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HomeMy WebLinkAboutNR 20-02-25IN THE MATTER OF AN ARBITRATION PURSUANT TO THE LABOUR RELATIONS ACT BETWEEN: EASTERN ONTARIO REGIONAL LABORATORY ASSOCIATION ("EORLA") (the employer) _►111 ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 475 (-OPSEU") (the union) RESPECTING: A GRIEVANCE FILED ON BEHALF OF "NR" (2017-0475-0019) FINAL AWARD Arbitrator: Ms. Judith Allen, AIM Counsel for Employer: Ms. Kecia Podetz, Emond Harnden LLP Ms. Tara Hristov, summer student Counsel for Union: Mr. Matthew Hrycyna, OPSEU Hearing Dates: August 7th and 8th, 2019; January 22nd, 23rd and February 12th, 2020 in Ottawa. Interim Ruling: September 10th, 2019, Ottawa Final Award: February 25th, 2020, Ottawa FINAL AWARD INTRODUCTION 1. The matter before me involves the termination of a casual, probationary employee, "NR" (hereinafter, `the grievor") on the basis that she "failed to meet the expectations of [her] role as an EORLA Pathology Assistant 1 (hereinafter, a "PA"). I have used the grievor's initials to protect her privacy. 2. The employer has a preliminary jurisdictional objection on the basis of article 11.01 of the collective agreement. The collective agreement provides that for those employees whose regular hours of work are other than the standard work day, the probationary period is six hundred and seventy-five (675) hours. There is no dispute that the grievor was a casual probationary employee at the time of her discharge. 3. Article 11.01 also states: "[t]he release of a probationary employee shall not be the subject of a grievance or arbitration." 4. Although the grievance before me refers to a breach of article 3, the management rights clause, the substance of the grievor's complaint is that she has been discriminated against on the bases of "ethnicity", "place of origin" and `marital status". The grievor has a concurrent application pending before the Human Rights Tribunal of Ontario (HRTO File Ref. 2018-33023-I). 5. The arbitral exception to exclusions of probationary employees from the benefits of grievance and arbitration clauses is restricted to allegations that management has exercised its decision in an arbitrary, bad faith or discriminatory manner. The employer has agreed to reserve its jurisdictional objection until the evidence has been completed. The employer notes, however, that the burden of proof is on the union to demonstrate that the grievor was treated in a bad faith, arbitrary of discriminatory manner. 6. On the first day of hearing, the employer agreed to make its opening statement, without altering the burden of proof, which the union agrees remains with it. An attempt was made to settle the matter before me, which was not successful. As I understand it, an earlier attempt to settle this matter occurred before arbitrator Marilyn Nairn. 7. In a nut -shell, the employer alleges that the grievor failed to meet the expectations of her role, despite additional training and that it determined the grievor was ""unsuitable" due to a number of instances of lateness, inability to take instruction and conflicts with colleagues. ` 8. The union disputes these allegations, and as noted above, alleges the employer discriminated against the grievor on the basis of ethnicity, place of origin and marital status. The union commenced its direct examination of the grievor on August 7th, 2019 in the afternoon and that continued the following day until the afternoon of August 8th, 2019, when employer counsel commenced her cross- examination of the grievor. The hearing was adjourned on August 8th, 2019 by myself for the reasons set out in an Interim Ruling, dated September 10th, 2019, which is attached as Appendix "A". 9. The hearing continued January 22nd and 23rd and final argument was completed on February 12th, 2020. 10. Despite the provision of a physician's note that the grievor was capable of participating in the hearing, the grievor's behaviour on January 22nd and 23rd, continued to be problematic for her own counsel, for employer counsel and for myself in terms of conducting a fair and respectful process. Nonetheless the parties were successful in completing the evidence portion of the hearing on January 23rd, 2020. 11. The union's evidence consisted entirely of the grievor's testimony and documentation, including text messages, that she insisted her lawyer adduce. 12. The employer called only one witness, Bill Parks, the Regional Manager of EORLA's three Ottawa sites and also adduced documentary evidence. 13. There was no rebuttal evidence called. CONTEXT 14. EORLA provides surgical pathology services to the eastern region of Ontario which includes sixteen (16) hospitals. EORLA's labs at The Ottawa Hospital (TOH) handle approximately 140,000 specimens per year. EORLA employs approximately 16 PA's to process the specimens which have been removed through surgical means on living patients, who are awaiting diagnosis and potential treatment. is. The grievor was hired as a casual, on-call PA and worked from Nov 7th, 2016 to June 215t, 2017. As noted above, there is no dispute that she was a casual, probationary employee at the time she was released, having completed approximately 2/3's of her required hours. 16. The training and orientation of the PA's begins at the Civic campus where there are numerous biopsies, which are the simplest specimens to learn on. PA's learn to orient and describe what they see in a specimen or sample as a delegated authority, for the benefit of the Pathologist. The Pathologists then base their diagnosis on the report of the PA. 17. The purpose of the probationary period, is to give the employer a window of time to observe a new employee through training and to assess the new employee's ability. The employer argues that the grievor failed to demonstrate the ability to do her job safely and consistently, through many opportunities. 18. The Union argues if the decision to release the grievor was "tainted"' in any way by discrimination, the grievor must be reinstated. 19. I have had to make a credibility finding with respect to the grievor's evidence, detailed below. My conclusion is that the Union has failed to prove any of its allegations relating to arbitrary, discriminatory or bad faith conduct on the part of the Employer. ALLEGATIONS OF DISCRIMINATION ON THE BASES OF "ETHNICITY" AND "PLACE OF ORIGIN" 20. The grievor makes two allegations respecting discrimination on the bases of "ethnicity" and "place of origin". The first is that she alleges that a co-worker, LB, (and bargaining unit member that the Union did not call as a witness) told the grievor that her "hair stunk" and that she should use the back door to enter and exit the lab. The second is that this same co-worker, LB, when training the grievor told her to `look into my eyes when I'm speaking to you, in Canada we look into each others' eyes". 21. In terms of these allegations, the grievor's testimony failed to identify her ethnicity or any evidence of discriminatory behaviour relating to ethnicity. The grievor testified that ""Indian hair is difficult to manage" and she used sunflower and rosemary oil in her hair at the time. Subsequently, in cross-examination and in her text messages to her boyfriend, entered into evidence, she refers to "the Persian New Year", that she was celebrating through skype with family and friends. In closing argument, Union counsel referred to the grievor as an ""immigrant" and there is no evidence before me that the grievor is an immigrant. After an objection, from Employer counsel, Union counsel stated that the grievor is a `visible minority". 22. There is no evidence adduced by the Union as to the grievor's ethnicity or place of origin. There is no connection between her ethnicity and any comments the grievor alleges were made to her. 23. The evidence shows that the grievor commenced work on November 7th, 2016 and did her orientation at the Civic campus. She commenced her training with Alain Tremblay (another bargaining unit member) who provided feedback to Bill Parks, that the grievor was late on occasion and not respectful of break times. 24. On November 29th, 2016, the grievor was transferred to the General Campus, in accordance with the training plan, to begin getting exposed to more complex specimens. That is when LB took over her training. LB reported to Bill Parks during the first week of January, 2017 that the grievor's training was progressing slowly and that she was not retaining information from one day to the next. The grievor seemed resistant to the training. 25. In mid-January, 2017, IS, the Charge PA (also a bargaining unit member), reported to Bill Parks that the grievor was reporting to work late a number of times. 26. Based on the above reports, Bill Parks initiated a meeting with the grievor to address her "lates" on February 8th, 2017. He reports that the grievor was very agitated and blamed the bus routes and everyone else for her lates, taking no responsibility. She then reported to him that LB told the grievor that her hair was 'smelly" and to use the back door for entering and exiting. Bill Parks told her that she was expected to be at her work station with her computer on at start time and ended the meeting saying he would look into her concerns. 27. Bill Parks testified that he interviewed LB, IS and the technician who works at the front of the lab who has a severe allergy to scents. He concluded that LB had advised the grievor of the scent -free policy, posted in the workplace; advised her that the technician had a severe allergy and had complained about the scent of her hair; and asked her to use the back door of the lab for entering and exiting as all the PA's do. Mr. Parks concluded that this information was provided to the grievor discretely and that at no point did LB use the terms "stunk" or "smelly". 28. The grievor did not acknowledge the scent -free policy in cross-examination. She suggested other PA's wore heavy perfume. The Union did not call any other PA's to testify. She agreed that all of the PA's entered and exited from the back door of the lab. 29. With respect to the second allegation against LB, about "Canadians requiring eye contact", Bill Parks testified that the grievor never raised it with him and the first time he heard it was during the grievor's testimony. 30. Subsequently, LB continued to report that the grievor was not retaining information and Bill Parks decided to change the grievor's trainer to Martine Dupuis (another bargaining unit member) thinking that perhaps the grievor would do better with a new trainer. 31. I note that the grievor testified that although she had problems with LB, everyone else liked her and the grievor thought LB was a good trainer. The grievor testified she was 'Asad" when she got switched to Martine. 32. For the reasons that follow, below, I find Mr. Parks testimony, more plausible, more probable and more credible. I conclude that LB never suggested that the grievors hair ""stunk"' or was "smelly". I conclude that LB alerted the grievor to the scent -free policy, posted in the work -place; alerted her to a complaint by a co-worker with a serious allergy; and asked her to avoid the front office by using the rear exit that all the other PA's used. I conclude that LB never made the "Canadians" comment. The Union has failed to prove the comments were made by providing credible evidence. I note, in particular, that the grievor referred to other bargaining unit members who wore scents or who may have heard the comments but the Union provided no corroborating evidence to support the grievor's version of events. 33. I note, in particular, that the hair scent incident has no connection to ethnicity, even on the grievor's testimony. ALLEGATION OF DISCRIINATION ON THE BASIS OF "MARITAL STATUS" 34. With respect to the allegation about discrimination on the basis of "marital status", the grievor has two allegations. First she states that she was discriminated against because a Charge Pathologist, IS, (also a bargaining unit member who was not called by the Union), told her "she wished she had known about her relationship with KW", another casual PA working at the General campus and son of a Pathologist working for EORLA, at a separate site. 35. The grievor's second allegation is that she was living in a domestic abuse situation with KW and his parents. The employer objected to any evidence of domestic abuse, as there was no evidence that the grievor informed her employer of alleged domestic abuse. 36. The grievor testified that she moved from Toronto to live with her boyfriend KW, in KW's parents' home. She subsequently applied to EORLA for the PA posting at her boyfriend's father's urging. The grievor suggested that KW's father "got her the job". 37. The grievor testified that she was a victim of domestic abuse from KW and his parents and that at one point she and KW moved out of his parents' home. She stated that once she got the PA position, KW and his parents all urged her to quit her job and stopped inviting her out to family dinners and other family events. 38. There is no reliable evidence as to the timing of any of the above. It is not clear to me whether the grievor lived with KW's parents for weeks or months, nor is it clear at what point she moved out. Nor is it clear when, if ever, KW moved in to her apartment, or when he left. 39. The Union takes the position that it is the grievor's status as a common law' partner that places her under the "marital status" ground of discrimination. 40. There is no dispute that Bill Parks interviewed the grievor and was advised by her during the interview that KW was her boyfriend. Bill Parks made it clear that such relationships were not an issue but that they would attempt to schedule them at different times. Subsequent evidence indicates that the grievor and KW over -lapped on one occasion between her start date and end date. Bill Parks also testified that he made the decision to hire the grievor and that KW's father had no role in her hiring. 41. There is no evidence that the grievor informed Bill Parks of "domestic abuse" at any time. The grievor alleges that she tried to tell Mr. Parks about the 'pressure" by showing him texts on her phone. She is confused about what date this occurred. She has testified that Bill Parks refused to look at the texts and advised her that he did not want to hear about Dr. W and his wife. Those texts have been entered into as an exhibit, despite the Employer's objection respecting relevancy and at the grievor's insistence. The texts date from March 311t, 2017. 42. The texts reveal a great deal about the grievor and her relationship with KW but do not evidence `domestic abuse" on the part of KW's parents. Nor do they reveal any information about KW trying to get the grievor to quit her job. To the contrary, the texts reveal a very disturbing side of the grievor and a very immature relationship between her and KW. It indicates neither KW, nor the grievor had any respect for their employer. It acknowledges that she missed a shift and then attempts to 'strategize" a response. Both the grievor and KW disparage the Charge Pathologist, IS. Again, I underline, that Mr. Parks did not see these texts until they were entered at the hearing. 43. In respect of the allegation of "domestic abuse" one exchange is of interest: NR: ...You are just plain inconsiderate and rude I'm going home KW: Im killing myself tonight Not coming home NR: And then make yourself a victim Grow up and do better than that I said please act professionally Say ok I'm sorry Is that so hard? I'm done. My uber is here. There is heavy snow. I feel very sick in my belly because you yelled at me in front of people If you don't apologize to me I would have to bring that up to [IS] I'll make sure she'll tell you that you are not my boss. You are a bully I feel really sick You undermined me at work Thank you WTF? You came to my bench and yelled my name and said [NR] aren't you going home? Didn't you say that was your last one? You are not supposed to be here ... I froze and said this tray is my last and I had 1 biopsy left on it. I'm clocking in on time Then you messaged me about stealing people's over time pay. This is ridiculous and shouldn't be tolerated. This is workplace harassment. Ok bully I actually can't care less Fuck you You obviously can't control your fucked up emotions 44. Again, this is part of the texts that date from March 31St, 2017 which were entered into as an exhibit at the insistence of the grievor, who identifies as a battered woman. 45. Mr. Parks testified that the grievor came to see him on February 21St, 2017, a week after he changed her trainer to Martine Dupuis. The grievor was very upset and crying and told him that her grandfather had died and that KW`s parents didn't like her. She said that they would invite KW to dinner but wouldn't invite her and were trying to get KW to break up with her. She also spoke about her father and how he had worked hard for her education and she didn't want to disappoint him. She felt she could not go on and needed to quit. Mr. Parks admits that he told the grievor that it was inappropriate to talk about the W's private lives. He also refused to accept her resignation and to take some time off. He provided an EAP pamphlet and encouraged her to get some counselling. While the grievor believes that this is the meeting that she tried to show Mr. Parks the texts, the dates do not match up. 46. The grievor testified that Mr. Parks insisted she take two weeks off, but the email communication between the grievor and Mr. Parks indicate that the grievor suggested she needed two weeks off and took two weeks off. She returned to work on March 6th, 2017. 47. The grievor wrote an email to ]S on May 16th, 2017 at 8:29 pm and another just after midnight (May 17th, 2017 at 00:03 am) copied to Bill Parks. These emails indicate her concern about her progress in training and confusion about when one advances from biopsies to small specimens and small complex specimens. She indicates that PA's hired after her appear to be advancing and getting more training and shifts. Bill Parks responded to both the grievor and JS on May 18th and said they would meet early next week to review the situation. 48. Very specific and detailed email reports from two of the other PA's working with the grievor the week of May 15th - 19th, 2017 to JS, indicate that the grievor was not following directions and was attempting to work on specimens that were far too complex for her. These emails also indicated that the grievor was aggressive, blaming and deceptive about her training and experience, insisting she had been "'signed off" on specimens that she was not in fact familiar with. Although these emails are hearsay, and the authors haven't been called as witnesses, they are corroborated by the grievor's training log. Bill Parks conducted an investigation and reviewed the emails, spoke to their authors and concluded, despite JS's urging that the grievor should be released, that the grievor should receive more intensive training. 49. I note that JS urged Mr. Parks to release the grievor in the following terms: - She is not a good fit for the team - She is not a team player - She does not listen to instructions e.g.: Last Friday she was told to do biopsies only we needed her help and she did not listen and disrupted the whole unit and this Friday again she did not listen and produce after being given three hours of training. - We cannot trust her and are worried for patient care when she takes specimens that are more difficult than the ones she has not yet mastered - She is not following the values and mission, does not respect others, does not work together, patient care first. - Her probation is not over ... I worry about the rest of the team if action is not taken with [the grievor]. 50. Rather, than terminate the grievor, Mr. Parks decided to intensify the grievor's training in a different setting, where there would be no distractions, so that the grievor could concentrate. He, IS and the grievor met on May 23ra, 2017 and he advised the grievor she would begin more intensive training in the lab near the forensic unit and her shifts would be shorter but more frequent to assist her retention of information. According to Mr. Parks, the grievor agreed to this. Mr. Parks stated that the meeting was difficult because the grievor entered agitated, blaming and she was aggressive speaking loudly into his face. She continued to interrupt him throughout the meeting even as he asked her not to interrupt. He also reviewed the procedure for advising the unit of her availability and verified her contact information. 51. The very next day, May 24th, 2017, the grievor advised IS that she did not like the suggested schedule and would prefer eight-hour shifts. She was sick that day and off to Toronto. 52. On June 8th, 2017, IS provided a progress report indicating the history of the grievor's training and an email detailing the last two days of her training. The report indicates a continuing pattern of slow production, lack of retention of knowledge, inability to follow instructions and continued late arrivals. 53. By June 81h, 2017, Bill Parks decided that it was time to release the grievor from employment and involved HR. From his perspective the most important factor was the lack of regard the grievor had for patient safety. 54. He and JS met with the grievor and her OPSEU representative on June 21St, 2017 and he delivered her termination letter stating ""you failed to meet the expectations of your role". IS accompanied the grievor to her locker to collect her things. 55. Subsequently, OPSEU filed a grievance on her behalf. Subsequently, the grievor alleged that she had come into a noxious substance in the lab, caused by a co-worker using the bone saw. The grievor also filed an MOL complaint respecting harassment which was investigated on January 16th, 2018 and found no violation. As noted above, the grievor has a concurrent human rights complaint at the HRTO [identified above and filed on 2018/07/09]. 56. The grievor introduced a number of other allegations during her testimony, none of which were proven. She alleged KW got more shifts than she did. Bill Parks checked and KW's shifts were comparable to the grievors. The grievor alleged that she only got 3 shifts in March of 2017. Her schedule shows she got 13 shifts in March. ARGUMENTS 57. The Union relied upon the following case law: Atchinson v. Springs Canada Inc., [2004] CarswellOnt 2406 (OLRB)[application relating to anti -union and anti -safety animus]; Golan v. Sparkling Distribution Inc., [2009] CarswellOnt 10489 (OLRB) [termination two weeks after employer informed of employee's pregnancy]; Redpath Sugar Ltd. v. Unifor, Local 2003, [2019] CarswellOnt 616 (Eli A. Geldalof) [discharge discriminatory as based on race, ancestry or place of origin]; and Neil 3 Holdings Ltd. v. Nicole Hogarth, [1999] CarswellOnt 5146 (OLRB) [termination due to pregnancy leave eligibility]. 58. The Union argues that if there is any taint of a discriminatory motive in releasing the grievor, the grievance must succeed and she must be reinstated. 59. I have reviewed all of the case law carefully and have no disagreement with the Union on the principles espoused in their cases. I note that in the Redpath case, which concerned an employee with seniority who was on a last chance agreement, that there was evidence of racial slurs, differential treatment and a finding of a discriminatory intent. I also note that in the pregnancy cases there was evidence of knowledge of the pregnancy and within weeks concerns were raised about performance. These are very distinguishable from the facts in the case before me. 60. The Employer argues that the Union has failed to prove any evidence, never mind a taint, of discriminatory or differential treatment of the grievor. In contrast, this employer made numerous attempts to assist the grievor in proving that she was a suitable employee. Her lateness, slow progress in training, inability to retain information, blaming of others and highly emotional and disruptive behaviour continued throughout each attempt. 61. The employer relies on para 7:5020 of Brown & Beatty and the following caselaw: Marycrest v. CUPS, Local 2280, [2009] CarswellOnt 10879 (Starkman) [termination during probation allegation of anti -union animus]; Toronto (City) v. TCEU, Local 416, [2015] CarswellOnt 3891 (Gail Misra) [suspension and discharge of probationary employee for discrimination on the basis of disability - pre-existing knee injury]; Farnya v. Chorney, [1951] CarswellBC 133 (BCCA, per O'Halloren, ]A) [assessment of credibility]; Redpath Sugar Ltd. v. Unifor, Local 2003, [2017] CarswellOnt 15888 (R.O. MacDowell) [discharge for assault - credibility test]; ATU, Local 113 v. Toronto Transit Commission, [2018] CarswellOnt 3853 (Owen Shime) [discharge - disability - credibility]; Toronto Catholic District School Board and OECTA, [2017] CarswellOnt 21178 (Barry Stephens) [termination - credibility]; Toronto (City) v. CUPS, Local 79 [2010], CarswellOnt 11060 (Dana Randall) [disruptive conduct in hearing - credibility]; and, OPSEU, Local 529 v. Toronto Community Housing Corp., [2018] CarswellOnt 15728 (Mary Ellen Cummings) [damages in lieu of reinstatement]. 62. I have reviewed the Employer's case law carefully. In terms of "credibility", Mr. Parks' evidence was straight forward, consistent, empathetic to the grievor and demonstrated the willingness to give her more chances than most employers would have. Mr. Parks' evidence was corroborated in part by the grievor, in part by email exchanges between himself and the grievor and between himself and others, in part by ordinary business records such as schedules, logs, policies, etc., and in part by the grievor's behaviour in the hearing. 63. The grievor's credibility was utterly lacking. Her testimony was inconsistent, changing and highly emotional. Her recollection was poor. A single question would result in: "I'm positive, I know for a fact" to "No it wasn't that day" to '"I would have remembered better last summer" to "I don't know". She was argumentative, hostile and disrespectful to all parties: her lawyer, her union representatives, employer counsel and myself. It was my concern for her mental health and ability to continue with the hearing that led to the adjournment and Interim Award, mentioned above and appended hereto. 64. Despite her doctor's note certifying her capacity to participate in the hearing, the grievor's behaviour did not improve on either of January 22nd or 23rd, 2020. In argument, Union counsel asked me to consider that testifying about these events was emotionally upsetting to the grievor. I would have expected any "triggers" to be addressed in the doctor's note, certifying her capacity to continue in the hearing. 65. The grievor was over twenty minutes late for two of the four days of hearing. Her attitude, throughout the hearing was oppositional defiance - in the descriptive sense of the word - I am not qualified to use the term in the diagnostic sense. 66. Throughout her testimony, the grievor blamed everyone for her termination and took no personal responsibility. Everyone was lying. Everyone was harassing her. I rely on Arbitrator MacDowell's statements respecting the tests for credibility in Redpath Sugar Ltd. and Unifor, Local 2003 (Re Jacques), [2017] CarswellOnt 15888, at para 41: Accordingly, when weighing the evidence of competing witnesses, I have taken into account such factors as: the demeanor of the witnesses when giving their evidence; the firmness of their recollections; the clarity, consistency, and overall plausibility of their testimony when compared to the testimony of others and tested by cross-examination; the ability of the witnesses to resist the tug of self-interest, self- justification, or personal animus when framing their answers; the consistency or otherwise with whatever other material is available to assist the witnesses to recall the facts (even if a witness's own recollections are hazy); and what seems to be most likely or probable in all of the circumstances. 67. In the case before Arbitrator MacDowell, he was dealing with a termination of a very senior employee 'for cause" and it was complicated because he determined that all three of the witnesses' testimony suffered from a lack of honesty. 68. The case before me is much more, straight forward. Even on the grievor's own evidence, she had a number of "Tates", she had a two-week sick leave absence, she complained about three trainers, she complained about her boyfriend and his family and she was not progressing in her training. While she testified that she was `signed off" on more complex specimens, her documentary log indicated otherwise, as did the email documentation from her trainers and co-workers. By her account, she met with Bill Parks ten times, which if true, would have been a red -flag for any employer assessing the suitability of a probationary employee. I note that Bill Parks initiated three meetings with the grievor: February 8t", May 23rd and June 21St, 2017. The grievor initiated a meeting with him on February 21St, to resign, which Mr. Parks did not accept. Instead, he suggested she take time off and get some counselling. The grievor agrees that Mr. Parks permitted her to take a two week leave and refused to accept her resignation. 69. Mr. Parks' most damning conclusion, was that the grievor demonstrated no interest or concern in patient safety as she continued to try and gross specimens that she had not been fully trained to do, had not been signed off on and had been directed not to do. The grievor continued to show up late. The grievor continued to be resistant to training. The grievor continued to be disruptive to colleagues and was aggressive with Mr. Parks in their May 23rd meeting. Bill Parks testified that the grievor interrupted him even after he asked her to stop interrupting. 70. Without repeating the conduct of the grievor during the hearing, I will say that she displayed the very conduct, detailed by Mr. Parks. She was late on two occasions for the hearing. She was disrespectful of everyone in the hearing room and of everyone whom she didn't agree with; she interrupted her lawyer, the employer's lawyer and myself repeatedly; she refused to take direction and displayed very angry and hostile behaviour. This disrespectful behaviour is abundantly clear from the text messages that the grievor insisted her lawyer put into evidence. 71. The finding that the grievor was "unsuitable" was wholly based upon relevant, proven facts. There was no "taint" of any discrimination on the basis of "ethnicity" or "'place of origin", nor of 'marital status" (whatever her ethnicity or marriage status actually is and was). There was no evidence of any discrimination of any kind. 72. The Union has failed to prove that the release of the grievor as a probationary employee was for any arbitrary, bad faith or discriminatory reason, in whole or in part. 73. The grievance is dismissed. 74. I make no declaration that the grievance was therefore in -arbitrable pursuant to article 11.01, as this may not have been self-evident at the time the grievance was filed. 75. One last comment. The grievor has accused me of being biased and has threatened to sue me for defamation. She has suggested that no one in the hearing had any empathy for her. I do have empathy for the grievor, which is why I have taken extraordinary steps to protect her identity in this award which will become publicly available and possibly seen by prospective employers or educators. I would suggest to her that if she continues to blame other people and events beyond her control for her situation, rather than focusing on learning how to control her own pattern of behaviour, she will continue to suffer the negative consequences of what is within her control to change. I sincerely hope she undertakes that personal journey. Dated this 25th day of February, 2020 in the City of Ottawa.