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HomeMy WebLinkAboutA.A. 22-10-11IN THE MATTER OF A GRIEVANCE ARBITRATION BETWEEN ONTARIO SHORES (the Employer) - and - THE ONTARIO PUBLIC SERVICE EMPLOYEES’ UNION, LOCAL 331 (the Union) GRIEVANCE OF A.A. OPSEU # 2019-0331-0142 A W A R D APPEARANCES: For the Employer: Amanda Cohen, Counsel Lava Narenthiran, Articling Student Gordon Shantz, Labour Relations Lead Wendy Coward-Reid, Human Resources Consultant Jason Ferreira, Manager For the Union: Matthew Appignanesi, Grievance Office Jonathan Leung, Local President The hearing of this matter was conducted by way of Video Conference on September 22, 2022. 1 This case involves the release from employment of a probationary employee. The Union alleges that the release was arbitrary and discriminatory. The Employer asserts that its decision was an appropriate exercise of managerial discretion. To the Parties’ credit, the case was presented by way of an Agreed Statement of Facts and “Will Say” statements, thereby avoiding the necessity of “viva voce” evidence. The “Will Says”, together with the responses to the written “cross-examination” questions and answers for one witness, are attached hereto as Appendix A. These documents and their exhibits constitute the evidence in this matter. Given the care with which they have been drafted and the Parties’ decision to proceed on the basis of these materials, there are no credibility issues and no disputes about the facts. It should be noted that I have exercised my arbitral discretion to anonymize the Grievor’s name in this Award. I have done so at my own initiative because of the personal nature of some of the circumstances in this case. The context of this case is important. The Employer is a public hospital that provides in- patient and out-patient services for people with complex mental illness. The patients are very vulnerable. The Grievor was hired to provide Repetitive Transcranial Magnetic Stimulation (rTMS) brain stimulation therapy to these patients. At the time of her hire, she had no training in the therapy or the equipment that she would be using. Her probation began with her attending off-site from this Hospital at the Centre for Addiction and Mental Health (CAMH) for the specific training that she needed. The first week of the off-site training was mandatory. The second week involved “shadowing” CAMH trainers. This was an “optional” choice that she elected to accept. During her time at CAMH, the Grievor was taught and observed by employees of CAMH. It was their observations and reports that led to the Grievor’s release. The Agreed Facts are as follows: 2 Background 1. [The “Grievor”] was employed as a Repetitive Transcranial Magnetic Stimulation (“rTMS”) Technician in the Brain Stimulation Clinic at Ontario Shores. The Grievor was employed in this position from November 19, 2019 until her termination on December 12, 2019. A copy of her offer letter dated October 31, 2019 [was filed in evidence]. 2. rTMS Technicians are responsible for delivering rTMS brain stimulation therapy to inpatients and outpatients of [a] tertiary care mental health facility. Their duties include, but are not limited to, preparing patients for rTMS treatment, providing daily or weekly rTMS therapy to patients, observing patients through rTMS treatment and recording patient behaviors. 3. A copy of the rTMS Technician job description [was filed in evidence]. The relevant portions are as follows: Position Summary: To deliver Repetitive Transcranial Magnetic Stimulation (rTMS) brain stimulation to in-patients and out-patients of tertiary care mental health facility . . . Key Duties and Responsibilities [include]: - Provides daily or weekly rTMS therapy to patients with treatment resistant illness including MDD, PTSD, OCD, Bipolar disorder, Schizophrenia, and Alzheimer’s Disease - Preparing patients for rTMS treatment - Observing patient throughout the treatment; recording patient behaviours; recognizing artifacts and taking appropriate corrective measures; describing normal and abnormal manifestations that occur during the test - Responsible to recognize and report patient, staff and environmental issues, identify and implement preventative and corrective actions, within the scope of this role. 4. rTMS Technicians at Ontario Shores are provided with training on the performance of rTMS treatments on mentally ill patients and on using digital rTMS equipment. The training course is titled “Administering rTMS for Psychiatric Disorders” and is mandatory for all rTMS Technicians. This course is an intensive training program in the administration of rTMS for the treatment of psychiatric disorders. 5. The Administering of rTMS for Psychiatric Disorders training has two components: one mandatory component, which is one week of mandatory training and an additional week of optional observation. Some individuals who 3 take the course, such as the Grievor, are offered an additional optional week of observation. During this second week, individuals have the opportunity to shadow rTMS Technicians. Employees are paid for their time participating in both portions of the training course. 6. In December of 2019, this training was conducted for Ontario Shores rTMS Technicians by the Centre for Addiction and Mental Health (“CAMH”). 7. At the time of her termination, the Grievor was still in her probationary period. The Employer alleged in its termination letter that the Grievor failed to meet probationary standards. A copy of the Grievor’s termination letter [was filed in evidence]. 8. A copy of the Collective Agreement between Ontario Shores and OPSEU [was filed in evidence]. 9. Article 17.02 of the Collective Agreement provides as follows: 17.02 The Centre shall have the right to release a probationary employee for reasons based on performance and the ability to do the job, including skills, suitability, and availability. Such release shall be at the discretion of the Employer and shall not be subject to the grievance procedure unless the probationary employee is released for reasons which are arbitrary, discriminatory or in bad faith. The Start of the Grievor’s Orientation with Ontario Shores 10. On October 17, 2019, the Grievor was provided with the Occupational Health documentation that she was required to complete prior to starting orientation with Ontario Shores. The Grievor was advised by Ontario Shores that her orientatio n was scheduled for November 19, 2019. The Grievor did not provide completed copies of all of this required documentation until November 19, 2019. 11. The Grievor started orientation on November 19, 2019. She completed a further day of orientation on November 20, 2019. 12. On November 19, 2019, the Grievor’s grandmother .... passed away. The Grievor attended the funeral services on November 22, 2019. 13. On November 22, 2019, Ms. Lee sent an email to the new rTMSs, including the Grievor, advising that the additional week of observation would be available to the Grievor and another rTMS Technician, Janice Knight. Ms. Lee requested that they confirm whether they would be interested in participating in the shadowing. 4 The Grievor responded the same day advising that she “would love to attend the additional training and shadow the CAMH Techs from December 9-13”. 14. In her response the Grievor also advised Ms. Lee that her grandmother had passed away. 15. On November 25, 2019, Ms. Lee responded to the Grievor providing condolences. She also asked the Grievor to confirm what days she had attended orientation the prior week. Ms. Lee advised the Grievor that she would adjust any days that the Grievor was not in attendance as bereavement. A copy of the email correspondence between the Grievor and Ms. Lee [was filed in evidence]. The Grievor’s Training at CAMH 16. The Grievor started the Administering rTMS Stimulation training at CAMH on December 2, 2019. 17. On December 6, 2019, the Grievor received a Certificate of Completion for the “Administering rTMS for Psychiatric Disorders” course she had taken at CAMH. A copy of this Certificate [was filed in evidence]. 18. On December 9, 2019, the Grievor began her week of shadowing rTMS Technicians at CAMH. 19. On December 9, 2019, the Grievor emailed one of the rTMS Technician at CAMH that the Grievor was shadowing, Caitlin Newberry, advising that she had a specialist appointment scheduled for 11:00 a.m. on December 10, 2019, and would not be able to attend to shadow Ms. Newberry that morning. The Grievor asked if she could come in for shadowing in the afternoon. 20. The Grievor did not advise Ms. Lee or anyone at Ontario Shores of this specialist appointment. 21. The Grievor followed up with Ms. Newberry on December 10, 2019, advising that her specialist appointment was running long and that she would not be able to attend for shadowing until 2:30 p.m. At 1:37 p.m. on December 10, 2019, Ms. Newberry responded to the Grievor telling her not to come in for the afternoon and to report to CAMH first thing the following morning. 22. The Grievor responded to Ms. Newberry at 2:39 p.m. on December 10, 2019, advising that she was unavailable December 11, 2019 “but I would like to thank both you and Sarah for the hard work on training us, and the tips that you both 5 have provided to me”. A copy of the email correspondence between the Grievor and Ms. Newberry [was filed in evidence]. 23. On December 10, 2019, at 4:14 p.m., the Grievor started a new email thread with Ms. Newberry and asked what time she should attend shadowing on December 11, 2019. Ms. Newberry wrote that the Grievor should attend at 9:00 a.m. the following day. A copy of this email correspondence between Ms. Newberry and the Grievor [was filed in evidence]. 24. On December 10, 2019, at approximately 4:15 p.m., the Grievor received a call from Ms. Lee and the Regional Co-Director for Mental Health and Addictions, Scott Pepin, regarding feedback about her performance. Ms. Lee also raised with the Grievor the fact that she had not advised Ms. Lee of her specialist appointment or that she would need to miss training in order to attend at her appointment. 25. On December 10, 2019, at approximately 5:00 p.m., Ms. Lee called the Grievor back and advised her not to attend shadowing on December 11, 2019. Ms. Lee told the Grievor to come to her office for a m eeting on December 12, 2019. The two exchanged emails regarding the timing of the meeting. A copy of the email correspondence between the Grievor and Ms. Lee regarding this meeting [was filed in evidence]. 26. The Grievor was terminated following the December 12, 2019 meeting. 27. On December 13, 2019, the Union filed a grievance relating to the termination of the Grievor’s employment (the “Grievance”). A copy of the Grievance [was filed in evidence]. 28. On December 23, 2019, Jennifer Bennie, a Senior Manager at CAMH, emailed Sarah Piekarski, a Coordinator at CAMH, requesting summary statements about training with the Grievor. Ms. Newberry was copied on this email request. 29. Ms. Newberry responded to Ms. Bennie’s request for statements about training with a document containing feedback on the Grievor’s performance. Ms. Bennie provided this email and attached document to Ms. Lee on December 23, 2019. A copy of this email exchange [was filed in evidence]. It is important to point out that the Employer has not relied on any of the events leading up to the training sessions at CAMH to support the decision to release the Grievor. Nor has the Employer challenged the fact that the Grievor received the “Certificate of 6 Completion for the Administering of the rTMS for Psychiatric Disorders” from CAMH at the end of her first week of training. It was the information that the Employer received from CAMH that led to the Grievor’s release. On Tuesday, December 10th, in the second week of the Grievor’s shadowing/training, Ms. Lee received a call from a Senior Manager at CAMH who listed a series of “concerns” that CAMH’s Technician Trainers had raised about the Grievor’s performance during her previous week of training. The concerns included the following comments: - “Inability to keep pace” - “lacked insight” - “not willing to look for treatment parameters” - “not willing to perform treatments as outlined” - She indicated that she did not need training - She indicated that she would “practice on her teddy bear” Further, Ms. Lee was told that the Grievor had been absent on December 10th because of a scheduled medical appointment and had indicated in an email to CAMH that she would also be “unavailable” to attend training on December 11th. The Grievor’s email conveyed the impression that she was not intending to return to complete her shadowing/training. Ms. Lee also received an email on December 10th from the Co- Director of CAMH’s Electroconvulsive Therapy Service advising that she had received a call from the Co-Director of the Temerity Centre for Brain Intervention at CAMH indicating that he had “major concerns” about the Grievor. Ms. Lee was disturbed by the fact that the Grievor had failed to advise her or anyone at Ontario Shores about the scheduled absence(s) during training. More importantly, the information from CAMH led Ms. Lee to conclude that “the Grievor’s personality made it almost impossible to teach her” [see Cross-Examination of Ms. Lee below]. 7 This prompted Ms. Lee to convene a call with another member of the Employer’s Management team and the Grievor on December 10th, during which the feedback that had been received from CAMH was outlined to the Grievor. The Grievor’s responses to the feedback left Ontario Shore’s management with the impression that the Grievor was “confused” and was failing to “take accountability” for her shortcomings. The Grievor’s explanation for this is that she was surprised by the feedback, asserting that she had not received any criticism or coaching from CAMH trainers or any indication that she might be failing to meet probationary standards. It is also clear that the Grievor did not indicate to the Employer that she had been mistaken when she had told CAMH about being unavailable to attend training on December 11th and had written a correction to CAMH arranging for her return on that day. Therefore, Ontario Shores’ management was left with the impression that the Grievor had planned to absent herself from two days of the week of shadowing/training. At the end of the telephone call, Ms. Lee instructed the Grievor not to return to CAMH and instead to come in to Ontario Shores on December 12th. In the ensuing meeting on Thursday, December 12th, the Grievor was released and was told that the reasons were: - The fact that she did not apprise her Ontario Shores Supervisor of the medical appointment scheduled on December 10th - She did not appear to be “committed” to her role The formal letter that was given to her states: “We have deemed that you failed to meet the probationary standards for an rTMS Technician in the Brain Stimulation Clinic”. Following the release of the Grievor, Ms. Lee asked CAMH to provide a summary of their Technician Trainers’ interactions with the Grievor. CAMH then sent an email summarizing the Technician Trainers’ comments about the Grievor’s “behaviour” during her training and shadowing: 8 Course Week One: December 2 - 6, 2019 - She did not participate in course practice on the second day of training due to what the CAMH called a “headache” - Initially had difficulty grasping concepts that other students understood faster - Did not demonstrate understanding of fundaments of the proces s and would not ask for clarification - Could not replicate corrections pointed out to her - Did not make it clear whether she recognized when she was doing things improperly - Needed one-on-one assistance - Able to successfully conduct the required measurement by the end of the week Course Week Two: December 9-10 - “Shadowing portion” - After practicing placement of the device once, she said she was content and did not need any further practice - Declined invitation to indicate treatment tape and spots, stating that she would rather watch because she had done it many times before and passed the testing the week prior - “Expressed desire at multiple instances to leave shadowing early Monday. Did not seem enthusiastic about shadowing”. - Said that she felt fully comfortable and did not feel she needed further practice Long after the Grievor was released from employment, she provided the Employer with medical information explaining her headaches and her need to attend the medical appointment on December 10th, all stemming from her surgery on November 29, 2019. The Submissions of the Parties The Submissions of the Union The Union asserted that the Grievor’s release was arbitrary and discriminatory. It was submitted that the Employer acted arbitrarily by relying exclusively on “second and third hand” reports from CAMH without investigating or verifying any of that information. The Union also criticized the Employer for only seeking the details in writing weeks after the Grievor was released. The Union argued that the Employer failed to make the probationary standards clear to the Grievor during her probation or even in this hearing. It was stressed that since CAMH issued the Grievor the Certificate of Completion for the 9 “Administering rTMS for Psychiatric Disorders”, it was unreasonable for the Employer to release the Grievor for failing to meet the probationary standards for an rTMS Technician. The Union properly conceded that some of the “concerns” that C AMH raised with the Employer about the Grievor could amount to something that might justify the release of a probationary employee. However, it was stressed that without conducting its own investigation and/or receiving any particularization about the actual reasons for the “major concerns”, the Employer was acting arbitrarily. The Union suggested that some of the concerns cited by CAMH were “so vague as to be meaningless”, citing “lack of insight” as one example. Further, since the Employer relied on CAMH saying that the Grievor did not seem committed to her training, it was submitted that this Employer should have taken into consideration the fact that the Grievor opted for the additional week of “shadowing” and that her absences were due only to unavoidable medical reasons stemming from her recent surgery. The Union also asserted that the Employer was acting arbitrarily in assuming the Grievor’s responses to CAMH’s feedback indicated “confusion” and “lack of accountability” during the telephone call on December 10th. It was submitted that since the alleged concerns had not been mentioned to the Grievor previously, the Grievor’s surprised responses and defensiveness were understandable. The Union also submitted that the Grievor’s release from probation was discriminatory. It was stressed that the Grievor’s absences were due to a headache and follow-up appointment with a specialist, all arising out of her surgery a few weeks prior. The Union asserted that it was discriminatory to use these absences as grounds for her release. By way of remedy, the Union asked for the Grievor to be reinstated, with full seniority and compensation dating back to the date of her release, plus damages for the breach of her right to be free of discrimination on the basis of disability. 10 In support of these submissions, the Union relied on the following authorities: GDI Services (Canada) LP and LIUNA Local 183 (Jimenez), 2014 CarswellOnt 16152, CanLII 65200 (ON LA) (Hayes); Waterloo (Regional Municipality) and CUPE, Local 1883, 1993 CarswellOnt 6175 (Mikus); Toronto Star Newspapers Ltd. and IAM 235, 1995 CarswellOnt 1416 (Brown); Ontario (Human Rights Commission) v. Simpson- Sears Ltd., 1996 CarswellOnt 887 (S.C.C.). The Submissions of the Employer The Employer began by stressing that since the Grievor was a probationary employee, Article 7.02 of the Collective Agreement and the arbitral case law establish that her release does not need to be justified by any standard of “just cause” or “reasonableness”. This Employer relied on its ability to exercise its discretion to release a probationary employee, provided that it did not act in a way that was arbitrary, discriminatory or in bad faith. Addressing the allegations of arbitrariness and discrimination in this case, the Employer stressed that given the vulnerability of the patients at this Hospital with complex mental illnesses, this Employer has an obligation to ensure that its staff perform at the “highest standards” of professionalism. It was acknowledged that the Grievor did become certified on the use of the rTMS therapy. However, it was said that competence was not sufficient to satisfy the Employer that the Grievor could meet the high standards expected of employees at this Hospital. Further, it was emphasised that after committing to the optional week of shadowing her rTMS trainers, the Grievor was expected to attend at CAMH for the full week to improve upon the skills that were required for the job. It was also stressed that the Grievor’s need to attend a medical appointment on December 10th was not one of the reasons for her release. Instead, it was her failing to advise her actual Employer of the scheduled absence during her training. 11 The Employer also submitted that the feedback from CAMH about the Grievor during the training raised serious concerns that have not been contradicted. Further, the Employer emphasized that CAMH’s Co-Director of the Temerity Centre took the unusual step of saying that he had “major concerns” about the Grievor during her training. It was argued that the information received from CAMH was reliable, giving rise to this Employer appropriately concluding that the Grievor would not be suitable for continued employment. The Employer responded to the Union’s complaint about the Employer assuming that the Grievor was not committed to the training by pointing out that the Grievor failed to tell her own Employer that she had corrected the email she had sent to CAMH saying that she was “unavailable” on December 11th. Therefore, it was said that this led the Employer to reasonably conclude that the Grievor was not committed to the training process. It was also argued that the optional nature of the second week of training is irrelevant, given that the Grievor was a paid employee of the Hospital and that once she opted into the week of shadowing, she was obliged to attend. The Employer also responded to the Union’s characterizations of CAMH’s itemized concerns as being “vague”, by stressing that they were all communicated to the Grievor on December 10th and that she was given an opportunity to respond . It was argued that the issue in this case is not whether the Employer was correct in its conclusion s, but instead whether its decision was based on unreliable evidence or based on illegal or invalid considerations. It was stressed that given the feedback and the Grievor’s responses, the Employer was entitled to exercise its discretion to conclude that the Grievor was not suitable for advancement to a full-time position at this Hospital. Although it was argued that the grievance should be dismissed, the Employer addressed the question of remedy in the alternative, stressing that the Grievor was a probationary employee for less than one month and that these events occurred three years ago. Under these circumstances, it was submitted that it would be inappropriate 12 to reinstate her with full seniority and compensation because there is no evidence tha t she is able to perform the job as required. Further, in the alternative, if the grievance is upheld, it was argued that the appropriate remedy would either be “nominal” damages, or damages calculated on the basis of one month per year of service, plus 15%, or to reinstate her as a probationary employee without any compensation. In support of these submissions, the Employer relied on IKO Industries Ltd. v. USWA, 2000 CarswellOnt 5923 (Starkman); Algonquin College and OPSEU, Local 415 (Sumitro), 2006 CarswellOnt 11534 (Knopf); Mississauga (City) and ATU, Local 1572 (Adorghoh), 2021 CarswellOnt 10785 (Randazzo); AUPE v. Lethbridge Community College, 2004 SCC 28; DeHavilland Inc. and CAW Canada, Local 112, 1999 CarswellOnt 5421 (Rayner). The Union’s Reply Submissions Accepting that the Employer cannot be held to a standard of just cause, the Union argued that the decision to release the Grievor was arbitrary because the Employer failed to conduct even a “cursory investigation” of CAMH’s stated concerns about the Grievor. It was suggested that there was obvious friction between the Grievor and her CAMH trainers. Therefore, it was said that the failure of this Employer to rely on any direct observations of the Grievor or to delve into the details of CAMH’s concerns resulted in an arbitrary decision-making process. Turning to the case law cited by the Employer, the Union argued that those cases are distinguishable on their facts and that damages are appropriate where there is a finding of discrimination. 13 The Decision The cases cited by both Parties set out the well-established arbitral approach to probationary releases from employment. As the Collective Agreement and the case law make clear, an employer has the discretionary right to bring probation to an end for reasons that do not amount to “just cause”. However, the decision cannot be arbitrary, discriminatory or made in bad faith. In this case, the only issues are whether this Employer’s decision was arbitrary or discriminatory. The arbitral assessment of evidence in a case such as this was summarized by Arbitrator Hayes in GDI Services (Canada) and LIUNA Local 183, supra, as follows: 81. There is no question that arbitral review of a probationer termination should be conducted on a lesser standard than the usual ‘just cause’ standard applicable to permanent employees. Nor do I question, that the familiar ‘arbitrary, discriminatory, or bad faith’ formulation is the presumptively appropriate baseline test. Nor do I believe that employer review of probationary performance should be encumbered by arbitral imposition of the level of due process safeguards typically required in cases where seniority rated employees are concerned. I also accept that an employer’s assessment of “suitability” or “qualifications” should be given a wide berth. I agree as well that there will be many situations where what is expected of a probationary employee should be self -evident. In these respects I do not quarrel with IKO Industries, the award upon which the Employer places particular emphasis. 82. IKO includes a reference to Re: Board of Education for the Borough of Scarborough (1980), 1980 CanLII 4039 (ON LA), 26 L.A.C. (2d) 160 (M.G. Picher) at p.177. I do note however that Arbitrator Picher over 30 years ago embraced a meaning of ‘arbitrary’ with more reach than the definition advanced by the Employer [in paragraph 76 above]: The term ‘arbitrary’ has been considered and interpreted in a number of cases by the Courts. It is generally accepted to mean “capricious”, “without any reasonable cause” and “without reason” Quinion v. Home, [1906] 1 Ch. 596 at pp. 603-4; Mills v. Cannon Brewery Co. Ltd. [1920] 2 Ch. 38 at p.45. A source of analysis in the field of employment relations has been the decisions of Courts and labour boards defining the common law or statutory duty of a union not to be arbitrary in its representation of employees. These cases have found “arbitrary” to mean “at whim” (Griffin v. U.A.W. (1972), 469 F. 2d 14 181 (4th Cir.)) and “perfunctory” (Holodnak v. Avco Corp. (1974), 381 F. Supp. 191 (D. Conn.); modified 514 F. 2d 285 (2nd Cir.)) Canadian labour boards have defined as arbitrary decisions which demonstrate a failure to put one’s mind to the issue and engage in a process of rational decision-making (Re Prinesdomn and C.U.P.E., Local 1000 and Ontario Hydro Employees Union, [1975] 2 Can L.R.B.R. 310 (Adams)) and a failure “to take a reasonable view of the problem and arrive at a thoughtful judgment about what to do after considering the various relevant and conflicting considerations (Re Rayonier Canada (B.C.) Ltd. and Int’l Woodworkers of America, Local 1-217 and Anderson and Forest Industrial Relations, [1975] 2 Can. L.R.B.R. 196 (Weiler) at pp. 201-2). It is not necessary for this board to exhaustively canvass the possible meanings of arbitrariness as that term relates to the duty of an employer not to discharge a probationary except for just cause. For the purposes of this award we accept that it means, at a minimum, that in considering the discharge of a probationary employee an employer must not demonstrate an attitude of not caring or failing to turn his mind to the merits of the issue. . . . . . 87. While the reasoning in IKO grants significant rein to employers, it is careful to concede some limit to arbitral deference in cases of this kind (at para. 45). Arbitrators should be careful not to supersede employer assessments of probationer suitability by second-guessing. But, as Arbitrator Starkman stated, it is quite a different thing “if the Employer drew its conclusions about the suitability of the grievor for an improper motive or based on totally unreliable evidence”. That may be a high bar for a Union to overcome but there is a bar that may be attempted. An employer with broad discretion should not count on timid third party deference to provide virtual immunity from the requisite arbitral scrutiny. There must be limits to the “near complete discretion” claimed by the Employer. There is another excerpt from Arbitrator Starkman’s decision in IKO Industries Ltd. and USWA, supra, that warrants noting: The probationary period is an opportunity for the employer to assess the suitability of an employee for long-term employment in the particular work environment. Even in cases where the collective agreement is silent on the standard or test to be applied to the dismissal of probationary employees, arbitration boards have held that the company's decision to terminate must not 15 be arbitrary or capricious. As stated in Re Nordair Inc. and I.A.M., Lodge 2309 (1985), 22 L.A.C. (3d) 177 (H. Frumkin) at p. 183: This is not to say that the company's decision may be arbitrary, capricious or based upon little more than its pure whim. A decision to terminate based on discrimination and issued in bad faith will never be permitted. Implicit in the engagement must be the notion that the probationary employee will be extended a fair chance at permanent employment. Thus, the considerations upon which the company proceeds to assess the "suitability" and the standards against which it assesses the probationary employee must be reasonable ones. Important, however, is the factor that the employee need not be judged merely upon his own work performance but also upon his "suitability" for permanent employment and the assessment being one of "opinion of the Company", a tribunal of arbitration must extend to the company the broadest latitude in its decision-making process. Finally, it must be noted that Arbitrator Randazzo advised as follows in Mississauga and ATU, supra: . . . the analysis of arbitrariness, discrimination, or bad faith, must be viewed within the context that an employer has a very wide latitude in determining whether a probationary employee is suitable and if the employee should advance past his or her probationary period. The employer’s decision should only overturned where these is evidence that the employer failed to provide a good faith opportunity to succeed or where the decision to terminate is devoid of valid, legal and/or employment related considerations. These principles that govern the analysis of probationary releases must now be applied to the case at hand. The context and facts are critical. The Employer is a hospital that serves patients suffering from a variety of complex mental illnesses. This creates a responsibility to ensure that its staff are well trained and capable of meeting the technical, therapeutic and specific needs of this clientele. Therefore, the Employer cannot be faulted for expecting high standards of its employees. Further, it is important to keep in mind that when the Grievor was hired, she did not possess the necessary skills to provide the rTMS therapy. That is why she was sent for training at CAMH. She succeeded in meeting the requirements of the one week of training and received the Certificate for “Administering rTMS for Psychiatric Disorders”. However, the Employer has a right to 16 maintain that this Certificate alone does establish that she would be a suitable employee or that she should advance beyond her probationary period. Mere competence would not provide this Hospital with the assurance that the Grievor could function at the level that this Employer has a right to demand. As pointed out in the above quote from Nordair Inc. and I.A.M., Lodge 2309, an “employee need not be judged merely upon his [or her] own work performance but also upon his [or her] ‘suitability’ for permanent employment”. Further, Article 7.02 gives this Employer the discretionary right to release a probationary employee for reasons based on “suitability” for the job s/he was hired to perform. Therefore, the Grievor’s competence is not enough to establish that this Employer acted arbitrarily in deciding that she would not be suitable as an employee in this workplace. The events leading up to the Grievor’s release paint an unusual and difficult picture. The Grievor began her employment with two days of orientation in November 2019. She was then absent due to bereavement and an emergency surgery. She returned for the rTMS training at CAMH on December 2, 2019. The feedback that the Employer received from CAMH after just six days of the Grievor’s attendance at that facility raised significant concerns. Any employer would be troubled to hear that a new hire was triggering “major concerns” and seemed slow to learn, unreceptive to criticism, declined learning opportunities and seemed “impossible to teach”. Further, the Grievor’s email to her trainers on December 10th certainly left the impression that she was not returning to complete the shadowing sessions. This signaled to the Employer that the Grievor was someone who was not committed or receptive to training. These are all behaviours that would raise “red flags” for any responsible employer in the health care sector. They are also characteristics that would be entirely unsuitable for an rTMS Technician in the context of this Hospital. It is easy to see why the Employer relied on the feedback from CAMH. There is no suggestion of bad faith or conspiracy. CAMH is a highly-respected institution. It must be assumed that the unsolicited information was offered by CAMH in the spirit of collegiality with this Employer. Further, it is clear that CAMH’s Co-Director of the Centre 17 for Therapeutic Brain Intervention’s comment about having “major concerns” about the Grievor had a significant impact on this Employer. It was unusual for a CAMH Program Co-Director to comment on a trainee. His involvement was considered by the Employer as an indication of seriousness of the situation. Therefore, the Employer relied on the information it received from CAMH and concluded that the Grievor would not be a suitable permanent employee. Further, one can appreciate the Employer being upset with the Grievor for failing to advise that she would be absent for some of the training. The Employer was not told about the scheduled absence and did not know why it could not have been arranged outside of working hours. Nor was the Employer aware of the Grievor’s need for medical attention at that time. Under those circumstance, the Employer had a reason to be concerned about the Grievor absenting herself from training she had committed to attend. The fact that it was during the “optional” week of training is irrelevant. She was an employee of the Hospital, being paid to attend the training. An employee who is going to be absent has a duty to advise their employer if the absence is known in advance. While the Grievor did let her trainers at CAMH know she would be away and got their reluctant approval, she failed to let her Employer know about the scheduled absence. This may have been an oversight or may have happened because the Grievor did not realize that she should have advised her Employer, given that the training was “off-site” of this Hospital. Although it was an error on the Grievor’s part, it was not a serious one. Whether it could be considered as a reason to justify the Grievor’s release on its own does not need to be decided in this Award because of the conclusions that follow. Given that the arbitral case law makes it clear that employers should be given a “wide latitude” in determining the suitability of a probationary employee, it is difficult for a union to meet the onus of establishing that an employer’s decision was arbitrary or discriminatory. Therefore, the question in this case becomes whether the evidence supports a finding that this Employer’s decision to release the Grievor was discriminatory or arbitrary. 18 The evidence does not support a finding of discrimination. First, the fact that the Grievor had to be absent for 1-1/2 days of training for medical reasons does not lead to a finding that she has a disability within the meaning of the Human Rights Code. Further, the evidence of the Grievor and the Local Union’s President makes it clear that the Employer’s concern was based on the fact that the Grievor failed to advise the Employer or Ms. Lee of the scheduled absence. The Employer’s concern was not about the absence itself. Therefore, it cannot be concluded that the decision to release the Grievor was tainted by discrimination. However, the evidence does lead to the conclusion that the Employer’s decision to release the Grievor was arbitrary. Accepting that the Employer acted in good faith and with honest concerns about the Grievor’s suitability as an employee, it cannot be overlooked that the decision was based solely on unquestioned second and third-hand reports from personnel from another facility. While one can appreciate why this Employer would accept that these reports from a trusted source would be reliable and accurate, that is not sufficient to fulfill and employer’s responsibility to a probationary employee. It is an employer’s responsibility to determine whether a probationary employee should be given a permanent position. In making that decision, an employer cannot rely exclusively on the reports of a third party. At the very least, an employer should make some first-hand assessment of a probationer’s work performance, character and/or suitability for the position s/he has been hired to perform. In this case, CAMH was not the Grievor’s employer. Ontario Shores, the Grievor’s actual employer, had no direct knowledge of any of these important characteristics. The closest Ontario Shores came to having any meaningful contact with the Grievor was during the one telephone conversation with the Grievor on December 12th when she was confronted with the feedback from CAMH. While her reaction to the feedback appeared to be an unwillingness to accept responsibility, it could equally be interpreted as an indication of 19 surprise about hearing these criticisms for the first time. This could and should have prompted further investigation. All the Employer had to do to avoid a finding of arbitrariness was to speak directly with the CAMH trainers and/or ask the Co-Director to specify the basis of his “major concerns”. No direct inquiries were ever pursued. While the Employer did ask CAMH to put the concerns in writing, that does not amount to an inquiry. The email this Employer received and relied upon simply summarized the concerns reported by CAMH’s Technician Instructors to CAMH’s senior Manager. None of the trainers were ever questioned by anyone from the Grievor’s actual Employer. It is also very problematic that the basis for CAMH’s Co-Director’s “major concerns” was never asked for or provided to the Employer in 2019, nor were they introduced at this hearing. In fact, the Employer simply relied on an email from one Co-Director advising that she had received a call from another Co-Director saying that he had “major concerns”. Therefore, this was third-hand information that was never questioned or clarified. Relying on emails and a telephone conversation that relayed second and third-hand concerns about the Grievor without any further investigation into the context or basis f or those concerns left the Employer exposed to the finding that it failed to have a reliable basis for concluding that the Grievor would not be a suitable employee. This kind of response has been held to be arbitrary because it lacks a basic foundation, see GDI Services (Canada) and LIUNA Local 183, supra, at para. 87. Of equal consequence is the Employer’s failure to respect the principle that the purpose of probation is for an employer to determine whether a probationary employee is suitable or should advance past his or her probationary period. Implicit in the concept of probation is the notion that an employer must give an employee a “fair chance at permanent employment”, see Nordair and IAM, as cited in IKO Industries, supra. To that end, an employer must provide an opportunity for the probationer to succeed, see Mississauga and ATU, supra. In the case at hand, the Grievor spent only two days of orientation with this Employer. After her absence due to bereavement and a medical emergency, the Grievor’s next days of employment involved her six days attending off- 20 site training. As a result, she was released after only eight days of active “employment” and before her scheduled training was completed. This means that this Employer had no meaningful opportunity to observe the Grievor directly and the Grievor had no opportunity to develop or implement her training. It may or may not be that the reports from CAMH were well-founded or that the Grievor might or might not have turned out to be a suitable rTMS Technician at this Hospital. However, releasing the Grievor at that point, without any direct observations of her work, deprived the Grievor of any meaningful opportunity to succeed in the role she had been hired to do. It is conceivable that a person’s behaviour during training can reveal complete unsuitability for permanent employment. Therefore, this Award should not be interpreted as a finding that a probationer cannot be released before their training is completed. The conclusions in this Award simply follow the principles that a probationer should be given a chance to succeed and that it is arbitrary to release a probationer exclusively on the basis of unquestioned second and third-hand information. These factors lead to the conclusions that while the decision to release the Grievor may have been motivated by genuine concerns about her suitability, it was arbitrary. This is not a situation of “second guessing” the Employer’s decision. It is a case where the decision was made without the Employer having had any direct knowledge of Grievor’s suitability, failing to seek out the basis for reported concerns and without giving her the chance to be properly considered by her actual Employer. Therefore, the grievance must succeed. However, the Union’s request to have the Grievor reinstated with seniority, full compensation and damages cannot be granted. First of all, having found no basis for the claim of discrimination, there is no basis for an award of damages. Second, since the Grievor was only in the first days of her probationary period, this is not an appropriate case for reinstatement. The cases cited by the Union where probationers were reinstated and given full back pay were situations where the probationers had 21 almost completed their probation, were already fully qualified and/or where there was some positive feedback about their work, see GDI Services and Waterloo (Regional Municipality), supra; Toronto Star Newspapers Ltd. v. IAM Local 235, supra. Further, two of those cases involved industrial type settings where the issue of suitability would be less nuanced than in this Hospital. Also, the “Waterloo” case was one in which the negative information that the employer had relied upon was from what was known to be an unreliable source. Those circumstances are very different from the situation of the Grievor. She was released after less than two weeks of active employment in her probation period, while undergoing orientation and training to provide therapeutic treatment to vulnerable patients. While she had successfully been certified on one aspect of her work, she had not yet demonstrated suitability to fulfill all the functions of the position at the level this Employer/Hospital has a right to expect. Therefore, this is not an appropriate case to reinstate the Grievor with full seniority and compensation, thereby by-passing the further training and mentoring that would be expected during a probationary period and that would have given the Employer the opportunity to make a proper assessment of her suitability for permanent employment. While this Award may serve as vindication of the Grievor’s belief that she should not have been released at the time, this is not an appropriate case to reinstate the Grievor back into probationary status. That would border on second guessing the Employer. That is not the role of an arbitrator in a proceeding of this nature. Further, while the passage of time since the Grievor’s release in 2019 was not her fault, the better remedy under all the circumstances of this case is damages. The usual arbitral assessment for damages payable in lieu of reinstatement is one week per year of service plus 15% for loss of the benefit of a collective agreement. Although the Grievor’s employment lasted less than one month, I exercise my discretion to award her more than the usual calculation in these unusual circumstances and order the Employer to pay her the 22 equivalent of one month’s salary at the time of her release, plus 15% of that amount, minus statutory deductions, payable within 30 days of this Award. I remain seized with regard to implementation. Dated at Toronto this 11th of October, 2022 _________________________ Paula Knopf - Arbitrator 23 APPENDIX WILL-SAYS OF THE GRIEVOR 1. The Grievor was offered the position of team lead rTMS Technician by Ms. Justine Lee over the phone on or about October 16, 2019. 2. On November 26, 2019, Ms. Lee emailed the Grievor asking her if she was able to forward completed orientation dates for the prior and current week. 3. The Grievor asserts she was not provided with a schedule for orientation dates for the week beginning Monday, November 25, 2019. 4. Accordingly, the Grievor responded to Ms. Lee’s email with the prior weeks’ dates, and indicating to Ms. Lee that she had no orientation days scheduled that week. 5. Shortly after the Grievor’s response, Ms. Lee replied apologizin g to the Grievor, and said that she thought the schedule had already been forwarded to her. Ms. Lee attached the schedule for that week’s orientation sessions. 6. The Grievor replied back asking what she could do to be caught up. Ms. Lee replied that she would follow up to make arrangements. 7. The Grievor followed up with Ms. Lee the following week, but no substantive response from Ms. Lee followed, and no arrangements to make up the missing orientation days were made. 8. On November 29, 2019, the Grievor [experienced a medical emergency]. The Grievor underwent surgery . . . . at North York General Hospital that same day. 9. The Grievor’s physician counselled her that it is typical for patients undergoing the same procedure to take two weeks off following the surgery to heal. 10. The Grievor continued to attend training sessions for her “Administering rTMS for Psychiatric Disorders” course, as well as shadowing sessions, over the following two weeks at CAMH. 11. Over this same period, the Grievor experienced pain and discomfort related to her surgery, including headaches. 12. During one of her days during the rTMS course, the Grievor suffered a headache and told a course instructor that she needed a few minutes to si t and recover. 13. In the rTMS course, the Grievor took thorough notes about procedures. Ms. Caitlin Newberry, one of the trainers at CAMH, admonished the Grievor for taking notes. 14. At no point during her employment did the Grievor interact directly with Dr. Bloomberg, the head of the program at CAMH. She only ever recalls attending seminars led by Dr. Bloomberg, and never having had the opportunity to speak with him or introduce herself. 24 15. On December 9, 2019, during the Grievor’s week of shadowing at CAMH, th e Grievor was instructed to attend an emergency follow-up appointment with a specialist. 16. The specialist appointment was booked for 11:00 AM on December 10, 2019. 17. On December 9, 2019, the Grievor emailed Ms. Caitlin Newberry to inform her of her appointment, and asked if it was possible for her to attend the afternoon of the following day’s shadowing session. Ms. Newberry responded in the affirmative. 18. On December 10, 2019, the Grievor emailed Ms. Newberry to inform her that there were delays and that she would attend as soon as possible. The Grievor estimated that she would arrive at CAMH around 2:30 PM that day. Ms. Newberry suggested that she attend the following morning instead. 19. The Grievor emailed back at 2:39 PM stating that she was “unavailable tomorr ow”. The Grievor asserts that this email was sent in error, as she was in fact available to participate in shadowing on December 11, 2019. 20. At 4:14 PM, the Grievor noted her mistake and asked Ms. Newberry what time she should attend the following day. Ms. Newberry told her to arrive at 9:00 AM. 21. At or around 4:15 PM that day, following her email to Ms. Newberry, the Grievor was called by Ms. Lee, joined by Mr. Scott Pepin, the Regional Co-Director for Mental Health and Addictions, regarding performance conce rns raised by the staff at CAMH. 22. At 5:00 PM, the Grievor received another call from Ms. Lee instructing her not to attend shadowing on December 11, 2019, and to instead attend a meeting to be held in Ms. Lee’s office on December 12, 2019 to discuss perform ance. 23. The Grievor was asked by Ms. Lee to bring union representation to the December 12, 2019 meeting. 24. The Grievor attended the December 12, 2019 meeting with Ms. Lee. She was joined by Jonathan Leung, the Local President, and Jackie Schumacher, a Steward. 25. The Grievor asserts that, until this point, she was never provided, either by her trainers at CAMH or by an Ontario Shores supervisor, with any critiques of her performance, coaching, or any indication whatsoever that she had been failing to meet probationary standards. 26. The Grievor recalls the following matters being raised with respect of her performance during the December 12, 2019 meeting: a. The fact that she did not apprise Ms. Lee of her specialist appointment on December 10; b. The fact that she was not “committed” to her role. 25 Will Say of Jonathan Leung 1. Mr. Leung is the President of OPSEU Local 331, and occupied this post at all material times of the instant grievance. 2. On or about December 11, 2019, Mr. Leung was asked by the Grievor to attend a meeting with Ms. Justine Lee, scheduled to take place on December 12, 2019. 3. Mr. Leung attended the meeting with the Grievor and Local 331 Steward Ms. Jackie Schumacher. 4. Mr. Leung and Ms. Schumacher each took notes during the December 12, 2019 meeting. 5. Mr. Leung recalls that Ms. Lee raised the following concerns in respect of the Grievor’s performance during the December 12, 2019 meeting: a) The fact that the Grievor did not apprise Ms. Lee of her specialist appointment on December 10; b) The fact that the Grievor was not “committed” to her role. Will Say of Justine Lee 1. My name is Justine Lee. I am a former employee at Ontario Shores. I commenced employment with Ontario Shores on May 2, 2016. 2. At all times material to this matter, I was employed as the Interim Clinical Manager of the Medical Clinic. In my capacity as the Interim Clinical Manager I hired [the Grievor] and was her direct manager. [The Grievor’s] Hiring and Orientation 3. [The Grievor] was offered the position outlined in her offer letter, which was a part-time permanent rTMS Technician in the Brain Stimulation Clinic. Her offer letter does not reflect any offer of a position of “team lead”. 4. On October 17, 2019, [the Grievor] was provided with the Occupational Health documentation that she was required to complete prior to starting orientation with Ontario Shores. [The Grievor] was advised that her orientation was scheduled for November 19, 2019, and that the documentation had to be submitted prior to the start of her orientation. 5. I was advised that on November 4, 2019, Ontario Shores’ Human Resources Assistant, Alycia Mulligan, followed up with [the Grievor] regarding this documentation. I have been advised that [the Grievor] responded providing some of the requested documentation but that materials were still missing. 26 6. I was advised that Ms. Mulligan followed up with [the Grievor] again on November 12, 2019, advising that there was documentation outstanding and that if [the Grievor] did not provide completed copies of these documents, Ontario Shores would not be able to clear her for orientation. 7. I was advised that Ms. Mulligan followed up with [the Grievor] again on November 15, 2019, advising that one of the Occupational Health requirements was still outstanding and that Ontario Shores would require her to provide that information by 3:00 pm that day to allow her to participate in the orientation. 8. I was advised that Ms. Mulligan followed up with [the Grievor] a final time on November 18, 2019, to advise that the document was still outstanding. 9. I was further advised that [the Grievor] attended on the morning of November 19, 2019, to complete the above required documentation. I understand that Ontario Shores made an exception for [the Grievor] to allow her to provide these materials late and still participate in the orientation starting November 19, 2019. However and due to [the Grievor’s] delay in submitting the Occupational Health documentation, [the Grievor] was not allowed to work in patient care until November 21, 2019. A copy of an email from Ms. Mulligan summarizing the above interactions with [the Grievor] [was filed in evidence]. 10. I was advised that as a result of [the Grievor’s] delay in providing the above documentation she was not provided with the schedule for orientation along with the other new hires. I understand that [the Grievor] was, however, advised that she was expected to be in orientation the week of November 19th. I also understand that [the Grievor] did not contact anyone at Ontario Shores to advise that she had not received the schedule for orientation. The Events Leading to the Termination of [the Grievor’s] Probationary Employment 11. Between 3:00 and 4:00 pm on December 10, 2019, I received a call from Jennifer Bennie, a Senior Manager at the Centre for Addiction and Mental Health (“CAMH”). Ms. Bennie advised me that [the Grievor] had a specialist appointment scheduled for December 10, 2019. [The Grievor] had not advised me of this specialist appointment or of the fact that she would be missing a day of shadowing at CAMH. This was the first that I had learned of this absence. 12. Ms. Bennie also advised me that [the Grievor] had been directed by one of the trainers at CAMH, Caitlin Newberry, to attend training on December 11, 2019, and had responded that she was “unavailable”. She also stated in her email to Ms. Newberry that “I would like to thank both you and Sarah for the hard work on training us, and for the tips that you both have provided to me.” 13. I have reviewed the Will Say Statement of [the Grievor] and specifically paragraph 19 of [the Grievor’s] Will Say Statement. At no point did [the Grievor] advise me that the above email was sent in error. 27 14. During our conversation, Ms. Bennie also raised a number of concerns regarding [the Grievor’s] performance during the training at CAMH. More specifically, Ms. Bennie advised me that there were concerns with [the Grievor’s] ability to keep pace and that [the Grievor] lacked insight, was not willing to look for treatment parameters, was not willing to perform treatments as outlined and voiced that she did not feel she needed the training. Ms. Bennie reported that [the Grievor] stated that she would “just practice on [her] teddy bear if I need to”. Ms. Bennie also reported that three of the instructors had flagged concerns with [the Grievor’s] attitude and her resistance to training. 15. Following my call with Ms. Bennie, myself and the Regional Co-Director for Mental Health and Addictions, Scott Pepin, called [the Grievor]. I communicated to [the Grievor] the above feedback that had been provided by Ms. Bennie. [The Grievor] did not take accountability for any of the above. Rather, [the Grievor] seemed confused by this feedback. 16. In or around 4:00 pm on December 10, 2019, I also received an email from the Medical Co-Director of the Electroconvulsive Therapy Service, Dr. Robyn Waxman. A copy of this email is attached to the Will Say Statement of Dr. Robyn Waxman. The email advised me that Dr. Waxman had received a call from Dr. Daniel Blumberger, the Co-Director of the Temerity Centre for Therapeutic Brain Intervention at CAMH “with major concerns about the technician from forensics”. 17. Dr. Waxman confirmed in a subsequent conversation that the technician from forensics being referred to in this email was [the Grievor]. 18. At no time during any of the above meetings or prior to [the Grievor’s] termination did [the Grievor] advise me of any medical issues that could have impacted her performance during the training or shadowing period at CAMH. Further, I did not receive any reports from CAMH that [the Grievor] “occasionally complained of headaches during the […] two weeks of training and shadowing at CAMH”. I was advised by Ms. Bennie that [the Grievor] did not participate in course practice on the afternoon of December 3, 2019 due to a headache. 19. At no time prior to or following [the Grievor’s] termination did [the Grievor] provide me with any medical documentation relating to medical issues that could have impacted her performance during the training or shadowing pe riod at CAMH. 28 Cross Examination of Justine Lee Answers to Cross Examination Questions 1. Did Dr. Waxman at any time communicate what Dr. Blumberger’s “major concerns” were? A: Dr. Waxman advised me that Dr. Blumberger had called to advise her that there were concerns about the Grievor during the CAMH training. 2. If Dr. Waxman did communicate Dr. Blumberger’s “major concerns”: (a) What were those concerns? A: As stated, Dr. Waxman advised me that Dr. Blumberger had called him to advise her that there were concerns about the Grievor’s performance during the CAMH training. I recall that there had been serious concerns about [the Grievor]. The fact that a Co-Director at CAMH was concerned enough to contact Dr. Waxman about the Grievor also underscored the seriousness of these concerns. (b) When were those concerns articulated? A: Dr. Waxman articulated these concerns to me via her email dated December 10, 2019 and confirmed this on a subsequent call. (c) How were those concerns communicated to yourself? (i.e. via phone, email, etc.) A: Via email and confirmed on our call. 3. Did you personally evaluate the grievor on any of the following: (a) The grievor’s ability to keep pace with the work done in the Brain Stimulation Clinic; A: I received feedback regarding the Grievor’s lack of ability to keep pace from CAMH. [The Grievor ] had difficulty grasping concepts that other students understood much faster. The concerns were sign ificant enough that they were brought to my attention by Ms. Bennie. (b) The grievor’s ability to look for treatment parameters; or A: I received feedback regarding the Grievor’s unwillingness to look for treatment parameters from CAMH. The concerns were significant enough that they were brought to my attention by Ms. Bennie. (c) The grievor’s ability to perform treatments as outlined? 29 A: I received feedback regarding the Grievor’s unwillingness to perform treatments as outlined from CAMH. When her mistakes were identified to her and the correct steps were shown she would acknowledge that fact but be unable to replicate the corrections that were pointed out to her. The concerns were significant enough that they were brought to my attention by Ms. Bennie. Even more concerning was that despite this feedback being provided on practice issues, during shadowing the Grievor expressed to the CAMH instructors the desire to leave early and indicated that there wasn’t anything she needed to practice. The feedback provided to me was that [the Grievor’s] personality made it almost impossible to teach her. 4. Did the grievor ever express to you that she “did not feel she needed” training? A: No, the Grievor expressed to her instructors at CAMH that she felt that she did not need training. 5. Can you explain Ms. Bennie’s comments regarding the grievor having said she “would practice on [her] teddy bear if I need to” and what relevant the comment had, if any, to the grievor’s alleged failure to meet probationary standards? A: Ms. Bennie reported the comments about the teddy bear in relation to the Grievor’s comment about her not feeling like she needs training. The Grievor said that she did not feel she needed the training provided by CAMH and that if she needed to practice, she could just do it on her teddy bear. Given that this training was mandatory and was provided to ensure that technicians had the skills necessary to perform as rTMSs at Ontario Shores, a position that is highly technical, the Grievor’s dismissal of the need for this training was very concerning. This is particularly true given the concerns with her performance during the training. All of the feedback provided by Ms. Bennie regarding the Grievor’s attitude and performance were considered in our decision to terminate the Grievor during her probationary period. 6. Did Ms. Bennie identify which of her instructors had flagged issues regarding the grievor’s attitude during training? A: The grievor’s instructors were Sarah Piekarski and Caitlin Newberry. They both flagged issues with the Grievor during training. (a) If so, did you speak or seek out the feedback of these instructors? A: I spoke to Ms. Bennie about these concerns during our call on December 10, 2019. I also requested written feedback, which I received from Ms. Bennie on December 23, 2019. The written feedback was provided directly from Ms. Piekarski and Ms. Newberry. 30 7. When you learned that the grievor had not communicated the details of her specialist appointment to you, did you consider this a failure to meet prob ationary standards? A: The concern was the failure on the part of the Grievor to at any time to communicate to me, her direct manager, that she would be missing a day of training that she was being paid to attend at. This absence should not have been reported to me through CAMH. It should have been discussed directly with me. This incident was considered in our decision to terminate the Grievor during her probationary period. 8. When you learned that the grievor had missed a day of shadowing at CAMH to attend her specialist appointment, did you consider this a failure to meet probationary standards? A: Same answer as above. WILL SAY STATEMENT OF DR. ROBYN WAXMAN 1. My name is Dr. Robyn Waxman. I am a staff physician at Ontario Shores and currently hold the position of Medical Head of the Geriatric and Neuropsychiatry Program and Electroconvulsive Therapy. This is the same position that I held in December of 2019. I have worked at Ontario Shores since August 16, 2010. 2. On December 10, 2019, I received a call from Dr. Daniel Blumberger, the Co-Co- Director of the Temerity Centre for Therapeutic Brain Intervention at the Centre for Addiction and Mental Health (“CAMH”). Dr. Blumberger advised me that CAMH had concerns about the technician from forensics. Based on my conversation with Dr. Blumberger, I understood that the technician at issue was [the Grievor]. 3. At or around 4:00 pm I sent an email to the Clinical Manager, Geriatric Psychiatry Unit, Justine Lee, advising her of my conversation with Dr. Blumberger. A copy of this email [reads as follows]: I got a call from Daniel [Blumberger] - head of program with major concerns about Technician from forensics . . . assuming you know this. [Arbitrator’s Note: It is not disputed that this email applies to the Grievor.]