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HomeMy WebLinkAboutWest 04-05-03 .\> cÞ r '-{¿u éA " '\ f' L-;;J7u. -- '. . T '" S?ctw 11 CHep IN THE MATTER OF AN ARBITRATION BETWEEN: HAMIL TON COMMUNITY CARE ACCESS CENTRE (Hereinafter referred to as the Employer) RECEIVED AND JUl 2 8 2004 GRIEVANCE DEPARTMENT ONTARIO PUBLIC SERVlcE EMPLOYEES UNION, (Hereinafter referred to as the Union) ,'- ARBITRA TO R: Gail Brent APPEARANCES: FOR THE EMPLOYER: Michael S. Smyth, counsel Barbara Headly, Director Human Resources FOR THE UNION: Andrew Lewis, counsel Mitra West, Grievor Hearings held at Hamilton, Ontario on August 11, 12, 13, October 24, December 11, 18,2003, April 6 and 14, 2004. DECISION Introduction The grievance (Ex 3) is dated March 25, 2002 and alleges that the grievor was dismissed contrary to the provisions of the collective agreement. The grievor was at all material times a relief case manager, and as such her employment was covered by Letter of Understanding (C) to the '\ " , ' ' ,~ 2 ' collective agreement (Ex 1). That Letter of Understanding provides that none of the collective agreement provisions apply to the relief employees unless otherwise specified (paragraph 2) and also deals with discharge in the following manner in paragraph 9: Relief employees may be discharged in the sole discretion of the employer for any reason provided that such decision is 'made in good faith and is not contrary to law. The parties agree that the onus is on the Union to prove a violation of the above provision, and that the "just cause" standard does not apply to relief employees. They did not agree on the order in which evidence should be presented; in an interim decision dated November 25, 2002 I ordered that Union should proceed first, and that was done. Neither party raised any objections regarding my jurisdiction to hear and determine the grievance or to its arbitrability. The Employer, as its name suggests, is a community agency which is involved in "assessing, planning, coordinating, implementing and reviewing clients' care needs and services" (taken from Ex 17). It accomplishes this in part by employing case managers who go out into the community on their own to deal with clients. The position description for case manager (Ex 17) sets out the duties and responsibilities of the position. Those duties include the assessment of client needs, developing and implementing a service plan that meets those assessed needs, establishing goals in collaboration with the client, and maintaining documentation accurately and in accordance with professional standards. Case managers must have a university degree, be a member of a registered health discipline and have experience in the field. Relief case managers are employed to fill in for absent c,ase managers. They perform the same work in the same way as case managers, and are required to have the same educational background and experience (see Ex 18). The grievor began work with the Employer as a relief case manager on December 10, 2001. ~ " , \ . . 3 She has been a Registered Nurse since 1988/9. She has a BSc in Nursing and an Honours degree in Psychology from McMaster University. She is cUrrently taking an external degree in Law from the University of London. For the first three weeks of her employment the grievor was engaged in orientation. Relief case managers are given the same orientation and training as case managers, and the grievor was no exception. During orientation new employees spend their time in classroom study as well as getting hands on experience with a preceptor case manager (see Ex 19). They are given an orientation binder which contains policies and procedures, and a list of abbreviations which the Employer considers acceptable (Ex 20). I accept that the grievor received this material. The Employer assigns case managers to work on teams which are assigned to specific areas of the city. Each team has a team manager who is responsible for it. When a relief case manager is assigned to replace a case manager on a team, she works under the direction ofthe team manager . of that team. At the relevant time the grievor worked on a team managed by Moiya Keenan. It is expected that the team manager will accompany new relief case managers on home visits to clients, and review the documentation prepared in connection with those visits in order observe their performance and to provide feedback and guidance to the new employees. Following orientation the grievor appears to have worked steadily until her discharge on March 18,2002. Because of the nature of the allegations which have been made, it is necessary to deal with the grievor's background in some greater detail than has already been done. The grievor was born in Iran and is Muslim. She lived in Iran for fourteen years before moving to England, where she lived for fifteen years and obtained her RN. She then moved to Canada, where she has lived for over eleven years. English is not her first language. "'>- I \ 4 It should also be noted that in the course of the hearing several documents were produced which related to the Employer's clients. Every reasonable effort was taken to preserve client confidentiality. In setting out the facts in this award that confidentiality will be respected. A great deal of evidence was heard, and much of it was disputed. Both counsel did a thorough review of the evidence which they urged me to consider in support of the points they were making, and I am indebted to them for that. In the course of reviewing my notes in preparing this award I an-anged the testimony ofthe various witnesses and references to the other evidence presented them under the topics to which they referred. This produced seventy-two single spaced typewritten pages. I did this to try to get a clearer picture of what the witnesses were relating about specific events. In examining all of the evidence and considering it in the light ofthe legal framework which I have taken from the submissions made by counsel, I have been able to reach conclusions on the questions which must be answered to determine this case. In view of the volume of the evidence before me, I do not intend to set it out in any detail; rather, I will summarize the conclusions which I have reached and my reasons for so doing under the issues that must be determined. Before dealing with those specific issues, though, I will set out the allegations made and the law which applies in determining whether they have been proven. Allegations The Union alleges that the Employer's discretion was exercised in bad faith and/or contrary to the Human Rights Code, either of which would be contrary to the collective agreement. In summary, the bad faith allegations are: (A) that the Employer judged 'the grievor unfairly and based on errors of fact and wrong assumptions; ';, I , 5 (B) that it held the grievor to a different and higher standard and judged her on that standard; (C) that its decision was tainted by Keenan's unfounded criticisms and misrepresentations, which were accepted, and which influenced the decision to discharge; and (D) that the Employer created a "paper trail" to support its decision and made no attempt to help the grievor improve her performance. The violations of the Code are said to be that the Employer discriminated against and/or harassed the grievor because of her religion, and/or place of origin. It is further alleged that the Employer violated the Code by discharging the grievor as a reprisal for her making complaints that it had violated her rights under the Code. All of those allegations were denied by the Employer. The Legal Framework for the Examination of the Allegations As already noted, this is a case where there were significant differences in the evidence on key events. As both counsel recognized, much will hinge on the findings of fact which I must make and which are in part dependent on my assessment of the credibility of the witnesses. There was really not much difference between counsel regarding the law which must be applied to the facts. I will therefore deal with that aspect of the case as briefly as possible. The cases cited to me are listed in the Appendix to this award. As already noted, the relevant provision of the collective agreement dealing with the discharge of Relief Employees is found in Paragraph 9 of Letter of Understanding (C) to the collective agreement. It is a matter of agreement that the Employer is given "sole discretion" to dismiss such "\. " .. \ " 6 employees "for any reason" subject to the limitations of "good faith" and not being "contrary to law". Although it does not apply to relief employees, I was also referred to Article 1 0,03 of the collective agreement, which deals with the dismissal of probationary employees in very similar terms, except that it includes in the definition of "good faith" an obligation by the Employer to provide probationary employees with a "written assessment" in the first three months of their employment which will "identify areas of needed improvement and assistance where appropriate". The Union has urged me to look at Article 1 0.03 as an aid in defining good faith in this case, and the Employer has argued that I should resist that invitation. Having considered the submissions, I find that I agree with the Employer and reject the proposition that the mere absence of such a written assessment here is evidence of bad faith. I accept that if it were so obvious that such an assessment was evidence of good faith, it would not have been necessary to express it in Article 10.03 because it would have been implied in both the collective agreement and the Letter of Understanding. Rather, I consider the fact that the parties chose to express something as an enhanced concept of good faith in the collective agreement and not in the Letter of Understanding should lead to the conclusion that they did not consider the absence of such an assessment necessarily to be bad faith. As the Supreme Court of Canada noted in Wallace, good faith is not capable of precise definition. In a unionized workplace good faith is most often examined in the context of the dismissal of probationary employees. As in the case of paragraph 9 of this Letter of Understanding, the usual situation in relation to probationary employees is that they can be dismissed at the discretion ofthe employer subject to the obligation to act in good faith and in accordance with the law. Therefore, it " is helpful to look at the way good faith has been defined in cases where probationary employees have been dismissed. Those cases appear to accept the general proposition stated by the Ontario Divisional ." ~ 7 Court in an unreported decision involving the Municipality of Metropolitan Toronto and CUPE Local 43 (Soldano Grievance) which is reproduced at page 56 of the Municipality of Metro Toronto and CUPE Local 79 case as follows: , . . A probationary employee would be entitled to succeed on a grievance in relation to discharge only if he were able to affirmatively establish that the action of the employer was taken in bad faith in the sense that the decision was motivated by unlawful considerations or resulted from management actions which precluded the probationary employee from doing his best. In Wallace, Iacobucci, J., writing for the majority, tried to provide some guidance for determining good faith when considering the dismissal of employees. That case arose in the context of a wrongful dismissal action, but the definition does provide some useful guidance in considering whether bad faith has been established. At paragraph 98 he said that employers . . . should refrain from engaging in conduct that is unfair or is in bad faith by being, for example, untruthful, misleading or unduly insensitive. ~ . . In Scarborough Board of Education "knowingly concealing the true standards by which an employee will be judged" (page 176) was considered to be bad faith. The failure to give an employee a fair opportunity to succeed by not measuring performance against any standards and not giving the employee an adequate time to show that she could perform the work was considered to be bad faith in Gregory Manufacturing (page 77). Similarly, inAbexIndustriesthefailure to articulate standards was found to have prevented the employee from making his best efforts to succeed during the probationary period (paragraph 32). The central theme, with which I agree, is that if an employer's intentional actions prejudices the employee's ability to succeed, then there is bad faith. Although there was no finding of bad faith in IKO Industries, it was noted that simply being incorrect in an assessment of an employee was not bad faith. What is needed is evidence that the ~ " . 8 employer reached conclusions for "an improper motive or based on totally unreliable evidence" (page 358). I agree with that proposition to the extent that such "totally unreliable evidence" must be so unreliable that no reasonable employer acting in good faith could rely on it. IKO Industries is also interesting because it dealt with a licensed millwright who was released during the probationary period because the employer considered that he worked too slowly and because it did not like his attitude. The evidence indicated that the employer had never mentioned either of those things to the employee. Arbitrator Starkman decided, at page 357, that given the employee's credentials and the fact that the jobs were within his competence it was reasonable to conclude that he would know the standards which were expected of him even though they were not articulated. I agree that it is reasonable to expect an experienced professional, for example, to know and appreciate the normal expectations of a job within herlhis professional competence. It must be remembered that in a case such as this the onus is on the Union to prove on balance that the Employer violated the collective agreement by exercising its discretion in bad faith or contrary to law. Further, as some of the cases cited have noted, satisfying that onus is a very difficult. task. An Employer can make an honest mistake or an error injudgment and still not be acting in bad faith or contrary to law. I agree with the following statement inIKO Industries at page 354: A determination of whether an employer acted arbitrarily or in bad faith does not involve a review of the employee's job performance. . . and a determination as to whether the Employer was correct in the conclusions it drew about the suitability. . . for continued employment. . .. Such a review would involve the same considerations as exist in a review of the discharge of a seniority employee for just cause, and this is not what the parties bargained for in this collective agreement. The sections of the Human Rights Code relied on by the Union are sections 5(1 ) and (2) and 8. Those sections are reproduced in full in the Appendix. There is no doubt that under paragraph 9 )- " . 9 of the Letter of Understanding, ifthe Employer dismissed the grievor for reasons prohibited by the Code, including reprisal, such exercise of discretion would be contrary to law and prohibited by the collective agreement as well as being a violation of the Code. Further, if the grievor was harassed in her employment because of any of the factors set out in section 5(2), that would be a violation of the Code. In order to succeed under section 5 the Union must show on balance that the Employer dismissed and/or harassed the grievor by reason of a prohibited ground. In order to succeed under section 8 the Union must show that the grievor was dismissed as a reprisal for claiming or enforcing her rights under the Code. In connection with the reprisal element of its argument the Union cited the Ontario Court of Appeal decision in Entrop. In that decision the court did not deal with what constituted reprisal because that was not one of the grounds of appeal (see paragraph 40). The Human Rights Commission Board of Inquiry defined reprisal as including both intentional and unintentional acts taken by the employer. The court described the Board of Inquiry findings as follows at paragraph 29: . . . In some ofthe incidents she found that Imperial Oil intended to retaliate against Entrop; for others she could find no proof of intent but still held that s.8 had been breached because the "reasonable human rights complainant" in Entrop's position would be justified in perceiving that Imperial Oil had retaliated. The above summarizes the legal framework within which I believe that the facts must be measured to ascertain whether the grievor's discharge has been demonstrated to be improper as defined by the Letter of Understanding and/or the Code. The challenge in this case is ascertaining the facts. " . ' , . 10 Was the grievor's dismissal grievor based on discrimination on grounds prohibited by the Code? The grievor asserted that in discussions with Keenan about her work the latter made comments that were discriminatory in nature. Among such comments were said to be those relating to the grievor's first language not being English, to her place of origin, and to her treatment of a client who was also Iranian. Keenan has denied making any such comments and has denied discriminating against the grievor on any of the grounds prohibited in the Code. When those remarks were allegedly made no one was else was present. Both witnesses were adamant in asserting that their version was the correct one. There was also undisputed evidence that Keenan complimented the grievor about her professionalism and kindness in dealing with clients. It was argued by counsel for the Union that the evidence of Keenan' s dealings with and about the grievor indicate that Keenan "had it in for the grievor" because of her creed, place of origin, etc. Certainly, the grievor's evidence paints a picture of an unreasonable and unprofessional supervisor who was continually picking on her. That picture is disputed by Keenan, who described her actions as giving feedback and guidance to a new relief case manager she saw as deficient in some areas. One person who was characterized by the grievor as someone in management whom she considered to be fair was Sheila Lancaster, who at the time was Director Community Case Management, and as such was Keenan's supervisor. It was Lancaster who made the decision to dismiss the grievor. Lancaster was present at one meeting on February 20, 2002 where certain concerns were brought to the grievor's attention by Keenan. Those concerns centred around two documents (Ex 4, Tabs 1 & 2) which were brought to Keenan's attention by a permanent case manager. There was nothing in Lancaster's evidence to indicate that she considered the concerns Keenan brought to the grievor's attention were unfounded or unreasonable, or that thegrievor was , 0- Il treated in an unprofessional or discriminatory manner by Keenan in the meeting. Further, it is not disputed that one of Lancaster's concerns about the grievor's performance was her interviewing and active listening skills, which would affect her ability to develop appropriate client service plans, and that she mentioned this to the grievor and gave her some material on those skills (Ex. 11). Then~ is no doubt that Lancaster was informed of Keenan's concerns about the grievor's performance. Assuming, but not accepting, that Keenan was predisposed against the grievor because of the latter's creed or place of origin, or for any other prohibited ground, then Lancaster would have been receiving biased reports about the grievor. Assuming, but not accepting, that those reports were biased, if Lancaster based her decision to dismiss the grievor based solely on them, then her decision would have been so tainted as to be contrary to the Code. However, prior to making her decision Lancaster decided to accompany the grievor on home visits and observe her performance first hand. While Lancaster candidly admitted that, knowing Keenan's views of the grievor's performance, she could not help but go on those visits with preconceived notions about the grievor's suitability as a case manager, she also said that she believed she could and did make her own independent decision based on her experience, which is greater than Keenan's. Lancaster observed the grievor conducting two client interviews on MÇlIch 15th. She was not satisfied with the grievor's performance in either ofthem. She then concluded that the grievor lacked the skills to become a case manager and did not appreciate what was being said to her about where those skills were lacking. It was Lancaster's view that it would be impossible to work with an employee to improve skills when the employee did not accept and appreciate that those skills were lacking. Taking Lancaster's evidence as a whole, even if Keenan were biased against the grievor, Lancaster appears to have done an independent assessment ofthe grievor and to have determined on , . 12 her own that the grievor should be dismissed. In other words, even if Keenan's assessment was tainted by bias, I find that Lancaster's was independent enough to be freed of that taint and that Lancaster was exercising independent professional judgment when assessing the grievor's suitability. I should also add that on the evidence before me I would be most hesitant to conclude that the Union has satisfied the onus of proving on balance that the either the Employer or Keenan alone was discriminating against the grievor for reasons prohibited by the Code. That is because there is totally contradictory evidence about what was said from both the grievor and Keenan, both of whom have equally compelling reasons not to be truthful, and no other evidence to clearly support the assertion that Keenan was motivated by considerations contrary to the Code. There is simply not sufficient credible evidence to support the finding that Keenan or anyone else was discriminating against the grievor for reasons prohibited by the Code. Was the grievor being harassed contrarY to s. 5(2) of the Code? There are two aspects to this question: (1) was the grievor being harassed; and (2) if so, was it for reasons prohibited by the Code? Assuming, but not finding, that the grievor was being harassed, . is there evidence upon which to find that in so doing the Employer was acting contrary to the Code? As I understand the grievor's evidence, the only person whose actions are alleged to be biased for grounds that are prohibited by the Code is Keenan. If indeed Keenan was harassing the griever, and I make no finding about that, there is insufficient evidence before me to conclude on balance that it was on prohibited grounds. The only evidence upon which to base the motivation for any harassment is the grievor's, which is disputed by and contradicted by Keenan. There is no logical or reasonable way to determine who is telling the truth. Therefore, I must find that the Union has not satisfied its onus. , . 13 Further, the grievor's evidence characterized Keenan's behaviour as harassing essentially in respect of (a) the correction of an error the grievor made (Exs 7 A to E), (b) the way in which she was treated regarding directions to amend documentation, (c) the demand to accompany her on home visits, Cd) the discriminatory remarks, and (e) the threat to dismiss her. Looking first at the demand to accompany the grievor on home visits: while it is likely that Keenan was making more home visits with the grievor than one would normally expect, there is nothing to suggest that it would be inappropriate for a team manager to make several home visits with a new employee who had exhibited problems interviewing and assessing clients during home visits. There is no evidence to suggest that Lancaster believed that Keenan's requests regarding more home visits were unwarranted. ' Therefore, Keenan's actions in that regard should be regarded as consistent with those of a reasonable team manager unless the contrary can be proven. In relation to the other itemized actions, the grievor and Keenan gave testimony that was irreconcilably contradictory. Looking at the evidence as a whole, there is no sound basis for preferring the griever's evidence over Keenan's. Therefore, I find that the Union has not proven harassment. Did the Employer act in bad faith in dismissing the grievor? The Union alleges that the Employer acted in bad faith by judging the grievor unfairly, and based on errors of fact and wrong assumptions. Given my review of the law, I believe that the Employer can only be said to have acted in bad faith if it knew or had reason to believe that it was acting on errors of fact or wrong assumptions. An employer who makes an honest mistake about an employee does not act in bad faith. The grievor's evidence singles out one person who can be said to have purposely mis- represented her performance and abilities. That person did not make the decision to dismiss her. \ . 14 If there was an intentional misrepresentation by anyone to Lancaster that was intended to influence Lancaster's judgment, and Lancaster acted on that misrepresentation without doing an independent investigation, then it would be reasonable to conclude that the decision was so tainted as to be in bad faith. Let us look then at the quality of the information that Lancaster had and the sources of that information. There is no doubt that Keenan was reporting to her on the grievor's progress. That is to be expected given their positions in the organization. Further, I accept that some of Keenan's comments about the grievor can be construed as possibly misrepresenting or exaggerating the problems the grievor was having (for example, there is no doubt that the griever understood concepts like "mood"). However, even accepting, without finding, that this was an intentional misrepresentation, the evidence is clear that on February 20th Lancaster was present when Keenan was discussing the problems she found with the documents that gave rise to most of those comments (Ex 4, Tabs 1 and 2). It was Lancaster's undisputed evidence that her understanding of Keenan's concerns when that meeting occurred involved the grievor's perceived lack of assessment and communication skills needed to be a case manager, and that she had her own concerns that the griever did not appreciate that there was reason for concern when the grievor approached her on February 20th. Lancaster testified that the perceived problems about assessment skills were stated to the grievor at the meeting. Therefore, it can be concluded that Lancaster's understanding of Keenan' s concerns were not that the grievor did not understand certain basic concepts but that she lacked the assessment and communication skills to get the necessary information from the clients in order to prepare serviceplans to meet client needs. Lancaster acted on that understanding, because that day she gave the grievor a handout about interviewing skills (Ex 11) and talked to her about it. There is no doubt that the ability to conduct an effective interview with a client is an essential , , . . 15 part ofthe case manager job and that the grievor,would have realized that. Lancaster testified that ifthe only problems the grievor had were mechanical, that is, involved grammar, spelling and filling out forms, then they could have worked with that. She also said that if an employee did not accept that she had problems which had to be addressed, then it would be difficult to work with her to correct them. Lancaster went out on two home visits with the grievor on March 15th. She observed the grievor interviewing clients. She formed an opinion about the grievor' s skills as an interviewer based on those observations. As stated above, she was satisfied that she made an independent assessment of the grievor's performance based on her experience. If she made a mistake, the preponderance of the evidence would indic-ate that it was an honest mistake based primarily on her own observations. That is not bad faith. It was also alleged that the Employer held the grievor to a different and higher standard, and judged her on that standard. There is no evidence before me to suggest that either Keenan or Lancaster held the grievor to a higher standard than they used when judging any of the employees under their supervision. There was another newly minted relief case manager working for Keenan at the relevànt time. I heard no evidence about the standards that were applied to that employee. The evidence also indicates that when organizing her thoughts about the grievor's discharge Lancaster used the same performance assessment tool she used in evaluating the performance of permanent case managers (Ex 29). The Union did present evidence from two employees, one of whom testified about her impression of a placement form done by the grievor, and one of whom testified about her impression of the criticisms she heard made at the meeting where the grievor was discharged. I do not doubt the \ . , . . 16 credibility of either ofthose witnesses, nor do I doubt that their views were honestly and reasonably held. Neither of those employees observed the grievor interviewing clients. While the placement form Julie McConnell saw (either one of Ex 5, 6 or 23) gives a compelling picture of a young person in a heartbreaking situation, Keenan expressed concerns she observed in the interview of that client. Those concerns were that the grievor did not ask probing questions to ascertain a significant swallowing difficulty and did not take sufficient care to ensure that the client would not fall. Those are things that would not show up on a form. There is no suggestion that Keenan's concerns about that visit would be illegitimate. Sara Budworth, the Union president, who was present at the discharge meeting, characterized . the problems she heard Lancaster relate as unusual, and said she had never known of a case manager to be held to such a standard. However, she did acknowledge that someone who was present at the home visit the grievor was conducting would be in a better position to evaluate the accuracy of an assessment and assessment skills than someone who read the resulting report. She also acknowledged that it was probable that Lancaster said that she would not go through each example ofthe concerns she had. Budworth indicated that she considered it significant that no case managers expressed concern to her about the grievor's performance. However, the evidence is clear that one case manager did report two instances of concern about the grievor' s performance to Keenan on two separate occasions prior to February 20th. There were several letters of support filed on behalf of the grievor from bargaining unit members (Ex 4 Tab 16). Only one of the writers testified. Some of the letters were solicited. Except for that of the one writer who testified, the rest are all hearsay as to the truth oftheir contents. I do not find them of any probative value in determining this or any ofthe questions before , ~ . 17 me. I accept that they are an indication that the grievor was a well liked and pleasant colleague. I also find that it would be reasonable to expect the grievor, as a professional gGing into the position of relief case manager, to know what was expected of her in relation to interviewing and assessment skills. Further, I also find that Lancaster did give the grievor a blank performance evaluation form (Ex 28) on February 20th when they met, and that she used that same form when setting out her thoughts evaluating the grievor' s performance of March 15th. As I have already found, the Employer is under no obligation to do a formal performance evaluation for relief employees, and the failure to do one is not evidence of bad faith. It was also alleged that the Employer's decision was tainted by Keenan's unfounded criticisms and misrepresentations, which were accepted and which influenced the decision to discharge. There is no evidence before me from which I can conclude that it was more probable that not that Keenan's criticisms were all unfounded, especially since Lancaster also observed the grievor conduct interviews on home visits. The evidence about the conduct of home visits when Keenan was present with the grievor comes down to the grievor's version against Keenan's, and there is no reasonable basis on which the grievor's can be preferred over Keenan's. While an experienced placement coordinator, who works with assessments done by case managers, testified to the effect that one of the forms completed by the grievor was more than adequate for her to do her job, that evidence can only speak to the adequacy with which material was presented, and not to the adequacy of the interview and communication skills needed to obtain appropriate material. That is, the placement coordinator can say whether the form presented data well, but cannot not say whether the correct data was presented or whether it is accurate. Based on Lancaster's evidence, her decision concerning the grievor's suitability for the job was based primarily on her assessment of the grievor's ability to conduct an .. " . . . 18 interview to obtain appropriate information, and the grievor's lack of appreciation that she was deficient in the required skills. There is no reason to reject Lancaster's assertion. Moreover, as I have already stated, I consider that in order to show bad faith the Union would have to show something more than a mistaken impression of the grievor based on honest mistakes about her performance. If Keenan made an honest mistake in evaluating the grievor and then Lancaster acted on that honest mistake, there is no bad faith. While Lancaster has frankly admitted that she was influenced to some degree by Keenan's impressions of the grievor, she also firmly stated that she made an independent assessment of the grievor based on her own observations and experience. There is no evidence to suggest that Lancaster did not form her own impression of the grievor's ability. On the basis of that evidence alone, I cannot find that the Union has made out its case of bad faith in relation to this allegation. Another aspect of the bad faith allegation was that the Employer created a"paper trail" to support its decision and made no attempt to help the grievor improve her performance. As counsel pointed out, employers subject themselves to criticism for not documenting performance concerns and to criticisms for papering the file when they do document concerns. Keenan testified that the notes she made of meetings with the grievor and plans they set were done for her own files and conform to her usual practice. That sounds like a reasonable practice, and there is no evidence to contradict that it is. There is no evidence to suggest that she departed from her usual practice in this case. Lancaster was in slightly different position because as Keenan's supervisor she was privy to Keenan's concerns, and had also been approached by the grievor, who was expressing concern both about Keenan's desire to go on another home visit, and about her future with the Employer. It is reasonable for a supervisor in Lancaster's position to make notes about what may become a problem , , "" , . 19 which she sees emerging and to consult with Human Resources. Further, I accept Lancaster's evidence that on February 20th she clearly indicáted to the grievor that her performance had to improve and that failure to improve could lead to her discharge, and that Exhibit 30 is an accurate representation of that meeting. I do not accept the Union's submission that the decision to dismiss the grievor was taken before the March 15th home visits that Lancaster went on with the grievor, and that what followed was simply "rubber stamping" that decision. On March 16th Lancaster wrote to Barb Headly, the Director of Human Resources, with a copy to Keenan. The relevant portion of that note (Ex 32) reads as follows: Barb: I am giving you a heads up that we need to meet as soon as possible to proceed with the termination of Mitra West. I went out on two visits with Mitra on Friday and she really does not have the basic assessment and communication skills required for the job. . . . I was asked to infer from the use of "proceed" that the decision to discharge was already made prior to March 15th. The evidence before me concerning the context in which this note was written indicates that long before March 15th the Employer had doubts about the grievor's ability to do the job and brought those to the grievor' s attention. Lancaster had specifically discussed the possibility of dismissal witb the grievor on February 20th. The grievor was naturally apprehensive about her future with the Employer and consulted with the Union, specifically complaining about Keenan's behaviour toward her. The Union approached Lancaster and Headly about the grievor' s concern that Keenan would not treat her fairly. In consultation with the Union the grievor wrote on March 8th to Keenan, with copies to Lancaster and others, indicating, among other things, that she believed Keenan was dealing with her contrary to the collective agreement and the Code (Ex 4, Tab 7). Lancaster consulted with Headly <¡ . , , . ... . 20 and decided that in view of everything Lancaster should go out on a home visit with the grievor and assess the situation for herself. There is no doubt that the possibility of dismissal was on everyone's mind, and so it is not really surprising that a word like "proceed" would be used, even in the absence of a pre-determined decision. Was thegrievor discharged as a reprisal for seeking to enforce rights under the Code? As noted above, on March 8th, ten days before her discharge and one week before Lancaster accompanied her on home visits, the grievor wrote to Keenan, sending a copy to Lancaster, making allegations that her rights under the Code had been breached. The relevant portions of that letter are set out below (Ex 4, Tab 7): I feel that the letter YQu sent me dated March 6th, 02, and our recent interactions in supervisor/employee relationship, constitutes harassment and discrimination. More specifically I feel that I am being held tò a standard of documentation and assessment that is not clearly outlined with an attainable goal, and is not universally expected. I feel that this is contrary to Article 5.01 of my Collective Agreement, and more specifically the Ontario human rights Code. The March 6th letter referred to (Ex 4, Tab 5) followed a morning meeting between the grievor and Keenan, which begins by noting improvement in documentation the gÜevor had submitted, states that they had discussed Keenan's concerns about the grievor's "assessment and documentation skills"observed on a February 2pl home visit Keenan accompanied her on, sets out some specific criticisms of documentation of that visit, and sets out a plan which included Keenan reviewing the griever's documentation and going on another home visit within the week. As in virtually all of the evidence about one on one encounters between the grievor and Keenan, there is a considerable amount of disagreement about what occurred in the meeting. There can be no doubt that by March 8th the grievor was anxious about her future with the . , to' . . 21 Employer, and that the Employer had never heard her allege discrimination and harassment in violation of the Code. Both Keenan and Lancaster reported being shocked by the letter. There is no doubt that it was the significant factor in Lancaster's decision to go out with the grievor on a home visit to assess the situation for herself. Certainly, Lancaster had concluded at least by March 8th that the grievor had no confidence in Keenan's ability to assess her skills fairly. The evidence clearly shows that the decision to discharge the grievor was made by Lancaster following the March 15th home visits and a review of the reports the grievor sent her about those visits, and it is clear that by March 16th she had decided to discharge the grievor (see Ex 32 reproduced above). On March 18th Lanèaster completed Exhibit 29 and met with Keenan and Headly to discuss the situation, and Keenan made her recommendations at that meeting; however, in view of Lancaster's note of March 16th, one must wonder what effect that recommendation would have had. Keenan said that she recommended discharge in part because after reading the grievor' s letter of March 8th (Ex 4, Tab 7) she concluded that the grievor did not understand and realize the import of the feedback she was being given, and was resistant to it. She said that realizing this was one of the reasons why she recommended discharge. Lancasteralso said that the grievor's letter reinforced her perception of the gap between how she and Keenan viewed the grievor's ability and assessment skills and how the grievor viewed them herself. She said that it showed her that the grievor did not understand how they saw her and that they could not work together if the grievor did not share their concern about her perceived deficiencies. Lancaster then went on the home visits and drew her conclusions about the grievor's skills as already outlined above. , . I;' - 22 Lancaster is the critical person in determining whether or not the discharge was intended to be a reprisal against the grievor for asserting her rights under the Code. Based on her evidence, I cannot find such an intention. It is reasonable, when Lancaster already had doubts about whether the grievor was understanding and accepting the Employer's concerns, that she should read the letter as another indication that her doubts were well founded. I have accepted Lancaster's evidence about how and why she made the decision to dismiss the grievor when considering the other issues raised, and those reasons do not include an intention to take aètion against the grievor because of the complaint. In determining whether there was reprisal of an unintentional nature, Entrop looked at whether a reasonable complainant would be justified in concluding that the Employer had retaliated. The grievor did not testify that she thought her discharge was in retaliation for her complaint. Budworth, the Union president, who was involved in the meeting where the decision was given, and had been involved with the grievor before in connection with the complaint, did not testify that she considered the discharge was in retaliation for the complaint. Where there is no such perception asserted, I am reluctant to engage in a hypothetical exercise to determine whether, if it had been asserted the discharge was retaliatory, a reasonable person in the position of the grievor would have been justified in coming to that conclusion. Be that as it may, there certainly is a temporal link between the complaint and the discharge in that the one followed the other. However, not all temporal links are causal links, and it is not reasonable to think that just because one event follows the other the later has been caused by the earlier. In this case I believe a temporal link is all there is. There is no doubt that prior to March 18th the grievor, Keenan and Lancaster all appreciated that there was a real possibility that the grievor's <I . . -t' . . 23 employment could end. Lancaster had raised the possibility with the grievor as early as February 20th in response to the grievor's comments about herdesire to stay. Given the context and the ongoing iteration of performance concerns, I do not consider that a reasonable person in the grievor' s position would be justified in concluding that her discharge was in reprisal for having made the complaint on March 8th. Conclusion The task of this award is to review the manner in which the Employer exercised its discretion under Paragraph 9 of the Letter of Understanding in the collective agreement between the parties. It is not to review the performance of the grievor and not to determine whether the Employer had cause to discharge her. I have made no judgement about the quality of the grievor's work or about her skills as a case manager because that is not the point. The parties have given the Employer sole discretion to determine whether relief case managers will remain in employment subject to the obligation to act in good faith and not contrary to law when making that decision. It is a heavy burden for the Uni9n and not one which is easy to satisfy. Given all of the evidence before me, I am not satisfied on balance of probabilities that the Union has shown that the Employer acted in bad faith or contrary to law. The grievance is therefore dismissed. DATED AT LONDON, ONTARIO THIS 3RD DAY OF MAY, 2004. Js~~ Gail Brent ,- > . ,," , , .~ 24 APPEND IX Cases Cited: Entrop v. Imperial Oil Ltd. (2000), 189 D.LR.(4th) 14 (O.C.A.) Wallace v. United Grain Growers Ltd. (c.o.b. Public Press), [1997] 3 S.c.R. 701 Salvation Army (Sunset Lodge) v. B.eN.U., [2003] LV.I.3404-1 (Hope, B.C.) Re Board of Education for the Borough of Scarboro ugh and Ontario Secondary School Teachers' Federation, District 16 (1980), 26 LA.c.(2d) 160 (M. Picher) Re Gregory Manufacturing Ltd., Specialty Products Division and International Woodworkers of America, Local 1-357 (1985),18 LA.c.(3d) 71 (Vickers, B.C.) Abex Industries Ltd. V. U.F.e w., Local 173W (1995),48 LA.C.(4th) 353 (Brown) Ontario Legal Aid Plan and Ontario Public Service Employees' Union (Ling Xia Grievance) (1991),22 C.LAS. 555 (Brent) Re Municipality of Metropolitan Toronto and Canadian Union of Public Employees, Local 79 (1984),18 LA.c.(3d) 52 (O'Shea) Re IKO Industries Ltd. and United Steelworkers of America, Local 8580 (2000),88 LA.c.(4th) 348 (Starkman) Statute Cited: Human Rights Code 5(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, same-sex partnership status, family status or disability. (2) Every person who is an employee has a right to freedom from harassment. in the workplace by the employer or agent efthe employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, same-sex partnership status, family status or disability. 8 Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right ofanother person under this Act, without reprisal or threat of reprisal for so doing.