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HomeMy WebLinkAbout1996-1357CASTILLO98_02_26 ONTARIO EMPLOYlS DE LA COURONNE CFK:JWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS ,\ 180 DUNDAS STREET WEST, SUITE 800, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (41~) 32~-138S 180, RUE DUNDAS OUEST BUREAU 800, TORONTO (ON) M5G tZ8 FACS/MILE/TELECOPIE (41tJ) 326-139tJ GSB # 1357/96 OPSEU # 96D944 IN THE MA TIER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETILEMENT BOARD BETWEEN OPSEU (Castillo) Grievor - and - The Crown in RIght of Ontano (Ministry of Community and Social ServIces) Employer BEFORE Owen V Gray Vice-Chair FOR THE M. McFadden UNION Counsel Koskie Minsky FOR THE K. Remson EMPLOYER Counsel Legal Services Branch Ministry of Commumty and Social ServIces HEARING May 2, September 9, 16, 17, October I and 2, 1997 -- .- DECISION , \ \ \ The gnevor is employed by the MmIstry of Commumty and SocIal Serv ices as an Income Mamtenance Officer By dIsciplmary letter dated July 15, 1996 she was suspended for 3 days for having allegedly been "verbally abUSIve" to a benefits recipIent during a visit to the recipIent's home on November 8, 1995 The gnevor denied the allegation, and gneved the dIscipline. As ongmally framed, her grIevance sought removal of the diSCIplinary letter from her record, three days' lost wages and benefits WIth mterest, an apology, damages for pam and suffering, and dISCIplInary actIOn agamst those responsible for suspending her The grIevance was referred to arbItratIOn. Durmg the arbItratIOn hearmg, the gnevor WIthdrew her claIms for any remedy other than an order settmg aSIde the suspension and awardmg compensation for wages and benefits lost as a result of it. The Mmistry's case agamst the grIevor rests primarily on the testImony of the individual she allegedly abused. That mdividual is the victim of a serious disabIlity, one that leaves her m pam so severe that she must take methadone and other powerful drugs on an ongomg basis. During her testImony she men- tIoned more than once that she had problems WIth her memory as a result of takmg those drugs, although she did not offer that as an explanatIOn for the gaps and mconsistencies m her testimony She also mentIOned more than once that the matter had gone farther than she had mtended. As I shall explam, I have concluded that her testImony is not a relIable baSIS for any conclusion that the grievor engaged in dIscIplinable misconduct. It is unfortunate, both for her and for the grievor, that the matter was taken as far as It was I do not propose to make matters worse by identifymg her by name. I shall SImply refer to her as "the clIent." Before the fall of 1995, the clIent's file was bemg handled by the Peel So- CIal ServIces department, pursuant to an agreement with the MmIstry As of ~.~ "-- - 2 - July 1995, the client was living with her 21 year old daughter, Sheri, and a then 17 year old mece, Michelle, of whom the client was legal guardIan. A male friend , \ of the chent's hved with them at that time. The benefits that the client then re- ceived reflected an added amount for the dependant MIchelle, a deduction for the orphan benefit that the client receIved from C P P as MIchelle's legal guardian, a "boarder" deductIOn WIth respect to SherI and a "co-resIdent" deductIOn WIth respect to the male frIend. In July 1995 the client was found eligible for a dIfferent benefits program due to her disabIlIty One consequence of thIS was that her file had to be trans- ferred to, and thereafter handled dIrectly by, the nearest MInIStry office The file was transferred to the MIssIssauga office, where the gnevor worked. It was ac- compamed by a report from the mumcipal worker who had been handlmg the file. His report suggested that effective September 1995 (when MIchelle would be 18 years old), MIchelle should be deleted as a dependant because she would be receivmg an inherItance of $22,000, that another "boarder" deduction should be added WIth respect to Michelle, and that the deduction for the orphan benefit should cease (as Michelle would receive It directly if she remained ehgible for It) The client then became part of the gnevor's caseload of 350 to 450 clients Efficiencies apparently dIctated that the newly arrived file be reVIewed first by a clerk, who would Identify what documentatIon and information was needed That clerk generated a "Venfication Checkhst." The gnevor was then to VISIt the client to address the Issues identified on the checkhst and help her fill out an updated application for benefits. In addItIOn to the clerk's checklIst, the gnevor had a computer generated "FBA Profile" dated October 25, 1995, showmg the calculatIOn of the benefits that the client was then receIving ThIS profile also showed that the chent's address had recently changed to Apt. 510, 12 Xxxx Street. ("Xxxx" is used here as an alias for a street name m MIssissauga, where the client hves. "Yyyy" WIll be used as an alias for another, dIstinctly different four letter street name in MIssIssauga.) In fact, the clIent had recently moved from Apt. 410,31 Xxxx Street to Apt. 510, 12 Yyyy Street. ~ ~ - 3 - On November 8, 1995 the grievor telephoned the client to say she would come by at around noon for a home ViSIt. The client says that when she started to \ \ \ \ tell the grievor that she had recently moved, the grievor responded that she had that informatIOn. The grIevor set out WIth the VerificatIOn Checkhst, the FBA Profile and the forms that had to be completed by the client. She drove to Xxxx Street, and dIscovered that there was no number 12 there She had to call her office to get someone to look through the file to find the correct address She eventually arrived at the clIent's apartment at around 1'00 or 1 30 p.m. I shall return later to substantIal dIfferences between the chent's ac- count(s) of thIS VISIt and the gnevor's. At thIS pomt I shall note only the pomts on whIch there is agreement or, at least, no senous dIspute The gnevor entered the chent's apartment. There was an exchange of words The grIevor and the cli- ent went from the door to the dmmg room table, where they sat down. The client offered the grievor a cup of tea. The gnevor declined. There was some discussion about the filling out of forms, during which the clIent asked questions. The gnevor asked the chent questions and filled in the forms. The client sIgned the forms. EIther before or after sIgmng the forms, the client told the gnevor that she was 10 pam and needed to he down. She may have remained at the table for a time after saying that. She did eventually go to the couch and lIe down. TheIr diSCUSSIOn continued for a whIle after she lay down. The gnevor left with the forms that had been filled out and sIgned. MIchelle was in the apartment when the gnevor arrived, but left before the VIsit ended. The gnevor testified that durmg the VIsit she learned that the clIent had not been lIving WIth the male frIend for some tIme. She told the chent that the co-resIdent deduction could be ehmmated WIth retroactIve effect If the chent could proVIde copIes of leases showmg when the clIent and her fnend started leasmg separate apartments. There was also a dISCUSSIOn about the boarder de- duction and whether SherI and MIchelle were eIther working or attendmg school full-time. When the chent saId MIchelle was attend 109 school full-time, the grievor asked her to obtam and submIt the school's wrItten confirmatIOn of that _..~ ~ - 4 - fact. She also told the client that she needed more information about Michelle's inherItance. The grlevor testIfied that these matters were discussed further in a . ' \ \ telephone call from the client two days later, on November 10, 1995 The Minis- try's files contam the gnevor's note of that conversatIOn. The chent claIms not to have spoken to the gnevor at any time after the home VISIt on November 8, 1995 The Ministry's files contain a letter from the chent to the gnevor dated November 28, 1995 Enclosed with the letter were copies of leases, a Mmistry school attendance form completed by Michelle's school and what is saId in the letter to be a copy of MIchelle's passbook showmg what remamed of her mherI- tance. The chent's letter referred to and elaborated on the enclosures. Appar- ently by way of explammg the bank balance, she wrote that "She (MIchelle) des- perately needed a vehIcle for school and she works, so she reqUired a means of transportation for both." She made no suggestion m thIS letter that anything un toward had taken place m the home ViSIt three weeks earher The letter invited the grievor to call if she had any questions. On the back of one of the documents that accompanied thIS letter - a copy of her former male co-resIdent's lease - she wrote a note addressed to "Gloria" In it, the chent wrote that the lease showed her former male co-resident had been living with his son since July 30, 1995 She also wrote that deductions taken from her monthly cheques smce then were "not valid," that she had notIfied her preVIOUS worker (the worker at Peel SOCial ServIces) "Immediately," and that "I have been on my own smce July 30/95 & my two gIrlS SherI & Michelle (both moved out Nov 9th /95)" On or after November 10 and before she left for three weeks' vacatIOn on December 20, 1995, the grievor wrote an undated note. It saId that the chent's co-resident deduction should be deleted effective October 1995, and that MIchelle and the income from CPP and the boarder deduction for Sheri should be all de- leted effective November 1995 Despite the correspondence and documentatIOn from the client mdicating an earher date, the gnevor apparently thought that the chent had been hving WIth the male co-resIdent untIl she moved to Yyyy Street on October 1, 1995 The gnevor persisted III this view even durIng her tes- ~-:~ - 5 - tlmony, after she had heard the testimony of the client and the repeated refer- ences by various hear10g participants to the contrary indications 10 the docu- \ \ \\ mentation. There was some dIScussIon by and debate WIth the M10Istry wItnesses about whether the gnevor had correctly Judged that whIle MIchelle rema10ed a full-time student and a dependant of the clIent after she turned 18, then the amount of the C.P.P orphan benefit that she was entItled to receive dIrectly af- ter turnmg 18 ought to have been deducted from benefits payable to the clIent. I do not have to resolve that debate. The employer dId not purport to dlsclplme the gnevor for her decisions about the clIent's claIm. She was dISCIplined for alleged verbal abuse of the clIent 10 November 8, 1995 Another M10Istry employee, Domimca Bugden, became an acting Income Ma10tenance Officer on January 1, 1996 She covered the grievor's files dur10g the balance of the grievor's absence. She receIved several telephone calls from the clIent in that period. The first such call came on January 5, 1996 In It, the clIent dIscussed WIth Ms. Bugden recent changes in her housmg expenses. She also questIOned whether deductIOns were still being taken for the co-resIdent who had moved out August 1, 1995 Ms. Bugden explamed to her that the cur- rent FBA profile showed no co-resident deduction being taken. The chent also asked whether she would be reImbursed the deductions for the C.P.P orphan benefit "as of September" Ms Budgen saId she would take that up WIth a super- visor Ms Bugden made a handwritten note about her conversatIOn, and placed It m the file. Ms. Bugden testified that durmg this and the several subsequent calls she received from the client durmg that week and the following week, the clIent compla1Oed about the grievor's handlmg of her file, saId she dId not want to speak with the grlevor and asked if Ms Bugden could be her worker The chent did not complain to her that the grievor had been verbally or physically abUSIve, however - 6 - The Ministry file contains an FBA profile printout for the client dated De- cember 5, 1995 It differs in several respects from the earlIer pr1Otout that the \ \ \\ grievor had had with her at the home visit with the chent on November 8, 1995 The clIent's address has been corrected MIchelle has been deleted as a depend- ant. The co-resident deduction and the boarder deduction for Sheri are gone The deduction of the orphan's benefit - described on the form as "CPP Survivor" - continues, however ThIS appears to be the prmtout that Ms. Bugden consulted durmg the first call she receIved from the client on January 5, 1996 That day Ms. Bugden made a note on this prmtout that the "CPP SUrvIVOr" amount was not to be deducted "effectIve December 1, 1995" Ms. PaIero's eVIdence was that a supervIsor's authonzatIOn would have been needed to make that change. Ms. Bugden testIfied that a supervisor, Nadia Mustillo, instructed her to make the change that way It is not apparent why Ms. Mustillo chose or approved the ef- fective date of December 1 rather than the earlier date identIfied in the gnevor's note, nor the even earlIer date sought by the client, nor why the "CPP SurvIvor" deduction had not been removed when the other changes identified m the grievor's note were made On January 22, 1996 the Mmistry office receIved a letter from the clIent addressed to Ms. Bugden, enclos1Og further copIes of leases WIth reference to the co-resident Issue and a statement of the past deductions that the clIent felt should be reImbursed That letter contamed no allegatIOn of abuse by the gnevor It IS apparent that by this pomt the clIent was anxIously awaItmg reIm- bursement for past deductIOns that she felt had been Improperly taken with re- spect to the co-resIdent and the C.P.P orphan benefit. On or about January 24, 1996, the Mmistry prepared and maIled to the client a cheque 10 an amount equal to two times the monthly amount of the former "CPP SurvIvor" deduction. ThIS was consIderably less than the cbent felt she should receIve. It is not appar- ent whether the client had received that cheque by February 1, 1996, when she called the office of her local M.P P to complain. - - 7 - In January 1996, Jean Paiero began working as an Income Mamtenance Supervisor m the office where the grIevor worked. On February 1, 1996 she re- 1\ ~e\ved a call from a constituency assistant in the office of Margaret Marland, M.P P The assIstant said that the clIent had complained of be10g verbally and physIcally abused by the grl€vor She reported the clIent's havmg said that the grievor had grabbed her face m both hands and shouted at her, that the grievor had saId to her "you are whIte, why are you on benefits" or words to that effect, and that a WrItten complaint had prevIOusly been sent to Domimca Bugden. (To put the second of these allegatIOns m context, it IS necessary to note that the grIevor IS FIlIp1Oo.) Ms. Paiero told the assIstant that she could not dISCUSS the client's circumstances wIthout the clIent's consent, but that the clIent should put her compla1Ot m wrItmg Afterward hearmg from the M P.P's assIstant, Ms. PaIero spoke to the grievor about the alleged racist remark and placmg of hands on the client's face. The grievor denied the allegations, and said that a witness had been present who could verify that those things had not happened. Ms. Paiero asked Dommlca Bugden whether she had receIved a wrItten complaint from the client. She replied that she had not, but that the chent had compla1Oed to her m a telephone conversation about the grIevor's handlmg of her case in determimng her entitlement to benefits. Ms. Bugden reported that there had been no mention of raCIst remarks or hands on the chent's face. I should note that Ms. Bugden had not recorded this earher compla1Ot 10 the chent's file or brought it to the attention of any supervisor at the tIme. Ms Bugden testified that she wrote a separate note to the grIevor about the com- plamt, and chpped it to the outside of the chent's file. The grlevor says, and there is no reason to doubt, that she did not see the note at any time after she returned from vacatIOn. Ms. Bugden dId ask the grIevor If she had seen the note. She and the grIevor have dIfferent recollections of when that conversatIOn occurred. While nothing particularly turns on It, it seems more hkely that the conversation - 8 - occurred at some time after Ms. Bugden became aware of the call Ms Paiero re- ceived from the M.P.P's office. . \ \ \ Havmg spoken to the grIevor and Ms. Bugden, Ms Pal€ro decIded to awaIt the clIent's wntten complamt. The grievor left for another 2 weeks of vacatIOn on February 15, 1996 On February 20, 1996, Ms Marland's constItuency office faxed to Ms. PaIero a letter it had apparently received that day The five page handwntten letter from the clIent was addressed to Ms Palero and dated February 9, 1996 WIth reference to the home VISIt of November 8, 1995, the client alleged 10 thIS letter that the gnevor had arnved "very agItated and Irate" and had saId that the office gave her the wrong address The weather was "mIserable," she said, and the grIevor was "wet, late and 10 a very ugly mood." The client further alleged that the grievor walked through her liVIng room to her dining room WIth- out remOVIng her "muddy" boots, and saId "get that out of here" WIth reference to a kitten. The chent wrote that when she told the grievor that bad weather made her pam more severe, the gnevor had a "who cares" attItude. She saId the gnevor had refused to answer questions and, when she asked what she was SIgning, the grievor "put her hand m my face" and said "don't argue WIth me." She also wrote that when she offered her a cup of tea, the gnevor rephed "this IS not a SOCial ViSIt, let's just get this paperwork done so I can get out of here!" At another pomt 10 the letter she wrote "I was hysterIcal and crying and her re- sponse was SImply - settle down so I can complete thIS paperwork and be on my way" The complaint letter also described the orphan's benefit and co-resIdent deduction issues It saId that 10 the period 10 questIOn Sheri and MIchelle had been students, had had no work at all, not even part-time, and had been liv10g WIth the chent until the day after the grievor's VISIt, when she told them of the gnevor's reqUIrement that they contribute finanCIally ThIS news, she wrote, "caused a horrible outburst here and upset the entire home." - 9 - The client further alleged in her letter that "a week or two" after the ViSIt, the grIevor telephoned her and saId that she had lost copIes of the former co- ~~sident's lease. She also wrote that she had delivered a copy of the lease "for second time" on January 22, 1996 dIrectly to the office She wrote that she had called the gnevor "three times after her VISIt and not one call was returned," and that three calls to her supervIsor were not returned eIther She concluded her letter by reiterat10g her claIm for reImbursement of co-resident deductIOns taken from August to November 1995 and deductions taken for the orphans benefit she had not receIved smce September 1995 The complamt's letter dId not allege that the gnevor had saId anythmg of a racIst nature. Apart from the reference to the grIevor's havmg "put her hand 10 my face," it contamed no allegation of physical touchmg The pubhc servIce strIke began soon after Ms Paiero received the com- plamt letter, before the grievor returned from vacation. When employees re- turned to work a month later, at the begmnmg of April, management focused on restoratIon of the workplace. Ms PaIero turned her attentIOn to the client's com- plaint agam in late AprIl, when she telephoned the chent to discuss it. She testi fied that the client told her that she still WIshed to pursue the complamt. Durmg this conversatIOn the chent alleged that the gnevor had caused her pam by put- t10g her hand on her shoulder to make her sit down at the table. She stated that the grievor had put her hand 10 her face close enough to touch her nose She added that the grievor had also told her to "shut-up" She dId not mentIon any racist remark or grabbmg of her face She dId say she was concerned about the calculatIOn of her benefits. Management decided to ask the Mimstry's AudIt and InvestigatIOns Branch to investigate the complaint. That request was made 10 mid-May Man- agement receIved the Investigators' report in late June The report expressed their conclusion that the eVIdence was mconcluslve to support the allegation that the grievor physically abused the clIent. It said, however, that there was "testI- momal evidence" of the chent, "conduct wItnessed by the mece" and "recent past - - - 10 - occurrence reported in [the grievor]'s supervisIon/personnel to support the alle- gation that [the grievor']s conduct and behaviour toward [the client] can be con- I' , \ strued as a manner of verbal abuse." The report added that a supervisor had re- quested a "retro-calculation" of the client's entitlement, and that the clIent would be 1Oformed of the result. It IS Important to note that despite the report's use of the words "testimo- nial evidence," the investigation was not a tnal. ThIS arbItratIon is not an appeal from the mvestigators' conclusions The employer had the onus to put before me the testimony that It said supported a conclusion that the grievor had been ver- bally abUSIve. That testImony was subJect to cross-exammatIOn 10 these pro- ceedmgs. I turn, then, to the dIsputed testimony concermng the home VISIt of November 8, 1995 The chent testified that the weather was bad the day the grievor came to visit. The SIgnificance of the weather 10 the chent's account was that It explained why the gnevor would have been particularly upset and why her havmg walked 10 without removmg her footwear would have been partIcularly mappropnate The chent testIfied that there was a snowstorm at the time of the grIevor's viSIt. ThIS was accompanied by sleet and rain, she saId. She elaborated that the snow had been so bad that she could not see the building across the street. When told It would be the union's evidence that the weather was not that bad, she m. sisted that it had been that bad and added that she could not see more than 5 feet outside her wmdow Michelle testified that she could not specifically remember the weather, and could only say It was not a mce day The gnevor dId not recall anything in partIcular about the weather The umon tendered Environment Canada's rec- ords for that day of surface condItIOns at Pearson InternatIOnal Airport 10 MIS- sissauga. The employer agreed that those could be receIved as eVIdence of the truth of their contents. Those records mdicate that snow fell between 6'00 and 7'00 a.m. that day Mter that, there was no further preCIpitatIOn until 11 27 - 11 - p.m., when it began snowing again. The sky was overcast 10 the morning, but only scattered clouds remained at the time of the ViSIt. There was no snow, sleet , \ ~i rain at the time of the visit, nor for several hours before and after the VIsit. ConsIstent WIth her testimony about the weather, the client testified that the gnevor was "soaked" when she arnved, and "very angry" about having been gIVen the wrong addre$s She said the grievor asked her "why are you on welfare, why are you on dIsabihty, I don't understand" and then walked through the hv- mg room "wIth muddy boots" to the dming room table When asked about this "why are you on welfare" remark later 10 her exammatIOn in-chIef, the chent saId that the gnevor had come 10, looked at her and saId "why are you on CP [SIC], you're whIte, you look fine" MIchelle testIfied that the grIevor seemed "upset" when she arrIved. She dId not testIfy that the grIevor made any remark about her aunt's disabilIty or race. The grIevor says she was calm when she arrIved, and demes that she made any remark about the client's race. The most dIrect route from the door of the clIent's apartment to the dmmg room would have been through the kitchen, rather than through the living room. The client testified that the grIevor walked through the hVIng room. Durmg her exam1Oation-in-cmef the client was shown the portion of the investIgators' report that described theIr intervIew of her She was asked to read It. The portion of the report she reviewed saId, among other things, that she had told the investigators that after entenng her apartment, the grIevor had "faIled to clean or remove her footwear though the weather was bad, and proceeded to walk through the kachen to the dimng room table." (My emphasis.) Mter readmg the report, the clIent tes- tified that it was accurate except where It saId that the grievor's hand had brushed her nose. In cross-exammatIOn she confirmed that the reference to the gnevor's hand havmg brushed her nose was the only maccuracy 10 the 1OvestIga- tors' account of theIr intervIew of her When told 10 cross-exammation that the grievor would say she walked through the kItchen to the dm1Og-room, rather 12 - than through the livmg room, the client said rather forcefully that that was a "lie" and added that "it ruined my rug." . \ \ \ The clIent stated that after she and the grievor reached the dinmg room table the grIevor pulled out paper work and presented things for her to SIgn. She testified that could not understand what they were for, dId not understand what she was sIgmng She saId that she told the grIevor about her former co-reSIdent having been gone for some time. The grievor testified that she was the first to raise the subject of the co-resident deduction. The chent also testified that she told the gnevor that Sheri and MIchelle had moved out, and complamed that de- ductIOns were still bemg made WIth respect to them. The gnevor testIfied that the chent saId Sheri and MIchelle were stIll hvmg WIth her In chief, the client saId more than once that both SherI and Michelle had moved out in October, before the grIevor's ViSIt. During cross-exammation It was put to her that she had spoken to the grievor a day or two after the VIsit, and had told the grievor that Sheri and MIchelle had moved out the day after the ViSIt. She denied having spoken to the grievor after the viSIt. She said she tried but the gnevor dId not return her calls. She denied saymg that Sheri and MIchelle had moved out after the ViSIt, and repeated that they had both moved out before then. The grIevor's attention was drawn to her letter of February 9, 1996, where she wrote that "Sheri and MIchelle both moved out November 9, 1995, after Gloria's ViSIt." She responded that that had been mcorrect, that MIchelle had corrected her on that. It was then put to her that she had told Ms. Bugden that the gIrls had moved out the day after the gnevor's VISIt. She then saId that MI- chelle had corrected her on that after she got off the telephone with Ms Bugden. When counsel then pomted out that that telephone call occurred before she wrote her letter of February 9, 1996 she said that Michelle had "looked at" the letter after she sent it, and had corrected her then. When counsel returned to the mat- ter of the letter later in hIS cross-examination and referred to Michelle's having seen It, the grIevor demed that MIchelle had ever seen the letter and, further, - - 13 she denied having said otherwise earlier in her testimony This was the most dramatic of several points in her testImony at which it became clear that the ch- 1\ ~rit's recollections were SImply not rehable. Later in her testImony, the chent said that Shen had moved out on No- vember 5 and MIchelle had moved out the day after the VISIt but had moved most of her th10gs before then. The gnevor's account of what she was told about Sheri and Michelle on November 9 IS conSIstent WIth the client's letter of February 8, 1996 and wIth note the chent wrote on the back of the enclosure wIth her letter of November 28, 1995 It may be that SherI had moved out and Michelle was in the process of movmg out at the time of the home VISIt, but I find that what the chent told the gnevor that day was that both gIrls were hvmg wIth her The client stated that the gnevor responded to her questIOns by saying "don't argue with me" and put her hand up in front of her face. She saId the gnevor's hand was about an inch and a half from her nose, but dId not touch her She added that the grIevor said If the clIent argued wIth her she would leave and the chent would be dIsquahfied. When she began to cry, she saId, the grIevor told her to "cut it out." She stated that at one point the gnevor touched her shoulder on her sore side, meamng for her to sit down. ThIS caused her pam because of her medIcal condItIon. The chent testIfied that she was very upset after the grievor left. She said she then spoke to her doctor, who provided her with medIcatIOn and told her to call the "CP" office and report the grievor When asked in chief whether she had complained to a member of prOVIncial parhament, the client said she had spoken to an M.P P who was "infurIated" and "demanded" that she put It 10 wntmg She said she dId wrIte It out, and remembered that her frIend helped her send a fax. The chent more than once said that she had not wanted It to "go thls far," that all she had ever wanted was to talk to GlOrIa and "get a sorry" She saId she - 14 had spoken to "Jean", the person to whom her letter of February 9, 1996 was ad- dressed, but Jean did not want to discuss it, she Just wanted a letter She saId . \ she kept tellIng Jean that she did not want it to go thIs far, that she only wanted to talk to the gnevor WIth respect to the chent's demal that she ever spoke to the grlevor after the viSIt, counsel drew her attentIOn to the part of her letter of February 9, 1996, where she wrote "ApprOXImately a week or two after GlOrIa's VISIt she telephoned me stating she had lost the copIes of [the co-resIdent]'s lease. "The chent answered that MIchelle had taken that call, and that she had wanted to speak to the grIevor but MIchelle had hung up The chent then saId she had spoken to Jean PaIero that same day, but that Jean had been angry at her and would not let her speak to the grIevor and inSIsted that she put her complamt 10 wrItmg because she wanted to pursue It. She persisted in thIS claIm despIte bemg told that Ms. Paiero was not the grIevor's immediate supervisor 10 November, when this allegedly took place. She replied that apparently the grievor's supervIsor had been around so Jean had taken the call, was angry at her and defended the grIevor willie she (the chent) was try10g to tell her that she wanted to put this behmd them. Later 10 her cross-examination she testIfied that Ms. Bugden had told her the leases were lost, then reVIsed that to say that it was Jean who told her that the grIevor had nothing on file with respect to the leases, and that she had a call from Ms Bug- den thereafter Apart from the internal inconsistencies, this testimony was in- consIstent with the testimony of Ms Bugden and Ms. PaIero in a number of re- spects, not the least of which IS Ms. PaIero's contradIctory testimony that her first telephone conversation with the clIent was 10 AprIl 1996, not November of 1995, that she dId not remember receIving a telephone complamt 10 November that an IMO had made raCIal remarks or phYSIcally restramed a chent and that she would have remembered such a complamt If It had been made to her When asked about DomImca Bugden's note of their January 5 telephone conversatIOn and her letter of January 21 to Ms Bugden, the chent saId she re- membered having spoken to someone and that the reason she had not mentIoned - 15 - the abuse in the letter was that her doctor had told her not to because It was al- ready being mvestigated so "why repeat it." During the client's cross- . , \ \ exam1OatIOn, umon counsel pomted out to her that her letter of February 9, 1996 had been wntten three months after the home VIsit. Asked why she dId not com- pla10 10 wntmg before then, she saId that she had been trymg to resolve "all thIS" to no avaIl. She then volunteered that she had had nerve block treatment, that she could not wrIte, had been frozen on her left SIde for a tIme prIor to the grIevor's VISIt and for a good 8 months thereafter, that to write thIS took every- thing she had, that she had been trymg to get off drugs and was havmg memory loss due to the drugs She mentIOned having memory problems durmg her ex ammatIOn m chIef as well. There were also tWIstS and turns in the clIent's attempts to explam why at some points she had saId SherI and MIchelle had had part-time jobs and at other pomts she had said they had had no work at all. At one pomt 10 her testImony she asserted that the investigators had spoken to her before ChrIstmas of 1995, and at another that the M.P.P to whom she had spoken was named Szabo. As I have already noted, Michelle testified that the grievor seemed "upset" when she arrived, but not that the grievor made any remark about her aunt's dIsabihty or race. She saId she only heard parts of the subsequent discussion be- tween her aunt and the grIevor, and could not recite what she had heard word- for-word. She said she remembered her aunt asking questions She stated that the gnevor "wasn't willIng to help her" and "dIdn't seem to want to help her very much." Asked what her reactIOn to the grievor's conduct had been, she said she thought the grIevor's conduct was "rude" and "uncalled for" and that she "shouldn't have taken It out on my aunt." There was no elaboratIOn of any of these opimons, to Identify the observations on which they were based. She dId not say, and was not asked, what questions her aunt had asked She dId not say, and was not asked, what the grievor had seemed unwIlhng to help her aunt WIth, nor what the grievor had said or done that was "rude" or "uncalled for" - 16 - I do not propose to elaborate further on the mconsIstencIes and confUSIOn m the client's testimony Employer counsel argued that because the employer h~d only imposed a three day suspension, the standard or qualIty of the proof It had to prOVIde of the alleged abuse was less than it would have been If it had Im- posed a lengthier suspenSIOn or dIscharge had been imposed She submItted that I should accept the client's allegatIOns of verbal abuse as true because some ele- ments of her description of the occasIon in questIon - the ones consistent WIth the grievor's account - were evidently true and because she testIfied WIthout apparent vindIctiveness toward the gnevor It is true that when she testIfied, the clIent dId not appear to bear any malice toward the grievor I do not need to determme whether mahce or vmdIc- tIveness played any part in the formulation of the complaint she made in Febru- ary 1996 It was clear that the client's testimony was fraught with confusion, ex- aggeratIon and invention. Whether the client exaggerated and invented deliber- ately or as a result of CIrcumstances beyond her control, the consequence was the same. The clIent's testimony was unreliable, and the employer's evidence is not a suffiCIent foundation for a finding on a balance of probabIhties that the gnevor committed the verbal abuse of whIch she was accused. Accord1Ogly, the grievance IS allowed. The discIplme IS to be removed from the grievor's record. The employer shall forthwith remove the dIscipline from the grievor's record, and compensate her for the finanCIal loss the grIevor suffered as a result of the three day suspenSIOn without pay I remam seIsed WIth any issue the parties are unable to resolve themselves with respect to the ImplementatIOn of thIS award, including the amount of compensatIOn to be paId. Dated at Toronto this 6th day of February, 1998 ~~~~