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HomeMy WebLinkAbout1994-2442FLEMING98_09_11 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS t80 DUNDAS STREET WEST SUITE 600, TORONTO ON M5G tZ8 TELEPHONEfTELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G tZ8 FACSIMILEfTELECOPIE (416) 326-1396 GSB # 2442/94,0039/95,2801196 OPSEU 95C266, 95C422, 97B293 .' IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECI1VE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano Public SefVlce Employees Uruon (Cleo Flemmg) Grievor - and - The Crown m Right of Ontario (Mimstry of Consumer and CommercIal RelatIons) Employer BEFORE D.J.D LeIghton Vice-ChaIr FOR THE Margaret Keys GRIEVOR Gnevance Officer OntarIo Public Service Employees Uruon FOR THE Bnan Fukazawa EMPLOYER Counsel, Legal SefVlces Branch Management Board Secretariat HEARING July 2, 1997 November 26, 27, 1997 February 26,27, 1998 March 11, 13,26,27, 1998 April 24, 1998 INTRODUCTION On January 8, 1997 Cleo Flemmg was dismIssed from her pOSitIOn as Customer ServIce LIaiSOn Officer m the Mirustry of Consumer and Commercial RelatIOns, RegIstratIOn DlVlsIOn, pursuant to sub-sectIOn 22(3) of the Public Semce Act which pernuts the employer to dismISS a pubhc servant for cause. A gnevance filed January 9, 1997 alleged unjust dISmISSal and sought remstatement WIth full back pay and benefits, and removal of all assocIated letters and correspondence from her personnel file. The letter of dismIssal alleged that Ms. FlemIng was bemg dismIssed because of disruptive behavIOur that created a difficult work environment and wruch was mterfenng With the effiCIent operatIOn of the office. The letter noted further despite repeated counselhng seSSIOns, warnIngs, temporary reaSSIgnments to other work locatIOns, and discIplmary actIOn mcludmg suspenSIOn, you have contmued to exhibIt an unwillingness to modify your behaVIOur and to work cooperatively WIth your colleagues and management. It was the Employer's View that although Ms FlemIng had worked for the government for twenty years, m the last SIX years of her employment she had become IncreaSIngly disruptive The Employer attempted to counsel Ms. Flemmg lrutlally to encourage her to work cooperatively WIth her peers and supemsors and Ms. flemIng was temporarily aSSIgned away from customer servIce after some fellow employees complamed about her m the fall of 1993 In the fall of 1994 she was dIscIphned by a letter of repnmand for several mCIdents, mcludIng yellIng at a fellow employee In February of 1995, she was diSCIplined WIth a one day suspenSIOn for mappropnate behavIOur With her supervisor Then on January 2, 1997 an mCldent occurred which the Employer claims IS a culmInatIng mCIdent and wruch subsequently led to Ms Flemmg's dismissal on January 8, 1997 The mCldent on January 2, 1997 mvolved a member of the pubhc and Ms FlemIng has admItted that she was rude to an mdlVldual that she was servmg. The Umon took the pOSitIOn that some dlsclplme was warranted for the mCldent wruch occurred on January 2, 1997, however there had been no progressive dlsclplme In trus case and, therefore, termmatIOn IS mappropnate. Ms. Flemmg has a learmng dlsabihty wruch has been Identified smce her diSmIssal. Now that It has been Identified, Ms. FlemIng can learn to Page 2 of 21 compensate for It and the Gnevor has good prospects of working cooperatIvely and successfully agam m her posItIOn. Ms. Flemmg's gnevance for the one day suspensIon and the warrung letter were also before the Board. The Umon's posItIOn IS that the suspensIOn was too harsh, gIVen the CIrcumstances. THE EVIDENCE- The Employer called fourteen Witnesses to gIVe eVIdence In this case regardIng mCIdents that stretched back to 1993 and, as noted above, much of which mvolved such mCldents as squabbles over the volume level of a radio and comments to fellow employees that were mconslderate I have carefully considered all the eVIdence at the heanng, however I will summanzeltbnefly Ms. Flemmg began workIng for the government m archives on a contract baSIS m 1975 She began With the Mimstry of Commercial and Consumer RelatIOns as a Data Entry Operator m 1979 At the tIme of her dIsmissal she was a Customer SefV1ce Liaison Officer m the Personal Property Secunty RegIstratIOn Branch of the Mimstry As such, she served members of the publIc assistIng them WIth personal property secunty registrations and searches By 1993 the front lme workers were bemg reqUired to do all necessary dutIes mcludIng regIstratIOn, data entry and service to the publIc Mr Harry Hergash, Deputy DIrector ofChent ServIces of the Branch, and Ms Katharine Smith, DIrector of the Branch, testIfied about the Employer's reasons for dlsrmssIng Ms Flermng. Mr Hergash met Ms. Flermng m 1991 when he Jomed the Branch. Previously he had been With the Ontano Secunty Commission. On June 16, 1993 Mr Hergash received a memorandum from Beverly Herbert, Ms. Flemmg's supervisor, complammg about the Gnevor The Gnevor had accused Ms. Herbert of lookmg at her m a sexual way Ms. Herbert demed that tills was true and stated that It was causmg her harm. Ms Herbert Withdrew thiS complamt subsequently and It was not Investigated further On September 22, 1993 a complamt from Nancy Walters and other members of the staff was made to Ms. Herbert about Ms Flemmg. The complamt mvolved an mCldent where Ms Flermng had asked Ms Walters to turn off her radIO Ms Walter's felt that the request was unfair Page 3 of 21 and Ms. Flemmg only asked because she had been asked by someone else to turn her radio off. There was eVIdence of comments made by staff mvolved m the disagreement, none of wruch IS matenal to trus decIsIon. Mr Hergash, who was Ms. Herbert's supernsor, dIscussed the mCldent With rus own supervIsor, Ms SmIth, and they decided that they could not Judge between the stones as to what really happened regardmg the radIo They noted that there were very emotIOnal responses from people because Ms. Walters was pregnant at the time so a decIsion was made with the Gnevor's agreement for her to take an actmg assignment With Company's Branch as an Articles Control Clerk for three months from October 25, 1993 to January 21, 1994 Trus was not meant as discIpline and the Gnevor returned to her home pOSitIOn m January of 1994 The Letter ofWarnmg In October of 1994, a senes ofmcldents occurred With co-workers and the Gnevor On October 13, Doree Reyes, a co-worker, called the Gnevor a "Jerk" and alleged that the Gnevor had called her names as well. Ms. Allen, the Gnevor's supervisor, sent both women a memo saYIng not to call each other names. Mr Hergash was of the VIew that Ms Allen had handled the mCldent suffiCIently and dId not mtervene The letters were not put In either woman's personnel file On October 25, 1994 another co-worker complamed that she was uncooperative With her and yelled at her m front of a customer A day after thiS Incident Mr Hergash and Ms SmIth met With the Gnevor and counselled her to modify her behaVIOur and work cooperatively with the team. Ms. SmIth asked the Gnevor to conSider her rustory of conflict wIth so many In the office Ms. Allen also testified as to the mCldents that led to a warnIng letter m November of 1994 The eVIdence was substantially the same as that given by Mr Hergash and Ms SmIth. On November 18 1994, Ms. Allen complamed to Ms. SmIth and Mr Hergash that Ms. flemIng was "haraSSIng her" Ms Allen testified to vanous problems supervIsmg Ms flemIng. It was Ms. Allen's eVIdence that Ms Flemmg often accused her of bad management and harassment. She testIfied that she wanted the Gnevor to stop bemg cntlcal of her management style and spreadmg rumours about people bemg SIck because of her The Gnevor started m Ms Allen's supervISion m October of 1994 and It ended WIth her transfer to another supervIsor m February of 1995 Page 4 of 21 ~ - These mCIdents through the fall of 1994 resulted m a letter ofwarnmg dated November 25, 1994 from Mr Hergash after consultatIOn With Ms. SmIth. The letter begms by notIng that over the last two years Ms. FlemIng had demonstrated an mabilIty to work cooperatively With co- workers and managers. It referred to a complamt from co-workers which came out of the radIo mCIdent and resulted m her temporary assIgnment to Company's Branch. It also referred to the name-callIng InCIaent on October 13, 1994, the mCldent on October 25, 1994, and the complamt of the manager dated November 18,1994 The letter stated as follows Your ongomg unwillIngness to modify your behavIOur and work cooperatively With your co-workers and your managers IS creatmg a difficult work envIronment and mterfenng With the efficient operatIon of the office. This letter, therefore, constItutes a formal warmng that any further mCIdent of smlilar disruptIve behavlOurs m the workplace will lead to diSCiplinary action up to and mcluding dlsrmssal. A copy of thIS letter will be placed In your corporate personal file. After recelvmg the letter of WarnIng Ms. Flemmg went to see Ms SmIth. She told Ms SmIth that Ms. Allen was gettmg on her nerves and explamed why she wasn't gettmg along wIth Ms. Reyes any longer There was a second meetmg on that day, after 5 00 pm, when the Gnevor stated that she wanted the warmng letter removed from her file Ms SmIth also testified that Ms FlemIng had been offered counselling through the employee counsellmg sefVIce which IS a confidentIal sefVIce She said that Ms FlemIng did not want counselling. Mr Hergash testIfied that teamwork was reqUired under the new genenc Job descnptIOn and that the changes to the Job had caused stress and some COnflict for front line employees. He stated that With fewer supervIsors front lme staff were also reqU1r~d to solve theIr own problems Ms. Smith testified that m October of 1994 SIX members of the staff, mcludmg Ms FlemIng, made a complaint against theIr manager, Ms. Allen. Partly as a result of these complamts and the name callIng InCident between Ms. Reyes and the Gnevor, she deCided that there had been so much change, downslZlng etc , that some traImng on team buildIng and stress management would be appropnate for the whole Branch. A senes of three workshops were put on for the employees of the Branch. Ms Smith testified about other COnflICtS WIth Ms Allen and Ms FlemIng which occurred m November mcludmg a disagreement about time spent on the Umted Way fundraIsmg and comments by the Gnevor that she was stressed out followed by the statement that It was a Joke Throughout tills tIme Ms Flemmg often came to Ms. Smith's office If there was a problem. Ms. Page 5 of 21 Srmth testified that she recommended to Ms. Flermng that she try and work out her differences With her Immediate supemsor rather than come to her Ms. Flermng was not dIscIplmed for any of these mCIdents. The One Day SuspensIOn On Januag 30, 1995 Ms. Flermng's supervisor, Ms Allen, complamed to Ms Srmth m wntmg With a copy to Mr Hergash that on January 26 she had felt threatened and scared by the actIons of Ms. Flermng. It was Ms. Allen's eVIdence at the heanng that the confltct With Ms Flermng had begun nght from the first week that Ms. Flermng had begun to work under her supervIsIOn m the fall of 1994 and there had been one mCldent after another smce that time Her eVidence of what occurred on January 26 IS best summanzed by her letter. I believe that the conflict has reached a pOInt where I am not only constantly stressed, but I also feel that It may escalate to somethmg very dangerous. I feel thIS way because of the manner m which Cleo acted last Thursday m my office Cleo came to my office at about 2 30pm and handed me a speedy memo She was askmg for three hours offwork for an 11 45am appomtment. I asked her why she would give me a note, askmg for time off on Fnday, when she had failed to give me a note for tIme taken off on that day She told me that she was only away for a few rmnutes. I told her that she was 35 mmutes late She argued about the tune and started, agaIn, to tell me that I have bad management skills and that I am accusmg her of stealing tIme from the office She also told me that I am always Plckmg on her I explamed that I was only remmdmg her that the reqUIrement to mform the manager IS the same whether you take thIrty mmutes or three hours. She kept on argumg and telling me how bad a manager I am, I told her to stop and to leave my office. She stopped talking but contInued staring at me for a few rmnutes. I told her I will call someone If she does not leave my office and that she IS harassmg me. She still did not leave my office and contmued stanng at me. Tills time she looked disturbed and making faces at me At one pomt she stuck her tongue out. I spoke louder so that staff outSIde of my office would hear As I remembered that she did not like to have her picture taken, I told her that I had a camera m my office and would take her picture If she did not stop She moved near the door of my office, but contmued to make faces at me Agam I told her to leave or I would take her picture She finally left when I stood up and pretended to open my drawer Later, when I met her m the hallway, she agam made faces and stuck her tongue out at me Ms Allen's Said that Ms. Flemmg was adversely affectmg not only herself, but others m the office Page 6 of 21 After the mCIdent of January 26, 1995 Ms. SmIth smd that Mr Vibert Perreira, a Human Resources Consultant m the Mimstry who had been mvolved m adVIsmg her throughout, was asked to meet WIth Ms. FlemIng and Ms. Allen, m Ms. SmIth's presence, to mvestIgate what happened. Mr Perreira testIfied that he thought both the Gnevor and Ms Allen could have handled the mCIdent better Ms. SmIth considered the results of tills meetmg and, after diScussIon WIth Mr Hergash;- deCided to suspend Ms. FlemIng for one day The letter of suspenSIOn was delIvered to Ms. FlemIng on February 2, 1995 CounsellIng was agam offered and at tills pomt Ms. FlemIng deCIded to accept It. InCidents Between the SuspensIOn and TermInatIOn Ms FlemIng was transferred to a new manager, Elame Terrelonge, who supervised the Gnevor for SIX to seven months There was some eVIdence from Ms Terrelonge of some performance problems WIth Ms FlemIng. She appeared exhausted and on one occaSIOn dunng a tralmng session began to nod off Mr Hergash's eVIdence was that she was not disciplIned for any of tills and he made It clear that the Employer did not dismiss Ms Flem1l1g for poor performance. Therefore, the eVIdence gIven by Ms Terrelonge IS not matenal. In June of 1995 Ms. Herbert, who was a Manager m the Branch, complamed m wntmg for a second time that Ms. FlemIng was allegmg sexual harassment agamst her Tills complamt was referred to the W.D.H.P mvestlgator However, nothmg was done after Ms Herbert retired m November 1995 Ms Herbert was vehement m her demal of any harassment ofMs FlemIng. The "pokmg" mCldent occurred In December 1996 Ms. Allen had asked another co- worker of Ms. FlemIng's to show her a procedure on the computer Ms FlemIng had been trmned on tills procedure previously, but had forgotten how to do It. Ms Allen asked her where her notes were and Ms. FlemIng mltIally could not find them. Ms Allen looked over across a desk and noticed Ms. Flemmg's notes and then handed them to her Ms. Allen tapped Ms. FlemIng on the shoulder to get her attention m order to hand her the notes Ms FlemIng exclaimed that she was hurtmg her and accordIng to Ms Allen wanted to go to the hospital. Ms. SmIth testIfied that over the years Ms. Flemmg had had dIfficult relatIOnsillps WIth three managers, Ms Herbert, Ms. Allen and Ms Terrelonge. Denzel Burnett was Ms flemIng's Page 7 of 21 - last manager and before ills retirement In 1996, Ms. Flermng saId to illm that she hoped he wouldn't stutter when he made ills speech. Ms. SmIth concluded that In the end the Gnevor couldn't get along WIth Mr Burnett either Mr Burnett did not complaIn to anyone about tills remark, and Ms. FlemIng was not dIsCIplined. Mr Hergash acknowledged In cross-exarmnatlOn that Ms Flermng was not dIsCIplined between F ebruaI-y" 1995 and her ternunatlon In January of 1997 He said there was a contInUatlOn of counselling "to meet the ongoIng pattern of behavIOur whIch had happened SInce 1991 " The only eVIdence of counselling dunng tills penod IS when Mr Hergash counselled Ms. Flermng for operung a letter marked confidential, when she was processIng the mail. It was also Ms Srmth's vIew that between the notIce of the one-day suspensIon and the terrmnatIOn there were ongoIng problems of the same sort WIth Ms. Flemmg, although nothmg reqUired dlsclphne The Final InCIdent Anna Campagna, a fellow Customer Service Liaison Officer, witnessed the InCident In January of 1997 when Ms. Flemmg yelled at a customer and gave eVidence at the heanng. Ms Campagna was the one who was actually Imtlally dealing WIth the customer and Ms. Flermng was domg the searches When Ms. Campagna took the firushed searches to the customer, the customer looked through the papers and said one was mIssmg. There were supposed to be SIX. Ms Campagna called Ms Flermng to the counter and told her that there was a rmssmg search. Ms Campagna testified that Ms. Flemmg was upset when she amved at the counter and grabbed the papers rougWy from the customer She testified further that Ms Flemmg didn't tillnk there was anytillng rmssmg and that she was very rude and very loud In her statements to the customer She was standIng nght beSIde the two of them throughout thiS InCIdent. She SaId that the mCldent went on for about five mInutes, or a little more The customer appeared shaken to Ms Campagna. Ms Campagna asked the customer If she wanted her to tell her manager what had happened and the customer saId no, that she dIdn't want to get mvolved. She saw Judith Thompson, a fellow Customer ServIce LIaISOn Officer, approach Ms Flemmg to speak to her, but she dId not hear the conversatlOn. Ms. Thompson testIfied to what she observed on January 2, 1997 when Ms Flermng yelled at a customer Ms. Thompson was about ten feet away from where the Gnevor was Page 8 of 21 servmg a customer at the counter She overheard loud talkIng, loud enough to attract her attentIOn. She did not remember exactly what Ms. Flemmg was saYIng, but she was lInmedIately aware that Ms Flemmg was spea.k1ng mappropnately to the customer She recalled Ms Flemmg saYIng "It's all your fault" to the customer or somethmg sImilar to that. She noted that the customer looked nervous and she couldn't hear the customer's VOIce. Ms. Thompson testIfied that she felt like saYIng somethmg to Ms Flermng lInmedIately, but she did not want to make the SItuatIOn worse. She thought the mCIdent went on for about five rmnutes. When the mCIdent was over she went to Ms Flermng's desk and politely asked her "How would you like someone to speak to you as you did to the customer?" She testified that the Gnevor Said In a harsh and loud VOIce "Mind your own busmess." Ms. Flermng told her to go away and that the matter dId not concern her Ms. Thompson replied that It was her busmess because they were all m the busmess of servmg customers. She was told agam to go away by Ms Flermng. Ms. Thompson went to Mr Hergash to report what had happened to her At that pomt Mr Hergash went back to look for the customer who had already left. Ms. Srruth testIfied that Ms. Thompson, then-umon steward, also spoke to her about the InCIdent. Ms Srmth saId that It was Mr Hergash that mtervIewed the staff and the customer Ms SmIth discussed the matter With Human Resources and the ASSistant Deputy Mimster, Despma Georgas, and made the deCISIon to dismiSS Ms Flemmg. In cross-examInatIOn Ms Srmth acknowledged that she relied on the follOWing mCldents m order to make her deCISion to tennInate Ms FlemIng. She relied on the radiO mCldent; the mCldents leadmg to the letter of warnIng dated November 25, 1994, the mCldent WIth Ms Allen when Ms. Flermng refused to leave her office and was subsequently suspended. She relied on Ms. Flermng's allegatIOns that Ms Herbert was sexually harassmg her m June 1995, that Ms. Allen poked her In the neck dunng a traInIng sessIOn m December of 1996, remarks about her supervIsor Mr Burnett m December of 1996 That the staff were afraid of her was a factor Finally, she relied on the mCldent when Ms Flemmg yelled at a customer on January 2, 1997 She acknowledged that there was no dlsclplme on any of the matters between the suspensIOn m early 1995 and Ms. Flermng's tennmatlOn m January of 1997 Ms Smith stated that she would not have fired the Gnevor m 1997 If thIs had been the first mCldent. She stated that she and Mr Hergash bent over backwards to be helpful to Ms. Flemmg and to be tolerant. Page 9 of 21 THE GRIEVOR'S EVIDENCE Ms Flermng gave eVIdence for two days She testified first about the radIO mCldent and her eVIdence was substantIally the same as noted earlIer m the decIsion. The Gnevor had asked Ms. Walters to turn offher radIo because she didn't like her mUSIC and It was bothenng her The differences m eVidence about who saId what to whom after are not matenal to the decIsion. Regardmg the name-calling mCldent, Ms Flermng's eVIdence was that she asked Ms. Reyes for assIstance m settmg a date stamp and Ms. Reyes replIed "You Jerk, you Jerk, why are you cormng to me?" It was Ms. Flermng's eVIdence that she was called a name first, but she did adrmt to makmg the remarks "OInk. Omk." at least two tImes later m the day to Ms. Reyes as she passed her She testified that as she looks back now she sees that she was overly concerned to defend herself from the warmng letter about the name-callmg and that she must have appeared argumentative to her superVIsors when she refused to take the letter from Ms Allen, wruch was sent to both Ms. Reyes and herself, saymg that name-callmg was mappropnate She also adrmtted that makmg the remarks "Omk. OInk." were uncalled for and that It only made a bad situation worse The Gnevor's eVIdence on the October 25, 1994 mCldent when she was accused ofyelhng at a co-worker IS that Sandra Tash called out to her, ordenng her to open the mail. Ms Flemmg told her to mmd her own busmess. She Said she was readmg work manuals and It was Ms. Tash who made the comment "ThiS gIrl gets on my nerves." Ms Flermng testIfied to the mCldent whIch occurred WIth Ms Allen m her office on January 26, 1995 willch led to her one day suspensIOn. She stated that she went to Ms. Allen's office to ask for the three hours off m order to attend an appomtment. Ms Allen kept askmg her why she had not wntten a memo makmg the request over and over agaIn. She testified that she felt stressed out by tills encounter and told Ms. Allen that she now realized why another co- worker was on Sick leave, and that was because she had to work under Ms. Allen. She acknowledged that she was asked to leave and did not leave until the third request. She gnmaced because of what she described as the pam and agony of the mCIdent, and she doesn't remember stIckIng her tongue out. She also testified that she IS not afraId of haVIng her picture taken. She Page 10 of 21 was of the VIew that she was domg a very good Job m her work, but Ms. Allen was not recogmzmg it. Ms. Flermng testIfied that she thought Ms. Herbert looked at her m a sexual way She discussed tills concern With a W.D .H.P Counsellor who advIsed her to speak to Ms. Herbert and tell her that she didn't like her looking at her tills way Ms. Flermng did speak to Ms. Herbert m her office on June'21, 1995 Ms Herbert became very angry and told the Gnevor to leave, willch she did. She spoke to Mr Hergash about the IncIdent. She was not dlsclphned or counselled about It. In December 1996 the "pokmg" IncIdent occurred. Ms. Flemmg gave eVIdence that Ms Allen stood beillnd her and poked her three tImes m the nape of her neck. She turned and saId "I'm hurt," or "That hurts" Her memory IS not clear as to what happened after that, but she believes that she was the first one to complaIn to Mr Hergash and she told illm that she had a back problem and tills IS why the pokmg hurt. It was her eVidence that she didn't seek additional medical treatment smce she was already seeIng a physIotherapist for her back problem. Ms Flemmg testIfied as to the Incident on January 2, 1997 willch led to her dlsrmssa1. It was her eVIdence that Ms Campagna brought searches to her and saId "Here are seven searches to do" Ms. FlemIng looked at the papers and noted that on one form there was a signature that no person or corporatIOn was identified m part one of the form. So she did the searches and she told her that there was one search that was blank. She then went off to grab lunch and when she returned Ms Campagna was standIng over Ms FlemIng's computer Then she Said that the customer had noted that one search had not been done Another co-worker J01l1ed the two of them and saId "Here IS another search." Ms. Campagna took the searches and went back to the client. Ms. flemIng followed. Ms. Campagna had not allowed Ms flemIng to see the searches agaIn and she Simply handed them to the customer It was at thIS pOInt that Ms Flermng took the searches from the customer and SaId "I did the searches." Ms Campagna asked Ms Flermng why she was speaking so loudly and the client made a gesture like "It's ok" With her hands up It was at tills pomt that Ms Flemmg SaId to the chent "It's your fault." It was Ms. FlemIng's eVidence that she realized ImmedIately that she was wrong, but she didn't apologIze She knows that she would have sounded frustrated and that her vOice must have been a bIt raised She was frustrated because she had made a New Year's resolutIOn to do Page 11 of 21 , good work and she didn't thmk that she had made a mistake She spoke to Mr Hergash shortly after trus InCIdent and she admItted the statement that she had made to the chent. She recognIzed In her eVIdence that It was wrong to speak to a customer that way and that she shouldn't have done It. Ms. FlemIng testIfied that she had enjoyed workmg under other supefV1sors like Ms. Terrelonge, RuthYoster and Denzel Burnett. She testIfied further that havmg been home for a year now she recognIzed that she was too defenSive about makmg a mIstake and that she tended, therefore, to be argumentatIve With people For the last year she has been gettmg counsellmg from Dr Opheha MacDonald, and she trunks that she has changed. She now beheves that most of the mCldents that occurred could have been aVOided by her Dr MacDonald's EVIdence Dr MacDonald IS a regIstered psychologIst and has been m practIce smce 1983 The Employer agreed to her beIng qualified as an expert. Dr MacDonald saw Ms FlemIng once m July of 1991 Then she saw her on an mfrequent basIs between then and 1997 when she began to see her once a week for counselling. She testified that mltlally It was unclear what was wrong WIth Ms. FlemIng. Dr MacDonald ordered a battery of standard psychologIcal tests to be done mcludmg inter alia the Weschler Adult IntellIgence Test, SchematIC AperceptIOn and a Roshack. Dr Bruce Willock was the psychologist who did the testmg ofMs Flemmg. The results of the testmg showed that Ms Flemmg has a non-verbal learnIng disorder The general symptoms of tills disorder mclude dIfliculty learnmg. non-verbal InstructIOns are dIfficult for her to manage Amongst other symptoms Ms. FlemIng has the followmg which are common to trus disorder maccurately mterpretmg body and faCial expreSSIOns, a tendency to Interpret language literally; dIfficulty WIth Visual spacIal processIng; an mability to understand cnttclsm unless It IS explamed expliCItly; a tendency towards a smgle-mmded perspective Dr MacDonald testified that psychologists do not distmgulsh whether a learrung disorder IS an illness. She noted that the problem probably anses from a bram defiCIt. The treatment IS psychotherapy mvolvmg education and explanatIon of the disorder The goal m treatment IS to try to help Ms FlemIng learn that she has a disability and IS not a bad person. The psychotherapy IS Page 12 of 21 designed to assist Ms Flemmg on how to cope With her deficIt. In Dr MacDonald's letter of oplmon on Ms. Flenung's condition she stated. Psychological testmg suggests that Ms. Flenung has a non-verballearnmg dlsabihty People wIth tills non-verballearnmg dlsabihty often have trouble pIckmg up non-verbal cues m SOCIal situatIons Her difficulty m graspmg the subtleties of cause-and-effect relatIOnsillps m SOCIal situatIOns nught have played a slgmficant role m mterpersonal dilemmas she got caught up m at work. It IS likely that as Ms Flenung reports the extra tIme that she has had to reflect on and diSCUSS the problem has enabled her to gam perspective and create new ways for handlmg such problems. Ms. Flenung would benefit greatly from returnmg to work. Her general mood and self-esteem would be greatly Improved and tills would make It more likely that she could successfully return to work. She will need help m the return process to reduce the chance for gettmg mto more difficulty A supportive supefV1sor or co-worker who could help her figure what IS gomg on and how to react m upsettmg SOCial situations would be very Important. When asked about Ms Flemmg's prognosIs, Dr MacDonald said that Ms Flenung can learn to modrfY some of her behaVIour Smce begmnIng psychotherapy she has been able to conSider another person's perspective and she IS understandIng now that she sometimes nusmterprets what people say She IS now figunng out ways to get clanficatlOn and aVOid COnflict. Dr MacDonald recommended that a learrung disabled specialist do an assessment of the workplace and that Ms Flenung contmue m psychotherapy and Jom a learnIng disabled self-help group In cross-exanunatlOn Dr MacDonald was questIOned about certa1l1 statements that appeared m her opInIOn letter Dr MacDonald referred to taunts from co-workers and someone liftmg her skirt to her waIst to show underwear to Ms Flemmg Counsel for the Employer asked Dr MacDonald Ifhe could prove thiS did not happen would It change her opInIOn ofMs Flenung. Dr MacDonald testified that with thiS learnmg dIsorder mlsperceptlon was common. People With thiS type of learrung dIsability mterpret the world differently Tills could look like fabncatIon to others, but It IS not. Ms FlemIng's perceptIOn that others might be abUSIng or sexually haraSSIng her IS also part of the mlsperceptIOn symptom of the illness Page 13 of 21 EMPLOYER'S SUBMISSION Counsel for the Employer reViewed key pOInts In the eVidence He noted that Ms FlemIng was apologetic about some of the sIgruficant COnflicts between herself and others, but she still believes thIngs that Just didn't happen. Counsel argued that I should prefer the eVidence of Ms. Allen over Ms FlemIng With regard to the Incident on January 26, 1995 wruch resulted In the suspensIOn ofMs. Fleming. He urged me to find that Ms. FlemIng did stick her tongue out at Ms. Allen. I was also urged to find that Ms flemIng was not telling the truth In describIng the pokIng InCIdent; that, In fact, she was tapped on the shoulder Counsel also urged me to prefer the eVidence ofMs Thompson and Ms Campagna WIth regards to the InCIdent of January 2,1997 for wruch Ms. FlemIng was ternunated. Counsel argued that the InCident on January 2, 1997 was the culmInatIng InCident and, therefore, I should look at Ms flemIng's whole record. He argued that diSmIssal was appropnate given the record. Counsel for the Employer cited Greyhound LInes of Canada 22 L.A.C (4th) 291 on the proposItIOn that an employer may slap steps In progressive diSCIplIne If the mIsconduct warrants ternunatlon and further If the gnevor IS not capable of respondIng to corrective disciplIne then trus too would warrant terrmnatlOn. In Greyhound the gnevor was diSmIssed for beIng rude to a customer Counsel noted that there had been progressive diSCipline In thiS case a letter of warrung In November of 1994 wruch referred to InCidents In the fall, a dISCiplInary letter suspendIng Ms flemIng In February of 1995 for the InCIdent which occurred on January 26 In Ms. Allen's office, and the dIsmIssal for the InCident on January 2, 1997 Counsel argued that the Employer had reViewed the whole record In the last SIX years, and the attempts to counsel Ms FlemIng. He argued that the purpose of progressive dISCiplIne was to give the employee a reasonable opportumty to correct the conduct. She had been adequately warned and had not Improved her conduct at work. Counsel argued that Dr MacDonald's opInIOn was of limIted value to the Board SInce, In rus View, she only did half of the Job It was rus view that Dr MacDonald should have done aJob assessment and, In fact, the cntlcal aspect In hIS view now was whether or not Ms FlemIng would Page 14 of 21 be able to do the Job He also argued that Dr MacDonald's oplmon was based on Ms Flemmg's VIew of what happened In the workplace. Much of trus has been dIsputed. Counsel argued that the suspensIOn, wruch IS before the Board, be upheld because there IS clear eVIdence that Ms. FlemIng stuck her tongue out at Ms Allen. He argued that trus shows blatant dIsrespect for management and that a one-day suspensIOn was appropnate. He argued further that the one day suspenSIOn was an appropnate and logical next step after a warnIng letter gIven In Novemb~ of 1994 Counsel argued further, In the alternatIve, that If the Board decIded to reInstate Ms. Flemmg I should reVIew C.U.P.E. (Hart) and Mimstry ofMumclpal Affairs and HOUSIng [1985] G S.B 74/84 as an example of a case where a gnevor was reInstated conditIOnally He argued that Ms. Flermng should be given no back pay and that the time from her dlsrmssal to any reInstatement should count as a suspensIOn. If another InCIdent should occur, the Employer should be perrmtted to use her pnor rustory to prove that dIsrmssalls warranted. Ms. Flermng should contInue to get counselling. Counsel also cited the followmg cases In support of rus subrmsslOn. OPSEU (Chung-Wal Wa) and the Mimstry of TransportatIOn and CommumcatIOns [1986] G S B 598/85, OLBEU (Reed) and L.C.B.O. [1980] G S.B 50/79, ITT Cannon Canada [1990] 15 L A.C (4th) 369, IntercontInental Packers Ltd. [1990] 16 L A.C (4th) 328 UNION'S SUBMISSION Umon Counsel Withdrew the gnevance about the warnIng letter Issued November 1994 at the begmmng of her final argument. Her submiSSion related to the suspensIOn of one day and the dismIssal. Counsel argued that thiS suspenSIOn was not warranted and that the terrmnatlOn was not appropnate because there was no progressive diSCiplIne Further, the Gnevor had acknowledged that her actIOns were wrong, and there were strong rmtlgatIng factors wruch the Board should conSider SubrmsslOn on the SuspenSIOn Gnevance Counsel argued that Ms. Flermng was not InsubordInate on January 26, 1995 Ms. Allen said that Ms. flemIng refused to leave the office, but the eVIdence from Ms Flermng was that she Page 15 of 21 was upset and took a few mInutes to gather herself before she left. Counsel for the Employer had argued that Ms. Allen had had no reason to exaggerate what had happened m the office. But Counsel for the Umon argued that she dId have a reason. Ms. Allen was aware that there had been a complamt by employees agamst her and she believed that It was mstIgated by Ms. Flemmg. Therefore, Counsel argued, It IS more likely that Ms. Flemmg did not mtentIOnally stIck out her tongue Counsel.f'omted out that Mr Pemera's eVIdence regardmg the meetmg between Ms SITllth, Ms Allen and the Gnevor on tills mCIdent was that both could have handled the mCldent better She argued that Ms FleITllng's behavIOur may have been mappropnate, but another warnIng letter would have been more reasonable SUbITllSSIOn on the DISITllSSaI Counsel argued that Ms Sffilth acknowledged that had the Gnevor's record been clean she would not have termmated her However, she argued that the long list of reasons or mCldents for willch Ms Flemmg was not disciplined did not support a discIpline record and that the Employer could not now rely on these mCIdents to bolster the termInation. She emphaSized that there was no discIpline and no record of counselling, between February 1995 and January 1997 The Employer can not be permitted to rely on anythmg that happened In thiS penod If there was no formal discipline Tills then covers mCIdents With regard to Beverly Herbert and ElaIne Terrelonge In the case of the latter, tills behaVIOur could have warranted dIsclplme, but the Employer chose not to even put a letter on the employee's file Counsel argued that vanous other mCIdents, the comment to Mr Burnett and the pokmg mCIdent With Ms Allen, did not result m diSCIpline and should not be part of any record that supports termInation. Counsel argued that the radiO mCldent of 1993 which resulted m a secondment willch was non-disciplinary can not be used to bolster the terrmnatlOn. The confllctmg reports as to what happened, In fact, do not matter At the tIme, Mr Hergash deCIded not to figure out what had happened or whom to believe. He arranged the temporary assignment of Ms. FleITllng to allow everyone to cool off. Counsel for the Umon Cited Air Canada [1981] 4 L A. C (3d) 68, a deCISion of Arbitrator ShIme. ArbItrator ShIme held that there are llImts to how far an Employer can go back to attempt to use mCIdents where there has been no diSCIpline to support dISCIpline m a recent mCIdent. Page 16 of 21 ~----- Counsel pomted out that much of Ms. Allen's eVIdence With regards to difficulty m superVISIon of Ms. Flemmg related to performance SInce Mr Hergash testified that Ms FlemIng was not termmated for poor performance but for mterpersonal problems With peers and managers, tills eVIdence IS not relevant. Counsel also pOInted out that In dlsnussmg Ms. Flemmg Ms. Snuth rehed on mCIdents that were not proven.~.por example, Ms. Snuth stated m her letter and In her eVIdence that co-workers were afraId of Ms. Flenung. However, when Umon Counsel cross-exammed each Witness on tills pomt only Ms. Allen Said she was afraid of Ms. Flemmg. In Counsel's submIssIon, the Gnevor has admitted that she has had COnflIctS WIth people m the workplace The Gnevor has also adnutted that she was rude and grabbed the searches from the customer on January 2, 1997 Only the length of tills mCIdent IS disputed between the Employer and the Umon. The difference m the perceptIOn oflength of tIme that the mCldent took may accord with the Dr MacDonald's eVidence that Ms. Flemmg does not have the same perceptIOn as a normal person. Counsel argued that the tnggenng event for thiS Incident was also the non-verballearnmg dlsabihty willch has now been Identified and IS a strong nutlgatmg factor to be conSidered by the Board. In Counsel's submiSSion Dr MacDonald also gave an oplmon that Ms. Flemmg can and has shown change In behavIOur Counsel argued that Ms. Flenung IS an employee of long serVIce and thiS, too, IS a strong mitigatIng factor Her first letter of dlsclplme occurred after mneteen years of service. Counsel revIewed the cases cited by the Employer and argued that none of these are persuasive given the facts of thiS case. Counsel argued m summary that there has been no progressIve dlscIplme m tills case, that there was a sIgmficant dlsabihty only recently diagnosed and, therefore, a short suspensIOn would be appropnate rather than termmatlOn. Counsel agreed to the followmg conditIOns If the Board decides to remstate Ms. Flemmg that Ms. Flemmg contmues counselhng With Dr MacDonald. Tills should not be compulsory but should be under Ms. Flenung's own control. There should be a reqUIrement that she be allowed tIme off for counselhng. Page 17 of 21 DECISION One Day SuspensIon Gnevance After careful consideratIOn of the eVIdence of Ms. Allen and Ms Flemmg as to the events of January 26, 1995, I have decIded that m all the circumstances the disciplIne was appropnate. I make tills deCISIon recogmzmg that there was clearly a personality COnfliCt between Ms. Flemmg and her supervIsor and acceptmg the eVIdence ofMr Perreira that both women could have handled It better I am not persuaded that Ms. Flemmg made faces or deliberately stuck her tongue out. There may well have been a rmsperceptlon of what occurred by Ms. Allen, but there does not seem to be any doubt that Ms Flermng openly cntlcIzed Ms Allen's management skills m a hostile and msubordmate manner It IS for thiS and the fact that thiS occurrence came on the heels of a warmng letter m November 1994 that I find that dIscIpline was warranted and a one-day suspenSIOn was reasonable. TermInatIOn Gnevance In dlsmlssmg Ms Flerrung from her employment the Employer relied on the mCIdent With the customer which occurred on January 2 of 1997 The Employer argued that tills was a culrmnatmg mCldent and, therefore, considered Ms Flemmg's whole employment record and decided to dlsrmss her However, the Employer put forward eVIdence of many mstances where the Gnevor was not discIplined or even counselled. Ms Smith Indicated m her eVIdence that she relied on many of these other InCidents, when she decided to dismiSS Ms Flermng. A culmmatmg mCIdent IS generally an mCldent Which, by ItSelf, would not warrant dismIssal. But when It has followed a illstory of misconduct and diSCipline for the rmsconduct, It does JUStify dismissal. However, arbitrators have generally held that the employer cannot rely on mCldents for willch the gnevor has not been diSCiplined to Justify dismIssal after a culrmnatmg mCIdent. In Greyhound the Board cIted Brown and Beatty Canadian Labour ArbitratIOn, 3rd editIOn, paragraph 7 4314, that complamts which are not brought to an employee's attentIOn are not to be conSidered as part of the employee's dlsclplmary record. Assummg that the employer IS able to prove the eXistence of a culmmatmg mCldent, It has been held that It must also show that the matters m that record on Page 18 of 21 wruch It relies were brought to the employees attentIOn before they can be raIsed to support the penalty Imposed. The Board In Greyhound also noted that. The whole purpose of correctIve dISCIpline IS to Inform an employee that certaIn conduct IS unacceptable and will not be tolerated. Employees have a nght to know when theIr behaVIour has been judged to be Improper so that they can eIther correct theIr behaVIour or dIspute the employer's assessment. Past InCidents, wruch the' employer conSiders to be examples of Improper conduct, should not be taken Into conSIderatIon In establisrung the penalty to be Imposed If they were not raIsed With the employee at the tIme and made subject of some dISCIplinary actIOn. (p 296) In Air Canada Arbitrator Srume SaId that Arbitrators tend to reject the resurrectIOn of these kmds of undIscIplined 1I1cldents First, because It IS often difficult as a matter of Justice to contest a past InCIdent where the eVIdence has gone stale as the result of such trungs as memory or lost records or mISSIng Witnesses. Second, where an employer, particularly one that uses dISCIpline, does not discipline an employee, the employee IS entitled to assume that the mistake or error was of a non-disciplinary nature and that hiS conduct or actIons fell wltrun a reasonable standard. In these situations the employee IS led Into a false sense of secunty about the standard demanded In that partIcular job Trurd, the pnor InCidents are often rejected on the underlYIng assumptIOn that the use IS part of a "kItchen SInk" approach to dIscipline. That approach IS one wruch seeks to Include all past InCidents In order to JUStify diSCIplIne for a recent InCident. There are a limIted number of cases where employers have thrown In everytrung possible that might have occurred In the past In order to bolster their disciplinary response In a partIcular situatIOn. The rejectIon of past InCIdents by arbitrators thus flows from a skeptICISm about an approach that at one tIme conSidered an InCident as non-dISCiplInary and then suddenly changed. With the above pnnclples In mInd, I find the eVidence of Inappropnate comments at Chnstmas parties and the like, datIng back to 1993, that were more In the nature of SOCIal faux pas, not summanzed In the eVIdence here, do not JUStIfy the dIsmIssal The Employer did not rely on these to make the deCISIon to ternunate Ms FlemIng and she was not dISCiplIned for these comments at the tIme. Many of these comments or InCidents are Simply too old to resurrect now, even If they ever Justified discIpline. Tills applies likeWise to the radiO InCident, for wruch there was no diSCIpline and all the "occurrences" between the one-day suspensIOn and Ms FlemIng's terrrunatlOn, some of wruch mIght have Justified dlscIplme Page 19 of 21 The eVIdence ofMs Flemmg's allegatlons agaInst Ms. Herbert should not be conSidered, gIven the pnncIples outlmed m Air Canada. More Importantly, the Employer made no effort to mvestIgate and estabhsh whether the complamt was vahd or made mahcIOusly Ms Herbert's eVIdence was that nothmg was done before she retIred m November 1995 It IS mappropnate to rely on this now to JUStIfy Ms. Flemmg's dlsrrussal. The Employer acknowledged that there was no dlsclplme between February 1995 and January 1997 Further, the Employer has not conVInced me that Ms. Flemmmg's fellow employees and managers - except Ms. Allen - were afraId ofMs Flerrung, a factor which Ms Srruth rehed on m makmg the decIsion to termInate the Gnevor The eVidence was that she was dIfficult to work With, and Imtatmg. Thus the record to be exarruned mcludes the follOWIng: the mCldents leadmg to the warrung letter of November 1994, the mCldent on January 26, 1995 WIth Ms Allen which led to a suspensIOn, and the January 2, 1997 mCldent of rudeness to a customer, whIch the Gnevor has adrrutted. While Ms Flemmg's behavIOur on January 2, 1997 was senous mIsconduct, It was not of such a nature that It alone would JUStIfy dIsrrussal And while I have found that the one-day suspenSIOn for msubordmatIOn was reasonable dISCIplIne m the CIrcumstances, It IS not enough, even With the warmng letter of November 1994, to JUStify Ms. Flemmg's termmatIon. Even If the mCldent WIth the chent had occurred close m tlme to the one-day suspenSion, It would not, m my View, JUStify termmatIOn m thIS case. But almost two years lapsed between the dlsclphne of February 1995 and the January 2, 1997 mCldent. Thus, after careful conSIderatIOn of the eVidence and the submiSSIons of Counsel, I have deCided that the Employer wrongly termmated Ms. Flemmg. The Umon has acknowledged on Ms Flerrung's behalf that some dlsclphne was warranted for the January 2, 1997 mCldent. Ms. Flerrung has also recogmzed m eVIdence that her treatment of the customer was wrong. Some dIscIphne IS warranted and I have deCIded that a five day suspenSIOn IS more appropnate. In decIdmg on an appropnate lesser penalty I have conSidered the mltlgatmg factors m this case. Ms. Flerrung IS an employee of over twenty years of servtce, who seems to have begun to have problems when the "genenc" position was established reqUInng Customer Servtce LiaISOn Officers to be tramed m all aspects of servtce dehvery Given the medical eVIdence of Ms. Flerrung's learmng dlsabihty, thiS change of Job dutles may well have aggravated her condItIOn. Page 20 of 21 Dr MacDonald suggested that a learnmg dIsabled specIalIst do an assessment of Ms. Flenung's Job and I would strongly recommend that tills be done. Ms Flenung has adnutted that she had COnflIcts With people and the eVIdence was clear that she was difficult and Imtatmg to her coworkers at times It would be helpful for all concerned - Ms Flemmg, her co-workers and supervIsors - to work With the specIalist m devlsmg a work regIme that will allow Ms. Flenung to aVOId the behavloor of the last several years of her employment. In summary, the gnevance for the dIscIpline for the mCldent on January 26, 1995 IS demed. The gnevance allegmg unjust dIsmissal succeeds A lesser penalty of a five day suspensIOn IS substituted. The Gnevor should be remstated Immediately, and except for the five day suspenSIOn, paId back pay With mterest and benefits Semonty should reflect the two suspensIOns I shall remam seIzed In the event that the parties have any difficulty Implementmg the award. Dated at Toronto tills 11th day of September 1998 D~ J. ., Page 21 of 21