HomeMy WebLinkAboutKonrad 11-08-05
IN THE MA ITER OF AN ARBITRATION UNDER THE COLLEGES
COLLECTIVE BARGAINING ACT
BETWEEN
Ontario Public Service Employees Union Cthe Union")
AND
Georgian College of Applied Arts & Technology ("the Collegell)
And in the matter of the grievance of Yvonne IConrad, ("the Grievor"),
who claims that her employment was ilnproperly terminated.
BEFORE:
R.O. MacDowell
Larry Robbins
Carla Zabek
APPEARANCES:
For the Union:
Alick Ryder Q.C.
David Duncan
Terry Heittola
For the College:
Robert Atkinson
Cathy Brown
Betty McCoppen
Mary Ann Fifield
(Chair)
(Union Nominee)
(College Nominee)
(Counsel)
(Counsel)
A hearing in this matter was held in Barrie~ Ontario~ on February 1 ~
October 6~ October 7, November 1, December 8, 2010 and March 30,
2011. An executive session was held on June 22, 2011.
AWARD
I - Introduction: what this case is about
YVOlme Konrad ("the Grievor") was hired by Georgian College as a
"probationary" teacher effective August 18. 2008. Her employment was terminated on April 29.
2009, well before the completion of her two year probationary period. Ms. Konrad claims that
her termination was "unfair" and contrary to the terms of the Collective Agreement.
Ms. Komad points out that she worked for the College on a periodic basis for a
number of years prior to applying for a full time teaching job and that on each occasion her
teaching was considered satisfactory. Her student appraisals were good and she was re-hired
again and again. That is why she applied for a permanent teaching position; and that is why she
was confident that she would be successful in her bid to become a permanent employee.
In the Union's submission, nothing occurred during Ms. Konrad's probationary
period that warranted her early terminatiollllor did the College alert her to any deficiencies in
ability or performance. The Union submits that Ms. Konrad's termination was a breach of the
College's implied obliJwtion to act "in good faith", and the College's express oblbwtion, to
advise probationers about their "progress" found in Article 27.02D of the Collective Agreement.
By way of remedy, the Union argues that Ms. Komad should be reinstated to employment as a
permanent full time teacher (i.e. as if she had successfully completed the two year probationary
period) and she should be compensated for what, in the Union's submission, was the improper
termination of her "probationary employment",
2
The College replies that the purpose of the probationary period is to assess an
individual's fitness to become a permanent member of the teaching staff and that there is more to
this "hiring decision" than an evaluation of classroom teaching. The College concedes that Ms.
K01ll'ad is a good teacher. However, in the College's submission, a prospective permanent
employee must also work coIIaboratively, must demonstrate a positive attitude, and must display
good judgement. Moreover, in an organization where collegiality is highly prized and permanent
employees have a significant degree of "tenure" it is important to determine at the outset whether
the newcomer is likely "to be a good fit"; because once slhe goes on to the permanent staff it is
very difficult to reverse that decision. That is why there is such a long probationary period, so
that the Employer can make an informed prediction about whether the new employee will likely
"work out" over the long run. And as the Employer sees it, the decision to grant "permanent
status" can legitimately involve a consideration of the probationer's social skills, his/her
temperament, whether s/he will likely be "a good team player", whether s/he will likely be a
"high maintenance employee", and so on. This is not about "misconduct" or teaching skills, as
such; but rather about things like "personality", "fit", "suitability", "compatibility" or "attitude".
The College notes that there is no automatic progression from "probationer" to
"permanent" member of the teaching staff (what the Collective Agreement refers to as "regular
status"); and in the College's submission, the Employer is not obliged to show that there was
':lust cause" for terminating the Grievor's probationary emvloyment (in this case after roughly 8
1/2 months of probationary service). That is not the "test" for the "release" (the word used in the
Collective Agreement - not "dismissal") of a probationary employee, whose status is inherently
temporary and contingent. Rather, the question (as the College sees it) is whether the College has
3
rational and good faith reservations about whether to offer the probationer a permanent position.
And in Ms. Konrad's case, the College says that it did.
The College submits that although Ms. Konrad had good student reviews for her
classroom teaching, she was unduly rigid and critical of others, there was a complaint about her
from a department head, she was demanding and abrasive in her dealings with her Dean, and she
did not show good judgement. These concerns outweighed the positive student appraisals that the
Grievor had received and they ultimately led Dean MaryAnn Fifield to conclude that Ms. Konrad
should not be offered a permanent position. That is why the College "released" the Grievor after
8 Y2 months service, with the 3 months notice prescribed in the Collective Agreement (or more
accurately, with three months' pay in lieu of notice - roughly $25,000).
II - Some Mechanics and some terms of the Collective A2.l'cement
The hearing in this matter consumed some six days, scheduled on the agreement
of the parties between February 2010 and March 2011. The parties were agreed that this Board
of Arbitration has been properly appointed under the terms of the Collective Agreement and that
the Board has "jurisdiction" to hear and determine the matters in dispute between them. The
parties were further agreed that if the Board finds that the College has breached its legal
obligations in some way, the panel has the authority to fashion an appropriate remedy.
4
We will have more to say later about the issues that were raised in this case. At
this point, it might be useful to record certain provisions of the Collective Agreement that pertain
to the engagement and "release" of probationary employees - and to the scope or arbitral review:
ARTICLE 27 ~ JOB SECURITY
27.01 A full-time employee shall be appointed to regular status upon successful
completion of the probationary period and be credited with seniority at least equal
to the probationary period served.
Probationary Period
27.02 A 1 A full-time employee will be on probation until the completion of the
probationary period. This shall be two years' continuous employment except as
amended in this Arlicle.
27.02C Notwithstanding anythinq in this Aqreement, it is aqreed that every new
full-time employee in the bargaining unit, except those on leaves under Article 22,
Pregnancy and Parental Leave, shall serve at least one year of active full time
employment in the bargaininq unit as a probationary period.
27.02 D DurinQ the probationary period an emplovee will be informed in writing of
the employee's proQress at intervals of four months continuous employment or
four full months of accumulated non-continuous employment and a COpy given to
the emplovee.
27.02 E A probationary employee may be released during the first five months
of continuous or non continuous accumulated employment followlnQ the
commencement date of the employee's employment upon at least 30 calendar
days' written notice and durinQ the remainder of the employee's probationary
period upon at least 90 calendar days' written nolice. If requested by the
employee, the reason for such release will be Qiven in writinQ.
27.02 F The Union Local shall be advised of the date on which an employee
completes the probationary period.
27.14 An employee being discharged who has completed the probationary
period shall be notified in writing by the COllege President of the person(s) the
College President designates for that purpose. When the reasons for discharge
are not such as to warrant immediate discharge, the College will give 90 calendar
days written notification. Any vacation entitlement of an employee shall be paid in
addition to the 90 days' notice period or to any payment In lieu thereof.
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27.14 B It beinQ understood that the release of an employee during the
probationary period shall not be the subiect of a grievance under Arlicle 32,
Grievance Procedures, but may be subject to the internal complaint process
referred to in 7.02 (iii), an employee who has completed the probationary
period and is discharQed for cause, may lodoe a qrievance in the manner and to
the extent provided in the Grievance Procedures, or in the Expedited Arbitration
Process.
7.02 A Committee of three members appointed by the College or Campus
otticials will meet with the Union COllege or Campus Committee at a mutually
agreed time and place provided that either party requests and gives at least
seven days prior notice accompanied by an agenda of matters proposed to be
discussed. It is agreed that matters to be discussed at meeting include:
(iii) an internal complaint process to facilitate resolution of employee complaints
that do not fall within the provisions of 11,01, 11.02, Article 32 Grievance
Procedures, or Article 33 Expedited Arbitration Process
It is understood that the College will continue to make reasonable provision for
the environmental conditions of air, light, space and temperature of employee's
work areas in the College. A complaint on an employee concerning the
environmental conditions mentioned above shall be discussed at a meeting
under this Article and not under the provisions of Article 32, Grievance
Procedures or Arlicle 33, Expedited Arbitralion Process,
ARTICLE 32 . GRIEVANCE PROCEDURES
Dismissal
32.05 It beinQ understood that the dismissal of an employee durinQ the
probationary period shall not be the subiect of a grievance, an employee who has
completed the probationary period may lodge a grievance in the manner set out
in 32.06 and 32.07
32,06 An employee who claims to have been dismissed without just cause shall,
within 20 days of the date of receipt of the written notification of dismissal present
a orievance in writing to the College President, or in the absence of the College
President, the Acting President, commencing at Step Two of 32.02 [the grievance
procedure) and the President shall convene a meeting to give the grievor and the
Union Steward the President's decision in accordance with Step Two of 32,02.
32.07 If the grievor is not satisfied with the decision of the College President, the
grievor shall, within 15 days of receipt of the decision of the College President, or
in the absence of the President, the Acting President, by notice in writing to the
College, refer the matter to arbitration, as provided in this Agreement.
6
As will be seen, a new teacher is expected to be "on probation" for a period of two
years (with an absolute minimum of one year - See Article 27.02C), during which time s!he has
only limited rights under the Collective Agreement. The newcomer is entitled to be informed of
his/her "progress" at periodic intervals (Article 27.02 D), and no doubt s!he must also receive the
negotiated wages and benefits for the job that s!he is doing. However there is no accumulation of
"seniority" or automatic progression from probationary status to "regular status", nor is there any
obligation to keep the new employee on for the full two years mentioned in Article 27.02E. On
the contrary, Article 27.02E specifically contemplates that a probationary employee may be
"released" (not "dismissed") at any time during that first two years, so long as the College gives
the agreed-upon notice - not unlike the situation of an employee at common law, who may be
terminated "without cause", in accordance with the notice (actual 01' deemed) in his/her contract
of employment. "Reasons" for the "probationary release" must be given to the former employee
if s/he asks for them; but Article 27.14B and Article 32.05 both say that a probationer cannot
challenge that "release" under the regular grievance-arbitration procedure.
It is clear, therefore, that the situation of a probationary employee is quite
different from that of a permanent teacher: who has "seniority rights", who cannot be dismissed
without '~ust cause", and who may ask an arbitrator to review such termination and decide
whether it was "just and reasonable in all the circumstances" (Article 32.04 G of the
Agreement). Probationers lack the two key elements (selliority rights and just cause protection)
that Laskin J. A. (as he then was) once called the "employee's charter of employment security"
[See R v. Arthurs ex parte Port Arthur Shipbuilding Company (1968), 68 CLLC 104 (O,C.A),
which was reversed at 68 CLLC 586 (S.c.c.)].
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No one suggests that there is any ambiguity in this Collective Agreement
language 01' that the intention of the bargaining parties is unclear; and, when viewed
cumulatively, these provisions serve to underline the special status of probationers - who the
bargaining parties have agreed will not have the same rights and remedies as "regular"
employees. The College has far more discretion and far fewer obligations with respect to
probationary employees, who can be "released" on written notice and without calise; moreover,
it is interesting to note that the Collective Agreement actually purports to foreclose the kind of
multi-day arbitration hearing that was triggered by Ms. Konrad's complaint in this case. The
parties have agreed to limit the resources that have to be devoted to what, from the College's
point of view, are essentially "hiring decisions" and, instead, Article 7.02 (Hi) of the Collective
Agreement contemplates that there may be an alternative "internal complaint process to
facilitate the resolution of employee complaints that do not fall within the provisions of. ..Article
32, Grievance Procedures.. ..".
*
Finally, for completeness, it might be useful to mention Article 32.03D of the
Collective Agreement which regulates the role of an arbitrator when s/he is asked to interpret or
apply the terms of the bargain. That provision reads as follows:
32.03 D The arbitration board shall not be authorized to alter, modify or
amend any part of the terms of this Agreement or to make any decision
inconsistent therewith; or to deal with any matter that is not a proper
matter for grievance under this Agreement.
Article 32.03D is a contractual reminder that the Collective Agreement is made
by the parties themselves and that an arbitrator has no authority to "alter modify or amend" any
part of it. Nor should the arbitrator make any decision that is "inconsistent" with what the parties
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have lawfully agreed to. In this respect, Article 32.03D is a metaphorical "orange light": a
warning that what is involved here is a matter of contractual interpretation, and that the arbitrator
should not create new legal obligations to which the parties have not agreed, nor depart from the
words that the parties have quite deliberately chosen to express their bargain. Article 32.03D also
purports to limit the authority of an arbitrator to deal with matters that the parties themselves
have specified are not "arbitrable" - which is to say: that are ".. ,not a proper matter for
grievance under this Agreement",
*
In summary then, sophisticated parties in a provincial (multi-College) collective
bargaining relationship have tried to limit the scope of litigation between them - with all of the
costs and uncertainties and institutional frictions that such litigation entails (see again, Article
7.02 which contemplates an alternative forum for addressing certain kinds of problems). The
parties have tried to eliminate quarrels about "probationary release"; and while those provisions
may not be completely congruent with statutory requirements, the "intention" behind those
words seems pretty clear: the Union has agreed that these newcomers will have no "seniority"
and that they can be "released' at the discretion of the Employer without having to show "just
cause", So in the result, the Employer has a degree of flexibility and proteclion from successful
arbitral review that it does not have for the permanent members of the teaching staff.
*
We will return to these themes later when we look at the "legal standard" to
which the Employer must adhere when it is "releasing" a probationary employee - and the extent
to which an arbitrator can, or ought to, review that determination (despite the parties' intentions
and despite their agreement that there should be no arbitral review at all).
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III - An aside on credibility
Over the course of several hearing days, the Board received the evidence of only
two witnesses: the Grievor herself, and Mary Ann Fifield, the Dean of Aboriginal Studies and
Liberal Arts, to whom the Grievor ultimately reported. There were references in the evidence to
how the Grievor interacted with other employees, but none of those individuals gave evidence
about those interactions - good or bad. Likewise we heard nothing from students. So we are left
to make our determination on the basis of what Ms. Fifield had to say, the information that was
conveyed to or about the Grievor in certain documents and meetings to which we were referred,
and the Grievor's own version of events, We are mindful of the "hearsay nature" of some of this
information.
To the extent that we have had to assess "credibility" or choose between
competing versions of events, we have followed the approach outlined in cases such as Farnya v.
Chorney [1952] D.L.R. 354, at pages 356-358 (B.C.C.A.) and LandlY v. Pratt & Whitney
Canada [1996] 8 W.W,R. 511. Accordingly~ we have taken into account such factors as: the
demeanoUl' of the witnesses when giving their evidence; the firmness of their recollections; the
clarity, consistency, and overall plausibility of the testimony when tested by cross-examination;
the ability of the witnesses to resist the tug of self-interest or self-justification when framing their
answers; the inclination of a witness to prevaricate, make excuses, or alternatively, to candidly
admit f<lcts that might put her in a poor light; the consistency or otherwise with whatever
documentary material is available; and what seems to us to be most likely in all the
circumstances.
10
We have also taken into to account the fact that the two witnesses were being
asked to recall the details of events that happened many months earlier and were not considered
to be "legally significant" at the time. In the circumstances, one carmot expect an untrained
witness to recall such matters with precision; and since the Collective Agreement (at least on its
face) does not envisage litigation over the "release" of probationary employees, it is hardly
surprising that the witnesses did not make detailed notes of their interactions, and did not engage
in conversations with their "legal rights" in mind.
Finally, we might note that there is a difference between honesty and credibility;
and that a witness may be frankly testifying about events as s/he remembers theln and yet be
quite wrong or incomplete in her recollections - partly because of the passage of time and the
ordinary failings of memory, but also because of a natural tendency to view oneself, (and portray
oneself), in a favourable light. An adjudicator must be cognizant of the role of embarrassment,
self deception and self justification in human affairs; and, as anyone who has attended a meeting
will appreciate: there is sometimes quite a difference between what is "said" and what is "heard
and understood and later remembered" about the event.
Accordingly, (and this was an issue for both witnesses), we have had to sort
through both witnesses' tendency to remember things in the light most favomable to their own
position; because both witnesses were present throughout the hearing and were well aware of the
"fighting ground" in this case, and in our view, both witnesses testified with the benefit of
hindsight. So for both witnesses, there was a degree of ex post facto rationalization.
11
IV - Back2rOUlld
The Grievor has a number of years of experience as a high school teacher and
from 1999 to 2008 she worked, periodically, for the College teaching "communications courses"
on a "partial load basis". During her time as a "partial-loader" the Grievor's teaching ability was
assessed by means of student questionnaires. The Grievor has always received good student
reviews.
In light of this teaching experience, the Grievor considered herself to be a good
candidate for a permanent teaching job. She knew the College and its programs, and she also
knew that partial-load teachers sometimes move into permanent positions when such vacancies
arise. Dean Mary Ann Fifield testified that there are lots of candidates for these positions because
the College is a good place to work.
The Grievor described herself as an "idealist", who was very concerned about the
illiteracy problems that she has encountered in her day-to-day work. The Grievor further testified
that she was "passionate" about doing whatever she could to combat illiteracy; and that in the
course of her work at the College she became particularly concerned about the challenges faced
by aboriginal students, whom she thought "the system" was failing. The Grievor testified that, in
retrospect, this "passion" to do the right thing (as she saw it) may have been misunderstood as
"rigidity" or anger or criticism,
12
Mary Ann Fifield started with the College as a regular teacher (i.e. in the
bargaining unit) and after a number of years in that capacity (including five years as a
"Coordinator" for the General Arts and Science Program), Ms. Fifield moved into increasingly
responsible administrative positions. Ms, Fifield became Dean of the School of Aboriginal
Studies in 1998 (a position that she still holds), then in 2003 she took on additional
responsibilities as the Dean of the School of Liberal Arts and the Dean of the School of
Community and Govemment Service. From a program perspective, Dean Fifield is responsible
for a number of post secondary programs, certain college-wide general education and
communications courses, some non-postsecondary courses, some employment programs, and the
regional campuses located in Muskoka, Orangeville, and Collingwood.
Dean Fifield has a broad range of administrative duties, including responsibility
for about two dozen full-time faculty, some 70-80 non-full-time faculty, and miscellaneous
(about eight) support staff. She is assisted by three manager/administrators aud by the
"Coordinators" in each subject area. The Collective Agreement describes the functions of the
"Coordinator" this way:
Coordinators are teachers who 111 addition to their teaching
responsibilities are required to provide academic leadership and the
coordination of courses and/or programs. Coordinators report to the
academic manager who assigns their specific duties..... Those employees
who are designated as coordinators will receive an allowance equal to
one or two steps in the appropriate salary schedule...
When the Grievor was a "partial-load teacher", she worked under the immediate supervision of a
department Coordinator, to whom she could turn for assistance and advice.
13
Dean Pifield has extensive experience with aboriginal education and has an
ongoing association with native institutions like the Anishnabe Education and Training Circle
which works in partnership with the College to shape aboriginal programs and address the needs
of aboriginal students. Ms. Pifield participates in these consultative activities and is generally
responsible for the vast majority of aboriginal students enrolled at the College. She is very
familiar with the challenges faced by aboriginal students and she has worked for many years
with the aboriginal community to find acceptable and workable solutions to those problems. Ms.
Pified testified that she is satisfied that the College has been doing what can reasonably be done
in that regard - recognizing that effecting change is very difficult and requires work and patience
and consensus building, and that there are community sensitivities that must be respected when
these issues are being considered.
*
In view of Dean Fifield's many responsibilities, she has only limited time to
devote to the concerns of any individual teacher - particularly a new teacher who did not have
the experience or the administrative perspective that the Dean brought to the problem of how
best to meet the College's needs or serve the College's students.
*
The "Communications Department" is part of "Liberal Studies" and (as its name
suggests) is responsible for delivering "communications courses" to students in a number of
College programs. These communications courses were described in the evidence as "service
courses", because every Diploma Program requires that students take two of them as part of their
academic requirements. In this respect, the Communications Department is "servicing" the needs
of other parts of the College. We were told that the courses that the Communications Department
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provides - while compulsory - are nevertheless ancillary (and thus to some extent secondary) to
those of the department or program being "served".
The "communications teachers" (there are many of them) help students leam how
to communicate effectively in the English language - the language of work; so the course content
bears some resemblance to ordinary "English" courses. That said, it is common ground that low
student literacy presents an ongoing challenge for the College - especially if the basic skills have
not been leamed in high school or if the students come from a disadvantaged background, And
that is especially so for the aboriginal students, because facility in English is but one of many
skills that they may have to develop in order to participate in the broader society.
There are about 90-100 "communications course sections" that are offered each
school term and that are taught by a variety of full-time and non-full-time faculty - who, in turn,
may be hired, (as the Grievor was), only to teach "communications". Moreover (according to
Dean Fifield), since these communications courses are a component of different programs, it is
very important for the communications teachers to work closely with the each program area, so
that the communications content can be integrated into the individual programs. Ms. Fifield
testified that collaboration is absolutely essential for these "service courses" - not least because
communications skills can easily be seen as secondary to the technical skills that are at the heart
of the programs being "served". So according to Ms. Fifield, a communications teacher's
primary responsibility is to respond to the needs of these programs: to teach "communications
skills" in the context of what these other areas are doing. That is why they were referred to as
"service courses"; the Communications Department is "serving" the needs of other areas.
15
Ms. Fifield testified that it is also very important for a "communications teacher"
to recognize the needs of the programs that have a "co-operative component" - that is: where
classroom leaming is supplemented by periods of time in the workplace, and where one of the
key objectives of the program is to facilitate the students' smooth transition into full-time
employment. Not to put too fine a point on it; it is important for a communications teacher to
tailor his/her approach to the practical needs of the programs being served, as identified by the
teachers in those programs; and if that means that the communications instructor has to "bend
his/her approach", then, according to Ms. Fifield, that is what has to be done. Moreover,
according to Ms. Fifield, that is especially so for the "communications at work course"; since the
Co-op staff are intimately involved with how the workplace really operates and what prospective
employers actually prefer in terms of learning and documentmy format. This is not an academic
exercise for the Co-op staff, because effective work-related communication is important for
students seeking mid-program placements and full-time work at the end of their Co-op program.
*
The Grievor had a somewhat different perspective. The Grievor testified that
while it would be helpful to interact with other departments and that she did do that from time to
time, she did not think that it was "required". The Grievor said that she was not "required" to
liaise with or cooperate with, the Co-op Department, and that she was a "communications
teacher" not a "Co-op teacher". The Grievor said that her assignments were geared to the
communications curriculum, not to what Co-op was doing; so in this regard, her emphasis was
different from that of Dean Fifield. The Grievor said that she chose her assignments on the basis
of the curriculum "disk" which is provided to communications teachers and gives them guidance
on course content.
16
Over the course of her administrative career, Ms. Fifield has hired 10-12 new full
time faculty members - all of whom successfully completed their mandatory probation period.
Ms. Fifield said that her practice was to meet with the newcomer once per semester to review
his/her progress and to explore what was to come in the next term.
Ms Fifield testified that the focus in the very first term is on classroom teaching,
because that is the core responsibility of any new teacher. That teaching competence is addressed
by means of a classroom visit and by reviewing the student feedback that is obtained from a
questionnaire handed out in class. Ms. Fifield said that student feedback is available for all
faculty members - full-time and non-full-time - however, there are no classroom visits for non-
full-time faculty.
Ms. Fifield testified that if the probationer's teaching abilities are satisfactory in
the first term, then the focus in subsequent terms shifts to other aspects of the job - including
how the newcomer seems to be getting along with others and how s/he seems to be settling into
the organization's way of doing things. Ms. Fifield said that in order to be successful, the
probatioller must be more than just a good teacher. It was also necessary to "fit in" with the
organization and to work cooperatively with others.
*
Ms Fifield has known the Grievor since 2003, and it is common ground that they
have always had a good working relationship. The Grievor testified that she looked up to Ms.
Fifield, that they were on a first name basis, and that Dean Fifield has always been courteous and
17
appreciative of the Grievor's efforts - for example, sending the Grievor "thank you notes" for
filling in on short notice or otherwise doing a good job.
According to the Grievor, Dean Fifield has always been very supportive; and
from time to time has provided the Grievor with advice or assistance with respect to her career.
For example, in June 2006, Dean Fifield wrote a very favourable reference letter, so that the
Grievor could obtain admission to a graduate program at Royal Roads University in British
Columbia. That reference letter reads as follows:
This letter is in support of Yvonne Konrad's application to take the MA
program in Professional Communication with a Specialization in
Intercultural and International Communication, offered through Royal
Roads University.
Yvonne has taught English as a Second Language (ESL) and more
recently in the post secondary Communications department at Georgian
College, In post secondary, she has taught in the first level course entitled
College Communications and the second level course entitled
Communications at Work. She has been teaching at Georgian College
since 1999.
Yvonne's strength as a faculty is her commitment to student success and
student learning. On student feedback summaries, Yvonne is ranked as
an excellent teacher. Students comment on her high level of knowledge,
her ability to communicate this knowledge to students and her fair and
comprehensive marking abilities, Yvonne is always prepared for her
classes and very thoughtful about ensuring the right teaching method for
her students. For example, if you on those she will be teaching a class of
under prepared students, she will tailor her examples and approach to fit
their needs.
Yvonne's commitment to lifelong learning is evident as she seeks ways to
improve her teaching and also leam about new educational theories and
ideas. She does this through attendance at various faculty training
sessions and other College workshops. On her own initiative, Yvonne
completed a comprehensive 54 hour certificate program offered by
Georgian College, entitled Teaching and Training Adults,
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In her years at Georgian, Yvonne has demonstrated leadership potential
and a variety of ways, She has been involved in the College-wide
Communications curriculum committee and has assisted in the revision
of various Communications courses and outlines. Yvonne willingly
shares her expertise with others. She also seeks to learn from others and
is willing to take risks and try new ways of improving the teaching and
learning experience.
I have known Yvonne for four years. In that time, I have been impressed
by her love of teaching, her desire to help students be successful and her
commitment to education. When students had Yvonne for a teacher, I
know they are participating in a high quality learning experience.
Yvonne demonstrates a high level of both academic and personal
integrity. She is an asset to our Communications department at Georgian
the college.
If further information is required to support the Yvonne's application,
please feel free to contact me.
Dean Fifield explained that she assisted the Grievor in this way "without
hesitation because my experience with her was that as a classroom teacher she is excellent and
she was contributing to the communications department as well, from what I could see". Nor has
Dean Fifield changed her views about the Grievor's skills as a teacher, For while the Dean had
some criticisms of some particular teaching techniques that she witnessed in her classroom visits
(see below), the Dean has a high regard for the Grievol"s overall abilities in the classroom.
Indeed, since this has never been questioned, we do not propose dwell on the details of the
testimony in this regard, because it is common ground that the Grievor is a good teacher.
The Grievor testified that Dean Fifield has always been appreciative of the
Grievol" s efforts and that, over the years, the Dean has tried to be helpful to the Grievor in
various ways. For example, while the Gl'ievor was completing her graduate studies, Dean Fifield
revised the Gl'ievor's work assignments and found some additional work for her to do outside the
19
regular classroom regimen, so that the Grievor could earn some extra money while she was
completing her graduate training - something that would not have been possible if the Grievor
had been tied to a regular teaching schedule. Among other things, Dean Fifield "found some
hours" for the Grievor in the so-called "Write On Center" (WaC).
*
The wac is an advisory group, composed of some Georgian College Faculty
members and some university students ("student mentors") whom the College hires to help the
Georgian College students improve their writing skills. We were told that many Georgian
students were poorly prepared for post secondary training and that some of them have significant
"literacy issues" (especially some of the aboriginal students); so the wac is one of the
mechanisms designed to help these students improve their performance. The wac comes under
the purview of Dean Fifield. We will have more to say about the wac later.
*
The Grievor has aspired to become a permanent member of the teaching staff for
many years; and between 2003 and 2007 she applied for a permanent job on four separate
occasions: once for an "ESL" position; twice for a "Communications" opening; and a fourth time
(in 2008) for the "Communications" job for which he was ultimately hired. In each of those
instances there was a long interview process (one to one and a half hours), which included a
teaching exercise and a number of questions which the candidate was expected to answer.
The candidates for permanent positions are screened by a big panel that, in this
instance, included; Dean Fifield, a trade union representative, a representative from the Human
Resources Department, one or two faculty members, and sometimes a student or a Coordinator
20
(whose role we have already described). The interview panel operated on the basis of consensus.
When the interviews were over, the panel members discussed the various candidates, came to a
agreement on the single best applicant, then made a reconunendation to the Vice President
"Academic" for hislher review and confirmation.
*
The Grievor was unsuccessful in her first three job applications, even though she
was working for the College at the time and for that reason might have been thought to have an
advantage ("the inside track") - particularly since she had good student reviews for her classroom
teaching. Accordingly, it is interesting to note that what troubled the interview panel in each case
was the Grievor's "manner" - something that troubled the Dean as well, both in the interviews
and later on when the Grievor was eventually hired as a probationary teacher.
*
Ms. Fifield testified that in the first interview, the Grievor became emotional and
started to cry. She was very "impassioned" about the topics that were raised in the interview;
and as Dean Fifield remembers it, the Grievor was also very "definite" about the validity and the
"conectness" of her own opinions and experiences - so much so that she had to be redirected to
the questions being asked. Ms. Konrad was also very "definitive" (i.e. very opinionated) about
how she thought things ought to be done in the College's ESL department; and she was not
reticent about stating her views or (explicitly or implicitly) her various criticisms,
However, this "rigidity" (i.e. a seemingly fixed view about how things "should"
be done) and this level of criticism of the College did not impress the interview panel, so the
GrievOl' was not the successful candidate for the ESL job.
21
In the second interview there was the same high level of emotion, the same
expressed concern about the students' low literacy levels, and the same expressed opinion that
the College was not addressing these issues properly. Indeed, the Grievor was so caught up in
heatedly expounding her own opinions that she began to bang the table with her fist; and, once
again, she had to be redirected to the questions being asked. As the Dean recalls it, the Grievor
again had very definite views about how courses "should" be conducted in the Communications
Department, and Ms. Konrad had equally definite opinions about what the College "should" be
doing to improve literacy levels - all expressed in a fervent and insistent tone: conveying the
message (as the Dean described it) that "this is the way you should be doing it".
Dean Fifield explained that that while she expects employees to think: about these
things, she did not expect that a candidate in a job interview would exhibit that level of assumed
"superiority", or that level of emotion, or that level of criticism of the institution where she was
seeking a permanent job - as if "she knew best" what needed to be done.
Now, to be fair: the Grievor may have been advocating what she truly believed
was best way of reaching students - along with the contribution that she thought that she could
make to the students' literacy. However, flccording to Dean Fifield, it made the panel members
wonder whether someone with those fixed opinions, expressed in that zealous way, would turn
out to be unduly rigid or would be capable of "being fl team player". It was an attitude that
bordered on conceit, and one that the Dean did not think would "fit in" with the careful and
deliberate process of growth and change that she was then trying to introduce into the department
22
- a pace of change that was heavily influenced by the need for patience, and consultation, and
cooperation at a number of levels, including with the aboriginal cOlmnunity.
The third interview was much the same; and once again, the Grievor came across
as too rigid, too zealous, too critical and too opinionated for the panel's liking. The interview
panel was not persuaded that the Grievor would be "a good fit" for the Communications
program.
*
The fourth job interview was completely different - so much so that there was a
discussion among the panel members about whether it was appropriate to take into account what
had been observed ill the previous interviews; because this time, there was none of the emotion
or the fervour or the criticism that had surfaced before. However, the committee eventually
decided that the Grievor should be judged only by what she said and did in that particular
interview, and on that basis, the Grievor was declared to be the successful candidate.
*
The Grievor disagrees with this portrayal of her performance in the earlier
interviews. She said that she could not recall being emotional or crying or pounding the table and
she was quite sure that she did not convey an air of superiority 01' entitlement. She said that her
"passion" for the things that concerned her might have been "misread~'. Nevertheless, we accept
both Ms. Fifield's description of what she saw and the interview panels' concems,
>!<
Dean Fifield testified that despite the Grievor's performance in the earlier
interviews, she was quite happy to see the Grievor get the probationary job in 2008, because of
23
the good work that the Grievor had done for the College in the past. Dean Fifield was pleased
that the concerns that had surfaced in the earlier job interviews were not evident in this latest
one; and, since the panel operated on the basis of consensus, there is little doubt that the Grievor
would not have been hired into this probationary position if Dean Fifield had been opposed to it.
But that is not what happened. Ms. Fifield was content to give the Grievor a chance.
*
The Grievor was hired in August 2008 strictly as a communications instructor,
and as it turned out, she was assigned to teach the same communications courses that she had
taught before. Ms. Konrad started in the fall of 2008 with a workload consisting of four courses
(instead of the usual five) plus the "new teacher orientation program" that all new teachers were
required to attend, Judy Musso was assigned to be the Grievor's "mentor", Janet Lovering is a
"Coordinator" where the Grievor worked. Ms. Lovering is also a Union official.
*
In accordance with her usual practice, Dean Fifield conducted a "class visit"
during the Grievor's first teaching term in the fall of 2008. Dean Fifield had no concerns with
what she saw. Nor were there any concems from students. From Dean Fifield's perspective, the
Grievor's teaching was fine - as Dean Fifield expected it would be, since the Grievor had been
teaching for the College for some years and she had been assigned to teach the same courses that
she had taught before. There was no reason to expect any problems in the classroom and the
Dean saw nothing that troubled her.
Nevertheless, Dean Fifield testified that as the time approached for the Grievor's
first progress report (November-December 2008), she was (as she put it)"slruggling a little bit"
24
with how that evaluation should be framed; because the Dean had received some "feedback"
from other employees in the department (from Ms. Lovering, the Coordinator, and from Judy
Musso, the Grievor's mentor), who said that the Grievor was being negative, and creating
conflict in the office area, and was being unduly judgmental, and was not being a positive role
model. Ms. Fifield had no reason to disbelieve these employee confidants, but neither had she
herself seen any of the behaviour in question; so she debated with herself about whether to
include these concerns in the "end of term" evaluation that she was then preparing.
Dean Fifield testified that she is a "processor" - by which she meant that she likes
to mull things over before making a decision and is disinclined to blurt out her first reaction to
any situation. She said that she likes to bide her time and quietly think things through. And that is
certainly evident in the way that she went about preparing the Grievor's first progress report.
Because in the course of drafting that document, Dean Fifield first put in, then took out, a
reference to the critical comments that she had heard from other employees; and, in the end, she
decided to go with what she described as a "more subtle" general message about the need to be a
"team player". The final document presented to the Grievor includes the following comments
(emphasis added):
Congratulations on getting through your first semester as a new full-time
faculty member. As you will note from the student feedback information
and from the notes for my classroom observation, you are doing
extremely well in the classroom.
Good classroom teaching, as well as curriculum management and
development, are very important components within the full-time faculty
role. However as we discussed durin~ the interview, the role of full-time
faculty is different from the role of non-full-time faculty. These other
full-time faculty expectations tend to be more subtle and not always well
understood at first, though they too are very important since all college
staff and faculty are responsible to ensure Georgian meets its strategic
25
goals. including being a pOSItIve place to work and learn. These
expectations include such things as being a positive role model to
students and faculty. learning more about the College as a whole
including who to contact for assistance and questions. as well as
participating on committees and at events as a representative of the
Communications department. and of the Aboriginal Studies and Liberal
Arts portfolio.
As you work through these next few months of probation, I would
encourage you to continue the good work you are doing in the classroom.
I would also encourage you to Rive some thouRht to how ~vou are
fulfilling the more subtle exvectations which are embedded in the role of
full-time Communications faculty. If you have any questions/concerns
about this, please feel free to contact me
As will be seen, the emphasized portion of the document urges the Grievor to pay
attention to the "more subtle" aspects of her job, and is implicitly - if subtlety - critical of at least
that aspect of the Grievor's performance. The document notes the importance of being "positive"
and distinguishes these traits from classroom teaching; then it invites the Grievor to "give some
thought to how YOll are fulfilling the more subtle expectations..." of the job. The inference is that
these are areas that the Grievor should consider and should work on.
Accordingly, a close reading of this document suggests a degree of dissatisfaction
on the College's part; and although the Grievor initially testified that there was nothing
"personalized" about this progress report, (i.e. that there was nothing that in her opinion referred
specifically to her), she admitted in cross-examination that the emphasized passage was in fact
"personalized" and addressed to her specifically. It was not "boiler plate" (as the Grievor initially
suggested and said she believed at the time). For why else would an individual be asked to "give
some thought" to a particular area, if there were not at least some "concerns" to think about
26
On the other hand, the document does not clearly say that the Grievor is "failing"
in this regard, and it certainly does not identify any specific incidents or examples - of not being
"positive" for example. Accordingly, while the "subtle message" may be well be visible to a
careful reader, the document is neither bluntly critical nor in the end very illuminating; and it is
easy to understand why the Grievor (who has lots of confidence in her own abilities and the
"correctness" of her own viewpoint) would focus on the opening comment that she was "doing
extremely well in the classroom" - especially when an attached document pertaining to the
classroom visit is also very complimentary, and ends with the phrase "Congratulations on the
good work you are doing in the classroom Yvonne". Nor has there ever been any doubt about the
Grievor's skills in the classroom.
*
Furthermore, as it tU1'1led out, whatever "subtle message" the Dean hoped to
impart by the underlined words (which were not underlined in the original), that message was
completely lost by the way in which the information was conveyed to the Grievor at a meeting
called for that purpose on November 25, 2008. Because, accidentally, the Dean printed out a
copy of what she had earlier written then removed from the appraisal; and in the course of the
meeting on November 25, a page of those criticisms was given to the Grievor, by mistake, along
with the rest of the documents comprising her progress report; then when the Grievor (quite
understandably) reacted to the critical comments that she was being shown, the document was
snatched back with the explanation that these criticisms didn't apply to her. And when the
Grievor popped in the following day for reassurance, she was told that her first-tenn progress
report was fine.
27
It is evident that the Dean was uncomfortable about addressing these criticisms
overtly - which of course, might have required her to reveal their source and could easily have
become unpleasant. However in the result, the Grievor was left with the impression that there
were no problems with her work; and, at the time, (according to the Grievor) she paid no
attention to the emphasized portion of the first term evaluation. The Dean's fumbling
pelfOl'mance had completely deflected attention from the "subtle concerns" that she said she was
trying to communicate; and in the Grievor's mind, the high praise for her teaching abilities at the
beginning and the end of the progress report, completely overwhelmed the other portions of the
document. The Grievor testified that she thought that the comments in the middle of the report
were simply "boilerplate" expectations; and, as she saw it at the time, there was no criticism of
her personally and 110 hint of any problems on her part. So, in the result, what the Dean had heard
from the Grievor's co-workers was neither clearly flagged for the Grievor nor discussed with
her; and, according to the Grievor, she was left with the impression that she had received an
entirely favourable first term appraisal. The "subtle message" was altogether too subtle.
*
The Gl'ievor testified that she had no idea who might have said critical things
about her, and that if she had known about them she would have responded to the criticisms. But
so far as the Grievor was concemed, her first progress report was fine. There were no "red flags".
*
Nor, according: to Dean Fifield, was that impression wrong. Dean Fifield testified
that once she had decided to remove the critical comments from the Grievor's first tern appraisal
(for the reasons set out above) the Grievor was indeed left with "a clean slate" as of the end of
the first/fall tenn. Ms. Fifield further testified that she did not take these matters into
28
consideration towards the end of the second term (in April 2009) when it came time to consider,
once again, how the Grievor was doing and whether her probationary period should be
continued. Dean Fifield testified that in the second term she focused, instead, on what she herself
had seen and heard and learned in late March and early April 2009; and that it was those
observations towards the end of the second teaching term (April 2009) that led to Dean Fifield's
decision not to continue the Grievor's probation period for another tenn. The Grievor's first term
evaluation was acceptable, but, according to Dean Fifield what she saw and heard towards the
end of the second term was not acceptable. And that is what she acted upon.
*
On March 16, 2009, Dean Fifield conducted another classroom visit, and was
pleasantly surprised to see full attendance - which, she said, is indicative of a good teacher.
However, Dean Fifield was troubled by the way ill which the Grievor dealt with her students'
resume assignment.
Resumes were part of the employment documentation that the Grievol' could
choose to teach in her "communications at work" course; however, resumes were also something
that the Co-op students had to do for the Co-op department, where one of the components of the
program involves getting a job and preparing a resume for that purpose (i.e. the resume has
practical importance for the Co-op consultants and is not an academic exercise), However, the
Grievor told her students that if they submitted a "Co-op style resume", they would not pass her
communications course, The Grievor took the students through her own required template, and
said that the Co-op department's way of doing things was not acceptable to her.
29
The Dean thought that the GrievOl' was being unnecessarily rigid and critical of
the Co-op department's approach - especially when "communications at work" was a "service
course", intended to assist the work of other programs, like the Co-op program, where actual
work experience was part of the student's requirements, Dean Fifield thought that it was
preferable to work within the Co-op format - perhaps correcting grammar and spelling as
required, but accepting that the Co-op approach as an equally appropriate model and not one that
was forbidden or "wrong".
In Dean Fifield's opinion, the Grievor's approach could lead to student confusion
as between the requirements of two College areas that dealt with resumes, and the Grievor
should have worked that out with the other area rather than telling her students that the Co-op's
way of doing things was not acceptable. In Ms, Fifield's view~ it was not, and should not be, as
black and white (right/wrong) as the Grievor was portraying it; and the Grievor should not be
insisting on her view and rejecting that of the Co-op department which the Grievor lmew was
using another resume approach.
Ms. Fifield testified that the Grievor's comments in the classroom reminded her
of some difficulties that had surfaced a few years ago, when issues about the resume format had
been the flashpoint between communications t.eachers and the Co-op consultants who counselled
students on how to prepare a resume for the purpose of getting a job. Ms. Fifield said that it had
taken some time to promote cooperation, so that the students would not be confused about the
"right way" of doing things. In the Dean's view, the Grievor's rigid insistence on her own
approach - and no other - suggested a lack of trust in what the other department was doing; and
30
this attitude was also being conveyed to students. It suggested unnecessary stubbomness and
rigidity. And since the Co-op resume wasn't being graded there was no problem of "submitting
the same work twice", as was suggested to Dean Fifield in cross-examination.
However, Ms. Fifield also agreed in cross-examination that she was not intimately
familiar with the course guidelines for the communications course in question, no]' was she
familiar with the resume information on the curriculum "disk", nor did she know what the
practice of other communications teachers might be. Furthermore, since Dean Fifield never
raised this issue with the Grievor, she did not know whether the Grievor had, in fact, canvassed
these questions with her Co-op colleagues - as the Dean believed should have been done - or
why the Grievor was rejecting the Co-op approach, The Dean reacted to what she saw: the
students were being told that the Co-op format was "wrong" and would lead to failure; and the
Dean disapproved of this "rigid" approach - both in principle, and because of what Dean Fifield
thought it said about the Grievor's Co-operation (or lack of it) with the Co-op department. But to
repeat: Dean Fifield never raised this alleged "problem" with the Grievor.
*
Over the course of several hearing days we heard quite a bit of evidence about the
so-called "resume issue"; and, unfortunately, the Grievor's recollections were somewhat
fragmentary (which is perhaps not surprising for the reasons mentioned in Part III of this
decision). The Grievor testified, for example, that she did not recall ever hearing about a
"problem" with her resume format; and she said that she had "no idea" that there was an "issue"
with the Co-op department about that. However in another part of her testimony, the Grievor said
that she spoke to Denise Near, one of the Co-op consultants, because, among other things, the
31
Grievor wanted to be able to reassure her students that they were getting consistent advice and
that "we were all on the same page" - which suggests that the Grievor was in fact aware of the
issue, and was also aware of the potential for student confusion/concern (although she testified
that she wasn,'t). There is no evidence that the Grievor raised this "issue" with her department
Co-ordinator or with the Manager of the Co-op department. We did not hear from Ms. Near.
The Grievor initially testified that she did not know whether there was a particular
resume style used by the Co-op department and she says that she never saw a Co-op style -
although she acknowledged that "they had their style and we had ours", and that she was well
aware of the differences (which all seem to be pretty inconsequential from an outsider's
perspective). The Grievor testified that she has never seen anything "official" about that. The
Grievor also said that she was not "rigid" about her own format, but she was equally clear that
what the Co-op department was doing did not fit her marking scheme; and while she initially
testified that she had no flexibility at all with respect to the resume template that she used, she
conceded in cross-examination that, in fact, she did. However, as the Grievor put it in her
evidence: she was a communications teacher not Co-op teacher; and in her view, she was free to
set her own standards - which she did.
*
Accordingly, whether or not the Dean was "right" about this issue, there was at
least some evidence from which the Dean could conclude that the Grievor was being
mmecessarily rigid - insisting that things be done "her way"; and the Grievor's testimony about
the extent of her consultation with others was not very clear. We also accept the Dean's
testimony that (contrary to the Grievor's opinion) communication teachers were expected to
32
consult with other departments and to tailor their cUlTiculum to the needs of the department being
"serviced" - as the Dean understood all of the other teachers were doing (see below). But these
"concerns" were never raised explicitly with the Grievor - until after she was terminated.
*
In the course of the class visit on March 16,2009, the Dean noted that the Grievor
was pointing out some student errors from the papers being returned to the current class; and
while Ms. Fifield thought that it was fine to use actual student mistakes for learning purposes, it
would probably have been better to use past student assignments rather than current ones, so as
not to embanass the students in front of their classmates. However this was a very minor
concern, the students were not identified, and, once again, Ms. Fifield did not say anything to the
Grievor about it at the time - or, in fact, ever, until after the Grievor was terminated (something
that Dean Fifield admitted in cross-examination was "unfair").
*
It is also interesting to note that Ms. Fifield said that she did not bother to
distribute student questionnaires in March 2009, because she knew that the Grievor was a good
teacher; and she conceded in cross-examination that all of the student feedback, over the years,
has been very positive. Accordingly, whatever concerns Dean Fifield may have had about
possible student concerns or possible student "confusion", or the Grievor's teaching technique,
they were not significant enough to actually poll the students for their input - or, it seems,
significant enough to mention to the Grievor at the time.
*
It seems to us that the "teaching criticisms" that the Dean enunciated in her
testimony before this tribunal have to be seen in that light; and in our opinion, so should the
33
Dean's evidence about the so-called "Kim issue", which came to the Dean's attention about a
week before the mid-March class visit.
*
In early March 2009 Ms. Fifield received a complaint from an aboriginal student
named "Kim" who was upset that the Grievor had written a comment on an assignment that the
student had submitted. The assignment smelled of smoke; so the Grievor made the following
hand-written note on the front of the student's assignment:
Kim - Do you smoke? If so, you may want to make sure you work on
your future resumes at school so that the resume doesn't smell like
smoke. (You won't read this in a textbook, but it is just a suggestion that
may affect your chances of the job),
Kim was a vulnerable student with an unhappy history. She told Ms. Fifield that
she felt "humiliated" by the Grievor's comment and thought that she was being "judged". Kim
told Ms, Fifield that she was a smoker; but she also wondered whether the Grievor was aware
that smoke had ceremonial use in the aboriginal community which might also account for the
smell. Kim did not want the Dean to raise the matter with the Grievor until after her grades were
in. Kim said that she was afraid to talk to Grievor herself,
The Dean agreed in her evidence before this Board that it was appropriate for the
Grievor to convey this message to Kim (i,e. that it was appropriate to tell her that a resume
should not smell of smoke), but she said that she did not think that the Grievor had used very
good "judgment" when she wrote this note on Kim's assignment. The Dean testified that it might
convey the wrong message, 01' might seem "judgmental" (whatever that means), or might give
the mistaken impression that this was part of the marking criteria. The Dean thought that it
34
would have been better to have given this message outside of class and in person - especially to a
sensitive student like Kim, and not by a personal note on the assignment.
*
The Dean testified that her normal practice when she receives a complaint from a
student is to raise the matter with the teacher concel1led, in order to get the teacher's perspective
on the problem. But Dean Fifield did not do that this time, because, she said, Kim had asked her
not to. The Dean testified that she had intended to speak to the Grievor about this issue, but she
never did. It was not mentioned during or after the mid-March class visit (which occurred a few
days later), or at either of the two meetings that Ms. Fifield had with the Grievor that term (in
late March and early April), or at any other time. So, once again, the first time that the Grievor
heard anything about it was after her termination.
*
There is no basis for Kim's fear of the Grievor 01' for her fear of reprisal; and it is
difficult to see this as anything other than a minor difference of opinion about how a message
that needs to be sent, actually should be sent (privately in writing or privately in person). Thus,
while we heard much evidence about this particular issue, it was hardly a serious one; and as
with so much else with which Ms. Fifield found fault, the first time that the Grievor heard
anything about it was during her terminntion meeting.
*
In any event, shortly after the Dean visited the Grievor's class on March 16.2009,
Ms. Fifield encountered Lisa Whalen the Manager of the Co-op area; and in light of what the
Dellil had observed in the Grievor's class earlier that day (and the "history" mentioned above),
Dean Fifield asked Ms. Whalen "how things were going" with the resume writing being done in
3S
the Co-op department, and "how the relationship was" between the Communications faculty and
the Co-op advisors. Ms. Whalen replied that she had planned to talk to Ms. Fifield about that,
because (Ms. Whalen said) there was one new teacher who was causing a lot of problems and
generating a lot of frustration for the Co-op group, because her students were coming to the Co-
op advisors, very confused, since they were being required to work with a resume template that
was different from one used by the Co-op department. When pressed to identify who she was
talking about, Ms. Whalen said that it was Ms. Konrad.
Ms. Fifield asked Ms. Whalen if there were any other communications teachers
causing these difficulties. Ms Whalen replied that, "no", there was only one communications
teacher behaving in this way. Ms. Whalen added that there were 30 individuals teaching
communications courses with a resume writing component, but only one teacher - the Grievol' -
seemed to be having difficulties melding what she was doing in her class with what her
colleagues in the Co-op department were doing. According to Ms. Whalen, the other 29 teachers
seemed to have no problems at all "adapting" the communications course resume requirements
(the ones that the Grievor said were on the "disk"), so as not to cause conflict or confusion with
what the Co-op group was doing. Only the Grievor was causing "issues" in this regard.
~
This would have been known to the Dean when, a few days later, she and the
GrievOl' had a one half hour meeting, which had been scheduled for the purpose of talking about
the Grievor's teaching load and what might unfold in the May/June of that year, after the end of
the second school term. However, in the course of this meeting, Dean Fifield said nothing about
36
the "resume issue" - just as she said nothing about "Kim" incident, 01' the criticism of Grievor's
teaching techniques that Dean Fifield said she had noted a few days before.
*
The Dean testified that her practice at the end of each school term was to go over
the department's teaching requirements, then to discuss those needs with the teachers, one by
one. She said she made her decision on course assignments and work load (the "SWF") after
receiving input from the teachers concerned. That was the purpose of the meeting with the
Grievor that was held at the end of March 2009.
*
The Dean testified that in the course of this discussion with the Grievor (and in a
second follow-up discussion that occurred a few days later), she saw and heard a number of
things that she found quite troubling. And while the evidence is somewhat unclear about when
(i.e. at which meeting) particular items were raised, the gist of the two meetings is set out below,
*
Since the purpose for the late-March meeting was to discuss "workload", the
Grievor told Ms. Fifield that the marking burden that had been imposed upon her in her first
teaching term (4 communications courses) was completely unrealistic. The Grievor said that she
found the marking load far too onerous - and that she had difficulty getting through it. And in the
course of that discussion, the Grievor said that one technique that she had found "worked" for
her to lighten the burden, was to "hire her daughter" to help out with the marking. The daughter
in question was 15 years old and, at the time, was in Grade 10.
37
Dean Fifield testified that she was shocked by this revelation: that the Grievor had
done it, and also that (in the Dean's opinion) the Grievor was so oblivious to its potential
significance that she would tell her Dean about it. The Dean said that she was totally
flabbergasted. However she did not respond, overtly, because (she said) she wanted to think
about what this revelation might mean in the larger context
As the Dean saw it, the Grievor's behaviour was at the very least a serious error
of judgment; moreover, the Grievor seemed to be quite unaware of what the Dean saw as the
potential adverse consequences if it ever came to light that a 15 year old high school student in
Grade 10, was marking the assignments of College students. For quite apart from the breach of
the students' confidentiality that was involved, Dean Fifield thought that there would be an up-
roar among the College students if it ever became known that the Grievor's daughter had been
involved in marking their assignments.
However, Dean Fifield said nothing to the Grievor about this, at the time,
because, (she testified), she was not sure what to make of this extraordinary news, On the other
hand, Ms. Fifield did respond to the Grievor's work load complaint and did adjust the Grievor's
proposed work assignments so that there would be a less onerous marking requirement In this
respect, she was responsive to the substance of the Grievor's concern. For her part, the Grievor
said that she was very grateful for that adjustment.
*
The Grievor testified that she was stunned when she (later) learned that having
her daughter help out with the marking was considered improper. The Grievor testified that this
38
had never occurred to her; and when she was asked in cross-examination about how she thought
her students might feel about it, she said that she assumed that they would never find out. The
Grievor saw no concerns about confidentiality. She said that she had tUl11ed over the front page
of each paper to hide the students' names; however she also indicated that her daughter put the
papers in alphabetical order, so it seems that the daughter did know the names of the students
whose papers the daughter was reviewing. The Grievor said that she probably didn't tell her
colleagues about this "helpful technique" and that she could not recall anyone - including her
mentor - ever suggesting that there was anything wrong with it.
The Grievor acknowledges that, in retrospect, it was a mistake to ask her daughter
to help out with the marking of her students' assignments, However, according to the Grievor,
the daughter's involvement was misunderstood. The Grievor explained that her daughter was
merely circling errors in grammar, spelling, and punctuation, so that the Grievor herself could
concentrate on the content of the assignment. According to the Grievor, her daughter wasn't
assigning the ultimate grade, the Grievor was; moreover, if she had been alerted to how seriously
the College would view this practice, she never would have done it. Nor, being so alerted, would
she ever do it again.
The Grievor initially said in cross-examination that having her daughter(s) help
out with the marking had happened only once, and that it had been induced by the heavy burden
of marking that the Grievor had in her first teaching tenll, The Grievor was quite definite about
that: it had happened only once; and in the course of her cross-examination she repeated that
39
answer a couple of times, when asked about it by Employer Counsel. The Grievor said that the
daughter had only helped out once, and it was during "reading week" in the fall of 2008.
Later in her testimony though, the Grievor had occasion to "correct" Employer
Counsel, who was suggesting to her that it should been obvious that it was inappropriate to have
her daughter~ (plural) help out with the marking. You haven't got that right, the Grievor said;
there was only one daughter helping out with the marking on this occasion (in the fall of 2008);
then she added that the only time that both daughters were helping out with the marking, was on
some earlier occasion with respect to a multiple choice test, where there was an answer key that
the two daughter~ (plural) had used to register and record the correct answers (i.e. as the Grievor
explained it, there was help with the marking, but no real judgement was involved, because, the
Grievor said, she had shown her daughters what she was looking for).
*
So as it turns out, the incident in the fall of 2008 was not "the only time" that a
child had helped out with the marking despite the Grievor's repeated assertions; and if the
Grievor is right about the date of this earlier occasion (about 2003), then one of the daughters
helping out with the marking would have been only 10 years old. The Grievor explained that
when she had said that her daughterii} had only been involved in marking "once", she had
forgotten about the other time. She also said that other teachers had this kind of help.
*
However, the "marking issue" was not the only thing that surfaced in the course
of these two end-of-tenn meetings. According to Ms. Fifield, the Grievor complained (as she has
done before) about the low literacy levels of the students that she had to teach - which, she said,
40
made it much more difficult to mark their assignments because they where replete with spelling
and grammatical errors (which is why she had asked her daughter to identify those errors). The
Grievor also complained that the Write an Center was not meeting the students' needs; because,
according to the Grievor, they "didn't knolV what they were doing",
As we have already noted, the Write On Center is a group of advisors who help
edit and improve the students' work. The wac is collaboration between the College Library and
the Communications Department. Ms. Fifield is responsible for providing the teaching staff to
the wac, while the Library provides the university student tutors; and according to Dean
Fifield, there are supposed to be ongoing meetings within the WOC group to ensure consistency
and to maintain the quality of service from the for full-time faculty members and from the peer-
tutors who work at the wac,
As Dean Fifield saw it, the Grievor was being critical of an important student
resource for which the Dean herself was responsible; moreover, according to Dean Fifield, she
has never encountered a probationary employee who had such a negative and aggressive tone in
a meeting. It was the vehemence of the complaints that troubled the Dean, and not just what the
Grievor was saying; moreover the Dean had seen that vehemence before: in the job interviews,
The first SWF meeting was interrupted by a telephone calI which required the
Dean's attention; and since (according to Dean Fifield) the Grievor was obviously troubled by
that interruption, Dean Fifield told Ms. Konrad that they could meet again the following week.
And so they did.
41
The Grievor came to that second meeting (April 6, 2009) with as list of things that
she said she wanted to discuss - things that she said she had observed and (as she put it) '\vanted
answers" for. It was, as Dean Fifield saw it, like she was being presented with a "list of
demands"; and according to Dean Fifield, the Grievor came in with the same aggressive tone that
she had used at the earlier meeting. For example, the Griev01' demanded to know how the Owen
Sound campus "got away with" a lower teaching load - a query delivered in an angry voice,
punctuated by slamming her finger repeatedly on the table. The Grievor said that it wasn't fair,
The Dean was taken aback.
According to Dean Fifield, the Grievor also demanded to know when she would
be alJowed to work in the aboriginal area - an interest that the Grievor has, but was not
something that she had been hired to teach, nor was it something that (as the Grievor admitted in
cross-examination) she was specifically qualified to teach. The Grievor said to Dean Fifield that
she wanted to know why she wasn't being allowed to teach in aboriginal studies. Ms. Konrad
also wanted to know if she could teach the "cross cultural course" when someone retired. The
Grievor also complained about the "horrible" literacy levels of the aboriginal students and
wanted to know when she would be allowed to make changes to the current communications
curriculum, because, according to the Grievor "what we are doing is not working".
In the course of these meetings the Grievor complained that the wac was not
meeting the needs of students; and she asked the Dean several times, in a demanding voice "what
are you going to do about this". The Grievor made it clear to Ms. Fifield that she was not
criticizing her colleagues at the wac, but she also said that the student mentors "did not know
42
what they were doing"; and once again, she demanded to know what the Dean was going to do
about it. The GrievoI' told Ms. Fifield that she asked her students to attach the wac's work
product to their assignments because "they don't know what they are doing down there so I have
to double check it".
Ms. Fifield took these comments to be critical of the wac - as they were, at least
insofar as the peer mentors were concerned, and were, inferentially, with respect to the lack of
supervision of what the mentors were doing. However, Ms. Fifield conceded in cross-
examination that if the Grievor was going to avoid being critical of the wac's actions and at the
same time not mark her students down for the waC's (alleged) errors, then it was necessary to
have the wac's work product in order to distinguish the two. That was also a way to avoid the
"second guessing of her colleagues" - something that Ms. Fifield said she was concerned about.
Ms. Fifield further agreed that Ms. Konrad had made it clear that she (Ms. Konrad) was not
being critical of her colleagues - just the student mentors and the way in which the wac was
being run and supervised.
However the wac was not the only subject of complaint. In the course of the
meetings the Gl'ievor also complained about the Student Services Center (which is in the Co-op
area), and said that she "wished her students wouldn't go there because they did not know what
they were doing".
The Student Success Center includes a group of Co-op consultants who counsel
students about job search, resume writing, interview skills and how to identify labour market
43
opportunities; and as such, these Co-op consultants deal with employment documentation
(including job applications and resumes) in a practical way. The Grievor told Ms. Fifield that
they didn't know how to write resumes and that they were giving bad advice (which suggests,
despite her testimony to the contrary, that the Grievor was well aware of some tension over the
"resume issue" and what the Grievor thought was the "right" way of doing things).
*
The Grievor eXplained in cross-examination that she expressed this criticism to
Ms. Fifield because a couple of her students had got advice from the Student Success Center
with which the Grievor disagreed. The Grievor testified that it would been better for the students
to follow the Grievor's her own marking scheme rather than to take advice on resume writing
from the Co-op group; and that if the students had done things her way, there wouldn't have been
problem - which is another indication, we think, that the Grievor did know (despite her denial)
that there were conflicting messages about resume writing and thus there was an issue to be
resolved. The Grievor agreed that she had discouraged her students from going to the Student
Success Center and from accepting the advice of the consultants working there.
*
The Dean was totally taken aback by the Grievor's tone and demeanour. It was, as
the Dean saw it, angry and negative and accusatory and "impassioned"; and while the Grievor no
doubt believed fervently in what she was saying, her suggestion (as Dean Fifield saw it) was that
other areas of the College were not taking their jobs as seriously the Grievor was, and that, as the
Grievor had put it "they didn't know what they were doing". The Grievor knew the "right" way
of doing things, and the others didn't.
:!:
44
The Dean was personally affronted, and felt that she herself was being challenged.
She was surprised by the range of criticisms, and she was also surprised that the Grievor seemed
to be so angry about it; and, according to Dean Fifield, the same tone pervaded the Grievor's
requests to be considered for teaching assignments outside the area for which she had been hired,
or for which she was qualified - which according to the Dean was not an inappropriate subject in
itself, but which, in this instance, was being raised in a demanding way, with an attitude of
entitlement. Once again the Dean was surprised that at a probationary employee would behave
this way. She said that she had never seen anything like it before from a probationer,
*
The Dean was quite troubled by it all. But she did not reprimand the Grievor or
otherwise signify her il1'itation with the way that the Grievor was behaving. She did not tell the
Grievor to change her tone or stop the table thumping. She did not tell the Grievor not to be so
negative or critical. Dean Fifield took it all in, and said nothing except to dismiss the Grievor's
criticisms of aboriginal program, with the observation that the Grievor did not understand the big
picture,
*
The Grievor testified that she was "hurt" when Dean Fifield told her that she
didn't see the big picture and that there were disagreements in the aboriginal community about
what should be done. The Grievor explained that she was concemed about aboriginal student
leaming and she had done her thesis about that so she thought she knew something about the
problem. The Grievor further testified that she did not think that "asking questions" (the
Grievor's description of what she was doing) would be seen as "negative", She said that she that
thought that the College would be open to criticism and to new ideas. Ms. Komad also said that
4S
she thought that it was odd that anyone would suggest to her that it might be prudent for a
probationer to be "low maintenance" (i.e. not to be too demanding) - although she agrees that the
Union President told her precisely that when she was first hired on as a probationer. The Grievor
couldn't recall whether she heard that message from her mentor or from anyone else,
*
The Grievor testified that in her two meetings with Dean Fifield in late March and
early April 2009, she was not intending to come across as aggressive or rude, and that she
doesn't believe that she was "demanding". She said that she was just asking about things that she
was "passionate" about. The Grievor testified that she wanted a change from the courses that she
had been teaching for years, and that she did not think that asking questions about future course
responsibilities would be regarded negatively. She said that she could not recall thumping her
finger on the table. She suggested that there must have been some miscommunication in that
regard, or perhaps the Dean was having a bad clay.
*
Following the April 6 meeting, the Dean reflected on what she had seen and what
she had heard and what, if anything, should be done about it; because what the Dean had learned
from the Grievor, or about the Grievor, in that short period from late March to early April 2009,
changed the Dean's mind about the desirability of having Ms. Konrad on her full time staff. The
Dean had supported the Grievor's hiring, but now she thought that it was a mistake.
As the Dean Fifield saw it, the Grievor had been critical of the Co-op department
in the classroom, and she had been critical of the Co-op consultants in the March-April meetings.
There were indications of inflexibility and non-cooperation; and, the Dean had heard directly
46
from the manager of the Co-op department that the Grievor - alone among 30 communications
teachers who were working with resumes - was the only one causing conflict and confusion. In
the course of the two meetings, the Grievor had been critical of the Write On Center; and she had
been critical of the Student Success Center; and she had been critical of the current curriculum;
and by complaining about the way in which the College was failing students and demanding to
know "what the Dean was going to do about it", she was implicitly critical of the Dean herself.
The Grievor was unhappy with the courses that she had been given (the ones she was hired to
teach) and she was looking for other things to teach, for which she was not qualified; moreover,
in Ms. Fifield's opinion, these views and queries were not conveyed in a calm and respectful
way. On the contrary, the Grievor was angry and accusatory, striking her finger on the table to
emphasize her points: what had to be done. The Dean was surprised and troubled by this attitude
- which she had seen before, in the first three job interviews.
The Dean testified that with only a handful of full-time teachers in the
communications department, she needs individuals who are collaborative and cooperative and
who work within the constraints of the department, while reaching out to other departments to
work together for student success; and given what Ms. Fifield had seen and heard from the
Grievor and from Ms. Whalen, the Dean had serious reservations about whether the Grievor
could do that - that is, whether the Grievor could be flexible and cooperative and would defer to
judgements other than her own, In the Dean's opinion, the Grievor was far too negative and far
too critical of others. Then, of course, there was the issue of the Grievor's daughter helping out
with the marking: both that it had happened and that the Grievor was (in the Dean's opinion) so
oblivious to the potential consequences that she would tell the Dean about it.
47
After pondering these matters ("processing", as she put it) Dean Fifield concluded
that the Grievor was not what she was looking for in a full-time employee, and that the Grievor's
temperament was "not a good fit". The Grievor had done well in the fourth job interview and the
Dean had thought, at the time, that the Grievor's attitude had changed; but in the Dean's opinion
it apparently had not: the Grievor was exhibiting the same traits that had doomed her first three
job applications. Dean Fifield testified that she was disappointed that someone with such good
teaching abilities had not worked out, but that was how she saw it. She didn't think that the
problems were remediable and she was not inclined to try, There were lots of alternatives.
*
These were the reservations that ultimately persuaded Dean Fifield not to
continue the Grievor's probation period beyond the end of the second teaching term. However,
the Dean's postponed implementing that decision for about three weeks until actual the end of
the school term, so as not to cause problems for the students who had to complete their courses
and get their grades. The termination letter is dated April 29, 2009 and was sent out over the
signature of someone from the Human Resources Department. It reads as follows:
As you know, you are currently on probation ill your position as
Professor of Communications in the Aboriginal Studies and Liberal Arts
Department of Georgian College. The College must release you from
your employment. We are providing you with 90 days notice which will
begin Thursday, April 30 and end Tuesday, July 28,2009,
Your Dean Maryann Fifield, has met with you and provided feedback
related to how you are performing the duties of your position. In her
memo to you of November 25, 2008, while it was noted that you were
doing a good job in the classroom, you were reminded that the role of
full-time faculty goes beyond the classroom and that full-time faculty are
expected to be positive role models for students and faculty. Since that
November meeting, the College has become aware of very disconcerting
information about your behaviour towards staff and students. It is this
information that has caused us to make of the decision to end your
employment.
48
As a result, the College has decided to release you immediately from
your employment. You are not required nor are you requested to be on
campus after today. As stated above, you are being provided with 90
days notice as per the Collective Agreement and will continue to be paid
until July 28, 2009. Any and all accrued vacation will be paid to you in
your last pay period of August 7, 2009. All group benefit coverage will
continue until July 31, 2009. You will receive further information from
Payroll related to your pension and benefits.
Yvonne, we wish you success in your future endeavours. If you have any
questions related to the details of this letter, please contact either
MaryAnn Fifield or me.
A few days later, this first letter was supplemented with a further communication that reads this
way:
Dave Duncan, President Local 350, asked on your behalf for this letter
giving the reason(s) for your release from Georgian College during your
probationary period.
You will recall when you, Marymm Fifield and I met on April 291h, you
were given a termination letter and we discussed in detail, for more than
hour, the reasons for this decision. I can restate our serious concerns are
that you are overly judgmental in your dealings with students, faculty and
staff, many of whom feel that you are difficult to get along with. You are
openly critical of the department, your Dean and other areas of the
college in a non-constructive way. In addition to this Yvonne, we talked
about the fact that you had your daughter review, assess and critique your
students' assignments. This is not at all acceptable,
I trust this information is sufficient to your request.
*
It is not disputed that the Grievor had an opportunity to meet with College
officials to discuss her concerns, and their concerns, at some length. However, it is also not
disputed that this was the first time that these' issues' had been raised clearly and squarely with
the Grievor.
*
49
The Grievor testified that she felt "blindsided"; because as of the end of the first
school term (four months in) she thought that she could fairly look forward to a career at the
College (she had a "clean slate" in Ms. Fifield's words), but barely four months later, Ms.
Konrad was being "released" from her probationary employment. Moreover, in the Grievor's
view (correctly in our opinion) none of the issues which allegedly support that decision had ever
been raised with her clearly and directly, nor had anyone ever told her that her job was in
jeopardy - despite two opportunities in March and early April when she was in discussion with
Dean Fifield about one thing or another. So as Ms. Komad sees it, she was being discarded for
reasons that, as far as she was concemed, were both unwarranted and a complete surprise,
because neitller Dean Fifield nor anyone else at the College had ever raised these issues with the
Grievor or had solicited the Grievor's "side of the story", or told her that her job was on the line.
The Grievor testified that given her extensive teaching experience, her motivation
and her commitment to the College over the years, she would have responded positively to any
criticisms and she would have corrected any deficiencies that were drawn to her attention. The
Grievor said that she was someone who followed "the Rules" as she understood them; and that
she had not been given a fair chance to prove her worth. The Grievor noted that she had been
teaching at the College for many years, that she aspired to be a permanent teacher, and that she
would have done anything necessary to attain that goal. She said that if someone had identified
her alleged faults, she would have readily corrected them.
50
v - The Position of the Parties restated
Union Position
The Union concedes that the College is not required to establish "just cause" for
"releasing" a probationary employee. The Employer is entitled to determine the new employee's
"suitability" for permanent employment and an arbitrator should not intelfere with that decision
unless there is a finding of "bad faith". However, in the Union's submission, there is an implied
obligation to exercise this discretion "fairly" and "in good faith", and to give the probationer a
fair opportunity to succeed; moreover that "good faith" obligation is both clarified, and
supplemented, by Article 27.02D of the Agreement, which requires the Employer to give the
employee periodic progress reports,
In other words, the content of the good faith obligation is informed - at least in
part - by the terms Article 27.02D.
The Union submits that, in the instant case, the first progress report (in November
2008), was totally inadequate and there was no second progress report all. Instead, the Grievor
was terminated without any warning of the alleged faults upon which the Employer now relies,
and without any opportunity to respond to assertions that, in Union's submission, are either
unsubstantiated or umeasonably exaggerated in light of the Grievor's long years of successful
teaching at the College. Moreover, in the Union's submission, some of the Dean's views are
51
simply wrong - as she would have discovered if she had investigated further, or if she had asked
the Grievor about these concerns.
*
The Union submits that if Dean Fifield had reservations in November 2008 at the
time of the first progress report, (as she testified she did), then the Dean should have shared those
conce1'11S with the Grievor. That is what Article 27.02D requires, but that is not what happened.
There were no specific behavioural "issues" raised with the Grievor, there were no problems
identified, and there were no specific recommendations for improvement. Instead, the Grievor
was given a positive first term appraisal and there was no mention of any of the things that the
Dean later said she was concemed about.
In the Union's submission, the "subtle expectations" referred to in the November
progress letter really were "boilerplate" as the Grievor believed them to be; because there were
no clear indications about the Grievor's failings in this area. There was no "subtle warning", as
the Employer suggests there was, but rather a statement of the obvious (e.g. be a good team
player); and, in particular, there was no mention of any attitudinal issues, or conflicts with other
teachers, or being judgmental, or neglecting others' views - just as there was no suggestion that
there were any problems with the Grievor's teaching style or her relationships with students.
There was nothing clearly informing the Grievor about what she should do differently.
Overall, the report was quite good; and the Dean' handling of the documents
together with the Grievor's second visit with the Dean the following day, merely confirmed that
impression, Things were going well; and if that was not the case, then the Dean had an
52
opportunity Gild an obliRolion to say so, But she didn't. And in the Union's submission, that
silence has to be considered against a background of years of satisfactory service as a partial-
loader and positive teaching appraisals and the glowing recommendation that Dean Fifield
herself had penned in 2006.
*
In so far as the second progress report is concerned (the one that was supposed to
be done at the 8 month mark), that progress report didn't happen at all, even though there were
some weeks to go before the end of the school term; and, according to Dean Fifield, she had all
of the information that she later relied upon to terminate the Grievor's employment. But none of
the "issues" later advanced to justify the termination was ever brought to the Grievor's attention,
so that the Grievol' could give her side of the story - and, more importantly, so that the Grievor
could rectify any of the things that Dean Fifield said that she was concerned about (in a teacher
who already had some years of satisfactory teaching experience).
Union Counsel submits that in the context of this case, the failure to communicate
the employer's concerns supports an inference of bad faith, as well as a breach of Article 27.02D
of the Collective Agreement; and the same inference should be drawn from what the Union says
is a failure to fully investigate and establish the correctness of the Employer's various allegations
- which should have included getting the Grievor's version of events. Ms. Fifield was not only
silent, she was wrong; and because she was silent, the Grievor's alleged failures could not be
known, let alone corrected.
53
In the Union's submission, the obligation to act "in good faith" requires the
Employer to fully investigate and verify the correctness of what it is purportedly relying upon;
and that both Article 27.02D and the "good faith obligation" requite the Employer to bring these
issues to the Grievor's attention, prior to acting upon them. And in this case the Employer has
completely failed to do so.
The Union submits that the Grievor's meetings with Dean Fifield in late March
and early April 2009 were not about the Grievor's progress. They were initiated by the Grievor
herself, so that Ms. Konrad could ask some questions about some things that were troubling her -
including her current workload and what she might expect to be teaching in the future. In the
Union's submission, there was nothing untoward about any of these enquiries; and, once again,
nothing happened at this meeting to either alert the Grievor to any problems, or to suggest that
she had to do anything different. Ms. Fifield did not warn the Grievor about being brusque, nor
did she tell the Grievor that she was being overly "critical" of the College or its programs or her
colleagues. Thus, the Grievol' had no idea that she was under a cloud.
At the late March meeting the Grievor did mention that her daughter had helped
out with the grading of some student papers. The Grievor was candid about what the Employer
later asserted was a cardinal sin, However, no criticism was made at that time, and, (according to
the Union), far from being rigid, the Grievor has always been responsive the Dean's suggestions.
If the Grievor knew the rules she would abide by them, and in the Union's submission, it was up
to the Employer to set the rules and communicate them. As Counsel put it rhetorically: if having
her daughter help out with the marking was such a serious misdemeanour, why did Ms. Fifield
54
say nothing about it at all? If there was a problem it should have been raised, and once raised, it
could have been easily resolved.
*
In Counsel's submission, these "silences", when viewed cumulatively, lead to an
inference of bad faith. They amount, in effect, to a false report; and they are tantamount to
luring the Grievor into a false sense of security only to find out later (and too late) that she was
being terminated for things that - even if true - could easily have been rectified. Moreover, in
Counsel's submission, the total disregard of Article 27.02D also supports an inference of "bad
faith", even if there was no subjective ill will or animus against the Grievor.
*
In Counsel's submission it was "bad faith" to signal, by silence, that all is well,
and then to terminate the Grievor for reasons that have never been brought to her attention.
*
The Union submits that the Dean failed to "investigate" and ascertain the "real
facts" upon which she later relied (an investigation which would necessarily have included the
Grievor's input), just as she failed to reveal any of these concerns to the Grievor. For example,
while the Dean made much of the "resume issue" and what the Dean thought it showed about the
Grievor's lack of cooperation with others, the fact is that the Grievor did talk to at least one Co-
op consultant; and, the Dean completely failed to check and weigh the context: what other
teachers were doing, what the curriculum disk contemplated, whether there really was any
confusion on the students part, and so on. The Deanjust "assumed" the worst; and in the Union's
submission, that failure to establish the real facts was arbitrary and also supports an inference of
bad faith.
55
Similarly, while the Dean was inuch exercised that the Grievor had asked for the
original WOC documents when she grading her students' papers, when the Dean was asked to
think more deeply about this in the course of cross-examination, the Dean agreed that the
Grievor's practice was necessary in order to avoid being unfair to students and to avoid being
critical of her colleagues. In Counsel's submission, her inference against the Grievor tumed out,
upon examination, to be (as Counsel put it) "180 degrees wrong".
It was the same with the "Kim incident" where there was nothing objectively
wrong with what the Grievol' did (advising a student that a resume reeking of smoke might create
a bad impression on a prospective employer), and there were certainly no reason not to raise this
issue with the Grievor if the Dean were legitimately concerned about it. There was no actual
basis for Kim's asserted fear of "reprisal", just as (Counsel submits) there was no basis for
hypothesizing student confusion when the Grievor explained that the resume requirements for
her communication course were different from those in the Co-op program. Once again: if this
was a problem, then why was it not raised so that the Grievor could explain herself - and the real
context, not just what Dean Fifield assumed (wrongly) to be the case?
In Counsel's submission, there was a total disconnect between the Dean's
conclusions and the objective reality as evidenced by years of favourable student reviews - which
gave 110 hint that the Grievor causing problems, let alone that she might be inclined to a
"reprisal" of some kind against students who complained. The student surveys confirm the
Grievor's positive and respectful attitude in class; and the Dean's own reference letter is
completely inconsistent with any suggestion that there was any problem at all in the Grievor's
56
dealings with students. And because the Dean was silent there was no opportunity to get at the
truth until after the Grievor's termination.
*
In the altemative, the Union submits that "ignoring" Article 27.02D provides an
independent basis for allowing Ms. Konrad's grievance, even if there was no "subjective" bad
faith on Dean Fifield's part. In Counsel's submission, it is not necessary to find "subjective bad
faithl' in order to set aside the termination decision. It is sufficient that there was (as the Union
argues) a failure to comply with Article 27.02D.
*
In the Union's submission the purpose of Article 27.02D is to alert the probationer
to the Employer's expectations or concems, and to permit her to adjust her behaviour accordingly
- whether or not the employer's concems are objectively valid or reasonable or provable. The
purpose of Article 27.02D is to tell the employee "where slhe stands" and to identify areas where
improvement may be needed. But that simply did not happen in this case - ever.
The Union submits that where, as here, the Grievor is an accomplished teacher
with a long history with this Employer and impeccable teaching credentials, there is no reason to
reject the Grievor's testimony that if any of these "issues" had been brought to her attention, she
would have done whatever was necessary to meet the Dean's expectations - that is, whatever was
necessary to secure a permanent job. The Grievor was devoted to teaching, she was highly
motivated, and she has taken the Dean's advice about her career development. So as the Union
sees it: the Grievor has been denied an opportunity to which she was legally entitled and to
57
which she would undoubtedly have responded. The purpose of the clause has been totally
frustrated.
Union Counsel points out that the Grievor has been teaching these courses on and
off since 1999 and there is no evidence that there has ever been any issue with the way the
Grievor handled resume writing; the Dean admitted that teachers have flexibility with respect to
their assignments; and Dean Fifield acknowledged that she was not actually aware of what the
permanent employees did in this regard. In Counsel's submission, Ms. Fifield's evidence on this
matter was unclear and inconsistent, and did not really clarify what it was that the Grievor had
done "wrong" in the way that she handled the issue. Nor, of course, (as with everything else) was
this alleged problem ever raised with the Grievor until after she had been terminated.
The Union makes the same submission with respect to Dean Fifield's assumption
that the Grievor was depreciating the role of the Write On Center; when the reality is that it was
necessary for the Grievor to distinguish the WOC's work from that of the students, so that the
Grievor could fairly assess the student's performance and not penalize the student for the WOC's
suggestions. In Counsel's submission, there was no disrespect for the work of other employees in
some other part of the College; and there is 110 direct evidence from anyone at the wac to
support the Dean's assertion that the Grievor was disrespectful or dismissive. Counsel points out
that supporting letters from fonner students include several that say that that Ms. Konrad
encouraged students to use the wac - which is completely at odds with Ms. Fifield's conclusion
that the Grievor was unduly critical.
58
*
In Counsel's submission, when the evidence is considered as a whole, it becomes
clear that the Dean got it completely wrong, and once again, there was no effort to explore any of
these concerns with the Grievor prior to her termination. Moreover, the Dean's silence and her
failure to follow Article 27.02D meant that the Dean could not be disabused of what the Union
says are completely erroneous and unsubstantiated concerns about the Grievor. The whole
purpose of Article 27.02D was frustrated by the Dean's silence. There was a failure to ascertain
the "full truth" of what was later said to be a fault, compounded by a failure to get the
employee's input at any stage, and a further failure to communicate any of these alleged
deficiencies to the Grievor despite (in the Union's submission) a contractual obligation to do so.
*
In Counsel's submission the same problem applies to the incident concerning the
Grievor's daughter helping out with the marking. Ms. Fifield completely misconstrued the extent
of the daughter's involvement, which, objectively, (or so the Union says) did not involve any real
"judgement" on the daughter's part. That is why the Grievor was unconcerned about revealing it.
Moreover, Counsel repeats rhetorically: if Ms. Fifield was so shocked by the Grievor's actions
and believed this practice to be so fundamentally wrong (as she said in her testimony in this
proceeding), then why did she say nothing about it at all - at the time or later - when there were
several weeks left to go in the term and more marking to do?
*
In summary, the Union submits that when the evidence is considered as a whole,
this Board should conclude (1) that the Employer has acted in bad faith, and (2) that the College
has fundamentally failed to follow Article 27.02(D) of the Collective Agreement and (3) that at
59
the very least Dean Fifield's approach was "arbitrary" in the way that Arbitrator Knopf discussed
it, in the Algonquin (Sumitro) case, where Ms. Knopf found the Employer's conduct to be both
arbitrary and in bad faith. In the Union's submission, each of these defaults provides an
independent basis for setting aside the Grievor's termination.
*
Insofar as remedy is concerned, the Union asserts that the appropriate remedy in
this case is to put the Grievor into a permanent full-time teaching position, because even if there
was some reasonable basis for the Dean's concerns (which the Union denies), there is every
likelihood that Grievor would have been responsive to the advice of her Dean, and would have
adjusted her behaviour accordingly. If the Grievor had been given a "fair chance", she would
have made it to the end of the two year probation period and she would have become a
permanent employee; so, in the Union's submission, the appropriate remedy is to give the
Grievor the full time job for which (the Union submits) she is eminently qualified. The Union
also seeks compensation for what it contends is an improper discharge - even if the Grievor did
get the "notice" or "pay in lieu of notice" that is spelled out in Article 27.02E.
We were referred in particular to the following cases: Re Seneca College &
OPSEU (Hacker) September 17, 1986 (Swan); Re Algonquin College & OPSEU (Sumitro) July
24, 2006 (Knopf); and Re Toronto Transit Commission & Amalgamated Transit Union (Stina)
(2004), 132 L.A.C. (4th) 225 (Shime); and the Divisional Court's decision in OPSEU v. St.
Lawrence College [1989] O.J No. 2995.
60
Employer Position
The Employer maintains that there has been no breach of any express or implied
obligation under the Collective Agreement, and that even if there were some breach of Article
27.02 D, it would not invalidate a termination that was effected, with proper notice, under Article
27.02E. In the Employer's submission, there was a "rational and legitimate basis" for "releasing"
the Grievor at the end of the second teaching term; there was no "bad faith" on Ms. Fifield's
part; and there is no legal basis at aU for putting the Grievor into a permanent job as if she had
successfully completed the mandatory two year probation period. And in the Employer's
submission, it is important to remember the very limited role for an arbitrator in this setting.
*
The Employer's starting point is that this is not a ''just cause for discharge case",
where an arbitrator weighs the asserted "cause", applies labour relations principles like
"progressive discipline", and then decides whether the termination was ''just and reasonable in
all the circumstances" (i.e. as if Article 32.04 G of the Collective Agreement had to be applied to
the situation). This is not a typical "just cause" case, nor should it be judged by "just cause"
standards. On the contrary, this is a case about a probationary "release"; and under the terms of
this Collective Agreement, the Employer can initiate such "release", at any time, provided that it
gives the agreed-upon period of notice or pay in lieu of notice.
In Counsel's submission, the Board of Arbitration is engaged in a process of
interpretation shaped by the words of the Collective Agreement - not dispensing palm tree justice
61
- and this Collective Agreement does not require the Employer to establish "just" or any "cause H
for the release of a probationer, nor does this Collective Agreement invite an arbitrator to "second
guess" the nature or the adequacy of the Employer's reasons, In Counsel's submission, this is an
entirely different legal framework from the one that is applicable to permanent employees; and
the parties have recognized that difference by the different contract language that they have used.
In the College's submission, it would be wrong for an arbitrator to weigh the reasons for the
Employer's decision, when the parties have so clearly eschewed the requirement to have "cause"
*
Employer Counsel observes that it not at all clear to him where (as he put it) an
implied obligation not to act "in bad faith" actually "comes from"; because, as he sees it, such
synthetic requirement does not square very well with the normal "rules" for implication or with a
contractual setting in which these parties have so specifically agreed that an employee can be
"released" on notice and without any cause at all - especially where, as here, the parties have
agreed to exclude arbitral review altogether. Nevertheless, Counsel concedes that there is a body
of arbitral jurisprudence which posits such implied obligation, and there is also some judicial
opinion to the same effect. The Employer's casebook includes the following cases: Loyalist
College v. OPSEU (2003), 225 D,L.R (4th) 123 (O.C.A.); Re Confederation College & OPSEU
(Loan Grievance), June 29, 2010 (McLaren); Re Cambrian College & OPSEU, ("R grievance")
February 2, 2007 (MacDowell); Re Algonquin College & OPSEU ("Sumitro grievance"), July
24, 2006 (Knopf); IKO Industries Ltd. v, United Steelworkers of America, Local 8520 [2000]
a.L.A.A. No. 355, 88 L.A.C. (4th) 348 (Starkman); Re Seneca College & OPSEU, (O'Neil
grievance), February 24, 1984 (Brent); Algonquin College & OPSEU (Mullins grievance) June
28, 1998 (Mikus); Centennial College & OPSEU (Robertson grievance) March 5, 2003,
62
(Knopf); and St. Lawrence College & OPSEU (McDermott grievance), November 8, 1989
(Brent)].
*
The Employer acknowledges, therefore, that an "implied" "bad faith limitation"
has been part of the legal landscape for many years (at least since the decision of arbitrator Swan
in the Seneca College case, released on September 17, 1986). However Employer Counsel
submits that while this "implied term" has led to a lot of litigation, "bad faith" is almost never
found; and in his submission, there is no case where an arbitrator has actually ordered that a
probationer be reinstated, Moreover, in the College's submission, the fact that such findings are
so rare, illustrates the difficulty of the proposition being urged upon us by the Union in this case
and suggests that arbitrators have been - and should be - very careful about coming to that
conclusion. Because when the cases are viewed as a whole, they confirm that the employer has
wide latitude to reject candidates with whom the College is not completely satisfied; and it is not
for an arbitrator to say that the College "ought to have been satisfied".
The College submits that even if there is an implied limitation "not to act in bad
faith" when releasing a probationary employee, there is a heavy onus on the Union to establish
"badfaith"; and, in the College's submission, in order to make such finding, there must either
be (a) some animus, ulterior motive, or ill will directed against the Grievor, or alternatively (b)
an absence of any rational basis for the probationary release - which in one case, led to an
implication of "bad faith" (when the employer called no evidence). In Counsel's submission, the
question is not whether the decision-making process could have been done better or differently
or whether there was "cause" for the "release"; because as long as there is a rational basis for the
63
employer's decision - that is, if its articulated reasons for releasing the probationer are connected
to a legitimate organizational concem - then it would not be appropriate to infer bad faith. Nor is
it appropriate for an arbitrator to inject hislher own judgments about the "faimess" of the
process, as would be the case in a "just cause" situation. Counsel reiterates that the Collective
Agreement under review specifically allows an employer to "release" probationary employees on
notice, and in his submission, "cause" has nothing to do with it.
*
The College submits that in the instant case, there is no evidence of animus or
malice or ill will towards the Grievor, nor is there any evidence of any improper or collateral
motive on Ms. Fifield's part. There is no "scheme" to undermine the Grievor or sabotage her
success. The evidence is the precisely the opposite. Ms. Konrad was rehired by the College (on a
partial load basis) on a number of occasions; she was interviewed for a fourth job vacancy
despite three unsuccessful earlier attempts; she was given a very positive reference by Ms.
Fifield so that she could advance her career; Ms, Fifield found some work for the Grievor so that
she could earn extra money while she was completing her education; the Dean altered Ms.
Konrad's course load in response to the Grievor's workload concerns; and so on.
*
The College further point out that at the 4th job interview Dean Fifield was
prepared to overlook her past reservations and give the Grievor a chance, It just didn't work out.
And in the College's submission, there is no basis for inferring "bad faith".
*
The College submits that fairly early on, by the time of the first "progress report"
in November 2008, the Dean had received some negative reports about the Grievor from other
64
employees; and Dean Fifield initially thought that she should raise those concerns with the
Grievor. But she ultimately decided against doing so, overtly, because she had no firsthand
knowledge of the events in question, and because she thought that a more subtle waming would
be sufficient. Dean Fifield decided that she would wait to see how things worked out in the next
term; and while that may have been unwise, it was not a badge of bad faith. She was simply
giving the Grievor the benefit of the doubt, and, in fact, she confirmed that at the end of the first
term the Grievor still "had a clean slate",
However, as the College sees it, the next term brought to light a number of issues
all at once; and, unlike ill the first term, these concerns were not entirely dependent on the
opinions of others, but were based upon the Dean's own experience with the Grievor: what Dean
Fifield saw and heard from the Grievor herself, as well as what the Dean was hearing from
another manager. And virtually all of this happened in the space of about three weeks, towards
the end of the second school term (i.e. from late-March to early April 2009).
First of all there was the class visit on March 16, 2009 where the Dean observed
some comments about the Co-op program that troubled her, The Dean was concerned by the
Grievor's statement to her students that if they used the Co-op resume format they wouldn't pass
her course. which suggested rigidity and that there was only one way of doing things: hers. The
Dean has had to address these kinds of interdepartmental problems before, and she thought that
they had been be successfully resolved years ago; yet now they seemed to be resurfacing again
because of the way in which the Grievor - a probationer - was conducting herself. There was the
65
spectre of interdepartmental friction and a new teacher not fitting in - which in Mr, Fifield's view
meant a probationer bending to the Co-op department's view of things.
The Grievor seemed to be deprecating the role of the Co-op department by rigidly
insisting on her own - one way - of doing things. She was making waves, as the head of the Co-
op program reported to Ms. Fifield shortly after the classroom visit. Moreover, the Grievor was
the only communications instructor who was making waves. All of the other communications
teachers seemed to be able to deal with the Co-op department without friction or confusing the
students. The Grievor was the only one causing problems.
The criticisms of other areas of the College (of the Write On Center and the
Center for Student Success) and of the curriculum were repeated by the Grievor herself in her
two meetings with the Dean a week or so later, and suggested to Dean Fifield that the Grievor
had a negative attitude about the College and its programs. The tone was critical (things weren't
being done in the way that the Grievor thought they should be done) and accusatory (why was
the Owen Sound campus allowed the "get away with" smaller class sizes when the Grievor had
to work so hard?); and, in the Grievor's opinion, several parts of the College "didn't know what
they were doing", and "what was the Dean going to do about it!" There was, as Dean Fifield saw
it, an "attitude problem": the Grievor had trouble accepting established ways of doing things and
had trouble getting along with other staff, given her own firm views of what was "the right way
of doing things".
Then there was the "marking issue".
66
In Counsel's submission, the Grievor's daughter's involvement in marking
student papers in the fall of 2008 (which the Dean only found out about in late March 2009) was
shocking from two perspectives: it was a serious breach of professional responsibility and it also
displayed very bad judgment - not only that it was done, but also that the Grievor was so
oblivious to the gravity of her error, that she would blurt the story out to her Dean (albeit in the
context of complaining about her own work load). In the Dean's opinion - entirely reasonable
Counsel contends - there was a complete lack of recognition of the criticism to which the School
would be exposed if anyone ever found out about it. It was, in fact, professional misconduct - as
well as an example of very bad judgement.
In Couusel's submission this was behaviour on the Grievor's part, which,
standing on its own, would justify the Dean's decision not to keep on a probationary employee
beyond the end of that second term; and in Counsel's submission, the Grievor's attempt in the
hearing to minimize or explain away this incident, merely reinforces the correctness of the
Dean's assessment. Nor was there any need to investigate the incident, or to warn the Grievor
about something that was so obvious: teachers do their own marking; they don't "hire" their
children to do it, even if the Grievor's daughter (then 15) was a good high school student.
In Counsel's submission, this incident was "cause'" and by itself, would have
justified the release of a probationary employee. Yet, according to Counsel, even here the Dean
did not rush to judgment but decided, instead, to reflect upon what she was going to do about the
situation - particularly so close to the end of the school term, when removing the Grievor from
the classroom would have posed problems for the students.
67
Counsel submits that the Dean's actions may not have been perfect, but there is no
evidence of "bad faith"; nor is it credible to suggest that it would be "irrational" to terminate a
probationary teacher who "hired her daughter" to do some
of the marking that was that teacher's own responsibility. In Counsel's submission, it was an
incident that cast doubt on the Grievor's judgement, despite the fact that she was a good teacher;
and it is similar, in kind, to the situation in Centennial College (Robertson grievance) where a
single ill-advised e-mail led to the release of an otherwise well-qualified probationer. In
Counsel's submission, Centennial confirms that in a setting where the employer need not have
"just" or (it is said) "any" "cause" for releasing a probationer, a single incident of bad judgement
may be sufficient to justify a "release".
*
In the College's submission, these concerns were further compounded by the
manner in which the Grievor was interacting with her own Dean: in a strident and demanding
and insistent way - which troubled Dean Fifield, who thought that this tone was quite
inappropriate for a probationary employee. There was an aggressiveness and inclination to
negativity which the Dean found unsettling. For as Counsel put it, the Grievor came to Dean
Fifield's office with a "list of demands" then the Grievor demanded to know "what the Dean was
going to do about them" - punctuating her comments by striking the table with her finger, In
Counsel's submission, that was not the way for a newcomer to behave with her manager.
*
There were other issues too - like how the Grievor handled the Kim incident and
the way she used of examples in class; but the College concedes that these were merely matters
of teaching technique and, given the Grievor's skills as a teacher, were not significant faults
68
standing on their own. It was the Grievor's overall attitude and demeanour that troubled Dean
Fifield, along with the serious lack of judgement in having her daughter help with the marking.
*
Counsel concedes that an Employer's concerns about "suitability" or
"compatibility" or "personality" or "attitude" are difficult to enunciate or to "prove" at a hearing.
They involve subjective judgements and reasonable observers may differ, However, in Counsel's
submission, that is why the Collective Agreement so specifically allows the Employer to release
a probationer without any cause at all; and that is why there is a long probationary period; and
that is why the College ought to be given wide latitude to make these judgments: to decide whom
the College will add to its permanent staff. In the College's submission, there was evidence to
support all of the Dean's concerns - much of it from the Grievor herself - and it is not for an
arbitrator to weigh that evidence or second guess the Dean's decision. And in Counsel's
submission, the Dean was certainly not acting "in bad faith".
*
The College acknowledges that under Article 27,02D of the Collective Agreement
there is supposed to be a progress report roughly at the end of each term. In Counsel's
submission, the College met that burden in the first term - at lease substantially - even though the
first progress report was not as blunt or as critical as it might have been. However, the College's
submission, legitimate issues surfaced towards the very end of the second teaching term, and
those are the issues that prompted the Dean to rethink the Grievor's situation, to forgo the end-
of-term progress report, and to choose, instead, to "release" the Grievor at the end of that second
term - as, the College submits, it was entitled to do pursuant to Article 27,02E of the Collective
Agreement.
69
In the College's submission, it was not required to go through the superfluous
"formality" of a negative progress report followed by a release of the probationer at the same
time with "reasons" for release that mimic those in the progress report On the contrary, in the
College's submission, the Dean was entitled to act on what she saw and what she heard near the
end of that second school term, then to release the Grievor on that basis and to provide her with
its reasons - as Dean Fifield did. And in Counsel's submission, Dean Fifields' concerns were
factors that the Employer could legitimately look at, and act upon, during the probation period
when the Employer need not establish "cause" for the "release" of a probationer.
*
The College further submits that this is not a setting where the Employer was
obliged to apply "progressive discipline" or provide a chance for reform before choosing to
terminate the employment relationship. It was not obliged to ignore its own concerns in the
hopes that things would get better by coaching and counselling. It was not obliged, for example,
to simply flag the "marking issue" for the Grievor, ignoring the underlying bad judgement that,
in Dean Fifield's view, that episode disclosed. Rather, she made a good-faith assessment about
the suitability of the probationer in question, based upon what she had learned in late
March/early April; and she concluded that the Grievor was not what the College was looking for.
*
In Counsel's submission there is no evidence of bad faith, nor is there a breach of
article 27.02D - which Counsel submits, is not, in any event, a legal condition precedent for the
"release" of a probationary employee under Article 27.02E. However, in the alternative, the
College submits that there was at least substantinl compliance with Article 27.02D in the first
term; and that the Employer was not obliged to go through the pointless exercise of a negative
70
second term assessment and a contemporaneous "release". The Dean was entitled to opt, instead,
to release a probationer whom she considered unsatisfactory and to give her reasons upon request
- as Article 27.02E contemplates. She was not obliged to enunciate those reasons in advance - in
effect to give more "notice" than Article 27.02E stipulates.
*
In summary, the College submits that there is no obligation in the circumstances
of this case (as there might be for a permanent employee) to accept problematic behaviour in the
hope that the probationer would do better if she were wamed about it and then kept on longer to
see if it happened again - that is, to review the Dean's concems with the Grievor, then keep the
Grievor on for one or more additional teaching terms to see whether the Grievor "got the
message". Instead, the Employer was entitled to release a probationary employee when it
concluded that things were not working out; and as long as there is some rational basis for that
determination - as Counsel says there was - there is no basis for second-guessing the Employer's
judgment, even though an arbitration board might have done something different.
*
Finally, in the College's submission, there is no basis at all for putting the Grievor
into a permanent teaching position (as the Union now demands), after only 8 1/2 months of
unsatisfactory service - that is: as if she had satisfactorily completed the full 24 month probation
period that is required by the Collective Agreement. In Counsel's submission, that would not be
an appropriate remedy even if the College has erred in some respect - which the College says is
not the case.
*
The College submits that the grievance should be dismissed.
71
VI - Discussion: the contractual context
There is something to be said for Employer Counsel's "musing" that an implied
term limiting the discretion found in Article 27.02E may not fit very well with the common law
"rules" of contract implication or with what the parties were trying to accomplish in this
particular Collective Agreement. Courts have resisted such "implication" in ordinary contracts of
employment (see Wallace v. United Grain Growers Ltd [1997] 3 S.C.R. 701 at paragraph 76)
and the bargaining parties in this particular case have gone to considerable lengths to relieve the
Employer of any obligation to show "just cause" for "releasing" a probationer, as well as any
obligation to 'justify" that decision to an arbitrator - so long as the Employer gives the notice
stipulated in Article 27.02E. Article 32.03D discourages adding new legal obligations (and thus
new grounds for litigation) that have not been expressly bargained; and the parties' attempt to
eliminate arbitral review altogether (however ineffectively) does not suggest fertile ground for
"implying" what the parties "must have intended" the basis for such arbitral review would be.
Moreover, the practical result of such implied term(s), is that the very issues that
have ostensibly been excluded from consideration by having a "no-fault", "release on notice"
formula, will have to be examined, after all, in the search for "bad faith" - even though at the end
of the day the assertion of "bad faith" has almost always been rejected. Arbitrators will have to
review the probationer's experience at work and review the employer's reasons for "releasing"
him/her - not. because the employer must establish "just" or any "cause" for terminating the
employment relationship, but in order t.o rebut an allegation of "bad faith" or, perhaps,
"arbitrariness" (which is sometimes said to be anot.her "implied" limitation on the exercise of
72
discretion). The result is that despite creating a framework where no "cause" is required, the
parties' attempt to avoid litigation over the "release" of probationers has been completely
unsuccessful - even though all of this takes place in a milieu where the Employer is entitled
(ostensibly at least) to "release" even a "good" probationary employee if the Employer decides
that it would prefer to look for someone else or someone better. [The evidence is that there are
lots of applicants for these College jobs, and thus lots of potential replacements for someone who
does not meet the Employer's expectations].
*
However, it seems to us (as it did to arbitrator McLaren in the COIifederation
College case), that this is all "water under the bridge", legally speaking. Because the fact is that
since 1986 arbitrators have held that such implied obligations do indeed exist; and in 2003, in the
Loyalist College case, the Ontario Court of Appeal, looking at the predecessor to this Fen'
Collective ARreement, said that
Another right [that probationers have] was the right not to be dismissed
in bad faith. For many years arbitrators and courts have held that this
right is an implied term oj eveJY collective agreement and extends to all
employees, including probationary employees.
Accordingly, arbitrators and Courts now seem to be "on the same page" in this
regard - despite the terms of this particular Collective Agreement (including Article 32.03D) and
despite the discomfort that Courts once had with "implication" (see the dissent in Port Arthur
Shipbuilding, supra which became the majority view in the Supreme Court of Canada).
Moreover, it is not disputed that arbitrators (who have original jurisdiction to interpret collective
agreements, which Courts do not), have said, for years, that under this Collective Agreement,
there is an implied obligation not to act in "bad faith" when "releasing" a probationer.
73
Furthermore, there have been many rounds of collective bargaining since
Arbitrator Swan's Seneca College decision in 1986, and the parties have not modified the
language of the Collective Agreement to alter or clarify or eliminate the "implied" obligation(s)
to which these arbitration cases refer. So while arbitrators have struggled with the application of
this unwritten legal regime, there is no doubt, now, that there is a platform for arbitral review
even if the Collective Agreement says there isn't, and even if the likely outcome is the one
described by the Divisional Court in Re Toronto Hydro Electric System and Canadian Union of
Public Employees (1980), 29 O.R. (2nd) 18:
This was not done here, but the parties might have agreed, for example,
that probationary employees may be discharged on the sole discretion of
the employer. This would make such discharge almost impossible to
overtum. Nevertheless, a probationary employee could attempt, through
the arbitration process, to do so, albeit unsuccessfully.
*
However, in our view, the existence of this implied limitation does not mean that
the language of the Collective Agreement is irrelevant, or that we need not be concemed about
how this implied term "fits in" with what the parties have expressly and lawfully agreed to. On
the contrary, the Colleges Collective Bargaining Act requires that collective agreement
obligations be put in writing, and just as the words chosen by the parties may take their "colour"
from the contractual context in which they are used, so too would any implied (unwritten)
obligations. Indeed, it would be curious if it were otherwise - that is, if an implied obligation
were inconsistent with something which the parties have expressly (and lawfullv) agreed to in
writing - especially in light of Article 32,03D which also has to be given some meaning.
Accordingly, we think that looking at the terms of the Collective Agreement, as a whole - the
words that the parties have selected for themselves - may yield some clues about the practical
74
content of any "implied" obligations, and, at the very least, may inform the context in which the
evidence should be weighed.
*
With that in mind then, it is worth repeating (as Counsel did in argument) that this
is not a case where probationers have 'just cause protection". The Employer (ostensibly, at least)
is not required by this Collective Agreement to have, or to prove, "just cause" for "releasing" a
probationary employee. All that the College is required to do is give the probationer the agreed-
upon written notice [see Loyalist College at paragraph 59]. And that makes this situation quite
different from 8n "ordinary" 'just cause for discharge case", where the specific right to "release"
"on notice" is not a negotiated option for the employer in a unionized setting.
In the typical termination case the starting point is "just cause"; and the arbitrator
has to decide whether to temper the normal "rigour" of that "just cause test" in light of the
purpose of the probationary period - that is, to decide what "just cause" means for this contingent
group of newcomers who typically (as here) have no seniority rights, And not surprisingly,
arbitrators have found that minor peccadilloes that would not support the termination of a
"regular employee" may nevertheless support the termination a "probationer". Or to put the
matter another way: an employer doesn't need "much cause" to terminate a probationmy
employee, even where "just calise" is the test.
However, in the instant case, it is common ground (and the Court of Appeal has
confirmed) that ':iust cause" is not the test for a "probationary release". This is not an ordinary
termination case and this is not a typical collective agreement. On the contrary, under this
75
Collective Agreement the Employer (ostensibly at least) is entitled to terminate a probationer's
employment without having to show just cause for doing so, and without having to demonstrate
that its decision was "just and reasonable" . Instead, this Agreement only requires that proper
notice be given; and unlike the case of "regular" (permanent) employees, the arbitrator is not
invited to examine the "merits" or the "justice" or the "reasonableness" of the Employer's
decision.
*
Accordingly, if the words of the Collective Agreement and the words of the
Ontario Court of Appeal are taken at face value, then the College does not have to engage in the
kind of balancing of interests or consideration of proportionality that a "just cause limitation"
would "normally" require before terminating an employee covered by a collective agreement (or
all employee at common law, for that matter - at least if "cause" is asserted); and an arbitrator
should be careful about judging the substantive "correctness" ("the merits") of the employer's
decision, or whether it was "just and reasonable in all the circumstances". Because that is what
flows from the agreed-upon right to release a probationer 011 notice and without cause; with the
result that the Employer under this Collective Agreement has - and was intended to have - a high
degree of flexibility and insulation from (successful) arbitral review. [Recall that the parties' own
words - albeit not legally effective - envisage no arbitral review at all].
Put differently (and from a collective bargaining perspective), this is a situation
where the Employer has been able to negotiate a legal framework in which it will be - and is
intended to be - very difficult to overtUl1l the Employer's decision not to retain a probationer (as
the Divisional Court posited in Toronto Hydro Electric System); and while that may seem a little
76
odd in a collective bargaining milieu, it is not so odd from the Employer's perspective, nor is it
unusual in employment law generally, where non-union employers are entitled to release even
long service employees so long as they give the right amount of notice. So, in effect, what the
parties have done in this Collective Agreement is establish a legal standard for "releasing"
probationers that is "reminiscent" of the one applicable to employees at common law. They have,
in effect, extended the Employer's "hiring discretion" until the end of the probationary period,
and then have added an agreed-upon notice formula on top of that.
*
No one argues that it is "unlawful" to deal with probationers in this way and there
is nothing obviously "unfair" about it either - as the Alberta Court of Appeal observed in Alberta
v, Alberta Union of Provincial Employees, [2008] 295 D.L.R. (4th) 66:
4 There is nothing inherently unfair or unreasonable about allowing an
employer the right to select and screen those who will become permanent
members of the workforce through a period of probationary employment.
Probationary employment is equally important for the candidates for the
job, particularly those who are marginally qualified, lack experience, or
who have personal challenges but may nevertheless be capable of doing
the work. Employers are much more likely to take a chance ill hiring
"high-risk" candidates, and to give such candidates a chance to prove
themselves, if they know that probationary employment is truly
probationary. If an employer believes that it will be stuck with such
candidates, or will have to go through a distracting and expensive
arbitration procedure if they do not work out, the employer may simply
not hire them. In the end, these marginal candidates (who are largely
invisible in the arbitration process) may be the ones that suffer. The
attempt by the [Arbitration] Board to achieve what it saw as a just result
overlooks these considerations.
The parties have simply given the Employer the kind of broad discretion that already exists at
common law and that was hypothesized by the Divisional Court in Re Toronto Hydro Electric
System, supra.
77
Now obviously, in light of the jurisprudence pertaining to this particular
Collective Agreement, the arbitrator will have to look at the "reasons" for the termination/release
and will have to look at "the merits" of the employer's decision; because, as the Ontario Court of
Appeal has recently observed (albeit in a public law/statutory setting and not in a private
contractual one): "While a wrong [decision] even a very wrong decision cannot be equated to a
decision made in bad faith, a decision may be so clearly wrong on the merits, as to provide some
evidentiary slIpport for a finding of bad faith" [see Rosenhek v. Windsor Regional Hospital,
2010 ONCA 13 (CanLII)]. The employer's reasons for the release - "the merits" - are not
irrelevant; and despite the clear wording of Article 27.02E, it is no longer sufficient for the
Employer to say: "I have given you the right amount of notice and that is the end of it". The
College may also have to explain to an arbitrator why it did what it did, or run the risk of an
inference of "bad faith" (which is what happened in St. Lawrence College, McDermott
Grievance, supra where the Employer called no evidence); and, by the same token, the Union is
entitled to tender evidence of what happened during the probationary period in order to bolster
its assertion that the employer has acted in "bad faith". So despite a contractual regime where
there is no requirement for the Employer to have "just cause" to "release" a probationer and 110
express requirement to show that it has acted "reasonably", (as there is for permanent
employees), and no agreed-to arbitral review, the events of tile employment relationship and the
employer's reasons for ending it, may nevertheless have to be examined - often at some length
(e.g. the arbitration hearing in the Algonquin (Sumitro) case took 17 days).
*
However, it is important to keep in mind that the arbitrator is looking at this
evidence through a very different legal lens than the one that would be used if slhe were
78
considering whether there was "just cause", or whether the termination was "just and reasonable
in all the circumstances" (i.e. if the arbitrator were applying the kind of "equitable discretion"
that was at the heart of the debate in the Port Arthur Shipbuilding case, or if s/he were reviewing
the dismissal of a permanent employee were both "justness" and "reasonableness" are in issue).
Moreover, in our view, that arbitral exercise has to be undertaken with considerable care;
because if an adjudicator were to infer, too readily, that an employer "must have been" acting
improperly because it did not have "just cause" for "releasing" the probationer, or because the
employer did not follow the process applicable to regular employees, then the arbitrator would
be doing, by inference, what the parties have intentionally declined to do expressly (particularly
when the concept of "just cause" has some "process" components as well). The arbitrator would
be creating "just cause protection" by the back door, and would, in effect, be amending the
collective agreement (see New Brunswick Treasury Board v. Leeming (1981) 1 S.C.R. 129).
*
Likewise if an arbitrator were to leap too quickly from the opinion that the
manager had "got it wrong" (even "very wrong") to a conclusion that s/he must "therefore" have
been acting in "bad faith", Because whatever "bad faith" may be said to encompass in this
contractual context, this implied limitation must still be considered in light of what the Employer
is expressly (and lawfully) empowered to do; and under this Collective Agreement, the Employer
is o..pressly empowered to terminate the employment relationship without just calise and without
having to persuade an arbitrator that the outcome is "just and reasonable in all the
circumstances", So the fact that the Employer has done what it is legally entitled to do (indeed
what this Collective Agreement has been specifically drafted to permit), should not lightly lead
to a finding of "bad faith" - or, for that matter, to a breach of any other "imvlied" tenn.
79
*
It follows that in a legal framework where the Employer is not obliged to establish
"just cause" or to show that its decision was "just and reasonable", an arbitrator has to be
careful not to be inappropriately critical of a decision making process that was not undertaken -
and did not have to be undertaken - with those obligations in mind; and sthe may have to put
aside some of the "baggage" that snle would normally carry into a "typical discharge case" under
a "typical collective agreement". Because this is not a typical collective agreement; and there is
no doubt at all that under this Collective Agreement, the parties intended a high degree of
deference to the Employer's judgement - not only by bargaining an Agreement that does not
require "just cause" for the "release" of a probationary employee, and that does not require the
Employer to show that its decision was "just" or "reasonable", but also an Agreement purporting
to oust arbitral review altogether (which, however ineffective, is still revealing about the parties'
expectations about the "job security" of probationers and the desirability of litigation),
*
It is also worth observing, by way of comparison, that the parties to this
Collective Agreement "know the words to use" when they want to subject the Employer's
decision-making process to a test of "reasonableness". For not only have they done so in Article
32.04 G of the Collective Agreement (pertaining to the discharge of a regular employee) but
there are also numerous other places in the Collective Agreement where that "reasonableness"
terminology has been used to regulate managerial decision-making - thus creating a platform for
arbitral review on a "what is reasonable?" test (See for example, Articles 8.02, 9.02, 11.04B3.
11.06, 11.08, 22.02A, 23.03C). The parties also know how to prohibit the "abuse" of discretion
(which is what they have done, expressly, in Article 2).
80
Accordingly, where, as here, the parties have quite expressly limited the
Employer's discretion in other parts the Agreement, (by using words like "just" or "reasonable"
or "not unreasonably" or "abuse"), it seems to us that there ought to be at least a degree of
arbitral caution before coming to the conclusion that those words are already there, as part and
parcel of some unwritten but implied obligation. For example, tempting as it may be to "imply" a
legal obligation to the effect that the parties will always act "reasonably" (which would make
every union and employer decision "arbitrable", and which, incidentally, is not the same thing as
"bad faith"), that is certainly not what the Collective Agreement actually says for probationers.
Moreover, it is one thing to "imply" an undertaking that management powers will be used for
legitimate business reasons and not "in bad faith". It is quite another to "imply" an undertaking
to only exercise those powers in a way that is "fair" or "reasonable'~ having regard to, and giving
weight to, the interests of the employee - especially where, as here, the usual words for requiring
that kind of "balancing exercise" have been intentionallv omitted in the case of probationers.
*
It seems to us that this contractual setting - what is in the Agreement and what is
not in it - should be kept in mind when we look at the practical content of any implied obligation
not to act "in badfaith" or (perhaps) "arbitrarily" - phrases to which we now tUtTI.
*
In the Loyalist College decision, the Court of Appeal said that a College must not
act "in bad faith" when terminating a probationary employee; and it is common ground that this
is a "test" that must be applied in this case. The problem is that the Court in Loyalist was not
dealing with "bad faith", as such, but rather with a form of illegality (i.e. direct dealing with the
employee rather than with her bargaining agent, and with a condition imposed unilaterally by the
81
employer that was outside the terms of the collective agreement); so the Court did not have to
elaborate upon what the words "bad faith" might actually mean in this contractual setting - or
how, precisely, that implied limitation conceming "bad faith" might relate to having, or not
having, ''just cause", or being required to show, or not being required to show, that the decision
was "just and reasonable" - requirements that, to repeat, are applicable to permanent employees,
but were intentionally omitted for probationers. The arbitrator in Loyalist did not make a finding
of "bad faith" and the Court did not make a finding of "bad faith" either - although, interestingly,
the Court did observe that "The College could have properly dismissed Ms. Bergmanfor reasons
related to her suitability for the job" (without exploring the meaning of "suitability", either).
*
Furthermore, as Counsel for the College pointed out: the arbitration cases decided
under Article 27.02E almost never find "bad faith"; so that these decisions do not provide much
guidance either. Nor are Court decisions an unequivocal source of illumination - partly because
"bad faith" determinations typically arise is contexts that are quite different from the present one,
and also because, insofar as judicial review decisions are concerned~ the issue there is normally
the "reasonableness" of what the arbitrator has done, and not whether s/he was "correct". Indeed,
as the Supreme Court of Canada once observed "the court should not at any point ask itself what
the correct decision should have been" [see Ryan v. Law Society of New Brunswick [2003]
S.C.R. 247; and compare Essex County Roman Catholic School Board v. Ontario English
Catholic Teachers Ass'n (2001) 56 O.R. (3d) 85 (c.A.) which deals with arbitrators]
*
In the result, (at least insofar as the arbitral case law is concerned), one is left to
glean the meaning of the term "bad faith" by the looking at the factual pattern and sunounding
82
contract language, in each case, to see what "bad faith" is not, and by looking at snippets of
reasoning in cases where, for the most part, the Union's challenge was ultimately rejected. Nor is
there much guidance as to what the remedy might be when there has been an allegedly "improper
exercise of discretion" under Article 27,02E, but proper notice has been given under that
provision; or where there are "legitimate" reasons for reaching the conclusion that the employer
has reached, mixed in with problematic ones; or where it appears that the employer has
"probably got the right result", but may have followed what the arbitrator believes is an "unfair"
"process" along the way [See Algonquin College (Su11Iitro) which is discussed below]. And of
course, from a remedial perspective, the fact that an employer may have erred in some way ill the
exercise of discretion, does not necessarily mean that an arbitrator is empowered to substitute his
view for that of the employer, The appropriate remedy may be to require the decision maker to
do it all over again - properly this time.
*
Be that [IS it may, those words - "bad faith" - are not unknown in law or in labour
law (see for example section 58 and 59 of the Colleges Collective Bargaining Act - which, uses
those very words, and which, incidentally, suggests that in this labour law world "bad faith"
"arbitrariness" and "discrimination" are not the same thing); and in our view, the traditional
legal meaning of "bad faith" is at least the starting point for discussion. Thus, in Canadian
Labour Relations Law second edition, George Adams approves the following definition:
". ., bad faith refers to a subjective state of mind, that is, conduct which
has been motivated by "ill will", hostility, dishonesty, malice, personal
animosity or even "sinister purposes". Conversely, good faith has been
described as "honesty of purpose".
Black's Law Dictionary defines the term "bad faith", (in part) this way:
83
"The term bad faith is not simply bad judgment or negligence but rather
it implies the conscious doing of a wrong because of dishonest purpose or
moral obliquity; it is different from the negative idea of negligence in that
it contemplates a state of mind affirmatively operating with furtive design
or ill wilL"
And in Re Alcan Wire and Cable and USWA (1992) 26 L.A.C. 93 at p. 102 Arbitrator Tacon
discussed the potential overlap with the concepts of "arbitrariness" or "discrimination";
At its core, bad faith implies malice or ill wilL A decision made in bad
faith is grounded not on rational connection between the circumstances
and the outcome, but on antipathy toward the individual for non-rational
reasons. Such non-rational reasons may be discriminatory in the sense
that the motivation is a reaction to an individual's race, creed, color, sex,
or ethnic origin. Because of the absence of rational connection between
the outcome and circumstances a decision made in bad faith cannot be
reasonable... ill that sense a decision made in bad faith is also arbitrary".
What these legal sources (and there are many more of them) suggest, therefore, is
that "bad faith" is nOlmally a matter of motive - something improper in the mind of the decision
maker; and since the decision maker's state of mind cannot be observed directly, bad faith can
only be inferred, in context, from his/her conduct (or perhaps from the plausibility of any ex post
facto explanation). That is what we think the Court was getting at in Rosenhek, when it said that
the quality of the decision may provide some "evidence" of bad faith (although, to repeat, that
was a case that involved a statutory power of decision and not an employment contract per se).
*
However, it is important to appreciate that a decision can be unfair or
unreasonable or even arbitrary without necessarily having been made in "bad faith", because
those failings may spring from negligence or error or stupidity, rather than (for example) malice,
or 111 will, or ulterior motive. Bad management or a faulty decision-making process do not
necessarily involve "bad faith"; and while a breach of the collective agreement may be evidence
84
of bad faith, it is not necessarily so, Because once again: an employer may breach a provision of
the collective agreement because of error or inadvertence or a misunderstanding about what the
collective agreement requires, without there being any "bad faith" on the decision maker's part
*
Now no doubt, if the decision making process is infected by fraud or bias or
malice or deceit or some evident "ulterior motive", then it may not be hard for an adjudicator to
conclude that there has been "bad faith" [for example: if a probationer were released to make
way for a favoured family member of the decision maker]. In a framework where the Employer's
interests predominate, the decision maker must still honestly pursue those interests and not some
illicit agenda, However, as we understand it, error - even significant error - is not the same thing
as "bad faith" (Rosen/uk),' and in our view, an arbitrator has to be careful not to extend the
meaning of "bad faith" (an unwritten "pour-in") too far beyond its traditional legal meaning
(wrong doing, ill will, improper motive or impropriety of some kind - see generally: Carswell's
Words and Phrases Judicially Defined Volume 1) without careful consideration of the particular
contractual setting in which this "implication" takes place. In particular, we think that an
arbitrator has to be careful about implying an obligation to weigh the interests of the employee in
some particular way, when the usual contract language for requiring that kind of balancing has
been intentionally, and lawfully, omitted for probationers.
*
In summary then: when a tribunal is "in the world" of "implied" contractual
obligations that may have to be squared with express contract language that restricts implication,
and when the Agreement under review does not require "just" "cause" for releasing a
probationer, and when that Agreement does not require the employer to satisfy an arbitrator that
85
the decision was "just and reasonable in all the circumstances", then we think that the arbitrator
has to be careful about tuming "bad faith" into a proxy for ''just cause" or "reasonableness in all
the circumstances" - to find, in effect, that although proper notice has been given, the decision
maker "must have been" acting in "bad faith" because slhe didn't go about things in the way that
she would have been required to do, for a permanent employee. Because it is one thing to say
that an agreed-upon term must yield when there is an operating incompatibility with a legislative
requirement (which is what prevents the parties, even by agreement, from ousting arbitral
review); it is quite another to posit an "implied" term that is inconsistent with what the parties
have actually agreed to or intended - thereby multiplying the bases for litigation and upsetting
the intended balance of the bargain. Moreover, while it is certainly possible to infer "bad faith"
fi'om a marked departure from the decision maker's legal obligations or even from what the
arbitrator thinks is "unjust", it seems to us that those express obligations - or the intentional
absence of them - remain an important consideration. For as we have noted earlier: if the parties
had wanted to require the Employer's decision to be ''just and reasonable in all the
circumstances", then the parties could easily have done that expressly - as they have done
elsewhere in the Agreement, and as they have done, quite specifically, for permanent employees.
But they have not done so for probationers; and we think that an arbitrator has to keep that in
mind when it is said that something is "unjust" or "unfair" and "therefore" must be "bad faith".
*
That said, (and like arbitrator Tacon), we think that as a practical matter these
concepts of "good faith" and "arbitrariness" may not be mutually exclusive, because the apparent
"arbitrariness" of a decision (for example) may legitimately lead to an inference of impropriety.
Furthermore, when we look once again for guidance in the Collective Agreement language - the
86
contractual context, as it were - what the parties have actually agreed to - it is apparent that while
the Employer does not have to show "just cause" for the release of a probationer, the Employer is
expected to have "reasons" for doing so, and to share those reasons with the former employee if
s/he asks for them. And in our view, it is inconceivable that the bargaining parties would have
negotiated a contractual requirement to give the former employee "reasons" for his/her release, if
those "reasons" did not have to bear some rational relationship to the decision to which they
relate. "I released you because you have red hair", is not good enough,
*
Accordingly, for completeness, we will say something briefly about the word
"arbitrary" because (1) that notion is sometimes said to be an independent implied qualification
on the exercise of discretion, and (2) because from an evidentiary point of view, a decision that is
"arbitrary" may well lead to an inference of "bad faith", and (3) because the express obligation
in this Collective Agreement to provide "reasons", imposes, in our view, at least a test of
"rationality", even if an arbitrator is not supposed to second guess "the merits" of the decision.
Indeed, we think that the Employer in this case conceded as much when it argued that its
"reasons" were "rationally related" to the Employer's legitimate expectations for employees; and
it seems to us that that may also be what the Court of Appeal was hinting at when the Court said
that the employer decision could not be based upon "invalid" considerations,
*
The term "arbitrary" (like its more elastic cousin "reasonable") has to do with the
quality of the decision-making process and with the selection and handling (or mishandling) of
the decision-making criteria - although, to be sure, these cases have to read with some care and
with an eye to context (e.g. statutory power of decision versus private contractual discretion).
87
What they seem to be getting at, though, is a decision that is implausible or capricious or is based
upon decision-making criteria that are incomplete or umelated to the purpose for which the
decision-making authority was granted (even where there is no advertent "bad faith", as such).
*
To be clear: this is not the same thing as following the "rules of natural justice"
(the gold standard for quasi-judicial decision-making) that arbitrators have to apply in their own
decision making. Rather it involves deconstructing the managerial decision-making process, in
context, to ensure that the decision has been made on arguably relevant grounds - even if that
decision reflects an "opinion" of the decision maker, and even if the arbitrator would not have
reached the same conclusion that the decision maker did. Because what is happening here is
more like what a law firm is doing when it is deciding which articling students to keep, than
what a tribunal is doing when it is running a hearing and exercising some statutory power of
decision. The employer is assessing whether the newcomer should be added to the organization
or it should look for someone else; and that kind of self-interested decision engages a host of
possible considerations - some of which (like "suitability") may be subjective or "judgmental" or
not easily "proved". It is not just about whether the person in question has the nominal
professional skills, but also about whether the employer thinks that the newcomer will "fit in",
*
It has been said that the "classic" case of "arbitrariness" would be to discharge
someone because of his/her hair color 01' political views - not factors prohibited by Article 4.01
of the ColIective Agreement, but factors that bear no relationship to the employee's work
performance or to the employer's legitimate business interests. And who could quarrel with that?
The problem, of course, is that real life is never as clear as this "straw man"; so the difficulty is
88
where to draw the line in a context where the employer is not required to have "cause" and the
arbitrator is not supposed to be second guessing the "merits" of the decision. When is the
employer "so clearly wrong" that its decision can be fairly described as "arbitrary", or (as
Rosenhek suggests), that it leads inescapably to an inference of "bad faith"? When has the
employer been so seemingly blind to some obviously relevant matter that the decision becomes
capricious or arbitrary? Or to borrow some terminology from the public law world: what is the
"standard of review" for the exercise of discretion in this contractual setting?
*
However, we do not think that it is useful to burden these reasons with an
intellectual exercise that has challenged the Courts and administrative law text writers for many
years. It suffices to say that in addition to an implied obligation not to act "in bad faith" there is
(in our view) both arbitral and contractual support for the related proposition that an employer
may be faulted if its decision was arbitrary or reckless or capricious or patentIy unreasonable, or
if its decision making criteria are irrational - either because that is an independent qualification to
the exercise of discretion, or because, as in Rosenhek, it supports an inference of bad faith, or
because an Agreement that requires the employer to have "reasons", also requires those
"reasons" to be, at least, "relevant".
***
With that background, then, we return to the issues that we have to determine in
this case: whether the Dean's behaviour was in breach of some express terlll of the Collective
Agreement or some implied term of tile Collective Agreement, and, if so, whether any remedy is
warranted (including the one proposed by tile Union: to put the Grievor into a full time job as if
she had put in two satisfactory years of probationary employment).
89
VII - Content and application of the imlJlied terms: "arbitrary" and "bad faith"
We have considered the evidence and representations of the parties and the
contractual regime in which we are operating (including its "implied terms") and, in our opinion,
the decision of the College (which is essentially the decision of Dean Fifield) was neither made
"in bad faith" nor, when viewed as a whole, can that decision be fairly characterized as
"arbitrary". The process undertaken by the Dean may have been flawed in various ways (we will
say more about that later); however in our view, the evidence does not support the inference that
the Dean's decision itself was made "in bad faith", and it was clearly not "irrational". Nor was
her decision influenced by any of the prohibited factors mentioned in Article 4 of the Collective
Agreement. And of course, the Grievor did get pay in lieu of notice (3 months pay for an 8 Y2
month employee), and she also received a detailed review of the Employer's reasons for
"releasing" her - as the Collective Agreement requires. The College applied Article 27.02E.
*
Ms. Fifield had a good personal relationship with the Grievor; she gave the
Grievor a fourth chance for a full time job despite the earlier rejections (she also put aside some
reservations as we have already noted); she helped the Grievor along in her career in a number of
ways; and she displayed a degree of flexibility in responding to the Grievor's concerns -
including the Grievor's complaints about her work load. Accordingly, having considered the
evidence as a whole, we agree with the Employer that there was no "improper motive" here.
There was no bias, or malice, or deceit, 01' animus, or improper purpose. The Dean did not make
her decision on some improper or "bad faith" basis, or in order to defeat some right under the
Collective Agreement. Nor is there any basis to believe that the Dean 11lade her decision for any
90
reasons other than the ones that she articulated to the Grievor in the course of the post-
termination meeting and that she repeated in the course of her testimony before this Board. The
Dean did what she thought was in the best interests of the College - not least because she was
concerned that she would be the one who would have to manage any future relationship with the
Grievor, if the "problems" that the Dean had identified, tUl11ed out to be persistent.
*
We are satisfied that Ms. Fifield decided to release the Grievor for the reasons
that she said she did: "unsuitability" in the Dean's opinion (too much emotionalism and
negativity and rigidity) and bad judgement (e.g. the "marking issue"); and in our view, those are
not only legitimate factors for an employer to consider in this probationary context (recall the
Court of Appeal's comments about "suitability"), but there was also evidence to support these
concerns - whether or not we agree with Dean Fifield's conclusion, and whether or not the
Grievor's behaviour could have been improved by wamings 01' counselling, and whether or not
we think that these issues should have been outweighed by the Grievor's obvious dedication and
her skills in the classroom. But there was no impropriety, personal antipathy, or hidden agenda
here. Nor was the Grievor intentionally "set up" to faiL On the contrary, the Dean gave the
Grievor a chance, and the Dean was hopeful that the Grievor would succeed, and the Dean was
disappointed when she didn't.
*
In our view, the factors that the Dean took into account were factors that could
reasonably be considered for a probationary teacher, even though some of them were subjective
and relate to personal qualities that are not easily susceptible to formal proof, and even though
some of the behavioural concerns that Ms. Fifield identified might have been subject to
91
modification - that is, if the Grievor had been warned about them, and if the Employer had been
prepared to "wait and see", for a few months, to find out whether the warnings had worked and
the Grievor had been able put these issues permanently behind her (we say "permanently",
because that was what the Dean had thought had already happened at the time of the fourth job
interview; so the Dean's decision not to make that assumption again is, perhaps, understandable _
particularly after what she had seen and heard herself).
*
However, there was nothing "inational" about these concerns nor in our view,
was the decision itself "arbitrary" or "implausible" or "capricious" or made "in bad faith", On
the contrary, the Dean mulled over her reservations and then decided for the reasons outlined
above that she didn't want the Grievor on her permanent staff - as Article 27.02E ostensibly
allows her to do, without having to show "just cause" and without having to demonstrate to an
arbitrator that the decision was "just" or "reasonable".
*
We agree with the Union that some of the things that the Dean was concemed
about were rooted in the Grievol"s zeal to "do the right thing" (as she saw it); and the fact that
such zeal Oler "passion" as the Grievor put it several times) was not present during the fourth job
interview suggests that it can be contained. Nor is there is any reason to reject the Grievol"s
assertion that she is a person who "follows the rules" (as she understands them); so that, for
example, it is unlikely that the Grievor would ask her daughter(s) to help out with the marking
again. And the Dean admits that some of the subjects that the Grievor raised at the two meetings
in late March/early April 2009, were not necessarily problematic in themselves; but only that the
Dean was troubled by the presumption, and by the "negativity", and by the abrasive manner in
92
which these issues were raised - which the Dean found unsettling and inappropriate and
unprecedented for a probationary employee.
*
However, it is clear that, (in the Dean's view at least), there was an apparent re-
emergence of the very kinds of things that had derailed the Grievor's first three job applications,
and, in the context of this Collective Agreement, we do not think the Employer is precluded from
taking such issues into account, or from acting on them in.a timely way. The Employer is not
precluded from looking for an employee who will not be so critical of others, or who will not
question established ways of doing things (i.e. who will not "rock the boat" or act like a "know it
all"), or who will not be abrasive with her boss, or who will have the good judgement not to
"hire her daughter" to help out with the marking for which she herself was responsible - even if
the students were l!!.llikely to find out about it. Moreover, the "marking issue" is something that,
in our view, could legitimately warrant an employer response even if "cause" were the test; and
as we have noted many times in this Award: under this Collective Agreement, the Employer does
not have to show '~ust cause" for the release of a probationer and does not have to show that its
decision was "just and reasonable in all the circumstances".
The assertion that these "concerns" may be "correctable" is beside the point. The
question is whether the Employer was under a legal obligation to give the Grievor additional
months to correct them (or prove that they had been corrected) - which is to say: that since the
behaviour could not be undone, it had to be forgiven, and in the meantime (or so the Union
argues) Article 27.02E would be legally unavailable. However, we see no basis in this Collective
Agreement for that legal obligation in respect of probationers - that is: that they are entitled to
93
the kind of "progressive discipline" or compulsory forbearance that might apply once s/he had
completed the probationary period. Indeed, that is precisely what the parties have chosen not to
give to a probationer. For under this Collective Agreement the Employer is not obliged to give
much weight to his/her interests; and under Article 27.02E the release of a probationer can be
triggered at any time, on notice; and no "just cause" is required - just like at common law.
*
Furthermore, it is important to remember that the Employer in this situation is not
only looking at current job performance, but is also looking for "signs" of future trouble - doing
a "risk assessment" as it were - bearing in mind that once the employee attains "permanent
status" it will be more difficult to correct any mistakes that were made at the hiring stage. It is a
setting where the Employer can be expected to "en on the side of caution"; and, in our view, that
helps to explain why the Employer has negotiated special contract language to preserve its
freedom of action until the employee puts in two full years of satisfactory service (with a
contractual minimum of one year). Moreover, as the Alberta Court of Appeal observed in
Alberta v. Alberta Union of Provincial Employees, [2008] 295 D,L.R. (4th) 66: "Workplace
incompatibility is not necessarily an issue of "fault", and is a legitimate reason for not
continuing the employment of a probationary employee".
*
The Dean had difficulty being blunt with the Grievor, just as the Grievor has had
difficulty curbing her "passion" (as she describes it). But, with respect, one should not confuse
the Dean's indecisiveness with arbitrariness or bad faith; and in our view, it was not
unreasonable -let alone improper (i.e. badfaith) - for the Dean to have concerns about a teacher
who is demanding and abrasive when dealing with her supervisor (the Dean herself), or who
94
does not seem to be getting along with others, or who is openly critical of other persons and
programs, or who, most surprising of all, tells her Dean that she has "hired her daughter" to do
some of the marking that was that teacher's own responsibility.
*
The Grievor admits that having her daughter help with the marking was a "big
mistake". And so it was. But it was also an enol' in judgement which the Employer could
reasonably be concemed about; and in our view, there does not have to be a "rule" warning
teachers that they are responsible for their own marking. It is just common sense. And while the
Employer might have chosen to "forgive" this error of judgement or solicit an assurance that it
would never happen again, (Le. as an altemative to "release"), we do not think that the Employer
was legally obliged to do so. Or to put it another way: we are not persuaded that the Employer's
decision not to do that was "arbitrary" or a manifestation of "bad faith".
*
Now no doubt Dean Fifield might have more fully "investigated" the various
Issues that came to her attention, and if she had done that, she would have had a better
understanding of the source of any apparent problems (be it a "misunderstanding" or "rigidity"
01' just the Grievor's confident belief that "she knew best"). The Dean would also have had the
benefit of the Grievor's side of the story. However it was not improper (Le. "arbitrary" or "bad
faith") for the Dean to be concerned about the Grievor's "negativity" or about the comments
from the head of a Co-op department (on March 16,2009), who told Dean Fifield that of the 30
individuals teaching communications courses, the Grievor was the only one making waves. For
when the issue is "suitability", "compatibility", or "being a good team player", the fact that there
were such complaints about the Grievor - and no one else - is not insignificant, regardless of
95
what the basis for them might be (at least so long as that basis does not involve the prohibited
factors in Article 4.01); and the fact that such complaints came from a Program Manager is more
significant than the grousing of some co-workers in the previous term.
*
In our opinion, these were all legitimate problems with which the Dean was
personally and directly confronted: what to do about the marking issue, or the negativity, or the
abrasiveness, or the apparent lack of cooperation (as confirmed by another manager). And, all
things considered, we cannot say that the Dean's decision to release the Grievor was "arbitrary"
or made "in bad faith", whether or not it would constitute "just cause" or be "just and reasonable
in the circumstances". Because the latter was not required by this Collective Agreement, and we
do not think it should be imposed, by legal inference, under the umbrella of "bad faith". It is not
"bad faith" or "arbitrary" to terminate someone "without cause" when the Agreement does not
require ''just cause" - however "unfair" it may seem to the employee (or to an arbitrator for that
matter); and, in our view, it was not "bad faith" or "arbitrary" for the Dean, in this case, to
release the Grievor for the particular reasons that were given.
*
The Dean may have over-reacted to the Grievor's manner. But the fact is, the
Grievor was negative and critical of others, and her "passion" (as the Grievor put it many times)
came out in ways that were considered to be abrasive, inflexible and demanding; moreover, those
traits were observed by the Dean herself. They did not require any 'investigation'; and the
marking issue was also revealed by the Griev01' herself. That didn't require much investigation
either. And it is evident from her testimony that the Dean was personally troubled by the
Grievor's manner, as she saw it animated, demanding, presumptuous, punctuating her points by
96
striking her finger on the table - demanding to know "what are VOlt going to do about" the
various things that the Grievor had raised and that she thought should be changed. It was not the
kind of behaviour that the Dean expected, or wanted, or had ever seen before from a probationer;
and it gave the Dean pause when she pondered adding the Grievor to her full time staff.
*
Finally, it is not unreasonable for a busy manager to look for someone who would
likely be "low maintenance" - that is, someone who would not generate "issues" that would have
to be "investigated" and "resolved" (as the Union claims shonld have happened in this case). In
fact, that was the thrust of what the Union President told the Grievor when she first came on
board as a probationary employee: "do your job, keep your head down, and do not be a high
maintenance employee". It was good advice.
*
The Dean could have, and probably should have, managed things better. However
in our view, there was 110 bad faith or impropriety here; and, assuming for the moment that there
is an additional layer of arbitral review based upon "arbitrariness", we do not think that her
decision fits that category either. There was nothing irrational or absurd or even obviously
unwal1'anted about her conclusion, which was based upon factors that she became aware of
herself, rather starkly, in late-Marchfearly-April 2009; moreover, even if she el1'ed in some
respects, or put more weight on what the Grievor said and did than we would have done, there
was nevertheless a legitimate basis for the decision that Dean Fifield made - a decision that, to
repeat, did not require" just cause" and that did not have to be shown to be "just and reasonable
in all the circumstances" and this is certainly based upon relevant considerations.
***
97
It seems to us that the more troubling issue on this branch of the case (which is
about "implied obligations" and whether they qualify/nullify Article 27.02E) is not whether the
decision making criteria used by the Dean were flawed (they were not), or whether there was a
factual foundation for these concerns (there was), or whether the decision itself was "arbitrary"
or animated by "bad faith" (it wasn't), but rather whether the way in which the Dean went about
making her decision in April 2009 (without consulting with the Grievor first and warning her
about what might be coming in three weeks' time) is arbitrary or a manifestation of bad faith,
which prevents the Employer from invoking Article 27.02E - and of course, as a subsidiary
question, whether such "process violation", makes the Dean's decision under Article 27.02E null
and void, so that the Grievor must be reinstated to employment. Because stripped to its essence,
that is the Union's plea: that even an objectively unsatisfactory employee is entitled to be told of
the nature and extent of her defaults before termination - not just in the progress reports but also
in between times or whenever they occur; and further that the failure to do so, vrecludes an
application of the "no fault" provisions of Article 27.02E, and renders fillY decision made without
such prior warning fI nullity, Indeed, on this theory, even having "just cause" is not enough,
because, as the Union sees it, there must also be a prior warning, before such "cause" can be
acted upon - even though Article 27,02E, itself, does not require "cause", but only notice.
*
So did the Dean have an implied legal oblifmtion in the circumstances of this case
to alert the Grievor to her concerns in early April 2009, and then to give the Grievor an
opportunity to respond to them, prior to triggering the "probationary release", about three weeks
later, under Article 27.02E - or lose the right to do so? Or to return to the actual words of the
Agreement: if Article 27.02E, on its face, is a "no fault" provision and only requires notice and
98
"reasons" after a termination, if requested, is there an implied obliJ!ation to identify those
"reasons" beforehand, or lose the right to invoke Article 27.02E? And, in this case, was the slate
"legally wiped clean", because the Dean did not share her concerns with the Grievor in early
April 2009, and then solicit a response, before acting on them three weeks later, on April 29?
*
The Union claims that in order to demonstrate "good faith" and act in a "non-
arbitrary way", the manager must not only have valid concerns, but she must also alert the
probationer to any defaults so that the probationer can explain himself/herself prior to triggering
a "probationary release" under Article 27.02E; and as a matter of pure "fairness" it is difficult to
quarrel with that proposition, because it is a familiar component of obligation to have "just
cause" before terminating an employment relationship. The difficulty is that this is not a setting
where the Employer is required to have "just cause" before triggering a "probationary release",
and there is nothing expressly requiring the Employer to be "just and reasonable" in the exercise
of its discretion. Against that background it seems odd, in our opinion, to make it a mandatory
legal precondition (especially by implication) to articulate cause and reasons "in advance", or
lose the right to terminate the relationship under a provision that does not require any showing of
cause in the first place. (No authority was advanced for this kind of implied obligation in any
other "termination-on-notice legal regime", where no just cause is asserted].
*
To put the Union's proposition colloquially: you don't have to show any cause to
trigger Article 27.02E because all you have to do is give the right amount of notice, but if you
don't indicate the basis or "cause" for your actions, before-hand, and give the employee a chance
to respond and to change, then you cannot take advantage of this no fault provision, and any
99
attempt to do so is void, even if your reasons for the termination are sound - not because the
Collective Agreement says anything like that, but as a matter of legal "implication".
*
However, in our view, to graft this additional obligation on to this Collective
Agreement, by implication, and on these facts, then to find that a breach of it, precludes resort to
Article 27.02E, would simply not be warranted - let alone to also find, as the Union further
urges us to do, that the "release" under Article 27.02E is a nullity, and that the Grievor should
"therefore" be put in the same position as if she had completed the two year probationary period
successfully (which could not be done in any event without ignoring Article 27,02C of the
Agreement and also ignoring the purpose of the probationary period).
*
We acknowledge the attraction of the proposition that all employees - even
probationary employees - ought to be treated "fairly". It is a plea which has considerable
equitable force. However, we think that we also owe some fidelity to the particular contractual
framework in which we are operating, and to the evident intention of the parties to give the
Employer a free hand; and it seems to us that this additional (implied) legal obligation proposed
by the Union, does not fit very well with Article 32.03D 01' with the e>'lJress power to release a
probationer, at any time, on notice, and without cause, or with the express requirement to give
the probationer the "reasons" for the decision after the termination if requested. Because, for
example, if the Employer were legally obliged to go over its legitimate concerns whenever they
come to light (in between progress reports), then why have the parties so carefully required the
Employer to provide its reasons after the vrobationarv release? What is the purpose of the post
release explanation, if, as the Union says, the Employer was already required by some implied
100
legal undertaking, (based, it is said, upon "bad faith") to identify any concerns along the way,
prior to acting on them, or lose the quite separate right to release the probationer on the no
fault/agreed notice basis. contemplated by Article 27.02E?
*
What the Union seems to be asserting, therefore, is that while the parties have
only required progress reports every four months, the implied obligation not to act "in bad faith"
or perhaps in an "arbitrary" way, requires an ongoing critique; AND that without such ongoing
critique (with a right to explain and an opportunity and time to respond) the Employer loses its
right to release the probationer under Article 27.02E for those same reasons - even if the reasons
themselves were legitimate ones and would justify the release. Giving the reasons afterwards
(which is what Article 27.02E actually contemplates) isn't good enough.
*
With respect, we do not think that this is a proper implication in the contractual
framework in which we are operating - thereby preventing the Employer from utilizing Article
27.02E to deal with the legitimate problems that Dean Fifield identified about three weeks before
she invoked Article 27.02E. The Employer might have adopted that approach. But we are not
persuaded that a failure to do so here breaches some implied legal obligation to have a different
peIfonnance reporting regimen than the one specifically provided for in the Agreement progress
reports every four months, and reasons after termination if the Grievor asks for them. Or that the
failure to warn, in this case, nullifies the exercise of discretion under Article 27.02E.
More specifically: we are not persuaded that it was "bad faith" or "arbitrary"
when Dean Fifield paid attention only to the interests of the Employer and did not alert the
101
Grievor (on or about April 6) to what she was considering, prior to initiating the Grievor's
release three weeks later on April 29. We are not persuaded that a failure to identify proposed
"reasons" before hand, and not just afterwards, legally blocks a "no fault" probationary release,
under Article 27.02E - particularly where, as here, there were legitimate reasons for that release.
*
Finally, while it is always problematic to speculate about what "might have
happened" if the Dean had done what the Union says she was required to do, we might observe
that there is no evidence, and in our view no reasonable likelihood, that it would have made any
difference to the ultimate result, given what the Dean had learned by April 6.
VIII M Content and application of tbe eXlH'css terms M Article 27.02D
We are more troubled by the Union's alternative submission: the assertion that
there has been a breach of Article 27.02D, so that (as the Union argues) the decision of the Deall
under Article 27.02E should be set aside. Because this is a different kind of attack, which raises a
different kind of legal question; namely: how Article 27,02 D and Article 27.02 E relate to each
other, and whether a failure to comply with Article 27.02D, can qualify, or nullify, or delay the
separate right of the Employer under Article 27.02E. to release an employee with whom the
Employer is legitimatelv dissatisfied, Moreover this is an obligation that is rooted in an express
provision of the Collective Agreement; and therefore requires no "implication". It will be
recalled that those two clauses read as follows:
27.02 D During the probationary period an employee will be informed in writing of
the employee's progress at intervals of four months continuous employment or
four full months of accumulated non-continuous employment and a copy given to
the employee.
102
27.02 E A probationary employee may be released during the first five months
of continuous or non continuous accumulated employment following the
commencement date of the employee's employment upon at least 30 calendar
days' written notice and during the remainder of the employee's probationary
period upon at least 90 calendar days' written notice, If requested by the
employee, the reason for such release will be given in writing.
These two clauses both talk about what must be communicated to the employee
and when (which, we might observe parenthetically, makes it a little harder to imply some
additional or different form of notification as part of some implied legal undertaking), while
leaving it quite unclear as to what may happen if these information requirements are not met -
which is to say: what the remedy might be for any breach of Article 27.02D, and whether such
breach (large or small, recent or ancient) precludes the Employer from invoking Article 27.02E.
*
The Union makes basically the same argument as it advances under the separate
umbrella of an "implied" legal term. The Union says that if the Employer has not flagged for the
probationer any performance concerns, "causes" or potential "reasons" for "releasing" the
employee by means of the progress reports given under Article 27.02D, then the Employer
cmmot use Article 27.02E to terminate the probationer (on notice) for those reasons. As the
Union sees it, it is as simple as that: an employee can't be released unless s/he is alerted in
advance to any concerns that may lead the employer to take that step, so that the employee can
respond, and explain, and possibly tUlll over a new leaf. In the Union's submission, that is the
whole purpose of Article 27,02D: to tell the employee where s/he stands. "Reasons" afterwards
are not good enough. The employee is entitled to know her "progress", or lack of it, in advance
of the employer acting on any concerns - however, legitimate those concerns may be - so that the
employee can try to rectify any defaults. Moreover. in the Union's submission, the Employer is
103
obliged to clearly identify those issues, or lose the right to rely upon them, and that any attempt
to do so without prior warning results in a nullity. Thus, a breach of Article 27.02D prevents the
Employer from invoking Article 27.02E - even if there are justifiable reasons for termination
(and ignoring, for the moment, that Article 27.02E doesn't require "cause" - just notice).
*
With that in mind then, we should note that his is not the first time that the
relationship between Article 27.02D and Article 27.02E has been considered by an arbitrator, nor
is this the first time the Union has argued that a failure to fully inform a probationer about his
progress (or lack of it) under Article 27.02D, prevents the release of that probationer under
Article 27.02E. Because in at least three other cases, arbitrators have looked at the effect of a
failure to comply with Article 27.02D; and while the facts in those cases are not the same as
those in the instance case, it is nevertheless interesting to note that in none of those cases did
such alleged default (a violation of Article 27.02D) "cancel out" a termination that was effected
with proper notice under Article 27.02E. Nor did these arbitrators agree that compliance with
Article 27.02D was a "condition precedent" to the exercise of discretion under Article 27,02E -
as was argued in this case. In fact, that proposition was specifically rejected in Seneca College
(O'Neil grievance) supra, where Arbitrator Brent described Article 27,02D this way:
Because we heard a fair amount of argument concerning the meaning of
Article 8.01 (c) [now Article 27.02DJ and in the event that we are wrong
in considering that it expanded the grievance to include an entirely new
cause of action, perhaps we should make some remarks concerning that
article. We agree that the article can reasonably be interpreted as making
it mandatory for the College to give periodic information of progress at
the prescribed intervals. The article does not, however, in any way limit
the College's risd1t to terminate the employment of a probationary
emvloyee upon Jdvinf! him the appropriate notice. In particular, the
periodic appraisals are not a condition vrecedent to the makinf! of any
decision about whether or not to continue the employment of a
104
probationary empiovee. If that were the case, then we would expect the
coUective af!reement to state it explicitlv.
And whether Arbitrator Brent was looking at this proposition as an alternative ground for her
decision or it was merely "obiter", her view of the matter is pretty clear.
*
Arbitrator Mikus reached the same conclusion in Algonquin College (Mullins
grievance), where the Union argued, once again, that a failure to comply with Article 27.02D
meant that the employer could not release of a probationary employee under Article 27.02E. In
rejecting that proposition, Arbitrator Mikus observed:
The College does not dispute the Union's allegation that it failed to
comply with the requirement under the collective agreement to inform
the grievor of her progress at four-month intervals. The issue for this
Board is the effect of that noncompliance. The Union has argued that the
termination should be voided; the College takes the position that it
complied in spirit with the collective agreement and that its right to
release a probationary employee should not be interfered with absent
clear language to that effect.
As a general statement of principle, an employer's right to release a
probationary employee is a significant management prerogative that
should not be restricted absent clear and precise language to that effect.
Balancing that is a probationary employee's right to be given an
opportunity to meet the employer's expectations, which includes the right
to be advised of his/her shortcomings in a timely fashion so that changes
and/or improvements might be made. In this collective agreement in
particular, the parties have recognized both of these principles by clearly
defining the length of the probationary period and by requiring written
notification of an employee's progress at regular intervals.
We are of the opinion, however, that the language of this collective
agreement does not support the Union's claim. We come to that
conclusion from a review of the clause itself and from the collective
agreement as a whole. Article 27.02D reads as follows: [clause omitted]
In the first instance, the clause refers to a written statement of the
employee's progress. The requirement is not for a fOlmal performance
appraisal but simply some written notification of the employee's ability
105
and suitability for the job. That notification could take the form of a
comprehensive appraisal or a brief comment on the performance. If the
parties had intended to obligate the College to provide a probationary
employee with the former, they could have and would have stated so
explicitly.
As well, it is clear that the college could release a probationary employee
before helhe reached the four month threshold providing it gives that
employee the requisite notice. That in our view is another indication that
the parties did not intend this provision to operate as a condition
precedent to the release of a probationary el1llJlovee, Finally, we note
that the parties used the word "will" as opposed "shall", which has been
interpreted by arbitrators as being permissive, not mandatory. . .,.....
*
We are not "bound" by these. awards of course (see Larent Isabelle et al vs.
Ontario Public Service Employees Union (1981), 81 CLLC 259 (S.C.C.). There is no legal rule
of "stare decisis" in labour arbitration. However, just as the Union can point to a jurisprudential
foundation for its argument about "bad faith" (i.e. that there is such "implied term" because
arbitrators - and now the Courts - have said so), here the Employer can point to some arbitral
support for its assertion that a breach of Article 27.02D does not deprive the employer of the
right to terminate a probationer pursuant to Article 27.02E; and in fact, there were no cases
brought to our attention where the failure to fully inform the probationer of his/her progress,
ultimately prevented a "release" pursuant to Article 27.02E. Moreover, (as with the "bad faith
implication"), the bargaining parties have gone through a number of collective bargaining cycles
and they have not altered the contract language in the way tllat Arbitrator Brent and Arbitrator
Mikus both said would be necessary in order to make compliance with Article 27,02 D, a clear
contractual "condition precedent" (as they put it), for the exercise of discretion to release
probationary employees, on notice, under Article 27.02E.
106
*
Accordingly, while we are not obliged to "follow" these two "precedents", they
do support the Employer's view: that even inhere was a breach of Article 27,02D, it does not
remove the College's right to "release" an employee under Article 27.02E.
*
The same result was reached in 2002 in Centennial College (Robertson) where the
Grievor was released after the employer found out about an intemperate email that the
probationer had sent. The Centennial decision does not address the relationship between the two
clauses as clearly as the earlier cases do; and it appears that the panel in that case was of the view
that any failure to provide performance appraisals was unconnected to the teacher's ability to
perform as a teacher or to the actual default that led to his termination (an intemperate email,
which was thought to be very bad judgement). On the other hand, it also appears (the passage is
not entirely clear) that the arbitrator was of the view that whatever contractual default there
might have been 011 the employer's part under Article 27.02D, it did not outweigh the fact that
there was a legitimate basis for the Employer's decision: an intemperate email. There was a bona
fide reason for tennination, independent of any employer failings under Article 27.02D; so the
probationer's release was allowed to stand (again, in a regime where there was no need to
establish "just cause" at all).
The Centennial case also illustrates the proposition that a single incident of bad
judgment may be sufficient to warrant the release of a probationer. And that is a proposition that
the Employer urges us to adopt in this case for the "marking issue"; because there was nothing
that the Grievor could do about that default except promise not to do it again, and there could not
107
be any prior warning because the Dean did not find out about it until April 2009 - just as she did
not have confirmation about the "resume issue", until she talked to the Co-op Manager about it
in late-March. Similarly for the abrasive behaviour with the Dean which also occurred in late
March or early April. So if there had to be some specific prior warning about these items, it
could only have been done in April. Moreover as we have already noted: the Dean's evidence
was that although she had some reservations in the first term, she ultimately gave the Grievor the
benefit of the doubt; and that it was what she herself saw and heard towards the end of the
second telm that induced her to invoke Article 27.02E, 3 weeks later, effective April 29, 2009.
*
Finally, for completeness, we might note that in the Algonquin (Sumitro) case,
after a 17 day hearing, the arbitrator actually found that there were "bad faith" and "arbitrary"
elements in the "process" of decision making that led to the probationer's release; but went on to
say that since there were valid considerations as well. the termination would be allowed to stand.
In other words, in Sumitro, there were good reasons for the release as well as some bad ones and
some defects in process; but these negative findings against the employer did not nullify the
employer's decision under Article 27.02E, when there was also a legitimate basis for its decision.
So in that panel's view, even the taint of "bad faith" or "arbitrariness" did not justify interfering
with the termination, when there were also legitimate reasons for the probationary release,
*
What these cases seem to say, therefore, is that a failure to provide progress
reports as required by Article 27.02D does not (or not automatically) limit the employer's right
to terminate for appropriate reasons under Article 27.02E; and that even where there are some
illegitimate elements in the employer's decision making process ~ even "bad faith" - the decision
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of the Employer may be allowed to stand, if the arbitrator finds that there are also legitimate
reasons for coming to the same conclusion. For as Employer Counsel observes: what is striking
about the jurisprudence under Article 27.02E is the absence of any inclination on the part of
arbitrators to reinstate a probationer where there are legitimate reasons for releasing him/her _
however badly the Employer may have handled the process along the way. The cases underline,
at least in result: (1) the broad discretion under Article 27.02E and (2) the reluctance of an
arbitrator to intelfere with that determination when there are legitimate reasons for the
conclusion that the employer has reached - even where the decision making process was flawed
by "bad faith" and "arbitrariness" (as the arbitration panel found in Algonquin (SlI1uitro)).
*
However, for the purposes of this decision, we do not think that it is necessary for
us to express a definitive view about the relationship between Article 27.02D and Article 27.02E,
or to endorse the particular result reached in any of the above cases. It seems to us that there
may well be situations where a failure to adhere to Article 27.02 D is so total, and so complete,
that the probationer simply did not get what was bargained for [raising the remedial question
flagged, but not answered, by Arbitrator Brent in Seneca College (Q"Neil grievance) and by
Arbitrator Mikus in Algonquin College (Mullins grievance)]; and that there may also be
circumstances where (contrary to the approach in Algonquin (Sumitro)) a finding of "bad faith"
will "negate" a termination decision. That, after all, was the result in Loyalist - although, as we
have already noted, the decision in that case is better understood in terms of ilIeRality rather than
"bad faith", We decline to speculate. It suffices to say that, in out' view, and in the particular
circumstances of this case, we do not think that any failure by Dean Fifield in respect of the first
term progress report, prevents her from releasing the Grievor at the end of the second term, based
109
upon what she learned near the end of that term, prior to the due date of the second progress
report - or that the replacement of that second term progress report by a "probationary release",
with reasons, results in a nullity. And in our view, the timing of things is significant here.
*
Dean Fifield may not have fully met the requirements of Article 27.02 0 in the
first term (Fall 2008), despite giving the Grievor a written appraisal document which, on its face,
does flag the Dean's concerns at that time: the "subtle message", as she put it. The words in this
document (the "writing" contemplated by Article 27.020) do speak for themselves; and as
Employer counsel correctly argued, they do sound a note of concern. And if the Grievor had read
them, as she was expected to do, she would have known that there were at least some things to
which she should "give some thought". However, it is also clear that this "subtle message" was
completely lost in the manner of its delivery - even though, as we have also found, there was no
"bad faith" on the Dean's part, but simply some fumbling and a reluctance to rely upon things
that she had not witnessed directly.
It is a reticence that ill suits a "manager", whose job (and whose obligation under
Article 27.02D) may sometimes require her to "tell it like it is". even if the message is
unpleasant. But there was no intent to mislead here; rather, there was an optimistic expectation
that things would work out without hitting the Grievor over the head with a sledgehammer;
moreover, there was certainly nothing in the first term that the Dean thought would warrant the
Grievor's release. So to this extent, the first progress report was accurate. And, to repeat, the
Dean's evidence was that she did not rely on these items, for the same reason that she was
reluctant to include them in the fall 2008 progress report.
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,;,
However, in the second term, and in a relatively short span of time, the Dean was
confronted, quite directly, with some of the Gdevor's personality quirks. She saw and heard the
Grievor's criticisms of others. She saw and heard the Grievor's demanding demeanour. She
heard from another Manager about how the Grievor was interacting with others. And she
learned, to her surprise, that the Grievor had "hired" her daughter to help with the marking: a
stand-alone issue which gave the Dean serious concerns about the Grievor's judgement.
*
This was not hearsay from co-workers, it was something that the Dean saw for
herself; and the revelation about the daughter was, (for Dean Fifield), both totally unexpected
and totally unacceptable: that the Grievor would do it, and also that the Grievor would not see
any problem with it. Nor is there any reason to reject Dean Fifield's characterization of her
meetings with the Grievor: the demanding tone, the finger thumping, and so on - however well
motivated the Grievor may have been or, as she put it, driven by her "passion".
*
The Dean was taken aback by this behaviour, and we do not think that her
reaction was feigned or fabricated. Moreover, while it might be hypothesized that some sharp
rebuke from the Dean in the first term - a "less subtle" message - might have discouraged some
of this negativity, we do not think that a failure to warn more explicitly on some earlier occasion,
can fully explain, or justify, or prevent reliance upon, what the Dean saw, or learned about,
towards the end of the second school term in 2009. Nor, for example, would better handling of
the first term progress report explain or excuse the error of judgement with respect to marking,
which had nothing to do with anything identified by the Grievor's co-workers in the first term. In
III
this respect these were "new" concerns - although of course, the Grievor's intensity and her
insistence on her own views about what the College "should" be doing, were not really "new",
because that looked a lot like what Dean Fifield had seen in the first three job interviews.
*
Be that as it may, it is our view that whatever failures there were in the first-term
progress report, they were overwhelmed by a new set of concerns, which were rationally
connected to the employer's interests even though they involved some subjective elements; and,
all things considered, we do not think that the Dean's failure to be more critical in the first term
assessment negates her right, in this case, to respond to what she became aware of towards the
end of the second term. Nor, in our view, was the right to release the Grievor under Article
27.02E "lost" because the Dean did not warn the Grievor about her concerns or her intentions
between April 6 and April 29. And in our view, the Dean was not required to go through the
motions of preparing a second term progress report, prior to releasing the Grievor. It was
sufficient for the Employer to release the Grievor, as it was entitled to do under Article 27.02 E,
and then provide her with the reasons for such release, (as was done).
*
In our view, Dean Fifield was entitled to forego what by then would have been a
redundant (negative) second term progress report, and to communicate what would have
otherwise been in that report, in the context of a probationary release - with reasons, under
Article 27.02E. She was not obliged by Article 37.02D to give an unscheduled "mid-term"
progress report, on pain of losing the right to invoke Article 27.02E at the end of the term. The
Grievor did get a "progress report" of sorts; and in any case, we are not persuaded that any
alleged failure to give what was clearly a redundant report at the end of the second term, prevents
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the Dean from accessing Article 27.02E. For even if the report document were treated as
"mandatory", we would not, in the circumstances of this case, find that its absence (i.e. in breach
of 27.02D) prevents the College from invoking Article 27.02E.
*
Accordingly, in our view, even if there was a technical breach of Article 27.02D
in the first or second term; it was not such as to preclude the Employer from releasing the
Grievor, who was told the "reasons" for release pursuant to Article 27.02E. It was not, at least in
this case, a "condition precedent" for the exercise of that employer right under Article 27.02E.
IX ~ DislJositioll
Was the Grievor treated "unfairly"? Perhaps she was, as the Dean herself
admitted in cross-examination. Might the Dean have done a better job of managing the problems
that she identified? Yes, she could have done a better job. And would this panel have reached the
same conclusion that the Dean did, given the Grievor's long experience, her obvious dedication,
her genuine concern about student achievement and her superior teaching skills? Perhaps not;
because the College has lost a good teacher whose sharp edges might have been smoothed over,
with appropriate coaching and counselling.
But was the Employer in breach of some legal obligation, which in turn deprives
it of the right to release a probationer for the legitimate reasons that it acted upon and that it
outlined to the Grievor as it was obliged to do by Article 27.02E, post-termination? And is that
decision "therefore" a "nullity"? We do not think so. Because in our view, neither the fumbling
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first progress report nor the failure of the Dean to give the Grievor a "heads up" as to what she
was thinking about in late-March/early April 2009, prevents the Employer from invoking Article
27.02E in the circumstances of this case. It was sufficient for the Employer to give those reasons,
post-release - as it did.
*
In summary then, having regard to the evidence and representation of the parties,
the terms of the Collective Agreement and the various "authorities" to which we were referred,
we find as follows:
(1) the College did not act in a manner that was arbitrary or in bad faith
when it terminated the Grievor's probationary employment; and that
(2) the College had a bona fide and reasonable basis for releasing the
Grievor when it did (whether or not this panel 'agrees' with its
conclusion 01' whether it would constitute 'just cause'); and that
(3) the way in which the Employer applied Article 27.02 D, does not, in
the circumstances of this case, invalidate the Grievor's termination
effected under Article 27.02E.
The grievance is therefore dismissed.
Dated at Toronto this Slh day of August, 2011
"R.O. MacDowell"
I concur in the result
I dissent (see below)
R.O. MacDowell
Carla Zabek
Larry Robbins
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Concllrriu2 ouillion of Board Member Carla Zabek:
I agree with the disposition of this case proposed by the Chair and with the
reasons given, and I also agree with his opinion that whether or not there was strict compliance
with the Progress Report Clause, the Employer's decision to "release" the Grievor should not be
disturbed. However, I wish to make it clear that, in my view, there was no breach of Article
27.02D in either the first or the second school term.
Dissent of Board Member Larrv Robbins:
I have carefully reviewed the Award of the chairperson in this matter and regret
that I must respectfully dissent. In my view, the College did act in bad faith in terminating Ms.
Konrad. In my view, the chairperson has unduly restricted the scope of bad faith in corning to the
decision in this A ward, in a manner that is out of step with the jurisprudence under the College
Agreement. I also disagree with the manner in which the award deals with the College's
obligations under Article 27.02D. The chairperson suggests that maybe Ms. Konrad was treated
unfairly but that still doesn't invalidate the termination. On the contrary, I would have found that
the College failed to meet their requirements under that clause, that the failure requires a remedy
for the grievor, and that in the circumstances of this case reinstatement at least as a probationary
employee would have been an appropriate result.
To begin with, I do not dispute that the Employer does have a wide degree of
latitude in making its decision on whether to retain a probationary employee. That is clear from
the collective agreement, as the chairperson has stressed. But the collective agreement does
consider the needs of the probationary employee as well. Arbitrator Mikus notes that there is a
balancing of the rights of both parties in this agreement in her decision in Algonquin College and
OPSEU, June/98 (supra):
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"As a general statement of principle, an employer's right to release a probationary
employee is a significant management prerogative that should not be restricted absent
clear and precise language to that effect. Balancing that is a probationary employee's
right to be given an opportunity to meet the employer's expectations, which includes the
right to be advised of hislher shortcomings in a timely fashion so that changes and/or
improvements might be made. In this collective agreement in particular, the parties have
recognized both of these principles by clearly defining the length probationary period and
by requiring written notification on an employee's progress at regular intervals."
The Union essentially raised two arguments, one that the College acted in bad
faith with respect to the administration of the grievor's probationary period, and two, that the
College's failure to comply with Article 27.02D is a separate ground for overtul11ing the
termination, Both arguments are inter-connected.
With respect to bad faith, the chairperson has applied a very narrow definition of
bad faith that is based on ill will, malice, dishonest purpose, fraud, or deceit On the other hand,
negligence, error, or stupidity may not be sufficient for a finding of bad faith. I have a problem
with that view, one that requires us to focus solely on the Employer's motivation, what's in their
head so to speak. This is a very narrow view that is not in keeping with 25 years of arbitral
awards under the College Agreement as well as the decision of the Divisional Court in St.
Lawrence College and OPSEU, Campbell, Reid, and O'Brien (Feb./99).
In that case, the Union was appealing an award of Arbitrator Brent wherein she
ruled that she lacked jurisdiction to overtUl11 the dismissal of a probationary employee since there
was no bad faith in the sense of illegal conduct or obstruction (a test that was based on a
Divisional Court decision in Re Metro Toronto and CUPE Local 43). The Divisional Court
overtu1'lled her decision on the basis that she had applied too narrow a test for bad faith taken
from another case with a very different management rights clause. It cited the well known
COlllldl of Printing Industries case, 42 O.R. (2d) 404 as well as the Seneca College case
(Hacker), 1986, unreported (Swan). Note in particular the following comments:
"Instead of fettering its jurisdiction as it did the Board in this case should have gone on to
consider the employer's good faith or lack thereof in discharging its positive obligations
in article 8,01 [c] [same as current 27.02D & E], a code for the administration of the
probationary period which was apparently not before the court in Metropolitan Toronto.
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Had it not fettered its jurisdiction the Board in this case should have gone on to decide
whether or not it was satisfied on the circumstances of this case that the employer's
overall administration of the code goveming probationary employees involved the kind
of bad faith found by the dissenting union nominee."
The matter was referred back to the same board of arbitration and arbitrator Brent
then upheld the grievance and found that the Employer had in fact acted in bad faith. At page 3
of that decision, relying on the Divisional Court decision she states:
"We therefore consider that the Divisional Court has directed us to consider whether or
not in exercising its positive obligations under Article 8.01 [c] the College exercise 'its
power under this article on a reasonable basis and without bad faith, discrimination or
arbitrariness'. We believe that test is what the Court was referring to when it directed us
'to consider good faith, in a sense broader than that used in Metropolitan Toronto', which
looked only at illegality or obstruction in connection with a management's rights clause."
Since that decision, other College decisions have followed a similar approach in
applying a wider view on the meaning of bad faith. For example, arbitrator Knopf in Algonquin
College and OPSEU (supra) notes that while bad faith can involve malice and/or evil intent,
deliberation or intent is not a necessary ingredient in the concept. She goes on to note that the
concepts of arbitrariness and bad faith can in fact overlap.
To be fair, I recognize that the award in this case does go on to treat
"arbitrariness" as a second implied term in the agreement but in a separate silo from "bad faith".
I'm still of the view however that even taken together the approach in this award takes too
restrictive a view of bad faith which is out of step with both the above court decision and other
College arbitration awards.
What really stands out about this case is that the Employer terminated the grievor
for a number of stated reasons but said absolutely nothing about any of these matters until the
termination meeting at the end of April/09. To me this is the essence of bad faith. To be aware of
these matters, these red flags so to speak, and to remain mute is a course of conduct likely to
undermine the probationary process. The grievor felt blindsided and I don't blame her. Ironically
she believed that professionally this had been the best year of her career. On any reasonable view
117
of the Employer's obligations under the collective agreement, the College should have properly
advised her of any of these concerns and given her an opportunity to address them,
This brings me to the second argument of the Union which is the effect of Article
27.02D. The chairperson essentially finds that a failure to properly administer Article 27.02D
does not invalidate the termination of the grievor effected under Article 27,02E. To put it another
way, the former is not a condition precedent for the latter. Some reliance is also placed on the
awards re Seneca College and OPSEU (Brent, Feb.l84) and Algonquin College and OPSEU
(Mikus, JUlle/98).
However, it is important to stress that neither decision stands for the proposition
that a failure to comply with Article 27.02D is irrelevant, or that it cannot lead to a remedy, 01'
that the remedy cannot include reinstatement. What they do indicate is that the appropriate
remedy for a breach of 27.02D would depend on the individual circumstances of each case. It
should also be stressed that in the Seneca case (supra), the comments were obiter, in that
Arbitrator Brent found that there actually was not any violation of the progress report clause in
any event (Article 8.01 [c] at that time). The Algonquin case (supra) was actually a preliminary
award wherein the Union had argued that the termination was void ab initio as a result of the
failure to comply with the requirements on progress reports. Arbitrator Mikus rejected that
argument and went on to hear the merits of the case, so that the question of what the appropriate
remedy would be does not arise in this decision.
The key variable in deciding on the remedy would appear to be how relevant are
the Employer's shortcomings in administering Article 27.02D to the purported grounds for
terminating the probationary employee.
This approach was taken by Arbitrator Knopf in Algonquin College (Sumitro)
(supra). In that case she found that there was a mix of rational reasons and unsupportable
assumptions clouded by bad faith and arbitrary conduct on the part of the Employer. The Board
found that the Employer's conduct put the grievor under stress but that stress did not impact on
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the areas where her performance was problematic. In the end, the board awarded a cash remedy
of $7500.00.
In our case, however, in contrast to the Sumitro case, the Employer's failures with
respect to Article 27.020 are highly relevant to the reasons for the termination. The silence of the
Employer in the face of alleged shortcomings of the grievor and their failure to respond
appropriately effectively set her up for failure.
Tuming to the key facts, first of aU, as early as November, 2008, Dean Fifield
became aware of certain concerns about Ms. Konrad. She decided not to raise them specifically
with her because she didn't witness them directly herself. But that argument surely doesn't wash.
In the Dean's position, she would have very little direct access to each probationary teacher and
would be expected to rely on reports she heard from others with more direct access to individual
teachers. One would expect her to follow up on these reports and to discuss them with the
grievor. By writing a progress report in November that mentioned nothing about these concerns,
and misleading the grievor into thinking she had a clean slate, the Employer was not in fact
giving her a true picture of where she stood.
Secondly to the extent that the award suggests that the subtle message in the
November 25/08 report which talks about the other expectations of full-time faculty fairly
flagged the Dean's concerns to the grievor, I must disagree. Nothing in the report remotely
suggests any shortcoming on the grievor's part, and it was not umeasonable for her to view those
aspects of the report as more generic statements that would be made to all probationary faculty.
As the grievor indicated in her evidence, nothing indicated that she was not a good role model,
not helping with the College's strategic goals, or not helping on committees.
In any event, I do agree with the chairperson that to the extent there was any
message, even a subtle one, in the November 25th report that message was lost by the clumsy
way the letter was delivered. By first in enor giving the grievor a report which did in fact contain
some criticisms of the grievor, and then taking the report back and saying that it was a mistake. it
119
compounded the problem, and left the grievor feeling she had nothing to W011'y about, and that
the concerns in the earlier report were about another employee.
The negative comments that Dean Fifield allegedly heard in November were that
Ms. Konrad was being negative, creating conflict in the office area, and being overly judgmental
when meeting with students. These are the same issues that arose later in the winter tenn. It's not
enough for the Employer to say that they didn't take anything from the first term into account in
the decision to terminate in April/09. The fact is that the grievor lost an opportunity to be advised
of her shortcomings in a timely fashion so that changes or improvements could be made.
In my view, the issues that were raised in this case were correctible problems. The
resume issue, and the confusion with the Coop Department is a case in point. The grievor was
using her own template which, according to her evidence, came from the Communications
course outline, and not accepting the Coop template. The grievor also did not want the students
to hand in their Coop resume as their assignment in her class, as they would be using the same
piece of work for two courses. Dean Fifield was concerned because she received reports from the
Coop Department that this was causing confusion for students. Why not say something to the
gdevol', and resolve the problem? This is at worst a misunderstanding that could have been easily
resolved.
Having her daughter assist in marking is also a correctible problem. Once again it
is very surprising that when the Dean learned of this from the grievor she said nothing to her
even though the grievor had six weeks left of teaching in the term including a great deal of
marking. If this was conduct that was so serious, why not tell her not to do it any more?
Even the fact that the gl'ievor's tone at meetings with the Dean appeared to be too
aggressive was something amenable to correction. The Dean met twice with the grievor and said
nothing to her about any problems with her tone during the first meeting. As an aside, we did
receive a document which Dean Fifield had prepared which was her own notes of the April 6/09
meeting with Ms. Konrad. That document says nothing about the grievor's tone, which is
surprising, if it was really such an issue.
120
Indeed another way to look at this issue of the Dean not commenting on any of
these concerns as they occurred is that perhaps the conduct was not so serious after all, a point
urged on us by Union counseL
This brings me to the Employer's failures with respect to Article 27.02D in the
spring. The grievor should have been given a progress report at the end of March of 2009, and
the Employer should have made her aware of deficiencies if any in that period as well. The
incidents that led the College to take the decision to terminate the grievor did not happen all at
once but over a period of several weeks. There was the visit by Dean Fifield to the grievor's
class on March 15th, her discussion with Lisa Whalen shortly after, and the two SWF meetings
with Yvonne, one on March 26th and the last on April 6th, Once again, after each alleged incident
or concern the Dean said nothing to the grievol', and once again denied her an opportunity to
correct the deficiencies, The Employer did not meet its obligations by giving the employee
feedback and some sense of what she needed to do to succeed.
I don't agree that the termination letter itself satisfied the requirement for another
four month report. At four months the College had not yet made a decision to terminate. There
was clearly an opportunity to give the grievor a true report, one which set out all of Dean
Fifield's concerns at that time so that the grievor could have taken the appropriate steps to
correct them,
Finally there is some suggestion that the issue of the daughter assisting in the
marking of the fall exams was so serious that it alone justified the termination. The problem with
that view is that the College didn't appear to treat it that way. It was simply one of a number of
incidents given as reasons for the termination in the Employer's letter to the grievor of May 8/09.
It was not treated as a "one off' incident justifying dismissal in the way that the inflammatory
email in the Centennial College case, Knopf, March/03 (supra) was.
On balance the College's failures with respect to Article 27.02D are highly related
to the grounds for termiuation. Of course one cannot say with certainty what would have
121
happened had the grievor received appropriate feedback when the Dean learned of the matters
which gave her concerns. But that's not the point. The grievor in my view requires a remedy for
this loss of an opportunity to know what her Employer's concerns were and to act accordingly.
In my view, the appropriate remedy in this case is reinstatement at least as a probationary
employee, now in the full knowledge of what the Employer's concerns and expectations are.
Even if I am wrong on that, there should at the very least be a cash remedy as
Arbitrator Knopf ruled in the above Sumitro case. Finally it concerns me greatly that the award
in this case, in spite of the concerns it raises about the Employer's application of Article 27.02D
and unfair treatment of the grievor, provides for no remedy to the grievor.
For all of the above reasons I would have allowed the grievance.
rlLarry Robbins"
Larry Robbins, Union Nominee
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