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HomeMy WebLinkAbout1993-2057.Nanni.95-05-12 ,., -fl; ( 1";,- ~ ONTARIO EMPLOYES DE LA COURONNE ~"".:- CROWN EMPLOYEES DEL'ONTARIO " 0'- ) . 1111 GRIEVANCE \ COMMISSION DE , , ~t-9- ,~V r. rl' SETTLEMENT REGLEMENT &~ ~ BOARD DES GRIEFS ! \./'?f ~rv: 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO. M5G IZ8 TELEPHONE/TeL~PHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 2100, TORONTO (ONTARIO). M5G lZS FACSIMILE /T~U:COP!E (416) 326-1396 GSB # 2057/93 OPSEU # 93H09? IN THE HATTER Oll' AN ARBITRATION ) Under -~ THE CROWN EMPLOYEES COLLBCTIVBBARGAINING ACT , Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Nanni) Grievor - and - The Crown in Right of ontario (Ministry of community & SQcial Services) Employer \ BEFORE: J. ~oberts Vice-Chairperson E. SeYlllour Member M. O'Toole Member FOR THE R. Nabi ) GRIEVOR Counsel Richard A. Nabi & Associates I Barristers & Solicitors FOR THE S. Mason EMPLOYER Counsel Legal Services Branch Ministry of community & Social services HEARING July 7, 1994 August 2, 1994 ~ March '23, 24, 1995 \ ( '" r~ ( " AWARD - / I -- I~ INTRODUCTION This is a discipline case. The grievor, a Vocational Rehabilitation Services (VRS) Counsellor in the Chatham office of the Employer, was given a seven-day suspension for (1) ,r' giving clients misleading information in, breach of her duty to treat theJ:ll with, dignity and ) reSpect; (2) engaging in a conflict of interest and breach of trust by seeking to enlist clients to contribute to the success of a press conference that was called in an 'attempt to induce the ! ' ! Employer to abandon its'decision to cut-back the number of VRScounsellors;, and, (3) b~hing her obligation of confidence by publicly identifying certain clients and wait-listed applicants as recipients and potential recipients of VRS benefits. ~ .., For reasons which follow, we conclude that the grievor did not give misleading . informatiOn to her clients arid 'only engaged in a technical breach ofCQnfidence. _ At the same time, however, we conclude that the grievor did attempt to enlist cli~ts to ,contribute to the ) success of the press conference. The primary purpose of this act did not appear to be to serve the interests ofthe clients" rather, it seemed to be to serve the interest of the grievor in pursuing - the' objective of remaining' in her position as a VRS counsellor, a position 'that was slated to be abolished by virtue of the Employer's cut-backs. We also conClude that in seeking to enlist clients,the grievor made. statements to them which she either kriew or should have know would cause them alarm. This was a conflict of i '". \. l ! " 2 interest and breach of trust warranting, in the circumstances, the imposition of a two-day suspension. The Employer is hereby directed to subsutute a suspens!on of this length for the seven-day ~uspension that was onginally imposed, with appropriate compenSfltion to the grievor, and to amend the grievor's disciplinary record to conform to the findings of fact (If this Board. ) ~- ll. GENERAL BACKGROUND - At the time of the events leading to the present arbitration, the grievor was a VRS Counsellor in the offices"of the Employer in Chatham, Ontario. H;~r position was a regular part- I time position in the classified staff She worked 18 It(l:urs per w~k, comprised of 6 hours per day on Tuesdays, Wednesdays, and Thursdays. In all, the grievor had 16 years of experience I ~ as a professional social worker Before beginning her career, she graduated from Lakehead University with a B.S. W 'degree. Her seniority date with. the Employer was September 7, 1982. . . She commenced her employmentias a Social Worker 2 itt,the Southwest Regi91W Centre'in the town of Ble~eim. ~ According to the evidence, the duties of a VRS cou~sellor were to formulate and implement vocational plans ,designed to help disaple<\ adults prepare for ,gainful employment. In the context of the provision of VRS ,services, a wiqe definition -was given to the word ; "disabled" Anyone who suffered from a physical, emotional learning, or addictive disability'was, ~ I eligible to receive VRS services. Generally, these services included face-to-face consultation, -- the formulation of a retraining and rehabilitation _p~ograJJlme, includmg education, advocating ( ... :p i! ( ..... ~ 3 on behalf of the dIsabled; arranging matters to implement the vocational plan, and even counselling"regarding 'things hkefamily matters that needed to be,addressed before implementmg .... the vOcational plan. This waS ~,tresponsible social work position requiring incumbents to be 'professional social workers with social work degrees. ~ " On WedneSday, September 21, 1992; the grievor, attended: a meeting that had been called ,~ by' her Supervisor, Mt David Earle, the Programme Supervisor of the Employer The meeting was held' at the Windsor office of the Employer and was also attended by other ,r~presentatives of management 'and a representative' of the Uilion. At this meeting, Mt Earle informed the grievor that in a staff cut-back made as part of the Employer's expenditure ,control ,plan, her position had been declared surplus. The grievor was given a choice of moving to either a part- - time'positioil as a Parental SuppOrt Worker or as an Income Maintenance Officer in the Chatham office. The'grievor decided to take the latter . . ~ It would beptitting-matters mildly to 'say that at this meeting, the grievor was. chagrined. Thegrievor testified: that she was.'up~t, angry, hurt, and embarrassed that she" was declared surplus. The grievor was So ineeilsed that she swbre and used harsh language. What upset the grievor the most, apparently , was that the, Income Maintenance Officer,position to which she was required to shift constituted, in essence, a demotion. The position' did not even require the mcumbent to be a professional social worker with' a social.,work degree. \. I, \ r J> \ 4 Given the grievor's state of mind, it was perhaps unfortlmate ~hat later the ~me day, she r~ived a call from Ms. Leah Casselman, a member of theBgard of Qirectors for the Union and the Union chair of th~ Employee Relations Committee for the Ministry of Community and Social Services, i.e., the Employer herein. Ms. Cassleman was"seeking the grievor's help in generating press regardmg the planned abolition of three VRS counsellor positions, including the grievor's. Ms. Casselman had already compose9 a press release voicing concern that in cutting back these positions, the Mirtistry was restricting the ability of the disabled to q~fy for employment while at the same time preaching employment equity for the disabled. Sheadvised thegrievor that she had scheduled a press conference / on this- issue f~r noon on Friday, September 23, and requested the grievor's help. ~ I ~s. Casselman explained that the Union had targeted Cbath~ because ttle l~ M.P P , Mr Randy Hope, was Parliamentary Secretary to the Minister of Community and Social Services. One of the strategies used by the Union when it wished to generate press, Ms. Casselman explained, was to get clients out to the press conference a)ong with the service providers. The press, Ms. Cassel~ said, was much more interested in talking to clients than to workers who were about to lose their jobs. This kind of publicity, ,she said, made politicians move a lot more quickly j I " ~ In line with this strategy; Ms. Casselman asked thegrievor if she had;,an),\clients who were interested in the issue and who would like to chat with the press regarding the impending loss of service. The grievor, Ms. Casselman S31d, was initially reluctant to involve her clients, I -, L ::> , \ '" 5 ,-- ~ tloweY~r, she relent~ wh~n ',Ms.. Casselman pressed her, sayin~ that she needed the clients there. On the next ~y, Thursday September 22, the grievor telephone4 tweqty ito twenty-twp of her 'clients Q~t of ~ case l~d of twenty-six This exerci~,the ~rievoragreed in her testimony, took the whole working day ~ 'P1t~re WM, co,nsid~rabletdispute over ~hat Ule grievor toJd her clients in these telephone calls. The griev01: e~senti~ly clai~ed, that all she told ~~m w~s that her positiQn was about to be abolished.. and .that- as, a resu1t~ :her, ~se load would be tr,an~fer:red ~ a full-time VRS ~coun~llor wh9 ~y' had a full ~ load. This? 'tn~ grievor suggested, would make the 4elivery J)f se.rvi~ tq the cU~nts considerably slower than in the past. The grievor's Su~sor, ,Mr Earle, testified that after ~ thorough inves~gation which included interviews with ,seve@ of the gri~or.'s clients, he conclu,ded that tl\e,~evor advised her clients that VRS servi~ were going ,to beaboijshed anc;t would no longer be availab~ein Cl!atham. 1 ,. Ultima~ly: only two of the grievor's clients, DO and WM, attended the press conference. DO, brought along two others who were on the waiting list for VRS services, DA and ML. Several clients, however, wrote letters to Mr Earle expressing concern about what was going to happen to them. -, ~ .Once;lgain; tPere w.as considera9le cong-oversy over w.hat hap~nedjn the, course of th~ press conference. Mr Earle coIlcluded in his investigation that the grievor reaffirmed to .the ~ clients that ~S ~rvices ill- Chath~ were being terminated., He also concluded that without { .< ~. 6 obtaining prior permission, the grievor\ told the press and others that the four attehdees were VRS recipients and applicants. Finally, Mr Earle concluded that after the four attendees were interviewed at the end of the press conference, thegrievor suggested to them that they continue their protest at the constituency of the local M.P.P ,Mr Randy Hope. ) The grievor insisted in her testimony that neither in her telephone calls ,nor at the press -~ conference did she ever suggest to the four protesters thatVRS services were gaing to be terminated in Chatham. In fact, the grievot said that at the press conference she overneard one ( of the attendees, ML, state that one of his friends told him that VRS would be abolished and she advised him that as far as she knew this was untrue. The grievor alsO maintained that she never suggested to the four attendees that they go to Mr Hope's constitUency office., All that > happened, she said, was that while she was going up the stairs back to her office after the press conference the four approached her and asked her where Mr Hope's office was and she replied that she thought it was somewhere on Adelaide Street. . ][V. The Findinr~of Fact of the Board At the hearing, several witnesses in addition to Mr Earle and the grievor were called. As might be expected after the passage of approximately two years, their 'rep611ections;'didr~Iiot always coincide. Because the grounds for discip1ine~ Le., (i) misleading clients; (2) conflict of interest and breach of trust; and, (3) breach of confiderlce~ rest upOn the cOnclusions that Mr ------- - --~ --- ; ~ ( \ '" 7 Earle drew after 'having interviewed many 'of those who testified, it .would seem to be most convenient for the purpOse of fact.;finding to group: together and exani\ne under each ,ground of discipline' the' evidence of all witneSses pertaining thereto \ (1) Misleading Clients and Applicants I It will be recalled that after his investigation, Mr. Earle concluded 'that in her telephone calls and at the press conference, the grievor misled her clients and others by telling them that VRS services were going to be terminated in Chatham. The grievor denied ever making such a statement. ..-] I ., . .;..c, , - ,.c." .' None of the Witnesses who were called,to testify ,at' the hearing said, that in the grievor's teiephone"Ca11s, she indicated ,that VRS services would be terminated. DO"one. of the clients who attended the press[confetel'lee, testified that 'when the grievor called 'him she ,said that there would be a slow-down in the delivery ,of VRS services because VRS workers were .being laid off. DA, one of the applicants, stated that when he caned the grievor on the telephone she said that the staffing cut-l:tacks,wOi1ld make the delivery ofVRSsetvices co~siderably slower He w.d that she wanted to, stress that the quality of service would be missing.- WM, -one of the clients who attended the press conference, ~saidthat when the 'grievor telephoned her, she said that she was being laid. off When WM expressed. concemthatVRS services were going to be'" " ., dropped altogether, the grievor assured WM that she did not have anyWng to worry about. ( "' 8 The testimony from, those who were telephoned but did not go to the press conference was similar HY, who was first on the waiting list, testified that on the telephone the grievor said that her termination as a VRS counsellor could.,make HY's wait on the waiting list even longer -, I I ,~ FD testified that on the telephone, the grievor advised her that her case would be given to another VRS workers with a big case load and that as a result,. her needs could take a longer time to be met. The testimony of witnesses who attended the press conference differed considerably over I what the grievor had said. MK, an applicant with whom the grievor had never spoken over the telephone, insisted that at the press conference the grievQr told him that VRS services were being abolished or wiped out in Chatham. DO stated that at the press confe~ce, the grievor said to , . the group of four protesters that she did not know what would happen with VRS wdown the \ road " He indicated that he thought that a female reporter from a radio station in Chatham had said at the press conference that VRS services were going to be aboli~ed. DA testified that at the press conference, ML asked the grievor if VRS services would be terminated and the grievor replied, "eventually" According to DA, the grievor ,also said that the outcom~ was uncertain. WM testified that at the press conference, she told repo~rs that she was concerned about VRS services not continuing, but that the grievor did not tell ,her that. She' '~d, that this. "was a; .]', conclusion 'that she had drawn, in the sense ,that she was afraid that the abolition of ,the grievor's position might have been a first step toward this end. I i...'9 ( 9 Ms. Patricia Sparks,'an Income Maintenance Officer '~d Union Steward at the Chatham . Office of the, Employer, testified that during the press conference she.s~i1t about'.90% of her time with the grievor and her two small ,children She testifie<i that at the press conference, when the clients aSked the grievor what was going to ,happen to them, the gpevor said the VRS programme would still exist and nothing would happen to them. Ms. Sparks further testified that. when one client suggested' that a friend had said that VRS woul<i be.abolis~ed both she and ~ the ,grievor were' dumbfounded and the .grieyor, .told thecijent that spe ,did not believe the programme was 'going to be terminated. At that time, Ms. Sparks said, she, was right beside the grievor According to Ms. ,Sparks, the grievor never gave any indj~tion at all that in the long ., term the VRS programme would be eliminated. t ,- It 'can be seen from a review ,of .the above that the weight of the evidence w~ against concluding that at the press conference, the grievor said that the VRS programme was going to . . beabolished. Accordingly, we find as a Jact. that the grievor djd not make thjs ,suggestion either in bet. telephone' calls or at the press conference.." ( -l '( (2) Conflict of Interest and Breach of Trust ~ In, his investigation, Mr Earle essentially concluded, ~at tl)e gmevor ,entered upon a conflict of interest in' two respects: (i) by recruiting clie~ts to. server ber .own interests in the success of the press conference even though she knew or should have known that the information she conveyed in het telephone calls would upset and alarm them, and, (ii) inducing the attendees ~ -~-- - ( :..;. 10 to serve her own interests by carrying their' protest to the constituency office of the local M.P P , ,Mr Randy Hope. We find that the evidence supports the first ground of conflict of interest and breach of trust; however, the"evldence'does not support the conclusion that the grievor induced 'the attendees to go to Mr Hope's constituency office. " At the hearing, the grievor attempted tojustify;hertelephonecalls by suggesting that they '... were the first step in ethically terminating her long standing professional :relationship with them. She also suggeSted that it was in her clients' interests to advise them of a development that could affect the quality of service to them and give .them a chance" to voice their concerns. On the latter point, the grievor observed that the clients with whom she worked: had little education and didn't usually have the opportunity to speak for themselves. She said that she believed that the press conference was an opportunity..to do just that. I ~ These justifications, however, were quickly eroded in, ,the cross-examination of the grievor The grievor agreed that as' a matter of common ~se and social work training she was aware that one of her trust-like fiduciary duties toward her clients was to treat them with dignity and respect. The grievor also conceded that given the j>9we'rless and VQlnerable nature of her clients, it would not be in accordance with her fiduciary duty nor part of an ethical termination (- procedure to telephone them and give them information that she must have known would alarm and upset them in order to induce them to, attend the press conference calledby-Ms~ Gasselmanc. ~~, ::'>J~: I "- { I \ '\ 11 The grievor. agreed that she knew that some, of her clients were vulnerable and easily upset. As to WM;~ one of the clients who attended. the press conference, the grievor' agreed that she was confused and afraid at the press conference. With ,respect to a ,client like' WM, the grievor agreed, it was fair to say that a VRS counsellor had 'to be careful to explain things'. The grievor also agreed that the necessary explanation could not be made in a quick telephone call. When asked why she made the call knowing this about WM, the grievor said that she told WM / that the telephone call was to' be followed up with 'an interview /- Considering (1) the evidence elicited from the grievor in. this cross-examination, (2) the proximity of the telephone calls to Ms. Casselman's assertion to the grievor that she needed clients to-make the,press conference effective; and (3) .the grievor'slikelystate of mind just one - day after -she became angry and incensed upon hearing that her position, had been declared surplus, we are led to conclude that the grievor's telephone calls were not motivated by an I -, \ , altruistic,desire to serve her clients' best interests, rather, the dominant motivation of the grievor seemed to be to accommodate Ms. Casselman's desire for maximum press at a press conference that might, at best, induce the Employer to abandon its plan to cut back the number of VRS counsellors and, at worst, publicly embarrass the Employer We hasten to add that despite reaching 'the above conclusion, we 'have no reason to doubt that the grievorhas always been a compassionate social worker with high standards of professionalism. It seems likely to us that if Ms. Casselman's request had not come upon the heels of the news that the gnevor's position' had been declared surplus, the grievor would have ~ -~-- ( c". \ ~ 12 reflected upon Ms. Casselman's request and decided against making the telephone calls in \ question. In this regard, we note Ms. Casselman's testimony that the grievor initially was reluctant to accede to her request and only agreed after being pressed. It seems to us that the -- calls were made when -the grievor was in an agitated and distressed, state, and would not have otherwise occurred ~ Turning to the Employer's claim that at the press conference, the grievor entered upon a further conflict of interest and a breach of trust by inducing ML, DO and DA to carry their protest to the constituency office of the local M.P.P ,Mr Hope, \ we conclude that this claim is unsupported by the evidence. While MLteStified that thegrievpr suggested this move, DO testified that ML came up with the idea of ,going to Mr Hope's office. WM testified that she / thought that a male reporter who interviewed the ,group at the press conference suggested going to Mr Hope's office. f \ The grievor emphatically denied in her testimony making any such s~ggestion. According to the grievor, as she was about to go upsta,irs to her officer after the press conference, ML, DO and DA approached her ~ying they wanted to go to Mr Hope's office. They then asked her where it was and, according to the grievor, she replied that she thought that it was on Adelaide Street. The evidence' of Ms. Patricia Sparks, the grievor's co-worker who spent about 90% of her time with the grievor, suppo~ the grievor's version of events~ Ms. Sparks said that in the conversation the grievor had with the clients after the press conference, no one raised the subject of going to Mr Hope's office. . ,~ ~ I 13 In light of the divergence in, the evidence: ofML, DO and WM regarding the origin of the suggestion to go to Mr Hope's office, we muslconclude that the weight of the evidence does not support the Employer's, claim that the suggestion in question -originated with the grievor Rather, it seems more probable that, as the grieyor testified with corroboration from Ms. Sparks, the suggestion originated somewhere else. (3) Breach ,of Confidence There seems to be little doubt that, ,at least as a t~hnical matter, the grievor committed a breach of confidence at the preSs conference by identifying her clients and the wait-listed applicants ~ VRS recipients without requesting prior pennissioQof them and without notifying the listener .that this information was given in confidence. The grievor admitted in her, teStimony that, without obtaining prior permission, she identified these people to Ms. Cassleman and the " latter introduced them to the press. Obviously, Ms. Casselman was not given to understand that r she had to adhere to ~y injunction of secrecy '\ The evidenceo! the clients and appli~ts varied. ML stated that the grievor introduced him, DO and DA directly to the press. DA's testimony was similar; however, .he added that the - grievoradvised the reporters at the press conference that since they were clients, the press could only use their first names. WM testified that the grievor introduced her to the press, but that \ before doing so asked her permission. She expressed the opinion that the gnevor asked prior permission because she knew how nervous WM tended to be and wanted her okay The - ------- - ( ( ;;:..;p '" /-- - 14 grievor's co-worker, Ms. Sparks, testified that Ms. Casselman introduced the clients and applicants to the press. Ms. Casselman testified that she figured out who were the clients and applicants without any assistance from the grievor because she knew virtually everyone else who was in attendance. ( 1 As can be seen, there was considerable divergence in the evidence upon this point. ,~. However, the weight of the evidence supports an inference that ,the' grievor ei~er directly, or indirectly through Ms. Casselman, was responsible for identifying ML, DO, DA and WM to the press. Further, the weight of the evidence suPPOrts the inference that at least with respeCt \ to three of these individuals, the grievor did not seek priorpermissiOIi. It also seems that the grievor did ~ot convey any impression either to Ms. Casselman or the press that tbey were under " any obligation not to point out to others that these people were VRS recipients or applicants. \ / At the time, the grievor must have realized that this ,constituted a breach pf her obligation 9f confidence. Upon cross-examination, the grievor reluctantly conceded that th~ fact that a person is a recipient or applicant for social assistance is very personal. She also conceded that she realized that she had an obligation not to disclose in ,a public m~er any personal information regardIng her clients. The grievor claimed, however, that she felt justified in ii1ferring that if the clients and applicants who showed up did not want to speak to the press they ~ would not have attended the press conference. ~- -- ...:)) '!~ " \ '> 15 It does no~ seem, to u~ that pnor pennlssloI,l can be infefT~ in the wholesale manner suggested by the grievor The weakness In this line of reasoning was highlighted in the cross- examination of the gnevor Counsel for the Employer observed that the grievor herself had attended the press conference, yet as she indicated on direct examination, she had no intention ,of speaking to the press. We must conclude that when sh~ identified ~e clients anq applicants in a public manner and witbout seelong their priorpennission, the grievor committed a breach of confidence. What makes this brea~h merely technical in nature, however, is that all four, ML, DO, DA and WM, unanimously indicated in their own testimony U1atthey had no objection to speaking to the press and it would not have made any difference ~ them if the grievor had asked their prior permission. This evidence reduced to a merely technica11evel what might otherwise might have been a serious breach of duty . ,- I I '-' i IV. CONCLUSION In sum, then, we have concluded that the grievor entered into a contlict of interest and breach of trust when ,she telephoned her ~lients in an effort to induce as many as possible to attend the press confereJ}ce and thereby contribute to its success. We also have found that at the press conference, the grievot committed a technical breach of confidence when she failed to ask prior permission before identifying in a public way the clients and applicants who were in attendance. In light of the fact that the other grounds upon which the Employer based the ~::, (." \ ( 16 seven-day suspension were not sUPpQrted in the evidence we conclude that the suspension must be reduced. We have decided that a two-day suspension should be substituted. ~ This reduction in discipline is not only based upon our conclusion that only some of grounds upon which the Employer acted were proven but also upon our conclusion that but for the distress of the grievor at the time of the request from Ms. Casselman, she never would have departed from her usual high standards of professionalism and made the telephone calls in question. The grievor is entitled to be compensated for the five extra days that she spent on suspension and her disciplinary record should be amended to conform to the findings of fact of the Board. We will 'retain jurisdiction pending implementation of this award. DATED alLondon, Ontario, this \2tlday of Hay, 1995. ( v -" ( R. I oberts, Vic:e-C,tlairperson r' ~4 I concur/ - Ed. Seymour, Union Member I . I concur! m '5 1)9"~ /' Mic;nael O'Toole, Employer Member !