. The stated working relationship has deteriorated to a point where there is very little verbal communication and a disproportionate amount of memoranda being produced on either side. I consider' this situation as very serious and do not condone or accept this type of communication or working relationship amongst my staff. I must address this problem by reviewing your communications style and relate it to your work performance. In a memorandum to you, dated November 23, 1990 I stated clearly that back and forth memoranda writing is an inefficient and ineffective way of communicating, i encouraged you to increase work efficiency through verbal communication. The official performance review of February 1, 1991 also reflects that you work in isolation, which makes communication and rapport difficult with' other staff. To date your style of communications is continuing without any improvements, in fact appears to be deteriorating. Also, in a memorandum to you, dated June 11, 1991 I again highlighted the continually unsatisfactory style of your communications. I offered the opportunity to review with me in confidence any problems that you have which may be affecting working relationships in the office. Your level of performance as noted'in the February 1, 1991 performance appraisal, required improvements. In memoranda to you on August 1 and · September 20, 1991 by your acting manager it was stated that your performance was continuing to be at an unacceptable level. This unacceptable performance level coupled with communication problems can not continue. By copy of this memorandum I am requesting that your acting manager develop an action plan to improve these areas. This plan will involve regular performance reviews and regular meetings between you and your acting manager. I expect that this plan will be jointly developed. However, if there is no constructive input from yourself then this plan will be mandated by your acting manager. If there are no improvements in your unsatisfactory conduct and performance then strict disciplinary action will be formally implemented. Any work place requires co-operation and respect between staff for it to be effective, t anticipate your co-operation in working with staff in developing and improving your working relationship and performance. The work environment should be one where all staff work in a mutually supportive fashion with due co-operation, open communications and reciprocal respect. The same day, Mr. Brink prepared the following memo to Ms. Orcheson: RE: COMMUNICATION During the mid-term performance evaluation meeting, held on September 10, 1991. you ag?ced to give serious thought to ways to improve · communications between us. · To data I have not received any suggestions from you. Could you please provide me with your suggestions by October 3,~ 1991. If ~ there are no suggestions from you, then improvements in communications will be mandated from me. I am anticipating your co-operation in this matter. Ms. Orcheson responded to Mr. Brink's memo with a memo of September 30, 1991 that said "I have no comment at the present time." Also on September 30, 1991, Ms. Orcheson gave Mr. Brink a hand-written note which said "I'll be at St. John's Tuesday Oct. 1 (will phone in tel #)." The reference is to the St. John's. Ambulance organization. Ms. Orclxeson testified that she arranged on her own for a First Aid course given by St. John's Ambu- lance, in order to satisfy the First Aid course requirement for persons .who Wish to drive Ministry vehicles. Mr. Brink testified without c°ntradi~tion that Ms. Orcheson did not speak to him about this before making that arrangement and that he had not given her permission to be absent from work for the purpose of attending Such a course that day. By memorandum dated September 30, 1991, Mr. Brink advised Ms. Or- cheson that her absence on September 19, 1991 would be treated as unauthor- ized leave and that she would lose that day!s pay~ He went on to note that: It should be re-emphasized that requests for vacatior~ must be submitted welt in advance of the date(s) requested. This will allow me the proper notice to organize and plan the work in our area. Any additional instances, where there is no proper notification and where your request has been denied and you take time off, will be treated as unauthorized leave and your pay will be docked accordingly. Ms. Orcheson responded to that memorandum with this one dated October_ 2, 1991: ~ RE: Your memo dated September 30,' 1991 Unauthorized leave September 19, 1991 I received my Emergency First Aid Certificate yesterday. It was obtained to satisfy the requixements regarding users of Ministry vehicles. Because I was excluded from the branch's list of candidates for the First Aid courses held at our offices, an action Contrary to the conten'~ of a memo from our former manager, I discussed with Dave Griffin, Manager of the Fleet, my attendance at the September 17th session. That date was cancelled by you and replaced with September 19th in spite of my comment to you at the time that I could not attend on that day. It was one of my vacation days and " "'you were informed in writing in the normal course on September I8. Acting upon the advice of D. Ellis, Safety Coordinator, I completed the one day course at St John Ambulance to satisfy the requirements. ' The PASS card I formerly used, #0592, providing access to the garage, elevators and doors is no longer valid. I will require a new issue of this card. I am also requesting your approval of my vacation leave on September 19, 1991. At about the same time, Ms. Orcheson delivered to Mr. Brink her personal at- tendance report for the month of September, on which she showed September 1991 as one of four vacation days. Ms. Oreheson 'copied her memo of October 2, 1991 to Mr. Mierzynski, among others. Mr. Mi~rzynski responded by sending this memo of October 1991 to Mr. Brink, with a copy to Ms. Oreheson and the Human Resources Branch: RE: L.C, ORCHESON'S MEMORANDUM TO YOU · DATED OCTOBER 2, 1991 [ have read and assessed the contents .of the above memorandum. There appears [sic] to be two issues which, in reviewing the file, need to be addressed: Issue 1; The First Aid Course It is clear that the arrangement made for L.C. Orcheson's participation on September 19, 1991 were clear and specific. You should not consider any change with respect to the unauthorized leave on that day. Issue 2: First Aid Course · October I. I99I L. C. Orcheson arranged to attend the first aid course at St. John's Ambulance without consultation, notification or approval in advance. This appears to be a wilful disregard of required procedures which do not permit ' an employee to take courses, even mandatory ones, at the employee's whim. I consider this matter bordering on insubordination. Mr. Brink responded to Ms. Orcheson's memorandum of October 2, 199 with the following memorandum dated October 5, 1991: Let me make it very clear that I will not consider any change with respect to the unauthorized leave on September 19, 1991. You made the issue "Defiance of Authority" and you arc responsible for the ou~ome, whether you like the result or not. You also made in your memorandum a nuraber of statements, which have to be refuted: . : · You were not .excluded at all from the branch's list of candidates. I personally handed the circulation list for our section to you on July 29, 1991. You chose to pass it on unsigned to your colleagues in our section; I am not aware of the content of a memorandum from our former manager (I presume you mean Ken Adams), which may have bearing on this issue; I did not cancel the September 17th session date for the simple reason that you had not infolmed me of it. You did not inform me in time that September 19 was a planned vacation day. During the morning of September 16 I asked you whether you could make the First Aid course on September 19~ 1991. Your reply at that time was: "I am thinking about it". Since at the end of the day you had not approach me about it, I decided for you and put it in writing. The memorandum, dated September 16, 1991 was on your desk when you came in on the 17th. You had ample opportunity to t~ll me during the .17th that you had a conflict with attending the First Aid Ms. Orcheson replied to this with a memorandum of October 7, 1991 which said "I have no comment at the present time." She sent a copy of that memo to Mr. Mierzynski. This brings us to the incident of October 28, 1991, the first of the incidents which attracted the two day suspension challenged in this proceeding. TWo Day SUspension The Incident of October 28, 1991 Mr. Brink testified that he went to Ms. Orcheson's office on October 28, 1991 for two purposes. The first was to inform her that during.her absence on vacation the previous Thursday and Friday he had confirmed to the Human 'Re- sources Branch on her behalf that she would be attending on partic~ular dates in November a series of courses for which she had earlier signed up. He had a copy to give her of a form which he had initialled on her behalf in that connection. He also wanted to discuss (again) her adopting, e-mail as a means of informing the reception desk of occasions when she would be absent or working out of the office. In that regard he had prepared examples of the sorts of e-mail messages that might be used, and proposed to show thes~ to Ms. Orcheson. After entering her office, Mr. Brink closed the door because he noticed that her humidifier was going and he expected to be a while. The testimony is in conflict as to what transpired thereafter. Mr. Brink testified that he started by telling Ms. Orcheson that he had signed her up for courses and handing her the sheet which he had initialed for that.purpose. He said she responded by saying '~ou had no right to do that", and then settled down when she realized that these were courses she had signed up for herself. He then turned to' t-he matter of informing reception and the use of e- mail for the purpose. He introduced the subject of using e-mail to'advise recep- tion and handed her the sheet with the example messages. She then stood up,. apparently intending to leave. Up to this point, Mr. Brink says, he was standing in front of her desk. When he saw her rise to leave, he moved to the right to block the passage between the 'side of her desk and a table which held her computer. After he did that she Sat back down, picked up the telephone, dialed a number and started talking about being held in her office against her will. As she was dialing, he said, he "rattled off' what he had to say about the e-mail suggestion and then left. During cross-examination he denied having had any intention to provoke an incident. He denied that she tried to explain her reluctance to use e- mail or sign out on the board by reception. He denied that he cut her off when she attempted to make 'such an explanation. He denied that when he moved to the space between the desk and table he pushed Ms. Orcheson back into her chair. Ms. Orcheson testified that after Mr. Brink closed the door, an action which she found unusual, he moved directly to the narrow passage between her desk and the computer table, thus blocking her exit. He handed her a piece of paper and told her he had signed her up for courses. She replied that she wished he had not done that. There was a further brief discussion about the courses. He then handed her a photocopy of the message she hid left for him on October 22, 1991 with respect to her absences on the October 23, 24 and 25, saying that the poor qual.ity photocopies she was leaving with reception were unacceptable. She said she would make darker copies the next time. 'He replied that 'she should use the sign-out board instead'. She said She had no comment. When he persisted about her using the sign-out board, she stood up from where she had been s!tting behind the desk. She testified that she did that because She thought this was an antagonistic meeting and wanted to excuse herself from it. Ms. Orcheson testified that she pushed her chair back and turned toward the passage-where Mr. Brink was standing and stood up, intending to leave. She turned toward her coffee cup and reached for it. She testified that she may hhve had her eyes. closed at the time and that, in any event, she was not looking at or toward Mr. Brink at this point. She claims there was then some contact between her body and Mr. Brink's. She felt she was being pushed back. She stated that she was pushed in the chest. She said she was not sure what part of Mr. Brink came into contact with her. She thought it was perhaps his chest. Without look- ing toward Mr. Brink again, she reached for the telephone and dialed 911. She said she told the officer who answered that "I'm being held against my will." She said that when she did look up she saw Mr. Brink leave the o/~fice and clap bas · hands in the hall as he walked away. She testified that she told the police officer. that she had been pushed back, and that the police officer told her that that was an assault. In cross-examination Ms. Orcheson said she was sure she used the word "push" at this point in the conversation with the Officer; she did not recall using the word "bumped." She testified that although the officer asked for her name, she declined to give it. She told him she might Call back after consulting with someone. She testified that she 'did call back later and speak to another officer who, she claims, advised her not to pursue the matter. During reply evidence, the employer called an employee of the M~tropoli- tan Toronto Police concerned with the transcription o£ "911" calls. This witness provided a copy of the tape of Ms. Orcheson's conversation on October 28, 1991 with an officer Ryan. The call began Officer: Emergency L.O.: I am being detained in my office against my will, please Bend an officer here. ~ The officer asked for her address and telephone number, and she provided that information. He then asked for her name. She said she wanted to get calm, paused, said she did not know whether she was doing the right thing-and ttxeu said: L. 0.: I tried to leave the office and this fellow who is my supervisor blocked my exit. Officer: OK, now what's your name, may 1 have your name please? L.O.: ' Uh, I'd like to give you my name, I'm not sure I'm doing the right thing, I' ye had so much difficulty here as it is. Officer: Well, you say you're being detained against your will, what does this mean? L.O. Well, I tried to leave the office and he simply blocked my exit from the office ... he, he stood there in front of me so that I couldn't leave ... uh, there's a table and there's a desk and he, Officer: Is there some sort of a dispute ongoing? ~L.O. Oh yes there is. Officer: There is, eh? L.O. Yes, there's harassment here.. Officer: I see. L. 0. So, uh', when I said-that I had no comment and I tried to leave the office so that he wouldn't, he wouldn't, uh, harass me, he just blocked my exit ...he virtually bumped into me and knocked me back Officer: Well, i think we'd better come see you there, get this matter straightened around, right off the bat from what .you told me there's an assault. L.O .... Well, he didn't physically hit me but he certainly bumped into me so that I couldn't leave. Officer: Bumping, bumping still constitutes an assault, and I think before it escalates into anything further we should come around and try and smooth things over. · L.O. Alright, what's your name, can I call you back? The officer then explained that she could call back, but it would not be possible for her to call back and ask for him by name. L.O. Alright ... Officer: If you feel uncomfortable, as you obviously do. L.O. Do I feel uncomfortable? Well, yes,1 certainly do. Officer: I Still think its best, you know, we should come around, see what's going on there. Why are you afraid to have the police attend there, is there a reason you don't want us to go? ~ L.O. Well, you know all they can ..., all I've ever experienced is an escalation of this harassment and, uh, there'll be just reprisals, more and more, until it becomes impossible, well, it's impossible now Officer: Have you reported them to the labour board. L.O. Well, what did I ~do? ... I have, I have 'attempted many times to do sombthing about this situation. : Officer: Well, today's your first step, so, first step in the right direction to get this thing smoothed over. L.O. I'm not quite sure what the right direction is, to be quite honest ' · with'yOu, I've tried-every ... ' Officer: Well, he's acting in this manner that's totally uncalled for... L.O. I know it is Officer: Regardless if it's a verbal dispute or not he's got no right to block your exit, no right to push you, no right; to do anything of this nature ~ L.O. That's right,'I know, I know. Officer: So I think, uh, you know, i~s about time somebody got involved and straightened this matter out ...l mean, its no good for you, working in this kind of environment. L.O. No Officer: And uh, today it was a shove, who knows what tomorrow will bring. L.O. Ya Officer: You know what I mean? L.O. Ya ... well, it was a collision, I mean I stood up to leave and he ju. st, he just...well, he pushed into me, that's right. Thereafter, the officer observed that "he" had no right to act,in the manner she had described. She'agreed, and said it had been "an escalation of the most ridicu- lous nature," but wanted to confer with someone else before taking the step of reporting people to the police, and wanted to calm down before making a deci- sion. The conversation then concluded without Ms. Orcheson's having identified herself to.the officer. With respect to her message to Mr. Brink of October 22, 1991, the one of which she says Mr. Brink accused her of giving reception a poor copy, Ms. Orche- son produced a copy of that message which she said she had received back from Mr. Brink at the time with his approval noted on it. She observed that that copy was darker and more legible than the copy produced by the' employer in the document books prepared for the hearing. 4 In the wake of Ms. Orcheson's attempt to walk out on him as he was speaking to her, Mr. Brink prepared and sent to Ms. Orcheson the following memo dated October 281 1991: RE: UNSATISFACTORY UNCO-OPERATIVE Aq'FITUDE As your manager I am entitled to discuss items With }on, such as office routines, when ] feel discussion is warranted. This morning I entered your office to discuss with you, among other things, my suggestion on how we can better deal with notifying by WP MAIL "Reception" and myself about your work location, when you are conducting business for the Ministry outside of our office location as your current method is not satisfactory. When'we reached.this subject you had apparently had [sic] no intention to listen to me any further, stood up from your desk in order to. leave your office. The fact that your manager was explaining something to you apparently did not ma;ter. I had to block your .way of exit in order that i could at least explain the problem and give you my written example of how I would like you to notify me and "Reception" about "outside work location" as well as how to handle "requests for vacation days". Walking out on anybody is impolite in most circumstances to say the least, walking out when your manager is discussion [sic] 'office related matters with you, borders on insubordination. I wish to point out too that this is not the fucst time th'at you ready yourself to leave your office the moment I enter. A change in your attitude is required forthwith. Mr. Brink sent a copy of this memo to Mr. Mierzynski. Mr. Mierzynski's Questions Mr. Mierzynski testified that at this point he had nothing other than "no comment" responses from Ms. Orcheson to his earlier communications. He was not sure what her agenda was. He found that frustrating. He felt she was avoid- ing communication. He recoUnted an incident in the elevator when he had said. "good morning" to her and she failed to respond, acting as though he did not ex- ist. Based on these experiences and the reports he had been receiving from Mr. Brink, it seemed to him that Ms. Orcheson'was engaged in a conscious effort to be rude and impolite, especially to her manager, Mr. Brink. He could not con- 'done that. Against this background, on October 28, 1991, before 'he received Mr. Brink's memo of that date, he wrote this memo to Ms. Orcheson directing that she answer by November '1, 1991 certain questions which he felt needed to be answered: ~ RE: WORKING RELATIONSHIP - ATTITUDE Since my memorandum to you, dated October 3, 1991, I have.had no communication with you other than your October 7, 1991 memorandum - "! have no comment at the present time". Over the past three ~eeks (and prior to that), I have noticed that you purposely avoid communication with others - in fact, you appear to act as if others don't exist when you occasionally venture out of your office. I do not believe that the people in the Project Engineering Branch are difficult to get along with, nor do I believe that any person in the Branch · attempts to ignore your, as you do them. In essence, therefore, you have virtually no working relationship with anyone in the Branch and your attitude in the workplace cannot be understood, sympathized with, or condoned. I have offered to discuss any problems with you in confidence and to provide any assistance that the organization can provide in order to resolve such problems. You have chosen to disregard this offer. Since your attitude to work has not changed, and since it now appears that you intentionally choose to be "impolite' to your manager, perhaps the Branch should consider a different approach. ~ On the assumption tha~t you do not wish to avail yourself of any assistance to correct an unacceptable work situation, I must consider the following questions and ask you to do the same: 1) Do you wish to continue your employment with the Ministry of the Environment? 2) Do you wish to continue to work in the Project Engineering Branch? 3) Do you realize and accept that performance is directly related to an amicable working relationship with others? 4) Do you realize that your performance and attitude are deteriorating? 5) 'Are you willing to reconsider the assistance offered in order to improve the situation? 6) What do you personally feel is necessary to foster an improve work relationship and, hence, job performance? Please consider the above questions seriously and honestly. I expect a definitive answer to each question by November 1, 1991. In a memo to Mr. Brink dated October 29, 1991 and referencing his merao of October 28, 1991, Ms. Orcheson wrote "I have no comment at the present time." The memo indicates on its face that it was copied to Mr. Mierzynski, Mr. Brad Adams and ¥olanda Chin, the Branch's Administration Manager. Ms. Orcheson testified that she wrote this memo because she wanted to record that she had a differing opinion. In a memo to Mr. Mierzynski dated October 30, 1991 and referencing the memo of October 28, 1991 in which he set out questions he wanted her to answer by November 1, Ms. Orcheson wrote "I have no comment at the present time." The memo indicates on its face that it was copied to Mr. Boyko, Mr. Brad Adams and Mr. Brink. Ms. Orcheson testified that she thought that management wanted to use her answers to her reaction to the questions posed by Mr. Mierzynski's memo of October 28, 1991 to keep her out of the Crown Corporation and that she wanted to get advice about them from a trusted friend. The Incident of October 30, 1991 Mr. Mierzynski testified that he was dismayed to receive Ms. Orcheson's "no comment" response to his memo of October 28, 1991. He made a copy of her memo, and wrote this note at the bottom of it: You are reminded that I expect answers to the my October 28th memorandum by November t, 1991. He went to Ms. Orcheson's office to deliver this reminder to her. She was there. Mr. Mierzynski testified that he attempted to speak to Ms. Orcheson about his concern that she answer his questions by November 1, 1991. He said she re- sponded to this by getting up and walking past him out of hat office, while saying more than once "I have no comment at the present time." He testified that he found this behaviour rude, unprofessional, disconcerting and surprising. In cross- examination, he acknowledged that he may have asked her where she was going, and said he did not dispute the suggestion that her response was that she was going to the baby shower. Ms. Orcheson's version of this event is that Mr. Mierzynski '~ame into her office minutes before a scheduIed "baby shower" held for one of the other employ- ees in the Branch. He asked her what she wao going to do with the questions. She said she did not have any comment at that time, and took a step toward the door. He then asked her where she was going, and she replied that she was going to the baby shower. She says he said nothing in response to this, so she left. She went to the baby shower. Mr. Mierzynski also attended the baby shower, and made a presentation to the employee for whom it ~vas held. During the cross- examination of both Mr. Mierzynski and Mr. Boyko and in the testimony of Ms. Orcheson, much was made of the fact that Mr. Mierzynski's 'attendance in Ms. Orcheson's office had occurred only moments before he was scheduled to make the presentation at the baby shower. Ms. Orcheson did not claim, however, to have known he would be doing this when she left him in her office. Indeed, she testified that she was surprised .to see him at the baby shower. At the end of the day on October 30, 1991, Ms. Orcheson left a hand- written.note for Mr.. Brink indicating that She would be at the offices bf the Mu- nicipality of Metropolitan Toronto on October 31 and would be taking vacation leave on November 1, 1991. Mr. Brink testified that Ms, Orcheson did not sfgn out on the board near the reception desk, as his earlier memoranda had required. · Mr. Brink contacted Ms. Orcheson by telephone on October 31, 1991 to remind her that answers to Mr. Mierzynski's questions were due the following day. He testified that he told her that she had to provide answers by the dead- line and that failure to do so would have serious consequences. He said she re- sponded that she had already given a reply, claimed he was threatening her and asked to be told what the serious consequences would- be, and he answered that he could not be specific. Ms. Orcheson's version of this conversation is that when he told her she had to answer by November 1, she asked why and he refused to sa~,, so she made no comment. Two Day Suspension Imposed Anticipating (correctly) that Ms. Orcheson would not answer his questions by the November I deadline, by memo dated October 31, 1991 Mr. Mierzynski advised Mr.. Clark of the circumstances, asking his advice on a Proposal that Ms. Orcheson be suspended .until she answered his questions, and terminated if she failed to-answer them within two weeks. In the result, he prepared and Mr. Boyko signed this memorandum dated November 4, 1991, which was deliv- ered to Ms. Orcheson: RE: TWO DAY SUSPENSION. INSUBORDINATE BEHAVIOUR The purpos.e of this memorandum is to advise you of a two (2) day suspension from work without .pay for your continuing insubordinate conduct with your Manager and your Director. I have been advised by Mr. Mierzynski, Director o~ the Project Engineering Branch, that on October 30, 1991 during a discussion with him that you walked out of the office very abruptly without any discussion or explanation. I understand that a similar incident occurred with your Manager on October 28, 1991 in your office. I have reviewed the history of this issue and am disappointed with the continuation of your insubordinate conduct. The most recent incident was one in which you walked away from a work-related discussion and also your failure in not responding to your Director's enquiries about your work performance. These are examples of repeated behaviour that will not be tolerated by this Ministry. You have been warned on many occasions in the past that the continuation of this conduct would result in disciplinary action, ina memorandum from · Mr. Mierzynski tp. you on September 27, 1991 you were ad~/ised that "ff there were [sic] no improvements in your unsatisfactory conduct and performance, then strict disciplinary action will be formally implemented", ¥ Therefore, as a result of your continued insubordinate actions and under authority in the Public Service Act, Section 22(2) delegated to me from the Deputy Minister, I am suspending you from work without pay for two (2) days. The suspension will take effect on Wednesday, November 6 and Thursday, November 7, 1991. You will report back to work on Friday, November 8, 1991, I also expect that an answer to Mr. Mierzynskfs October 28, 1991 memorandum will be forthcoming. If there is no answer received by him by Tuesday, November 12, 1991, then additional discipline will occur, At some point in the afternoon on November 5, 1991, Ms. Orcheson taped to her door a handwritten note saying "Suspended for 2 days without pay -- Wednesday, Thursday returning Friday." She was absent on suspension Novem- ber 6 and 7, 1991. In the meantime, however, she had had an encounter on No- vember 4, 1991 which formed part of the basis for her next suspension. live Day Suspension Computer Problems --*Gerry Mros' Encounter With The Griever In mid-morning on November 4, 1991, Ms. Orcheson came to Gerry Mros' office complaiaing that she was having trouble using the.spreadsheet software on her computer. Mr. Mros had been a Systems Officer With the Project Engi- neering Branch since October 1990. It was his function to repair and maintain the computers used in the Branch as well as the network to which they were Connected, and to teach people how to use them. After performing some initial tests on Ms. Orcheson's computer, Mr. Mros tentatively concluded that a portion of the computer's memory was not perform- ing properly. He told her that he thought that was the problem and that other computers in the Branch made 'by the same manufacturer had had similar diffi- culties. In response, Ms. Orcheson expressed disbelief that there could be any difficulty with the computer's memory. Mr. Mros denies having used thc word "flaky" to describe the computer's memory. During the process of investigating and attempting to work around the problem with Ms. Orcheson's computer, Mr. Mros was in and out of her office at least twice that morning. When he returned to her office the second~ time, Ms. Orcheson told Mr. Mros that she had spoken to a sales representative of tile computer's manufacturer, who had told her that the problem he described could not possibly occur. When Mr. Mros brought the necessary tools and started re.- moving the computer's outer case, she' asked whether he should have "qualified service people" do what he was then doing. He replied that he was a qualified service technician, something she then said she had not known. When someone came to Ms. Orcheson's office looking for Mr. Mros and asked for his help, Mr. Mros testified that Ms. Orcheson said "please do, get him out of here." Mr. Mros then put the case back on her computer and said he would continue to fix it after lunch. After lunch Ms. Orche~on came to Mr. Mros' office and told him that the problem was resolved. He asked her how it had been resolved. She replied that that was unimportant, and added that ever since his arrival at the Branch her system had deteriorated. Ms. Orcheson was away on a course that afternoon. Mr. Mros returned to her office that afternoon to investigate the computer problem further, and found that she had locked the .keyboard lock on the computer. This meant that he had to' take steps to defeat th~ lock before he could continue dealing with the prob- lem.' He did that the following day. He ran diagnostics which confirmed that a memory chip was malfunctioning. He continued to work on the problem on No- vember 7, 1991, during Ms. Orcheson's absence on her first suspension.' He re- placed the malfunctioning chip, and ran diagnostics which confirmed that there was no longer a problem with the hardware and that Ms. Orcheson's spreadsheet software would now function properly (although Some of the files earlier created using that software had been corrupted as a result oY the memory chip malfunc- tion.) Mr. Mros restored the computer hardware to a proper operating state but did not reverse certain changes he had made to the software set up, with the re- suit that the shell program used to access e-mail and word processing software on' the network did not start automatically when Ms. Orcheson's computer was turned on. It appears, from the events which followed, that Ms. Orcheson did not know how to start that program herself. As a result/she did not have immediate access to' e-mail or th~' Word processing software when she returned from her suspension on November 8, 1991. Ms. Orcheson testified that during his dealings with her on November 4, 1991 Mr. Mros told her that her computer's memory was corrupted and that high memory was "flaky". She stated that she had never heard the word "flaky" used in connection with computers, and did not think Mr. Mros was being serious. She did not recall his saying that the office had experienced similar problems with other computers by the same manufacturer. She acknowledged that she had locked the computer and had asked Mr. Mros to leave it alone. She did not recall saying "please get him out of here" to a person who came looking for him. She remembered that when she told him the problem was resolved he asked her how she had accessed her spreadsheet software and that she had replied that .it did not matter. She did not recall making a statement to Mr. Mros that her system had deteriorated ever since he came to the Branch. (It is noteworthy that she made a statement to that same effect in a memorandum she later wrote to Mr. Boyko.) She did not recall accusing Mr. Mros of having changed her com- puter somehow from his office. Mr. Mros Sent a memo to Mr. Brink on November 5, 1991 describing, and complaining about, his encounter with Ms. Orcheson the previous day. (Although the memo describes the events as having taken place "today", Mr. Mros testified that the memo was prepared on November 4th, and came to be dated November 5th because it was printed on that day.) In his memo, Mr. Mros complained that he did not-appreciate Ms: Orcheson's attitude and could not work comfortably around her as she constantly questioned., his ability.-He said "please do not let her deal directly with me in the future, if she has a problem she must go through you first." Mr. Brink copied that memo to Ms. Orche~on under cover ~)f ~his memo of November 7, 1991: RE: MEMORANDUM FROM G. MROS, DATED NOVEMBER 5, 1991 I am hereby informing You that I have placed a copy of the attached memorandum from G. Mros, our Systems Administrator.on your file. Based on the content of G. Mros memorandum Isic] you are hereby directed not to deal directly with him, but to clear any problems you have with your computer with me for possible resolution in a timely manner. I regret that I have to take such action since it is not an efficient way of resolving problems you may be experiencing with your computer from time to time. However,! feel that, because of your unpleasant behaviour towards our System Administrator, 1 have no other option. Mr. Brink wrote a second memo of November 7, i991 to Ms. Orcheson, ac- cusing her of having failed to return to her office for the balance of the vcorking day on November 5, 199i, after 'the course she was attending that day finished at 3 p.m. Ms. Orcheson raised this during her testimony. She testified that Mr. Brink.did not ask her about this before writing the memo. She said she had left the building after the course finished in order to check whether the tires on her car (which was parked on the street) had been chalked, and returned after 5 or i0 minutes. More Computer Problems By her account, Ms. Orcheson's difficulty accessing e-mail and word proc- essing sof~ware on the.network continued until November 27 or 28, !991. On No- vember 8, 1991, Ms. Orcheson wrote.to Mr. Boyko with respect to the memoran- dtun of November 4, 1991 which imposed the two day suspension, saying: I fully expect to comment on your letter at some point in the future but for the present, please accept that I have no comment at this time. I would have used my computer to produce this memo; however, the apphcation program which I use for letter writing is inaccessible to me. The errors of form are · due to a lack of experience with a manual typewriter. This memorandum was copied to Mr. Brink and to Mr. Sanders, the person to whom Mr. Mros reported. Also on November 8, 1991, Ms. Orcheson delivered a hand.written note to reception stating that "the E-mail is inaccessible to me. 'Please issue manual messages." She copied that note to Mr. Sanders but not to Mr. Brink. These and other such communications received by Mr. Sanders prompted him to ask Mr. Mros to investigate Ms. OrCheson's computer problems further. ~ On November 18, 1991, Ms. Orcheson wrote a memo to Mr. Brink with re- spect to his memo of November 7, 1991 concerning the encounter with Mr. Mros. Her memo said: 56 Your memo and attached correspondence from G. Mros contains inaccuracies for which I'have no comment at the present time. I would have responded earlier; however~ my application programs were inaccessible ~o me. She wrote a similar memo about his other memo of November 7 alleging · early departure November 5. It is apparent that both of her memoranda of No- vember 18, 1991 were prepared using the word proces.sing program. Tl~at same day, despite Mr. Brink's instruction that she clear computer problems with him, Ms. Orches0n sent a handwritten note to Mr. Sanders saying "I cannot access my application programs or e-mail." Mr. Brink became aware of this when Mr. Sanders gave him a copy of the note. Mr. Brink went and examined Ms. Orcheson's computer on November 19, 1991. He found he could start the spreadsheet, word processing and e-mail soft- ware. He then sent her an e-mail message explaining to her how she could do that as well. Mr. Mros also investigated Ms. Oreheson's computer on Novem- ber 19, 1991, and reported (and testified) that he encountered no difficulty ac- cessing applications on either the local drive or the network. On November 27, 1991, Ms. Orcheson spent most of the day at a type- writer preparing various memoranda in which she made reference to the inac- cessibility .of her application programs, contemporaneous records produced by the e-mail System indicate that Ms. Orcheson did access her e-mail on Novem- ber 28, 1991, when she picked up Mr. Brink's E-mail to her of November 19., · Incident of November 8, 1991 (Town of lnnisfil -- Minister's Letter) Ms. Orche~on returned from her two day suspension on November 8, 1991. Mr. Brink went to her office early that morning. He had been, asked to prepare a' letter for the Minister's signature with respect to a project of the Town of Innisf~l. Ms. Orcheson had done the grant review for that project, and Mr. Brink had some questions to ask her about it. When he entered her office to ask those questions she got up and left without saying anything. Mr. Brink made no at- tempt to block her exiti .She returned to her office again shortly thereafter. He then asked that she come to his office to' discuss the Innisfil final grant review. She picked up her coat and left her office without responding. MsJOrcheson testified that this was the first time Mr. Brink had come into her office since the incident of October 28, 199 I. She said her first departure from the office had been to go to the supply cabinet, and the second departure was out of concern that he would repeat his behaviour of October 28, 1991. She testified that as she leftl Mr. Brink yelled at her that she waslbeing impertinent. Mr. Brink denies that he did that. Later that day Mr. Brink prepared and delivered to Mr. Mierzynski a memo describing what had happened that morning when he went to Ms. Orcheson's office "to discuss with her my draft response for a Minister's let- ter regarding the Innisfil sewage works plant." He delivered a copy of that memo to Ms. Orcheson. In a hand-written memo.of November 8, 1991 to Mr. Brink, re- ferring to his memo of that date to Mr. Mierzynski, Ms. Orcheson wrote: "I have no comment at the present time." (One of the several persons to whom Ms. Orcheson copied that memo was Mr. Sanders. Beside his name she wrote "Please note manual preparation,, application program unaccessible [sic] to me." It is not apparent whether that notation appeared on the copy delivered, to Mr. Brink.) Ms. Orcheson. testified that Mr. Brink's memo of November 8, !991 to Mr. Mierzynski was the first notice she had that.a draft Minister's letter was needed. She felt it was her responsibility as auditor of the Project to draft any such' letter. On November 12, 1991 she went to see John Carter, the Ministry engineer responsible for that project, to discuss it. He told her that he thought that Mr. Brink intended to draft the letter. Ms. Orcheson testified that on November 13, 1991' she had a meeting in the hall with Mr. Brink, in which she told hi~m she thought that drafting 'the Minister's letter was her responsibility. She said he told her that he intended to draft the letter. She testified that she accepted this, and offered Mr. Brink a handwritten draft she had prepared. Mr. Brink denies having been offered a draft. Ms. Orcheson wrote the following handwritten note about the Town of Innisfil project to Mr. Carter: I intend to draft the Ministerial response to the Town's letter dated October 24, 1991 today. I would like to discuss the draft with you; I will call you to arrange a time. Thank you for your cooperation. The note is dated November i3, I99I. Ms. Orcheson testified that she wrote this before her alleged meeting with Mr. Brink in the hall. Mr. Brink testified that he received a copy of it from Ms. Orcheson with a postscript to him saying that "i am at East York toda? Mr. O~cheson testified that she was at East York on No- vember 13 and 14. Mr. Brink testified that he received the note on November 'l~ 4, 1991. Incident of November 14, 1991 (Town of Innisfil -- Minister's Letter) Mr. Brink contacted Ms. Orcheson by telephone at East York on the morning Of November: 14f 1991, and direCted her to attend in his office the follow- ing day, Friday, November 15, 199I at 9 a.m. to discuss the proposed Minister's response to the Township of Innisfil letter. He told her that he had questions which she might be able to clarify. Ms. Orcheson testified that she then asked him what the questions were, and that he refused to say. She also testified that she told him she had a draft letter prepared, that she offered to give him the draft and that he said he did not 'want it. In his testimony, Mr. Brink denied that she told.him that she had prepared a draft and he denied saying that he was not interested in any draft she had prepared. Following this conversation, Mr. Brink prepared a memorandum to Ms. Orcheson confirming his instruction that she meet with him the following' morning and indicating that failure to attend would result in disciplinary action. He faxed that memorandum to Ms. Orcheson at East York's offices. Later that morning, Ms. Ordheson left a telephone message for him saying "The draft Will be given to you. I will not attend the meeting tomorrow morning." About 20 min- utes later she left another telephone message saying he should ignore the previ-~ ous message. This .was followed by a hand-written fax from Ms. Orcheson to Mr. Brink concerning the memo he had faxed to her earlier that morning. Her fax said: · As you indicated in your memo, you will ~eceive a copy of this correspondence for your review according to existing procedures. If you have any questions concerning this project or the draft response, I suggest that you outline them in a memo to me which I will endeavour to As you were out of the office when I attempted to telephone this response, I am sending it by fax today. I will be.on vacation this afternoon and at Metro tomorrow. I reserve the right to make additional comment in future (unrelated to tnnisfil projec0. Mr. Brink testified without contradiction that this was the first he had been told of any vacation plan she had for that afternoon or of any plan she had to attend at the offices of the' Municipality of Metropolitan Toronto the following day. · - Ms. Orcheson testified that she did not wish to attend the meeting called by Mr. Brink because she did not have the time to arrange to have a third Party ~tt- tend with her. She does not claim to have told Mr. Brink that this was the reason , she would not attend the meeting as he had directed. Mr. Brink did not with- draw his direction that Ms. Orcheson attend at his office for a meeting the follow- ing morning. Ms. Orcheson did not attend. She attended, instead, at the offices of the Municipality of Metropolitan Toronto. Messrs. Boyko and Clark Meet With the Grievor November 15, 1991 In the meantime, on November 12, 1991 Mr. Mierzynski had written to Mr. Boyko to advise him of the encounter between Ms. Orcheson and Mr. Mros and of Ms. Orcheson's refusal to speak with Mr. Brink on November 8, 1991. His memo to Mr. Boyko said he had concluded that grounds for immediate dismissal existed, and recommended that Ms. Orcheson be dismissed. Mr. Boyko discussed the matter with Mr. Clark on November 15. They first discussed giving Ms. Orcheson a letter of suspension. They ultimately decided, however, that they should meet with Ms. Orcheson in the absence of both Mr. Brink and Mr. Mierzynski, to find out from her what had gone on, from her point of view, and to see whether "remediation" was possible, before deciding on disciplinary action. They arranged for Ms. Orcheson to be summoned from the offices of the Municipality of Metrol~olitan Toronto to attend a meeting in Mr. Boyko's office at 2:30 p.m. that afternoon. They also arranged for a union representative, Stephen George, to be present. Mr. Boyko acknowledged in his testimony that, having re- gard to what she said when she got to the meeting, the HR Branch representa- tive who COntacted Ms. Orcheson may have told her that she Would be receiving a letter. ~ Both Mr. Boyko and Ms. Orcheson testified about the ensuing meeting. Their recollections differ. Mr. Boyko testified that he and Mr. Clark were present at 2:30 p.m. when Mr. George arrived. Ms. Orcheson had not yet arrived. Mr. George said there was something he had to get from his office,.' and 'left. Ms. Orcheson then arrived. Mr. B~)yko and Mr. Clark introduced themselves and asked her to take a seat. .. Ms. Orcheson said "I'm here to get a letter, give me my letter" or words to that effect. Mr. Boyko told her they wanted to discuss what had been happening, hear her side of it. She asked again for a letter. Mr. Boyko replied that they did not have a letter to give her. Mr. Clark then said that they would like to hear her comments. Ms. Orcheson asked again for a letter. Mr. Clark said they did not have a letter t9 give her. Ms. Orcheson then got up and left. Mr. Boyko testified that they had neither said nor done anything to suggest that the meeting was. over. He acknowledged in cross-examination that neither of them had told her "don't go." He said she left quickly, and neither of them had time to ask a ques- tion or make a comment. He said he and Mr. Clark were "dumbfounded" by her conduct. When Mr. George returned, they told him what had happened and asked him to speak to her. He said he would..A few days later, Mr. Boyko asked ~Mr. George what had happened and Mr. George replied that Ms. Orcheson had declined ~o meet. Ms. Orcheson testified that Brad Adams contacted her by te'lephone at Metro around noon that day. He told her, she said, that she was to go to a meet- lng at 2:30 p.m. to receive.a letter. She returned to the Ministry offices. She went to her own office first. She testified that at that point she saw Stephen George and told him that it was not a good time to talk. She then went to Mr. Boyko's office. Only Mr. Clark was present. Mr. Boyko then came in and said "Isn't Ste- phen George attending?" Ms. Orcheson says she replied that she did not think so, and told them she had been told she would receive a letter. She testified they said nothing in response to th_is, that neither of them said anything about want- lng to discuss problems or hear her side. She repeated that she understood she was to receive a letter. She denied that either of them said there was no letter. On her account, they simply remained silent. She t~stified that at t~at point she felt ill and was "in a state" and left Mr. Boyko's office. She claimed that neither Mr. B0yko nor Mr. Clark had said anything as she was leaving. She denied that Mr. Boyko said they wanted to discuss matters with her. She said that while she was there, Mr. Clark had merely stared at what appeared to be a letter in his lap. As we have already noted, Ms. Orcheson sent Mr. Brink two memoranda dated November 18, 1991. She also gave Mr: Carter a two page draft of a Minis- ter's letter to the Town of Innisfil, under cover of a hand-written note dated No- vember .18, asking "Dq.you have any comments/corrections." On November 28, in a hand-written note informing him ~hat she would be at Metro that afternoon and the following day, Ms. Orcheson told Mr. Brink that "I have drafted ~he Minister's response re Innisfil sewage project and left it for comment with J. Car- ter.'' By e-mail dated December 3, 1991, Mr. Brink told Ms. Orcheson that "As I could not Wait for your draft (the deadline for Minister's response was Novem- ber 18, 1991), I sent the proposed response for the Minister up the ladder on No- vember i5." Five Day Suspension Imposed On' November 19, 1991, Mr. Boyko wrote Ms. Orcheson the following memo: RE: FIVE DAY SUSPENSION. INSUBORDINATE BEHAVIOUR The purpose of this memorandum is to advise you of a five (5) days suspension from work without pay .for your continuous insubordinate conduct with your Supervisor and your Director. You have been issued a two (2) day suspension for insubordinate conduct that took effect on November 6 and 7. I have been advised that, upon your return to work Friday, November 8, you acted in an insubordinate 'manner to your Supervisor, Mr. Brink. You also acted in a very derogatory manner towards another employee. Agar, on November 14, 1991, you acted in an insubordinate manner by not following instructions issued by your Supervisor. On November 15, 1991, I' arranged to meet with you and Mr. Ron Clark, Director .of the Human Resources Branch, in order to discuss the various work related problems and to provide an opportunity for management to assist in attempting to resolve them. Although you appeared, you refused to participate in any discussion and left the meeting abruptly. On November 18, 1991, your union representative, at my request, came to see you with the intent being that you might wish to avail yourself of his , assistance - you declined to accept any assistance offered. As a result of your continuing insubordinate condu~t, and under authority o£ the Public Service Act, Section 22 (2), delegated to me from the Deputy Minister, I am suspending you fram work, without pay, for five (5) days. This suspension will take effect on Wednesday, November 20, through until Tuesday, November 26, 1991. You will report back to work on Wednesday, November 27, 1991. You have been suspended in thc past for this type of conduct ~nd were warned that any continuation of this conduct would result in additional disciplinary action. If there is no improvement in your conduct and if there is no response to Mr. Mierzynski's memorandum by Thursday, November 28, then the .Ministry will ta.ke additional disciplinary action up to and including discharge. I would like to emphasize, again, that this Ministry is willing to offer whatever assistance is possible in attempting to resolve this inappropriate performance. We mustl however, have your interest and cooperation which, 'to date, has not been forthcoming. Ms. Orcheson was absent on suspension for the days indicated in Mr. Boy- ko's memo, and returned to work on November 27,. 1991. She then prepared this memo to Mr. Mierzynski in response to the questions posed in his memo of Octo- bet 28, 1991: In answer to your memo, I have the following comments: 1. Yes, I. wish to continue. My employment has never previously been questioned in this manner. '2. As above. 3. Although I discharge my audit duties in a friendly manner the rules do not always allow me to confer on others the benefits they desire. As a result, they may perceive me on occasion as less than amicable. · 4. I believe that I conduct myself in a professional manner. Until now, my performance in this area was not questioned. 5. I am not aware of your assistance. I am aware Of several disciplinary actions which have occurred recently. 6. As stated previously, I conduct myself, in a professional manner and perform my job accordingly. I do not agree with the other derogatory comments you made in your memo. This memo was pr.epared using a typewriterbecause my computer programs are inaccessible. Ms. Orcheson also prepared two' memoranda dated November 27, 1991 to Mr. Boyko. One said: RE: Your memo dated November 19, 199I "Five day suspension..." On October 28, 1991; W. Brink entered my office,~closed the door and stOOd in a narrow passageway between my desk and .computer table. On every other occasion he has left the door open and sat on a chair or stood in front of my desk. He started the conversation by informing me that while I was on' vacation, he signed me up for some courses commencing Monday' November 4, ·1991. I agreed to these arrangements. He then showed me a copy of a memo I gave him and the receptionist informing them of' an earlier work location, l-lc insisted on replacing, this procedure with another one which i considered unacceptable as it would lead to future problems. To excuse myself from this antagonistic meeting, I rose from my chair in order to leave and was pushed back. I called the police to prevent an escalation of his hostile behaviour. They called this an assault. W. Brink described his actions in a memo to management as ablocking of my way of exit. No attempt has been made in the face of such extraordinary conduct to discuss these events with me. Since that time, I have avoided meeting with him in my office or his which has been locked in the past, and have offered alternatives; such as, telephone conversations or memos as a reasonable means of communication. My conduct has been stated as insubordinate which has met with suspensions without pay. Due to these past events, I am requesting your' approval of the aforementioned methods of communication between myseff and W. Brink. Please excuse any errors in form, my computer system is not operating again and I am inexperienced in using a typewriter. The other memorandum to Mr. Bokyo said RE: Your memo dated November 19, 1991 "Five day suspension...'' ' In your memo you state that upon my return to work on November 8; I acted in a very-der,ogatory manner towards another employee. If you are referring to a conversation with G. Mros, I will reiterate that the use of my computer has been seriously restricted by a series of problems that did not occur prior to his arrival at the branch. With regard to my conduct with W. Brink, I beheve that my memo to you dated today explains my position. On November 15, 1991, I was told to meet with the management by B. Adams, with you and R. Clark at 2:30 to receive a letter. I travelled from the offices of Metro Toronto to meet with you. At the meeting I requested the letter several ti_mbs. It was refused without explanation. Faced with this perplexing situation, I asked why the management'did not want to give me the letter. Az neither communication nor the letter was forthcoming, I left the meeting. Within two working days, I received your memo criticizing my behaviour at the meeting and suspending me for five working days without pay. .. Your statement that I declined to accept any assistance offered from S. George, my union representative is inaccurate. As it was an inopportune moment, we agreed to discuss some concerns at a better time. I have circulated a copy of my responses to G. Mierzynski's memo dated October 28, 1991 which you requested. This memo has been prepared using a typewriter; my computer .programs are inaccessible to me. Ms. Orcheson sent a blind copy of this memo to Mr. Posen, the Deputy Minister,. with this added postscript ) I have attached a copy of B~ Boyko's correspondence for your reference. Stephen George has denied reporting to Mr. Boyko that I declined to accept any assistance; he agrees with my statement of the events. Ms. Orcheson's grievances with respect to the two day and five da~ sus- pensions ,&ere flied onNovember 28, 1991. There has been no challenge to the timeliness of the grievance with respect to the two day suspension. Mr. Boyko testified that the first of these two memos was the first he had heard of any alleged assault. He was concerned about the allegation and the fact that it had only come to his attention a month afterwards. He said he spoke to ~Mr. Mierzynski, asked what had happened and directed him to take appropriate action. In cross.examination he said he remembered that at one point he asked Mr. Mierzynski to meet with Ms. Orcheson, but could not remember when that was. By memo dated December 2, 1991, Mr. Mierzyfiski responded to Ms. Or- cheson's memos to him and to Mr. Boyko of November 27, 1991: RE: WORKING RELATIONSHIP- ATTITUDE I have received and read your November 27, 199I memorandum to me, as well as the two memoranda to Mr. B.I. Boyko, Assistant Deputy Minister,' also dated November 27, 1991. Your response to my October 28, 1991 memorandum is both disappointing and unacceptable. I believe that there has been a continued refusal by you to communicate in any manner up until receipt of your November 27, 1991 memoranda. Although you have opened the door for communication, your memoranda contain inaccuracies and, in many instances, do not answer the questions directly asked by me on October 28, 1991. Since you have lodged a grievance, I would like to suggest that a meeting be held between yourself, your representative, myself, Mr. Brink, and Mr. Adams from the Human Resources Branch, to review and exchange information. This meeting would be an attempt to communicate more openly and to exchange information and clarify positions. This meeting would entail a discussion of your grievance and a response to your grievance, would be forwarded to you after the meeting. Could you advise me, in writing, as to whether you are in agreement with such a meeting. If so, I will arrange for the meeting as quickly as possible. If ' you are not in favour of this meeting, then a ~[ormal response to your memorandum and to your grievance would be needed before the seven wbrking day tLrne period has run out (for the grievance response). Despite the closing request that she advise him whether she agreed to an expe- dited meeting, Ms. Orcheson did not respond to this memorandum. She testified that Stephen George told her that a response was not necessary. Mr. George was not called to testify about this or any of the other events in which he was appar- ently involved. In a memo dated December 2, 1991, Mr, Brink gave Messrs. Boyko, Clark and Mc. Mierzynski ~a .detailed response to Ms. Orcheson's memo concerning the encounter of October 28, 1991. We do not propose to reproduce his memo verba- tim. It is consistent with the testimony he gave about that event and the' re- sponses he made to matters put to him in cross-examination. In the memo, Mr. Brink specifically denied Ms. Orcheson's allegation that he had "pushed" he'r. He noted that the memo in which he had originally described his 'actions as a blocking of her way of exit was not a memo addressed to management (as her memo suggested) but a memo he wrote to her On October 28, 1991, which he had copied to Mr. Mierzynski and Mr. Brad fAdams. With respect to Ms. Orcheson's statement that "No attempt has been made in the face of such extraordinary cofiduct to discuss these events with me," Mr. Brink noted that Ms. Orcheson had . responded to his description of the events of October 28 with a memorandum of October 29, 1991 to him, copied to Messrs. Mierzynski and Adams, stating that "I have no comment at the present time." As for her statement that since the in- cident of October 28 she had avoided meeting with him, Mr. Brink noted that Ms. Orcheson had been avoiding meetings with him since he became her Acting Manager, and had walked out of her mid-term performance evaluation on Sep- tember 10, 1991 after accusing him of using ~Gestapo tactics." Mr. Boyko testified that the observations in Mr. Brink's memo were con- sistent with his own observations of Ms. Orcheson and with other reports he had had about her conduct. He said that after considering the two versions of the in- cident he questioned whether it had taken place as Ms. Orcheson described. He stated while there had undoubtedly been a disagreement,~ he concluded that there was no "ongoing potential concern about assault." Mr. Mierzynski acknowledged in cross-examination that he did not "follow UP" with Ms. Orcheson concerning the allegation in her memo of November 27, 1991 to Mr. Boyko that Mr. Brink had assaulted h~r a month earlier. He said he simply did not believe the allegation. Mr. Brink wrote two memoranda to Mr. Boyko in response to Ms. Orche- son's memoranda to Mr. Boyko of November 27, 1991. One was the memo of De-~ cember 2, I99I to which we have already referred. The other, dated Novem- ber 29, 1991, addressed the computer difficulties to which Ms. Orcheson had fre- quently referred: RE: LORNAORCHESON ALLEGED COMPUTER PROBLEMS ! refer to a memorandum, dated November 27, 1991 from. L. Orchcson to, yourself, which starts: "In your memo you sta~te that ..... " , In her memorandum Lorna states that the use of her computer has been seriously restricted by a series of problems that did not occur prior to G, Mros arrival at our Branch. Fu~'ther in her memorandum she states: "This memo has been prepared using a typewriter; my computer programs are inaccessible to me." From this one could construe that Gerry Mros, our system administrator, is not performing his job satisfactorily with regard to Lorna's computer. This is certainly not the case. Lorna's computer did have a problem, which Gerry corrected'in a timely and professional manner in the early part of November. I have tested on several occasions her computer since that time and have experienced no problem gaining access to WPS1, Lotus 123 and E-Mail. Due to Lher unfriendly attitude towards Gerry Mros, I instructed Lorna by memorandum, dated November 7, 1991 to clear any problems, she experienced with her computer, with me for possible resolution in a timely manner: At no time since November 7, 1991 has Lorna notified me directly that she is having problems with her computer. She has on a number of occasions> suggested by copies of memo's or footnotes on Final. Grant Review Statements that she still has problems. On November 27, 1991 I checked again her computer and found it in good working order. We also have on record that during the period she was claiming that she could not access her program applications, she actually did access at least WPS1 through the network. It appears that we have here a case of one person trying to blacken someone's'else reputation by false accusations., I wish therefore to go on record that I am fully satisfied with the services provided to me by Gerry Mros,. specifically as it relates to Lorna's computer problems. He has performed his functions with alacrity, notwithstanding Lorna's totally unnecessary unfriendly attitude. ' This has been provided for your information and as a matter of record. . 'On December 3,-I991, Ms. Orcheson prepared the following memorandum to Mr. Brink in response to his memo to Mr. Boyko of November 29, 1991: RE: Your memo dated November 29, I991 "Lorna Orcheson...' In your memo, you stated that my computer problems were confined to the. early part of November as your tests subsequent to that time did not reveal any problems. You also stated that my computer wa~ operating on November 27 and that I' accbssed at least wordprocessing at a time when I reported problems. And based on these observations you concluded that "it appears we have a case of one person trying to blacken someone's else reputation by false accusations." The problems with my computer began in November and occured on an · intermittent basis throughout the month. There were several memos issued at various times in November to R. Sanders informing him of the problems , upon which he adted and service resumed. On November 18, Stephen George told me that he had phoned me twice; I showed him one handwritten message, the other was unknown to me. I discovered it later in the E.mail fde when my system was restored to normal operations. Similarly on November 27, I could not access the system; consequently,'! typed several memos on a machine located outside G. Mros'~ office. Later that day, my computer service was restored, a fact that you have confurmed. In my job there is a time lag between the use of various programs; such that, the use of one does not contradict the reporting of a problem with another at the time the other was to be used. It is my opinion that you are predisposed to finding fault with my efforts; to such an extent that, your judgement is impaired. To illustrate, on October 29 you issued an instruction to me on a copy of a grant review statement " circulated to you. You requested ! use NLQ or change my computer ribbon to make the copies more legible. You neglected to notice that the copy upon which you based your critique was not produced' by a computer; it was produced by a photocopy machine. In your haste to record a fault, you did not discern the difference. I believe that my response refutes your observations, focuses on an attempt to transfer your motives into this situation and identifies a judgement which is .being corrupted by a need for a defense of past actions. That same day, Ms. Orcheson gave Mr. Brink a hand.written note which said "I plan to take vacation on Dec. 23, 24, 27, 30 & 31 '91 and Jan. 2 & 3 '92." This was in response to an e-mail message from Mr. Brink the previous day asking about vacation plans. Ten Day Suspension Incident of December 2, 1991 On the morning of December 2, 1991, Mr. Brink learned that there would be a demonstration that morning of the WordPerfect Office software which is used on the computers in the office, including Ms. Orcheson's computer, to access e-mail and facilitate the use of application software. He went to Ms. Orcheson's office to tell her about the demonstration. He knocked on her office door, and en- tered. She was on the telephone. He waited for her telephone conversation to finish. When it did, she got up and walked past him out of her office, without waiting to hear what he had to say. When cross-examined about this incident, Mr. Brink said he did not recall her asking him to leave her office, but did recall a gesture that suggested he was not welcome. Ms. Orches0n testified that this portion of her'memo to Mr. Brink of De- cember 9, 1991 adequately describes what occurred on this occasion: On De~ember 2,~you entered my office while I was engaged in a telephone call. I asked you politely to leave, you refused and remained in my office, listening to my phone conversation. For obvious reasons, when I hung up, I left my office. She further testified that %bvious reasons" referred to the alleged assault of Oc- tober 28, 1991. Grievor's Response To Inquiries About The Espanola Project In the early morning of December 4, 1991, Mr. Brink Composed and sent Ms. Orcheson the following e-mail message: Subject: ESPANOLA PROJECT # 03-0520:01 Ron Martin, Sudbury office contacted me that municipal officials· of Espanola are coming to meet with you on December 12, 1991 in the afternoon. He also mentioned that this is potentially a "political hot potatoe" [sic]. Please brief me on this project so that I can make a decision whether I should attend the meeting as well. Tomorrow 9.00 a.m. (December 5) would suit me the best. If this is not sufficient time for you to prepare, I suggest Friday (December 6) at 9.00 a.m. Please let me know by the end of the day whether it will be Thursday or Friday. The e-mail system advises the sender of a message of the time when the message is first readby the recipient and the time when it is deleted by the recipient. The system reported to Mr. Brink that Ms. Orcheson opened this messag~ on Decem- ber 4, 1991 at 1:22 p.m. and deleted it at 1:23 p.m. - Ms. Orcheson did not respond to the December 4 e-mail message by the end of day, as the message requested. She did not attend at Mr. B~ink's office at 9:00 a.m. on December 5. In mid-morning on December 5 she delivered to Mr. Brink's office a page on which there was a screen print of the eomail message together with a screen print of another e-mail message Mr. Brink had sent somewhat later in the morning of December 4, 199 l, requesting that she provide him with "an update, of the list of final grant reviews, which you prepared for me in July" by the end of the week. Beside each message, Ms. Orcheson had written the wools "in progress." Also, on December 5 Ms. Orcheson informed Mr. Brink that she would be at Metro the following day, and wrote this memo to Mr. Brink concerning the Town of Innisfil matter: : RE: Your E-Mail dated December 2, 1991 "Innisffl: Minister's Response" On November 12, I attempted to discuss the preparation of th'e above-noted draft response with the_ project engineer, John Carter. He told me that you were insistent on preparing it. As this was part of my specific duties prior to your acting capacity, I issued a memo with a copy to you on November 13, stating that I was drafting the response that day. On November 14, you conf~rmed that my draft was available and maintained that writing it was your respo,nsibility. Without discussing the project with me or reading my draft, you prepared the response to an appeal regarding my audit findings. In my opinion, this is a violation of generally accepted practice and procedure and an unwarranted change in my duties. Mr. Mierzynski wrote to Ms. Orcheson.on December 5, 1991: RE: WORKING RELATIONSHIP - ATTITUDE This is further to my memorandum to you, dated December 2, 1991. Since I · have not been advised by you as requested, and since you have lodged a grievance, I am obliged to response to your November 27, 1991 memorandum in more detail at this time. Your response to my October 28, 1991 memorandum is both disappointing and unacceptable, as stated previously, You have responded to questions 1) and 2) as, "yes" - i.e., you wish to continue to work in the Project Engineer'mg Branch, Yet, your reply to question 3) negates any positive steps in attitude and indicates your continued refusal to work cooperatively with others in an amicable manner. This non-amicable attitude is not occasional - rather, it has been exemplified many times over an extended period of time and is well documented. Your answer to question 4) is, "I believe that I conduct myself in a- professional manner." This is not addressing the question that was asked. The question was, "Do yod realize that your performance and attithde are deteriorating?"., You obviously do not wish to accept your shortcomings in both areas despite managemen~'s attempts to both discuss these matters with you and to attemp~ to correct the problems. Your failure to communicate and insubordinate behaviour when management makes efforts to do so, are totally unacceptable and win not be tolerated. Your answer to question 5) exemplifies both your lack of understanding and your failure to make even a minuscule attempt to communicate for purpose o[' resolving problems in the work environment. The "assistance offered" was clearly stated in my October 28, 1991 memorandum which emphasized that I was prepared to discuss any problems with you in confidence and to provide any assistance tha..t the organization can provide. Such assistance, ff you had accepted my suggestion, would have been discussed to determine what best s~ited your particular situation - outside counselling would be one example. Once again, you have not answered question 6), rather, you state., "I conduct myself in a professional manner and perform my job accordingly." This is totall~ unacceptable - you have been advised that your work performance is not acceptable, that your attitude and work relationship with others in the Branch is virtually nonexistent and that your behaviour will not be accepted or condoned. To act in a professional manner does not mean using your training when you see fit, and with total disregard for the organization you work for and the staff you work with. An employee's professional conduct in an organization (non sole practice) requires that employee contribute to the organization by his/her knowledge, apply his/her training, communicate with other employees, practice mutual support with respect for other employees and provide professional service in a manner requested by the employer- normally directed and supervised by a manager to whom the employee reports organizationally. You have not acted professionally in this context and continue to indicate that you don't propose to change. Your employment with the Project Engineering Branch cannot continue on this basis. Mr. Brink was not satisfied with Ms. Orcheson's "in progress" response to his December 4 e-mail message concerning the Espanola matter, particularly her failure to meet on December 5 coupled with her announced intention to be at Metro on December 6, the alternate meeting day proposed in his message. On December 5, 1991 he wrote a memo to Mr. Mierzynski advising him of the walk. ing out incident of December 2 and of Ms. Orcheson's subsequent failure to re- spond appropriately to his e-mail' message o~'December 4, 1991. It is apparent from this memo of December 5 that he felt he had asked for an oral briefing at 'a meeting in his office, and that he had expected Ms. Orcheson to contact him be- fore the end of the day on December 4 to tell him whether the meeting would be at 9:00 a.m. December 5 or 9:00 a.m. December 6. He sent a copy ofthis memo of December 5 to Ms. Orcheson. In late afternoon on Friday December 6, 1991, Mr. Brink composed and sent a further e-mail message requesting a briefing on Espanola at 10:00 a.m. on Monday December 9, 1991. The earliest Ms. Orcheson could have received this message was upon her arrival at Work Monday December. 9, 1991. Ir~ fact, she did not open the e-mail message until December 12, 1991. In the meantime, how. ever, Ms. Orcheson composed the following memo to Mr. Brink dated Decem- ber 9, 1991, responding to his memo to Mr. Mierzynski of December 5, 199 l' RE: Your memo dated December 5, 1991 "Lorna Orcheson..." On December 2, 'you entered my office while I was engaged in a telephone , Call. 1 asked you politely to leave, you refused and remained in my office, listening to my phone conversation. For obvious reasons, when i hung up, I left' my office. On December 4, I received your request for information regarding the Espanola project. I contacted the staff at Espanola to obtain a list of their concerns, sent a note to you that your request was in process and forwarded a draft response to word processing on December 5; my part completed well before your deadline of December 6. On December 6, I had prearranged to work at Metro Toronto offices and upon my return, I will deliver the response to you [sic]. I believe the content of your memo identifies your unrealistic demands rather than an intent on my part to withhold communication or cooperation. Ms. Orcheson testified that her interpretation of the e-mail of December 4 Was that it requested a "briefing note," and had therefore responded to it as described in her memo of December 9. That memo appears to have been prepared before 10:15 a.m. on December 9, 1991, when Mr. Brink delivered a hand-written note 'to Ms. Orcheson directing that ."I require that you brief me about the Espanola project today at a 11.00 a.m. in my office." Ms. Orcheson returned that handwritten note to Mr. Brink-with 'the fol- lowing note of her own added at the bottom: Received 10:15. Called S. George who has been unable to return call re attending with me at this meeting. Left brie£mg notes on C.W. Brink's desk. Lorna Orcheson I2/9/91 P.S'. He is unable to attend, Longer notice next time would be appreciated. Mr. Brink saw Ms. Orcheson later that day, either in the corridor or in her office. He told her he did not consider the notes she had left to be a briefing and said'he wanted to have a meeting. A few minutes later Ms. Orcheson telephoned Mr. Brink in his office and suggested that he tell her over the telephone what his questions were concerning the Espanola project. He refused to deal with it in that manner. He testified that he found her suggestion insulting. The following day he sent her this hand-written message concerning the Espanola project: I have given Andrew the file of this project so that he can brief me, Thursday 9.00 a.m. before thc 10.O0 a.m. with Espanola officials. I had to take this action as I could not get an adequate briefing by you. That same day, Mr. Brink prepared a handwritten memorandum in re- sponse to Ms, Orches°n's vacation request of December $. The memorandum said:' ' Due to.the continuing unsatisfactory working relationship and in view of the severe backlog of final grant reviews, t am denying your request for vacation for Dec. 23, 24, 27, 20 & 31, 1991 and Jan. 2 and 3, 1992. Ms. Orcheson called in sick on December 11, I991. She testified that she did-not see Mr. Brink's memo denying her vacation request until she arrived at work on December 12. Ten Day Suspension Imposed In the meantime, .there had been discussions concerning Ms.' Orcheson's conduct in the week of December 2, 1991. Mr. Brink had spoken about it to Mr. Mierzynski..Mr. Mierzynski had spoken to Mr. Boyko. Mr. Boyko had de- cided to impose a I0 day Suspension, which was to be communicated to.' Ms. Orcheson by means of this memo dated December 11, 199I: RE: Ten (10) Day Suspension '- Insubordinate Behaviour The purpose of this memorandum is to advise you of a ten (10) day suspension from work without pay for your continuing wiIfu] misconduct with your Manager and your Director. You were issued recently a five (5) day suspension for insubordinate conduct that took effect November 15 through to November 21 inclusive. I have been further advised of two recent incidents of insubor6ination.-On Monday, December 2, t991 you knowingly avoided any communication with your Supervisor, Mr. Brink, who had important information to relate to you. On December 4, 1991, you failed to respond to an urgent electronic message. You instead deleted the message and did not follow the instruction to brief your Supervisoron the matter. As a result of your continuing insubordinate conduc; and under autho¥ity in the Public Service Act, Section 22(2) delegated. ~o' me from 'the Deputy Minister, I am suspending you from work without pay for ten (10) days. This suspension will take effect Thursday, December 12, through to Friday, December 27, 1991. This suspension will include any holidays which fall therein. You will report back to work on Monday, December 80, 1991. You have been suspended in the past for this type of conduct and were warned that any continuation of this conduct will result in disciplinary action. Should any further incidents of this type occur, your employment with thc Ministry wiJ] be terminated. Management could not· give Ms. Orcheson this memo on December 11, be- cause she was not at work that day.. Mr. Mierzynski attended at Ms. Orcheson's office for that purpose at about 8:15 a.m. 6n December 12, 1991. Ms. Orcheson- was there. Mr. Mierzynski testified that he said "good morning" to her, and got no response. He said he then handed her an envelope containing the suspension memo, told her it contained disciplinary action and said she should read it right away. He then left her office. Later, at 9:38 a.m., Mr. Mierzynski saw MS. Orcheson standing in the re- ception.area. He testified that he walked up and said to her that she was under suspension and that she should go home, to which she responded by turning and walking away. Laura Elliott (Laura Hare at-the relevant time)· is Mr. Mierzynski's secre- tary. She relieves the receptionist when the need arises. She testified that she was at the reception desk when Mr. Mierzynski told Ms. Orcheson that she had been suspended and should leave the building. Ms. Elliott testified that Ms. O'rcheson was facing Mr. Mierzynski when· he began saying this, and turned and walked away toward' her office as he spoke. Ms. Eliott said Mr. Mierzynski raised his voice in response to that action, and believes that Ms. Orcheson Would have heard what he said. Ms. Elliott further testified that Ms. Orcheson returned' to the' reception desk about 10 minutes later and, 'with reference to Mr. Mierzynski, said something like "Oh, he's rdally afraid of me." Somewhat later, she said, Ms. Orcheson came and said to her "So you're involved in this tOO." Mr. Mierzynski testified that after his encounter with Ms. Orcheson at the reception desk, he returned to his office and prepared a hand-written memo to her which said: memorandum, susa)ending ,At 8:15 today I personally gave you Mr. B0yko's ~ you for 10 days with effect from today. At 9:38 today, I attempted to talk to you at the reception area, suggesting you leave the office. You ignored me and walked away. You are requested to leave the office immediately, .as you ace under suspension. Mr. Mierzynski said that he then took the memo to Ms. Orcheson's office and handed it to her. In cross-examination, he stated it was possible that he put the memo in her "in tray." He thought he may have repeated to her what the memo said, but was not sure. Mr. Brink testified that he met with Mr. Miernicki on the morning o£ De- cember 12, 1991 in preparation for a meeting with the officials from Espano]:a. He was aware that Ms. Orcheson was to be suspended for 10 days beginning that day. He was also aware 'that Ms. Orcheson was in the building. He believed she might attempt to attend' the meeting despite her suspension. When he began the meeting with the Espanola officials in the boardroom, he told them that if Ms. Orcheson did attempt to attend, they should follow him to his office. Ms. Orcheson did arrive at the boardroom at about 10:OO a.m., and Mr. Brink did then move to his office with the Espanola officials. Ms. Orchason testified that she arrived at work at about 7:45 a.m. that day. She immediately read the memo from Mr. Brink in which he denied her Christmas vacation request. She then began preparing a memo to Mr. Mier- zynski asking that he approve the vacation request which Mr. Brink had denied. She testified in this connection that she believed management was again at- tempting to provoke conflict so that they could exclude her from the Crown Cor- )oration. Ms.. Orcheson recalled ihat Mr. MierzynSki came into her office early that morning, placed an envelope in her "in tray~ and told,her she should read .it, She denies that he said she should read it "right awaf'. She said nothing in response, and went on preparing her memo to him about Mr. Brink's denial of her vacation request. When she had completed that memo she went to the reception desk and asked Laura Elliott to advise her when .the officials from Espanola arrived. As she was doing this, Mr. Mierzynski approached and, she said, "told me I should leave or recommended that I should leave." She claimed he did not say that she had received a notice of suspension. She did not respond to Mr. Mierzynski, but returned to her office and telephoned Stepherl George to discuss what Mr. Mierzynski had just Said. In a later letter to Mr. Mierzynski she claimed that Mr. George "seemed perplexed by this news and confirmed that he had not en- countered conduct like this before." 'She said she then decided that after attend- ing the meeting with the E~panola officials she would leave as, she testified, Mr. Mierzynski "had instructed, advised, recommended, or whatever." Ms. Orcheson did not recall returning to the reception desk a few minutes later and commenting ~o the receptionist about Mk. Mierzynski. She ~did recall -- that Mr. Mierzynski visited her office a second time, as she was preparing for the meeting with the Espanola officials. She testified that he put something in her'in tray and "said I should leave, recommended that I leave," but said nothing else. She did not then read either of the items Mr. Mierzynski had placed in her in tray that morning. She claims not to have read them until later that day, after she got home. At some point 'after Mr. Mierzynski's second visit to her office, Ms. Orcheson went to. the boardroom where Mr. Brink and the Espanola officials were already meeting.' When she arrived, they got up and left. She then went to the receptionist and asked where they had gone, The 'receptionist pointed to Mr. Brink's office. Ms, Orcheson went to Mr. Brink's office and told Mr. Brink she believed she was to be' at the meeting. Mr. Brink replied that she was not. Ms. Orcheson testified that this was the first time she learned that she was not to be at the meeting. She then went to her Office, gathered up some papers .and the envelopes from Mr. Mierzynski and went home. Later on December 12, 1991, Mr. Mierzynski read the memo Ms. Orch~eson had prepared that morning concer~ng her vacation request. He responded with a memo to her dated December 12, 1991, approving her request for vacation for December 30 and 31, 1991 and. January ~2 and 3, 1992, being the portion of her vacation request which fell outside the period of her 10 day s~uspension, He had that memo delivered to Ms. Orches°n by courieE' On December 14, 1991, Ms. Orcheson wrote the. following letter to Mr. Mierzynski, outlining her version of the events of December 12, 1991: Re: Your memo dated December 12, 1991: "suspension" Sometime after 8 am on December 12, you delivered a memo to me and advised me to read it. I excused myself from doing that because I was concentrating at my computer on the preparation of a memo requesting the reinstatement of my vacation days which W. Brink had denied by earlier memo. You (lid not elaborate further and left my office. After completing the memo, I had to prepare for a meeting scheduled at l0 am with representatives from Espanol [sicl and W. Brink which included the copying of an agenda for a last-minute attendee of which I was notified also by earlier memo. While confirming the boardroom reservation with L. Hare, you recommended that I leave. I called Stephen George immediately. He seemed perplexed by this news and confirmed that he had not encountered conduct like this before. While reviewing the Espanola audit report in my office, you delivered another memo arid again recommended that I leave without further · . explanation. Shortly after that, I went to the boardroom to find that W: Brink, A. Miernicki and the municipal representatives had commenced without me, contrary to my request to L. Hare to notify me when the representatives arrived. I introduced myself to Jack Fraser and. Joel McKenzie; however, .W..Brink left upon my entrance; the others followed. L. Hare directed me to W. Brink's office. The door was locked; I knocked; W. Brink answered; I stated "I believe that I am to attend this meeting"; W. Brink said "no." Without any clarification ~)r instruction to read the memos (we have previously exchanged information in hallways in the presence of others as was the case here), he closed the door abruptly. Having completed my obligations and acting upon your recommendation I left, placing the delivered memos unread in my briefcase. Later that day and for the first time, I learned of this most recent suspension. Mr. Mierzynski kesponded with this letter of December 18, 1991: RE: YOUR LETTER DATED DECEMBER 14, 1991 The above noted letter to me contains gross misinterpretations of the facts. Paragraph 1 - When I delivered the memorandum to you, I said you should read it as a matter of priority. This was done at 8:15 a.m., December 12., 1991. Paragraph 2 - The conduct that you refer to, quoting Stephen George, is your conduct. A person under suspension should leave the office when requested - this~ you indicate in your own statements, you did not do until requested by me, in writing (again given to you, by me, in person, at 9:45 a.m. on December 12, 1991), and after discussions with Mr. George, who recommended that you leave. I did not "~ecommend' you leave the office I requested you do so immediately, in writing, having first attempted to talk to you some seven minUtes earlier. Paragraph 3 This paragraph exemplifies your continued lack of cooperation, poor attitude and lack of following instructions from your management. When your Director personally delivers .two separate memoranda and advises you to read them as a matter of priori~, you, again, exemplify insubordination for Which you have now been suspended on three separate occasions. It was not up to Mr. Brink to "instruct you to read the memos'_' - those instructions had already come from me much earlier in the day, Paragraph 4 - You were requested to leage the. office on two occasions, the. last being in writing at 9:~45 on December 12, 1991~, this was not a recommendation. Your statement that you placed ~he "memos uaread" in your briefcase strains credibility. If you did not read the memoranda,' your action was .insubordinate. Yo._U eertain,ly knew the content of the memoranda from your discussions with Stephen George. Interlude While Mr. Brink continued to have difficulty dealing with Ms.'Orcheson after she returned in January 1992 from her suspension and vacation, there was no further discipline until her ~ischarge in March. Mr. Brink's Instructions About Outside Assignments Ms. Orcheson returned :to work on January 6, 1992. She left a note for Mr. Brink saying "I am at Richmond Hill today" and adding a telephone number. Mr. Brink found the note [when he arrived at the office that morning. Ms. Orcheson was not in the office that day. .~ When Mr. Brink arrived in his office on January 7,' 1992, he found a note from Ms. Orcheson with the ~words "I will be at Peel today" and a telephone number. When he arrived at his office 'on January 8, 1992, Mr. Brink found a ' note from Ms. Orcheson with }he words "Work location Metro" and a telephone number. Later that day Mr. Brink wrote a memo to Ms. Oreheson concerning outside work assignments. In it, he expressed the View that final grant reviews can be performed without attending at municipal locations.. The memo directed that she should thereafter obtlain his prior apProval before arranging to do any final grant review work at lo~tions other than the 'Project Engineering Branch offices. During cross-examination Mr. Brink conceded that this was a new rule said it olnly required her to do what other employees did as for Ms. Orcheson, but / a matter of course without having to have a rule imposed on them. 1 When Mr. Brink arrived at his office on the~morning of January 9, 1992, he found Ms. Orcheson's grievance of the 10 day suspension, dated January 8, I · 1992, and a hand-written memo bearing the words "I'm at Metro today" and a telephone number. A.Stage Two grievance meeting with respect to Ms. Orcheson's first two grievances was scheduled to take place at the Ministry's head office on St. Clair Avenue on January 10, 1992. When Mr. Brink arrived at his office that morning, he found a hand-written note from Ms. Orcheson indicating that she would be at the MiniStry's head offide and thereafter at "Metro." Ms. Orcheson acknowledged having delivered this note that morning. She also acknowledged having regd Mr. Brink's memo of January 8 some time on January 9. She testified that she had forgotten Mr. Brink's memo of January 8 when she wrote the note she deliv- ered on the morning of January 10. She remembered it later in the morning, 'but by then the memo was already delivered. Ms. Orcheson did not go to Metro after the second stage grievance meeting at the Ministry's head office on January 10. She returned to the project engineer- ing branch offices on Davisville Avenue and prepared a memo to Mr. Mierzynski concerning Mr. Brink's directive of January 8, 1992. about outside' work assign- ments. Her memo said, in part The directive contained in the above-noted memo is contrary to long- standing policy, procedure and practice. It is also discriminatory. As such, I am requesting that you instrUct C. W. Brink to withdraw it promptly. By memo dated January 13, 1992, Mr. Mierzynski denied Ms~ Orcheson's request that he reverse Mr. Brink's directive. He expressly concurred in the directive, noting that she continued to have an attitude of non-cooperation and to commu- nicate only in writing to the avoidance of"normal dizcussions." His memo stated that that situation could not continue. , On January 10, 1992 Mr. Brink prepared a memo 'to Ms. Orcheson requir. lng that she attend a meeting with him on Tuesday January 14, 1992 at 10:00 a.m. '~to discuss the projects you currently have for final grant review." The memo instructed that "since on some projects I may want to go into detail, I re- quest that you bring all the project files with you." It concluded by saying "If you cannot attend at this time,~ see me to arrange a mutually satisfactory time and date." Ms. Orcheson responded to this with a memo dated January 13, 1992 saying I suggest we meet one week from the day you have requested at 10:00 a.m. This will provide sufficient time to collect the information which you_ require nnd make other necessary arrangements. " ';' 79 Mr. Brink responded bY adding the following hand-written note to the bottom of Ms. Orcheson's memo and returning it to her: I wnnt to hold thc meeting to-morrow. It' fits my overall plans bette~. You have not asked me about the information which I require, so likely l prevent you lots of unnecessnry work. See you tomorrow at 10.00 in Boardroom "A", as per January 10, 1992 memo. Later that day Ms. Orcheson asked Mr. Brink whether Andrew Miernicki would be attending this meeting. Mr. Brink said he would not. Ms. Orcheson said she wished Mr. Miernicki to be present and had ascertained that he was willing to attend. Mr. Brink denied her request.. The fotl0wing day, having reconsidered, Mr. Brink decided to involve Mr. Miernicki in the meeting. He felt there was some justification for doing so, since he was involved in assigning projects to the gr[evor. He also considered it a conCession. He went to tell Ms. Orcheson that Mr. Miernicki would attend the meeting. He testified that when he finally found l~er in her office she got up and walked away without saying anything. Later, when he saw her by the elevator, he said that he had something to tell her and she-replied that he could do it in writing or by telephone. As she walked away from him, he testified, he shouted that Mr. Miernicki would be a~t the meeting. Ms. Orcheson testified she did not recall either his coming to her office or her walking out, but said her response' to his approach at the elevator was that he should convey whatever he wished right there. Following the encounter at the' elevator, Ms. Orcheson delivered a hand- written note to Mr. Brink which said , As you have now accepted A. Miernicki (at 9:00 a.m.) as an attendee I -informed OPSEU (Howard Douglas) and we agreed that Andrew's presence is reasonable safety under the circumstances. They will not need to attend. Mr. Brink testified that the conversation at the elevator had occurred at ap- proximately 9:30 a.m. He stated that there' had been no discussion with him of "safety" at any time before this. Ms. Orcheson acknowledged that this handwrit- ten memo might be the first communication with management in which she had used the word "safety." When Ms. Orcheson attended the meeting on the morning of January 14, 1992 she did not bring with her the project files referred to in Mr. Brink's.memo of January t0, 1992. She testified that she did not understand that memo to re- quire that she bring files with her. There was a discussion about Mr. Brink's earlier correspondence concerning an update to the July 1991 list. Ms. Orcheson said she had understood that he wanted an Update on the status of the projects, listed in the July 1991 list. He explained that he wanted a list like the July 1991 l~st ShOwing files she~currently had outstanding. She then said she recognized what he wanted and agreed to provide it by the end of the week (and subse- quently did). There was then a break in the meeting. Mr. Brink later Went 'to Ms. Orcheson's office to tell her when the meeting would reconvene and ~what files she was to bring with her when it did. Mr. Brink testified that When he ar- rived at her office to convey this information to her, she walked out and told him to put it in writing. He then prepared a hand-written memo confirming what had just taken place and setting out the information he had intended to convey orally. Ms. Orcheson testified that there was no encounter that day in which he came to her office and she walked out. Mr. Boyko Refuses To Approve Alternatives To Meetings ' On January 15, 1992, Mr. Boyko wrote the following memo to Ms. Orcheson: RE: COMMUNICATIONS In your memorandum of November 27, 1992, you stated that, since an "event" which took place on October 28, 1992, you have a~oided meetings with your Manager, Mr. Brink, in your office or in his office. You also suggested as a reasonable means Of communication, telephone conversations or memos, and requested approval for the aforementioned methods of communication between yourself and your Manager. I have not previously responded to your 'memorandum as I was of the opinion that Mr. Mierzynski, in his memoranda of December 2, 1991 and December 5, 1991, had adequately explained that the methods of communication employed by you were not considered satisfactory or acceptable. I have just been advised that there is a perception ~n your part that, because of a lack of direct response from me to you, I condone-indirect communication with your Manager. This is not th~ case. There is no valid reason, based on the assessment of information available to me, why you should have any special considerations in the methods of communication with your Manager. Therefore, I fully expect that you will conduct yourseff in what is considered as a normal and professional approach with your Manager, as well as others 'in the Branch. Mr. B~ink testified tkiat he' drafted the initial version of this memo as a result of certai~ things said dur.!.ng the second stage grievance meeting of January 10, 1992. Ms. Orcheson was absent from work on the afternoon of January 15, 1992 to attend a dental appointment. She phoned in sick the following day. She did not receive .Mr. Boyko's memo until January 17, 1992, when she also delivered the pr~oject list promised during the meeting of January 14, 1992. ion January 20, 1992, Mr. Brink sent Ms. Orcheson an e-mail message askin~ her to meet him in his office that'day at 2:00 p.m. to discuss the updated list ofi proj.ects she had provided on January 17..Ms..Orcheson made a screen print~of the message, added a hand-written note and returned it Mr. Brink. The hand-written note said , Because of the circumstances it is advisable that another person attend this meeting with you & I. Ars you in agreement? Please call pr e-mail 'your Iresponse. . . Mr. Bi-ink testified that in light of Mr. Boyko's memo of January 15 he did not think ~he involvement of a third party was necessary. He therefore sent her an e-. mail message saying "Your request to have another person attend the meeting in my office is denied." Ms. Orcl~eson made a screen print of that message and returned it to Mr. Brink with this appended hand-written note: Marilyn Youden, a representative from OPSEU, is discussing this situation with B. I. Boyko. I am awaiting the outcome and the decision of OPSEU and senior management. After a discussion with you, you were able to state that you hoped we Would meet at 2. The meeting did not proceed at 2:00 P.m. Shortly after 2:00 p.m., Mr. Bpyko telephoned Mr. Brink to say that he and the union had agreed to a postppnement! of the meeting until after a grievanc~ meeting sched'uled for the folloWing day, January 21. ! Also on January 20, 1992, Mr. Brink prepared a memo to Ms. Orcheson concerning· the matters discussed at the meeting of January I4~ ·1992. In this mem6 he said that he had been surprised by her statement during that meeting that the disposition of 3 of the files discussed was "subject to the grievance proc- ess." It stated that he had reviewed the files discussed and in at least one had not found any evidence that she had been ~vorking on it. His memo went on to say that he presumed that she was keeping her working files separate from the project files. It stated'~hat he felt that working files should form part of the proj- ect file. It directed that she complete a review of 2 particular files no later t,han January 24, 1992, that she incorporate her working files into the project files for those projects and ail other projects being reviewed by her thereafter, and that she discuss with him before the end of Friday, January 24, 1992 his request that she incorporate her working files for projects reviewed in 1991'into the actual project files and set a deadline to accomplish this. There was a grievance meeting on January 21,. 1992. It was referred to from time to time during testimony. There came a point in the hearing when a dispute arose about whether we could or should hear any more about what was said during that meeting. In the end, the parties agreed that we should hear no more about what took place at that meeting and, further, that we should ignore what we had already heard about the meeting. We have done that, although not without difficulty since Mr. Brink's explanations of the apprgach he took after that meeting included assertions-about his understanding of what had and had not been said at that meeting. ~ On January 24, 1992, Mr. George delivered to Mr. Mierzynski this memo to him from Ms. Orcheson dated January 22, 1992: Re: Your memo dated December 18, 1991 ] have no comment at the present time. With regard to your assertions concerning Stephen George, I .am request{ng that he respond to your memo. Mr. Mierzynski testified that he had spoken with Mr. George about the asser- tions in his letter of December 18, '1991, at or some time after the time he pre- pared it, and that Mr. George had then confirmed that those assertions were cot- rect. He further testified that when Mr. George ~lelivered this memo of Janu- ary 22 to him,' he t01d Mr. Mierzynski (apparently with reference to the last sen- tence of the memo).that he did not fee] that' any response was. required. As we have already noted, Mr: George was not called as ~a witness. Meeting of January 24, 1995 'Ms. Orcheson and Mr. Brink met again on January 24, 1992, with Mr. Miernicki present. Mr. Brink testified that after the grievance meeting of January 21, 1992 there was a willingness on management's pa~t to permit a third party presence at meetings which focused on the grievor's job performance, but not at meetings which were part of her day to day work. Ms. Orcheson left the meeting before Mr: B~nk considered it completed. Mr. Brink later set out his version of what took place in this memorandum of January 29, 1992: RE: FINAL GRANT REVIEW STATUS MEETING: JANUARY 24, I992 WALKING OUT OF MEETING On Friday, January 24, ~992 you attended a meeting regarding the status of the final grant reviews which had been assigned to you. This was a follow-up meeting to the meeting held on January 14, 1991. Andrew Miernicki was present at this meeting as well. During the meeting' you were instructed to return all LifeLines project~, which were assigned to you on February 12, 1991 and for which you had not started your review. At the meeting you stated that you will complain about this request, but you complied with this request on January 27~ 1992. Also during the meeting the matter of "Interim" Grant Reviews was again discussed. In the past I have repeatedly requested to keep'"Interim" Grant reviews to a minimum. I discussed this matter again as alraost all your grant reviews are "marked" interim, whereas this is not the case with grant reviews performed by Andrew and our contract staff. You are well aware that Budget Control Section wants us to keep "Interim" grant reviews to a minimum so that as many projects as possible can be deleted from the active Blue Book computer file. As a result of my inquiry how one determines when a Grant Review should be considered "Interim", the issue of re.instating projects records by Budget Control Section, after they have deleted the project record from their Blue Book file, was discussed. You were of the opinion that this was a very onerous task and did not want to accept my ,view/knowledge that it was not. Andrew expressed his opinion that the better solution is to bring the project to completion as close as possible, name it final and do only then a revision when the follow-up claim is in excess of $1000.00 in grant payment. This h~as proven a good procedure for our Budget Control Section. Such a revision is also standard procedure, when additional grant payment is recommended by the Ontario Municipal Audit Bureau. When you started "lbcturing" Andrew about how difficult it is for ~Budget Control Section to re.instate a project, which had b~een deleted from the Blue .- Book active records, I interrupted you because your discussion was not contributing to the meeting since you were discussing a solution, which you should have known, was quite contrary to what our Budget Control Section prefers. As manager ! have to ensure that meetings are conducted in a professional manner. Therefore I had to interrupt you. You then walked away out of the meeting, when I reconfirmed that I would not let you finish your "lecture" on a subject, you apparently do not have any recent knowledge of. ' Your walking out of the me.eting was uncalled for. Ms. Orcheson set out her version in her memo of January 30, 1992: RE: Meeting January 24, 1992 On January 14, 1992 we discussed the list of projects assigned to me. You digressed from the agenda, I objected and asked you to return to you agenda which you did. Similarly on January 24, 1992' you asked me to participate in a meeting regarding this list of projects and the reassignment of some, to other staff. The agenda was not the status of "final grant reviews" which you suggest in your memo. I also take exception.to your statement that interim grant reviews were "again discussed" if you implying that interim reviews/audits were discussed with you in the meeting on January 14, 1992 or that my interim audits specifically were discussed with you at anytime in the past. I objected to the discussion regarding interim reviews for several reasons. To name a few, my opinion on the time.required to maintain computer fries re in;erims differed .from yours, the policy and praktice in other areas were being incorrectly stated as the policy and practice re interims and last but not least, the subject of interims was not on the agenda. During the course of stating ,my objection, I was interrupted without explanation. My immediate request to complete my statement was met with a curt "no". As my participation was obviously no longer required, I left the meeting. In the morning of January 80, 1992, Mr. Brink saw Ms. Orcheson in the hall and asked her where she had been between 1:00 and 2:80 p.m. the previous day. Her response was that he should put his question in writing. This prompted another exchange o£ memoranda. Mr. Brink wrote to Ms. Orcheson January 30, 1992 as follows: RE: INQUIRY ABOUT YOUR WHEREABOUTS ON JANUARY 29, 1992 This morning at about 9,00 o,m. I asked you about your whereabouts yesterday (January 29, 1992) from 1.00 p.m. to about 2.30 p.m. as I had not seen you in the office duringthat time. You immediately became hostile and refused to answer my question. You said "Put it in a memo!" Notwithstanding repeated disciplinary action you have not grasped the fact that we have to communicate in a professiona! manner and that ~his means it has to be in writing [sicl. I fred it wasteful and totally unnecessarry |sic]. ' I require though answers on my oral inquiries and I can not accept your unfriendly, belhgerent attitude to even a simple question. You seem also t~ forget that I expect you to tell me about your whereabouts in advance, like anyone else, which would have made me questioning you unnecessary. 1 still require an answer on my queStion about your whereabouts on January 29, 1992 from about 1.00 p.m. until about 2.30 p.m. and expect you to pl:o¥ide me with .a.n_answer bY January 81, 1992. Ms, Orcheson responded with this memorandum of January 31, 1992: RE: Your memorandum dated January 30, 1992 "inquiry about your whereabouts" The answer to your question is that I was at lunch for part of that time. If you did not see me after my return, I can only speculate that I may have been in another area of the office: the fileroom, the photocopy rooms, the kitchen, the women's washroom etc. I requested that you issue your question in a memorandum. You did not object to my suggestion at the time. It should be noted that the time spent re our encounter in the hall was very brief. Ms, Orcheson made a copy of this memo for Brad Adams, and sent it to him with the following attached note: Brad On Jan 15 '92 I advised W. Brink of my "whereabouts" namely a dental appointment later that day. This consideration, was met with an unwelcome remark about his hopes regarding my frozen cheek. I am the only one in this section whose attendance is being called into question. Additionally it appears that W. Brink has forgotten those long Friday lunches with others on staff while he was a senior. In both management and staff positions he has failed in my opinion to set any standard upon which he could base his criticisms. Ms. Orcheson testified that she had asked Mr. Brink to put his question in wrY, tin§ because of the dispute they had had about her attendance in June 1991. Ms. Orcheson's Communications With The Deputy Minister. During Mr. Brink's cross-examination, union counsel put it to him that Ms. Orcheson had been in communication with the Deputy Minister, and that the Deputy Minister or some other member of management had made him aware of this. Union counsel introduced a memo of ,January 29, 1992 apparently writ- ten by the Deputy Minister to Ms. Orcheson, which said this: i have received your memorandum to me dated January 14, t992 regarding your earlier request for withdrawing your suspensions and al~proving special communication methods. The grievance procedure has been established, to identify problems and resolve them through either joint Union/Management negotiations or by a Grievance Settlement Board. The issue of the suspensions relating to Mr. G. Mierzynski's letter are necessarily a part of the grievance information exchange and will be dealt with during the procedure. As your grievance process is continuing, I will not intercede. I believe that the satisfactory resolution of this issue, including the introduction of special communication methods, can only be achieved by the parties involved. Mr. Brink testified that he was not aware of Ms. Orcheson's communications with the Deputy Minister until late March 1992. The memo of January 14, 1992 to which the Deputy Ministers memo apparently responded was not put into evidence. 'Further Meetings Scheduled On January 29, 1992, Mr. Brink prepared a memo to Ms. Orcheson on the subject of "targets for assignments," setting out particular tasks which he wished her to perform. There was a list of tasks to be performed by February 7, 1992 and'then discussed at a meeting to be held on February 10, 1992. There was a further list of tasks for the following two weekperiod, to be discussed at a meet- ing to be held on February 24, 1992. The memo ended with the observation that "in order to avoid any misunderstanding I will require that ail' work completed be passed to me first in order that I can monitor your accomplishments fairly and accurately." Ms. Orcheson responded to this in a memo dated January 30, 1992, in which she said: RE: Your memorandum dated January 29, 1992 "Targets for assignments" You have requested memoranda and final grant reviews for several of my assigned projects. In my opinion, some of your requests do not comply with the existing policy and practice of this Branch. In describing these "target" projects which were on the list previously discussed on January 14 and 24, you have referred to some as "fmal grant review" having "started already." Your reference has no basis in the information which I provided and you accepted inth~ past. I am not familiar with the term "final memorandum"; however, I will assume that it is the same as a memorandum, You have requested several meetings while these targets are being met. As in the past, I am assuming that A. Miernicki or a substitute will also attend. Please advise by Friday, January 30, ff this is unacceptable to you. These are the initial clarifications; there may be additional ones in the future. Mr. Brink did not respond to the request in the second last paragraph of this memo. He testified that he considered it "an insult." Ms. Orcheson delivered a second copy of her memo on February 4, 1992, with the hand-written note "Second ReqUest'' at the'bottom. Mr. Brink responded on February 5, 1992 wit, h this memo: RE: PROGRESS REVIEW MEETINGS: FEBRUARY I0 & FEBRUARY 21, 1992 In your memorandum, dated January $0, 1992, you requested that you assumed that Andrew Miernicki or a substitute would be present at the above noted meetings. This will not be the case as these two meetings are to deal specifically with ' your work output/performance during the preceding two week period. I do not at all endorse or accept the notion that I can not.meet with you unless a third person is present. However, you can bring in a person of your choice as a "non-participating observer', on the condition that it is not someone ~rom the Project Engineering Branch. We are busy enough and cannot afford to so poorly utilize our human ~ resources. For the record, I am extremely concerned that to date you have not forwarded to me as completed any one of the assignments as per my memorandum, dated January 29, 1992. This despite the fact that you apparently had time to attend the Elevated Tank Collapse Seminar, which is not at all essential to your duties. On January' 30, 1992; Ms. Orcheson sent a hand-written memo 'to Mr. Brink saying "I will require vacation leave on February 24th-28th inclusive." Mr. Brink advised Ms. Orcheson that the request Was approved and that the meeting scheduled for February 24, 1992 to discuss progress on assignments would be re- scheduled t° February 21, 1992. Mr. Mierzynski Requires Performance Review \ On February 6, 1992, Mr. Mierzynski wrote to Ms. Orcheson to advise her that her performance review'was outstanding and ~hat Mr. Brink 4zould be in- structed to complete it as soon as possible, and went on to comment on his per- ception of her conduct since her return to work on January 6, 1992: RE: PERFORMANCE REVIEW AND OTHER WORK RELATED MATTERS As you are aware, there is a Corporate requirement for employee performance evaluations on an annual basis. All my managers have been directed to conduct these evaluations for all staff in their sections. 'Your performance' review is outstanding and must be completed as soon as possible. I have instructed your Manager, W. Brink, to that effect. t am concerned with your apparent unchanged attitude since your return to work on January 6, 1992. I have observed no change' in your approach to normal working relationships, your lack of communication, except through writing, and your seeming unwillingness to exercise common rules of courtesy in the office environment. Please be advised that your performance review will f~cus on all aspects of your employment, including communications, past performance in meeting objectives, and training needs identified, and anticipated goals and objectives for purposes of the next review cycle. There have been a series of happenings, initiated by ]ou, which have been reported to me. These activities, when considered individually, may be insufficient for drastic disciplinary action, but collectively~ border on insubordination for which you-were previously suspended and warned will result in [ermination, ff there is any continuation of your insubordinate behaviour. You have purposely taken actions which aggravate an already unacceptable situation. You refuse to discuss routine issues, you continually write memoranda instead, and you ignore directions to stop these time wasteful and annoying situations. This has to stop, and I intend to achieve a · resolution to these problems now. I do not intend to allow you to dictate when management can talk to you, nor to allow you to have other Branch staff always present during any discussions, as this is a total misuse of resources. You have received memoranda from me and Mr. Boyko which clearly instructed you to improve your oral communications. You have, also, previously been advised by me' that normal communications must be established and maintained and that writing memoranda on every subject, every activity, etc., is totally time-wasteful, inefficient, and detracts from the ability to perform job specified and management requested functions and activities. Previously, I offered to discuss problems, their potential resolution, your goals and objectives, in private. The choice, of course, is yours, but please remember the employer.employee relations are a two-way street and both parties must address requirements, obligations and expectations on that basis. Should you wish'to take advantage of a privste discussion with me on the above basis, please let me know. Returning to the performance review matter, I must emphasize that management's expectations, including a communications program, will be reflected in the evaluation - this will apply to both past and pregent work related matters. There is, of course an opportunity for you to make a commitment for improvement. An absence o£ such a commitment and your continued attitude of non-.cooperation cannot continue. The following day, February 7, 1992, Ms. Orcheson wrote a hand-written memo addressed to "Copy" which she testified was sent to OPSEU, the Deputy Minister (Mr. Posen),. Brad Adams, an officer at the Ontario Human Rights Commission and, perhaps, Mr. Boyko as well. The memo read as follows: RE: G. Mierzynski's memo dated Feb 6 '92 To date there are 3 grievances and 1 complaint with Ontario Human Rights , Commission. I have highlighted what I believe to be his references to these complaints in his memo which also deals with performance review. In his mind the complaints are linked with performance review; therefore, the review will be subjective. Ms. Orcheson does not appear to have responded directly to Mr. Mier-' zynski about his memo 'of February 6. She did, however, write to him on Febru- ary 7, 1992, concerning his memo of January 1.3, 1992: RE: Your memorandum dated January 1~, 1992 In your memo stated that "these work locations were not discussed and]or agreed to with your manager in advance." For the record, C.W. Brink was advised daily of my work locations and telephone numbers. In view of the fact that he did' not advise me o~herwise, I believe that he agreed to this arrangement. With regard to the remainder of your memo, I have no further' comment at the present time. I would have responded to.your memo earlier but 'I have been attending to other matters. Mr. Mierzynski testified that his reaction to this memo was one of total frustra- tion that the message was not getting across. Meetings of February 10 and 24, 1995 . Most of the assignments made in his memo of January 29th were deliv- ered to Mr. Brink on the afternoon of February 7, 1992. The remainder were de- livered on the morning of February 10, I992. Some of the material appeared to Mr. Brink to have been completed on or before February 5'. In view of the last paragraph of his memo of January 29 and his furthe~ memo of February' 5, Mr. Brink was upset that the material had not been handed in as-it Was com- pleted. He thought Ms. Orcheson had done that deliberately. He took that con- cern with him into the meeting of February 10, 1992, which Ms. Orcheson at- tended with a Mr. Dick Choy as a neutral observer. % , ~' -90- At the meeting of February 10, Mr. Brink expressed concern about Ms. Orcheson's having submitted material at the last minute, rather than as she completed it. He also expressed concern about the quality of the work she had done. He accused her of having made a calculation error in one of the files with which' the meeting was' concerned. He .told her that her productivity during the month of January was well below "par". All of this was confirmed in a memo Mr. Brink sent to Ms. Orcheson on February 13, 1992. In that memo, Mr. Brink observed that during the month of January Mr. Miernicki had completed reviews of 20 projects, whereas Ms. Orche- son had "completed only 6 projects, of which 4 were ~minor revisions to earlier in- terim grant reviews." Mr. Brink concluded that memo with this obserVation: You can see for yourself why management is concerned with your extremely low productivity/work eflqciency. For your own sake you have to make significant improveinents in this area. I hope.you will do this immediately. At some point after delivering the memo of February 13, Mr. Brink came to realize that Ms. Orcheson had not made the error of which he had accused her at the meeting and in his memo. He apologized to her for the accusation. Ms. Orcheson responded to Mr. Brink's memo of February .13 with a memo of her own dated February 21. In that memo she denied having deliberately held 'back assignments until the last moment. Ms. Orcheson testified that some ,items were delayed in the word processing section. After addressing that and other is- sues having to do with specific files, her memo of February 21 concluded with these statements: Both your addition error which led you to accuse me of misadding their claim and' your erroneous assertion today that 24-0008-18 is a target assignment which ! should have submitted identify that you cannot monitor accomplishments "fairly and accurately" as stated in you~ memo dated January 29, 1992. In closing, I believe that your remarks regarding my completion of the target assignments are generally subjective and destructive. One of the matters addressed in the meeting of February 10 arose out of a · hand-written memo of that date from Ms. Orcheson to Mr. Brink. The note bore. the words "Second Notice Work Location Feb. 13 '92 Metro Toronto" followed by a telephone number. Ms. Orcheson testified that she delivered this when there was no response to an earlier message that she thought she had ~e'iivered saying "work location Feb. 13 Metro Toronto (request from Municipality regarding dis- position of earlier audits and year end review.)" Ms. Orcheson testified that it was her Understanding that if she delivered such a note and did not receive a disapproval then that was tacit approval, just as with vacat'ions. She felt that the onlY change that had be~n made in January was that thereafter these communi- cations had had include reasons for the proposal to work aWay from the office. At the m.~eting of February 10 Mr. Brink approved Ms. Orcheson's request to work at Metro on February 13 on the condition that she brief him on what was to be discussed. Having sought and received that approval, Ms. Orcheson did not go to Metro on February 13. Mr. 'Brink testified that she did not advise him that she would not be going, did not say why she had not gone and then went to Metro on a subsequent date without notifying him ahead of time. Ms. Orcheson did not challenge these assertions. She testified that the visit to Metro was cancelled and then held on a later date. She said she did not realize until the hearing that he objected to the later visit. She offered no explanation of her failure to speak to him about the rescheduling of the visit. Mr. Brink was away from the Office in the afternoon of February 10, 1992. The following morning he found on his desk a hand-written memo from Ms. Orcheson dated February 10. The memo said "Vacation Feb 11." Mr. Brink testified that Ms. Orcheson had not requested a vacation day during their meet- ing of-February 10. This was one of' many examples Mr. Brink offered of vacation ' memos having been given to him by Ms. Orcheson at the last moment, when there was no opportunity for him to communicate whether he approved or not, MS. Orcheson testified that nothing negative was said to her afterwards about the form of this note of February 10 or the amount of notice it gave Mr. Brink. Mr. Brink testified that despite the admonition in his memorandum of February 13 that Ms. Orcheson should hand in assignments 'as they were com- pleted, he did not receive any of the assignments due for the February .21 meet- ing until the day before that meeting. One of the assignments for February 21, as outlined in the memo January 29, was for Ms. OYcheson to incorporate her v~orking files for projects reviewed during the period July to December, 1991, into the project files. She did not hand in the reconstituted files either before or at the meeting of February 21, 1992. Mr. Brink was trou, bled by ~hese actions and complained of them at the meeting, which proceeded as scheduled with . Mr. Choy again attending with Ms. Orcheson.' Concerning incorporation of the working files, Ms. Oreheson testified that she thought she had explained to Mr. Brink that she had not understood from his memo that she was to bring the files. She said she offered to get the files and show. him, but he did not take her' up on her offer. Ms. Orcheson testified that'at one point Mr. Brink "digressed from the agenda" and commented that he had a good working relationship with others in the section, so in response she "merely" asked him if he had assaulted them. She also testified that at that or some other point in the meeting he propelled his chair forward on its casters and shook his fist at her. After they had reviewed the files which had been the subject of her as- signment for the period ending February 21, Mr. Brink turned to the subject of her assignments for the period after her return from the vacation' scheduled for February 24 through 28. Mr, Brink testified (as he later stated in a memo of March 4, 1992) that Ms. Orcheson responded by saying that that subject was not. on his agenda for the meeting. She refused to discuss it, and left the meeting. Ms. Orcheson's testimony was that she "asked him or stated" that all agenda items had been covered. She said he did not dispute that. She also said she asked him to put it in a memo, as he had done previously. When the meeting ended, he told her "I hope you have a lousy holiday." When he testified, Mr. Brink acknowl- edged that this was an inappropriate comment. · Ms. Orcheson was absent on vacation February 24 through 28, 1992. At the end of a memo to Ms, Orchesoa dated March 4, 1992, Mr. Brink made these Observations about the meeting of February 21, 1992: When I wanted to set assignment targets for the week following your return, you stated that this Was not on my agenda for the meeting. Your knowledge of my agenda items still astound me. I did not feel it warranted to make an issue of it at that time. Since you felt that "progress" has been discussed, you left the meeting. This leaQing of the meeting is unacceptable and midst not occur again. ~ In summary your work performance and general attitude of uncooperation during the period from February 10 to February 21, 1992 is unsatisfactory arid improvement is needed. In order to improve your performance I am setting up a performance planning and review meeting, which is scheduled for March 31, 1992 at 10:30 a.m. in my office. The Communications Improvement Plan On March 5, 1992, Mr. Brink prepared two memos to Ms. Orcheson. One provided a commumcations improvement action plan" which his memo said was intended.to improve communication between them. The plan, which was stated to be effective March 9, 1992, had the following elements: 1) Verbal communication between yourself and your manager has to be increased to over 50%. in all styles of communication between yourseff and your manager. 2) The door of your office shall be kept in an open position when you are in your office. 3) There has to be a drastic reduction in memo writing. , 4) Instructions from your manager must be followed explicitly. 5) E-MAIL shall continue to be used where appropriate and must be read regularly. 6) Office to office telephoning is not acceptable. Verbal communication (face to face) is to be employed under such circumstances as described in 1). 7) A neutral 3rd party will' be allowed only in cases where the topic relates to your performance On the job. $) Management will not tolerate you walking out of meetings prior to theft conclusion. The memo setting out these points also contained commentary on each point. The commentary with respect to item 1 noted that-verbal communications may Lbo conducted "in your office, you~ manager's office, corridor or meeting room." It also notes that "your immediate removal of yourself from verbal discussions will not be tolerated." The clarification of the second point noted that the grievor's office door should only be closed if there is a medical reason or a need fol a pri- vate conversation. The commentary with respect to item 3 noted that memo- randa and letters regarding project related issues are accePtable, as the grievor is responsible for the normal documentation on projects. The commentary under item 4 noted, among other things, that the grievor "must gain prior verbal ap- proval from.your manager regarding "outside work locations", vacation requests, make up time for appointments, etc." It went on to rpquire notice of ~t least twice the proposed length of absence. Under item $, Mrl Brink noted that "meetings may or may not have set agenda's. Notwithstanding, it will be management's prerogative to clarify, ask questions, etc. regarding any work related issue(s) during the meeting except for 7) above." Mr. Brink's second memo of March 5 to Ms. Orcheson concerned "assign- ments and' priorities." It made particular assignments and assigned priorities for Ms. Orcheson's work for the period up to March 31, 1992. It also required that Ms. Orcheson maintain and submit weekly "an itemized log of your working hours' for that week." It:directed that she provide an updated list of final grant reviews by Friday March 13, 1992. It reiterated the requirement that completed assignments be passed to him first, and added the following additional require- ments: -Reasons for "outside work locations" have to be discussed in detail with ' me and my approval has to be obtained well in advance; - "Interim Grant" designation cannot be used without my approval. The reason for "Interim Grant" designation has to be discussed with me and my approval has to be obtained. In the afternoon of March 9, 1992, Mr. Brink went to Ms. Orcheson's of- rice. The door was closed. He knocked and opened the door. Ms. Orcheson was busy at her printer. He told her ~hat he wanted to speak to her about a par~icu- lar project. She replied that she was busy, walked over to the door and closed it in his face. Some time later he came back, knocked on her office door, opened it and said to Ms. Orcheson that he wanted to speak to her. She told him he had to give her an agenda. He replied that he did not. She then said she was on her break, walked over to the door and closed it in his face again. Ms..Orcheson called Mr. Brink on the telephone 10 or 15 minutes later. She asked what he wanted. Shortly thereafter they had a meeting in the hall. Ms. Orcheson's version of these encounters differ from that of Mr. Brink only in that she dlaims that her door was open each time Mr. Brink came to it that day, and that she said "excuse me" to him each time she closed the door in Mr. Brink's face. She said that prior to this, his habit had been to knock on the door and then step back into the hall so that their meeting proceeded in the hail. She said he did not do this on this occasion, so she did not know what to do. That, she said, is why. she closed, the door in his face on those two occasions: 4' The next day (March 10) without obtaining prior approval from Mr. Brink, Ms. Orcheson left work early. She visited her doctor, who gave her a note stating that her 'office door had to be closed for medical reasons. A memorandum Ms. Orcheson wrote to Mr. Brink on March 11, 1992 refers to a conversation in which he told her that'he would be adjusting her attendance report for .5 vaca- tion days "for the medical appointment yesterday at 2:40? With reference to that statement, she .wrote "I have no further comment at the present time." Her memo also noted that he had asked for an estimate of the time it might take to complete reviews of projects with respect to Carleton Place and one other mu- nicipality. Her memo .recorded that '"In response to your question about e, sti- mates, I tried to convey that estimating the extent of information or the amount of time that Will be required to complete these reviews is not a job requirement." The Meeting of March 13, 1992 In late morning on March 13, 1992, Mr. Brink gave Ms. Orcheson oral no- tice that she was to attend a meeting at 2:00 p.m. in boardroom A to discuss timates regarding the Carleton Place project. In response, Ms. Orcheson pre- pared and delivered a hand-written memo which said: A few minutes before 12 today you called a meeting at 2 p.m. in the boardroom to discuss estimates regarding the above noted project. I advised you again that I did not know how much time ... will be required to complete this audit/review. As in the past a third party has attended. I am requesting a postponement of this meeting to enable me to obtain an attendee if you cannot provide one. Mr. Brink wrote the following at the bottom of her memo and returned it to her: In accordance' with Item 1 of the Communications Improvement Action Plan forwarded to you by memorandum dated March 5, 1992 meetings on work related issues do not require a 3rd party to be attendance. I will not postpone the meeting and I direct you to be at 2 p.m. in boardroom A. Please bring the Carleton Place project f~les and supporting information so that we can have a useful meeting. Ms. Orcheson then wrote "My attendance is under duress conveyed verbally 3/13/92" on a copy of the annotated memo and re-delivered it to Mr. Brink. '~ Boardroom A contains a UT' shaped table. The part of the tal~le closest to the boardroom's hallway d°or is at the bottom of the part of the table which cor- responds to the vertical stem of a "T'. The portion of the table corresponding to the horizontal crossbar ofa "T' was closest to and parallel to the wall opposite the hallway door. Ms. Orcheson came to boardroom A that afternoon pushing a chair on which she ha~t placed the files Mr. Brink' had asked her to bring. When she arrived' at the boardroom door, Mr. Brink was Seated on the far· side of the horizontal "top" of the "T' 'shaped table. He invited Ms. Orcheson come in and sit down. She declined that invitation. Instead, Ms. Orcheson sat in the corridor, outside the boardroom, facing Mr. Brink through the .open door and across the '~T' shaped table. She had the files she had brought with her in her lap. She testified that she did this because of the "assault" of October 28, 1991 and Mr. Brink's "abusive manner". She tes~- fled that if she had sat inside the door at the foot of the vertical stem of the "T", and he had made an excuse to leave and move toward her, she could not have stepped out into the hall ahead of him without being criticized for leaving a meeting. She said she felt that if she sat in the doorway she would have to move into the hall to let him leave and, so, could not be criticized for moving out into the hall if he moved toward her. She stated that "I could not be criticized and my safety would be protected." Mr. Brink chose to proceed that way. The meeting went on for about a half hour, and ended without incident. The Discharge · The Incident of March 17, 1992 On March 16, 1992, Mr. Brink advised Ms. Orcheson that he wished to meet with her again the following day at 1:30 p.m. in bo*ardroom A to discuss the list of outstanding grant reviews which she had provided as requested in his memo of March 5,1992. Mr. Brink testified that he called the meeting because there .were projects on her list which he thought had been completed. As on March 13, 1992, when Ms. Orcheson arrived at the door to the boardroom Mr. Brink was seated at the other e~id of the room bebAnd the head of the "T' shaped table. Again/Mr. Brink invited Ms. Orcheson into the room. · Again, Ms. Orcheson declined, and sat in the corridor facing him through the door. Mr. Brink testified that at this point it was his impression that the .only way he would get the~update he wanted was to meet that-way with Ms. Orcheson, so he went ahead. About i0 minutes later, Mr. Mierzynski came by. He testified that he had just returned to the office, and had noticed, that people were "sniggering and whispering." He went toward Mr. Brink's office and noticed Ms. Orcheson sitting in the hallway facing into the boardroom. He went to the doorway and asked Mr. Brink what was happening. Mr. Brink replied that he was meeting with Ms. Orcheson. Mr. Mierzynski testified that he then said to Ms. Orcheson that it was unusual to conduct a meeting in that way, that it was embarrassing and 'un- pi-ofessi0nal to condu~"a meeting in that way and asked her to please move into the room. She said she would not. He said he asked this at least 3 times and got a "no comment at this time" response. He then ordered her to go into the board- room, saying that if. she did not do so he would treat it as defiance. She still re- fused. Mr. Mierzynski was the employer's first witness. His testimony began on and was completed on November '12, 1992. It was put to him in cross. examination that Ms. Ortheson had expressed a concern about meeting with Mr. Brink alone, based on the alleged assault of October 28, 'and that she had explored alternate methods of meeting. Mr. Mierzynski agreed that she had al- leged assault and had sought to have alternate meeting methods approved, but stated that her' requests in that regard had been made and rejected well before this incident. He said he thought that her assault allegation was untrue and was "created for some' other purpose." He had not accepted her concerns, about meet- ing with Mr. Brink, he said, because'he did not believe the allegation. It was not put to Mr. Mierzynski in cross-examination that Ms. Orch~eson had said anything to him about her safety on March 17, 1992, when she refused to obey his order to move into the Boardroom. It was not put to him that she had said anything which had triggered a management duty under the Occupational Health and Safety Act. These matters were first raised, and the very first refer- ence to that Act occurred, during the cross-examination of Mr. Brink on January. 13, 1993, the tenth day of hearing. Union counsel then put it to Mr. Brink that after Mr. Mierzynski intervened, he (Brink) had not treated her refusal to enter the room as a Work refusal under the Occupational Health and Safety Act. Counsel for the employer objected to the introductio~ at that stage of the proceedings of the claim that the employer had~ breached the Occupational Health and Safety Act. She asserted without contradiction that that was the first time that that claim had been asserted. She argued that this amounted to a change in the grievance. She acknowledged, that she had expected the argument that Ms. Orcheson's disobedience fell within the risk to safety exception to the ."work first, grieve'later" rule. She submitted that that exception applied only when there was an objectively reasonable fear for safety on the part of the diso. bedient employee, whereas under certain circumstances the Occupational Health and Safety Act prohibited a disciplinary response where the employee's disobedi- ence 'stems from an h°~estly held subject belief that obedience would expose the employee to danger, ~ven if that belief is objectively unreasonable. We ruled that the union's failure to refer to it in the grievance or earlier in the hearing would not preclude its relying on the Occupational Health and Safety Act to whatever extent the evidenCe permitted. In his cross-examination, Mr. Brink acknowledged that at some point in her dialogue with Mr. Mierzynski Ms. Orcheson said something to the effect of "I don't want to be alone with Willy Brink", but was not sure whether she said "it's safer where I am." Ms. Orcheson's testimony was that when Mr..Mierzyrmki first asked her to enter the room, she asked if he wanted to be an attendee and he declined. She claimed she then said to him that she preferred being seated 'where she was, that she "felt safer". When he persisted, she said she had no comment beyond what she had already said: Then, she testified, he said he was going to recommend her dismissal and she said he should do what he had to do. At that point the meeting ended. Immediately following this incident, Mr. Mierzynski reported-it to Mr. Boyko and recommended that Ms. Orcheson be dismissed immediately. The next event, however, was a meeting at which Mr. Brink and Brad Adams met with Ms. Orcheson and a union representative, Ms: Youden. After that.meeting, Ms. Orcheson provided a hand-written memo t~ Mr. Adams and Mr. Brink which Offered "an explanation of various incidents." We do not propose to reproduce that entire explanation here. To the extent the incidents it addressed were raised in the evidence before us, the explanations were generally consistent with the testimony given by Ms. Orcheson. It is noteworthy, however,, that in her expla- nation of the events of March 13 Ms. Orcheson wrot~, apparently with reference to communications with Mr. Brink, that "I explained it was not a job require- ment to provide estimates." On March I9, 1992, Mr..Brink wrote the following memorandum to Mr. Posen, the Deputy Minister: RE: RECOMMENDATION FOR THE TERMINATION OF LORNA ORCHESON Below is a summary of events that have led me to a recommendation that our Ministry dismiss Lorna Orcheson from employment. Lorna Orcheson has been employed in the Project Engineering Branch since ' November 1987. There have been a series of continuing incidents between Lorna Orcheson, myself (her Manager), and my Director that have been deemed to be insubordinate. As a result of many incidents of insubordinate behaviour, Lorna Orcheson was suspended from work without pay for two (2) days on November 6 and 7, 1992. She continued her insubordinate hehaviour and, as a result, was suspended for an additional five (5) days starting No~ember 20, .1991. From her return to work, up until December 10, 1991, there were continual acts of insubordination which resuI~ed in another suspension from work without pay for ten (10) days, starting on December 12, 1991. 'Since Lorna Orcheson's return to work on January 6, 1992, there has been no improvement in her work attitude. I have encountered continual acts of insubordination. On February 6, 1992, her Director, Mr. George Mierzynski, wrote to her and, again, advised that continual acts of insubordination will not be tolerated and immediate improvement must occur. Previous suspension letters, and this letter as well, indicated that acts of, "insubordination for which you. were previously suspended and warned will result in termination if there is any continuation of your insubordinate behaviour". Since that letter of February 6, 1992, there have been continued acts of insubordination. These relate to not following written instructions, not following verbal instructions, and general insubordinate behaviour, Another memorandum from myself to Lorna Orcheson, on March 5, 1992, indicated that, "immediate improvement is therefore essential in both areas of communication and performance or .dismissal from your position will ~. occur". After that memorandum to her, she has continued to be insubordinate. Asa culminating incident, on Tuesday, March 17, 1999., she failed to follow instructions by myself and our Director. She refused Mr.,Mierzynski's request and was advised by him' of the consequences of her continuing to refuse his request. After asking her again, she refused his request. This represents yet another incident of insubordination. Her behaviour has not changed. A meeting was held with her on Thursday, March 19, 1992 to review her conduct. Lorna Orcheson provided written responses Go our concerns, raised at the meeting, by 3:00 p.m.. today. Her reasons for continual insubordinate behaviour were deemed unacceptable. Therefore, in view of her previous record, the progressive nature 'of discipline imposed against her, the series of events that represent ongoing . insubordination and the culminating incident on Tuesday, March 17, 1992, I am recommending 'to .you that her employment with the Ministry of the Environment be terminated. The Deputy Minister later signed a memo to Ms. Orcheson advising her that he had accepted the recommendation in Mr. Brink's memo, which was attached to his'memo to Ms. Orcheson. He advised her that "in view of your previous record, the progressive nature of discipline imposed against you, the series of events that 'represent ongoing' insubordination and the culminating incident on Tues- day, March 17, 1992" he was dismissing her from her employment with the Ministry of the Environment effective March 25, 1992. 'Argument Counsel each made extensive, detailed submissions concerning the evi- dence we heard and the conclusions we should draw from that evidence. We have given ail of those submissions careful consideration. At this point in the decision we shall record only a generalized summary of the positions each took on the is- sues in question. More detailed reference is made to particular submissions in · ; the course of our own analysis and conclusions, which are set out at page 105 and "following, but it is not our intention to reproduce or refer to each and every of the submissions of counsel in this award. Counsel for the employer argued that the grievor was a difficult employee long before Mr. Brink became her manager in March 1991. She said that this was apparent even from the ~Contents of the 1982 performance appraisal, as well as from Mr. Ken Adams' testimony about the difficulties he had had with the grievor and his observation that she was the most difficult employee he had ever had. She submitted that the grievor disrespected Mr. Brink from the moment he took over from Mr. Adams, and had behaved in an uncooperative, antagonistic and mean-spirited way toward him on numerous occasions' over a period of months before management finally resorted to formal discipline in an attempt to correct her insubordinate attitude and conduct. Counsel noted that the grievor had spurned Mr. Mierzynski's offers to discuss whatever Concerns she had, and had subjected him to disrespectful conduct as well. She submitted that the grievor had a general diarespect for authority and ~vas simply unwilling to take direction from management. Employer.counsel argued that the attempt to walk out of the meeting ini- tiated by Mr. Brink on October 28 was'insubordinate, and that that is so no mat- ter what we conclude about Mr. Brink's immediate response to it. The grievor's conduct in walkin§ ou~ on Mr, Mier~ynski on Octobe~ ~0 was also insubordinate,. counsel said, as was her failure to ei~he~ respond to his questions by the specified deadline or reO,~est ~n e×tension of that deadline. She ~bmit~e~ ~h'a~ ~ o~e of ~bo~e i~ei~e~ts jus~ifie~ ~he two ~y su~pensio~ imposed o~ ~o~ember ~, ]~ ]. ~ for the "assa~t". alleged ~y the grievor as j~tification for her subse- quent conduct, counsel for the employer argued t~t we should prefer Mr. Brink's account of his response to the grievor's attempt to walk out on October' 28, ahd find that there was no physical contact. She also submitted t~t even if we ac- cept that there was some physi~l contact, we should conclude that it resulted from the g~evo~s moving into Mr. Bri~ w~le he remained stationa~. In either event, she argued, there was no objective basis to believe that thereafter she ~sked physi~l inju~ by meetingwith'him. Cou~el submitted that the grievofs Wal~g out on Mr. Bh~ on Novem- her 8 and her ref~al on November 14 to meet with ~m the following day co~ti- tuted f~her ins~ordination. She argued that the alleged fear for safety Was an after-the-fact rationalization of her conduct. The ~evor's ref~al ~ disc~s her concer~ with Messrs. Boyko and Clark when offered t~t oppo~ty on No- vember 15, 1991 demo~trated t~t she did not want a solution. The five day s~pe~ion was an approp~ate respo~e ~ her continued i~ubordination and the g~evor's inappropriate conduct toward Mr. Mros, and the ten day s~pe~ion was an approp~ate respo~e.to her f~her i~ubordinate condu~ in waling out , on Mr. B~nk.on De,tuber 2, .,1991 and in failing to respond as Mr. Bri~ asked in ~s E-mail of December 4, 1991. With respect to the culminating incident of March 17, 1992, counsel for the employer argued that both the refusal to work provisions of the Occupational Health and Safety 'Act and the safety-based arbitral exception to the "wor~ ~irst, grieve later rule were inapplicable. She submitted that the refusal to work pro- visions of the Act were inapplicable because it is concerned with dangers caused by physical conditions and equipment,, not those involving conflicts with people. Even if it is capable of applying to the latter, she argued, the employee invoking it must have an honest belief that she would be physically endangered by per- forming the work ordered. Counsel invites us to find that what motivated the grievoFs refusal was simply disrespe, ct for management in general and for Mr. Brink in particular. She further argued that even on the grievor's own evi- dence it was fear of criticism, not of physical danger, that motivated her refusal. Accordingly, there was no excuse, either under the statute or the arbitral juris- prudence, for the griever's final act of insubordination. Employer counsel argued that the griever's final act of insubordination was cause for discharge, having regard to the seriousness of the offence of insub- ordination, the fact that progressive discipline imposed for her previous acts~of insubordination had not reformed her and her failure to acknowledge that her conduct had been Wanting in any respect. She argued in the alternative that if we concluded that if the culminating incident was not disciplinable or that dis- charge was excessive, we should limit the griever's .remedy to damages rather than reinstate her, havi. ng regard to the damage to the employment relationship. " Counsel for the employer made reference to the following decisions in ar- gument: Antle, 66/76 (Beatty), Re British Columbia Railway and Canadian Un- ion of Transport Employees, Local 6 (1982) 8 L.A.C. (3d) 233 (Hope), Elgaard v. Sidbec Dosco Inc. (1988), 1 C.O.H.S.C. 102 (O.L.R.B., Davie), Issayevitch, 0711/85 (Roberts), Kulmatycky, 418/84 (Verity), Russell 52~77 (Swan), and Hawley 274188 (Kirkwood). Counsel for the union argued on the griever's behalf that management, particularly Messrs. Mierzynski and Brink, had been, engaged in a vendetta against Ms. Orcheson which had the Wiarton matter as its' genesis and built on her concern about having a position in the Crown Corporation. He submitted _~hat there was no review of her work which was critical Of her until after Mr. Mierzynski's arrival in the griever's workplace in November 1990. That evaluation by Ken Adams was inaccurate, and Ms. Orcheson was not given a 'proper opportunity to respond to it. She was 6ffered classification at the AM18 level until Mr. Mierzynski arrived. Mr. Brink began compiling a file on the grievor soon after he became her manager, and much of his conduct involved at- tempts to provoke incidents to justify not appointing her to the Crown Corpora- tion. '~ Union counsel submitted that Messrs. Mierzynski and Brink were both pertly and rigid in their assertion of authority over Ms, Orcheson and were un- fairly critical of her. Among the examples offered in support, of these submissions were Mr. Mierzynski's having criticized MS. Orcheson's having kept her door closed, without asking her why she did so, and his criticism of her memo writing and not Mr. Brink's, when she had asked Mr. Brink not to write memos. He noted that Mr. Brink had not requested the grievor's comments on the courses she took in November 1991. He argued that this indicated'that his earlier course comment. requests had' not been for the purpose of obtaining feedback but to treat her differently and find points on which she Could be criticized. He invit, ed us to find that it was Mr. Brink who introduced the subject of the Gestapo into the discussion of September. 10, 1991 as his interpretation of what she had said, and that he had manipulated the First Aid course events from an innocuous in- cident into a major matter. He submitted that Mr. Brink had accepted Ms. Orcheson's giv/ng short notice of her vacation plans except when he chose to assert managerial authority.' Union Counsel argued generally' that the conduct for which the grievor was disciplined was in each ease either a reaction to provocative conduct by man- agement or blown out of proportion or both. Counsel argued that the meeting of October 28, 1991 was a provocation in which Mr. Brink had brought a "bogus poor copy" of one of her notes with which to pressure her. He submitted that the subject of discussion Which related to this document, the communication Mr. Brink says he blocked the grievor's exit in or- der to make, was unimportant. He asserted that the employer wrongly treated this as a "walking out" incident when it was a physical Confrontation. He sug- gested that the degree of upset in the grievor's voice on the recording of her 911 call is consistent with there having been something more than a mere blocking of her exit, and he invited us to find that there had been more. He argued that after · the October 28 incident the grievor had no assurance that she was physically safe from a similar or more extravagant incident. Management's failure to react even to what Mr. Brink had described himself as having done on October 28 indi- cated to her that management found that sort of physical confrontation permis- sible. Her serious safety concern thereafter was neither appreciated nor investi- gated, he said. Counsel for the union characterized Mr. Mierzynski's questions as pro- vocative and intended to create a confrontation. The grievor's delay in answering them was understandable, he said, given the number of days she was actually in ' the office after October 28. The incident of October 30 not a meeting, he said, but an aggressive, deliberate confrontation and therefore, he submitted, not the con- text for an allegation of insubordination. Counsel suggested that Mr."Mierzyn- ski's pre-existing intent to terminate the grievor is clear from his memo of Octo- ber.31, 1991 to Mr. Clark. ._ Union counsel argued that the grievor's alleged rudeness with Mr. Mros was blown out of all proportion, bearing in mind his use of the word "flaky~' in his conversation with her. With respect to the November 8 "walking out" episode, he argued that Mr. Brink was "forcing himself' on the grievor at the first opportu. nity just after she returned from her initial suspension. With respect to the In- nisfil matter of November 14, counsel asserted that Mr. Brink took over Ms. Or- cheson's function, told her fellow employees (Mr. Carter) that .he was doing so, refused to say over the telephone what his questions were, refused her offer that she give him her draft letter and discuss the matter by telephone and tried to force a meeting on her. He invited us to accept her version of her meeting of No- vember 15 with Messrs. Boyko and Clark, noting that no-one took issue with the memo (~f November 27 in which she set out that version. With respect to the December 2, 1991 "walking out" incident, union coun- sel submitted that this was another attempt by Mr. Brink to force a one-or/-ons meeting over a trivial matter, and that this was particulariy extraordinary when she had just recently raised the matter of his conduct'of October 28 .and there had not yet been an investigation of it. Counsel argued that Ms. Oreheson'had responded to the December 4 e-mail instructions in accordance with her under- standing that he was asking for a briefing note, not a meeting, and had provided the briefing note. Union counsel noted that the discharge' letter and attachments refer not only to the incident of March 17, 1992 and ~the previous discipline but also to other acts of insubordination alleged to have occurred before that incident but after the grievor's return from the ten day suspension. He argued that the inter- vening events raised in evidence either did not constitute acts of ir~ubordination or were not so treated at the time they occurred. He'submitted that the ~grievor's behaviour on March 17 must be seen in the context of management's failure to investigate or otherwise respond to her assault allegation, her efforts to establish alternate means of communication and the acceptance of those at the two Febru- ary meetings and at the March 13 meeting, Mr. Brink's further aggressiveness at the February meetings and her response to Mr. Mierzynski on March 17, 1992 that she did not want to be alone with Mr. Brink and felt safer where she was. He argued that in all those circumstances her conduct that day was not an occa- sion fo, r discipline. He invited us to find, in any event, that discharge was exces- sive and' to reject the n6tion, at least in the facts of this case, that the remedy for discharging an employee without just cause might not include reinstatement but simply be limited to damages. DecisiOn What might be characterized as bad manners or anti-social conduct in other contexts may be cause for discipline or even discharge when it occurs in the workplace. In an employment relationship, the employee is generally, obliged to carry out the tasks assigned to her or 'him by management. She cannot unilat- erally attach terms and conditions to that obligation, She generally has no right to walk away from assigned tasks or ignore assignments which are within the scope of her position: The "work first, grieve later" rule applies when she.is given an-assignment which she considers to be contrary to the terms of her emploY- ment. The basis for that well understood rule was explained in this frequently quoted passage from Re Ford Motor Co., 3 L.A. 779 (Shulman): ... an industrial plant is not a debating society. Its Object is production. When a controversy arises, production cannot wait for exhaustion of the grievance procedure. While that procedure is being pursued, production must go on. And some one must have the authority W direct the. manner in which it is W go on until the controversy is settled. That authority is vested in supervision. It must be vested there because the responsibility for production is also vested there; and responsiDitity must be accompanied by authority. It is fa/vly vested there becauae the grievance procedure is capable of adequately recompensing employees for abdse of authority by supervision. (see also Re Lake Ontario Steel Co. Ltd. (1968), 19 L.A.C. 103, 108 (Wefler), and Antle, 66/76 (Beatty) at pages 6 to 8.) Employee insubordination and defiance of managerial authority constitute serious misconduct and are cause for discipline or, in appropriate cases, discharge. We agree with the observation in Hawley, 274/88 (Kirkwood) at page 82 that the "work firs..t, grieve later" rule and Professor Shulman's observations that an industrial plan is not a debating' society apply with equal force in the office environment. That is not to say that there may not be debate in an office. Man- agement may invite discussion in furtherance of its objectives, but it retains the right to say it has heard enough and bring discussion of any particular matter to. an end. An employee may not refuse to continue discussions with management on work related matters merely because she feels that her views on some matter or matters have not been fulIy heard or appreciated. Ii' she thinks that the failure to hear or act on her views is a violation of the collective agreement then she m~ay grieve, but must carry out management's instructions in the meantime. in Re British Columbia Railway and Canadian Union of Transportation Employees, Local 6 (1982) 8 L.A.C. (3d) 233, Arbitrator Hope observed (at 249) that: The now-celebrated statement of Professor Shulman that an industrial plant is not a debating society does not contemplate a work environment that is dictatorial or require employees to be submissive. The balance to that statement was given recently by Professor Swan in Canada Packers, Inc. and United Food & Commercial Workers, Local I14P, October 22, 1982,.~ unreported. He said, "an industrial plant is not a debating society. On the other hand, neither is it a paramilitary organization...". As that observation.implies, discipline in an industrial plant is maintained by the exchange of a. decent level of respect between supervisory and bargaining unit employees. Respect, in that context, is not extended or withheld on the basis of personalities. It is the necessary etiquette of people who must work together and who must accept' their diverse roles and r~sponsibilities. It is no answer, as the grievor implied, to say, "I do not respect my supervisor." It is his obligation as an employee to extend respect. If he cannot do so he must leave. An employee is not obligated, as Professor Swan so graphically stated, to become ,servile or subservient. But he must be prepared to accept authority and adopt a posture of at least token respect. We agree with these observations as well. They also apply equally to' the office environment.. There are exceptions to the fundamental rule that an employee must act in accordance with her employer's instructions. One arises when the employee. believes that doing as the employer has ordered will endanger her or his health and safety. This exception is recognized both in the Occupational Health and Safety Act, .R.S.O. 1990, c. O. 1. and in the arbitral jtirisprudence which developed before and independent of statutory provisions. In Brown and Beatty, Canad~n Labour Arbitration (3d) the learned authors note at paragraph 7:3621 that Fear for one;s personal health and safety is' perhaps the most common reason why employees refuse to' obey a supervisor's instructions. In determining whetl~er an employee falls within this exception, there appears to be a firm consensus among arbitrators that the appropriate scope of inquiry should include a determination of whether: - - - First, did he honestly believe his health or well being was endangered? Secondly, did he communicate this belief to his supervisor-in. a reasonable and adequate manner? Thirdly, was his belief reasonable in the ' ~circumstances?'Fourthly was the danger sufficiently serious to justify the particular action he took? (footnote omitted) They also note that The detei-mination of whether an employee's apprehensions are reasonable is, of necessity, an objective one: In the most general terms, the question has been phrased, "whether the average employee at the work place, having regard to his general training and experience, would, exercising normal.and honest judgment, have reason to believe that the circumstances presented an unacceptable degree of hazard." (footnote omitted) The Occupationo.l Health and Safety Act provides a right to refuse unsafe work in sedtion 43 (then 23): (3) A Worker may refuse to work or do particular work where he or she has reason to believe that, (a) any equipment, machine, device or thing the worker is to use or operate is likely, to endanger himself, herself Or another worker; (b) the physical condition of the workplace or the part thereof in which he or she works or is to work is likely to endanger himself or herself, or (c) any equipment, machine, device or thing he or she is to use or operate or the physical condition of the .workplace or the part thereof in which he or she works or is to work is in contravention of this Act or the regulations and such contravention is likely to endanger himself, herself or another worker. (4) Upon refusing to work or do particular work, the worker shall promptly report the circumstances of the refusal to the worker's employer or supervisor who shall forthwith investigate the report in the presence of the worker and, ff there is such, in the presence of one of, (a) a committee member who represents workers, if anY, (b) a health and safety representative, if any; or (c) a worker who because of knowledge, experience and' training is selected by a trade union that represents the worker, or if there.is no trade union, is selected by the workers to represent them, who shall be made available and who shall attend without delay. '~5) Until the investigation is completed, the worker shall remain in a safe place near his or her work station. (6iWhere, following the investigation or any steps taken to deal with the circumstances that caused the worker to refuse to work" or do particular work, the worker has reasonable grounds to believe that. (a) the equipment, machine, device or thing that was the cause of the refusal to work or do particular work continues to be likely to · endanger himself, herself ~ another worker, (b) the physical Condition of the workplace or the part thereof in which he or she works continues to be likely to endanger himself or herself; or , (c) any equipment, machine, device or thing he or she is to use Or operate or the physical condition of the workplace or the part thereof in which he or she works or is to work is in contravention of this Act or the regulations and such contravention continues to be likely to endanger. himself, herself or another worker, the Worker may refuse to work or do the particular work and the employer or the worker or a person on behalf of the employer or worker shall cause an ingpector to be notified thereof. That Act also provides in section 50 (then 24) that an employer may not disci. pline or discharge an employee for exercising these statutory rights: . 50. (1) No employer or person acting on behalf of an employer shall, (a) dismiss or threaten to dismiss a worker; (b) discipline or suspend or threaten to discipline or suspend a worker; (c) impose any penalty upon a worker; or (d) intimidate or coerce a worker, because the worker has acted in compliance with this Act or the regulations or an order made thereunderl has sought the enforcement of this Act or the regulations (2) Where a worker complains that an employer or person acting on behalf of an employer has contravened subsection (1), the worker may either have the matter dealt with by final and binding settlement by arbitration under a collective agreement, ff any, or file a complaint with the Ontario Labour Relations Board... The phrases "has reason to believe" and "has reasonable grounds to be- lieve" in subsections (3) and (6) of what is now section 43 of the Act establish dif- ferent prerequisites, to exercise of the right to refuse to perfqrm work. Subsec- tion 3 requires only that the employee have a subjective belief that he or she would be put in danger, while subsection 6 requires~that the supporting belief be objectively reasonable: see Elgaard v. Sidbec Dosco Inc,,. supra, at page 140, Domtar Inc. [1988] O.L.R.B. Rep. Aug. 780 and Re Beachvilime Ltd. and Energy & Chemical Workers, Local 82 (I981), 1 L.A.C. (3d) 22 (Palmer) at page 29. The less rigorous requirement ,applies only until the employer has investigated the employee's complaint. Under either test, the belief must be a genuine belief that. if the order is obeyed the employee will be exposed to a serious' health or safety hazard, not merely to unpleasant or distasteful conditions: see generally Cana- dian Labour Arbitration, supra, at ¶7:3621 and Palmer, Collective Agreement Arbitration In Canada"(3d) at pages 320-325. Before turning to the detailed issues, we have some general observations to make. At the beginning of his argument, counsel for the union said that while employer counsel had focused on the grievoFs character in her argument, it was the grievor's behaviour and alleged misconduct that was at issue, not her charac- ter. Later, in support of his argument that Ms. Orcheson had not compared man- agement to the Gestapo as Mr. Brink claimed, he submitted that it would have been "out of character" for her to have done that. The central issues in each of the grievances before us are whether the be- haviour for which the grievor was disciplined' or discharged was misconduct which warranted some .discipline and, if So, whether the discharge or other dis- cipline imposed was an appropriate response in all the circumstances or should be varied. The sort of person the grievor appears to be enters into the analysis in two ways. One is illustrated by the union submission to which we just referred: the sort of person the griever appears to be may sometimes be a consideration in resolving a dispute about whether or why she did something. The other is in de- retraining the appropriate response to misconduct,' when it is important to con- sider a grievor's potential for reform. The testimony of management witnesses portrayed the grievor as a diffi- cult employee. She was certainly a difficult witness: she was often either unre- sponsive or argumentative when answering questions. During cross-examination she frequently responded to a question with a question beginning with the words "are you asking" followed by a refrained version of the question she had been asked. While this may occasionally have sprung fr?m a genuine ne-ed for clarifi- cation, it was often clear that it .did not, and was simply argumentative and con- trolling. Even during direct examination by union counsel, Ms. Orcheson some- times treated questions as an opportunity to make argument. For example, when ..... ,:- - 110 - union counsel was questioning the grievor about the meeting of September 10, 1991 and Mr. Brink's request for her suggestions for improvement in communi- cations, there was the following exchange: Q. Did you have any reservation about discussing this with him? A~ When 1 sat beside the witch's head skewered on the metal' post, did I have. concerns? Q. Yes... This was after the grievor had had some months to absorb Mr. Brink's testimony that the object referred to was in fact a bust of a male poet. Later, when union counsel asked her if she had made any earlier complaint to Mr, Mros about her computer, Ms. Orcheson responded by recounting an incident which involved nei- ther Mr. Mros nor her computer. The occasion was one when she said Jason Fani had come into her office and told her that his computer's operation had been in- terrupted and that he thought that was due to her having plugged her humidi- tier into the electrical outlet meant only for computers. She testified that she 'then asked if he was an electrician, and in response he went on about how diffi- cult she was. "I'd only asked if he was an electrician," she said. Another noteworthy instance of Ms. Orchesoffs conduct as a witness was her reaction to employer counsel's questions about her assertion that she took a vacation day on September 19, 1991 to honour a commitment she could not avoid. As we have noted, she repeatedly refUSed to answer questions about what the commitment was, questions to wh/ch union counsel did not object and could not have successfully objected. She persisted in her refusal after being told that this could have an adverse impact on her, because we might draw the adverse inference that there had been no unavoidable, previous commitment. We do not propose to 'multiply the examples. While Ms. Orcheson is not the only person who has ever been unrespormive or argumentative or reluctant'to answer a relevant question while testifying, the extent to which she did those things was unusual and noteworthy. Her conduct as a witness was consistent with the portrayal of her in the testimony of management witnesses. Each party led extensive evidence about events which took place weeks, months and years prior to the events which gave rise to the discipline and dis- charge challenged in these grievances. The union addressed past events in an attempt to substantiate Ms. Orcheson's claim that management was out to get her long before it had cause for discipline or discharge, as well as her claim that the incidents on which management ultimately relied to sustain discipline and discharge were the result of a pattern of provocative behaviour on the part of management which had begun earlier. The employer addressed past events to negate any suggestion"that Ms. Orcheson's difficulties with authority began only after Mr. Brink arrived, and to show that she had engaged in and been ·warned about insubordinate conduct prior to the incidents for which suspensions and termination were imposed. The employer largely achieved its objectives in 'ad- dressing past events. The union did not. We do not accept the proposition that Messrs. Mierzynski and Brink were engaged in a vendetta against Ms. Orcheson which had the Wiarton matter as its genesis. The way the basis of this theory wa~ put to Mr. Mierzynski in cross- examination was that Ms. Orcheson had discovered that a substantial unauthor- ized payment had been made to the Town by the department headed by Mr. McIntyre, that she had subsequently passed this information to 'the Provin- cial Auditor and that she had been criticized for doing so. The implication was that this had reflected badly on Mr. McIntyre and his then subordinate Mr. Mialkowski, so that Mr. McIntyre had thereafter engaged Mr. Mierzynski as an avenger when he came into the branch as his subordinate some two years or . more later, and Mr. Mierzynski, in turn, had recruited Mr. Brink to the cause nearly two years after that. Ms. Orcheson's own evidence was that it was Mr. Beatty who found the improper payment. It was Mr. Beatty who first reported it. Her involvement was in dissuading him from his initial conclusion' that she had been at fault, in the end, the finding was still his finding, the report was still his report. She did not pass any information about it to the Provincial Auditor's staff until they asked for the file, and then only after getting her supervisor's approval. The only thing she claims to have told them that they'might not have found once they reviewed the file was that she had initially been blamed. She acknowledged that her su- .periors had not criticized her for passing information to the Provincial Auditor. Assuming the truth of all the grievor actually said about these events in her tes- timony, including the proposition that she did not actually cause the duplicate ' payment, it is difficult for Us to see why either Mr. McIntyre or Mr. Mialkowski _. .... .,=- - 112- would have been angry or vindictive toward Ms. Orcheson by reason of either the payment or for the Provincial Auditor's having become aware of it. In her testimony Ms. Orcheson referred more than once to Mr. Mier. zynski's.having said "you're screwed" to her in September 1989 in. relation to her .. expectation that her newlY defined position in the branch would be classified at the AMI8 level. She did not deny his earlier testimony that if he had said that it would only have been by way of repeating what she had already said in that con- versation. She also said that in November 1990 he told her he did not want her in the branch. That had earlier been put to Mr. Mierzynski during cross- examination. He said he .did not recali such a conversation. During cross- examination the grievor also claimed that he had said this in September~ 1989, a proposition that had not been put to Mr. Mierzynski. We are not comfortable accepting Ms. Orcheson's claim that in both Sep- tember 1989 and November 1990 Mr..Mierzynski said he did not want her in the branch. Ms. Orcheson had a tendency to take words and actions out of context and distort them, and there is a substantial danger that she did so here. It would not surprise us, however, if Mr. Mierzynski had expressed displeasure with Ms. Orcheson in some manner both in September 1989 and again in November 1990. He was clearly annoyed with her behaviour at both times. By September . 1989 he had been subjected to her repeated insistence that he deal with the mat- ter of her position and its classification, despite his having told her that tho~e matters should be dealt with by his subordi'nates. In that contextl she had also asserted an alleged understanding with Mr. Ken Adams which Mr. Adams de- nied. 'In November 1990 she drew Mr. Mierzynski into her debate with Mr. Adams about the distribution list, and continued to press him on that subject after he' considered it settled. His having formed and perhaps even expressed a negative view at those times can easily be understood as 'a reaction to her recent conduct, without postulating his participation a vendetta which antedated his arrival' in the branch in July 1989. Mr. Ken Adams testified that he thought M§. Orcheson was a liar and a slacker. He thought she was a liar because she had claimed in a memo to his su- perior that he was party to an understanding about the classification of her job. We accept his testimony that there was no such understanding. He thought she was a slacker because her apparent productivity was so much lower than Mr. Miernicki's. It is unnecessary 'for us. to determine whether Mr. Adams' as- sessment of the grievor's productivity in late I990 was accurate. We, accept that his concern was genuine. We also accept that his memo to Mr. Mierzynski of Feb- ruary 1, 1991 was accurate when it stated that he had that day discussed with MS. Orcheson the signing of her performance appraisal and she had refused. This is'one of many. points on which Ms. Orcheson's testimony was either mistaken~0r untruthful. When he took over from Mr. Adams as Acting Manger, Mr. Brink had Mr. Adams' appraisal of Ms. Orcheson's performance. He had heard the commo- tion the day .she was asked to sign it. Ms. Orcheson Was one of the subjects he discussed with Mr. Adams in the course of taking over his position. We have no doubt Mr. Adams expressed his view of Ms. Orcheson as candidly and categori- cally as he did in his testimony before us. He warned Mr, Brink to be precise about facts and keep notes in his dealings With Ms. Orcheson. it is not surpris- ing, therefore, that Mr. Brink started keeping a file and communicating in writ-' ing fairly early on in his dealings with Ms. Orcheson, nor that he soon tUrned his attention to the question of her productivity. Mr. Adam's advice and his own early experiences with Ms. Orcheson are quite enodgh to account for Mr. Brink's ~lose scrutiny of her conduct. They can be accounted for quite adequately without postulating his induction in 1991 into a vendetta said to have its origins in some events in 1986. We do not propose to set out a detailed analysis of the evidence about the, period from March.to August of 1991. We have two comments to make about it. One is that during that period Ms. Orcheson conf~rmed the wisdom of Mr. Adams' advice to Mr. Brink. The other is that we can see no objective basis for the belief, which Ms. Orcheson claims to have had at the time, that Mr. Brink had solicited her course comments in order to foment a dispute between her and the branch of the Ministry responsible for providing the courses. This was one of several improbable notions she claims to have entertained with respect to the motivation of Mr. Brink and other members of management. ' During September 1991 Ms. Orcheson became more active in demonstrat- lng her disrespect for Mr. Brink, and on September 27 was warned against doing so further. Having just been reminded by Mr. Brink in a memo of September 6 and at the meeting of September 10 that she was to give him longer notice when she wished to take a day off, late in the afternoon of September 12 she left him a message that "I may be on vacation leave tomorrow" and then was absen~ that day. She walked out of the meetings of September 10 and 24. We find that it was she, and not Mr. Brink, who first mentioned the Gestap° in the meeting of Sep- tember 10: had this come from him "out of left field," as she later testified,, we are confident she would have expressly recorded that in her notes. If she had ,not known before, she would have learned immediately .that such a reference was. very upsetting for Mr. Brink as a result of his childhood experience in occupied / Holland. Her own notes record that he .told her that, and that her reaction was to probe the wound by asking him "what he learned." The emotional reaction she thus provoked was not a sufficient excuse for her then walking out, as she did.' She also walked out of the meeting September 24. Mr. Brink's having told her that he did not wish to hear any more about her views on a particular topic did not excuse her from continued participation in that meeting. ) Between the meetings of September 10 and 24, 1991 .there was the grievots unilateral decision to take a vacation day on September 19 rather than attend the First Aid course as Mr. Brink had ordered her to do. In that connec- tion We accept Mr. Brink's evidence that on September 16, when he first sug- gested that she attend that course on September 19, he did not know and she did not tell him that she had arranged to take sucl~ a course on September 17. If there was such an arrangement and he knew about it, there would have been no reason for him to arrange for her attendance on September 19. We also accept Mr. Brink's testimony that on September 16 Ms. Orcheson did not say she had firm plans tO take vacation on September 19. It would have been quite uncharac- teristic of her dealings with Mr. Brink to give that much clear notice of a vaca- tion day. The Two Day Suspension The Incident of October 28, 1991 ' 4 There are two distinct question~, about the encounter between Ms. Orcheson and Mr. Brink on October 28, 1991: whether 'her conduct on that occasion was insubordinate, and whether his conduct justified or excused hers on that or subsequent occasions. Ms. Orcheson and union counsel contended that when Mr. Brink attended at Ms. Orcheson's office that day he intended to provoke an incident. In support of this they came to focus on the photocopied note of October 22, to which she said he referred during the incident as having been of poor quality. Ms. Orcheson offered 'into evidence a dopy of that note which she said Mr.' Brink had earlier de- iivered to her with his approval and Sign-out instructions noted thereon. She~ob. served, correctly, that that copy was of better quality than a photocopy in one of the employer's books of productions. The latter appeared to be a photocopy of which the original would have been a Copy of what Mr. Brink returned to Ms. Orcheson after adding his note. The grievor returned to this point about the difference in quality of these two photocopies more than once in her testimony, suggesting that it was evidence of deceit on Mr. Brink's part. It became the foun- dation of union counsers argument that on October 28, 1991 Mr. Brink had at- tended on Ms. Orcheson with what he described as a "bogus poor copy," some- thing counsel argued was manufactured 'in order to provoke an incident. This is a small point or, at least, ought to have been's6. We address it only because of the attention it was given in Ms. Orcheson's testimony and in union counsers argument, and because it is a further illustration of Ms. Orcheson's ap- proach and perspective. We note first that when he testified, Mr. Brink made no reference to hav- ing had a photocopy of the October 22' note with him when he went to Ms. Orcheson's office. He identified other documents which he said he had taken with him. He was cross-examined extensively about those other documents. While it was put to him in cross-examination that he had said something about the photocopy left with redeption, it was not put to him that he had brought with him or showed her ~any copy of that photocopy. The proposition that he showed her a photocopy of the note first emerged in Ms. Orcheson's testimony, some months later. The document later produced by Ms. Orcheson during her testimony was not put to Mr. Brink in cross-examination. He testified in chief about having de- livered such a document to Ms. Orcheson, however. He testified, consistent with Ms. Orcheson's later testimony, that he had received the or~gfaal of her note. He said he had affixed that original to a larger piece of paper, written his response to her on th~ note and the attached paper, and delivered the result (either the original or a photocopy, it is not clear which) to Ms. Orcheson. He also testified, consistent with Ms. 0rcheson;s later testimony, that she had also delivered a photocopy of her October 22 note to reception. He said that someone at reception had brought that photocopy to him, that he had observed that that photocopy was 0fPoor quality and' that he'had made a note to that effect ~n the copy he re- tained of the document he had delivered to Ms. Orcheson.. He testified that he believed that the photocopy left with reception was ~of poor quality, because the handwriting on the original was in blue ink and the photocopier used to make the copy apparently did not reproduce blue well. He said the copy he made of the original note was made on a photocopier which handled blue better. None of this was challenged in his cross-examination. Mr. Brink made it clear that the document that appeared in the document books provided to the panel and union .counsel by employer counsel was derived from the original note as modified by his affixing the paper and appending the reply -- that is, from the document or the original of the document he returned to' Ms. Orcheson -- and not from the photocopy Ms. Orcheson had delivered to reception. He was not asked how many generations of photocopies there had been between the original note and the pages which appeared in the document books. He was not asked to produce the photocopy brought to him by reception. It was his testimony about what he had seen, and not the page in the document books, which was the evidence that the photocopy left with reception had been a poor reproduction. This evidence was not offered by Mr. Brink or by the employer as evidence of misconduct on Ms. Orcheson's part, 'but only to explain why he was concerned that she adopt a different method of communication. We are not persuaded that when Mr., Brink attended at Ms. Orcheson's office on October 28, 1991 he brought with him a "bogus poor copy" of Ms. Orcheson's note of October 22 "manufactured" in order to provoke .an inci- dent. We are not persuaded that he had any intention to provoke an incident on · that occasion. We find that on October 28, 1991 Mr. Brink attended on Ms. Orcheson during working hours and in good faith initiated a discussion about work related issues. As he was speaking to her, and without first uttering even a pro forma request to be excused, she began to leave the room. That is what he perceived she was doing, and it is what she testified she was indeed doing. Her actio'ns clearly said she would not listen to him any more. Whether by words or conduct, the conveyance of that message by an employee to a supervisor who is speaking to her about work reIated matters is insubordinate conduct. The fact that Ms..Orcheson disagreed with the proposal Mr. Brink was then presenting or felt aggrieved that he waS"not listening to her views or giving them appropriate weight did not excuse her misconduct. Nothing Mr. Brink had done up to that point excused it. 'His subsequent response to this conduct could not .change its insubordinate character. Her conduct was clearly insubordinate. There is a substantial dispute about what Mr. Brink's immediate response to this insubordinate conduct was. He Says he simply stood his ground and blocked her exit, but neither pushed nor touched her. Her descriptions of his con- duct have varied. In the course of her anonymous 911 call, her description of what happened evolved from a blocking to a virtual bumping and knocking back to a bumping which was nevertheless not a physical hitting to a "collision." The police officer she spoke to was the first to character/ze the event as one in wh/ch her unnamed supervisor had pushed or shoved her, and it was only a~er the offi- cer had done so that she finally said he had "pushed into" her. When she received Mr. Brink's memo saying he had blocked her exit, the grievor replied by memo that She had 'no comment at that time, and copied that memo to Mr. Mierzynski and to Mr. Brad Adams in the Human Resources Branch. In a memo prepared four weeks later, after she had been disciplined for refusals to meet with Mr. Brink, she said that when she rose to leave she "was pushed back" and that the police had called this an assault, leaving it to the reader to infer that the pushing was a deliberate act by Mr. Brink and that the police characterization was based on a properly understood and accurate account of the events. The only thing she accused him of directly was 'ihostile behaviour." Employer counsel argued that the passage of time between the event and Ms. Orcheson's accusations was itsel[ a reason to disbelieve her accusations. We did not accept that submission. The fact that a female employee delays reporting an attack by her male supervisor is not necessarily ihconsistent with the report's being truthful. Indeed, delay in the victim, s reporting it may be one of the natu- ral consequences of a traumatic attack. All of the circumstances must be consid- ered before drawing any conclusion about a delay in reporting. Ms. Orcheson's account of the event in her testimony was closer than her November 27 memo to what she said in the early part of her conversation with the police officer, when she was describing a bump or collision which was not a physical hitting.. She did not claim to have seen Mr. Brink move into contact with 'her, but °nly that she 'felt contact and felt pushed back. She said she thinks it was his.chest which came 'into contact with hers. Mr. Brink does not have the build of the stereotypical bar-room bouncer. He is a slight man -- not substantially taller or obviously heavier than Ms.'Orcheson. it is most difficult to imagine his choosing to use his chest to push someone back. We do not believe that he deliberately pushed her or initiated any Other sort of physical contact on this occasion, nor do we believe she ever thought he had. While it is apparent .from the tape of her 911 call that Ms. Orcheson was upset, that is not inconsistent with Mr. Brink's version of the events. She was so obviously loath to have Mr.'Brink exercise any control over her conduct in .the workplace that even the events he described would have upset her considerably. She would have been upset and angry that he prevented her from walking out on him and did not back away when she moved toward him. As soon as she saw that he was not moving back, it would have ·occurred to her that if she continued moving there would be a collision. We have no difficulty imagining Ms. Orcheson's instantly assigning responsibility for that potential collision to Mr. Brink because he was. deliberately blocking, her exit. Whether she thought afterwards that there had been an actual collision or simply equated the blocking with its potential consequence -- treating blocking as virtual bumping -- it is clear from the early part of the 911 call that slxe did not equate what he had done with physical hitting or other deliberate, aggressive physical contact. Our finding that Mr. Brink did not deliberately push Ms. Orcheson or ini- tiate any other sort of physical contact on this occasion .begs the question whether there was some physical contact which was accidental or. initiated by Ms. Orcheson -- a collision between his stationary 5ody and her moving one, for example. We do not think the health and safety defence turns on the answer to that question: if the only physical contact was the result of Ms. Orcheson's movement, not Mr. Brink's, then it would not sustain an objectively reasonable belief that meeting with him alone thereafter involved some substantial danger .~ . .,. - 119- . ~ to her health and safety. We address the question only because the it goes to the general credibility of the two participants. Their testimony on it is in clear con- flict and it is not a matter on which one of them could be mistaken. A.collision, albe~t one Ms. Orcheson could have avoided, is a plausible out- .. come of her moving toward Mr. Brink as he stood stationary, blocking her exit. it is consistent with the content of Ms. Orcheson's 911 call. There was also some. thing in Mr. Brink's manner of answering the question about whether he touched Ms. Orcheson, a hesitation and change in tone of voice, which might evidence un- certainty about or discomfort with his negative answer to that question. On the other hand, there is no apparent reason why Mr. Brink would deny contact of ~ this sort, if it occurred. Mr. Brink.was generally a candid, forthright and reliabIe witness, while Ms. Orcheson often was not. The evidence shows that she was in- clined to distortion and invention in describing her supervisors' actions to others: her assertion that Ken Adams was party to an understanding about the~ descrip- tion and classification of her job, her assertion that she was not asked to sign Mr. Adams' performance review on February i, 1991 and her assertion that Mr. Brink first used the word Gestapo in the meeting of September 10,, 1991 are examples of this. It seems not at all unlikeiy that the grievor would distort and invent in the course of her anonymous 911 call, her memo of November 27, 1991 or her testimony, before us. On balance, we conclude that there was no collision or other physical contact between Mr. Brink and the grievor after she attempted to walk out of her meeting with him on October 28, 1991. The Incident of October 30, 1991 And The Grievor's Failure To Answer Mr. Mierzynski's Questions Mr. Mierzynski went to Ms. Orcheson's' office on October $0, 1991 because . her "no comment" response to his memo of October 28, 1991 gave him concern that she did not fully appreciate her obIigation to answer the questions posed in that memo by the Stipulated deadline. He wrote a reminder of that on her "no comment" memo, delivered that to her and orally asked her what she was going to do about the questions. She replied that she had ho comment at that time, and started to walk Out. We are satisfied that she started to walk out without having first received any indication, verbal or non-verbal, that Mr. Mie_rzynski consid- ered the discussion he had initiated to be at an end: This would be rude conduct in dealing with a peer..When directed toward a superior, it may be fairly charac- ..... ,... - 120- terized as mildly insubordinate ff it was deliberate rather than merely the result of distracted inadvertence or inattention. Ms. Orchcson did not claim it was the result of inadvertence or inattention. When the grievqr started to leave without having been told that he had nothing further to. say to her, Mr. Mierzynski asked her where she was going. That was a natural reaction to that unexpected behaviour. She replied factually that she was going to the baby shower, but did not ask if he had anything further to say. He said nothing further, and she left. It is not clear whether she actually Stopped moving when he asked where she was going, nor whether she remained motionless for any length of time after giving her answer. We accept that she remained within earshot long enough to have heard him order her to. stay, if he wished to give such an order. It is common ground that he did not do that. The fact that at that point he chose not to pursue the discussion does not excuse Ms. Orcheson's having earlier unilaterally treated the conversation as at an end. We do not suggest that standing alone the grievous conduct on October 30~ 1991 was serious misconduct. It was rude and, since it was apparently delib- erate, it was mildly insubordinate. Had it been the first and only such incident of rudeness toward a superior, it would have been excessive to respond to it with more than a warning that such conduct was unacceptable. It did not occur in isolation, however. It followed her similar and more serioffs insubordination on . October 28,~ when she began to walk out on Mr. Brink as he spoke. It also Pre- ceded her failure on November 1 to deliver answers to the questions posed by Mr. Mierzynski's memo of October 28. Ms. Orcheson testified that she thought "they" intended to use .her an- swers to Mr. Mierzynski's questions to deny her a position in the proposed Crown Corporation. There can be no doubt that the questions sprang from a concern about whether her employment could continue if her .approach to it did not im- prove. Her view, however, was that they were trying to provoke conduct which would justify denial of continued employment, rather than to correct~ a pattern of conduct which might lead to discharge if it continued unchecked. We do not ac- 'cept that view. Mr. Mierzynski's questions may have been framed more aggressively than we might have chosen to frame them, but that does not excuse the grievor's fail- ute to answer them. They addressed a legitimate concern on the part of man- agement, and management was entitled to have them answered. During the hearing it was suggested that the grievor was not given sufficient time to answer the questions, and that she delayed doing so because an advisor was unavailable. The only response she"gave before the deadline, however, was' that she had no comment. She did not say she needed more time, nor that she could not comment- until she spoke to someone else who was then unavailable. She did not ask for an extension of the deadline, either before or after it passed. Propriety of the Two Day Suspension Mr. Boyko's memo of November 4, 199'1 imposing, the two day suspension said that ! have been advised by Mr. Mierzynski, Director of the Project Engineering Branch, that on October 30, 1991 during a discUssion with him that you walked out of the office very abruptly without any discussion or explanation. I understand that a similar incident occurred with your Manager on October 28, 1991 in your office. We recognize that it was not literally true that the grievor walked out on October' 30 without any discussion or explanation. She started to walk out with- out discussion or explanation. She was'then asked where she was going. She an- swered that question as though it was merely a request for information, and then walked out without further discussion or explanation. The incident of October 28 did not involve 'a completed walking out, but similarly involved the grievor~s starting to walk out withou~ prior discussion or explanation. The memo correctly stated that the grievor had failed to answer the questions posed by Mr. Mierzynski by the deadline assigned. It also correctly stated that she had "been warned that similar sorts of misbehaviour would result in discipline if they continued. We are satisfied that while in some respects the grievor's conduct was not exactly as described in Mr. Boyko's letter, her actual conduct on the occasions in question Warranted a disciplinary response. Having regard to the prior warnings and the cumulative effect of the events to which it was a response, we' do not think a two day suspension was excessive, and decline to substitute a lesser penalty. The grievance with respect to that suspension i~ dismissed. ,-. , ,,:, - 122- The Five Day Suspension Gerry Mros' Encounter With The Grievor .By contrast With the grievor,, we found Mr. Mros to be an entirely credible and reliable witness. We reject the union's submission that he should be disbe- lieved because at the time of his testimony he was still an employee, in Mr. Mierzynski's branch. Where the grievor's testimony conflicts with that 'of Mr. Mros, we prefer the latter: We find that Ms. Orcheson made gratuitous and undeserved derogatory comments to Mr. Mros about his qualifications and ability to perform his job, and underscored those comments by interfering with his performance of his job. While this conduct did not' constitute insubordination, it was inappropriate con- duct which the employer ' had a legitimate interest in preventing. It was appro- priately mentioned in the memo of November 19, 1991. Standing alone, it would not have warranted more than a warning. It was sufficiently different from the other misconduct for which the five day suspension was imposed that that other misconduct would have to be sufficient alone to justify discipline of that magni- tude. We think it was. Incidents of November 8 and 14, 1991 On November 8,' 1991 Ms. Orcheson walked Out of an impromptu meeting initiated by Mr. Brink. She offered no excuse for this at the time. She did not l~hen tell Mr. Brink, or any other member of management, that she was con- cerned that her health and safety would be endangered by meeting with him. She offered no excuse later, in the face of Mr. Brink's memo to Mr. Mierzynski of the same date. Her only response to that memo was a memo to Mr. Brink saying she had no comment. On November 14 she defied Mr. Brink's instructions to at- tend a meeting the following morning, and did not attend that meeting. Again, she gave no explanation of this conduct when it occurred. She raised no safety or other concern with Messrs. Boyko and Clark ~vhen she had the opportunity on November 15, 1991. Having thereafter been disciplined for this conduct, the grievor wrote a memo of November 27, 1991 alleging that she had been pushed on October 28 and had'since, avoided meeting with Mr. Brink. The grievor is an articulate per- son. She has a complete grasp of the.English language, including'its subtleties. Her written communications show that she had no difficulty being blunt, explicit or critical of others in asserting her positions and views. It may the'refore be sig- nificant that in l~er memo of November 27 she did not expressly state that when 'she avoided meeting with Mr. Brink she had acted out of concern that he would strike her or otherwise endanger her health or safety. . We have found that there was no physical contact between the grievor and Mr. Brink on October 28. We are satisfied that the grievor had no objective basis for any belief that her health and safety would have been endangered by meeting alone with Mr. Brink. We are further satisfied that the walking out of November 8 and the subsequent defiance of the order to meet November 15 were not the result of any subjective belief that there was any such danger. Without suggesting that her feelings in this regard, were justified, it is clear from her prior conduct that the grievor disrespected Mr. Brink and found it distasteful to deal with him, particularly face-to-face. We conclude that it was that disrespect and distaste, and not some unarticulated health and safety con- cern, that led her to walk out on November 8. It is clear from her behaviour and · written communications (including her memo of December 5, 1991) that she ob- jected to Mr. Brink's taking over the drafting of a Minister's letter which she felt it was her job to draft. Her refusal on November 14 to meet with him NOvember 15, her actual failure to meet that day and her other delays and denials of eom- munication with respect to the innisfil matter were simply a defiant response to what she clearly regarded as "a violation of generally accepted practice and pro- cedure a'nd an unwarranted change in my duties." These were acts of insubordi2 nation of a serious nature which Could not be excused by the grieV°r's general disrespect for Mr. Brink or her belief that he was acting improperly by taking over the drafting of the Minister's letter. Propriety of The Five Day Suspension The incidents of November 8 and 14 were clearly cause for discipline, as was her failure to answer Mr. Mierzynski's qu~estions by the new deadline set in Mr. Boyko's memo of November 4, which she let pass again without any expla- nation or request for extension. These were acts of insubordination similar to those for which the grievor had previously been disciplined. - 124- Mr. Boyko's memo imposing the five day suspension referred also to the grievor's departure from the meeting of November 15, 1991 and the subsequent communication by Mr. George. It does not appear that Mr. Boyko regarded these as cause for discipline, and counsel did not suggest that they were. They did,' however, describe the context in which Mr. Boyko had chosen to progress to the next level of discipline with respect to the most recent incidents of her insubo/'di- nation in her dealings with Mr. Brink, a context in which there was simply no explanation for her conduct. We are satisfied that imposing a .five day suspension was a restrained application of progressive discipline in these circumstances. The grievance with respect to that suspension is dismissed. The Ten Day Suspension Incident of December 2, 1991 · By December 2, 1991 Ms. Orcheson had twice been disciplined for walking out of and otherwise refusing to participate in meetings with Mr. Brink. As union counsel stated to Mr. Boyko in cross-examination, Ms. Orcheson had consulted with the union each time she was disciplined. Against this background, she walked out on Mr. Brink'again on December 2, 1991. She offered no excuse at the time. She did not assert a safety concern. She did not follow the procedure con- templated by the Occupational Health 'and Safety Act. She later said she had walked out "for obvious reasons." She testified that the "obvious reason" was the alleged assault of October 1991. If by "assault" she means the alleged pushing, we have found there was no pushing. If by "assault" she means the conduct ad- mitted by Mr. Brink, the blpcking of her exit, we have found that what did occur on October 28, 1991 could not be the basis for an objectively reasonable belief that her health and safety would have been endangered by meeting with Mr. Brink. Even if section 24, now 50, of the Occupational Health and Safety Act can be available to a worker who fails to satisfy the contemporaneous report re- quirements of subsection (4) of section 23, now 43, we are not persuaded that the grievor acted on this occasion out of a subjective belief that meeting with Mr. Brink was likely to "endanger" her in the sense contemplated by section 43. We find that she acted out of disdain and disrespect for Mr. Brink and in delib. erate defiance of his authority. It does not matter, as union counsel at one point suggested it did, whether the subject on which Mr. Brink proposed to speak to thegrievor on this occasion seems "unimportant" in retrospect, nor do we agree that it does. Mr. Brink thought the subject -- an imminent demonstration of some of the software With which she had recently been having difficulty -- was important enoUgh to war- rant speaking with her about it. This was not a trumped up excuse to confront her. Her response was insubordinate, and warranted discipline. Grievor's Response To Inquiries About The Espanola Project On December 4,. 1991 Mr. Brink sent Ms. Orcheson an e-mail~ message. · She received it that day. 'It asked that she brief him on a project either the fol: lowing morning or the morning after that. It required an initial response by the end of the day, advising as to her choice of briefing date. Ms. Orcheson says she thought Mr. Brink was asking for a written brief- ing. This is difficult to credit, but it does not matter whether that was really her initial belief: Such a belief does not explain the failure to respond by the end of the day, as the message required. Subsequent communications clearly elimi- nated any alleged misunderstanding. The grievor clearly understood that an oral briefing was required on December 9, 1991, after Mr. Brink delivered a hand- written note ordering her to attend at his office at 11:00 a.m. for the purpose of a - briefing. She acknowledged having received the note at 10:15 a.m. She refused to attend, saying only that Stephen George was not available to attend with her. She delivered some notes instead. He later ~old her that was not satisfactory, and repeated his requirement that she meet to discuss the matter. She persisted in her refusal to meet, seeking instead to conduct a meeting by telephone. Ms. Orcheson does not claim to have had, nor to have thought at the tirade that she had, a right to bring a union representativ? with her to a n{eeting of the sort Mr. Brink required her to attend on December 9, 1991. She did not respond to the order by saying, to Mr. Brink or any other member of management, that she believed that meeting with Mr. Brink was likely to endanger her. There was no more basis for such a belief on this occasion than there had been on the previ- ous occasions with which we have already dealt. She might well have been con- cerned about a danger to her employment, albeit one she saw as arising from malevolent motive, s'she attributed to Mr. Brink rather than one which arose from her defiance of his authority. We are not persuaded that she acted out of a genuine subjective belief that meeting with Mr. Brink was likely to endanger her person.' ...... We recognize that Ms. Orcheson offered Mr. Brink other means of com- munication on this occasion. That does not diminish the insubordinate character of her defiance of his authority to determine how 'such communication should oc- cur. His exercise of managerial authority was no less legitimate because he did not choose to change his requirements in the face of her resistance to them. Propriety of The Ten Day Suspension Once again there was clearly cause for discipline for ~resh acts of insub- ordination similar to those for which the grievor had previously been disciplined. We are satisfied that imposing a ten day suspension was an appropriate application of progressive discipline in these circumstances~ The grievance with respect to that suspension is dismissed. Events Preceding The Incident of March 17, 1992 In her memo Of November 27, 1991 to Mr. B0yko about the events of Oc- tober 28, Ms. Orcheson observed that Mr. Brink's contemporaneous description of those events had not. resulted in anyone questioning her about them. We ob- serve that it was hardly Surprising that she was not questioned about Mr. Brink's report, since she had responded to it almost immediately with a memo, which she had copied to Mr.-Mierzynski, saying she had no comment. We note also that she had failed to take the opportun/ty to Speak with Messrs. B0yko and Clark on November 15, 1991 about that or any other matter. When Mr. Mierzynski responded to her memo of November 27 by offering to expedite a meeting t° deal with her grievances, she ignored that offer. She did not act as though she wished to discuss and find a solution to the difficulties between her and Mr. Brink. Having set out her allegation that she had been pushed,' the grievo['s 'memo of November 27 told Mr. Boyko (as he knew) that since October 28 she had avoided mebting Mr. Brink and had been disciplined for doing so. She asked for Mr. Boyko's approval of alternate methods of communication. Mr. Boyko did not give his approval. His memo to her of January 15, 1992 made it clear that he. saw 'no reason to do so. Just before she received that memo, the grieyor had also writ- ten to the Deputy Mir/ister, asking for his approval of alternatives to meetings alone with Mr. Brink. In his response, the Deputy Minister said he would not ,in- tervene, and suggested that the issue be addressed in the grievance process. Even before that message reached the grievor, Mr. Boyko had agreed with the union that a meeting to which Mr. Brink had sUmmoned the grievor on Janu- ary 20, 1992 could be cancelled pending discussion of the matter of meeting ar- rangements at the grievance' meeting scheduled for the following day. That was the meeting or' January 21, I992, about which the parties ultimately-agreed that we should not consider anything we had heard. In the result, no evidence remains before us of any further discussion of, 'or agreement to, any special limit on Mr. Brink's authority to require that the grievor meet with him concerning her work. After January 21, 1992, Mr. Brink was prepared to permit Ms. Orcheson to bring a thirdparty with her to a meet- ing if the meeting focused on her job performance. There were such meetings. Her productivity had been and continued to be a matter of concern to Mr. Brink. Meetings focused on that concern were held on January 14 and 24, 1992 with Andrew Miernicki present, and on February 10 and 24, 1992 with Dick Choy present. It was clear, however, that before the end of January the grievor had had ample opportunity to tell management why she thought she should be ex- cused from ever meeting alone with Mr. Brink, and management had decided not to excuse her from meeting alone with him when he considered that such a meeting was in order. This was made clear in paragraph 7 of the Communica- tions Improvement Plan of March 5, 1992. In the period from her return in January to her discharge in March 1992, the grievor continued to avoid direct communication with Mr. Brink and to resist and defy his authority. For example, we accept M~r. Brink's testin~ony that on January 14 she refused to speak with him and walked away when he app~0ached and spoke to her at the elevator, and did the same later when he went to~her of- rice to tell her when that day's meeting would resume. She walked out of the meeting of January 24 before it was over. On January 30 she refused to answer an oral question, demanding that it be reduced to writing. On February 21 she - walked out of a meeting knowing there was something further that Mr. Brink wished to discuss. On March 9 she closed her office door in Mr. Brink's face twice when he came to' speak to her. And on March 13 she adopted for the first time the sit-in-the-hall response which was a feature of the incident for which she was later discharged. While these incidents were not the subject, of discipline before March 17, 1992, they clearly demonstrate that Ms. Orcheson was entirely unre- formed by the 2, 5 and 10 day suspensions previously imposed for insubordinate conduct. The Incident of March 17, 1992 On March 17, 1992, Mr. Mierzynski found the grievor.sitting in the corri- dor outside Boardroom A, where Mr. Brink was seated discussing work related matters with her. Mr. Mierzynski asked her to move into the boardroom and sit there while the meeting proceeded. She refused. Mr. Mierzynski then ordered her to move into the boardroom. She again refused. He repeated his order, adding that refusal would be treated as defiance. She again refused. That led to the de~ cision to discharge her. The Safety Defence The grievor claims that during the exchange with Mr. Mierzynski she said something to the effect that she felt "safer" sitting outside the boardroom. This is the first and okly of the grievor's many refusals to meet with Mr. Brink alone in which she claims to have made a contemporaneous reference to "safety." The union argued that this engaged the provisior~s of the Occupational Health and Safety Act, that any discipline as a result of her refusal was contrary to that Act and that there was therefore no culminating incident on 'which the discharge could be based. l~ven if she~did say she felt "safer" sittiqg outside the l~oardroom, a proposition about which we have some doubt, We are not persuaded that the griever's refusal to obey would fall within either the arbitral or the statutory health and safety exception. In assessing this defence, we accept the proposition that the presence in an employee's workplace of a person who is likely to endanger the employee is a feature of the "physical condition of the workplace" to which section 43 of the Oc- cupational Health and Safety Act may apply. It might be debated whether the incident of March 17, 1992 could fall within Subsection 3 of section 43, so as to make an honestly held, subjective be- lief in likely ~ndangerment a sufficient basis for a work refusal even though there is (as we have already found) no objectively reasonable basis for such a be- lief. Subsection 43(3) applies when there has not yet been an investigation by the employer of the specific danger complained of by the employee. It might be ar- gued that by inference and implication Ms. Orcheson had already complained that Mr. Brink was 'likely to endanger her health or safety if they met alone, and that management had considered and rejected that proposition well before the incident of March 17, 1992, so that the Act would protect a work refusal on that date based on that proposition only if the grievor could demonstrate~ an objec- tively reasonable basis for it in accordance with subsection 43(6). It is unneces- sary for us to assess that argument, however, since we are persuaded that the grievor did not have the subjective belief necessary to .support- a refusal under subsection 43(3). The instru~ion which the grievor refused to. obey was that she move through and sit inside the door to the boardroom while meeting with Mr. Brink. So long as Mr. Brink sat where he was sitting, she clearly would not have been in any greater danger from him while sitting just inside the door than she was sit- ting just outside it. He could not be a danger while seated, and if he got up and started to move toward her she could easily get back outside the room before he reached her. Her testimony shows that the grievor recognized that there was no greater danger to her health and safety if she sat inside the door than if she sat just outside it. Her explanation was that if she was not already in_the hall when he got up and moved toward her, then her stepping out into the hall might result in criticism that she had walked out of a meeting. That explanation cannot ex- cuse her refusal'to obey, because it shows that the refusal was based on a con- cern about being criticized, not a belief that her personal health and safety would likely be endangered if she obeyed. - - 130 ~ Cause for Discipline The grievor's refusal to do as Mr. Mierzynski directed was clearly insub- ordinate, and cause for discipline. whether Discharge Wa~ An Excessive Response The grievor's misconduct on March 17, 1992 was another manifestation of her continuing and determined resistance to the authority of management. That course of conduct was a repudiation of a fundamental element of the employment relationship. She had not been reformed by corrective discipline applied in a pro- gressive way to her earlier insubordination. In her discussions with management following the culminating incident and before the decision to discharge her, she did not demonstrate any awareness that she had done anything wrong. The' em- pl0yer had no reason to suppose that anything short of discharge would bring the grievous campaign of defiance to an end. Indeed, during her testimony before ~ the grievor betrayed, no aWareness that she had done anything wrong, and we have no reason to suppose that a satisfactory emplpyment relationship could be restored if Ms. Orcheson were given one last chance. We note that there was no suggestion by the union or the grievor that her unsatisfactory conduct could be accounted for by stresses in other aspects of her life. There was no suggestion that her unsatisfactory conduct was the result of some disorder which deprived her of control, judgment or perception. In the circumstances, we will not exercise our discretion' to substitute another form of discipline. The grievance with re- spect to the discharge is dismissed. Conclusion For the foregoing reasons, these grievances are all dismissed. Dated at Toronto this 22day of August, 1995. OwenV. Gray, Vice-Char - 131 - J. G. LanieI, Member ~. R. Scott, Member