HomeMy WebLinkAboutSumitro 06-07-24
IN THE MATTER OF AN ARBITRATION
BETWEEN:
ALGONQUIN COLLEGE
(the "Employer")
- and -
OPSEU, LOCAL 415
(the "Union")
Grievance of B. Sumitro re Termination
(OPSEU File No. 341502)
AWARD
Board of Arbitration: Paula Knopf, Chair
D.A. Pearlman, Employer Nominee
Pamela Munt-Madill, Union Nominee
Appearances:
For the Emplover J.D. Sharp, Counsel
Luc Presseau, Director of Human Resources
Barbara Foulds, Chair, Nursing Studies
Marie Cormier, Dean, School of Health and Community
Studies
For the Union Susan Ballantyne, Counsel
Bing Sumitro, Grievor
Jack Wilson, Secretary, Local 415
Pat Kennedy, Vice President, Local 415
Elizabeth Harris, Steward
A hearing in this matter was held in Ottawa, Ontario on November 25, 2003,
October 1, November 5, 16, 17, 24, December 8, 13, 2004, March 31, July 21,
26, October 24, 25, November 21, 22, 2005, March 9 and April 18, 2006
INTRODUCTION
This case involves the termination of a probationary employee who taught
in the College's Nursing Studies program. The Employer acknowledges that the
grievor was a good teacher. Others describe her as an excellent or an
"extraordinary" teacher. Nevertheless, she was terminated approximately one
and one half years into her probationary period. The Union alleges that the
termination was done in bad faith. The Employer asserts that there were
numerous non-teaching employment concerns that justify the termination of her
employment.
The evidence and argument was presented over 17 days of hearing. The
issues are numerous. Only the relevant and significant evidence shall be
reviewed in this Award. For the most part, there is little dispute about the facts.
There are also few issues of credibility. However, what is in dispute is the
interpretation and meaning of what happened over the time that the grievor was
employed as a full-time teacher.
The two key persons in this case are the grievor, Bing Sumitro, and the
Chair of Nursing Studies, Barb Foulds. Ms. Foulds holds a B.Sc.N., a Masters in
Education and a Ph.D. She became the Chair in 2001, with a mandate under the
new Dean to foster several initiatives in clinical education. One of these
initiatives was aimed at breaking down traditional boundaries in health care and
giving all the programs equal prestige. This was, in part, designed to respond to
the changes in RPN and PN practice, and the phasing out of the RN teaching
programs at the College level. This led to many fundamental changes in the
assignments to existing faculty and the recruiting of new teachers who would be
expected to work in more than one program. Ms. Sumitro was hired as a full-
time teacher shortly after Ms. Foulds became the Chair. Ms. Sumitro also has an
impressive resume, including a Master's Degree in Nursing. She had already
taught on a part-time basis at this College since 1998, as well as teaching at the
University of Ottawa since1993. In the Fall of 2001, she was hired by Algonquin
College as a full-time member of the faculty. There were great expectations for
her because she had proven herself as a part-time teacher in both the Diploma
and Continuing Education specialty programs. However, in November of 2001 ,
she was terminated. Then, on January 2,2002, the parties reached a
Memorandum of Settlement reinstating her. The parties agreed that the situation
precipitating the initial termination and reinstatement would not be put into
evidence at this hearing. On the other hand, they agree that their Memorandum
of Settlement is very germane to this case because it formed the foundation of
the grievor's relationship with the College and her Department Chair thereafter.
The Memo reads:
The parties' signatories agree that Ms. Sumitro will be reinstated
under the following conditions:
1. The effective date of this reinstatement will be January 2,
2002.
2. This reinstatement is in no way an admission of wrongdoing
by the College but rather is an opportunity for Ms. Sumitro to
satisfy the expectations of a full-time faculty member.
3. Ms. Sumitro will be assigned a workload and will be advised
as soon as possible. The assignment will be at the discretion
of the manager.
As a condition of this reinstatement, Ms. Sumitro will:
1. Agree to participate fully in a mentoring program beginning
Wednesday, January 2nd, 2002 until January 11, 2002. During
this time, she will receive instruction from members of the
management team of the school relating to her
responsibilities as a full-time faculty, and the College's
expectations. These expectations include both academic and
administrative matters.
2. Collaborate with the Chair of the Department, Barbara
Foulds, in the communication of this settlement. In particular,
at a staff meeting:
a. to communicate that the differences between the
department and Ms. Sumitro were legitimate and
have all been resolved satisfactorily
b. to acknowledge that she was absent from the
College during the first week of class within the first
month of employment and that the College considers
this to be an error in judgment which contributed to
her dismissal.
3. Ms. Sumitro will agree to monthly meetings with the Chair of
the Department during which issues will be brought forward
and discussed openly. These meetings will continue for a
period of six (6) to twelve (12) months. It is understood that a
union representative, as well as a representative from human
resources, may be in attendance as observers only.
4. Ms. Sumitro will continue to abide by the standards and the
rules and regulations applicable to any full-time employee of
the College.
5. Ms. Sumitro is to contact the Chair of the Department when in
any doubt about a rule or policy.
Should any of these conditions not be respected it is understood
that further disciplinary action may be necessary up to and
including dismissal.
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It is also understood that her probationary period will be reset at
2 years from the date of reinstatement.
The conditions of this reinstatement governed the parties in the months that
followed. However, it should be noted that within weeks of the reinstatement, the
College no longer insisted on the public acknowledgement referred to in the
second paragraph 2. Interestingly, the College viewed this settlement document
and its protocols as a "second chance" for Ms. Sumitro, whereas she refused to
accept that description; instead, she insisted on referring to it simply as "a
reinstatement" .
On May 14, 2003, the grievor's employment was terminated for the
second time. Her grievance over that termination is what concerns this hearing.
The relevant portions of that termination letter read:
As a probationary employee, we have raised concerns on
numerous occasions about areas of your performance that we
felt were in need of improvement. In fact, the College terminated
your employment in November of 2001 but agreed to reinstate
you and provide an additional opportunity to meet the
expectations for the School and the Program. Certain conditions
were included in your reinstatement, including
acknowledgements on your part and specific actions required.
In light of the above and your performance appraisals from
March 2002 and January 2003 and concerns raised repeatedly
by management and colleagues, the College has determined that
we must discontinue the employment relationship effective
immediately.
This Board of Arbitration is very conscious of the fact that the onus in this case is
upon the Union to show that the termination was done in bad faith. This is not a
full-time employee who is entitled to the just cause protections of the Collective
Agreement. However, while the onus remains on the Union to prove the bad faith
that has been alleged, the actual allegations arise out of the Employer's
treatment of the grievor and management's reactions to her performance.
Therefore the easiest way to analyze this case by reviewing the reasons the
Employer relied upon as performance concerns and as justification for the
termination. These can then be viewed against the Union's evidence.
Accordingly, the evidence shall be addressed according to topic and in
chronological order, wherever possible.
THE PROBA T10NARY PERIOD
Under this Collective Agreement, there is a two-year probationary period.
This allows both the College and the new teacher time to adjust to the position
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and determine whether permanent status will ensue. Marie Cormier, the Dean of
the Schools of Health and Community Studies, has had a distinguished career
with this College for 30 years. She was the person with ultimate authority over
the Nursing Studies program and who made the effective recommendation to
terminate the grievor's employment. Ms. Cormier testified that the intent during
the probationary period is for the new hire to move to permanent status. She
testified that the College hires people who are expected to succeed with their
teaching assignments because of their background and training. However, in
order to achieve a permanent position, she says the College looks for the
capacity to deliver the curriculum effectively, to work effectively as a member of
the "team", to understand and adhere to College policies and procedures, and to
have the "indefinable" quality of "professional comportment". She also said that
while teaching is a "critical facet" of the equation, "there are times for a full-time
teacher, being a member of the team is important, even more important than the
ability to teach". The examples she cited of "team" responsibilities that might be
more important than teaching were curriculum development and following
College policies.
THE INITIAL MEETINGS FOLLOWING REINSTA TEMENT
In order to understand the context, it must be mentioned that upon the
grievor's reinstatement in January of 2002, a series of meetings were set up for
the grievor to meet with Dean Cormier and her Chair, Barb Foulds. They met
several times in January, wherein Ms. Sumitro was told about the institutional
and departmental organization, its communication structure and "hierarchy", the
responsibilities of the Coordinator, and expectations regarding workload, decision
making, team work and professional development. All three women described
these initial meetings as "valuable and positive".
On February 21,2002, Ms. Sumitro met then with Ms. Foulds and the
Director of Human Resources and the Union Secretary to review the past two
months of employment in accordance with the earlier Memorandum of
Settlement. The purpose of this meeting was to bring forward any issues that
needed to be discussed. The meeting began with Ms. Sumitro expressing her
appreciation for the "support" she had been receiving from the Chair and the
Dean. She also was proud to tell them that she had been selected as a voting
delegate to the upcoming RNAO conference. She felt that her election was an
honour, and that her participation would bring professional recognition to both her
and the College. She described herself as being able to serve as an
"ambassador" for the College. She also raised the fact that there would be a
scheduling conflict with her attendance at the conference and her College
responsibilities. She told them that she had been "making inquiries" with her
Coordinator about the "feasibility of options" available for alternate coverage for
her teaching responsibilities as they had been discussing her selection as a
delegate. Ms. Foulds' reaction was to indicate that she had already heard from
the Coordinator that Ms. Sumitro had been trying to change her schedule so that
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she could go to the meeting, before discussing it with the Chair. Ms. Foulds had
concluded that Ms. Sumitro had contravened the Memorandum of Agreement by
failing to communicate directly with the Chair about a leave request. As Ms.
Foulds explained in her testimony, "That conversation [about the leave
arrangements] should have started with me" because a Coordinator has no
authority to alter the schedule or reassign teaching duties. Ms. Foulds felt that
even the grievor's "fact-finding" should have started with the Chair. Ms. Sumitro
responded to Ms. Foulds' consternation by trying to stress that there had been no
attempt to arrange a leave through the Coordinator; she had simply sought
information to present directly to her Chair. Ms. Sumitro testified that she had
tried to make it clear that her only intent in speaking to the Coordinator was to
gather and present options to Ms. Foulds so that an informed decision could be
made when the application for leave was submitted. However, despite this
explanation, Ms. Foulds felt that the discussion with the Coordinator represented
a "lack of understanding about who made the decisions about leave" and a
disregard of the series of meetings in January that had been devoted to
explaining the lines of authority to Ms. Sumitro. In cross-examination, Ms. Foulds
conceded that she had never been told by the Coordinator that Ms. Sumitro had
asked for a reassignment of workload or permission to attend. Ms. Foulds
explained that the Coordinator had brought the issue to her attention, "since I
assign the workload". However, the problem from Ms. Foulds' perspective
seems to be that the grievor should have dealt only with Ms. Foulds with regard
to the application for leave and the rearrangement of classes.
Both Ms. Sumitro and Ms. Foulds were upset by this discussion. It is clear
that the Chair saw Ms. Sumitro as bypassing the established lines of authority.
Ms. Sumitro was equally upset. She was concerned about the fact that the
Coordinator left the Chair with a misapprehension about the conversation and its
intent. Ms. Sumitro felt that the Chair should have discussed this issue with her
before reaching the conclusion that her authority was being by-passed. Although
the grievor and the Chair were somewhat upset about this issue, Ms. Foulds was
able to make it clear that if Ms. Sumitro wanted to make any changes to her
workload in the future, she must first discuss this with the Chair. Ms. Sumitro
agreed to this.
Despite this confusion, the meeting appeared to conclude on a positive
note. The grievor and Jack Wilson, the Secretary of the Union, left feeling that
the meeting was "very helpful". They agreed that there was no need for another
meeting for another two months. Indeed, they felt that the requirement for
monthly meetings that was contemplated in the Memorandum of Agreement
could be relaxed.
This background sets the stage for the series of performance concerns
and events that lead the College to the decision to terminate the grievor. For the
most part, these concerns were communicated in formal Performance Appraisals
and/or letters.
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PERFORMANCE APPRAISAL: January 2002 -March 2002
Dean Cormier testified that she had instructed Ms. Foulds to make all
expectations and concerns very clear to Ms. Sumitro. The Performance
Appraisal is a vehicle for outlining strengths and weaknesses in performance.
Ms. Foulds described the first Performance Appraisal as a synopsis of the few
months since the reinstatement and as "an opportunity to clearly zero in on some
concerns. .. and clearly layout the expectations. . . We were looking for a plan
of how to, from her [the grievor's] perspective, improve communications."
(i) Positive Feedback
Ms. Sumitro's teaching skills were applauded:
Bing demonstrates a keen interest in and commitment to
her teaching and her students. She thoroughly prepares for
each teaching session. Bing is interested in the teaching-
learning continuum and has indicated a desire to learn
more about student evaluation. In addition, Bing brings a
strong nursing knowledge base to her teaching and she has
demonstrated an ability to share that knowledge with her
students.
(ii) Neqative Feedback
(a) Respect for Management Structure: the RNAO Conference:
Ms. Sumitro was criticized for failing to indicate that she had a "true
understanding of the management structure and her responsibilities, i.e., her
communication as a faculty [sic] with her immediate supervisor". The specific
example cited against Ms. Sumitro was, "Despite repeated direction to bring all
requests or discussions regarding workload, leave or professional development
directly to her immediate supervisor, she [the grievor] once again inappropriately
approached a coordinator to negotiate professional development leave before
discussing the situation with her supervisor". This relates to the attendance at
the RNAO conference discussed above.
Ms. Sumitro responded to this criticism verbally and later in writing on
March 28, 2002, with what she called a "clarification" of the context of her
discussion. She wrote, "I did speak to the coordinator as part of a fact gathering
exercise so that I could provide you, my manager, the information you would
require to make a determination about the PD opportunity." Jack Wilson, the
grievor's Union representative assisting her at this time, testified that in his many
years at the College he would often speak to a Coordinator about the feasibility
of rearranging assignments before presenting an application for leave to a
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Department Chair. He said this would give the Chair the information that would
be necessary to make the decision about a leave request.
Ms. Foulds was asked to explain why this allegation was contained in the
Performance Appraisal despite her concession that she knew that the
Coordinator had never been asked by Ms. Sumitro for permission to attend or for
the reassignment of classes. Ms. Foulds responded, "She [the grievor] wanted to
go to this conference, she was teaching that day and wanted to make
arrangements and I was not consulted." When asked who the Coordinator was
who had brought this issue to the Chair's attention, Ms. Foulds was unable to
recall who that had been.
This was a factor in Dean Cormier's decision to recommend the
termination of the grievor's employment. Dean Cormier spoke about this issue in
her testimony, and indicated that she was under the impression that Ms. Sumitro
had asked to discuss the adjustment of her schedule with the Coordinator. Dean
Cormier resisted, describing this as a matter of the grievor trying to "negotiate"
with the Coordinator, and explained that the problem was that the grievor had
asked someone without authority to make decisions. Ultimately, Dean Cormier
admitted that she had no direct knowledge about this issue and had never
discussed the conversation with the Coordinator involved. The Dean had formed
her impression from the information she received from Ms. Foulds.
(b) Expression of Teaching Preference:
The appraisal included Ms. Foulds' concern about what she saw as the
grievor's "perception" that she had been hired to teach in the diploma and degree
Nursing program. The Chair wrote, "We have discussed this perception at length
and have reiterated that faculty are hired to teach in a variety of program areas
and are not restricted to one area." The performance appraisal notes that Ms.
Sumitro would be teaching in the Practical Nursing program in the following
semester, "thereby adding to [the] range of teaching experiences". Ms. Foulds
testified that she felt that the other programs needed Ms. Sumitro's practical
experience, and that this type of assignment had been discussed at the time of
her hire. The comment in the Appraisal arose out of a concern that the grievor
was not accepting the nature of her assignments, and that she was expressing
discontent. Ms. Foulds conceded that this statement of preference had been
given by Ms. Sumitro in response to the Chair's request for all faculty to set out
their preferences for teaching assignments. The grievor had indicated a desire to
remain at the RN Continuing Education level, which had been her original
assignment prior to the first termination. However, Ms. Sumitro tried to assure
the Chair that she did not mind teaching in new areas and was "ready to meet
the challenge". This is also confirmed in e-mail correspondence to the Chair. Ms.
Sumitro also testified at the hearing that although the RN program was her "first
love", she was always willing to take on the "challenges" of other assignments in
the department.
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(c) Development of an Improved Communication Plan:
Ms. Foulds directed Ms. Sumitro to provide a "written plan to address...
goals on improving communication with [the] immediate supervisor". Ms. Sumitro
was told to "outline the goals and the specific strategies she [would] implement to
obtain those goals".
Ms. Sumitro did submit a document that outlined her "goals" with respect
to teaching, research, professional development and "communication". Under
this last heading she wrote, "To continue to strengthen professional relationship
with management team." [sic] Ms. Foulds considered this single line to be
inadequate because it did not say how better communication would be achieved.
So she instructed Ms. Sumitro to come up with a better plan. Ms. Sumitro
responded with an e-mail saying, "It would be helpful if you could advice [sic] me
on a strategy that we could then discuss at a later meeting." Ms. Foulds
responded bye-mail saying, "... it is now in your hands to determine how we are
going to facilitate communication." Ms, Foulds testified that she did not feel it
would be "helpful" to offer any further guidance, including an indication of what
was inadequate with the draft. Ms. Foulds testified that she was interested in
seeing Ms. Sumitro's "input" or "insight" into the issue, although she did offer a
further meeting "if requested". It does not appear that the meeting was
requested, and shortly after this, Ms. Sumitro did come up with a list of strategies
that was then acceptable to Ms. Foulds.
The grievor and Union's complaint about this issue is that Ms. Foulds
faulted the grievor's attempt to set forth a strategy, yet failed to give any direction
about what was wrong with the first draft or provide assistance that would have
facilitated an understanding of what was expected.
March 2002 to August 29, 2002
There were numerous meetings with the Dean and the Chair following the
reinstatement, and Ms. Sumitro also met her supervisors with her Union
representative that term in accordance with the reinstatement protocol.
However, by March, Ms. Sumitro began meeting alone with Ms. Foulds.
Due to scheduling and personal demands, the parties agreed to by-pass what
would have been the April monthly meeting. No formal meetings involving the
Union or HR were then scheduled due to the semester break until August.
August 29th was the next significant "monthly" meeting contemplated by
the Memorandum of Settlement and therefore included a representative of the
Union and HR., as well as the grievor and Ms. Foulds. Mr. Wilson testified that
the Union and the grievor went to this meeting confident that "things were going
well" and that there were no areas of concern that Ms. Sumitro could not deal
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with herself. She was unhappy with her assignment of office space, but she had
no issues that she wanted raised at the meeting.
However, Ms. Foulds had a very different perception of the situation. Ms.
Foulds had several performance concerns and approached this meeting as "an
opportunity for Bing to acknowledge that there were management concerns".
Accordingly, Ms. Foulds tabled three specific concerns:
a) "Trust and Communication"
A College carpenter had told Ms. Foulds that he had attended to a repair
request in Ms. Sumitro's office, had quoted a $45.00 charge, and that Ms.
Sumitro had said that she was "afraid" to approach her Chair for authorization to
proceed. Ms. Foulds concluded from this conversation with the carpenter that
she was not trusted by Ms. Sumitro and, further, that she had failed again to
abide by their agreed upon strategy of bringing concerns directly to the Chair.
Ms. Foulds admitted that she reached this conclusion even before discussing the
issue with the grievor. Ms. Foulds testified that even if the grievor denied the
comment, the denial would not be believed. Ms. Foulds admitted that she had
already decided to believe the carpenter over the grievor, no matter what was
said by Ms. Sumitro. When this issue was raised with Ms. Sumitro at the
meeting, she denied saying that she did not trust her Chair and tried to explain
that she simply had told the carpenter not to proceed until she got the Chair's
authorization. Ms. Foulds explained why she chose to believe the carpenter over
the grievor even before hearing the grievor's explanation: "The carpenter deals
with 1 OO's and 1 OO's of employees. I couldn't imagine why he'd tell me that if it
wasn't so." Accordingly, when Ms. Sumitro did proffer her denial and explanation
later, this was not given any credence. Ms. Foulds counseled her to "change her
behaviour" .
Ms. Sumitro and Mr. Wilson were very surprised and disturbed by this
issue because Ms. Foulds had already authorized the minor repair without any
prior indication of a concern and because Ms. Sumitro's denial had been given
no credibility.
Dean Cormier was aware of this matter, and it was a factor taken into
consideration in the decision to terminate. To her it reflected a "very
inappropriate and unprofessional" comment by Ms. Sumitro. Dean Cormier
never discussed this with Ms. Sumitro, but also assumed that the carpenter had
been telling the truth. Dean Cormier remarked rhetorically, "Why would the
carpenter bring it to Barb's [Ms. Foulds'] attention if she [the grievor] hadn't said
it." Dean Cormier admits that she was never told of Ms. Sumitro's response to
the allegation.
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b) The grievor was accused of having "difficulty fitting in" to the department
because of a comment she had made to a Coordinator about being "unhappy"
with the transfer to the PN department:
Ms. Foulds was very concerned about the fact that Ms. Sumitro had told
the PN program Coordinator that her teaching assignment in that area was not
her "first choice". Ms. Foulds felt that the Coordinator had reported the comment
out of a concern that the PN team may have difficulty "pulling together".
Ms. Sumitro recalled that during a conversation at a social gathering she
had been asked about her new assignment in the PN area and that she had
responded by making positive comments but also mentioning that her "first love"
was the RN program. However, she tried to assure Ms. Foulds that she was
"delighted" to be working with the new team, and was willing to take on a new
challenge.
c) There was discussion about concern that Ms. Sumitro had made a
commitment to attend a conference without first getting approval from her
manager:
This issue arises out of the fact that Ms. Sumitro had had an abstract of a
research project accepted for presentation at a conference slated for late
September 2002. Professional development is a recognized aspect of a
teacher's duties and is allotted time on the SWF1. However, faculty must seek to
obtain leave if attendance at the conference conflicts with the teaching schedule.
Ms. Sumitro had not sought "permission" to submit the proposed abstract, nor is
that the norm. But she did make the submission with the encouragement of the
Dean earlier in the year and she had notified both Ms. Cormier and Ms. Foulds
when the proposal was accepted in February 2002. She had also indicated in e-
mails that she knew her attendance at the conference would depend on their
approving her leave. In May, Ms. Sumitro submitted a leave request form,
seeking up to two days' Professional Development leave. In July, she reminded
Ms. Foulds of the request, and received the response that the leave could not be
granted without a review of the Fall timetables and teaching schedules. Ms.
Foulds says that she raised this issue at the August 29th meeting because it
appeared that Ms. Sumitro assumed that the acceptance of her abstract at the
conference would mean that the leave would be automatically granted.
The discussion about this whole issue became confused at the August
meeting. Ms. Foulds had raised the issue because she saw it "another" example
of something that Ms. Sumitro should have first discussed with the Chair before
assuming that leave would be granted. On the other hand, the grievor and the
Union believe that proper channels had been respected and that the Dean and
the Chair had been made well aware of the acceptance of the grievor's abstract
and desire to attend the conference months in advance. Confusion over the
1 Standard Workload Fonn
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issue could not be resolved because no one at the meeting had any relevant
documentation about the initial request or the correspondence that followed.
While the Union perceived the concern to be a failure to follow procedure, it was
unsure of what the alleged infraction was.
After the meeting, the Union reviewed the relevant exchange of e-mails.
Mr. Wilson advised management that in February 2002, Ms. Sumitro had sent e-
mails to her managers advising them that her abstract had been accepted for
presentation at the conference and that she would fill in the prescribed form to
request leave to attend the conference scheduled for September 29 to October 2,
2002. She added, "I need not stay at the whole conference." Ms. Foulds'
response in February 2002 was to say, "Go ahead and confirm" the presentation,
but the attendance would depend on the teaching schedule for the Fall and they
would "work out the details" then. Ms. Sumitro did submit the prescribed leave
request form on May 2,2002, asking for PD leave on September 29 - October 1
with the note, "Two days if possible, otherwise one." Ms. Foulds' comment on
the form was, "We will attempt to work this request, however 1 cannot grant the
request until the fall timetable is available." Ms. Sumitro followed her request up
with a reminder to Ms. Foulds on July 29th, asking for permission to attend the
conference from September 29 -October 2nd. Ms. Foulds replied, "Look at the
teaching assignments and consider how to provide coverage." A further
reminder on August 26th prompted Ms. Foulds to indicate via e-mail that Ms.
Sumitro could attend the conference provided that she could arrange coverage
with the Coordinator that would not necessitate the hiring of a part- time teacher.
Ms. Sumitro replied to this on August 28th with an e-mail to Ms. Foulds beginning,
"Thank you for allowing me to go to the conference." The College was reminded
of this correspondence in a memo from Mr. Wilson on September 1 ih.
However, as of the meeting on August 29th, there was clearly a disconnect
between Ms. Sumitro and Ms. Foulds. This was summed up with the latter's
testimony when she said; "She [the grievor] thought she had approval and she
did not - we were trying to work it out - at least for two days." On the other
hand, the grievor had assumed from the e-mail the day before that permission
had been granted, conditional only on the ability to make the appropriate
arrangements with the Coordinator. As a result, the Union and the grievor were
very surprised and disappointed to be confronted with criticisms of the grievor's
actions with regard to this matter, one day after a direct and positive sounding
e-mail on this very subject.
What the correspondence does not highlight is that the July 29th e-mail
requesting the leave until October 2nd actually amounted to a request for a third
day of leave. This additional day was being requested because when the
abstract was first accepted, the conference invitation had been for Ms. Sumitro to
make a short presentation on September 30th. The request for the third day of
leave came after the conference organizers changed the invitation by asking her
to make a one-hour formal presentation on October 2nd. This meant that her
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original request to attend the conference from September 30 - October 1 would
have to be amended to provide a further day of leave. That is why the July 29th
e-mail included October 2nd. What is clear is that Ms. Sumitro did not amend the
original formal leave request form. She considered the correspondence
exchanged with Ms. Foulds as notice and permission for the full attendance. In
fact, following this exchange, the arrangements for class coverage for the three
days were put in place.
Despite the specific criticisms raised in the August 29th meeting, Ms.
Foulds and Ms. Sumitro followed it up with an exchange of e-mails where they
both express that they "enjoyed the meeting". Ms. Sumitro added that it had
given her "the opportunity to provide some clarification". However, Mr. Wilson's
follow-up memo to the College characterized the meeting as "troubling", in that it
called upon Ms. Sumitro to "change behaviour", even though she had done
"nothing inappropriate". He wrote;
I despaired that a well-motivated, well-beloved teacher
who has taught in three departments and moved her
office three times in the course of a single year, who
thought she was off to a good start with her
department and her manager was left thoroughly hurt.
The fact that resolved matters of a non-academic
nature should be elevated as serious issues I found
embarrassing and insulting for all parties concerned.
It should be noted here that despite the criticisms of Ms. Sumitro regarding
her request for PD leave, her timetable was rearranged to the Chair's satisfaction
and leave was granted for Ms. Sumitro to attend the conference. She attended
the conference from September 30 - October 2nd.
It must also be pointed out that the evidence ultimately shows that Ms.
Sumitro never did fill in the official request form for seeking leave to attend the
conference on October 2, only for the two days before. The request form is
important to the College in order to keep track of information regarding PD
leaves, SWFs and attendance. However, the evidence also shows that the
College has another form and method of tracking that information, and that Ms.
Sumitro's attendance at this conference was ultimately recorded properly for
accounting and attendance purposes.
LETTER OF WARNING - NOVEMBER 12, 2002
As the Fall term progressed, Ms. Foulds determined the need to write a
formal letter dated November 1 ih, outlining "ongoing concerns" regarding the
grievor's performance. Ms. Sumitro's response to this letter was "total shock"
12
because she believed that all the stated concerns had already been "clarified,
resolved and explained". The listed concerns were:
a) "Resisting or refusing" meetings with Ms. Foulds:
Ms. Foulds explained that this criticism related to several instances when
she invited Ms. Sumitro to meet, either for the delivery of the Performance
Appraisals or to discuss ongoing issues. In some instances, particularly
surrounding the delivery of a Performance Appraisal, where there were some
issues between them about who could/would attend the meetings, and there
were also some legitimate difficulties in arranging mutually convenient times.
There is other correspondence where Ms. Foulds requests a meeting, Ms.
Sumitro suggests convenient times and Ms. Foulds agrees. But the one instance
that remained a concern for the College in these proceedings was Ms. Sumitro's
alleged "refusal" to meet on October 25, 2002. Ms. Foulds cited this as a failure
to live up to the commitment to "improve communication". This problem evolved
from a request from Ms. Foulds earlier in October for Ms. Sumitro to identify
times that they could get together for their regular "touch base" meetings. Ms.
Sumitro responded by writing that she would not be available until the weeks of
November 8 and 15. Ms. Foulds was not pleased with the response. Then, on
October 24th, Ms. Foulds wrote to the grievor asking to meet the following day to
discuss specific students' concerns that had been raised in a "program council"
meeting, and Ms. Sumitro's plans to address them. Ms. Sumitro responded,
saying, "I am really busy with the course today and I am not able to meet you.
However, I am continuing facilitating the students' learning." Ms. Foulds replied
immediately, asking to "chat briefly" the next day [October 25] when she knew
that the grievor was not scheduled to teach. Ms. Sumitro's response was, "I will
be unable to see you today [October 25th]. I need your support by giving me time
concentrate [sic] on my work please. . ." Ms. Foulds testified that she was very
concerned and frustrated about what she perceived as the grievor's "refusal" to
meet to discuss students' concerns when requested. Ms. Foulds had only
wanted a "quick up-date" and had been willing to wait for a non-teaching day for
the meeting. She explained, "As a manager, I was really quite concerned about
that. The information was important to me. I didn't want to wait until a week after
or the next. I needed to ensure that the students' concerns were resolved."
Ms. Sumitro testified that she was not "refusing" to meet her Chair.
Instead, she says she was overwhelmed with the demands of hundreds of
students and that her teaching load was something that she "wasn't prepared
for". That was why she suggested meeting on the alternative dates later on in the
term.
b) "The failure to meet [the] agreed commitments to the team" by
"refusing" to attend a curriculum development meeting on October 4, 2002:
13
Curriculum development is a recognized and important full-time faculty
responsibility. Time is allotted in the SWF for this purpose. Ms. Foulds testified
that she considers attendance at these meetings particularly important for new
teachers because they provide an opportunity to learn about new programs and
gain from the experience of the faculty with longer service. There was a
curriculum development meeting slated for October 4th. Ms. Foulds testified that
this was a "pivotal" meeting concerning a new program at a critical point in the
semester. Ms. Sumitro chose not to attend the meeting. October 4th was the day
after Ms. Sumitro's return from the conference and her PD Leave. She testified
that although she recognizes that curriculum development is an important aspect
of a full-time faculty member's responsibilities, she was "too swamped" with
preparation for her next day's classes upon her return from the conference and
could not take the time for what might amount to an all-day discussion. She
testified that she was working day and night to prepare classes for her students
and did not think she could afford the time to sit through the meeting.
Ms. Sumitro attempted to alert Ms. Foulds about the desire to miss this
meeting via an e-mail, writing, "I just want to clarify in terms of my time for
curriculum dev [sic] because as far as 1 know from my SWF 1 do not have the
time. 1 had attended previous meetings on my own and now that my course work
is increasing 1 feel that 1 will not have the time to attend as often as 1 would like
to. 1 just want to make sure that you are not expecting me to attend each time."
Ms. Foulds responded with, "I guess. .. you can reflect on how you devote your
time; this week you had three days professional development; it is your decision
how to proportion your schedule. The curriculum work for the next semester is a
cornerstone to your teaching."
Ms. Sumitro testified that she interpreted this response as consent to miss
the meeting. Further, she was confident that she could complete her required
curriculum development commitment by the end of the term even if she missed
that meeting? Accordingly, Ms. Sumitro testified that she was "shocked" by the
criticism in the letter of reprimand faulting her for the decision to miss the
meeting. Ms. Sumitro explained, "I had asked her [Ms. Foulds] for direction. 1
thought she had said to devote time according to how 1 decide. When she
subsequently said 1 should attend meetings, 1 did attend meetings irregardless
[sic] of how much work 1 had to do that night."
This was not satisfactory to Ms. Foulds. She considered the grievor's
decision to miss the meeting as an indication of poor judgment. Ms. Foulds felt
that the grievor had given priority to the conference instead of making time for
"in-house" activities. Ms. Foulds also said that Ms. Sumitro's response to the
invitation to decide how to "proportion" her scheduled duties reflected a lack of
understanding of the priority that should be given to curriculum development.
2 The evidence subsequently established that Ms. Sumitro did complete the nmnber of hours allotted on the
SWF for curriculum development in that tenn.
14
Ms. Foulds expected Ms. Sumitro to attend the meeting and felt that there
was no need to "clarify" this expectation beyond saying that "curriculum work for
next semester is a cornerstone to your teaching". Ms. Foulds testified that she
felt she had sent "a clear enough message" for the grievor to understand that the
correct choice would be in favour of attendance. Ms. Foulds conceded that
attendance at conferences is contemplated within the terms of employment, and
that it provides a benefit to the faculty. However, she stressed, "the commitment
to the programs comes first". She also conceded that hours are accorded to
curriculum development on the SWF, and that Ms. Sumitro did fulfill her allotment
for that term. However, Ms. Foulds' continuing concern was that this meeting
had been planned long before, it came at an early and critical time of the term,
and it involved members of the team that could enhance Ms. Sumitro's
understanding of the program. The decision to miss the meeting in favour of
class preparation time after the PD leave was said to reflect poor judgment and a
failure to live up to the commitment expected of a full-time faculty member to the
teaching team.
The evidence from the Union presented on this subject through Ms.
Hunka, an experienced former Coordinator and faculty member, was that it was
not uncommon for faculty to miss one of these meetings, either because of
personal or other commitments. Her view was that missing one meeting was
"okay". Another experienced faculty member, Ms. Finnegan, said that she had
missed more than one of these meetings without incurring any consequences.
She also spoke of offering, at her own expense, to drive Ms. Sumitro to a
curriculum development meeting for the PN program in Pembroke that Ms.
Sumitro had wanted to attend, only to be told that Ms. Foulds had not been
pleased that the grievor had been told about the meeting, and that there was no
need for her to attend. However, ultimately Ms. Foulds did allow for the grievor's
attendance.
The Union also introduced evidence to show that the grievor was not the
only probationary teacher who missed curriculum development meetings during
this period. In fact, other probationary teachers missed more than one meeting
without incurring any negative consequences. However, this Board of Arbitration
has no evidence regarding the reasons or circumstances surrounding those
meetings or the other probationers' absences. Nor is there evidence that this
came to the attention of Ms. Foulds or Dean Cormier.
c) Failing to inform the Chair of "changes/revisions" to the submitted leave
request form:
Specifically, the letter complains about the fact that Ms. Sumitro's leave
request form "asked for Sept 30 and October 1, 2002 as professional
development days [but] did not include October 2,2002 when [she was] away
from the College." This relates again to the presentation of the abstract at the
Fall conference. The complaint in the letter focuses on the fact that Ms. Sumitro
15
had not amended or resubmitted her leave request form to include attendance on
the third day of the conference, October 2nd. Ms. Sumitro did not understand why
the issue was being raised because she felt that she had requested and been
granted the leave for that day in the e-mail from Ms. Foulds. But from the Chair's
perspective, this was a different problem than the one raised at the August 29th
meeting. This concern related to the fact that the leave request form had only
included September 30 and October 1 st.
However, the testimony regarding this area became quite confusing as
Ms. Foulds tried to explain why the issue was being raised in this letter. While
the letter referred to a problem with the form, the evidence at times suggested
that the October 2nd day had been taken without notice and/or approval from the
Chair. Ms. Foulds testified that she raised this issue because, "I was not aware
of the October 2nd date until after it occurred." She also testified that the grievor
was being reprimanded for the fact that she had been absent October 2nd
"without having been granted leave". This is consistent with the College's
position in opening remarks, alleging that the October 2nd day had been taken
without approval. However, it is not consistent with the e-mail exchanges,
including the exchange on October 3rd when Ms. Foulds mentions that Ms.
Sumitro had just returned from three days of PD leave. Nor is it consistent with
other testimony where Ms. Foulds said that she first learned in late September
that Ms. Sumitro was planning to remain at the conference until October 2nd
through an e-mail exchange when Ms. Foulds has requested a meeting with the
grievor on October 2nd and Ms. Sumitro responded on September 25th saying
that she would still be at the conference that day. Further, as stated above, Ms.
Sumitro had asked for leave from September 30 - October 2nd in her e-mail to
Ms. Foulds on July 29th. Ms. Foulds was given an opportunity to explain these
discrepancies in cross-examination, and said that she had "forgotten" that Ms.
Sumitro had made the earlier requests to extend the leave for the third day.
In the end, Ms. Foulds' complaint was that Ms. Sumitro had failed to
complete the proper form, and that the e-mail exchanges were not approvals or
substitutes for the proper forms. She stressed that the forms were important for
the proper tracking of PD leaves for attendance and SWF purposes. Further,
she pointed out that the grievor knew about the forms, as evidenced by her initial
request for leave. However, it must also be pointed out that the necessary
arrangements for coverage of Ms. Sumitro's classes for the three days were put
in place and nothing was said to her to stop her from attending the conference for
the full duration.
d) The failure to make an on-site visit or communicate directly with a
preceptor from June 5 - 24, 2002:
"Preceptorship" is a program whereby the College's nursing students are
placed in health care facilities in the community, with the stated purpose of the
students gaining the opportunity to function more independently, actively
16
participate in a health care team, and develop leadership and practical skills
within their chosen professional role. Ms. Sumitro's role in June 2002 was to be
the faculty liaison between the students and the professional contact within the
health care facility, known as the 'preceptor'. The preceptor is a type of
professional mentor. The role of the faculty liaison is set out in the College's
Preceptorship Manual. The relevant portions for purposes of this matter are:
2. Organizes orientation conferences for the preceptors at time
convenient to both preceptor and faculty liaison.
3. Is available by pager at all times for consultation when
necessary.
4. Plans regular meeting with the preceptor to discuss student
progress.
5. Assists the preceptor to:
a. Plan learning experiences for individual students
b. Identify learning problems
c. Develop a plan to overcome problems
d. Evaluate the student
e. Develop teaching strategies
f. Keep the lines of communication open
6. Supports the preceptor's efforts and provides positive
feedback for appropriate decisions.
7. Assumes responsibility for recommending the final grade to
the student.
The Manual also sets out corresponding duties for students and preceptors to
communicate with the faculty liaison "on a regular basis". The Manual indicates
"the faculty liaison acts as a consultant and communicates directly with the
preceptor and only indirectly with the student". The Manual also sets out an
outline for faculty liaison - preceptor communication:
Faculty Liaison - Preceptor Communication
The Faculty liaison wants to know:
a) How things are going in general, even if there are no
problems, e.g. 'have the two of you developed the rapport
necessary for an effective working relationship'?
17
b) Is the student progressing toward meeting the program
objectives?
c) Have there been schedule changes, student absences, etc.?
Meeting times with the faculty liaison will generally be more
frequent during the first half of the clinical experience than the
latter half.
The College's complaint in this area arises out of the fact that Ms. Sumitro
did not meet with one preceptor for over two weeks. Ms. Foulds testified that
her instructions to the new faculty liaisons, including the grievor, were that their
role included the requirement to meet regularly, at least once a week, particularly
in the first couple of weeks, with the students and preceptors. Ms. Sumitro did
not interpret this to mean that she had to attend to each placement every week.
Ms. Sumitro testified, "I honestly don't recall that - specifically to meet once a
week? If she [the Chair] had said that - my gosh - I would not have gone to bed.
She [the Chair] did say 'frequently.' . . . The 'ideal' was weekly, but that wasn't
feasible. . . . But I did visit some more than once a week. . .. If you know a
student is doing well and others are not, you devote time to the ones who are not
doing good." [sic]
Ms. Joan Gale, a faculty Coordinator, was present at the same orientation
meeting given to the faculty liaisons that Ms. Sumitro attended. Ms. Gale
recalled that their instructor, Marnie Connelly, had said that the faculty liaisons
should "ideally" meet with the preceptors once or twice in the first week of the
placement, and after that on a weekly basis.
The grievor admits that she did not contact one preceptor for over two
weeks during the initial stages of a placement. The letter of reprimand states,
"Monitoring of student progress during preceptorship includes both the student
and the preceptor and failure to include one member of the triad hinders the
ability to effectively evaluate student learning." [sic] The concern expressed at
the hearing was also that Ms. Sumitro failed to have any direct meetings with this
student over the same period. All this came to light after a student sustained a
work-related injury two weeks into the preceptorship. When the student
approached the College in the summer to arrange a transfer to another College
out of province, Ms. Foulds asked Ms. Sumitro to provide an overview and
evaluation of the student to forward to the new institution. Ms. Foulds was then
distressed to discover that the grievor had not met with the preceptor from June 5
_24th, and there was no evaluation available. An evaluation and information was
critical to enable this College to assist the student in securing a position in a new
school and credit for work done at Algonquin. The preceptor had to prepare this
after the fact, in the summer following the preceptorship program. The preceptor
involved with this issue recalled meeting with Ms. Sumitro at the beginning of the
placement and being given her "pager" number, but having no contact with her
18
thereafter. The preceptor said that there were some problems with the student,
but that these were problems that the preceptor would have dealt with directly
before feeling a need to involve the faculty liaison. However, due to the lack of
contact with Ms. Sumitro before the workplace injury, the preceptor and Ms.
Sumitro never did discuss this student.
Ms. Sumitro admits that she did not meet with that student or the
preceptor after the initial placement. She and the Union offered a number of
justifications and explanations for this. First, the Union called several other
faculty members as witnesses who had been faculty liaisons in the past. One of
these witnesses, Paulette Parker, had helped write the Preceptorship Manual. All
the Union witnesses called on this point said that they were unaware of any "rule"
or policy requiring weekly meetings with students and/or the preceptors. They
also said that it was common to keep in contact with students and preceptors
over the phone. Jenny Brooks, a retired faculty member with extensive
experience in the preceptorship program before the events of this case,
described the number of students and placements assigned to Ms. Sumitro as
"horrendous". Other faculty spoke of maintaining telephone contact with their
students and preceptors and of giving priority to the students with problems. All
spoke of having more frequent meetings at the beginning of the program. While
Marlaine Finnegan says that she went three weeks without meeting a student
during a preceptorship, she also conceded that this occurred with the knowledge
of her manager and not during her probationary period.
As for the grievor, she repeatedly said that she tried "her best" to meet
"frequently" with the students and preceptors, but that she had too many students
in too many locations to provide that coverage. She said that she devoted time
to students who appeared to be having problems and remained available to
everyone through a pager 24 hours a day. She describes herself as "running
around" all over town, day and night, trying to keep up with the demands of the
job. She also said that she maintained contact with students through e-mail, and
devoted her attention to placements where problems had arisen. When asked if
she filed a workload grievance or complained about the demands of time, she
replied, "No. I was trying to be innovative, to meet the challenge. I thought I was
successful."
She also explained that she spent time during this period meeting with
Hospital Administrators and their Directors of Nursing to establish "good
networking" and promote "good communications between [the] students and the
institution". To counter the suggestion that she took time to meet with these
people at the expense of her students or preceptors, Ms. Sumitro claimed these
meetings enabled her to inquire about the progress of a student if s/he was not
on site because of shift work.
Ms. Sumitro says she was "shocked" to receive the criticism in the letter of
reprimand about her work with the preceptor program because she felt that she
19
had worked "so hard" and her students had achieved "positive outcomes".
Addressing the specific situation of lack contact with the preceptor of the student
who had been injured, Ms. Sumitro testified that she met with the preceptor at the
beginning of the placement, discussed how to keep in touch if she had any
problems with the student, and kept in "constant" contact with the student via e-
mail. Ms. Sumitro says that there were never any indications of any problems.
She said, "I had to prioritize. My student was happy with her preceptor and I
relied on the preceptor to contact me if she had difficulties." Accordingly, Ms.
Sumitro concentrated her attentions on situations with other students where
problems had become evident. However, when the student was injured, Ms.
Sumitro attended on the scene, took the student for medical treatment and
thereafter arranged for her return to the placement with modified duties.
Ms. Foulds and the College were clearly not satisfied with the notion that
the faculty liaison function could be fulfilled over the phone or e-mail with contact
with just the student. She explained, "The students' perception of how they are
doing is one piece of the puzzle, but the preceptor's perceptions are equally
important. This was the piece we didn't have." Further, while she acknowledged
the positive aspect of a preceptor being made aware of how to contact the faculty
liaison, Ms. Foulds stressed, "It's not the preceptor's responsibility to contact the
faculty liaison; it's the other way around."
Ms. Sumitro also stressed that she had no indication of problems with this
student's preceptorship placement. There is no suggestion that the injury is the
fault of anyone connected to this case. However, when Ms. Sumitro was asked
to comment on the preceptor's report that mentioned some difficulties, Ms.
Sumitro said that she assumed the negative comments in the report had been
written to make the student "look bad. . . after the fact". The preceptor denied
this, explaining that the report had been solicited in the summer to provide an
evaluative basis in support of the student's application to transfer schools. Even
though the student had been unable to complete the preceptorship with this
College, Ms. Sumitro insisted that the student had had a positive experience
during the time that she had been the faculty liaison.
Ms. Foulds testified that Ms. Sumitro's performance as a faculty liaison
revealed a lack of ability to prioritize, and poor judgment or decision-making.
Further, the College was concerned that the grievor did not acknowledge any of
these concerns when she was spoken to about her role in the program.
20
e) Conclusion and warning:
Ms. Foulds concluded the November 12, 2002 letter with the warning,
"These concerns compel the College to advise you that your progress to date is
not meeting our expectations of a faculty member. . .. If there is not marked
improvement in your performance in the next six weeks, the College will have to
reassess your future employment at the College." Ms. Foulds explained, "This
was an opportunity to share management's concerns that there was a pattern
emerging from the time of reinstatement to November. . . There was no
acknowledgement that these were my concerns. I was concerned about these
issues. . . . If this was happening on an ongoing basis with a probationary
employee, what was going to happen in a permanent capacity?"
The E-mail to the College President - December 2002
In December 2002, Ms. Sumitro wrote an e-mail to the College President
containing an "urgent request" for a transfer to the Continuing Education
Department under another manager. She wrote, "Please sir, can you look into
this request. Please sir have mercy on me, I am giving my utmost to the college.
Please consider this most urgent request." She says she wrote to the president
because she felt desperate about the situation with Ms. Foulds. Ms. Sumitro
testified, "I couldn't seem to do anything good that would make my manager
happy about my work. Yet I was doing my best." Ms. Sumitro admits that she did
not first ask her Chair or her Dean for this transfer. Instead, she turned to the
President because he had publicly expressed a "willingness to listen to staff" and
had indicated that he had an "open door policy", inviting faculty to approach him
directly with issues. She did not see appealing to the president as an act of
disrespect for the College hierarchy; instead, she saw this as "looking for
someone to help me". The President acknowledged receipt of her e-mail, but
replied that it would be "in her best interests" to "work with the present
management team to resolve any difficulties and establish a standard of
performance which is acceptable to aiL"
Ms. Foulds testified that she reacted with "surprise and frustration" when
she was made aware of the grievor's appeal to the President. Ms. Foulds
explained, "We had set out our channels of communication and I was really
surprised that she had not gone to the Dean first with her concerns. . . . This was
another 'red flag' to me." Another concern or source of frustration with Ms.
Sumitro was that Dean Cormier had made several attempts to set up a meeting
with Ms. Sumitro, but the arrangements had broken down when Ms. Sumitro
indicated that she wanted a colleague who was also a Union representative
present. Dean Cormier had responded, indicating she would then want a person
from H.R. to also be present. As a result this meeting did not happen and the
grievor made her appeal to the President.
21
PERFORMANCE APPRAISAL - FEBRUARY 2003
(i) Positive Feedback
It was noted that Ms. Sumitro completed teaching assignments in the
Practical Nursing and Continuing Education programs in the first semester. In the
second semester, she joined the Practical Nursing team, and worked on the
development of a new curriculum for the Fall of 2002. She also attended
curriculum development days and supervised practical nursing students in
clinical placements in June of 2002. In the Fall of 2002, she taught theory, lab
and clinical courses in the Practical Nursing program, as well as two days in the
RN refresher program. It was noted that she attended most of the curriculum
development days with her colleagues.
(ii) Neqative Feedback
Ms. Sumitro was criticized for three examples of "communication
difficulties". The examples that were cited were:
(a) Preceptorship - June 2002
This is the preceptorship issue raised in the November 12, 2002, Letter of
Warning cited above.
(b) Taking a PO Leave without authorization: Fall 2002
The appraisal notes, "a breach of communication and approval protocol
occurred in the fall 2002 when Bing took an additional professional development
day without written authorization". It further alleges, "Despite clear directions,
[she] continued to be absent without written authorization or approval". This
relates again to the Professional Development leave request for attendance at
the conference from September 30 - October 2, 2002 as discussed in detail
above.
(c) "Despite clear communication from the PN team, Bing chose to modify
objectives and teaching tools without consulting or reviewing with the coordinator
or team."
It is agreed by everyone that evaluation methods and criteria are decided
upon by the teaching teams. This is necessary to ensure consistency and
fairness within a faculty. There had been complaints from students in the past
about a lack of consistency in the PN program, so Dean Cormier was particularly
sensitive to the need for consistency here. There is no evidence that Ms.
Sumitro altered any "objectives". However, Ms. Foulds and the College do allege
that the grievor altered a "lab tool" and some theoretical objectives. The
evidence filed to support this was an attendance form developed by the teaching
22
team. The concern was that it appeared that in addition to attendance in class,
the grievor had also noted whether students brought their lab coats and/or took
on the role of "leader" in her class. She testified that she did make these
additional notations, along with recording attendance, because they helped her
determine the students' entitlement to their class participation marks because
having proper equipment for the lab (i.e. the lab coat) was a component of the
attendance mark. She also says that the "leadership" notation did not factor into
their final mark and that there was therefore no "alteration" of evaluation tools.
However, Ms. Foulds became concerned about these notations when the
course Coordinator, June Gale, brought them to the Chair's attention. Ms.
Foulds said that her "main concern" was that the notations were sending
"conflicting messages" about evaluation criteria to the students in different
sections, and also that the grievor "had made a decision on how to use the
[attendance] tool". The Department's expectation was that all faculty would use
the tool consistently. In cross-examination, Ms. Foulds conceded that she had
no information to suggest that the students had ever seen this document, had
any knowledge of it or that "inconsistent messages" had been sent.
(d) Ms. Sumitro was also criticized for failing to meet the March 27, 2002
objectives. The examples cited were:
. "The submitted list of goal offered no strategies listed on how she was to
achieve these goals particularly communication goals." [sic]
. "She has, despite clear direction, continued to be absent without written
authorization or approval."
The first comment relates to Ms. Foulds' dissatisfaction with the grievor's initial
attempt to outline a strategy for improved communication in March 2002. Since
there were no further allegations concerning leaves after the Fall of 2002, the
second comment must relate to the PD leave for the September 30 - October 2,
2002 conference.
(e) Conclusion:
It was noted that there was "no marked improvement" in performance with
regard to previously-stated objectives, and it was said that "there continues to be
issues of team work and communication with her supervisor and colleagues that
need to be addressed."
MARCH 24, 2003 - MEMORANDUM FROM THE COORDINA TOR
A Coordinator is a member of the bargaining unit that acts as a liaison
between management, employees and students. The Coordinator's
responsibilities include ensuring coverage for classes and generally overseeing
the smooth running of specified courses. In the Winter term of 2003, Ms.
23
Sumitro's Coordinator for the Health Assessment course was Mary Jane
Burrows. In March, Ms. Burrows wrote a four paged, single spaced
memorandum to Ms. Tosh, the Chair of the School of Health and Community
Studies, outlining numerous "concerns" arising out of the Health Assessment
course and Ms. Sumitro's involvement. The "concerns" can be summarized as
Ms. Burrows' lament that she had to spend an inordinate amount of time dealing
with issues that she felt Ms. Sumitro, as a full-time faculty member, should have
handled. This memo and its comments on Ms. Sumitro's performance in that
course were considered by the College in Ms. Sumitro's termination.
Accordingly, Ms. Burrows was subpoenaed by the Employer. However, Ms.
Burrows made it clear that she was a reluctant witness. She stressed several
times that she had written the memo to document her own workload complaint,
not to criticize Ms. Sumitro. Ms. Burrows acknowledged in her testimony that Ms.
Sumitro was a "good teacher" and had received positive evaluations from the
students in the course. Ms. Burrows expressed and displayed considerable
distress over the notion that this memo had played any role in Ms. Sumitro's
termination. Nonetheless, the memo contains negative comments about Ms.
Sumitro's performance. Therefore, these issues must be analyzed.
Ms. Burrows explained the genesis of the memo. She said that she had
been so stressed by the duties she was undertaking for this course that she had
been considering asking the Union to lodge a workload grievance. However, she
first spoke about these complaints to Ms. Tosh, who had suggested that the
concerns should be put in writing. Ms. Burrows testified that she had only
intended this memo as a message to management that too much was being
demanded of a Coordinator in this course. Ms. Burrows testified that if she had
intended this memo as a criticism of Ms. Sumitro, it would have been copied to
her. Instead, the memo was only sent to Ms. Tosh. However, Ms. Burrows
testified that she discussed most of the issues raised in the memo with Ms.
Sumitro, some of them "many times", and some of which the grievor
acknowledged as valid, others not.
Ms. Tosh passed the memo on to Ms. Foulds. Ms. Foulds testified that
she was "astounded" and "taken aback" by the contents of this memo because it
raised performance issues with a course that Ms. Sumitro had taught before on
several occasions. Ms. Foulds clearly read the memo as a list of performance
concerns that were being raised by a colleague. This is understandable given
that the subject of the memo is entitled, "Bing Sumitro, Professor. . ." with the
course reference. The memo begins, "I am writing you re my concerns with the
full-time faculty, Bing Sumitro. . ." The memo ends with the comment, "If this
situation had happened with a part-time faculty, I would be cautious about bring
[sic] this faculty onto my team again."
Ms. Foulds discussed the memo with HR, and it was then revealed to Ms.
Sumitro in April. A meeting was convened on Amy 12th to allow her to respond
to the memo, with Union representation present. Ms. Sumitro testified that she
24
too was "shocked" by the memo and its allegations. She felt that the course had
gone well and the student "outcomes" had been positive. Ms. Sumitro admits that
she had spoken to Ms. Burrows about many of these issues. The issues
themselves did not come as a surprise to Ms. Sumitro because she said that as
soon as they were raised with her, she would understand and comply.
Thereafter, she assumed that the issue was resolved. What shocked Ms.
Sumitro was the fact that these issues were later documented and sent to
management to be used against her.
The memo was a major focus of the case. Therefore, regardless of its
author's intentions, its contents and its impact must be analyzed. However,
because the memo is very detailed, only the themes or major items shall be
summarized.
. Problems arising from the timetable conflict
January 8, 2003, in response to an inquiry from Ms. Burrows about the
delivery of the course outline for the Health Assessment course listed on Ms.
Sumitro's SWF, Ms. Sumitro replied that she would not be able to teach it
because she was timetabled to teach another course at the same time. From
Ms. Burrows' perspective, this meant that she had only seven working days to
find an alternate teacher for the course. Ms. Burrows expected that a full-time
faculty member would have advised her of a workload problem earlier, and
certainly not only mention it in a response to a request for a course outline. Ms.
Burrows had assumed that Ms. Sumitro had received her timetable weeks earlier
in accordance with the Collective Agreement. However, this had not been the
case. In December of 2002, Ms Sumitro had not received her timetable for the
Winter 2003 classes before she left for the Winter break. This should have
occurred according to the Collective Agreement. However, upon her return in
January 2003, she discovered that she had been double-booked for one time
slot.
The parties agree that scheduling is not within the faculty members'
control. It is a function handled by the Registrar's Office. Timetable conflicts are
never intended, but it is not unheard of for them to occur. Ms. Sumitro testified
that as soon as she became aware of the conflict, she informed Ms. Foulds and
the Coordinator about the problem and awaited a resolution and direction from
Ms. Foulds. The situation was resolved and the conflict was eliminated when the
Coordinator was able to "move people around" to allow for the delivery of all the
courses. But this did not occur without causing considerable distress and
inconvenience to Ms. Burrows.
Further, Ms. Burrows felt that a full-time faculty member should have
prepared the course outline and course resources for the assigned course. This
was the expectation in this department. The late notice of the problem for Ms.
Burrows meant that she had to spend a great deal of time, on short notice,
25
looking for another teacher, preparing the course materials, making all the
necessary arrangements for the classes, all of which should have been done by
the course teacher. Then, three days before the class was scheduled to begin,
Ms. Burrows was told that the timetable conflict was resolved and that Ms.
Sumitro would be teaching that class after all. Ms. Burrows complained in the
memo and in her testimony that the time she spent on this issue took "time away"
from her other duties as a Coordinator.
Ms. Sumitro had several responses for the College with respect to this
aspect of Ms. Burrows' memo. First, Ms. Sumitro reminded the College that she
had been requesting scheduling information from her Manager as late as
January 8th and only became aware of the timetable conflict later that day when
she received the communication from Ms. Burrows. Ms. Sumitro then explained
that she had immediately notified Ms. Burrows and the Manager of the problem.
Ms. Sumitro did not understand that it was within her power or that it was her
responsibility to resolve the problem; instead, she believed that it would be dealt
with by the Chair and the Registrar's office.
Ms. Burrows' evidence made it clear that she had assumed that Ms.
Sumitro had received the timetable much earlier in accordance with the
Collective Agreement. That was the basis for the criticism against Ms. Sumitro
for what appeared to be a delayed notice about the conflict. Upon being told of
the late delivery of the timetable, Ms. Burrows conceded that Ms. Sumitro would
have had to await direction from her manager to resolve the conflict situation.
With regard to the course outline, Ms. Sumitro conceded that she did not
prepare it, but she explained that when she had taught this course as a part-time
teacher, the Coordinator had always presented a prepared course outline to her.
She had not realized that there was a different expectation for full-time faculty.
However, she stressed that once the scheduling issue was resolved and the
expectation regarding the delivery of the outline made known to her, she did
submit a course outline in time for it to be distributed to the students. Ms.
Burrows testified that she had expected Ms. Sumitro to know that they were
required to prepare their own course outlines.
. The memo listed items that Ms. Burrows said required her to "put aside
coordinator duties" to review "course process" issues such as scheduling,
ordering of lab supplies and discussing "prep" time issues. Ms. Burrows
wrote that she had assumed that Ms. Sumitro would not require so much
"direction" because she had taught this course in the past. Ms. Burrows
also felt that a teacher in Continuing Education should not require so
much direction, and that Ms. Sumitro was seeking an inordinate amount of
assistance. As a result, Ms. Burrows redirected her to another member of
faculty for assistance.
26
Ms. Sumitro explained that she had only taught portions of this course in the past
and needed "some direction in terms of the completeness of the course". She
also mentioned that there was a different focus in this course from what she had
taught in the past. She says she thought that the Coordinator was the proper
person to go to for pedagogical and practical assistance.
. The memo mentions that support staff had notified the Coordinator that
Ms. Sumitro had failed on two specific occasions to return the class
register to the designated spot, and that the support staff were "having to
track it down after every class". The memo also mentions that it is the
responsibility of faculty to return the register.
Ms. Sumitro agreed that the class register had to be picked up and returned to
the appropriate office. However, she responded to this allegation by explaining
that she thought she had made a satisfactory arrangement with a member of the
support staff about the return of the directory on "Friday after class or the
following week, Monday". Ms. Sumitro testified that no one had complained to
her about this arrangement or mentioned any problem to her until she received
this memo. She also denied the allegation/suggestion that the support staff
would have had to "track down" the register after "every class".
. Ms. Burrows complained that she had received a request from Ms.
Sumitro to put a textbook on reserve in the library when it is the
responsibility of full-time faculty to do this themselves. The memo
mentions that Ms. Burrows then advised Ms. Sumitro of faculty
expectations regarding reserve texts when this issue arose.
Ms. Sumitro says that she was only asking if the Coordinator thought it would be
a good idea to have the books put on reserve, not that a request was being made
for Ms. Burrows to do the work herself. In her testimony, Ms. Burrows admitted
that she had not advised Ms. Sumitro about the department procedure before
this incident, but simply assumed that she would have known this.
. Ms. Burrows wrote of her "frustration" over the fact that Ms. Sumitro had
failed to submit a quiz for formatting and printing on a timely basis. The
memo states, "All faculty know that any quiz/exam must be in a week
before for formatting and printing." The memo also reports that Ms.
Sumitro had improperly offered to take the quiz out for printing herself.
Ms. Burrows explained that this is not permitted because of security
concerns. The memo also reports that Ms. Sumitro had failed to have the
quiz itself validated by the Coordinator or the faculty. The memo states,
"Bing had been given previous quizzes to use but choose [sic] to use
questions that had not been validated by the Emergency RN faculty. My
frustration was that Bing did not communicate any of this to me as the
coordinator of the course. She just acted independently."
27
Ms. Sumitro testified that her previous experiences had never included a
requirement to submit quizzes a week before their delivery for formatting and
printing. As a part-timer, she had always had her quizzes printed by the support
staff upon receipt or she took them to a commercial copier for printing if
necessary. Ms. Sumitro stressed that she was willing to do this at her own
expense and that she had simply understood that she was acting within the
practice of some of her colleagues.
Ms. Sumitro also testified that she had been unaware of the expectation
that all quizzes had to be validated by the Coordinator or other faculty. She says
she had prepared tests "for years" with other Coordinators without having to
submit the questions for validation. Ms. Finnegan supported this evidence with
the testimony that she had never been required to submit quizzes to her
Coordinator prior to their printing or presentation. Ms. Sumitro also stressed that
she had spent a great deal of time adapting a previous quiz to make it more
compatible to the specific course content that she had taught. In her own
rebuttal memo, Ms. Sumitro wrote, I believe that professors have to be
autonomous, creative and up-to-date. Are these not expectations of what profs
should be?"
Ms. Burrows' evidence revealed that the requirement of submitting
quizzes a week before delivery and of having them vetted by the Coordinator
was the practice in the Continuing Education Department. However, Ms.
Burrows could not recall if this had been explained to Ms. Sumitro. Ms. Burrows
also said that she had never counseled Ms. Sumitro against having the quizzes
printed off campus before these events, explaining, "I'd never think of saying
something like that. I didn't know it was happening." She says she simply
"assumed" that Ms. Sumitro was aware of the department practices.
. Ms. Burrows stated "concerns" over the "theoretical slant" of the
questions on this quiz. The memo also states: "I had discussed less
theory and more practical with Bing in the Queensway Carlton contract,
and she failed to follow my instruction once again in this matter."
However, the memo also notes that the next quizzes submitted by Ms.
Sumitro did meet expectations.
Ms. Sumitro countered this remark, by saying, "I'm the one who taught the
course. I wanted my students to know the significance of the content, theories
and practicality of what they were doing and the results." She also defended her
presentation of the course with the assertion of academic freedom and the
assurance that she had taught the course so that students would be able to "use
their knowledge to make critical judgments".
The "Queensway Carlton contract" was also mentioned by Ms. Foulds as
a factor in the decision to terminate. When asked to explain her concerns, she
admitted that she had minimal direct contact with this issue, but she did say that
28
she "understood" that there had been concerns from the students about Ms.
Sumitro placing too much emphasis on theoretical, rather than practical, issues.
That is consistent with the words in the Burrows memo. However, Ms. Foulds
was unable to recall details, and she admitted that she had made no inquiries
about the alleged concerns, nor did she attempt to determine whether the
allegation accurately reflected the client's concerns, or to verify if the concerns
were legitimate.
The Union called Janice Bissonnette as a witness. She was a nurse
specialist at the Queensway Carlton involved in contract with the College for the
Health Assessment course taught by the grievor. Ms. Bissonnette was
responsible for ensuring that the contract was fulfilled, and as such was aware of
the students' evaluations of the course. She said that the evaluations of Ms.
Sumitro were positive and included requests for additional courses. These had
been forwarded to the College. Ms. Bissonnette testified that when she became
aware that there were "rumours" about Ms. Sumitro's mishandling of the course,
she contacted Ms. Tosh to say that any complaints about Ms. Sumitro's teaching
had not originated from her hospital and should be put to a stop. Ms.
Bissonnette accepted Ms. Tosh's assurance that the matter "would be dealt
with". It must also be pointed out that Ms. Burrows admitted that she had heard
no complaints regarding Ms. Sumitro's handling of the Queensway Carlton
contract, and confirmed that positive assessments had been achieved.
. Ms. Burrows noted her "concern" about "the amount of time that was being
spent in class on theory and not physical assessment techniques" in Ms.
Sumitro's class. The memo states that this concern arose after Ms.
Burrows taught six hours of the course towards the end of the term during
a "non-contact week" in the grievor's schedule. Ms. Burrows reported that
the students stated that Ms. Sumitro "never demonstrated any skills". The
memo also suggests failings in developing the students' "physical
assessment techniques". However, the next paragraph of the memo
notes that the students "tested well" on their practical exams at the end of
the course.
Ms. Sumitro took grave exception to the critical comments about her teaching.
She felt it was "unethical" for her colleague to solicit information from students
that would be used against her, and she denied that she had failed to
demonstrate skills. She also pointed out that she got "excellent" feedback from
the students, the students were "motivated", and that they had good examination
results. This is not disputed by the College.
The memo concluded with Ms. Burrows' lament that she had to spend "a
lot of time" with this course, which took time away from her "coordination duties".
She added, "I would only expect to give this much direction and orientation to a
first time professor." She testified that she did not anticipate the need for this
much attention to Ms. Sumitro because she had taught the course as a part-time
29
teacher in the past, and the course materials were in place because the course
had been run for many years. However, while giving evidence, Ms. Burrows
admitted that she had made many assumptions about what Ms. Sumitro should
or would have known, i.e., the fact of the timetable conflict, that quizzes in
Continuing Education were always vetted before release, that the faculty were
expected to prepare the course outlines, that quizzes could not be taken outside
for copying, and/or that they had to be submitted for printing one week in
advance.
The Union called evidence through other Coordinators who spoke of very
different approaches they take or have taken to the role in relation to other
faculty. They said that they would not have attended another's classes, spoken
against another's approach to a subject and/or do not share the stated concerns
about the printing and preparation of quizzes. They spoke about taking quizzes
to outside printers and about never having to have their quizzes vetted. None of
these witnesses would have dealt with Ms. Sumitro or her class in the same way
as Ms. Burrows. However, none of them were coordinating the course the
grievor was teaching as a full-time teacher or at the times relevant to this
grievance.
The Burrows memo was first given to Ms. Tosh, who forwarded it to Ms.
Foulds. Dean Cormier was then made aware of it, and she recalls discussing the
memo with Ms. Tosh in order to address Ms. Burrows' workload concerns, her
fatigue and her ensuing illness. Dean Cormier described her perception of the
memo as a document being "intended to deal with frustrations that needed to be
addressed". She said, "I didn't take it as a criticism of Bing. 1 took it as, these
are things that Mary Jane expected Bing to do and that weren't being done."
Ms. Foulds met with Ms. Sumitro and a Union representative to discuss
the contents of the Burrows memo on May 12th. Neither Dean Cormier nor Ms.
Foulds had discussed the contents of the memo or the issues with Ms. Burrows.
However, Ms. Sumitro was given an opportunity to respond to the comments and
concerns in the memo. She did this in detail, setting out the explanations and
denials outlined above. Ms. Foulds testified that the College considered the
grievor's detailed responses. However, Ms. Foulds' reaction to the responses
was critical. She said, "Once again, 1 did not see any acknowledgement of
anything in the memo that she should take responsibility for or that she could
have done things differently."
The Decision to Terminate
The letter of termination is dated two days after the meeting with Ms.
Sumitro and the Union representative about the Burrows memo. Ms. Foulds
testified that that she met and discussed the situation with the Dean and the
College's Director of HR after the meeting. She describes this as a "pivotal" time
in the academic year when workloads have to be assigned for the Fall programs.
30
According to Ms. Foulds' evidence, the decision to terminate was made by them
at this time. However, Ms. Foulds resisted the suggestion that the Burrows
memo was a critical factor in the decision. She explained, "We reflected upon
one and a half years of ongoing issues, concerns with a probationary employee,
and that by providing her with a full workload for Fall 2003 we might be saying
that her performance was acceptable, but it was not. So rather than give her the
workload, a decision was made to terminate her employment at that time." In
explaining the impact of the memo on the decision to terminate, Ms. Foulds said
it was simply "another red flag along the way. We put it all together - no
acknowledgement of things she should or could have done differently, or how
communication could/should have improved. At this point it was a collection of all
things put together. . . There wasn't a collective sense that things were getting
better. . . There really was no indication that Bing was ready or able to make
changes to work as a full-time faculty member at Algonquin. . . . It was the one
and a half years - the consistent flags going up. We thought we were doing well
until the next incident. It was truly everything all together."
Ms. Foulds was very concerned that Ms. Sumitro had consistently failed to
take responsibility for her errors and had refused to acknowledge that any
concerns of the College were legitimate. Although it was acknowledged that Ms.
Sumitro always offered explanations and "clarifications" regarding any concerns
that were raised with her, Ms. Foulds was unsatisfied with Ms. Sumitro's refusal
to acknowledge the validity of any of management's concerns, especially given
her probationary status. The preceptorship and leave issues were highlighted as
prime examples. Ms. Foulds said she was looking for Ms. Sumitro to
acknowledge that she could or should have done something differently, but she
never did. Ms. Foulds' obvious and recurring frustrations were caused by her
perception that Ms. Sumitro never seemed to acknowledge that the College was
raising legitimate grounds of concern about her performance. Ms. Sumitro
always acted on the defensive, explained her conduct and/or denied allegations,
whereas Ms. Foulds was looking for some acknowledgement that the grievor
understood the College's concerns. This is why Ms. Foulds said that she kept
raising the same concerns with the grievor and why, in turn, Ms. Sumitro became
so frustrated about having to deal with the same issues so many times. This
theme was pivotal to the College's justification for the termination and was
explored in depth with Ms. Sumitro during her cross-examination. She was
asked repeatedly whether the College's concerns were "legitimate." Ms.
Sumitro was prepared to agree that virtually all the areas of concern were
legitimate, but never admitted that there was any factual basis for the allegations
that were being made against her.
The intense cross-examination of Ms. Sumitro on this subject lead up to
the following exchange:
31
Q. Would you agree that the College has the right to assess a
probationary teacher's suitability for full time employment at the
College?
A. Yes, I agree.
Q. Would you agree that when the College raises a concern, they
have a right to a satisfactory response?
A. Yes.
Q. Is it your position that if the College isn't satisfied that
you've acknowledged their concerns, they can only talk about it
once?
A. No, provided that a full explanation had been given. I don't know
what more they want from me. I'm trying to give my best. What is
it? I've changed. I'm doing what you want. What more sir?
Q. Is it your position that all of your responses to the College were
satisfactory or should have been satisfactory to them?
A. Should have been satisfactory, yes. I've tried my best.
Q. Is it your position that you acknowledged and took responsibility for
every legitimate concern brought to your attention by the College?
A. Yes.
The cross examination then focused on what Ms. Sumitro meant when she said
that she had answered all the College's "legitimate" concerns. Counsel for the
College asked her to list what she considered to be the legitimate concerns of the
College. This question was then clarified by asking her to explain what she had
felt had been "legitimate things for the College to be concerned about." She then
listed the following:
. Not visiting the preceptor for a two week period
. Communicating with the Coordinator about going to the RNAO meeting
. Having taken the one day PD [leave] "without permission" for the
conference
. Changing the [evaluation and/or teaching] tools
. Having no strategies in regards to communication and no commitment to
communicate with her manager
. Failing or "refusing" to attend the October 25th meeting with her manager
. Refusing to attend the October 4th curriculum development meeting
. Refusing to follow hierarchy
. Concerns about team work
Ms. Sumitro described these as legitimate concerns, but kept repeating that she
had responded to all of them. In re-examination, counsel for the Union asked
Ms. Sumitro what "impact" her responses appeared to have on the College. She
replied, "Nothing." These exchanges regarding the "legitimacy" of the College's
concerns and the grievor's responses epitomize the polar differences between
the grievor and the College with respect to the issues that lead to the termination.
32
Dean Cormier takes the responsibility for making the effective
recommendation for termination. She agrees with Ms. Foulds that the decision to
terminate was made in May 2003 at a time when the Fall assignments had to be
made. However, the Dean did not agree about being at the meeting with the
Chair and the Director of HR following the presentation of the Burrows memo to
the grievor. The Dean says that the decision to terminate was made in a
different meeting. Nothing ultimately turns on this curious discrepancy in the
testimony, so there is no need to resolve it. What is important is that, Dean
Cormier listed a number of "problems" that she felt warranted against the
continuance of employment or the conferral of regular status, despite the fact that
the grievor was acknowledged by all to be a "good teacher". Dean Cormier listed
the reasons for termination as being:
"Despite being told to meet with her manager for proper authorization, she still
took a PD day without proper authorization."
"Using poor judgment in choosing not to attend the curriculum meeting."
"Having a great deal of trouble meeting and discussing academic matters with
her manager."
"Failing to follow College procedures."
"Failing to show an understanding of the importance of team work."
"Failing to show a better understanding of the critical elements of full-time
requirements."
Cross-examination shed some light on the basis of the Dean's understandings
that gave rise to these reasons. First, Dean Cormier had not been told about the
e-mail correspondence concerning the three days' leave for the conference, and
that Ms. Foulds had agreed to the attendance provided suitable arrangements for
coverage could be put in place and that this had been done. Ms. Cormier had
been left with the impression that the absence on October 2nd was without Ms.
Foulds' knowledge and/or consent. Further, Dean Cormier testified that in
making the recommendation for termination, she relied on the information she
had received from Ms. Foulds in their ongoing meetings and discussions, as well
as the copious copies of e-mails and documents pertaining to Ms. Sumitro over
the previous one and one half years. However, Dean Cormier admits that
although she "may" have seen the Burrows memo and skimmed over its
contents, the termination of the grievor's employment was made without her
seeing or hearing Ms Sumitro's detailed responses to the Burrows memo.
33
The Union's Assertions of Bad Faith
As the basis of the grievance is the allegation of "bad faith", Ms. Sumitro
was cross-examined vigorously in an attempt to pin-point the focus of her
complaint. She ascribed the bad faith directly to Ms. Foulds and was unwilling to
ascribe bad faith to any other person. Ms. Foulds directly denied any elements
of the accusation, asserting that she worked hard to assist Ms. Sumitro and was
"saddened" that the situation had come to the point of the need to terminate. Ms.
Foulds also stressed that she bore no animosity towards the grievor.
It should also be pointed out that all the allegations of bad faith from the
Union witnesses were not relied upon in legal argument. They are set forth here
because part of the College's case included a complaint that the allegations were
frivolous and actually amount to bad faith by the Union. The specific items of
"bad faith" raised in testimony from the Union's witnesses are listed in the
following categories, many of which have already been canvassed in the
paragraphs above. In the areas where additional evidence is relevant to these
issues, it is discussed according to category.
Failing to hold the monthly meetings promised in the Memorandum of
Agreement
However, Ms. Sumitro credits the initial meetings as being positive and
useful. She also accepted that some meetings did not occur because of
legitimate scheduling problems. She expressed more concern over the fact that
the College did not use the meetings as an opportunity to raise concerns in a
timely fashion. It must also be mentioned that there were several occasions
where Ms. Foulds invited Ms. Sumitro to set aside time and/or to meet to discuss
issues. At times, Ms. Sumitro complied and at others she declined, citing class-
room preparation demands as her imperative.
Mr. Wilson also ultimately conceded that the Union had agreed that the
April 2002 meeting was postponed on consent for a number of legitimate reasons
and the next agreed upon meeting time was August 29th. After that discussion,
Mr. Wilson admitted, "I wasn't going to go out of my way to insist on another
meeting, given what Bing had to endure." Thereafter the Union did not insist on
any of these meetings. Indeed, Mr. Wilson testified that he "really didn't see the
benefit of the meetings".
Failing to provide performance appraisals every four months as
prescribed in the Collective Agreement for probationary teachers.
Further, failing to amend the appraisals by taking into account or giving
any credence to any of the explanations given by the grievor.
However, both Mr. Wilson and Ms. Sumitro acknowledged that the "every
four month" requirement was relaxed with the advent of the summer holidays,
34
and that there were scheduling issues around the delivery of some appraisals.
Further, the meeting scheduled for November 2002 was delayed over a conflict
regarding who would be allowed to attend, and was ultimately delivered in
February 2003.
Ms. Foulds' "willingness to arrive at conclusions about [the grievor's]
performance before gathering all the facts"
Examples given included Ms. Foulds coming to a conclusion about the
"trust" issue after the conversation with the carpenter, her assumption that the
grievor was "unhappy" about the transfer to the RPN program, and the
assumption that the grievor had committed to going to the conference and/or
attempted to arrange PD leave without first getting permission from her manager.
The complaint about not being believed or listened to was perhaps Ms. Sumitro's
most recurrent and poignant refrain. She repeatedly summarized her feelings
about this issue by lamenting, "I believed that no explanation 1 could give would
make her [Ms. Foulds] change her point of view." This was echoed by Mr.
Wilson's frustration when he said, "Nothing Bing had said had any effect on the
College."
The College's response to this was frustration over Ms. Sumitro appearing
to assume that every explanation she gave should satisfy the College and put an
end to the issue. The College was looking for acknowledgement from Ms.
Sumitro that her behaviour could have improved or been more appropriate. Her
failure to do this was partly why the items remained in contention. On the other
hand, Ms. Foulds had admitted that nothing Ms. Sumitro could have said would
have dispelled the conclusion that the carpenter was telling the truth or that she
would have believed the carpenter over the grievor in any event.
"Resurrecting" and keeping issues alive after they had been resolved
The examples that were cited again included the issue with the carpenter,
the attendance at the conference and the integration into the department.
The College's response was to explain that performance appraisals are
always drafted as an overview of the preceding period and therefore have to
reflect any performance issues that arose during that time. Therefore, it was said
that the recounting of past events in the appraisals was part of the legitimate
function of the document. The College also explained that it kept dealing with
issues and writing formal letters to the grievor so that its expectations could be
made very clear to her.
Ms. Foulds' failure to give "a clear indication of her expectations"
35
Examples included the issue of the request for the PD leave, the delivery
of the list of communication strategies and the attendance at the October 4th
curriculum development meeting, all of which are discussed in detail above.
Dean Cormier testified that she gave explicit instructions to Ms. Foulds to
make all expectations very clear to Ms. Sumitro and to specify the consequences
of failure. It was said that this was important to help Ms. Sumitro succeed and for
the College to live up to the intent of the reinstatement settlement. Therefore, the
parties agreed upon the importance of clear communication of expectations.
However, the Union's evidence repeatedly focused on issues of communication
problems.
The Union called evidence to try to show that more than Ms. Sumitro had
difficulty communicating with Ms. Foulds. Ms. Hunka taught at the College for
many years. She testified about "not being able to get anywhere" in her
discussions of concerns with Ms. Foulds. Ms. Hunka said that this led her to file
two successful workload grievances over the time allotted to team meetings.
However, she also admits that the communication problems were not entirely Ms.
Foulds' fault "because any communication interaction is a two-way street". She
also later admitted that the workload issue was not a communication issue;
instead, it was a matter of the two of them disagreeing over the position being
taken by management.
However, it must be said that there were other instances in the hearing
where Ms. Foulds' ability or willingness to communicate effectively was put in
question. Counsel for the Union had great difficulty getting Ms. Foulds to answer
questions directly. While it is common (and sometimes understandable or
legitimate) for a witness to try to avoid answering cross-examination questions
directly, there were countless occasions when questions had to be repeated
several times before Ms. Foulds would address the focus of the question. In
addition, her ability or difficulties to communicate clearly with Ms. Sumitro was
exemplified in an exchange during cross-examination concerning the memo Ms.
Foulds had sent regarding the attendance at the curriculum development
meeting on October 4th. It must be recalled that Ms. Sumitro had written, asking
for "clarification" regarding the attendance and the demands of her preparation
time. Ms. Foulds had responded, "You can reflect on how you devote your time;
this week you had three days professional development; it is your decision how
you apportion your schedule. The curriculum work for next semester is a
cornerstone to your teaching." Ms. Foulds was then cross-examined about
telling Ms. Sumitro it was her decision to make about attendance and then
reprimanding her for that decision. Ms. Foulds' answer was, "My words were that
it [the meeting] was important." When asked again about saying "it's your
decision how you proportion your schedule", she responded, "That's not what I'm
saying. I'm saying it [the meeting] is important, it's essential. You've got the time
on your SWF and you're not teaching that day. . .. My belief is that it was very
clear that these were important meetings to attend."
36
However, Ms. Foulds did acknowledge in her testimony in chief that she
realizes that she did not handle everything regarding Ms. Sumitro's employment
"perfectly". Ms. Foulds explained, "I was a new manager; there were
communication strategies I'd do differently now."
The nature and variety of the teaching assignments given to the
grievor and "inappropriate manner'in which her workload complaints
were handled
Upon the grievor's reinstatement in January 2002, she was given an
assignment of classes that would take effect five days later and in an area that
was different than what she had taught before. There is a great deal to do to get
ready to teach, and five days is a short period, especially given that the
Collective Agreement requires that the SWF is to be issued six weeks before the
start of classes, and the timetable is to be delivered long before classes
commence.
Even though the assignment was in an area of the grievor's competence
and expertise, and the Collective Agreement allows extra time on the SWF for
preparation for new courses, this assignment was clearly difficult for the grievor.
She described herself as being "overwhelmed" by the teaching demands.
However, Mr. Wilson had to concede in cross-examination that this "short notice"
was the result of the decision to reinstate Ms. Sumitro in the first week of January
of 2002. The alternative would have been to await the next semester for her to
resume her teaching. Further, Ms. Sumitro acknowledged that Ms. Foulds did
respond to some workload concerns at the time, and that no grievance was filed
regarding the late delivery of the SWF or the timetable. Ms. Sumitro added, "It
was not very career enhancing to be complaining all the time." Further, she
admits that any concerns she had in the winter of 2002 were "discussed and
dealt with". Finally, the evidence of Dean Cormier made it clear that at the time of
the reinstatement and assignment of classes to Ms. Sumitro in January 2002, all
full- time teachers had already been assigned in the areas of the grievor's
previous subject area. It was pointed out that her new assignments were
discussed with her upon her reinstatement and had been accepted.
However, the Union's more serious complaint focused on the number of
different assignments given to the grievor. The history of her assignments was:
Fall 2001 - RN Program; Winter 2002 - Continuing Education and Health
Sciences; Fall 2002 - PN Program; Winter 2003 - Continuing Education. Jack
Wilson, the Secretary of the Union for the past ten years, and a full-time Faculty
member since 1983, considered these changing assignments as strong indicia of
bad faith. He says that he knows of no other probationary teacher who was
reassigned to three different programs or physical locations. He claimed that this
added to the grievor's workload in a measure beyond what would be expected for
37
a probationary. However, he conceded that no grievance was filed about these
concerns at the time.
Ms. Foulds responded to the Union's allegation in this area by asserting
that the changing assignments were initially an inevitable consequence of the
timing of the reinstatement and thereafter represented a "wonderful opportunity"
for the grievor to work with a "wonderful team" in the new RPN program, and to
see how a new program is put together and delivered. Further, it was said to be
consistent with the new direction in the department to have faculty who could
teach in more than one program.
Despite Mr. Wilson and Ms. Foulds' differences about the impact of the
differing assignments, and despite Ms. Sumitro's constant lament that she found
her teaching responsibilities to be all-consuming, she also repeatedly testified
that she did not mind teaching in new areas and was always "ready to meet the
challenge". This was also reflected in her e-mails to Ms. Foulds at the time.
A different aspect of the bad faith allegation concerning assignments
arises out of Ms. Sumitro's Winter 2003 workload as set out in the November
2002 SWF. With the Union's assistance, Ms. Sumitro exercised her Collective
Agreement right to refer what she felt to be an excessive assignment to the
Workload Monitoring Group that has the mandate to try to resolve workload
issues. When that process did not yield a resolution, the matter was referred to
the Workload Monitoring Arbitration. This resulted in an award dated January
29th that made some adjustments to Ms. Sumitro's assignments in her favour and
denying some of her requests for recognition for additional preparation time. Mr.
Wilson complained about her having to go to the Workload Arbitrator in order to
achieve resolution of her complaint. However, Ms. Foulds responded by
pointing out that aspect of the grievance that had not been allowed by the
arbitrator had involved a request for additional preparation time for a new
program, beyond the allowance contained in the workload provisions of the
Collective Agreement. Further, the evidence of other witnesses confirmed the
reality that workload grievances, referrals to the WMG and arbitrations are not
uncommon in this system or in this Department.
A final and important aspect of Ms. Sumitro's complaint is that she was
always trying to maintain excellence in her teaching, yet found the workload and
expectations daunting. Countless times in her testimony she would say the
following phrases: "I was so busy", "I tried to do my best", "I worked so hard" and
"I was overwhelmed". She made it clear that classroom teaching was her main
focus, and that she found the workload extremely difficult to handle.
The College's response to the Coordinator's Memo
The Union feels that the Coordinator should have first addressed these
concerns directly with Ms. Sumitro rather than referring them to management.
38
Thereafter, while it is acknowledged that Ms. Sumitro was eventually given an
opportunity to respond to the items and did so, the Union complains that none of
her explanations were taken into account or given credence despite the fact that
there were valid explanations for some of the concerns and a lack of substance
to other allegations. The grievor's termination took place days after this Memo
was presented to her and so it appeared to the Union that the grievor's
responses and explanations had not been given proper consideration.
The College's failure to allow Ms. Sumitro to be reassigned to another
Manager despite what was alleged to be "open hostility" from Ms.
Foulds.
As mentioned above, Ms. Foulds adamantly denied that there was any
hostility on her part. Dean Cormier says she saw no evidence of this in the many
meetings she attended with them both. In fact, Ms. Cormier described Ms.
Sumitro as "glaring" at Ms. Foulds and acting "angry" in response to any critical
comments. As for the matter of reassignment, the College raised concerns about
Ms. Sumitro taking the request for the transfer directly to the President, rather
than accepting the Dean's invitation to meet personally with her.
The failure to include teaching performance as reason for her
termination
This allegation ties directly in with the following item and relates to the
Union's view that the grievor's teaching was not given proper consideration in the
decision to terminate her employment.
The failure to take into account the grievor's teaching excellence and
other "positive contributions to the College" as a full- time teacher
From the outset of this case, the College has acknowledged that the
grievor was a "good teacher" but asserted that other legitimate non-teaching
aspects of her performance were what compelled the decision to terminate. Ms.
Foulds asserts that while teaching is an important aspect of a full-time faculty
member's job, it is not the "most important" element. She and the College took
the position that adherence to academic policies and procedures, staff directives,
team teaching and working with other faculty are "equally important". The parties
do agree that full-time Faculty have multiple responsibilities, both inside and
outside the classroom. Indeed, this is recognized in their Collective Agreement
and the standard workload forms (SWFs) which designate teaching, professional
evaluation, curriculum development and complementary functions as some of the
aspects of workload. These hours reflect that faculty have multiple
responsibilities outside of the classroom that could be considered administrative,
including departmental meetings, making themselves available to students'
curriculum development. This is, in part, what sets full-time faculty apart from the
part-time teachers. The Union does not object to the College demanding
39
adequate performance with regard to the non-teaching aspects of the job. The
Union's allegation of bad faith is based on the weight the College gave to these
matters in contrast to its consideration of the grievor's achievements as a
teacher.
Ms. Foulds testified that in order for a probationary teacher to succeed to
regular status, the teacher must do more than "show up and teach the classes".
The teacher must also engage successfully in the organizational structure,
understand and appreciate the structures behind the delivery of classes and
creation of timetables, adhere to the academic and institutional policies and
procedures, work within a "team environment" and become a part of curriculum
development. Ms. Foulds described teaching as an "important", but only "part",
of a whole series of expectations that must be fulfilled to attain regular status.
In contrast, part-time teachers in the Nursing programs are clinical
teachers, not expected to do any classroom teaching. They are typically hired for
a specific course and for a finite duration. They have little or no responsibilities
regarding the preparation or distribution of course outlines, texts or evaluation
tools. The practical aspects are arranged for them by the Coordinator
responsible for the course. Full-time faculty do have responsibility in these
areas, including the preparation of course outlines, ordering texts and preparing
evaluation materials, as well as with regard to curriculum development,
departmental meetings, student accessibility and professional development.
The Union presented extensive evidence to demonstrate Ms. Sumitro's
value as a teacher. A professor from the University of Ottawa School of Nursing
spoke of Ms. Sumitro's previous competence as a teacher in a clinical setting,
praising her for "following all expectations" and being a "good teacher". Several
of Ms. Sumitro's former students from this College came to testify in her support,
describing her as "an excellent teacher", "always prepared", "one of the best",
and as caring, compassionate and "bringing a cohesiveness" to their studies.
Further, students organized a petition containing over 60 names at the end of the
term when they discovered that Ms. Sumitro had been dismissed. The petition
describes Ms. Sumitro as "an excellent teacher", and asked that she be returned
to the Nursing program.
The Union also brought forward a series of faculty members, most of
whom are retired, who had taught with or been the grievor's Coordinator, either
when she was part-time or during her full-time appointment. All of these
witnesses praised her dedication to teaching, her cooperative participation as a
"team player" and her "respect" for the College hierarchy. Their credibility was
never challenged by the College, however, cross-examination always pointed out
that none of them had ever had supervisory authority over Ms. Sumitro or had
any occasion to enforce College policies with regard to her work.
40
In the Winter of 2003, Ms. Sumitro was nominated by several of her
colleagues for a teaching award. The nomination includes testimonials to her
work in the specified categories of team work, service to the College community,
recognition by colleagues of excellence and support of colleagues.
The letter cites several examples of achievement in each of these categories.
As a member of the part-time faculty before her full-time appointment,
there is no dispute that the grievor was an effective and good teacher. Maureen
Hunka, a former faculty member and "integration course leader" in the Nursing
program, testified that she valued Ms. Sumitro's "professionalism, accountability,
responsibility and interest". She also said that Ms. Sumitro was cooperative and
respectful of others' experience even when her suggestions were not adopted.
Marlaine Finnegan is another faculty member who taught with Ms. Sumitro and
described her as "an excellent teacher, extremely competent. . . and the kind of
teacher many of us would like to be". Ms. Finnegan also credited Ms. Sumitro as
being a valuable team player who was very supportive of other teachers and their
ideas. However, Ms. Hunka admits that she never worked with Ms. Sumitro after
November 2001.
The College's decision to termination rather than exercising the "ample
opportunity to discipline" if it felt that performance was not meeting
expectation
Since this is more of a legal argument than a factual allegation, it need not
be explored in detail at this point, other than to say the allegation reflects the
different perspectives of the parties; the College thought it had given the grievor
numerous chances to improve her performance, whereas the grievor and the
Union felt that she was never given a fair chance to succeed.
The allocation of office space
While Ms. Sumitro said that initially she "welcomed" the new office
because it brought her closer to her PN colleagues, she and the Union allege
that the particular space allocated stands as indicia of bad faith. It was stressed
that the room was not an actual office, nor was it a private space. It was a room
containing a fridge, a microwave, a copier, printer, filing cabinet and a table often
used for students to take tests. Other faculty members had constant access to it
and to its equipment and facilities. Mr. Wilson described the room as "not
conducive to the privacy that most faculty enjoy", even those who have shared
office space. He said that no other member of faculty in the area had to endure
that kind of environment. Ms. Sumitro says that she "tried not to complain", but
she did point out the memos she sent to Ms. Foulds asking to be moved to a
more appropriate office space when one became available, or alternatively that
the communal microwave and kitchen facilities be moved out of her space.
However, no changes were made. She also testified that she had concerns
about "radiation" from the microwave oven, although this is not mentioned in her
41
e-mails to Ms. Foulds. No changes were made, although Ms. Sumitro believed
that a more preferable space had become available when a part-timer moved
out. Ms. Sumitro testified, "I just waited and waited." Ms. Finnegan testified that
another room that was being used as a meeting room at the time could have
been made available to Ms. Sumitro as it has since been set up as an office for
two full-time teachers.
Ms. Foulds responded to this complaint with the explanation that the
Department had tried to accommodate Ms. Sumitro's request to be moved closer
to the PN group, that office space was "tight" at the College and that space
usually only opens up in the Spring. Ms. Foulds believed that the Dean had
shown Ms. Sumitro what space was available, and that the request for the move
had been made after that. However, Dean Cormier's evidence does not confirm
this; she simply testified that the move was facilitated at a time when any other
available spaces were permanently assigned, and that she directed a member of
staff to deal with the "logistics" of the move. There were no questions or answers
during Ms. Sumitro's testimony that suggested that she had seen the office prior
to the move, only those that confirmed that she had requested the move and had
been grateful to hear that the request had been accommodated.
Ms. Foulds also responded to the complaints about the microwave and the
facilities saying that Ms. Sumitro had known that the room was a shared space
before she had accepted it and that if Ms. Sumitro needed privacy to meet with
her students she could use one of the faculty meeting rooms for that purpose.
SUBMISSIONS OF THE PARTIES
The submissions of counsel were detailed and took two full days of
hearing. It is impossible and unnecessary to reproduce them completely. Only
the outline of the argument follows.
Submissions of the Union
The Union concedes that it has a limited right to challenge the termination
of a probationary employee under this Collective Agreement. It recognizes that in
order to succeed with this grievance, it bears the onus of proving that the College
acted arbitrarily, discriminatorily or in bad faith. The Union argues that if the
College was held to the standard of just cause, the reasons the College has put
forward to justify the termination of Ms. Sumitro would fall "woefully short" of
establishing just cause. The Union characterizes the College's stated reasons as
"picayune, petty, insignificant and/or trivial". By juxtaposing these reasons beside
the fact that the grievor was recognized as being a good teacher, the Union
alleges that the College has acted in bad faith in this situation. Further, it is
alleged that it treated the grievor differently than others, and acted arbitrarily with
respect to her employment. It was also asserted that it was bad faith for this
employer to act in a way that prevented this probationary employee from doing
42
her best, and then terminating her for not meeting the standards that had been
set. Further, it was said it was bad faith to make conclusions about her failures
without making expectations clear and/or properly investigations its suspicions.
The Union relies on the following cases as establishing the test for bad faith in
this sector: The Board of Governors of Loyalist College of Applied Arts and
Technology v. Ontario Public Service Employees Union (2003) 63 O.R. (3d) 641
(C.A.); Toronto (Metropolitan) v. Canadian Union of Public Employees [1981]
O.J. No. 672 (Ont. S.C.); Jeanne Sauve Family Services and Ontario Public
Service Employees Union, unreported decision of Joseph W. Samuels dated
January 6, 2004; Centennial College of Applied Arts and Technology v. OPSEU,
Local 558 (Robertson Grievance) [2003] O. L.A.A. No. 156 (Knopf); and St. Clair
College and Ontario Public Service Employees Union, unreported decision of
Kenneth P. Swan dated June 17, 1996.
The Union alleges that this Employer has acted in bad faith with regard to
Ms. Sumitro because it did not evaluate her fairly, assist her, listen to her, it
jumped to negative conclusions before listening to her explanations, and
repeatedly advanced the same criticisms while "turning a blind eye to her obvious
strengths". The Union also asserts that the Employer is required to conduct a
reasonable investigation into concerns about performance, refrain from making
arbitrary conclusions, and not act without taking steps to ascertain the truth. The
Union asserts that the Employer has failed in its obligations towards Ms. Sumitro,
and particularly that it failed to properly supervise her or take steps to ensure that
its concerns about performance were based on facts.
In analyzing the evidence, the Union asked the Board of Arbitration to look
at the College's "ostensible" reasons for the termination in order to determine
whether there was or is a reasonable basis for the decision. The position of the
Union is evidence does not support the reasons that the College is relying upon.
For example, the Union referred to Ms. Foulds' evidence where she said there
was concern about the Queensway Carlton contract, and that this was a factor
relied upon in the termination. However, no witness called by the College could
identify what the concern was, and the evidence also established that no one
from the College took any steps to contact anyone at Queensway Carlton to
determine whether there was any substance for the concerns. The Union also
stressed the evidence of Ms. Bissonnette when she indicated that when she
heard that there were rumors about performance concerns at her hospital, she
called Ms. Tosh to say that there "was no truth to the rumors". Ms. Bissonnette
said the rumors ought to be stopped. Accordingly, it was said that the College
was acting in bad faith when it considered an unsubstantiated concern as one
factor in the decision to terminate.
Further, the Union pointed to the letter of termination and the evidence of
Ms. Foulds, which indicated that one of the reasons for the termination was
"concerns raised by colleagues" about Ms. Sumitro's performance. However, it
was stressed that there was no evidence of concerns from "colleagues", other
43
than from Ms. Burrows. Addressing those concerns, counsel for the Union
emphasized that Ms. Burrows' testimony made it clear that her memorandum
was not intended to be read as a "criticism" of Ms. Sumitro. Further, the Union
argued that the evidence supports a conclusion that Ms. Sumitro's faculty
colleagues were supportive of her, as illustrated in her nomination for a teaching
award and the witnesses who spoke glowingly of her as a teacher and as a good
member of "the team".
The Union also says that it was bad faith for the College to say in the letter
of termination that the grievor had failed to make the acknowledgements required
from the Memorandum of Settlement as a condition of reinstatement, when the
requirement of the public acknowledgements mentioned in that document were
waived by the College within weeks of the reinstatement. Therefore, it was said
that it was bad faith to suggest that the grievor had failed to do something that
she had been told was no longer expected.
Further, the Union alleges that the Employer acted in bad faith by alleging,
and failing to establish, that the grievor failed to abide by the rules and standards
of the College. The Union turned to the two examples. The Union first points out
that the College has alleged that the grievor failed to fulfill the requirement of
meeting with students and preceptors at least once a week. The Union asserts
that the evidence does not support a finding that such a rule exists and that, in
any event, the College failed to bring this rule to the grievor's attention. It was
pointed out that the "once a week rule" is not contained in the Preceptorship
Manual, and that the College's own witness on this point said that the "notion" of
meeting once a week was the "ideal". Therefore, it was said that the evidence did
not establish that the expectation of weekly meetings was a College rule. It was
submitted that it cannot be misconduct to fail to attain an ideal, especially with so
many students, locations, preceptors and different shifts. The Union placed great
emphasis on the evidence of Jenny Brooks, who had been a faculty liaison for
years, who called Ms. Sumitro's workload "horrendous". The Union also relied on
the evidence of other faculty liaisons who said that they had not met that
standard of contact with preceptors. Accordingly, it was argued that the College
has failed to establish that it was judging the grievor by a reasonable standard or
that she was being treated the same as other staff.
The Union next addressed the issue of whether the grievor had been
properly treated with respect to the request for a professional development day. It
was stressed that the Collective Agreement entitles employees to ten
professional leave days a year. Further, the evidence shows that Ms. Sumitro did
fill out the correct form, and asking for two days' leave in the Fall of 2002. The
grievor then amended her request in an e-mail, giving the Chair a reminder about
the request two months in advance of the date. Although that reminder did not
bring attention to the fact that the desired leave now included a third day off, the
e-mail did set out the three days. It was stressed that Ms. Foulds' response was
not to tell Ms. Sumitro to amend her initial form, but instead to make
44
arrangements for coverage for her teaching responsibilities. The Union argues
that if filling out the correct form is the real cause of the College's concern, there
was an obligation on Ms. Foulds to tell the grievor that she ought to have filled in
the amended form. Further, it was argued that if the College's real concern turns
out to be the failure to use the proper form, that should not be accepted as a
serious issue affecting the grievor's employment. It was stressed that the College
was made aware of Ms. Sumitro's plans at all times and that she never acted
without authorization.
With regard to the attendance at the RNAO Conference, it was stressed
that the grievor was well acquainted with the expectation that she seek leave
directly from the Chair of her department. It was submitted that the evidence
shows that the grievor did not dishonor this obligation. Instead it was said that the
evidence shows that she simply asked the Coordinator what alternatives would
be available to arrange coverage for the class so that those alternatives could be
presented to the manager who would then decide upon the leave. The Union
expressed strong criticism of Ms. Foulds for what was said to be her failure to
listen to Ms. Sumitro's explanation, and instead drawing an adverse conclusion
without any reason for doing so. Further, it was stressed that the Employer did
not call the Coordinator to say that the grievor did seek her permission. Instead, it
was said that the only evidence in this protracted hearing is to the contrary, in
that the grievor sought information, not permission, from the Coordinator. The
Union also faults the College for raising this issue over and over again in the
performance appraisals when it ought to have been resolved in the discussions
between Ms. Foulds and the grievor as early as January 2002.
The Union also alleges that it is unfair for the College to have criticized
Ms. Sumitro for expressing a preference about her area of teaching. It was
stressed that there is no evidence that she ever refused any assignments outside
of her preference, or that she believed she was hired only to teach in one area.
Further, the evidence shows that Ms. Sumitro only expressed her preference
when she and all the other faculty were invited to state their preferences and in a
social context. Further, the Union pointed out that Ms. Foulds agreed that Ms.
Sumitro remained flexible about accepting "new challenges" and assignments.
Accordingly, the fact that the statement of preference was used as the basis of a
criticism in the performance appraisal was said to be an indication of bad faith.
The Union also asserts that it is unfair for the College to have criticized
Ms. Sumitro for appealing to the President for assistance in obtaining a
reassignment. The Union argues that this appeal was, in fact, a logical and
"common-sense" plea for help to a President who had indicated that he had an
open-door policy, and could be approached by faculty. Therefore, it was argued
that this appeal was not an indication of "disrespect for hierarchy".
The Union also faulted Ms. Foulds for her criticism of Ms. Sumitro with
regard to the drafting of the plan to improve communication. It was pointed out
45
that when Ms. Sumitro's submission did not meet with Ms. Foulds' approval and
Ms. Sumitro asked for guidance, Ms. Foulds did not give any guidance to the
grievor. The Union asserts that this is a failure to properly supervise and properly
assist the probationary employee.
The Union was very critical of Ms. Foulds with regard to the incident with
the carpenter. It was argued that Ms. Foulds should never have concluded, on
the basis of something "apparently said by a College carpenter", that Ms. Sumitro
had indicated that she was afraid of Ms. Foulds. Ms. Foulds was criticized for
failing to make any inquiries before reaching a conclusion and then for admittedly
disbelieving the grievor, no matter what she said. Thereafter, Ms. Foulds told Ms.
Sumitro to change her behavior, which was said to be completely unfair when the
event being complained about had never happened. The Union suggests that an
adverse inference should be drawn against the College for its failure to call the
carpenter as a witness, and that this incident should be seen as an example of
bad faith.
Turning again to the question of whether permission had been granted for
the third day of professional leave, the Union points out that the documentary
evidence shows that Ms. Foulds had indicated to Ms. Sumitro that the additional
day could be taken so long as coverage could be arranged. When Ms. Sumitro
had been accused of taking the day without permission and had been able to
show the e-mail from Ms. Foulds granting permission on the condition that
coverage could be arranged, it was said that Ms. Foulds should have "gracefully
apologized" for her failure to recall that permission had previously been granted.
Instead, it was suggested that the College then tried to convert the allegation of
misconduct into a criticism for failure to fill out the proper forms. It was said that
this was a trivial concern given that the leave was properly documented through
a different set of forms.
The Union also argued that the Employer unfairly criticized Ms. Sumitro for
being unwilling to meet with Ms. Foulds. It was submitted that the evidence
shows that rather than being unwilling to meet, Ms. Sumitro had never refused to
meet and had only offered alternative times that would have enabled her to fulfill
her teaching responsibilities first. With regard to the failure to attend the specified
curriculum development meeting, it was submitted that the grievor fulfilled her
SWFs' allotment of hours designated for curriculum development meetings
throughout her employment. It was submitted that there is no requirement that
she need attend these meetings beyond the amount set out in the SWF. Further,
the Union pointed to the evidence showing that other probationary employees
missed some of these meetings and were not censured for it. But primarily, the
Union relies on the memo from Ms. Foulds with regard to the one specified
meeting that Ms. Sumitro missed, wherein Ms. Foulds said, "it's up to you" to
decide about attendance. It was argued that this gave Ms. Sumitro permission to
choose to spend her time on class preparation, rather than attending that one
46
particular meeting. The Union argues that it is now bad faith to use this choice as
a factor against the grievor.
The Union also argues that the grievor was severely disadvantaged by
being given assignments in the Winter of 2003 that required a workload
arbitration in order to bring it within the norms of the Collective Agreement.
Further, it was said that the grievor was additionally disadvantaged by the fact
that she did not receive her timetable until the first week of January. It was said
that the College should have been "bending over backwards" to assist this
probationary employee, rather than giving her a problematic workload and setting
up a situation where she was "double booked" and put in conflict with the
Coordinator. It was argued that this timetabling conflict put unnecessary and
unwarranted stresses on the Coordinator that were not the fault of the grievor,
and yet prompted the Coordinator to see her frustration as being caused by the
grlevor.
The Union also argues that while the Employer criticized the grievor for
the alleged "modification of objectives and teaching tools", the only evidence in
support of this allegation was the document showing that Ms. Sumitro made her
own notes on a pre-existing form. The Union argues that there is no evidence
that the grievor marked her students differently, that her notations came to the
students' attention, or that they caused any perceptions of inconsistent marking.
Further, it was said that the notes had nothing to do with the objectives or
teaching tools themselves.
The Union then addressed the memorandum issued by the Coordinator,
Ms. Burrows. While Dean Cormier had testified that this document played a
"limited" role in the decision to discharge, the Union's submissions address the
fact that the College's case seemed to rely upon the allegation that this
"colleague" within the bargaining unit had expressed concern about Ms.
Sumitro's performance. However, it was stressed that the evidence of Ms.
Burrows herself made it clear that she had written the document on the basis of a
number of assumptions, including that the expectations of a full-time faculty
member had been clearly explained to Ms. Sumitro. The Union submitted that the
evidence revealed that many of those expectations had not been made clear to
Ms. Sumitro.
Another aspect of bad faith being alleged against the College is that Ms.
Sumitro was placed in a more onerous position than other probationary teachers.
The Union relies upon the evidence of Mr. Wilson, when he said that except for
Ms. Sumitro, no other probationary had ever been given more than one area of
assigned teaching duties within the probationary period. In Ms. Sumitro's case,
she was given three different assignments during her probationary period,
assigned new students, new colleagues, a new office and new subject-matter. It
was said that all of this would lead to additional workload and stresses.
47
The College was also accused of bad faith for placing her in the multi-
purpose room or "cubicle" in the Fall of 2002. It was said that the evidence
supports that no other Faculty member had to endure such conditions. Further,
since the evidence suggested that other space could have been made available,
the assignment of this particular space should be seen as the imposition of
unnecessary strain upon a probationary teacher. This was also said to have
prevented her from performing at her best because she was not given an
environment that was conducive to a positive work situation.
The Union also cites the Burrows memo as an example of "unusual" or
different treatment meted out to Ms. Sumitro. First, it was said that the normal
practice is that a Coordinator would speak with the Faculty member before
writing a formal complaint or criticism to management. However, in this case Ms.
Tosh counseled Ms. Burrows to "put her thoughts in writing", and then brought
the memo to the attention of Ms. Sumitro's manager. Further, the Union
questions the propriety of the College relying on allegations that the grievor had
breached department protocols by failing to have quizzes checked before
printing, when the evidence of Union witnesses was that other programs within
this Department do not insist on the pre-validation of quiz questions.
The final example of differential treatment that the Union emphasized was
the fact that the grievor was given the "horrendous" assignment of so many
teachers and preceptors in the Spring of 2002.
The Union then suggested that an element of bad faith in this case is the
College's failure to acknowledge the grievor's strengths as a teacher. The Union
stressed the testimonials to Ms. Sumitro's teaching abilities from colleagues and
students, and argued that these establish that the grievor was an "extraordinary
teacher". It was argued that it is simply bad faith to not place significant weight on
her teaching excellence in the consideration of the continuance of her
employment.
For all these reasons, it was submitted that the Board of Arbitration should
conclude that the grievor was terminated in bad faith. The remedy requested is
reinstatement to a full-time Faculty position that does not require her to report to
Ms. Foulds, plus full compensation. It was conceded that the reinstatement would
put the grievor back with probationary status, but it was said that once she
passes probation, she should be credited with full seniority for all the time that
she taught on a full-time basis. The Board of Arbitration was asked to remain
seized with regard to the implementation of the Award.
Submissions of the Emplover
Counsel for the Employer began his submissions by stressing that the
allegation of bad faith is a very serious one, with serious consequences for both
the complainant and the accused. It was stressed that there are at least 11
48
specific accusations of bad faith in this case, and that they amount to an attack
on the integrity and professional reputation of at least five people involved in this
case, including the Dean, the Chair and the Coordinator. The Employer relies on
the following authorities that highlight the nature and seriousness of the
allegation of bad faith and the importance of having sufficient evidence to fulfill
the onus of proof: Hamilton Street Railway Co. v. Amalgamated Transit Union,
Local 107 (Davidson Grievance) [2000] O.L.A.A. No. 921 (Knopf); and
Centennial College of Applied Arts and Technology v. OPSEU, Local 558
(Robertson Grievance), supra. It was submitted that the evidence in this case
does not support a finding that the College relied on unlawful considerations
and/or hindered the grievor's ability to succeed. Instead, it was argued that the
evidence shows an employer that was "unusually patient" with Ms. Sumitro, but
that she was "resistant" to their efforts on her behalf.
Counsel for the College stressed that while the grievor withstood three
days of testimony, maintaining that the Union's allegations of bad faith all had
merit, she also identified nine out of the 11 areas as "legitimate" causes of
concern for the Employer. It was said that this admission "wiped away" nine of
the 11 allegations against the College. The College argued that there should be
"serious consequences" for the Union still maintaining so many "baseless
accusations" against the College.
On the other hand, counsel for the College conceded that the College "did
not do everything perfectly", and credits the College's witnesses for admitting
this. In contrast, the grievor was faulted for being unprepared to accept
responsibility for any of her actions. Counsel said that if the grievor had only
acknowledged the College's concerns as legitimate or accepted any
responsibility for the problems, the College would not have been forced to
repeatedly bring up issues with her. Accordingly, it was suggested that because
the grievor only belatedly gave any credence to any of the College's concerns, it
was the Union that was acting in bad faith, not the College.
It was argued that the "filter" through which all the evidence should be
viewed is the fact that the grievor had already been terminated during the first
semester of her appointment as a full-time teacher. The Memorandum of
Agreement that led to her reinstatement was then the document that set out the
conditions that the grievor agreed to in exchange for "another chance" at
employment. The Board of Arbitration was asked to infer from the document that
the grievor had not satisfied the expectations of the Employer during the first
term of her employment, but that she had been given a "second chance" to
succeed. It was said that a reading of the document as a whole should lead to
the conclusion that the grievor was acknowledging that she had more than
teaching duties to fulfill, that the College's previous concerns were legitimate,
and that the grievor had committed an earlier error of judgment that had led to
her initial termination. Further, it was said that the regular meetings contemplated
in the document were set up for the grievor's benefit, and that she had agreed to
49
abide by the College's rules, including the expectation to contact the Chair
directly about matters pertaining to her employment. It was said that it was
significant that the Memorandum also "reset probation" back to the beginning of
the probationary period, making her serve another two full years before she could
gain regular status. It was said that this Agreement should make it clear that
there were problems with the grievor's performance with respect to
communication, judgment, adherence to rules and administrative responsibilities
from the outset, but that she was being given another chance to establish
permanent status. Counsel argued "any probationary teacher who 'truly gets it'
would have gone out of her way to see that this didn't happen again" by following
all the rules. However, it was said that the grievor failed to do this.
It was stressed that the probationary period gives the Employer the
chance to decide who has the best chance of succeeding within the Department.
It was said that the College showed incredible patience with the grievor despite
the need to repeatedly refer to some of its concerns, because the grievor never
acknowledged that there were any legitimate concerns while she was employed.
Therefore, it was said that the College should not be faulted for repeating
problems to the grievor; instead, it should be acknowledged that the College was
going out of its way to assist the grievor.
The Union was criticized for describing the College's concerns as
picayune, petty or insignificant, when the concerns related to the areas identified
in the original reinstatement and which relate to important aspects of a faculty
member's employment.
It was argued that the evidence shows that the College's experience with
the grievor was that she was never willing to take responsibility for her own
actions and never willing to admit any fault on her part. It was said that the fact
she was a good teacher "misses the point" that she needed to be more than a
good teacher. It was pointed out that only 15 of the 44 hours on a SWF are
attributed to work in the classroom. The College relies on the evidence of Dean
Cormier when she explained that the College needs teachers who also fulfill their
administrative, curriculum development and departmental needs. It was said that
the grievor was given numerous chances to show that she could comply with the
College's expectations, but that no improvement could be expected when she
failed to acknowledge that there was ever a problem in the first place. The
College acknowledges that the grievor was a good teacher. It was said that she
was hired because she was a good teacher. But it was also said that being a
good teacher is simply a "minimum expectation" or a "base line expectancy". It
was argued that the grievor's own evidence and demeanor demonstrates that
she could not or would not comply with the College's expectations. It was
stressed that the grievor kept saying that she was doing her best, yet she fails to
see that this was not enough to pass probation.
50
The Employer pointed to the RNAO Conference as an example of
evidence that the grievor did not understand or intentionally ignored what she
had been told to do. It was said that she had been told to speak to her manager
first about any issue of leave, and to follow the proper lines of communication.
Instead, within weeks of the meetings about this very issue, the grievor spoke
first to a coordinator, rather than the manager, about obtaining a leave. While it
was acknowledged that the grievor said she was only seeking information, the
point the College was trying to make was that the manager had told the grievor to
speak to the manager first, and the grievor should have simply complied. It was
said that if the grievor had acknowledged the legitimacy of Ms. Foulds' concern,
then the issue would not have been brought up repeatedly. Further, or in the
alternative, it was said that it was appropriate to bring the issue up again in the
following performance appraisal because that is the document that covers a
period of time.
The grievor's failure to provide an adequate response to Ms. Foulds'
request for communication strategies was said to be another example of the
grievor's failure to meet the College's expectations. It was said that the document
that the grievor did submit contained no strategy, no plan, and was simply a one-
line statement of an objective. Accordingly, the College argued that the
manager's request to the grievor was legitimate, and the direction to submit an
improved plan was an appropriate form of supervision. It was said that the Union
was unfair to fault Ms. Foulds for a lack of guidance when the initial assignment
had been so clear.
Counsel for the Employer argues that the incident regarding the
preceptorship in the third month following the reinstatement was "enough on its
own to merit termination". It was said that the grievor failed to perform the duties
of a faculty liaison adequately. Further, it was argued that she has no basis upon
which to complain about the amount of her workload, given that no workload
grievance was filed, and that she never approached her manager about workload
concerns. The College argued that the evidence shows that she was instructed
to meet with the students and preceptors once or twice a week at first, and then
once a week thereafter. Despite this, the grievor never met with the preceptor or
the student after the first visit. The fact that the grievor was in communication
with the student bye-mail was said to be completely inadequate because this
would not enable her to determine if the program objectives were being met.
Counsel for the Union invited the Board of Arbitration to make a finding against
the grievor's credibility with regard to the claim that she was not told to meet
weekly. In the alternative, it was said that her own evidence establishes that she
failed to have adequate meetings with the student or preceptor. Further, the
Employer emphasized that the Union did not put forward contemporaneous
evidence that the grievor's workload was inordinate or that there was any
legitimate reason for her failure to comply with the College's expectation. It was
said that the Dean and the Department Chair properly determined that the
grievor's conduct with regard to the preceptorship demonstrated a lack of
51
judgment and an inability to handle the necessary workload. The Board of
Arbitration was asked to conclude that the grievor was more concerned about
meeting with hospital directors and networking than paying attention to the needs
of the preceptors and the students. The grievor was also criticized for casting
aspersions on the preceptor when there was no basis for such an accusation. It
was said that the grievor's attempt to cast blame for the situation on the
preceptor and others is an example of her inability to accept responsibility for her
own inadequacies and her errors of judgment. It was said that this situation is a
"microcosm of the whole case", in that her allegations are designed to conceal
her own inability to fulfill the requirements of a faculty member. Further, it was
said that this incident is the "best evidence of the fact that there was no bad faith"
because the grievor was not terminated immediately after her inadequacies
came to light; instead, she was warned, had the incident included in her
performance appraisal, and given another opportunity to establish confidence in
her abilities.
The College took great umbrage to the Union's accusation that bad faith
was evidenced by the fact that all the meetings contemplated in the
Memorandum of Settlement did not occur, even though this had not been
pursued by Union counsel. The College points out the evidence that shows that
many meetings were held, for the grievor's benefit, and that other meetings were
cancelled, either at the Union's request or because the parties conceded that
they were not as necessary as originally contemplated. Counsel for the
Employer argued that the inconsistency between the Union witnesses' assertions
and the position taken by their counsel calls into question the bona fides of the
allegations that were being made against the College.
Counsel for the College addressed the issue of the carpenter, and the
conclusions that were drawn against the grievor. It was suggested that a
negative inference should be drawn against the Union for failing to call the
carpenter as a witness, given that the Union bears the onus of proof in this case.
However, it was admitted that Ms. Foulds had conceded that she had said that
she had not questioned the grievor about the comments because she would
have believed the carpenter over the grievor in any event. It was argued that Ms.
Foulds' doubts about any denials the grievor might make were well-founded and
reasonable given Ms. Foulds' experience with the grievor and that Ms. Foulds'
concern over the reported conversation was consistent with the pattern of the
grievor's lack of respect and failure to communicate. Counsel for the College
concedes that "it would have been preferable" for Ms. Foulds to have gone to the
grievor and asked her about the comment before drawing any conclusions. But it
was said that Ms. Foulds was in the best position to determine whether such a
conversation would have been of any value, and the failure to confront her is not
fatal to the case. Reliance was placed on the decisions in Centennial College of
Applied Arts and Technology v. OPSEU, Local 558 (Robertson Grievance),
supra; and Re Canusa CPS and I.W.A.-Canada, Local 1000, 1999 C.L.A.S.J.
Lexis 6822 (Petryshen).
52
Counsel for the Union also dealt with the fact that the grievor had stated a
preference for teaching in the RN, rather than the PN, courses. It was said that
this must be seen in the context of the new direction the department was taking
to break down the boundaries between the programs and encourage teamwork.
It was said that the assignments to the grievor were given in order to broaden her
teaching experiences and give her greater exposure and opportunities for
growth. Her repeated statements concerning her desire to return to the RN
program were seen to be resistance to the direction that the Department was
taking.
Counsel for the Employer also argued that the concern about the grievor's
failure to attend the curriculum development meeting was legitimate. The grievor
was criticized for claiming to be too busy with class preparations when she had
just returned from three days of professional development leave. It was
conceded while there may have been evidence of other probationary teachers
missing similar meetings, the Union failed to establish why they missed the
meetings or call any evidence to prove that Ms. Foulds had even been aware of
their absence. It was also submitted that Ms. Foulds had the right to be
dissatisfied with this probationary teacher's decision to miss an important
meeting on the pretext that she was too busy with other work. It was said that the
concern was not that the grievor did not attend the meeting; instead, it was that
she "blew off a meeting" that she was scheduled to attend and for which time had
been allotted. It was said that Ms. Foulds had a right to be concerned about the
fact that the grievor was more interested in attending a conference outside of the
school than attending a curriculum development meeting. This was said to reflect
poorly upon her judgment and to demonstrate her unwillingness to participate as
a member of the "team". The College emphasized that the probationary term is
designed to allow management to assess whether a person performs properly
and has the necessary judgment. It was said that Ms. Foulds exercised the
management right to be dissatisfied with the judgment that the grievor displayed.
In support of these submissions, the Employer relies upon the decisions in Re
Hamilton Community Care Access Centre and O.P.S.E.u., Loca/274, 2004
C.L.A.S.J. Lexis 556 (Brent); Loyalist College and OPSEU, 1994 C.L.A.S.J. Lexis
11420 (Bendel).
Counsel for the Employer then pointed to an exchange of e-mails between
the grievor and Ms. Foulds concerning the request that the grievor meet to
discuss student concerns in October of 2002. The grievor had responded to the
request by indicating that she was too busy to meet at the requested time
because she needed to concentrate on class preparation. But the College
emphasized that part of the grievor's work is to meet with the manager about
student concerns, and the grievor's reluctance to meet at the time requested was
indicative of what the manager had to go through "in order to communicate and
meet with the grievor". It was submitted, "If a manager has to go through this
much to get a probationary employee to come to a brief meeting to discuss
53
student concerns, this creates legitimate concern about the grievor's suitability."
Reference was made to IKO Industries Ltd. v. U.S.W.A, Local 8580 (2000), 88
L.AC. (4th) 348 (Starkman).
Counsel then addressed the fact that the grievor failed to amend the
necessary form to allow for the additional PD day off. It was stressed that the
grievor knew about the requirement to fill out the form because she had done so
in the past. This was said to be an issue of failing to follow procedures. It was
said that this was not a trivial matter because it deals with the administrative
responsibilities of a member of full-time faculty. The College denies that Ms.
Foulds allowed the grievor to "get into trouble" by not reminding her of the
necessity to amend the form because the grievor admits that she was well aware
of the requirement to file the forms. It was said that the grievor should have
demonstrated that she was willing to comply with College procedures, and that
she should not need to be reminded about everything. The grievor is faulted for
never acknowledging that the College's concern had any merit until the last day
of her evidence when she admitted that there was legitimacy to the College's
concern about filling of forms.
It was acknowledged that the College raised concerns over and over
again with the grievor. But it was asked rhetorically, why did the College have to
do this? The answer given was that this would not have been necessary if the
grievor had simply acknowledged an error and said, "Okay, I'll make sure I do it
that way the next time." However, it was said that the grievor never did this.
It was also argued that the grievor demonstrated poor judgment in going
directly to the President for help, and bypassing both her Chair and her Dean. It
was stressed that the evidence demonstrated that the College made extensive
efforts to impress upon the grievor the importance of respecting the College
hierarchy. The College suggests that the e-mail to the President should not be
considered as a desperate appeal for help, but instead as another problem that
the grievor created herself by failing to live up to the College's legitimate
expectations. It was argued that there is no evidence that the grievor could not
have met with her Dean or her manager to ask for a transfer to a different
department. If that request had been denied, it was said that her decision to go
elsewhere might have been "more understandable". The proof of the grievor's
inappropriateness was said to be the fact that the President referred her request
back to the Manager in order to have the problem resolved.
The College challenges the allegation that the assignment of the grievor's
workload is evidence of bad faith. First, it was argued that the grievor had the
benefit of the workload arbitration process and that her claim was only allowed in
part. Secondly, it was argued that there are many workload arbitrations in the
College system, and that each one should not, and indeed is not, considered to
be evidence of bad faith.
54
Turning to the issue of the alteration of teaching tools, it was stressed that
the grievor admitted that this is an item of legitimate concern for the College.
However, the grievor repeatedly denied doing anything wrong, even though she
had tracked "leadership" on the attendance form when this was not an agreed-
upon evaluation criterion. Even if the grievor had not used this as a component of
the mark, it was said that the recording of the "leadership" concept was
problematical because it created a perception for students that there was an
inconsistency in the way teachers were marking. The Union voiced strong
objection to this submission, arguing that there is no evidence that students were
aware of the fact that the grievor had tracked the "leadership" component.
However, it was argued that the evidence simply reveals that the Employer had a
legitimate concern over what the grievor was doing, and that this concern is not
evidence of bad faith.
Counsel for the College then addressed the Mary Jane Burrows
memorandum. It was stressed that the memorandum did not play any "significant
role" in the decision to terminate. It was argued that the memorandum should
simply be considered as evidence of a colleague's frustration in dealing with the
grievor, and that it raised themes similar to what was being experienced by Ms.
Foulds and Ms. Cormier. Counsel also argued that the Burrows memo casts
doubt on the grievor's credibility. Mr. Wilson's evidence at this hearing, and the
grievor's written response to the College when she received the memo, indicated
that the grievor was "shocked" by the concerns set out in the memo because
there had been "no attempt to discuss these things in person" before the memo
was released. However, in both her testimony in chief and in cross-examination,
she had also said she had been shocked by the memo because she had
discussed many of the issues with Ms. Burrows and thought they had been
resolved. Therefore, she was surprised to see them resurface in the memo. Ms.
Burrows' evidence had been that she had discussed these issues "many times"
with the grievor, and that incidents in the memo had been discussed. This was
not challenged in cross-examination. Accordingly, it was said that there was an
inconsistency about this matter that ought to be resolved in favour of the
Employer. Finally, it was said that the worst that can be said about Ms. Burrows'
memo and the grievor's response is that the College did not fully investigate all
the allegations. However, this was said to be insignificant in light of the fact that
the memo was not significantly relied upon to justify the termination. The Board
of Arbitration was referred to the following case: Canusa CPS and I. W.A.-
Canada, Local 1000, supra.
The College submitted that the cases cited by the Union in support of its
positions were distinguishable factually from the case at hand.
It was stressed that the College took into consideration many factors in the
decision to terminate, not just one. It was argued that even if some of the
College's considerations turn out to be lacking in foundation or that some of its
investigations were not properly conducted, other legitimate employment
55
concerns remain. Therefore, in determining whether bad faith exists, the Board of
Arbitration was asked to look at all the factors considered by the Employer, and
to conclude that if any of the considerations were legitimate, the termination
should be upheld. Further, it was stressed that this Employer went to great
lengths to make its concerns known to the grievor, through the series of extra
meetings, the performance appraisals, and the personal efforts of Dean Cormier
and Ms. Foulds. Again, the Union was faulted for being inconsistent in alleging
that there is bad faith for failing to provide performance appraisals every four
months, and at the same time faulting the College for raising too many
performance issues against the grievor. The College argued that the complaint
about the grievor's office is an example of "throwing out allegations of bad faith
loosely". It was stressed that the grievor did not complain about the office at the
time, and that the move came about because the grievor had asked to be closer
to the PN group. It was suggested that the grievor had been shown the office
before the move, and yet still maintained the request to be moved. Therefore, it
was said to be unfair to assert bad faith in the arbitration.
Further, it was argued that Ms. Foulds' evidence established that many
aspects of the grievor's performance were taken into consideration, including her
teaching abilities, but also her inadequacies with regard to administrative work,
teamwork, following rules, decision making and setting priorities. In addition, the
College stressed the evidence of Dean Cormier when she explained that a full-
time faculty member needs to not only be able to teach, but also be able to
handle workload, set priorities, follow protocols, and work within the team. It was
stressed that being a good teacher is simply not enough to warrant a permanent
position on the faculty because classroom teaching is only one component of the
SWF hours.
The College countered the Union's suggestion that the grievor had been
given differential treatment by saying that the difference is attributable to the fact
that she was the only probationary teacher that had been terminated, reinstated
and working under the conditions set forth in the Memorandum of Agreement.
It was stressed that the College presented five witnesses who had direct
dealings with the grievor. It was stressed that given any credence to the
allegations of bad faith would mean that the five witnesses would have had to
have conspired against the grievor. It was stressed that despite the Union
bearing the onus in this case, there was no evidence that Ms. Foulds or Ms.
Cormier, nor any other witness, bore any malice against the grievor. On the
contrary, it was said that Ms. Cormier's evidence established that it was the
grievor who appeared to bear some hostility against Ms. Foulds. It was submitted
that the evidence establishes that the College came to the right decision to
terminate the grievor based on her performance outside the classroom. It was
stressed that the College has the right to be wrong about the decision it made, as
long as it made that decision in good faith. While it was acknowledged that the
College might have done some things differently or better, it was stressed that
56
there is no evidence of bad faith. It was said that the thing that most seriously
impacted the grievor's performance was her inability or refusal to acknowledge
the legitimacies of the Employer's concerns despite the fact that none of the
College concerns were ever hidden from the grievor. Counsel argued that the
College made a serious attempt to inform the grievor of its concerns so that she
could take them into account and improve. It was acknowledged that the grievor
was a good teacher, and had been a good part-time teacher for many years.
However, it was said that the responsibilities of a part-time teacher are much less
onerous than those of a full-time teacher, and the grievor did not appear to be
able to fulfill the full-time responsibilities. It was acknowledged that while some of
the administrative duties may seem minor in isolation, they combine to form a
significant part of what can be expected of a full-time faculty member. Because
the probationary period is the College's opportunity to ensure that the employee
will be a "good fit", the College asserts that it is entitled to make a good faith
assessment of whether the employment relationship should be continued. It was
argued that the grievor was given a "fair chance" within the meaning of the
arbitral case law, and had the proper benefit of over ten chances to improve,
even after she had been reinstated. It was stressed that there is no evidence of
bad faith in this case, and that the Union has not presented sufficient evidence
from which an inference could be drawn.
Counsel for the College argued that the appropriate conclusion to this
case would be a dismissal of the grievance and an exoneration of the College
employees who had been "unfairly attacked" by the allegations in this case.
In support of its submissions, the College also relied on the following
cases: DeHavilland Inc. and C.A. W., Local 112, 1998 C.L.A.S.J. Lexis 9019
(Palmer); Re Edmundston (Ville) and S. C.F.P., Local 60, 1992 C.L.A.S.J. Lexis
12345 (Robichaud); OPSEU Local 416 and Algonquin College, unreported,
January 17, 2006 (O'Neil); The Ontario Public Service Employees Union and
Ontario Property Assessment Corporation, unreported, December 20,2000
(MacDowell); OPSEU (Fox) and The Crown in Right of Ontario (Ministry of
Correctional Services), unreported, November 19, 1992 (Dissanayake); Boyce v.
Treasury Board (Department of National Defence), [2004] C.P.S.S.R.B. No. 34
(Mackenzie); St. Clair College and Ontario Public Service Employees Union,
supra; Complex Services Inc. and O.P.S.E.u. Local 278, 2005 C.L.A.S.J. Lexis
148 (Gray); and Re Reena Foundation and OP.S.E.u., 1993 C.L.A.S.J. Lexis
9447 (Mikus).
The Union's Replv Submissions
Counsel for the Union took issue with much of the College's
characterization of the evidence. In particular, the Union asserted that the
grievor had never admitted that the College had legitimate concerns about her
performance. Instead, it was said that the grievor simply admitted that the
subject-matter of concerns raised by the College fell within the legitimate scope
57
of an employer's attention. But it was emphasized that the grievor never
acknowledged that the College's concerns about her performance were
legitimate.
Further, the Union pointed out that the College's assessment of the
proportion of hours spent for non-teaching duties was slightly misleading. It was
pointed out that there are 42 SWF hours over a three-week period, only seven of
which are for non-teaching-related matters. It was also pointed out that the
classroom hours are not all that can be attributed to teaching, because
preparation, evaluation and meetings with students are all directly related to
teaching.
Counsel for the Union argued that it was to the grievor's credit that she
never filed a workload grievance about the number of students and preceptors
she was expected to meet. It was suggested that this should not be considered
as evidence that the workload was appropriate. Further, it was stressed that the
uncontradicted evidence is that the grievor was never told that there was a
requirement to meet the preceptors and students once a week, only that it would
be "the ideal".
Turning to the issue of the carpenter, it was argued that the College had
taken an "astounding" position in arguing that it was legitimate for Ms. Foulds to
automatically believe the carpenter over the grievor in any event, and that
therefore there was no reason to listen to the grievor's side of the story. It was
said that this incident stands as a "hallmark of bad faith".
Counsel for the Union argued that the College's assertion that the Burrows
memo had not been relied upon in the termination was contrary to Ms. Foulds'
evidence. The Union also asserted that there is no evidence to support the
assertion that the grievor was shown her new office and accepted it. It was
conceded that she did ask for a move to be closer to the PN group, but it was
said that she never asked or agreed to be put in a "supply cupboard" instead of
an office.
Counsel for the Union submitted that if bad faith can be found in any
aspect of the Employer's decision to terminate, this taints the decision as a
whole. It was said that the grievor is entitled to a good faith assessment of her
probationary period.
58
THE DECISION
A) The Case law
Since this case concerns the termination of a probationary employee, the
question is not whether there was just cause for the termination. The only way
the grievance can succeed is if the Union has established that the decision was
made arbitrarily, discriminatorily, in bad faith, or on the basis of illegal or invalid
considerations. The onus of proof is on the Union to prove these difficult
concepts. Therefore there are only limited circumstances in which a board of
arbitration can or should reverse an employer's decision to terminate a
probationary employee. This was made clear by the Court of Appeal in the case
of Loyalist College v. OPSEU, supra, in the following passage:
The question of the Board's jurisdiction to hear the
grievance brings into play two competing principles. The first
principle is that, generally, arbitrators cannot review the merits
of an employer's decision to dismiss a probationary employee.
The second principle, a qualification on the first, is that
arbitrators may be entitled to review an employer's decision to
dismiss a probationary employee if the decision is made in
bad faith or is based on an illegal or invalid consideration. Both
principles are reflected in this collective agreement and the
governing statute, the Colleges Collective Bargaining Act. . . .
[para. 57]
Probationary employees are typically thought of as
serving a period of apprenticeship. During this period
employers expect wider latitude in their decisions to dismiss
new employees judged not suitable for continued employment.
Thus, ordinarily probationary employees cannot expect the
protection of the just cause provision enjoyed by those
employees who have completed their probationary period. See
Nordair Inc. v. International Association of Machinists and
Aerospace Workers Local 2309 (1985) 22 L.A. C. (3d) 177
(Can.); Canadian Broadcasting Corp. v. Canadian Union of
Public Employees, [1995] C.L.A.D. No. 57. [para. 58]
. . .
Nonetheless, the College did not have an
unfettered right to dismiss probationary employees. Although
the collective agreement did not give probationary employees
the right to just cause for dismissal, it did give them other
limited rights. An alleged breach of any of these rights may
give rise to a difference in the interpretation, application or
59
administration of the collective agreement, and failing
resolution, would then be arbitrable. See Ontario Hydro v.
Ontario Hydro Employees' Union, Local 1000 (1983),41 O.R.
(2d) 669,147 D.L.R. (3d) 210 (C.A.). [para. 60]
So, for example, one right of a probationary
employee was the right not to be discriminated against on the
various grounds prescribed in Article 4.01. . . . Another right
was the right not to be dismissed in bad faith. For many years
arbitrators and courts have held that this right is an implied
term of every collective agreement and extends to all
employees, including probationary employees. See Brampton
Hydro Electric Commission v. C.A.W., Local 1285 (1993),15
O.R. (3d) 773,108 D.L.R. (4th) 168 (Div. Ct.) and Metropolitan
Toronto (Municipality) v. Canadian Union of Public Employees,
Local 43, unreported, July 3, 1981 (Div. Ct.). [para. 61]
The rights of both probationary employees and employers were also set out in
Toronto (Metropolitan) v. Canadian Union of Public Employees, supra, at para.
10, wherein it was stated:
The Municipality is not required to justify the dismissal by
affirmatively establishing reasonable or any cause. A
probationary employee would be entitled to succeed on a
grievance in relation to discharge only if he were able to
affirmatively establish that the action of the employer was
taken in bad faith in the sense that the decision was motivated
by unlawful considerations or resulted from management
actions which precluded the probationary employee from
doing his best.
These cases reflect the notion that the probationary period is designed to allow
the employer to decide whether it wants to continue the employment relationship.
During that period, an employee can be "let go" for reasons that would never
withstand review if s/he was entitled to the protection of a "just cause" provision.
At the same time, the probationary employee is entitled to the opportunity to
prove his/her worth. However, their only real protection for continuing
employment status is the requirement that the employer act lawfully, in good faith
and make its judgment on the basis of the probationer's actual performance.
Bad faith can involve malice and/or evil intent. But deliberation or intent is
not a necessary ingredient in the concept. A lack of a rational connection
between the circumstances and the outcome can also signal bad faith when it
reveals antipathy or unfair treatment for non-rational reasons. Alternatively, if
there is no rational basis for the decision, this can imply that irrelevant, invalid or
60
illegal factors were considered. If that occurs, a decision may be both arbitrary
and made in bad faith. In that sense, the concepts of arbitrariness and bad faith
can be overlapping. On the other hand, bad faith implies more than simply not
being able to substantiate all the problems that an employer may raise about an
employee's performance. A Board of Arbitration that is asked to review the
termination of a probationary employee does not undertake a weighing of the
employer's decision to determine its correctness; the review is restricted to a
consideration of whether the decision was arbitrary, discriminatory or in bad faith.
The thrust of the Union's argument in this case is that the College relied
on invalid considerations in terminating Ms. Sumitro and/or that she was deprived
of a "fair trial" period in the sense. The Union has asserted that the employer's
conduct was tainted by bad faith and that the decision was arbitrary, resulting in
a situation that should be governed by the principles set out in Jeanne Sauve
Family Services and Ontario Public Service Employees Union, supra. That case
established that a probationary employee is entitled to a bona fide probationary
opportunity that includes:
. . . judging the employee after a reasonable effort to ascertain
the real facts. Even though the decision is left 'at the sole
discretion' of the employer, the employer must exercise this
discretion properly. It has been held to be arbitrary to simply
accept incidents or reported conduct as critical facts without
given proper consideration to the matter. The employer must
base its decision on the facts it finds after a reasonable
investigation. (at p. 20)
This citation reflects the basic principle that a person should not loose their
employment unless there has been a rational inquiry that leads to a decision
based on employment related reasons.
It cannot be forgotten that bad faith is a very serious allegation. A finding
of bad faith affects the professional reputation of the named individuals and the
institution. The Employer relies on the quotation from Hamilton Street Railway
Co. v. Amalgamated Transit Union, Local 107 (Davidson Grievance), supra,
where it was said, "Making an assertion of bad faith is a very serious matter.
Arbitrators are not reluctant to find bad faith if the evidence exists. However, the
seriousness of the allegation demands that there be clear evidence of bad faith."
(para. 72) That quotation simply states the obvious; unless there is clear
evidence to support such a serious allegation, the grievance will fail. The
existence of mistakes, misguided judgments or even oversights by an employer
does not necessarily signal bad faith. Incompetence, inexperience and poor
judgment do not equate to bad faith. Similarly, discharging a probationary
employee for reasons that are unjust does not equate to bad faith because the
"just cause" protection is not applicable to probationary employees under this
Collective Agreement. The seriousness of the allegation of bad faith demands
61
that the evidence supports a conclusion that the decision was more than wrong;
it must also have been made without valid considerations or from some improper
motivation.
The concept of bad faith is very difficult to establish and apply in a general
sense. However, it is even more difficult to apply in the context of a probationary
termination where employers are given wide latitude concerning the decision to
continue or end the employment relationship of a probationary employee. The
nature of probation must also be kept in mind. It is a period that should allow the
employee to learn the job and adjust to the workplace, yet also allow the
employer to determine whether it wants this person to continue in the workplace
on a long-term basis. This is why employers have been given very wide latitude
in determining whether a probationary employee should advance to long-term
status. An employer is allowed to assess a probationary employee's "suitability"
for the position. To that end, employers are given deference with regard to their
establishment of the standards of performance. As long as the standards relate
to employment, there is little, if any scope of arbitral interference. Arbitration
Boards have long recognized that there are important policy considerations that
support the employers' legitimate interest in deciding whether they want to
embark on a long-term employment relationship with someone. Accordingly,
there is only limited scope to interfere with the employer's judgment. Therefore,
employers' decisions to terminate probationary employees have been upheld
when they have shown failures to accept direction, exhibit a professional attitude
towards work or get along with fellow employees, even when the performance of
principle duties was satisfactory. See Re Canusa CPS and I. W.A.-Canada, Local
1000, supra; and IKO Industries Ltd. v. U.S. WA., Local 8580, supra. Further,
some of the more subtle qualities that were raised in this case have been
recognized in the case law as valid considerations regarding the continued
employment of a probationer. "Good judgment" has been held to be a legitimate
expectation of a teacher in this sector. Where the evidence established that a
probationary teacher could not function effectively in a particular environment
because of a "lack of judgment", that was considered to be a legitimate reason
for termination: see Loyalist College and OPSEU, supra. Similarly, even in
another sector, an "inappropriate attitude" was upheld as a valid consideration in
the decision to terminate a probationary employee: see Re Edmundston (Ville)
and S. C.F.P., Local 60, supra. Other factors that have been taken into
consideration are a probationary employee's ability to benefit from direction,
appreciate the potential consequences of their actions or acknowledge the
employer's concerns. These concerns were raised in a case where there was a
finding that "repeated attempts to make [the grievor] aware of her shortcomings
were ignored or dismissed" and there was a "lack of appreciation of the potential
consequences of her actions and the refusal or inability... to acknowledge the
[employer's] concerns." The employer's decision to terminate on those grounds
was upheld in Re Reena Foundation and OPSEU, supra. The College
particularly relied upon paragraph 91 of that case, wherein it was stated:
62
The grievor seemed, even at the hearing, to be either unable or
unwilling to understand that she was being criticized for her work
performance. She seemed to believe that once she had offered
an explanation for her actions, the matter was closed. She never
heard her supervisor's rejection of her explanations. Because of
her attitude, she did not seem to have learned anything from her
mistakes. Unlike the Crown in the Right of Ontario case (supra)
the nexus between the actions of the grievor and the reasons for
the termination is clear. Based on her actions, it was
reasonable for the Foundation to conclude that she had not and could
not meet the reasonable expectations of the Foundation. (para. 91)
These cases illustrate arbitral recognition and respect for the broad discretion
afforded to an employer to decide whether the probationary employee can meet
the "intangible requirements for long-term employment" that would are difficult or
unfair to prove once regular status is achieved and there is a heavy onus on the
employer to prove just cause for dismissal. See DeHavilland Inc. and C.A. W.,
Local 112, supra.
The Employer also has the right to set the standards for success in
probation. Each work environment may place different legitimate demands upon
employees. In an industrial setting, production standards may be easy to define
and assess. As a result, probationary periods are often relatively short. In the
College sector, the expectations placed on faculty members may be more difficult
to define, and the adjustment to the demands of teaching may require more time
for adaptation. It is also probably difficult to assess the qualities or attributes that
should be desirable in a long-term teacher. This may be why there is a two-year
probationary period in this contract. This length of time allows for probationary
teachers to adapt and prove themselves and allows the College adequate time to
assess their performance and potential.
Therefore, in reviewing the termination of a probationary employee, a
board of arbitration does not ask itself whether the employer was correct about
its assessment. Even if there is a finding that the College was wrong about its
assessment of the grievor's performance or long-term suitability as a faculty
member, this would not be enough to support a finding of arbitrariness or bad
faith. We could only reach that conclusion if the evidence supported a finding
that the College drew its conclusions about the grievor as a result of an improper
motive or based its decision on totally unreliable or unsupportable evidence,
considerations or factors. The seminal case in this sector is St. Clair College and
OPSEU, supra, wherein it was held, "A probationary employee would be entitled
to succeed on a grievance in relation to discharge only if he were able to
affirmatively establish that the action of the employer was taken in bad faith in the
sense that the decision was motivated by unlawful considerations or resulted
63
from management actions which precluded the probationary employee from
doing his best." Further, it has been recognized:
Bad faith is a term of art and connotes much more than an imperfect
practice. In this context, bad faith connotes a failure to abide by the
positive obligations on the employer with respect to the treatment of
probationary employees under the collective agreement.
[Centennial College of Applied Arts and Technology v. OPSEU, Local 558,
supra.]
As shown above, the cases do not hold employers to a standard of
perfection. Even where an employer has been faulted for failures in process, the
termination has been upheld, as was the case in Centennial College and
OPSEU, Local 558, supra. In that case, there were failures of process, but there
were also valid employment related concerns that justified the termination.
Further, even where there have been indications that an arbitrator may have
reached a different conclusion about an employee, the decision to terminate has
been upheld where there was no indication of improper motive or impediments
prohibiting the fair assessment of the probationary employee: The Ontario Public
Service Employees Union and Ontario Property Assessment Corporation, supra.
The concept of the employers' "right to be wrong," but to do so in good faith, is
well summed up in Ministry of Correctional Services and OPSEU (Fox), supra,
wherein it was said that:
The role of the Board in a grievance challenging the release of a
probationary employee is not to scrutinize the employer's
conduct to see whether there were deficiencies in the way the
employee was trained, supervised, and directed. It will be a rare
case indeed where such deficiencies cannot be pointed out. For
management deficiencies to be relevant, it must be clear that
those seriously impeded the grievor's performance and ability to
meet the job requirements.
Therefore, a finding of flaws or deficiencies in an employers' investigation
or processes will not necessarily result in a finding of bad faith unless those
problems significantly affect the probationer's ability to perform his/her job or the
employer's ability to adequately judge their actual performance. The test is much
higher than a test of just cause. Admittedly, it is often hard to recognize the line
between just cause and bad faith. But the line is clearly crossed where the
evidence shows that there is no regard to the factual circumstances, where the
decision is premised on a complete misapprehension of the facts or where there
is no employment related reason for the decision to terminate.
The relevant arbitral case law therefore instructs us that the employer
must give a probationary employee a good faith opportunity to succeed during
64
the probationary period, and judge that person only on their performance and in
accordance with the law. If that is done, the employer then has a broad
discretion over whether the employment should be continued. The employer can
take into consideration elusive concepts such as whether the person is a "good
fit" within the workplace or displays the desired "attitude," so long as the
consideration of "fit" does not violate Human Rights or other applicable laws.
The employer can also set the standards of performance that the probationary
employee must achieve. A board of arbitration can and should only overturn an
employer's decision where the evidence establishes that the employer failed to
provide a good faith opportunity to succeed or where the decision to terminate is
devoid of valid, legal and/or employment related considerations.
These principles must now be applied to the facts of this case.
B) Conclusions regarding the evidence
At the outset of this decision it should be plainly stated that there is no
evidence of discrimination, malice or ill will. There was absolutely no evidence
that anyone had any improper motivations in their dealings with the grievor.
While the Dean and the Chair were certainly candid about their frustrations in
dealing with Ms Sumitro, they never exhibited any animosity towards her. The
time, energy and attention that the grievor's situation demanded was certainly a
strain on their patience and took a great deal of time away from their other
professional responsibilities. However, there is absolutely no evidence that these
frustrations included or escalated into antipathy or ill-will. Therefore, this is not a
case where there can be a finding of "bad faith" in the sense of malice or ill-will.
But that leaves open whether the Union has met the onus of showing that the
grievor was deprived of a proper probationary evaluation as a result of her being
terminated on the basis of conclusions that bear no regard to the actual
circumstances, or where the decision was premised on a such a
misapprehension of the facts that there was no legitimate reason for the decision
to terminate.
A consideration of all the evidence leads, ironically, to two significant and
seemingly contradictory conclusions. First, the evidence reveals that many of the
accusations that Ms. Foulds leveled against the grievor were based on
fundamental misapprehensions or a complete disregard of the available facts.
This demonstrated bad faith. On the other hand, the evidence also shows that
there were other, independent and legitimate performance issues that Dean
Cormier relied upon in making a good faith decision to terminate of the grievor
during her probationary period. These matters were of enough significance that
they well surpass what would be considered to be legitimate grounds for
termination of a probationer. The consequences of these two finding can only be
determined by examining what they are based upon and their significance in the
context of the whole situation.
65
C) The fundamental misapprehensions or complete disregard of the available
facts by the grievor's supervisor;
We shall first explain why it has been concluded that Ms. Foulds
disregarded relevant information or operated on the basis of misapprehensions.
This analysis is lengthy because the parties are entitled to understand the
reasoning behind this serious finding. However, this portion of the award should
not be read without keeping in mind that it deals with only one aspect of this
case.
Ms. Foulds accused the grievor of "inappropriately approaching a
coordinator to negotiate professional development leave before discussing the
situation with her supervisor." The evidence did show that the Chair made it
perfectly clear to the grievor that all issues of professional leave had to be
discussed directly with Ms. Foulds first. The grievor understood this and
nevertheless did "approach" the coordinator before speaking to the Chair about
the leave for the RNAO Conference. However, this approach was simply to
gather information about options. There is no evidence that this discussion was
an attempt to "negotiate" the leave, as alleged. Ms. Foulds admitted that that she
had never been told that Ms. Sumitro had asked the Coordinator for a
reassignment of workload, for permission to attend the conference or even to
"negotiate" the leave. Therefore there was no basis for the serious allegation
that the grievor had tried by-pass the hierarchy or established protocols for
obtaining leave.
Ms. Foulds also criticized the grievor twice for expressing her preference
to teach in the degree Nursing program. The College was trying to develop a
faculty that could teach in a variety of program areas. The direction of the
program and the consequent demands of faculty members are legitimate
prerogatives of management and a probationary employee should certainly fit
within those plans. However, there is no legitimate reason to criticize the grievor
in this situation because she stated her preference in direct response to the
Chair's request to all faculty to state their preferred teaching areas before the
semester assignments were arranged. The College has also alleged that she had
"difficulty fitting in" to the PN department as a result of telling her Coordinator that
her "first love" was the RN program. The Coordinator of the other program may
have felt slighted by the comment. However, the comment was made in a social
setting and there is a big difference between stating a preference and implying
an unwillingness to participate within a team. The words attributed to the grievor
fall far short of supporting the allegation against her. The grievor's comments
cannot be considered as an employment offence or even as a cause for
managerial concern. This is particularly the case in light of the fact that the Chair
assigned the grievor to several different programs and the grievor responded by
saying that she was willing to take on new assignments and challenges.
66
Ms. Foulds was very critical of the grievor after a carpenter stated that she
had said that she was "afraid" of her manager. The grievor denies that she made
the comment. What is important about issue is not the comment itself but what
Ms. Foulds reaction to it reveals about her treatment of the grievor. Ms. Foulds
took the comment at face value and concluded that it was evidence of the
grievor's lack of "professionalism, judgment or respect for authority." She
criticized the Grievor for this and relayed this conclusion onto the Dean. The
fundamental problem with this is that Ms. Foulds admits that she reached her
conclusions simply upon hearing from the carpenter and that "nothing" Ms.
Sumitro could have said would have mattered. Ms. Foulds never bothered trying
to determine whether the comment had actually been made or its context before
she passing judgment upon the grievor on this issue. The Chair had decided to
believe the carpenter over the grievor in any event. Ms. Fould's admitted
unwillingness to consider anything the grievor could have said before coming to a
conclusion is completely inappropriate. We commend Ms. Foulds' candor in
admitting that she would not have given the grievor a chance about this issue;
rarely does a witness admit to such an obvious short-coming. Her admission
illustrates either naivety and/or a complete ignorance of her managerial
responsibilities. Management cannot simply act on a presumption of guilt to
support a serious conclusion about perceived deficiencies. The problem in this
case is not that management did not prove the allegation. The problem is that
management closed itself to consideration of anything the grievor might have to
say.
This is finding is particularly problematic in this case where one of the
themes of the Union's case was that management never seemed to listen to
what the grievor said in response to management's stated concerns. It is even
more problematic given that it occurred in the summer of 2002, early on in the
probationary period. Unfortunately, the evidence shows that this attitude
persisted.
Several allegations were then leveled against Ms. Sumitro concerning her
invitation to attend and present an abstract at a professional conference in the
Fall of 2002. The criticisms took several different forms. The grievor was first
accused of "making a commitment" to attend a conference without first getting
approval from her manager. This would be a serious breach of the protocol that
had been established for the grievor. However, there was no basis for assuming
that she had "committed" to attending the conference before approval was
granted. She made the Dean and the Chair aware that she had submitted an
abstract for presentation at the conference. Indeed, the Dean encouraged her to
do so. Further, when Ms. Foulds was told that the abstract had been accepted,
she told the Grievor to "confirm" the presentation, that approval for her
attendance would depend on the teaching schedule for the Fall and that they
would "work out the details" in the Fall. The Chair made it clear to the grievor
that she would still need formal approval for her to attend and that the permission
67
would depend on her being able to arrange for someone else to take over her
classes without any cost to the College. The evidence then shows that in the
months leading up to the conference the grievor made a concerted effort to get
the requisite final approval from the Chair to attend. The grievor submitted a
Request for Leave Form and then sent reminders to the Chair throughout the
summer. These are all evidence that the grievor was still seeking permission to
attend. These memos and her evident desire to attend may well have given the
impression that she assumed that permission would be forthcoming. Further,
she clearly saw her invitation to make a presentation as being an opportunity to
enhance the College's reputation. Professional development is a recognized
component of the SWF and attendance at conferences is common for faculty
members. So it may have been quite likely that the grievor was confident that
permission would not be withheld. But the evidence is inconsistent with the
notion that she had committed to attend before approval had been granted.
When faced with the evidence showing the steps the grievor went through in
order to obtain permission, Ms. Foulds stepped back from the allegation that the
commitment to attend had been made prematurely and said that she had merely
"assumed" that the grievor had made a premature commitment. However, the
evidence shows that there was no basis for this assumption or for maintaining
this issue as a subsequent and continuing allegation.
The College then alleged that the grievor took a third day of Professional
Development Leave and/or was absent from her duties without permission
because of this same Fall 20002 conference. This was an extremely serious
allegation. It echoes the earlier allegation contained in the settlement agreement
reinstating her in January 2002. This particular allegation also was maintained
well into this hearing. Indeed it was a critical factor mentioned in the opening
statement. However, the evidence shows that not only did the grievor seek and
obtain permission to attend the conference for three days, but also that her Chair
was aware of this and was reminded of it as soon an as the issue came to light.
In fairness to the College and Ms. Foulds, the evidence does show that the
grievor initially asked for two days of leave on the requisite form. Then, when her
abstract was accepted for a more formal presentation on a day not covered by
the leave request, the grievor wrote an email to Ms. Foulds asking for permission
to attend from September 29 - October 2. We are prepared to assume that
perhaps Ms. Foulds did not initially realize that these dates amounted to the
additional third day because nothing in the request flagged the issue of a third
day. But the fact remains that Ms. Foulds did give permission to attend the
conference from September 29 - October 2 in the email on August 26th with the
sole caveat that coverage would have to be arranged for the grievor's classes
without cost to the College. Subsequent events corroborate that this permission
was given because Ms. Sumitro was allowed to make arrangements to have her
classed covered and emails show that the Chair was aware of the dates Ms.
Sumitro would be away even before the conference commenced. We are able to
accept that Ms. Foulds could have been confused about the number of days of
leave being requested at some point before the conference began. However, the
68
serious allegation that Ms. Sumitro took a leave or was away without permission
is simply without foundation. This is all very disconcerting, given that the issue of
permission was first raised with the grievor in the meeting of August 29th, almost
within hours of Ms. Foulds saying that the grievor could attend the conference.
On July 28th Ms. Sumitro had written to Ms Foulds, saying; "Thank you for
allowing me to go to the conference." The College was reminded of this
correspondence in a memo from Mr. Wilson on September 1 ih. Further, the
grievor was allowed to make the arrangements for class coverage, attend the
conference and received an email from Ms. Foulds the day after her return that
referred specifically to the three days of attendance. So there was no basis for
Ms. Foulds to allege that the grievor had taken an extra day of leave without
permission or authorization and it is very troubling that she did not amend the
record once she was reminded of the facts. Yet this allegation persisted
throughout her employment, was a factor in the performance evaluations and the
termination and it was pursued by the College well into this hearing.
As an alternative, the College then faulted the grievor for "failing to inform
the Chair of changes or revisions to the submitted leave request form." The
College uses a specific form to track and document requests for professional
development leave. It is clear that the Grievor did not amend the original official
leave request form that she had submitted. She knew about the forms, had
submitted a request for two days of leave and did not amend the form itself
because she felt that the direct communication with the Chair was sufficient. The
Chair raised this issue as an indication that the grievor was not following College
protocol and procedures. It was initially raised by the College as an additional,
rather than alternate allegation concerning this leave request. In the hearing, it
ultimately became more of an alternate justification for concern. Part of the
allegation is fair in that the grievor should have amended the form when she was
asked to stay an additional day at the conference to make the more formal
presentation than had been initially contemplated. However, as set out above,
the Chair was informed of the extended request. It is true that the grievor never
spelled out to the Chair that the request for September 30 - October 2 amounts
to three days instead of the two that had been set out in the original form. But it
is not fair to allege that the Grievor did not advise the Chair of what was being
requested. The Chair is a very intelligent and sophisticated professional who
could be expected to have appreciated how many days were involved in the
request. Nothing in the evidence suggests that the grievor was trying to slip in an
extra day of leave. This would not even have been possible given the elaborate
arrangements that had to put on place to ensure coverage for her classes. So
there is nothing to support the allegation that she failed to inform the Chair about
the additional third day. Further, the evidence shows that the College was given
the proper information to track the leave because, at the end of the day, the
leave was properly recorded in the College's accounting system and her classes
were covered without any cost to the College.
69
The College concluded that despite clear communication from the PN
team, the Grievor chose to "modify objectives and teaching tools without
consulting or reviewing with the coordinator or team." Again, this is a serious
allegation because the College has a legitimate interest in ensuring that
evaluations are done consistently within a program. However, there was no
evidence before the College or this Board of Arbitration that the Grievor modified
"teaching tools." She did add a category of "leadership" to a departmental
attendance form and she did make notations about whether students brought
proper attire to their labs. The Grievor may have factored these concepts into
the class participation mark which was an approved element of evaluation. That
mayor may not have been considered as relevant to other faculty in assessing
the class participation grade, but that was not the College's concern. The Chair's
stated concern was that the notations on the attendance sheet may have fueled
students' existing concerns about inconsistent grading practices within the
department. That would be a legitimate concern for the College, however there
is no evidence that these notations caused any student concern. Further, Ms.
Sumitro's uncontradicted evidence was that she did not factor anything into the
grades that was not consistent with the department's established method of
evaluation. Accordingly, while the Chair may have had some reason to
investigate the situation, there was no evidence before her to support her
allegation that the Grievor modified teaching tools or objectives.
Finally, the Chair's response to the Burrows Memo is very problematic.
Again, in fairness, the wording of the memo contained a number of complaints
about Ms. Sumitro and her performance that were concerns for the College and
the Chair ultimately invited the Grievor to respond. This was all despite Ms.
Burrows' unrelated intention in authoring the memo to document her own
workload complaint. She stressed that she never intended the contents as a
criticism of Ms. Sumitro. However, the document was certainly perceived and
received as a litany of problems created by Ms. Sumitro's performance.
However, when the memo is analyzed item by item, it must be concluded that the
complaints are based on Ms. Burrow's misapprehensions of fact or Ms. Sumitro's
misunderstanding of her responsibilities and/or issues that could have been set
straight by the Chair. In a nutshell, most of the stated concerns seemed to have
no foundation and this could have been realized had the Chair considered all the
facts. For example, Ms. Burrows complained about the problems that resulted
from the late notice of Ms. Sumitro's timetabling conflict. However, the conflict
and the notice were not even within Ms. Sumitro's control. Ms. Sumitro cannot be
faulted for the conflict or the fact that she received her timetable later than the
Collective Agreement contemplates. Timetable conflicts are rare, but they occur
and can only be corrected by the Registrar's office. The Chair was aware of all
of this at the time and yet did not reveal this to the Dean or take this into
consideration.
Ms. Burrows' principle complaint was about the amount of time she had to
spend supporting Ms. Sumitro, in terms of making sure she prepared course
70
outlines, giving her assistance regarding the course, dealing with the late delivery
of class quizzes, and ensuring compliance with department practices. When all
the evidence is boiled down, it leads to the conclusion that Ms. Burrows assumed
that Ms. Sumitro was aware of the department's expectations and practices,
although she was not. Ms. Burrows revealed that once Ms. Sumitro was
apprised of the expectations, she complied. If, as this evidence suggests, a
Coordinator is saying that a new faculty member was not fully oriented about the
expectations of a new department, it is incumbent on a Chair to take this into
consideration rather than assuming that the fault lies with the probationary
teacher.
The memo raises concerns over the Grievor giving a more "theoretical"
than "practical" approach to the quiz and the course materials. It is clear that Ms.
Burrows and Ms. Sumitro had different approaches to the emphasis that should
be placed on theory and practice in this course. However, the College has raised
no concerns over Ms. Sumitro's teaching of this course and she was credited as
being a good teacher. The evidence shows that the students performed well in
the course, including the practical testing. They also gave Ms. Sumitro positive
evaluations. It is clear from the evidence that the College did not rely on this item
in its decision to terminate and so it is not a factor in the finding of bad faith.
The memo also mentions concern over Ms. Sumitro's performance of the
"Queensway-Carlton contract." Ms. Foulds reported this and Dean Cormier relied
upon this when determining Ms. Sumitro's future with the College. It would be
legitimate for the College to be concerned about a faculty member's performance
when teaching in an outside facility that had a contract with the College.
However, there was never any evidence before the College or this Board of
Arbitration to support any cause for concern. On the contrary, the evidence
disclosed that the Queensway Carlton liaison's with the College's liaison heard
about this as a rumor and immediately tried to dispel it. She was assured by the
College that the "rumours" would be addressed, but there is no evidence that the
Dean was told of this. Further, the evidence shows that the evaluations of the
Grievor's delivery of the program were positive and Ms. Foulds could not
articulate any specific reason for the concern she relayed to the Chair.
According, while the Dean is certainly entitled to rely on the information received
from the Chair, it must be concluded that there was no factual or rational basis
for the Chair to have allowed this allegation to be considered in any assessment
of the Grievor's performance.
It is very unclear from the evidence of Ms. Foulds or Dean Cormier just
how much impact Ms. Burrows' memo had on the decision to terminate. Both
witnesses tried to suggest that the Memo was just another factor or "red flag" that
was taken into consideration. However, the evidence also shows that the
delivery of this memo and their reliance upon its contents was the triggering
event that led to the decision to discharge. The decision was made almost
immediately after the memo had been presented to the Grievor and there was no
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other precipitating event. The contents of the memo were taken very seriously by
Ms. Foulds and were seen as evidence of continuing problems by Dean Cormier.
Dean Cormier admitted that she had not read or considered Ms. Sumitro's
responses to this memo when it was decided to recommend termination. Dean
Cormier relied entirely on the memo itself and upon Ms. Foulds' account of the
issues. The evidence shows that none of the explanations that the Grievor and
the Union presented were given any credence or weight. It appears that Ms.
Foulds was following her pattern of assuming that any allegation against the
Grievor had substance and that any explanation she offered would have no
credence. This left Dean Cormier in a situation where she was relying on the
bald allegations in this memo, which, on their face, do suggest legitimate
performance problems. However, a consideration of all the facts and their proper
context has cast an entirely different light on much of the situation.
The preceding paragraphs contain numerous examples of where the Chair
and consequently the College claimed that the Grievor acted improperly or failed
to meet expectations whereas the evidence reveals that there was no basis for
those claims. Some of these examples are serious allegations, some are less so.
Most were legitimate subject matters of concern, but none of these preceding
items have been sustained by the evidence. Taking the College's case at its
best, we can appreciate the College's initial concerns about some of the items
listed in the Burrows memo, or the allegation about the change of teaching tools.
But any basic and fair-minded inquiry into the allegations could or should have
allayed these concerns.
However, there was and is absolutely no factual basis for other items that
were alleged to be performance concerns. The Queensway-Carlton contract is a
prime example of this. Even more seriously, the allegation that that Grievor had
been absent without permission, and/or that she had "negotiated" or had
"committed" herself to a professional development leave were maintained despite
evidence to the contrary. Further, it was completely disingenuous for the Chair to
use the Grievor's response to a departmental questionnaire about areas of
teaching preference as "evidence" that she was failing to fit within another
department's "team." In addition, the admission of the Chair that nothing the
Grievor could have said with regard to the carpenter incident reveals an
unfairness of approach and willful blindness to important evidence. This is a very
significant finding given that any employee, even a probationary employee, is
entitled to be evaluated on the basis of truth, reality and rationality. It is arbitrary
to simply accept incidents or reported conduct as critical facts without engaging
in a rational consideration to the matter. The College must not be able to make
conclusions without a reasonable consideration of the available evidence. See
Jeanne Sauve Family Services and Ontario Public Service Employees Union,
supra. Part of the responsibility towards a probationary employee is that their
performance be judged fully and fairly on the basis of the facts and
circumstances. Management cannot blind or shield itself from any consideration
of facts or explanations that may be in the probationary employee's favour. The
scientisUphilosopher Jean Rostand wrote; "Stupidity, outrage, vanity, cruelty,
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iniquity, bad faith, falsehood - we fail to see the whole array when it is facing in
the same direction as we." That is the danger of a bad faith approach to a
person or an employee; it blinds one to the whole that deserves complete
consideration.
C) Issues that were considered by the Dean in the decision to terminate that
were based on rational considerations
Despite the failings of the Chair's approach and treatment of the Grievor,
the evidence also reveals that the College's had bona fide and legitimate
concerns about the Grievor's performance and suitability. Again, some are more
serious than others, but they should all be addressed.
There was concern about the Grievor's failure to articulate an adequate
strategy to improve communications. She was asked to do this as part of her
back to work initiation and to demonstrate that she understood the College's
expectations. Her first draft contained a list of her accomplishments, but only a
single sentence about communications that was devoid of any strategy. Ms.
Sumitro did ask the Chair for further direction to identify the inadequacy, but the
Chair felt that it was important for the Grievor to be able to show some insight
into the issue. It would have been helpful for the Chair to indicate what was
wrong with the first draft. But it must also be remembered that the Grievor is a
highly educated professional. She holds a Master's degree, had just received
the benefit of extensive individualized meetings with her Chair and her Dean, and
should be capable of drafting a strategic plan to deal with the communication
issues that had been discussed. Her inability to do so after being given so much
coaching was a legitimate item of concern.
The College has also established that the Grievor failed to fill out and/or
amend the proper form for three days Professional development leave. This is a
technical breach of protocol that did no actual harm to the College because the
leave day was taken with permission and the College records have properly
documented the relevant days. While this criticism of the Grievor was proven, it
can only be characterized as a trivial concern within the grand scale of things.
Nevertheless, it is within the prerogative of an employer to raise such concerns
when evaluating the long term prospects of a probationary employee. Our task is
not to weigh the importance of this item.
Of much more significance to the College was the allegation that the
Grievor "failed to meet [the] agreed commitments to the team" by "refusing" to
attend a curriculum development meeting on October 4, 2002. Ms. Sumitro did
not attend this meeting. According to the Chair, this was an important meeting
and there was an expectation that faculty involved with the program would
attend. Ms. Foulds also felt that it was particularly important for Ms. Sumitro to
attend this meeting because she was new to the department, could gain valuable
experience from the meeting and it was occurring at a critical time of the year.
Ms. Sumitro decided not to attend because she felt she needed the time for
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classroom preparation. She also felt that she had been given permission to
make this choice after she had asked about the attendance and the Chair had
written; "You can reflect on how you devote your time; this week you had three
days professional development; it is your decision how to proportion your
schedule. The curriculum work for the next semester is a cornerstone to your
teaching." Ms. Sumitro focused on the words "it is your decision" and interpreted
them as an invitation to exercise her professional judgment by choosing not to
attend. However, the Chair felt that her words had clearly conveyed the
importance of attendance and that the decision to not attend was an indication of
the Grievor's poor judgment and inability to prioritize her responsibilities. In
another setting, it might be fair to conclude that Ms. Foulds' email was
ambiguous or unclear. But this is a College setting where the players all hold
post-graduate degrees. Ms. Sumitro should be expected to have understood that
the Chair's considered the attendance to be important. Ms. Sumitro was a
probationary teacher who was being told that her Chair expected her to attend. It
may be open to honest disagreement over whether it was appropriate to criticize
Ms. Sumitro her for her absence given the fact that other full time and
probationary teachers missed one or more curriculum meetings without incurring
censure from management and Ms. Sumitro did fulfill her requirement of SWF'd
curriculum development hours during all her terms at the College. But it must be
remembered that Ms. Sumitro's reason for not attending was that she wanted to
prepare for classes after her return from a professional development leave. The
Chair had the right to expect the Grievor to be able to manage the leave, the
meeting and the classes. Therefore, whether we agree with the Chair's
assessment or not, there was a rational and reasonable basis for the criticism.
The College has cited the Grievor's direct appeal to the President for a
transfer as a failure to respect hierarchy. Ms. Sumitro did write directly to the
President of the College seeking a transfer without taking this request first to the
Chair or the Dean. It is certainly understandable that a probationary teacher
would not want to confront her Chair with a request for a transfer when the
reason for the request was the Chair herself. But there was no need to bypass
the Dean. Dean Cormier had agreed to meet with Ms. Sumitro around this same
time. The meeting arrangements got fouled up over their failure to agree on who
else would or could be in attendance. The Dean had clearly indicated that she
was willing to meet with Ms. Sumitro but simply wanted a representative from
Human Resources to be present after Ms. Sumitro indicated that she wanted a
Union representative to be there. Ms. Sumitro and the Union have never alleged
any animosity from the Dean and they offered no reason why Ms. Sumitro did not
go ahead with this meeting. This was unfortunate, because had Ms. Sumitro
taken her request directly to Dean Cormier, this would have been in compliance
with the communication protocols and may have alleviated some of the problems
that ultimately led to this hearing. We are very mindful of the fact that the Grievor
was relying of the College President's announcement that he had an "open door"
policy. But this could not be viewed as an invitation to ignore proper protocol.
Given the amount of time that the Dean had spent earlier with the Grievor about
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College hierarchy and Dean Cormier's continuing willingness to meet with Ms.
Sumitro, it was legitimate to expect her to have made her request for the transfer
to Dean Cormier first. We do not mean to suggest that the Grievor's conduct
amounts to an employment offence. We have simply concluded that the College
was entitled to take this into consideration.
Wise people may disagree about whether the failure to amend the form,
the decision to miss the meeting or the approach to the President were actually
valid performance concerns. It may be more appropriate to declare that these
are simply items where this board of arbitration should defer to management
because there was some rational basis for the conclusion.
OJ Independent and determinative performance issues that were considered by
the Dean in the decision to terminate
There are three remaining perform concerns that are clearly significant
and that were conclusively proven through evidence that was not affected by any
element of bad faith or arbitrary treatment.
The first relates to the Grievor's "resistance or refusal" to meet with Ms.
Foulds about a specific student related issue. After the initial successes of the
"monthly" meetings mandated by the reinstatement protocol, there were often
difficulties in arranging meetings and there were some disagreements about who
would attend these meetings. Ms. Sumitro then became reluctant to meet with
the Chair after the repeated and sometimes unwarranted criticisms started to
mount from Ms. Foulds. To a great extent we sympathize with the Grievor over
this. However, Ms. Foulds asked to meet with the Grievor "briefly" around
October 25, 2002 to discuss some specific student concerns that had been
discussed at an earlier department meeting. The meeting was not about Ms
Sumitro and her performance. The meeting was about a course related issue
and the Chair made that clear. Further, the Chair offered to accommodate the
Grievor's teaching schedule. However, Ms. Sumitro initially tried to avoid the
meeting by rejecting any of the suggested times, citing her need for time for
classroom preparation. The Dean then clarified that her request was for brief
meeting over a specific and important issue. The Grievor still did not agree to
meet when requested, suggesting a time weeks later. The College and the Chair
had a legitimate right to expect the Grievor to respond to the request for this
meeting and to expect the Grievor to both attend the meeting and have time for
classroom preparation. Her excuse for not attending was not linked to her
concern about Ms. Fould's unfair treatment. Her excuse was based on her
inability to attend to all her duties. Even if this is true, at best it signals an
inability to manage her workload. However, this evidence is also consistent with
an employee who did not respond appropriately to a supervisor's legitimate
request for a meeting about student concerns. Accordingly, this evidence
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established that the Grievor failed to act in accordance with the legitimate and
objectively sustainable expectations of the Chair.
There is absolutely no doubt that the College was also justified in its
concern over the Grievor's failure to make an on-site visit or communicate
directly with a preceptor from June 5 - 24, 2002. The Union presented a great
deal of evidence about whether Ms. Sumitro had been told to meet "at least once
a week," "frequently" or on a "regular basis" with preceptors. However, it
ultimately does not matter what her exact instructions were because even if we
accept her evidence, she failed to meet or even contact a preceptor for two full
weeks after the beginning of the placement. Even by her own understanding of
the expectations, this was unacceptable. This is particularly problematic because
the evidence of both parties is that the faculty liaisons were told to meet with
more frequency at the beginning of the placement and the Grievor's failure to
meet the preceptor at all occurred during that period. The Grievor's excuse is
that she had too many other students, locations and preceptors to deal with so
that she devoted her time to the problematic situations. This excuse cannot be
accepted. There is a workload complaint procedure available to faculty if the
workload is excessive. By choosing not to grieve, she cannot now use workload
as an excuse. Further, while other faculty testified that they thought her
assignment was "horrendous" or that they had never had to deal with similar
situations in the past, there was no evidence that Ms. Sumitro's assignment was
different from other faculty member's assignments during the same time frame.
In addition, the Grievor revealed that she had taken time at the beginning of the
preceptorship program "networking" with hospital administrators in order enhance
the program. If she was as overworked as she claims, she certainly did not have
time for these meetings which fell outside of her assigned duties. Her failure to
attend to her assigned duties demonstrates legitimacy for the College's concerns
that she could not properly prioritize her responsibilities or exercise good
judgment. The Grievor's failure with regard to the preceptorship was very
serious. While her inadequate performance cannot be connected to the student's
injury, it did contribute to the College's difficulty in facilitating the student's
subsequent transfer to another teaching facility. Accordingly, the College was
justified considering her performance in this area as unacceptable. It must also
be noted that the Grievor has never accepted any responsibility for her failure in
this area. Instead, she cast blame on her workload, the training she had been
given and even the preceptor. All of this was completely inappropriate. It also
reveals a singular lack of insight into her own misconduct. Further, the Grievor's
lack of acceptance of responsibility in this regard exemplifies one of the College's
recurring concerns about her being ungovernable.
This leads to the College's final generalized criticism of the Grievor over
her failure to accept responsibility, admit her errors and her failure to exercise
good judgment with respect to faculty priorities. In many instances we can
understand why the Grievor would refuse to admit wrongdoing or agree to
"change her behaviour" as the College kept asking her to do. As shown above,
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many of the criticisms leveled against the Grievor were unjustified. She cannot
be faulted for refusing to shoulder blame for those incidents that were not of her
making or for groundless accusations. However, when Ms. Sumitro was or is
clearly in the wrong, she completely denies any fault on her part. This is
demonstrated with the October meeting and the proctorship issue, in particular.
In the latter instance, her attempt to deflect blame speaks very poorly for her.
Further, throughout her time at the College and even during her testimony, she
continually claimed that her workload and her concentration on classroom
teaching took priority over everything else. Teaching is indeed the prime
responsibility of a professor. But it is not the only responsibility. The distribution
and assignment of workload in the College sector is a finely-tuned calculation
that has been developed mutually between the parties. It is designed to allow for
sufficient time for a teacher to devote to all their duties. It also makes allowances
for new teachers and new courses. Therefore, a workload that complies with the
Collective Agreement cannot be used as an excuse for any shortcomings. The
Grievor clearly had a great deal of difficulty managing her workload. She
repeatedly reduced herself to tears during her testimony, lamenting about how
hard she had worked and saying that she had no time to deal with all the
expectations thrust upon her. She repeatedly cried, "I was so busy", "I tried to do
my best", "I worked so hard" and "I was overwhelmed". This demonstrates that
she found the workload extremely difficult to handle and she often used this as
her excuse for avoiding meetings or to explain any suggestion of shortcomings.
Her difficulties in managing her workload and/or prioritize her responsibilities,
translated into the College's concerns about her professional judgment or her
ability to maintain the duties of regular status. This is a legitimate cause of
concern to the College when considering the long-term prospects of a successful
career as a teacher. If she was "overwhelmed" by the work-load at that stage
when allowances are made for new courses, her future prospects were certainly
a legitimate cause for concern for the College.
Therefore, the evidence establishes that while some of the College may
have been arbitrary in some of its judgments or assessments of the Grievor, it
also had legitimate performance related concerns about her that would be valid
cause to terminate a probationary employee.
E) Unsubstantiated or unproven allegations of bad faith and arbitrary conduct
The onus is on the Union to demonstrate that the College acted arbitrarily
or in bad faith in deciding to terminate the Grievor. I must be concluded that
many of the Union's allegations of bad faith have no substance or could not be
sustained by the evidence.
The Union first alleged bad faith as a result of the College's "failure to hold
the monthly meetings promised in the Memorandum of Agreement." There is
absolutely no substance to this allegation. The Memorandum of Settlement did
contemplate "monthly meetings" between Ms. Sumitro and the Chair. This was a
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laudable objective, designed to help them both understand each other, facilitate
success and avoid difficulties. In the beginning, this was achieved. However, as
time progressed, the aim of the monthly meeting monthly first became difficult to
arrange because of many other demands and vacation schedules. Thereafter,
as criticisms were leveled against the Grievor and situation became even more
strained, the Union itself began to question the utility or advisability of the
meetings and stopped asking for them. There is no evidence to indicate that the
College ever refused to hold one of these meetings. Therefore, the failure to
abide by the strict terms of the Memorandum seems to be more a matter of
consensual default, rather than an act of bad faith.
The Union alleged that College acted in bad faith by failing to provide
performance appraisals every four months as prescribed in the Collective
Agreement for probationary teachers. Failure to abide by this provision has, in
other cases, been considered as evidence of a failure to allow a probationary to
"do their best" when it was shown that they were given no adequate feedback
about performance concerns. However, the Union and the Grievor both
acknowledge that the Collective Agreement's four month rule for the delivery of
performance appraisals to probationary teachers was relaxed in this case by
mutual consent or at the request of the Union itself. Indeed, the College's
attempt to deliver one appraisal was delayed for several months by the Grievor
and the Union. Further, the evidence shows that some of the delays in delivery of
the appraisals were the result of the Grievor choosing not to meet with Ms.
Foulds at the requested times. Finally, it is painfully obvious that the Grievor was
continually being put of notice about the College's concerns about her
performance. If the purpose of the performance appraisal is to advise the
employee of the College's concerns or expectations, that was achieved in this
case without the formal appraisal. Ms. Foulds admitted that she could have
improved her communication skills with the Grievor, but the Grievor was well
advised throughout about the College's concerns. Therefore she was not
prejudiced in any way by failure to deliver the appraisals according to the strict
terms of the Collective Agreement. Accordingly, this issue does not support a
finding of bad faith.
The Union also asserted that it was bad faith to keep "resurrecting"
issues after they had been resolved. It is true that many issues kept being
repeated in the College's performance appraisals and letters to Ms. Sumitro.
However, performance appraisals are, by definition, a documentation or
summary of the previous periods' achievements and problems. It is certainly
within management's prerogative to raise issues in the appraisals even if they
were discussed and/or resolved in the relevant periods. Similarly, letters of
reprimand are designed to bring home to an employee that specific conduct is
jeopardizing their continued employment. It is actually fair and advisable for an
employer to record past and present concerns in such letters. Therefore, the
repetitious allegations cannot be said to be untoward or inappropriate.
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The Union has asserted that the nature and variety of the teaching
assignments given to the Grievor and the "inappropriate manner" in which her
workload complaints were handled constitute bad faith. This is a very difficult
issue because the uncontradicted evidence was that the Grievor was the only
probationary teacher to have had so many different program assignments. There
is no question that the hardest term for a teacher is when one first delivers a
course. The substance of the Union's complaint is that the differing programs and
the quantum of work assigned to her made it too difficult for her to "do her best."
However, for several reasons, we cannot conclude that this issue reveals bad
faith. First, the Grievor reiterated that while her "first love" was the RN program,
she welcomed the challenge of other assignments. It must also be recognized
that the Grievor's reinstatement in January 2002 necessitated an immediate
assignment of classes when all other full time faculty had been SWF'd for that
term. Therefore, it was inevitable and understandable that the Grievor would or
could not be returned to her first choice of courses at that time. The next
reassignment the following term is more difficult to understand and may well
have added to the Grievor's stress levels. However, it was also established that
the department had chosen to promote flexibility and cross-disciplinary skill sets.
Other faculty members were being given new assignments and voicing similar
distress. It may be that other probationary teachers were not moved as much as
the Grievor. However, it has not been suggested that any other probationers had
to be accommodated with new assignments after a reinstatement at the
beginning of the Winter term. Perhaps another manager would have found
assignments for someone like the Grievor that would not have caused so much
stress. Perhaps that would not have been possible. But given the basic
management right to assign work and the fact that her ultimate workload
complied with the Collective Agreement, it cannot be concluded that bad faith
has not been proven on this issue.
The quantum of work itself must be addressed. Ms. Sumitro said
repeatedly that she found the work-load "overwhelming" and the Union alleged
that this indicated the College's bad faith. However, as outline above, it is clear
that she had enormous difficulty coping with the demands of full-time teaching.
The Collective Agreement has a detailed and sophisticated scheme for allocating
and determining workload as well as a system to challenge excessive or unfair
assignments. The Union was in close contact with the Grievor throughout this
period, always offering her protection and support. Indeed, the evidence shows
that it did raise some work-load concerns that were resolved with Ms. Fould's
directly and quickly. On another occasion, the Union had to file a work-load
grievance on behalf of Ms. Sumitro and met with partial success at arbitration.
The fact that the grievance had to be filed and taken to arbitration cannot itself
indicate bad faith because this would mean any work-load complaint is evidence
of bad faith. Indeed, Union witnesses revealed that Ms. Sumitro's workload
grievance was not unique in this department. Other faculty, including those with
regular status felt compelled to file similar grievances workload complaints,
without alleging bad faith. Further, the fact that the Grievor's grievance met with
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only partial success means that we cannot conclude that only the Employer was
maintaining an unsustainable position. At the end of the day, it must be
recognized that the Grievor had a workload that complied with the Collective
Agreement. She cannot now use that workload as the basis of a bad faith
complaint. The appropriate forum to challenge work-load complaints is through
the grievance procedure, not obliquely in a subsequent termination arbitration.
The grievance procedure is designed to address problems as they arise and
before they can fester into the kind of recurring lament that the Grievor
expressed throughout this case. Accordingly, while the work-load issues
certainly contributed to Ms. Sumitro's difficulties, there is no evidence to support
the conclusion that her ultimate work-load violated the collective agreement or
that the College acted in bad faith by defending the work-load grievance at
arbitration.
The Union also alleges that the College acted in bad faith by failing to
allow Ms. Sumitro to be reassigned to another manager despite what was
alleged to be "open hostility" from Ms. Foulds. There was absolutely no evidence
of "open hostility" from Ms. Foulds. No Union witness offered any evidence to
support this allegation. The only evidence of anything that comes close to
"hostility" actually came from Dean Cormier's recollection of Ms. Sumitro "glaring"
at Ms. Foulds, but even that fails to establish hostility. The nature of the
relationship between Ms. Sumitro and Ms. Foulds was obviously strained and
became more and more difficult as time progressed, but it cannot be said that
Ms. Fould's exhibited any hostility towards the Grievor. Therefore, we conclude
that there was no "open hostility" as alleged. However, that leaves the question
of whether the College should have responded to the Grievor's plea to be
transferred away from Ms. Foulds? Perhaps this would have been a good idea.
We were never told if this had been given any serious consideration after the
request was put to the President. We were not told about any operational
reasons for resisting her obvious desire for a transfer. However, there is no
requirement to grant a transfer request. The President advised the Grievor to
deal with her concerns within her own department and there is no evidence that
she advanced the request any further or what, if any, consideration was given to
the notion by the Chair. Therefore, we do not find that this allegation has been
proven.
The Union alleges that it was bad faith to fail to take the Grievor's teaching
excellence and other "positive contributions to the College" as a full- time teacher
into consideration in assessing her performance. The College recognized that
Ms. Sumitro was a "good teacher." Colleagues have described her as
"exceptional." The largest proportion of SWF'd hours relate to classroom
teaching, preparation and student contact. Yet Ms. Foulds asserted that
teaching is not the most important factor. This is more than a little surprising, but
it is clear that the College did not consider the Grievor's success as a teacher as
something that would outweigh its other concerns. The College did not also take
into the consideration the positive testimonials from other faculty contained in the
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nomination for a teaching award that listed her contributions to the College and
the faculty. This is particularly disturbing given that the College was alleging that
the Grievor had not fulfilled expectations as a "team player" and alleging that
complaints had been received from other "colleagues." However, non-teaching
performance concerns are valid considerations when making a decision about a
probationer faculty member's status. Non-teaching duties are requirements of
full-time faculty and are recognized in the Collective Agreement and the SWF.
Nothing prevents the College from taking other factors into consideration. If the
task of the Board of Arbitration was to determine whether just cause existed for
the termination, the inattention to or questionable weighting of teaching success
may have been an important factor in the Union's case. However, our authority
does not include a measuring or an assessment of the merits of the employer's
considerations. We could disagree with its weighting of the teaching component
and still uphold the termination. The College has shown here that it did factor in
the Grievor's success as a teacher and simply felt that this was insufficient in
light of the other factors. This was done rationally and with some regard to what
the Grievor had achieved as a teacher. Therefore, there is no basis to consider
the College's failure to give this factor more weight as evidence of bad faith.
The Union has alleged that the College acted in bad faith by electing to
terminate the Grievor instead of exercising its "ample opportunity to discipline"
when it felt that the Grievor's performance was not meeting expectations. In
essence, the Union is claiming that the College could or should have
implemented progressive discipline to bring home the seriousness of it's
concerns. In response, the College points to the absence of discipline as a sign
of its patience and good faith attempt to facilitate the Grievor's success. In
particular, the College points to the fact that it did not take action against the
Grievor after the preceptorship problem came to light. The only instance of
"discipline" that could be said to have been imposed in this case would be the
letter of reprimand. The rest of the time, management made its displeasure
known through performance appraisals and counseling. The Grievor was never
under any allusion that her employment was secure and she was well aware that
she was fighting hard to remain employed. If the purpose of discipline is to
advise an employee of management's concerns and to bring home to him/her the
seriousness of inadequate performance, all that was accomplished in this case.
Formal discipline would not have assisted the Grievor or the situation. The fact
that discipline was not imposed speaks in the College's favour. It shows a
restraint by electing to try counseling rather than impose sanctions. This is a
legitimate approach to a probationary employee where it is in no one's interest to
invoke discipline, grievance and arbitration when the whole point of the
probationary period is to create a healthy foundation for long-term employment.
The Union also asserted that the allocation of the office space to
the Grievor is a certain signal of bad faith. There is no question that the Grievor
was assigned to a room that cannot be described as an "office." Instead it
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appears to have been a multi-utility space, housing everything from communal
filing cabinets, to a microwave and a printer. The space was not conducive to
study, work or student interviews. While the Grievor did request a move to that
general area, there is no evidence that she saw or agreed to that space particular
space before the move. The evidence also suggests that more appropriate
alternative space was or became available, but she was not relocated despite
her repeated requests. However, the College's evidence also made it clear that
office space is a continual problem for the department. It is not clear why the
Grievor was not moved, if there was in fact better alternate space available.
However, we are very cautious about declaring that an unfavourable space
allocation is an indication of bad faith. This is a sector where space, resources
and facilities are often stretched to the limit and where competition for desirable
space can invoke internal battles of epic proportions. Not all undesirable space
allocations denote bad faith. They usually denote that someone is at the bottom
of the pecking order within the department. That is, by definition, the plight of a
probationary employee. Therefore, while we are troubled by the evidence
regarding the Grievor's room assignment and we sympathize with her
unhappiness about the working conditions, we cannot conclude that her
assignment demonstrates evidence of bad faith.
Therefore there are nine allegations of bad faith have not been met the
Union's onus of proof. We recognize that individual matters in and of themselves
may not indicate bad faith, but when taken cumulatively can paint a far different
picture. However, where there is no substance or no legal basis for the individual
complaints, the volume of complaints similarly cannot build a case where no
foundation exists.
F) Conclusions
Where does all the forgoing analysis lead? There are several conclusively
proven factors that militate against consideration of the Grievor as a long term
employee. The Grievor's neglect of her proctorship duties, her refusal to meet
with the Chair to discuss a specific student concerns and her unwillingness to
accept any criticism in these areas are valid reasons for concern. Further, and
perhaps most importantly, the Grievor herself repeatedly testified that she was
overwhelmed with the workload. She found it almost impossible to prepare for
classes and keep up with the other faculty responsibilities. She required a lot of
support to deal with the basic issues of course administration and delivery. This
is not an employment offence and she could not be disciplined or even faulted for
seeking or needing so much assistance. However, an employer need not show
that there was a strong or even fair reason to decline to continue a probationary
employee's probation. The employer only has to show a rational reason for its
decision. In this situation, despite the improper considerations that were
components of the decision, we are left with an employee who had difficulties
managing her workload in a system where the quantum of work is limited by the
collective agreement. We also have this same employee neglecting professional
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responsibilities, refusing to meet with her Chair and continuing to take no
responsibility for these errors. These factors alone would amply justify the
termination of a probationary employee because they send strong signals that
the long term prospect of a successful employment relationship is probably
impossible.
When all is said and done, if the College's decision is sustainable on the
basis of its own rational, it is difficult to find that its conclusion was arbitrary or in
bad faith. We accept Dean Cormier as a credible witness. She was the effective
decision maker and recommended the termination. She did not claim that there
was a triggering incident or that there was one definitive factor. She simply relied
on the information she had received from the Chair, correspondence and her
own meetings with the Grievor. Then, at a point that a decision had to be made
about assigning classes for a new semester, she concluded that the situation
should not be continued. The ultimate reasons she gave for deciding upon letting
the Grievor go were:
"Despite being told to meet with her manager for proper authorization, she still
took a PD day without proper authorization."
"Using poor judgment in choosing not to attend the curriculum meeting."
"Having a great deal of trouble meeting and discussing academic matters with
her manager."
"Failing to follow College procedures."
"Failing to show an understanding of the importance of team work."
"Failing to show a better understanding of the critical elements of full-time
requirements."
Only the first of these conclusion has been discredited. The remaining
conclusions can be said to have a rational basis. We mayor may not agree with
her conclusions or the College's weighing of the importance of teaching vs. non-
teaching duties. But non-teaching responsibilities remain as valid considerations
in the assessment of long-term status.
Whether the Burrows memo was the unintended trigger for the decision to
terminate or whether it innocently prompted the realization that there was no
improvement in the situation is of no great import. Only a regular status
employee is entitled to the protections of just cause where the employer would
have to establish a culminating or serious incident to justify a discharge.
However, as the cases cited above establish, the College only has to have a
rational basis for concluding that it did not want to confer regular status on this
probationary employee. The College did not need to show that a new problem
had surfaced or that new misconduct had occurred. A lack of improvement over
a problematic probationary period is sufficient to sustain a termination.
There is very little that an employer has to establish to justify the
termination of a probationary employee. It certainly does not have to prove
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every employment concern that it raised with the employee or alleged at the
hearing. It only has to establish that there was a rational basis for the
termination. There was sufficient evidence of problematic conduct in this case to
support a finding that it was reasonable for the College to conclude that she had
not and could not meet its reasonable expectations. That is sufficient to justify an
employer's decision to terminate a probationary employee. See Reena
Foundation and OPSEU, supra.
What makes this case interesting and difficult is that we have a mix of
rational reasons and unsupportable assumptions. Those unsupportable
assumptions certainly caused the Grievor and the Union a great deal of anxiety
and difficulty. They also clouded this hearing with confusion. But it cannot be
said that any of those issues had a causal effect on the performance problems
that were ultimately proven. If a nexus between the College's failure to consider
any of the Grievor's explanations and the Grievor's performance difficulties had
been proven, this would mean that the Grievor was not given the opportunity to
"do her best" within the probationary period. But the connection does not exist in
this case between the nature of the College's arbitrary or bad faith conduct and
the Grievor's failings. This does not mean that an employer can treat a
probationary employee arbitrarily or with bad faith and still have a termination
upheld. It simply means that where there are valid employment reasons to
terminate a probationary employee, arbitrary or bad faith conduct that is not
linked to those reasons will not void an otherwise rational decision.
On the other hand, there has to be a consequence to the arbitrary and bad
faith treatment. The evidence makes it clear that the groundless assumptions
and arbitrary conclusions resulted in a great deal of stress to the Grievor. She
and the Union spent a great deal of futile effort trying to remove the unfair
allegations from her documentation. She is entitled to be treated and judged in a
non-arbitrary way and the resulting stress to her must be considered to be
completely foreseeable. This stress did not preclude her from performing well as
a teacher, nor did it impact on the areas where her performance was
problematic. However, the evidence demonstrated that she endured distress,
stress and worry as a result of having to respond to or deal with the allegations
and treatment that we found to have been affected by bad faith or arbitrary
considerations. These injuries were foreseeable and are compensable. They
arise directly from the breach of her contractual right to be free of arbitrary and
bad faith treatment. Accordingly, we award her $7500.00 by way of
compensation. This award is not punitive damages; it is designed to compensate
the Grievor for the breach of her contractual rights. It should be recognized as a
signal that there are financial consequences for an employer's failure to abide by
its contractual obligations.
In the end, we must conclude that the decision to terminate should be
upheld because there were valid performance related concerns behind the
College's decision. This should not be read as a victory for the College. It has
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lost a person who some considered to be an excellent teacher. Based on the
evidence presented, the Chair acted arbitrarily and in bad faith by leveling
accusations without foundation, turning a blind eye to evidence before her and
operating on the basis of unsupportable assumptions. These unfortunate
conclusions reflect poorly on the College and have prompted the compensation
award. Accordingly, although the Grievor will not be reinstated, no one has
"won" this case.
We remain seized with regard to the implementation of this Award should
the parties require further assistance.
DATED at TORONTO this 24 day of July, 2006.
"Paula Knopf"
Paula Knopf, Chair
"D.A. Pearlman"
I concur Employer Nominee
"Pamela Munt-Madill"
I concur Union Nominee
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