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HomeMy WebLinkAboutDesgroseilliers 11-02-14 IN THE MATTER OF AN ARBITRATION OPSEU FEB 1 8 2011 i Hamilton Regional Office I BETWEEN: ONTARIO PUBLIC SERVICE EMPLOYEES UNION -AND- FAMILY AND CHILDREN'S SERVICES OF THE WATERLOO REGION GRIEVANCE OF D. DESGROSEILLIERS AWARD Arbitrator: Laura Trachuk For Ontario Public Service Employees Union: Mitch Bevan Donna Desgroseilliers Chuck DaSilva Steve Dick For Family and Children's Services of the Waterloo Region: Paul A. Young Alison Scott Kelly Witteveen The arbitration of this matter took place in Kitchener on May 11 and October 25. 2010 and January 4, 2011. AWARD The Ontario Public Service Employees Union (the 'union") has filed' a grievance alleging that Family and Children's Services of Waterloo Region ("Agency" or "F & CS Water1oo") discharged the grievor, Donna Desgroseilliers, without just cause in contravention of the collective agreement. The Agency claims that the grievor had started a business which placed her in a conflict of interest and that it therefore had just cause to dismiss her. Facts F &CS Water100 is a child protection agency. It is restricted to providing services to clients in the Water100 region. The Agency describes itself as follows in its "values" document called "The Values that Guide our Work": Family and Children's Services is the Children's Aid Society for the Regional Municipality of Water1oo. The purpose of the agency is laid down in the Child and Family Services Act of Ontario, and can be summarized as acting to protect children who are exposed to or at risk of the harms defined in Section 37(2) the Act, or acting to prevent circumstances which could lead to children being in need of protection. The agency strives to fulfill its purpose through the different services it provides. These range from investigation and assessment to counselling. residential care, and adoption. Ms. Desgroseilliers has been a full-time employee of the agency since 1999. She started as an Intake Worker, spent a few years as an After Hours Worker and, from January 2004 until February 2009, worked as a Pregnancy Counsellor. In February 2009, she started working as a Child Protection Worker and remained in that position until her termination on May 15, 2009. The Agency permits its employees to provide private counselling services. In ear1y 2009, the grievor started a business called "Birth Counselling Services of Southwestern Ontario". Ms. Desgroseilliers explained that the women she intended to work with in the Water100 region would be a different population from those served by the Agency. The clients would be older and involved in private adoptions. The Agency only provides public adoption services. The grievor's plan was to do counselling about the emotional price of adoption and to focus on grieving and loss. Ms. Desgroseilliers testified that she would not accept clients who had any involvement with the Agency. Her plan was to accept referrals from private adoption practitioners or adoption licensees (lawyers licensed to do private adoptions).The Agency does not deal with private licensees. The adoption practitioner or licensee would hire the grievor to provide counselling for someone considering placing a child for adoption. She would be paid the referral fee whether or not the adoption ultimately took place. She testified that if a birth mother were to contact her directly she would refer her to a licensee. Ms. Desgroseilliers met with her manager, Rod Miller, on February 13, 2009 to tell him that she was going to start the business. At that point her business cards were printed and her brochure was prepared but not yet printed. She could not -2- recall if her website was up. She did not start counselling anyone until a few weeks later. The grievor told Mr. Miller that she would only take clients who did not have child protection issues. Mr. Miller told her it would be "cleaner" if she restricted her business to clients outside the Agency's area. He did not tell her that she could not start the business or that she would lose her job with the Agency of she did. Mr. Miller did not testify so the grievor's evidence is accepted on this point. From February to May, 2009 the grievor had two clients. Ms. Desgroseiliiers testified that the clients she served when she provided pre- natal support services for the Agency were a different population from those to whom she would be offering private counselling services. At the Agency her clients were mostly teenagers with drug and alcohol dependency. Some were developmentally delayed or had mental health issues. Some were wards of the Agency. None of them could afford private care. She explained that the clients at the Agency needed basics like food and housing. However, the grievor was not planning to provide services to pregnant women who needed basic support within the Water100 region. However, the grievor was planning to offer a wider range of services outside the Water100 region. She wanted to establish a program for women considered at higher risk, specifically older women dealing with issues like addiction, transiency and prostitution. She believed that there was a need for those services outside the Agency's jurisdiction. The grievor testified that she was not planning to offer those services within the Water100 region as there was a potential for conflict. The grievor had a brochure printed which outlined the services her business would offer. The brochure lists many of the services offered by the Agency and which she had provided as a Pregnancy Counsellor. The grievor placed the brochure at St. Monica's House, among other places. St. Monica's House is a place where women can go to live while waiting for the birth of their children. The staff at St. Monica's House makes referrals to the Agency for clients within the Agency's region and, presumably, the Agency refers people to them. The grievor testified that she placed the brochure at St. Monica's House because that organization did not just serve clients within the Agency's area. The grievor said that she told someone at St. Monica's House about the business she was starting and was asked to provide a brochure because they got calls from all over southwestern Ontario. Someone from St. Monica's House called F & CS Waterloo and told the Director about the grievor's brochure. The cover of the grievor's brochure states: Pregnant? I n need of support? -3- Birth Parent Counselling Services of Southwestern Ontario Providing birth parents with an opportunity to seek supportive, confidential and non-judgemental pregnancy counselling services. Inside is a description of open adoption. The brochure also indicates that the grievor's services include: . Pregnancy counselling for women regarding all available options during pregnancy and post-birth; . Uason with community and health care professionals to support referrals for safe and supportive housing medical care and financial assistance; . Prevention and management of crisis and high risk pregnancy, including addiction issues, transient lifestyle, prostitution, lack of medical care; . Counselling and support for expecting parents considering adoption planning for their unborn or newborn child; . Complete review of social and medical health history information and all relevant documentation for the purpose of infant consent adoption. . Uason with adoption agencies, licensees and government bodies in planning toward adoption; . Post-pregnancy support and counselling; . Birth control information, and reproductive and sexual health information. It also states: An unplanned pregnancy can be a difficult time for anyone. You may be considering adoption, or you may want to parent your baby. Perhaps you can't decide. It might help to discuss your options with a social worker. At -4- no cost to you, you can contact Birth Parent Counselling Services of Southwestern Ontario to discuss your options with a counsellor. The brochure indicates that Ms. Desgroseilliers has worked as a Birth Parent Counsellor. It says that she has flexible office hours and that evening and weekend hours are available on request. It does not say that she is currently employed by F & CS Waterloo. Neither the brochure nor the grievor's website, distinguished between the services she offered within the Water100 region and those she offered outside of it. She testified that she did not print separate brochures because of the expense. She said that she did explain the different services she offered to the people to whom she provided the brochure. The Agency is not involved in private adoptions. However, the other services offered in the grievor's brochure are the same as, or similar to, services the Agency offers to young women and their partners. Furthermore, the Agency offers counselling to parents even if their child might not be at risk with respect to whether they wish to continue the pregnancy and whether they wish to keep the child or place it for adoption. If the parents choose to place the child for adoption, the Agency offers public adoption services and will facilitate the process. However, the Agency only receives funding for pregnancy counselling for people who are referred to protection services or for adoption services if an adoption actually takes place. On April 21, 2009, the grievor was called to a meeting with Alison Scott, the Director of Client Services at the time, Rod Miller and Tom Howard, a union representative. Ms. Scott is now the Executive Director of the Agency. She asked Ms. Desgroseilliers about her business because she had been informed about the brochure the grievor had placed at St. Monica's House. The grievor explained that she was planning to offer services to parents considering private adoption in the Water100 region and would only offer the other services to clients outside the Agency's area. Ms. Scott asked the grievor if she was telling people she met with that the Agency offered counselling services. The grievor responded that she would present that option and explain that she was offering birth counselling services to clients who decided to go for private adoption. Ms. Scott expressed concem that clients like St. Monica's House might be confused. She was also concerned that the grievor might have to work evenings for the Agency at times which could conflict with her private work. Ms. Scott also said that it might not always be clear at the outset that a client was high risk and that the grievor might have to report protection concems about a client to the Agency. The grievor would be on retainer from the adoptive parents through their lawyer and if she made a referral to protective services, the adoption might not go through. Ms. Scott also noted that the grievor's clients might be upset if they found out about her role with F &CS Waterloo if they had a history with the Agency. Ms. Scott advised the grievor that she would have to give up her private business if she wanted to keep her job with the Agency. -5- The grievor pointed out at the meeting that other Agency employees did private counselling. Ms. Scott said that was different because they dealt mainly with adults and not families and that they worked at agencies where the clients were screened by someone else. ( Ms. Desgroseilliers asked Ms. Scott if there were any circumstances in which she could do private work in the Water100 region. Ms. Scott said that she would think about it and asked the grievorto review "The Values that Guide our Work". That document does not say anything about offering private counseling services while being employed by the Agency. It does say: There must be no exploitation by any employee, board member, foster parent, placement student or volunteer of a relationship with a child or member of a child's family or of another stakeholder for personal benefit, gain or (indulgence) gratification. The parties met again on May 4, 2009 and had a similar discussion. Ms. Scott said that she still felt the grievor's private counselling service was a conflict of interest if she continued to provide services in the Waterloo region. Ms. Desgroseilliers indicated that she was not prepared to give up her private practice. Mr. Howard asked Ms. Scott to provide a letter setting out the employer's position. The letter dated May 4,2009 set out the Agency's concerns as follows: I am writing to you regarding the private practice matter that Rod Miller and I discussed with you and your union representative, Tom Howard, on April 21 , 2009 and May 4, 2009. We first became aware that you had opened a private counselling service for birth parents through a community agency who provided Peter Ringrose with a copy of your promotional material. As I discussed with you in the meeting of April 21, 2009, the Agency has serious concerns regarding what the Agency views as you having put yourself in a conflict of interest situation. Rod Miller first addressed this issue with you on February 13, 2009 when you mentioned to him that you were considering providing birth counselling services outside of the Water100 Region, due to the potential for a conflict of interest. Notwithstanding Rod's caution, you chose to open your private practice, offer services in the Waterloo Region and not advise the Agency. As I explained to you, our concern is that as an Intake Worker employed by the Agency, you are required to investigate protection matters in the community. These investigations would include concerns involving pregnant women where the child has not yet been bom. As you are well aware, due to your participation on the Agency's Pre Birth/High Risk Infant Committee, the Agency will now become involved in these cases prior to -6- the birth of a child. The potential for a conflict of interests arises in this situation in various ways. Your private practice will be in competition with the Agency for this work within the Waterloo Region since both provide the same services. You would have access to potential clients for your private practice through your daily work at the Agency. These are individuals who, in the absence of your private practice, would come to the Agency for those services. In your job with the Agency, you would be in a position to advise Agency clients to use your private services for services also provided by the Agency. Apart from the obvious conflict of interest, it could create a great deal of confusion for clients and could easily lead them to thinking that either the Agency does not provide the service or that the Agency was recommending you for the provision of those services. Either situation is unacceptable. Furthermore, should you be providing pre birth counselling to a private client, and protection concems become evident, you will be required to report your client to this Agency, by whom you are employed. We believe that both of these situations are in conflict with the principles of the Agency's Values That Guide Our Work. The document clearly outlines examples of situations which the Agency views as having the potential to exploit clients. As is detailed in the document... outside interests of employees, board members, foster parents, placement students and volunteers, including business interests, other professions, occupations, affiliations or callings, must not affect the ability of the individual to act at all times in the best interests of the child and of the Agency. The potential exists for you to be in a business relationship with a client of the Agency to whom you are also providing services. Furthermore, there is no mention in your promotional material that you are currently employed by Family and Children's Services. We are very concerned that this dual role may be very confusing for the community and for your clients. A client who chooses your private service rather than the same service offered by this Agency may be very upset to learn that you are employed by a child protection agency. The Values That Guide Our Work document also speaks to the need to work in an environment characterized by mutual respect, openness, transparency, integrity, and responsibility. The Agency is at risk of being seen as a less than transparent and open by the community and our clients if we knowingly allow an employee to provide services while not declaring their affiliation with this Agency. You indicated in our meeting on April 21 ,2009 that you will only provide pre birth services to community clients in the Water100 Region, and refer high risk clients, such as drug addicts and prostitutes, who are more likely to be involved with child protection, to another Agency. We are concerned that this approach will not address the conflict of interests concerns, in that -7- you may be well involved in a case before protection concerns become evident. Moreover, on your website you note that you have "flexible and negotiable hours" which could lead to situations where your work for your private practice would take priority over that for the Agency. I n summary, due to the fact that you are offering the same services as your Employer to the same client group as your Employer, the risk of actual and perceived situations of conflict of interest are significant. Therefore, it is the position of the Agency that you cannot both work for the Agency and carry on your private practice within the Waterloo Region. If you wish to remain an employee of the Agency, it will be necessary for you to discontinue your private practice as set out at www.birthparentcounselling.com within the Waterloo Region. Would you please advise me no later than May, 12,2009 of your decision. In the interim, should you have any questions, please do not hesitate to contact me. The grievor responded with a letter to Ms. Scott on May 12, 2009 that stated: Please consider the following information as my formal response to your letter dated May 4, 2009. I am respectfully requesting that this matter be reviewed thoroughly by the employer, as it is set out within the grievance material attached and filed on May 12, 2009. I would like to advise the employer of my concern with respect to the content of the attached letter, and to note my personal and professional belief that your statements, noted as facts, are based on inaccuracies, assumptions and falsehoods, and place into question my character, honesty and integrity. I would like the employer to also be aware of my concerns the statements within the letter are defamatory of my character and have the potential to negatively affect future employment opportunities, my reputation, and my relationships both within the agency and throughout the community. The employer identified my actions as being insubordinate to a direction from a senior manager and this is clear1y not accurate. Furthermore, the employer identified a "potential for conflict of interesf' and "risk of actual and perceived conflict of interest" if I continue to provided limited private practice services within the Region of Water1oo. I remain clear in my position that I have not acted in a manner that is dishonest nor have my actions been insubordinate or less than transparent. -8- I would also like to advise the Employer that I have not entered into any relationships within my private practice whereby there has been a conflict of interest. I therefore believe that my actions are not in violation of the Collective Agreement, and therefore the disciplinary action commenced by the Employer is without cause, and discriminatory in nature given that the Employer has not demonstrated fair and equal treatment and actions between me and other unionized members. I would like the employer to be aware of my willingness to discuss the concerns in a fair and respectful manner. I independently chose to offer very limited services to clients within the Waterloo Region, while employed by the Children's Aid Society of the Regional Municipality of Water1oo. I have discussed with the Employer, and believe that the following and specific guidelines would allow me to adequately satisfy the employer's concerns about the manner in which I address the potential for conflict of interest. It has been my intent to provide specific and limited services only to those clients within the Water100 Region 1) clients who choose to proceed with adoption through the Private Sector, 2) clients who are not involved or have not been involved with the Society 3) clients who would not be considered by the Society as being at "higher likelihood or risk" to become involved within the Society, 4) clients who do not present as being in need of the same support and/or services as provided by the agency's Pregnancy Counselor. Furthermore, although I do believe it is my right to distribute my promotion material within the Water100 Region, I am prepared to make some concessions regarding this matter in order to satisfy the Employer. I am willing to refrain from the direct distribution of promotional materials to specific community partners such as St-Monica House or Marillac Place, even though these agencies frequently receive individual or community requests for information from outside of the Waterloo Region, and whereby these agencies may receive requests to provide information regarding the full range of service option available to clients outside the Waterloo Region. For reasons mentioned above, I would like to advise the employer that I am not prepared at this time to cease my limited private practice services within the Region of Waterloo. The letter from Allison Scott dated May 4, 2009, implied a constructive dismissal and/ortermination of my employment by May 12, 2009, in the absence of my agreement to cease private practice services with the Waterloo Region. At this time, I would request clear and written information from the employer regarding their position. It is not my position -.9- to voluntarily terminate my employment with the Children's Aid Society of the Region of Water1oo. I anxiously await your timely response to this matter. The response the grievor received was a termination letter that stated: This letter is in response to your letter dated May 12, 2009 in which you advise the Agency that you will not be terminating your private adoption counselling practice. In a letter dated May 4,2009, the Agency stated that due to the potential for actual or perceived conflict of interest situations, you could not work for the Agency while also operating a private practice within the Waterloo Region. The letter clearly indicated that if you wished to remain an employee of the Agency, that you would need to discontinue your private practice within the Water100 Region. Because you have placed yourself in a conflict of interest situation and have chosen not to discontinue your private practice, your employment with the Agency will cease at the end of the day Friday, May 15, 2009. The grievance was filed on May 21,2009. When the grievor set up her business she was aware that other employees of the agency did private counselling. The Agency was also aware that other employees did private counselling but did not consider them to be. in any conflict. Karen Huehn is the Clinical Director at Shalom Counseling Inc. ("Shalom"). Shalom is a non- profit community counselling agency that serves people over the age of 13 in the KitchenerJWaterloo, Cambridge and Guelph areas. They occasionally have clients younger than 14 if an adult client makes the request. According to its website, Shalom offers counselling services to individuals, couples and families for a variety of issues including, among other things,: substance abuse/addictions; parenting concerns; abuse: sexuaVphysicallemotional; domestic violence and adolescent issues. Rod Miller has worked at Shalom Counselling Services for many years. He is classified as an employee and works three hours per week. He is paid on an hourly basis. Ms. Huehn testified that she assigns new clients to the counsellors and that she has criteria that she uses to assign clients to Mr. Miller. He is not assigned anyone under 16 or anyone with F & CS Water100 involvement or potential future involvement. Ms. Huehn also meets with the counselors four times each year or more frequently if necessary. If Mr. Miller realizes in the course of his counselling that a referral to F & CS Water100 is necessary or that the client has been involved with the Agency, he is expected to advise Ms. Huehn to reassign the client. Mr. Miller has assured Ms. Scott that he will act in that fashion if a conflict arises and she believes him. Ms. Scott sees Mr. Miller's situation as different from the grievor's because there is "another set of eyes" at Shalom. -10- Some of the Agency's staff work at Cardinal Counselling ("Cardinal"). Cardinal is a "for profit" agency that provides counselling to adults, teens and children in the Water100 region. John Thompson, one of the owners of that agency testified. Both he and his partner were previously employed at F & CS Water1oo. One of Cardinal's current counsellors is an employee of F and CS Waterloo and a position has been offered to another one. Four former Cardinal counsellors also worked at F and CS Water100 at the same time they were working for Cardinal. Cardinal's counsellors are treated as self-employed contractors. They receive a percentage of the fee that Cardinal charges the clients. Mr. Thompson or his partner assigns the clients to the counsellors. The initial intake is performed by a receptionist and if there is any indication that F & CS Water100 might be involved, she will ask the client directly about her or his Agency history. If there is no indication of Agency involvement, Mr. Thompson assigns the client based on the issue about which she or he is seeking counselling. When Mr. Thompson assigns a client to a counsellor who also works at F & CS Water1oo, he expects her or him to advise him if they recognize the name. Cardinal also has a form that outlines the counsellor's obligation to inform Mr. Thompson about any issues relating to child safety. Mr. Thompson acknowledged that it may not be apparent at the outset that there are child protection issues related to a file. He would expect an employee who discovered such an issue to advise him and to have the file reassigned. At that point, the counsellor would lose the work along with her or his percentage of the fee. Mr. Thompson agreed that Cardinal would take a client who came in to seek counselling about adoption if there were no child protection issues. That client could be assigned to someone who also worked at F & CS Waterloo unless the adoption was also going to go through the Agency. That is not something that has happened to Mr. Thompson's knowledge. Christine Glogovic is a full-time protection worker at the Agency who worked part- time at Cardinal until July 2010. Ms. Scott testified that it was acceptable for Ms. Glogovic to work at Cardinal because she did not provide services where there were protection concerns. Ms. Scott testified that Ms. Glogovic spoke to her supervisor when she went to work at Cardinal and said that if a protection concern came up with someone she was working with she would get off the case. Ms. Scott considers Ms. Glogovic's situation to be different from the grievor's as the referral goes through Cardinal. However, Ms. Scott did not know the identity of the people doing the screening at Cardinal. Tara Henderson provided private counselling services to families and teenagers at Cardinal while she was also working at F & CS Water1oo. She said that she spoke to her supervisor before she started working at Cardinal. Ms. Henderson testified that if she was referred a client at Cardinal and she knew the client had had F &CS Water100 involvement she would advise Mr. Thompson that she had a conflict even though she would not be paid for that client. On one occasion Ms. Henderson was referred a client that she anticipated would require a referral to F & CS Water1oo. She advised the client that she would be referred to another -11- counsellor and declared a conflict. She also advised her supervisor at the Agency. Neither Shalom nor Cardinal indicate on their websites that any of their counsellors also work for F & CS Waterloo. Ms. Scott acknowledged that even though there is intake screening at Shalom and Cardinal, a child protection issue could emerge. Her expectation in that case is that the counsellor would make the referral and ask for the file to be reassigned. She trusts her employees to do that. She claims that the grievor's situation is different because she is not at an agency where there are other employees to whom the file can be reassigned. F & CS Water100 refers clients to both Shalom and Cardinal. The referral might come from people who are also counsellors at Cardinal or Shalom. F & CS Waterloo sometimes refers its own employees to Shalom. The grievor has a legal obligation to report any child protection issues that come to her attention. When the grievor was working as a Pregnancy Counsellor for the Agency, she might become aware of a child protection issue with a client. The Agency was not aware of the grievor ever failing to make such a referral The grievor had a clean disciplinary record prior to her discharge. Submissions The Agency argues that the grievor set up a competing business offering counselling to birth mothers. It relies upon her brochure and website as evidence that her business was in competition with the Agency. It notes that neither the brochure nor the website distinguish between services offered in the Waterloo region and those offered outside of it. The Agency submits that anyone reading them would understand that the grievor was a competing agency. It claims that an employer should not have to compete with its own employees. The Agency argues that the potential conflict lies in the grievor offering to provide services to birth mothers who are deciding what to do with their babies. It asserts that the grievor's literature does not distinguish between adults and youth or women at risk or not at risk. The Agency notes that it does not only offer services to pregnant women at risk and that it can provide the services the grievor offers. Furthermore, it does not charge for them. The Agency contends that the grievor's business was a potential conflict even though the Agency is a non - profit organization. It argues that it could be negatively affected by the grievor's business because there would be no work for the Agency's Pregnancy Counsellor if pregnant women go to other agencies. -12- The Agency argues that the grievor's situation is different from that of its other employees who do private counselling because her core business is in conflict with the Agency. It asserts that Cardinal and Shalom, on the other hand, offer a broad range of counselling services. The Agency submits further that Cardinal and Shalom have someone assigning cases to the counsellors. In the grievor's case, she is determining whether to take a client so there is a greater potential for conflict. The other distinction the Agency relies upon is that the grievor is advertising for the business to come to her. The Agency argues that the grievor's evidence should not be believed. It claims she was well along in the process of setting up the business before she spoke to Mr. Miller. It also contends that Mr. Miller told her there was an issue with providing services in the Waterloo region but she went ahead anyway. The Agency claims that the business the grievor set up is not the one she described to Mr. Miller. The Agency maintains that the grievor was given the choice of giving up her business and continuing employment but refused to do so and, as a result, should not be reinstated. The Agency was asked why the grievor's letter of May 12,2009 confirming that she would only offer private adoption services in the Waterloo region was not sufficient to allay concerns about the potential conflict. The Agency responded that there was still a conflict because it promotes public adoptions not private ones. Finally the Agency argues that the grievor's offer to draw a geographical distinction about where she would offer services came too late. It maintains that she has still not acknowledged that her business was a conflict with F & CS Waterloo and she should therefore not be reinstated. It asks that the grievance be dismissed. The Agency relies on the following awards: Re Jewish Family and Child Service of Metropolitan Toronto and Canadian Union of Public Employees, Local 265 (2008), 169 L.AC. (4th) 225 (Levinson); Re Telus Communications Inc. and Telecommunications WOIKers Union (2004),132 L.AC. (4th) 206 (Hall); Re Canada Customs and Revenue Agency and Oliver (2003), 118 L.AC. (4th) 414 and BFI Canada Inc. v. Teamsters Local Union No. 419 (Morton Grievance), [2010] O.L.AA No. 98 (Trachuk). The union responds that the Agency did not have just cause to discharge the grievor. It asserts that the grievor was only offering services to women considering private adoption and the Agency is not involved in private adoptions. Furthermore, it argues, the grievor gets referrals from adoption practitioners or licensees. If a pregnant woman were to come to her directly she would have to send them to the licensee. The union submits that the grievor does not offer services to pregnant women who are at risk or pose a risk to children in the -13- Waterloo area. She would not take a client who had a history with the Agency or who might be referred in the future. If she was counselling a client and it became apparent that the Agency could become involved she would terminate the counselling. The union claims that there was thus no conflict with the Agency. The union submits that there can be no conflict between the grievor's business and the Agency because the Agency is a non-profit organization. The union maintains that F & CS Water100 is not a business in the sense that the grievor can steal customers from it. It contends that the Agency is governed by the Child and Family Services Act and is mandated to protect children exposed to risk. It is there to help the community. It is not a pregnancy company. The Agency does not receive any money from clients or get bonuses for the number of pregnant women it sees. The union asserts that the Agency is not out of pocket in any way as a result of the grievor's business. The grievor's business is not competing with the Agency because the Agency is not a business. The union argues that the grievor's testimony was credible because she did advise the Agency through Mr. Miller that she was going to start a business. Mr. Miller did not say that she could not do so only that it would be "cleaner" if she did not offer services within the Water100 region. Finally, the union submits that even if there is a potential conflict, the Agency has permitted other employees to offer private counselling. Therefore, if there is a potential for conflict with the grievor there is also the potential for them. Those employees, like the grievor, lose money if they turn down a client or stop counselling a client. Yet the Agency expects that they will not exploit their situations because they have integrity. The union says that the Agency should have the same trust in the grievor. The union also disputes the claim that the other agencies can avoid conflicts because they have someone screening the new clients. The union argues that the people doing the screening will not always know if someone has a history with the Agency. They will not always know if someone will become involved with the Agency in the future. The union contends therefore, that the Agency has not demonstrated that the grievor's situation is any different from the other employees doing private counselling. The union asks that the grievance be allowed and that the grievor be reinstated with full compensation. The Agency replies that there is no legal principle that holds that a private business cannot be in conflict with a public agency. It also submits that the other employees who are providing private counselling services are in a different situation from the grievor as they are not soliciting the Agency's work. Decision The Agency discharged the grievor for putting herself in a conflict of interest situation. The reason expressed to the grievor by Ms. Scott and articulated in the -14- letter of May 4, 2009 was that the grievor would be counselling pregnant women whom the Agency could be counselling as part of its protection mandate. Ms. Scott's initial concern is not surprising since the Agency had received a telephone call from St. Monica's House about the grievor's brochure. She set out her concerns in a letter, part of which I again include here for easy reference: As I explained to you, our concern is that as an Intake Worker employed by the Agency, you are required to investigate protection matters in the community. These investigations would include concerns involving pregnant women where the child has not yet been born. As you are well aware, due to your participation on the Agency's Pre Birth/High Risk Infant Committee, the Agency will now become involved in these cases prior to the birth of a child. The potential for a conflict of interests arises in this situation in various ways. Your private practice will be in competition with the Agency for this work within the Waterloo Region since both provide the same services. You would have access to potential clients for your private practice through your daily work at the Agency. These are individuals who, in the absence of your private practice, would come to the Agency for those services. In your job with the Agency, you would be in a position to advise Agency clients to use your private services for services also provided by the Agency. Apart from the obvious conflict of interest, it could create a great deal of confusion for clients and could easily lead them to thinking that either the Agency does not provide the service or that the Agency was recommending you for the provision of those services. Either situation is unacceptable. Furthermore, should you be providing pre birth counselling to a private client, and protection concerns become evident, you will be required to report your client to this Agency, by whom you are employed. Thus the Agency was concerned that the grievor would be counselling pregnant women about whose children protection issues might arise. That concern apparently arose from the grievor's brochure in which she does describe services which mirror some of those offered by the Agency. The brochure does not distinguish between the services the grievor will offer within Water100 region and those she offers outside of it. However, the grievor acknowledged that it would be a conflict to offer those services within the Water100 region and told Ms. Scott on April 28 and May 4, that she would only be offering services to women involved in private adoptions within the Water100 area. She then provided that commitment in writing in her letter of May 12 which states: I would like the employer to be aware of my willingness to discuss the concerns in a fair and respectful manner. I independently chose to offer very limited services to clients within the Waterloo Region, while employed by the Children's Aid Society of the Regional Municipality of Water1oo. I have discussed with the Employer, and believe that the following and specific guidelines would allow me to adequately satisfy the employer's -15- concerns about the manner in which I address the potential for conflict of interest. It has been my intent to provide specific and limited services only to those clients within the Water100 Region 1) clients who choose to proceed with adoption through the Private Sector, 2) clients who are not involved or have not been involved with the Society 3) clients who would not be considered by the Society as being at "higher likelihood or risk" to become involved within the Society, 4) clients who do not present as being in need of the same support and/or services as provided by the agency's Pregnancy Counselor. The termination letter followed the above letter and said that the grievor was being terminated because she would not give up her "private adoption counselling practice" in the Water100 region. The Agency therefore knew that the grievor was limiting her practice to clients who would not otherwise be clients of the Agency before it terminated her. Nevertheless, the Agency argues that the grievor's claim that she was not going to offer services to mothers at risk in the Waterloo area should not be believed because there is no geographical distinction in her brochure or website. Ms. Scott also accused the grievor in her letter of acting against the instructions of Mr. Miller and failing to inform the Agency about her business. However, there is no evidence that the grievor was anything but a trustworthy employee. She went to Mr. Miller on her own initiative and told him her plans. She therefore did inform the agency about her business. The evidence disclosed that Mr. Miller only told her it would be "cleaner" if she only offered services outside of the Water100 region but did not tell her she could not offer any services inside the Water100 region or that there would be repercussions if she did so. The grievor was only planning to offer services that over1apped with those of the Agency outside the Waterloo region. She informed Ms. Scott of that and put that commitment in writing. The Agency does not prohibit employees from supplementing their incomes by providing private counselling services. It was aware that quite a number of employees provide such services. The grievor was therefore not breaking any rules. However, the Agency argues that the grievor's situation is different because she is providing the same services as the Agency. That is not the case as the Agency does not offer private adoptions services. On the other hand, the agencies where the other Agency employees work, do offer some of the same services as F & CS Waterloo. No one suggested that an F & CS Waterloo counsellor also working at Shalom or Cardinal would have to stop counselling a client if she became pregnant and wanted to talk about what to do about it. Furthermore, counsellors at Shalom and Cardinal work with people with some of the risk factors that the Agency's clients have. Ms. Scott did not seem to be concerned about that as long as the counsellors who also worked for the Agency did not counsel anyone who might have been involved with the Agency in the -16- past or might become involved in the future. The other distinction she made is that the agencies where the other employees work have someone to screen new clients to avoid assigning ones who may have F & CS involvement to F &CS employees. However, that system is not fool proof and there is always the possibility of a client being assigned with current or past Agency involvement. There is also the possibility that a client of one of the F & CS employees working at Cardinal or Shalom might become involved with the Agency as happened to Ms. Henderson. If that occurs, the counsellors are expected to stop counselling the individual. There is no reason that Ms. Desgroseilliers cannot be trusted to do the same thing. The absence of someone doing intake is an insufficient reason to terminate the grievor for doing private counselling. The concern expressed in Ms. Scott's letter that the grievor would have access to clients through her Agency work is also true of the other Agency employees doing private counselling. In fact, the Agency employees do refer clients to Cardinal and Shalom. There is again no reason why the grievor could not be expected to act with the same integrity as her colleagues. Anyone of them could exploit her or his situation for personal gain but they are all trusted not to do that and that trust should have been extended to the grievor. If it was not a contravention of "The Values that Guide our Work" for the other counsellors to offer private counselling services, it was not a contravention for the grievor to do so. In her letter of May 4,2009, Ms. Scott also expressed the concern that the grievor's brochure does not state that she is an employee of the Agency. That concern also appears to be related to the presumption that the grievor will be offering the same services in the Waterloo region as the Agency offers which she was not. In any case, the agencies where the grievor's colleagues work do not say that they are employed by F & CS Water1oo. The Agency has applied a different standard to the grievor than to its other employees. Finally, the letter of May 4, 2009, expressed a concern that the grievor's private business might take priority over her Agency work because her website said that she had "flexible and negotiable hours". It is simply unreasonable to conclude that the fact that the grievor was offering flexible hours meant that her private counselling would take precedence over her Agency counselling. On the contrary, flexibility would allow her to work around her Agency hours. This also appears to have been a concern imposed on the grievor that was not directed at the other Agency employees doing private work. At the end of the hearing, the Agency argued that the grievor's business was a conflict of interest because the Agency's policy favours public adoptions and the grievor was involved in private adoptions. I do not have to determine whether that would actually be a conflict of interest because it is apparent that that was not something the Agency was concerned about when it terminated the grievor. It provided a number of reasons as to why it considered her business to put her in a conflict if interest situation but that was not one of them. That concern was -17- never raised with the grievor and never mentioned in the letter of May 4, 2009 or the letter of termination. Furthermore, it was never mentioned by any of the Agency's witnesses. I therefore find that the Agency was not concerned about the grievor's involvement in private adoptions as a matter of policy. If the Agency objected to the grievor being involved in private adoptions as a matter of policy it was required to bring it to her attention so that she could address it. Employees owe a duty of fidelity to their employers. Employers may therefore demand that employees not place themselves in positions where they are in conflict with their employer's interests. However, the grievor has not placed herself in such a position. The awards referred to by the Agency are distinguishable from this situation. All of the awards cited by the Agency include clear cases in which the employees set their own interests in opposition to their employers' or, in Jewish Family and Child Service of Metropolitan Toronto (supra) to the employer's clients. In most cases they lied about it. However, the grievor informed the Agency that she was only going to offer private adoption services in Water100 region and that she would withdraw her brochure from other agencies. The Agency therefore knew that the grievor was limiting her services to private adoption prior to the termination. It acknowledged that in the termination letter. The Agency does not offer private adoption services, yet it terminated her for placing herself in a conflict of interest. The Agency never explained how offering private adoption counselling to women not at risk within its jurisdiction could be a conflict. The possibility that a client might have to be referred to F & CS Water100 is a potential for every employee doing private counselling. Nevertheless, the Agency accepts that its other employees can do that work. The Agency's mandate is to protect children. As part of that mandate it counsels women whose children might be at risk when they are born. It also counsels girls younger than 16 who become pregnant or women considering placing their children through public adoptions. The grievor was not going to offer services to anyone in those categories in the Waterloo region. She was only going to offer counselling services to women involved in private adoptions. That is not work done by the Agency. The grievor was not serving people who, in the absence of her services would come to her employer for services. There was no suggestion that the services the grievor intended to offer outside of the Agency's region would be a conflict. Thus, the grievor's private counselling business did not put her in a conflict of interest with the Agency. The Agency therefore did not have just cause to terminate her employment. For all of the above reasons, the grievance is allowed. I hereby order that the grievor be reinstated in her former position and compensated for her losses, if any. The grievor must continue to restrict any private counselling services shemoffers within the Waterloo region to women considering private adoptions. -18- I remain seised with respect to the implementation of this order and in the event the parties are unable to agree to the amount of compensation. Dated at Toronto, February 14, 2011 k. Laura Trachuk