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HomeMy WebLinkAboutWilson 00-12-06 4 qq-d58- 5Y~ L. ';) So ') IN THE MATTER OF AN ARBITRATION (Under the Labour Relations Act, 1995) BETWEEN: ST. MONICA HOUSE (the "Employer") -AND- ONTARIO PUBLIS SEVICE EMPLOYEES UNION AND ITS LOCAL 258 (the "Union") And in the matter ofa rights arbitration of the grievance of Jane Wilson under the collective agreement between the parties BEFORE: G. T. SURDYKOWSKI - Sole Arbitrator APPEARANCES: FOR THE CUMP ANY: M. Catherine Osborne, Counsel Deborah Azim Fleming, Program Director FOR THE UNION: Richard Blair, Counsel Jane Wilson, Grievor HEARING HELD IN WATERLOO, ONTARIO ON OCTOBER 19~ 2000. AWARD The parties agreed to me as sole arbitrator ofthis grievance. A hearing scheduled in consultation with the parties was held in Waterloo on October 19, 2000. Although there were technical objections to the grievance raised in the grievance procedure, these were not pursued at the hearing. Accordingly, there are no objections to my jurisdiction to determine the grievance on its merits. The Union grieves that the Employer breached the terms of the settlement of a previous grievance. Although additional relief was originally requested, the only remedy sought is a declaration that the settlement has been breached. Although there is little in the evidence about the Employer's "businessH, it appears- thaHt _~ is a social welfare agency. The collective bargaining relationship is new. There are some ] 8 employees in the bargaining unit. The grievor has been employed by the Employer as a part-time direct care worker since May 1990. The grievance that gave rise to the settlement agreement in issue before me is dated May 13) ] 998. In that grievance, the grievor complained about her FebnJary 28, 1998 performance appraisal and the conduct of her supervisor Shelley Spencer in that respect. The settlement is contained in Minutes of Settlement dated November 30, 1998. The Union alleges that the Employer has breached paragraph 4 of the Minutes of Settlement, which provided that: The parties agree to have thrlher discussions to fosler communications between the grievor and the employer. This may include the involvement ofa conflict resolution service. 2 The Minutes of Settlement are signed by Deborah Azim Fleming on behalf of the Employer, and by the grievor and Diane Roberts on behalf of the Union. Although she did not sign the settlement agreement, Shelley Spencer, who was the Clinical Supervisor of Direct Patient Care and the supervisor concerned in the grievance, was present when the Minutes of Settlement were agreed to. The grievor testified as the Union's sole witness. The Employer called Ms. Spencer, who no longer works for the Employer but who was the grievor's supervisor until February 14, 2000, and Ms. Fleming, who is the Employer's Program Director. The testimony of the gl'ievor and Spencer confirms my initial impression that the personal conflict that appears to have been at the root of the March 13, 1998 grievance is also at the root of the grievance before me. Grievance arbitration is a tried and true forum for determining collective agreement disputes that the parties to a collective agreement cannot resolve for themselves. The process is well suited to dealing with grievances that challenge an employer's decision to discipline or discharge an employee, or which raise collective agreement interpretation issues. But no tool is ideal for every job, and the labour relations grievance arbitration process is poorly suited to resolving the sort of interpersonal workplace dispute that was the problem here. (I say '\vas" since Spencer is no longer employed in the workplace.) However, when 1 raised it with them, counsel advised that mediation was not an option. Accordingly, arbitration is the only tool available. And while I will therefore make the determination that 1 have been called on to make, it is far from clear that this will have any positive effect. But perhaps all concerned may learn something from the experience. The evidence reveals that in December 1998, some weeks after the November 30, 1998 settlement, the grievor asked to meet with Linda Feldpusch, the Executive Director of the Employer. In accordance with the Employer's established protocol, she made this request of Spencer, who continued to be her supervisor. Spencer testified that she Hlooked into it" and was told by Fleming and Feldpusch that the grievor could meet with Fleming} who was Spencer's supervisor. Spencer passed this on to the grievor who 3 responded that she was not refusing to meet with Fleming but that she really wanted to meet with the Executive Director. It is not clear whether Spencer relayed this response back to either Fleming or Fe1dpusch. In any event, nothing happened. No meeting was arranged, either with Fleming or Feldpusch. The grievor repeated her request to see Feldpusch in a supervisory meeting with Spencer in January 1999. Although Spencer does not deny that she told the grievor this was being looked into, there is no evidence that that was the case. In any event, nothing happened. In February 1999, the grievor again asked Spencer about a meeting with the Executive Director. She raised the November 30, 1998 Minutes of Settlement, and specifically said that she was seeking enforcement ofparagraph 4 thereof. Spencer again told the grievor that she would speak to Fleming about it. In examination-in-chief Spencer testified that this was when she first became aware that the grievor's concerns were with respect to her supervision. She also testified that at that time she had no idea that there was anything in -- ..-..- -- -- -- --- ----- -- -- - -- - - - - the settlement agreement about conflict resolution. Both of these statements are . -.- - - - -----..-. -. implausible. The grievor's complaint in the original March 13, 1998 grievance which led to the November 30, 1998 Minutes of Settlement was about a performance evaluation by Spencer, and clearly raised an issue about the supervision being provided by Spencer. I find it inconceivable that this was not an issue in the settlement discussions that resulted in the Minutes of Settlement. In any event, the possibility of conflict resolution is specifically mentioned in paragraph 4 of the Minutes. Although Spencer did not sign the Minutes of Settlement, the evidence discloses that she was present for the settlement discussions and I find it inconceivable that she was not aware, or did not become aware of the contents of the document either at the time or immediately thereafter. Ifshe was not, the communication problems extended beyond those between Spencer and the grievor. Further, in cross-examination Spencer conceded that she was aware in the December 1998, and January and February] 999 meetings that her supervision of the grievor was an issue, and that the grievor was linking her request for a meeting with the Executive Director to the November 30, 1998 settlenlent. 4 It appears that Spencer and Fleming had some discussion about the grievor~s situation at or about this time. Fleming concedes that by February 1999 she knew that something had to be done. And yet Fleming did nothing at all. It appears that she did not even respond to the grievor, either directly or through Spencer. In March 1999~ the grievor again asked Spencer about a meeting with Feldpusch. She was told there was no answer yet~ but that it was being looked into. It is true that there was no answer as such. But since there is no evidence that it was in fact being "looked intd', the only reasonable inference is that the grievor~s request was being ignored. It appears that Spencer cancelled the Grievor's April supervisory meeting. Nevertheless, the grievor again forwarded a request for a meeting with Feldpusch to Spencer. Once again the response was that it was being looked .into. Once again there is no evidence that the grievor~s request was being given any consideration. And once again, nothing happened. _Thegrievor's next formal performance appraisal took place on May 29~ 1999. Fleming testified that by May 1999 it was clear that conflict resolution was "essential". Since there is no evidence of any discussion between Fleming and the grievor in that respect~ Fleming must have arrived at this conclusion through discussion with Spencer. Having arrived at the conclusion that conflict resolution was required~ what did Fleming do? She did not arrange conflict l'esolution~ or at least not the sort that she eventually settled on in November 1999. Despite the March 13, 1998 grievance~ the November 30~ 1998 settlement~ the manifest failure of the two individuals to resolve the matter without assistance~ and the fact that she had known for some three months that some intervention was required, Fleming~s notion of conflict resolution at the time was to let Spencer and the grievor try to work things out themselves. Fleming allowed Spencer to continue to supervise the grievor as though nothing had happened. That is, Fleming had the very person whom the grievor felt was the cause of the problem perform a performance evaluation of the grievor on May 29, 1999, and she did so without any attempt to "foster 5 communication" between them, or even to discuss it with the grievor. Even though the grievor continued to ask for a meeting with the Executive Director, at that point she had not refused to meet with Fleming, and there was nothing preventing Fleming from being proactive and approaching the grievor herself. It is not particularly surprising that the May 29, 1999 performance appraisal was more of the same as far as the relationship and communication between the grievor and Spencer was concerned. The grievor did not agree with Spencer's assessment or her approach, and Spencer found the grievor difficult to manage. The grievor was directed to attend a conflict resolution workshop scheduled for July 1999. However, Spencer also testified that this workshop was part of her performance appraisal of the grievor and did not arise out of the November 30, 1998 settlement. Similarly Fleming testified that she never told the grievor that the workshop had anything to do with the settlement or with fostering communic~tion. Spencer testified that she thought it would be good for both of them to attend such a program. Spencer also said that she registered for one aimed at management personnel. . Even this workshop idea was handled poorly. It may be that the grievor was picky and demanding, but the fact is that there was some confusion regarding the scheduling and the effect on her hours. In the circumstances, the Employer handled this in a rather heavy-handed way. But other than indicating the Employer's attitude toward the grievor it has very little to do with this grievance, particularly since the grievor did attend the workshop. The same cannot be said for Spencer. She testified that the program she registered for was cancelled. She also said that she looked for another program to attend but that she was unable to find one. I find that hard to believe. In any event, Spencer never did attend any conflict resolution program before she left the Employer. The grievor's June, July and August supervisory meetings were cancelled. The Employer's evidence is that this was because Spencer had surgery and because of 6 conflicting vacation schedules. That may be, but was there no one supervising the grievor during these three months? Was there no one available to deal with the proble~ which 'clearly continued to exist? In any case, nothing happened insofar as the implementation of the November 30) 1998 settlement was concerned) and there still was no direct response to the grievor)s request for a meeting with the Executive Director. This is not to say that the summer was uneventful. At all material times, the grievor was a steward. During the summer months she sought to raise the concerns that other employees allegedly had about Spencer. Although the grievor may also have been opening a second front in her war with Spencer, I am satisfied that the grievor was primarily acting in her capacity as steward, and not seeking enforcement of the Minutes of Settlement for herself. However, the Employer's reaction is instructive. Instead of addressing the allegations in the context of the labour management meeting at which they were raised (which seems to me to have offered an appropriate ifnot technically correct forum for doing so), Fleming took the position that any employee concerns regarding a supervisor must comply with the supervisory system, and she said that she was willing to meet with any employee on an individual basis to discuss their concerns. Not only did this conveniently ignore the fact that it was the Union that had raised the issue, and the fact that the Union is the representative of the bargaining unit employees in all oftheir employment related dealings with the Employer, it was not a productive response in the circumstances. Further, without any discussion with the grievor, Fleming unilaterally scheduled a meeting with her for August 10, 1999. When the grievor did not show up or seek to mak~ alternate arrangements, Fleming wrote to the grievor, stating that she assumed that the grievor had no outstanding concerns about her supervisor and that she considered the matter closed. In light of her other testimony, I find this response disingenuous. Although it would have been better (and certainly more polite) if the grievor had responded to Fleming, I find it inconceivable that Fleming could have thought that the grievor no longer had any concerns, or that she could unilaterally pronounce the matter closed. 7 In any case, the grievor responded to this letter. On August 15, 1999 she wrote as steward to Fleming, advising that the bargaining unit employees reserved their right to union representation and that the matter was by no means closed. It appears that the Minutes of Settlement were not raised again until October. Once again, it was the grievor who approached Spencer, and once again she was told that there was still no reply to her request for a meeting with the Executive Director. On November 6, 1999, nearly a year after the Minutes of Settlement were signed, and some 21 months after the original March 13, 1998 grievance was filed, the grievor asked to see the Executive Director again. Once again, she was told that nothing had been arranged. Then came a flurry of activity. This was precipitated by the grievor's telephone call to the Executive Director regarding an alleged problem with Spencer that weekend. Feldpusch referred this call to Fleming. By letter dated November 9, 1999, Fleming wrote to the grievor advising that she was available to meet with her on November 16, J 299 to discuss her concerns. After seekJng advice from the Union, the grievor responded by telephone on November 15, 1999. She indicated that she was not available to meet on November 16, and that she would prepare a written "response". The grievor testified that she also called Spencer to arrange a meeting for the purpose of discussing noncompliance with the November 30, 1998 Minutes of Settlement. No meeting was arranged. The grievor says that Spencer told her that the matter had been referred to Fleming and so she proceeded to file the grievance now before me. Spencer denies speaking directly to the grievor at this time, but she acknowledges that the grievor was seeking conflict resolution. I find it more probable than not that the grievor and Spencer did speak, and that Spencer understood that the grievor was attempting to pursue the matter under the colJective agreement, which provides (in clause 9.03) that an employee must discuss a complaint informally with their supervisor before filing a grievance. By memorandum dated 8 November 18,1999, Fleming advised the grievor that peAT Associates had been contacted to provide mediation services between her and the Employer. She stated that this was a "follow-up" to paragraph 4 of the November 30, 1998 Minutes of Settlement. I am satisfied that Fleming, who to this point had done nothing to "foster communication", did not contact PACT Associates in order to provide mediation services pursuant to paragraph 4 of the Minutes of Settlement as she stated in her memorandum. I am satisfied that she did so in an attempt to defeat the grievance that she knew was coming. In any event, this was too little, and it was too late. Despite her misgivings, the grievor began the mediation process. The mediator met with Feldpusch, Fleming, Spencer and the grievor separately and prepared an "Initial Report" containing his initial impressions and proposing to proceed with mediation meetings involving Spencer, Fleming and the grievor. The report does not indicate why Feldpusch was to be excluded from this part of the process. The grievor, who testified that she told the mediator that she had misgivings about the process he was using, declined to participate further. In the result, despite the grievor's numerous attempts to invoke the provision, there is no evidence that the Employer did anything in furtherance of paragraph 4 of the November 30, 1998 Minutes of Settlement until nearly a year later, after it became aware that this grievance was about to be :filed. Not only did the Employer take the initiative (as I suggest it could and should have done), or properly respond to the grievor's requests, there is nothing in the evidence which suggests that management even bothered to discuss the meaning and effect of paragraph 4 of the Minutes or what should be done to "foster communication" with the grievor. It may be that the grievor is not the easiest of employees to manage, but it appears to me that she showed rather remarkable patience in waiting as long as she did to invoke the grievance procedure in order to obtain compliance with the Minutes of Settlement. Time and time again the grievor asked for a meeting with the Executive Director. It may be that this was not an appropriate way to proceed. But instead of showing the grievor thc 9 courtesy oftelling her so clearly and suggesting a reasonable alternative, the Employer stonewalled her, and repeatedly rebuffed the grievor's attempts to engage in the sort of discussions contemplated by the Minutes of Settlement. I appreciate that paragraph 4 of the Minutes is broadly worded, and that the only thing it specifically required was that there be further discussions to foster communications. But in return for this the grievor withdrew her March 13, 1998 grievance, and it must therefore be given some meaning. Not only was the Employer not proactive in that respect, it was not even appropriately reactive. Instead, it remained mired in its inflexible protocol, and it refused to admit that the grievor was not in the same position as every other employee as a result of the settlement agreement. Despite its implicit acknowledgement in the Minutes of Settlement that there was a problem between the grievor and Spencer that had to be dealt, and even when it subsequently became clear that conflict resolution intervention was required, the Employer stubbornly proceeded with "business as usual", as though the March 13, 1998 and subsequent settlement had never happened. Instead of taking steps to deal with the obvious problem, the Employer allowed, indeed virtually insisted, that the problem continue. In short, the Employer acted as though paragraph 4 was meaningless. It was not entitled to do so. It appears that as far as the Employer was concerned the grievor was the entire cause of the problem. Perhaps the grievor can be difficult. Perhaps she is not sophisticated in labour relations matters. But I observe that communication problems and personality conflicts are rarely created by one individual, and the Employer certainly did not demonstrate any great sensitivity or labour relations sophistication either. (I also note that there is no suggestion in the evidence that the grievol' had had any similar problems before Spencer came on the scene, or that the problems have continued tmabated since Spencer left - although in fairness all concerned were coming to grips with working in unionized workplace as well.) But even ifit was all the grievor's fault, the situation was at least as much the Employer's workplace problem as it was hers. And yet the Employer did nothing until it became aware that this grievance was coming. - I r 10 Perhaps it would have been better if the grievor had persevered with the mediator eventually retained by the Employer, But I am not particularly surprised that she did not when after all that had happened and a year of waiting the one thing that she had wanted all along, a face-to-face meeting with the Executive Director, was not going to be any part ofthe process, again apparently without any explanation to her. I am satisfied that the mediation process engaged in November 1999 failed, not because the grievor declined to continue with it, but because the Employer had failed to do anything to fulfill its part of the bargain in the November 30, 1998 Minute of Settlement, or to respond reasonably to the grievor's attempts to invoke paragraph 4 of the Minutes in a timely way. On the evidence it is not at all apparent why it would have been inappropriate to grant the grievor a meeting with the Executive Director. I am not satisfied that there is any merit to the suggestion that the doing so would have made it appear that the grievor was being treated differently from (i.e. better than) other employees. The only reason advanced by the Employer is that such a meeting, was not in accordance with its protocol for dealing with problems between employees and supervisors. This was the same protocol that was available to every employee, and would have been available to the grievor without the November 30, 1998 Minutes of Settlement. And as I have already observed, as a result of the settlement, the grievor was not in the same position as other employees. Not only is this sort of rigid adherence to a hierarchical protocol rarely appropriate in the modem workplace, the message being sent to the grievor was that the settlement meant nothing. In the result, this grievance is allowed. I declare that the Employer breached the November 30, 1998 Minutes of Settlement between the parties by failing to implement or comply with paragraph 4 thereof. DATED AT TORONTO THIS 6TH DAY OF DECEMBER 2000.