HomeMy WebLinkAbout2009-0681.Ng.12-01-23 DecisionCrown Employees
Grievance
Settlement Board
Suite 600
180 Dundas St. West
Toronto, Ontario M5G 1Z8
Tel. (416) 326-1388
Fax (416) 326-1396
Commission de
règlement des griefs
des employés de la
Couronne
Bureau 600
180, rue Dundas Ouest
Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
Téléc. : (416) 326-1396
GSB#2009-0681, 2009-3191
UNION#2009-0528-0004, 2010-0528-0008
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Ng) Union
- and -
The Crown in Right of Ontario
(Ministry of Government Services) Employer
BEFORE Loretta Mikus Vice-Chair
FOR THE UNION Ryan White
Cavalluzzo Hayes Shilton McIntyre &
Cornish LLP
Counsel
FOR THE EMPLOYER Cathy Phan
Ministry of Government Services
Labour Practice Group
Counsel
HEARING April 20, June 24, August 30, September 13
& 16, October 5, December 8, 2010, January
10, 2011.
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Decision
[1] The grievor, Flora Ng, was an Application Analyst with the Ministry of Government
Services, Business Solutions, and Government Services Delivery Cluster. She was terminated
from her position for the reasons set out in a letter dated February 8, 2010 from Mr. Ray Nakano,
the Head of the Business Solutions Branch. That letter stated as follows:
Dear Ms. Ng.
A meeting was held on January 13, 2010 with yourself, your Union Representative, Jennifer
Markle-Hoskin, and your direct manager, Catherine Emile, Manager Business Solutions and Ray
Nakano, Head, Business Solutions Branch. This letter is a follow up to that meeting.
The purpose of that meeting was to discuss your continuing conduct which previously led to a 20
day suspension without pay. Specifically we discussed:
1. your continued failure to attend scheduled meetings with your manager including your
weekly status meetings on November 23, November 30 and December 7, 2009
2. your failure to inform your manager that you would not attend these meetings and to
provide an explanation as to why you did not attend.
3. your failure to complete the work assignment due on Tuesday, December 29, 2009
4. Your failure to produce any of the requested status reports related to the above
mentioned assignment or provides a satisfactory explanation as to why you were unable
to complete the assignment
At this meeting your were provided with the opportunity to inform us of any mitigating factors that
you wanted to add or felt that were missing. You indicated that you had no knowledge of the
assignment as you had not read the e-mail regarding your assignment sent to you on December
7, 2009 since your return to the office on November 9, 2009.
In addition to the most recent events, since January 22, 2009 you have been placed on numerous
progressive disciplinary suspensions without pay for the same reasons as outlined above,
culminating with, as mentioned before, a 20 day suspension without pay effective October 8,
2009. These suspensions were due to your failure to correct your insubordinate behavior,
including your failure to attend meetings and complete assignments as directed by your manager
with no reason. Further, as outlined in the October 8, 2009 letter, failure to correct your behaviour
would lead to termination of your employment.
Unfortunately the progressive disciplinary process has not corrected your insubordinate
behaviour and I have concluded that your actions are just cause for dismissal.
Accordingly, by the authority delegated to me under Section 44 of the Public Service of Ontario
Act, I hereby dismiss you for cause in accordance with section 34 of the Act, effective
immediately. Your dental benefits will cease immediately and all other benefits will cease at the
end of February 2010. Any monies owing to you will be forwarded to the address we have on file.
Please be advised that you have the right to grieve your dismissal.
Sincerely
Ray Nakano
Head, Business Solutions Branch
Government Services Delivery Cluster
[2] That letter makes reference to previous discipline, including grievances that have been
the subject of a previous decision dated June 14, 2010. She had been suspended on January 22,
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2009, March 6, 2009 and April 23, 2009 for 1, 3 and 5 days respectively. The reasons given for
the suspensions were the same, namely, insubordination for failing to attend a number of
mandatory meetings and a failure to complete work assignments. On May 5, 2009 she filed the
following grievance:
I grieve that Management’s improper, unfair, unreasonable actions that jeopardize my job security
have violated the Collective Agreement including but not limited to Article 2 (Management’s
Rights) and Article 3 (no-discrimination), the Employment Standards Act, 2000 – S,O, 2000,
Chapter 41, Part XVIII Reprisal Section 74, and any other statutes and policies that may apply.
[3] The Employer moved to have the grievance dismissed on the grounds that it was filed
outside of the time limits of the collective agreement and that the Union’s position was an
expansion of grounds. The motion was dismissed and this award deals with that grievance and
the others that followed, including an 8 day suspension in June of 2009, a 15 day suspension in
August of 2009 and a 20 day suspension in October of 2009.
[4] The most efficient way to deal with these grievances is by chronologically reviewing the
factors leading to the ultimate conclusions.
[5] Ms. Catherine Emile is the Manager of Business Solutions and Support and was the
grievor’s direct supervisor during the events giving rise to this proceeding. She explained that
her Branch provides IT support to clients in Ontario. She has four managers reporting to her and
approximately seventy people reporting to them. The grievor was an Applications
Analyst/Manager and was classified as an SO4. Ms. Emile had no previous knowledge of the
grievor until she took over her position in June of 2007. Her evidence was that from all
accounts, from her date of hire in 2000 to 2008, she was a satisfactory employee who met the
expectations of the position. However, from June of 2008 until her termination, she has not
completed one assignment.
[6] The first incident involved an assignment regarding Adoption Disclosure (AARA) Phase
3/4, Implementation/Integration Testing. On July 8, 2008 Ms. Emile became concerned because
she had received no status updates from the grievor about this project and she sent her an e-mail
that stated as follows:
Hope you are making progress on this.
Please start providing me weekly status updates (Friday is preferred) on the progress being
made.
In addition we should meet regarding PDLP for 2008-2009. I will be setting up a calendar invite
to discuss that. Could you please draft a PDLP and send it to me in the meantime.
[7] A Performance Development and Learning Plan (PDLP) is prepared by the employee and
consists of an annual work plan that compares projected work plans with actual work
performance. Ms. Emile testified that it was very important for career development and provides
an avenue for the employee and the employer to monitor performance.
[8] On that same day, later in the afternoon, Ms. Elizabeth Sajfert sent an e-mail to the
grievor. She was an SO5 and Project Manager for that assignment. Her memo concerned the
status of the project and stated as follows:
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We need to start working on Adoption Disclosure Phase III- Integration Testing.
I organized all the documents needed on project shared drive.
I’m not sure what project schedule is but I expect integration testing to commence around August
4. This gives us four weeks to create Integration Test Cases. If you have any issues/questions
please let me know.
Do you believe this is enough time for you to create Test Case documents?
[9] Ms. Emile received no response to her memo and, while the grievor did provide two or
three status updates, they did not state what had or had not been accomplished. Ms. Emile sent a
follow-up memo on August 12, 2008, asking for a meeting on August 14 in her office regarding
the project and the PDLP. The grievor did not respond or attend the meeting.
[10] The grievor did however advise Ms. Emile by email that her mother was in palliative care
and that she intended to take Family Medical Leave the week of August 25th, 2008.
[11] Ms. Emile decided the grievor had been insubordinate and sent her a letter dated August
18:
A meeting has been scheduled for August 21, 2008, between 11 a.m. and 12 noon, at room #5-6,
777 Bay Street, Toronto to discuss the completion of the integration testing (Adoption Disclosure
project, Phase III) assignment and the completion of your PDLP. In particular, this meeting is to
investigate the rationale as to why you have not completed this work, and whether there are any
mitigating factors I should consider before disciplining you for these insubordinate acts.
As disciplinary action may be taken, you are entitled to have union representation at this meeting.
It is your responsibility to make this arrangement.
Should you fail to attend this meeting, it will proceed in your absence.
The grievor responded that same day as follows:
I do not know of any work I need to complete. I do not have access.
I have a doctor’s appointment Thursday morning and as we discussed in your office just now, I
hope you will reschedule.
Immediately upon receipt of that letter, Ms. Emile responded with the following e-mail:
We will be moving the meeting between 1-2 pm on August 21st to accommodate you. Please
expect the updated calendar invite.
As a reminder, attached are the relevant emails regarding the work that was assigned to you on
July 8, 2008. Also attached is the follow up email sent on July 22nd and the meeting invitation for
Thursday, August 14, 2008.
The grievor’s response was:
I was in Tuesday, August 19, 2008 and as I have mentioned numerous times, please come and
talk to me – I am here.
I am not ready and as you have said “disciplinary” and suggested union representation, I am
checking with the union to have someone attend your meeting with me. I will let you know as
soon as possible.
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Ms. Emile acknowledged the message but advised the grievor that since the meeting had been
changed to accommodate her, it would proceed as scheduled.
The grievor promptly responded thusly:
August 21, 2008
My union representative is Kevin Brown. I had to track him down as my previous representative
became ill.
As you mentioned this is a pre-discipline meeting. I do not recall you and I discussing any
assignments. Besides, as I have mentioned to you before, I have no access.
As for the PDLP, I recall that at our last discussion for this I had asked you “for what” and asked
you to do it, given my situation since I returned from strike and a forced job switch that I am only
given what others cannot or will not do, or when a deadline is obviously not going to be met
and/or something goes wrong and you need someone to blame.
Based on past experience, my doing the PDLP is a futile experience as management only wants
it to be blank or say not applicable. I have had to update it over and over in the past at
management’s request only to end up having to provide one which I believe how it should be. I
pointed this out to you and asked you to do my PDLP at which point I believe I have the right to
put one which I prefer in my personnel file.
I informed you of my medical appointments this week and that I needed to check availability with
the union. In addition, I requested discretionary unpaid leave for Monday, August 18th, 2008 on
June 5th, 2008 at 4:05 p.m. Please note the following in the collective agreement:
Article 3 – No Discrimination/Employment Equity
3.2 There shall be no discrimination or harassment practiced by reason of an employee’s
membership in the union.
Article 22 – Grievance Procedure
22.6.2 An employee who has a grievance and is required to attend meetings at Stage
One or Two of the grievance procedure shall be given time off with no loss of pay and with no
loss of credits to attend the meeting.
I am asking you to reschedule at your discretion but I do not believe you and I have discussed
any assignments and I question your request for a PDLP based on the above comments.
“Unfortunately, today is not possible but you may reschedule for September.
Included in this memo was the relevant section of the Employment Standards Act 2000, S.O.
2000, Chapter 41 concerning Family Medical Leave.
On September 5, 2008 Ms. Emile sent two letters to the grievor, one concerning her failure to
complete her assigned work, another concerning her absences from the office.
Both were dated September 5, 2008 and stated as follows:
Dear Ms. Ng.
On Tuesday August 12 2008, you were invited to a meeting set for the afternoon of
Thursday August 14, 2008. The purpose of this meeting was to discuss your work assignment
and your PDLP. The meeting was booked for 2:00 p.m.
At approximately 1:00 p.m. you sent me an email indicating you had a doctor’s appointment that
morning.
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On Tuesday, August 19, 2008, you were asked to attend a pre-disciplinary meeting scheduled for
11:00 am on Thursday August 21, 2008. You indicated that you had a doctor’s appointment
during the morning and so the meeting was re-scheduled for 1:00 pm.
You did not attend that meeting.
Flora, your hours of work are set from 9:00am to 5:00 pm. During that time you are expected to
be in the workplace and be available to meet with managers and coworkers. Tardiness and
unexplained early departures will not be tolerated. I also require you to attend meetings that I
schedule.
This letter is not disciplinary in nature. It is intended to be a letter of counsel and will
not be placed in your personnel file. Any further acts of unexplained lateness or
absences may be disciplined, up to and including dismissal.
You’re truly,
Catherine Emile
Manager, Registration and Transaction Applications
The second letter concerning the issues about her work performance read as follows:
Dear Ms. Ng:
At the beginning of July 2008, you were assigned to work on the integration test planning for the
Adoption Disclosure Phase lll. The time frame for this work to be completed was 4 weeks, with
the next segment of the testing due to commence August 4/08.
During July, you were offered assistance to finish this work; l also followed up on July 22nd
regarding the status of this work. A status meeting was also scheduled for Thursday August 14,
2008, which you did not attend. It has come to my attention that you have yet to complete this
assigned task.
Flora, your continued refusal to discuss and complete your work assignments amounts to
insubordination. This insubordination must cease. If you are assigned to complete a piece of
work you must do so.
If there are any reasons why you cannot complete your assigned work, you are to meet with me
and describe in detail why the work cannot be completed.
I will be meeting with you shortly to provide you with your next assignment, as well as to give you
a copy of your PDLP, which I have completed as a result of your refusal to engage in the process.
This letter is not disciplinary in nature. It is intended to be a letter of counsel and will not be
placed in your personnel file. Any further acts of insubordination will result in discipline up to and
including dismissal.
Yours truly
Catherine Emile
[12] Another meeting was set for September 9, 2008 but the grievor responded that she could
not attend because she had a doctor’s appointment and her mother was in palliative care. A
follow-up memo three minutes later advised Ms. Emile that she had a dental appointment on
September 16th. Ms. Emile replied two days later by advising the grievor that she was to make
arrangements in advance if she needed time off for appointments and that if she did not attend
the next scheduled meeting she would be guilty of insubordination. The grievor did not attend
that meeting.
[13] Ms. Emile sent the grievor an email on September 22nd setting out the details of her next
assignment, the Certificate Validation Project. She directed her to the proper address on the
shared drive for the specifics and informed her that the deadline for completion was October 17,
2008.
[14] On October 15th, the grievor was given a letter of reprimand for her continued absences
from the workplace. The letter said, in part:
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Absences that are not requested nor approved will no longer be tolerated. You are accountable
for your actions while at work. These incidents are serious and unacceptable.
Up to today your salary has not been reduced for these unauthorized absences. Please be
aware that, from now on, if I do not know in advance AND AUTHORIZE your absences, any
further absences will be recorded as unauthorized and will not be paid.
[15] On November 18th, Ms. Emile gave the grievor another assignment, Death Data Capture.
Ms. Sajfert was the Project Manager and she provided the grievor with the necessary information
for her to have a Test Plan completed by January 12, 2009 with a final deadline of March 1,
2009. Ms. Emile was pleased to receive a status report from the grievor on November 21st but
was disappointed that it did not include completed tasks, plans for the following week and
questions about the project. There was nothing about her PDLP. Ms. Emile scheduled regular
Monday meetings and included the format she expected the grievor to use in preparing her
weekly status reports. The grievor’s response was that she would try but she also had to work on
her PDLP, she was in an “odd situation” and she was new.
[16] At about that same time, Ms. Emile realized that the Birth Certificate Validation Project
had not been completed and scheduled a meeting for December 10th with the grievor to discuss
this failure. The grievor was advised to bring her union representative.
[17] On December 4th the grievor advised Ms. Emile that she had the following appointments:
December 9th away 1:00 p.m to 5:00 p.m.
December 10th away 9:00 a.m. to 12:00 p.m.
[18] Ms. Emile wrote back that the times away from the office were too long and, while she
would approve these dates, the grievor should consider other options, like using vacation time.
As well, she changed the date of the next meeting to accommodate these appointments. Ms.
Emile responded a week later by asking the grievor whether she intended to complete her PDLP
and assignment and suggesting that she create a work plan about her daily scheduled activities
and share it with the others so that they could discuss it at their weekly meetings.
[19] The day before the next scheduled weekly meeting Ms. Emile sent the grievor an email
advising her that she intended to proceed whether she was there or not. The grievor responded
immediately that, due to a number of medical appointments and personal issues, she planned to
take unpaid discretionary leave on December 9, 10, 11 and 1 and 15, 2008.
[20] In the interim the grievor had forwarded to Ms. Emile her weekly status report. It looked
like this:
Accomplishments this week:
Assessed Manager’s requests
Worked on PDLP
Catching up on emails
Confirmed with Project Lead re correct location of DDC (used to be EDR) project documentation
Activities planned but not achieved this week
None
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Planned Activities for next week
Address Manager’s requests
Work on PDLP
Catching up on emails
Start review of DDC (used to be EDR) project documentation
Other issues/topics for discussion
None
Ms. Emile responded as follows:
The below status update does not provide sufficient information on your list of activities and your
target deadlines. I had sent you a message earlier about building a work plan. It is attached for
your reference. I would like to know about the list of daily activities leading up to the due date of
the assignment for DDC. It is important to be able to meet project deadlines without putting the
project in jeopardy. In addition, when can I expect your completed PDLP? I was hoping to
discuss this with you at our status meeting this morning but you have called in sick.
[21] On December 10th Ms. Emile advised the grievor that she had rescheduled the meeting to
January 6, 2009. In that same memo she attached a copy of a letter of reprimand because of her
failure to complete the BCV project, or her failure to inform anyone that she could not meet the
deadline. She was reminded that she had been given a new assignment with a January 12th
deadline.
[22] Ms. Emile sent the grievor a reminder about the meeting scheduled for January 6th and
repeated her request for a response to that invitation. The grievor response was as follows:
As you have been away for a few weeks of vacation, I am responding now.
I cannot address this as you reassigned to others.
[23] Ms. Emile testified that she had been forced to reassign the work because the grievor had
refused to discuss her actions, the status of the file or her progress. Her response to the grievor
was that she considered this failure to attend the meeting to be an act of insubordination and
warned the grievor that any further acts of insubordination would result in discipline up to and
including discharge.
[24] On January 9th the grievor forwarded her weekly status report to Ms. Emile. That report
was identical to the one she had provided previously.
Accomplishments this week:
Assessed Manager’s requests
Worked on PDLP
Catching up on emails
Confirmed with Project Lead re correct location of DDC (used to be EDR) project documentation
Activities planned but not achieved this week
None
Planned Activities for next week
Address Manager’s requests
Work on PDLP
- 9 -
Catching up on emails
Start review of DDC (used to be EDR) project documentation
Other issues/topics for discussion
None
That same day the grievor advised Ms. Emile that she would not be attending the Monday status
meeting for the following reason:
There is no need and you have my weekly status.
[25] On January 12th, the deadline for the DDC project, Ms. Emile repeated her expectations
regarding the status meeting. The grievor had not contacted the Project Lead and Ms. Emile was
concerned that they would not meet the deadline.
[26] By now Ms. Emile had been the grievor’s manager for 18 months and had issued two
letters of counseling and two reprimands. The grievor had never spoken to her about her
personal issues necessitating time off work but continued to take, in Ms. Emile’s opinion,
excessive time off for medical appointments. As well, during that time she had been
disrespectful by ignoring Ms. Emile’s emails, refusing to do what she was asked to do and
continuing to take unauthorized time off. She contacted the Human Resources department for
advice.
[27] About this time the issue of time off resurfaced. On January 5th, Ms. Emile sent an email
to the grievor advising her that the three hours she had taken for her appointments could not be
made up since neither she nor her back-up had authorized any overtime work. She told the
grievor to amend her WIN record to indicate vacation time instead.
The grievor’s response:
We agreed and I did my best to follow accordingly. I am not sure what you want. In addition, I
have made up my time.
Based on what has been said and done, I cannot take you seriously.\\But I hope we can work
together.
Ms. Emile replied that she did not understand the message and they would proceed as she had
stated. She found this email to be rude and disrespectful.
[28] On January 16th, the grievor provided another weekly status report that was identical to
the two previous reports. Ms. Emile told the grievor that the report did not contain enough
information, reminded her about the deadline for the project, asked her to bring the test plans and
templates and, again, to create and share a work plan.
[29] That email was accompanied by a letter summarizing the emails, discussions and
documents that had taken place since December 5, 2008, advising her that there was a meeting
scheduled for January 21st and reminding her she could bring her union representation. The
grievor’s response was “I am unable to attend as I cannot address it”.
- 10 -
[30] The day after the meeting Ms. Emile sent the following email to Averyl McPherson, H.R.
Consultant:
The letter with the attachments was handed off to Flora today... Fran Monrad was by my side as
I spoke to Flora.
I went by her desk and asked her if she would come to my office and she declined.
I proceeded to tell her that I have a letter to give her and the letter states that she is suspended
from work Wednesday, January 28, and she should not come to work that day.
I told her that if she had any questions, I am at my office.
I left the letter right on her keyboard (did not use an envelope this time as the other letter I gave
her on January 16, 2009 still remains unopened.
The letter referred to in that email advised the grievor that she was being suspended for one day
because:
It has been determined that as the result of your failure to correct your insubordinate behavior
after several warnings, as well as your failure to attend the mandatory meeting mentioned above,
you have been suspended without pay for one day…
The letter went on to describe the many emails asking the grievor for updated weekly reports, the
September 5th and December 10th letters of counseling and reprimand, including the discussions
that took place about those events. It continued as follows:
Since that time you have failed to complete the work assignment due January 12, 2009, and have
refused to meet with me at my request or at scheduled meetings, (January 12, 2009). You have
also emailed me incomplete updates. (December 1, 008, January 5, 2009) and you have not
responded to my emails asking you for update details, or any other requests, (on Dec. 3, Dec. 8,
2008 and Jan.12, 2009). You also refused to attend the pre-discipline meetings to discuss these
concerns on January 6, 2009 and yesterday, January 27, 2009.
The next scheduled meeting was for February 11th and the grievor requested February 12 and 13
as vacation days. Ms. Emile approved the request but stated that she expected the grievor to
attend the meeting on the 11th as scheduled. The grievor’s response was:
I am doing my best but I am not ready, I need more time.
My last status stands as working on my PDLP, as requested, is a priority; it is coming
along.
The grievor did not attend the meeting and did not appear at her desk until 3:45 p.m. Ms. Emile
and Ms. Monrad confronted the grievor at her desk and Ms. Emile’s notes of the discussion went
like this:
Catherine: I want to meet you in my office.
Flora: I cannot come as I am feeling unwell.
Catherine: I am ordering you to meet me in my office.
Flora: I cannot come as I am feeling unwell.
Catherine: Do you understand that this is an order and you are refusing to come?
Flora: I am not refusing to come. I am unwell and cannot come to your office.
Catherine: Do you understand than\t this is an order?
Flora: Do you understand that I am not feeling well?
Catherine: You are in the office right now and we are discussing. So, I cannot understand
why you cannot see me in my office. I want to discuss the issues on the table.
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Catherine: This is insubordination, do you understand that.
Flora: This is not insubordination. I am unwell.
Catherine: This is insubordination and can lead to discipline.
Flora: I am not coming.
Catherine: You are going to hear back from me on this. Thanks
[31] Ms. Emile advised the grievor on February 13th by letter and email that she was to attend
a meeting on February 20th in her office. On the day before the meeting Ms. Emile sent a
reminder to the grievor about the meeting since she had not received an acknowledgment of her
earlier memos. The grievor’s response on the morning of the scheduled meeting was:
I am unable to attend as I cannot address it.
[32] Ms. Emile’s response was that she did not understand the grievor’s message but she
expected her to attend the meeting. Failure to do so would be an act of insubordination. She
also expressed concern about the grievor’s health, stating that if she was too unwell to attend a
meeting, perhaps she was too ill to be at work.
[33] In an email that same day, Ms. Emile advised the grievor that her new assignment was
DDC – Data Extract- Test Script. She directed the grievor to contact the Project Leader, Niven
Harrichand, with any questions, included the requirement documents needed for the assignment
and, finally, a due date of February 27, 2009. She reminded the grievor about their weekly status
meeting on Monday and asked the grievor to bring her work plan/status report to the meeting.
[34] The grievor did not attend the meeting or meet the project deadline. A meeting was
scheduled for March 5, 2009 in Mr. Ray Nakano’s office. The grievor’s response was, once
again, “I am unable to attend as I cannot address it.
[35] Ms. Emile once again expressed her confusion about the message and made it clear that
the meeting was mandatory and a failure to attend would be considered insubordination.
[36] The next day the grievor was given a three day suspension. The letter was framed in the
same format as the earlier one imposing the one day suspension. It noted her failure to attend at
meetings on February 2, 10, 11, 17, 23 and March 2, 2009. In addition, she had failed to attend a
cluster meeting on February 9, and disobeyed a direct order to meet with Ms. Emile. It noted she
had failed to meet her deadline of February 27and did not advise her manager that she could not
meet it. Finally, she was referred to her failure to attend the meeting of March 5, 2009.
The letter concluded as follows:
Your continued failure to complete your assignments is an act of insubordination and means your
work has to be reassigned to others in your unit causing workload pressures and jeopardizing unit
projects. Also, your refusal to discuss and attend meetings or respond to emails amounts to
insubordination. This behaviour must cease.
[37] On March 31st, the grievor forwarded her PDLP to Ms. Emile with the following
message:
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Please see the attached PDLP as my most current version for consideration as how it could be
and for the next period.
| am fully committed, enjoy my work, and am happy to be part of the OPS but I have concerns as
to what I may be moved and engaged in to support my results in priority areas that I am or will be
contributing to in the Cluster and Branch operational plan.
[38] Ms. Emile testified that she was surprised by the PDLP. It did not contain any specifics
about the work she had done. It was couched in very general terms and seemed to suggest that
she had performed her duties in a satisfactory manner, notwithstanding the fact that she had not
completed any assignments. For example, under Business Operational Plan Priorities, she
claimed to have prepared business requirements, ensured adherence to technical standards,
delivered design of systems through performing business analysis and participated and provided
input into the design of complex systems. It was Ms. Emile’s opinion that she had done none of
those things.
[39] Ms. Emile replied that she did not agree with the PDLP and she would discuss it at the
April 6th status meeting. The grievor did not attend the meeting and another meeting was set for
April 21, 2009. The letter referred to her failure to attend meetings on March 23 and 30 and
April 6 and 16, 2009. The meeting was rescheduled to April 21, 2009 and the grievor was
advised of the change by email, letter and electronic calendar invitation. The grievor was unable
to attend this meeting because she was going to be out of the office from 9 a.m. to 12 p.m. at a
medical appointment. Ms. Emile rescheduled the meeting for the afternoon and repeated her
concerns about the length of these appointments, the fact they had not been preauthorized and
that she had not done any overtime to allow her to make up her time. She asked the grievor to
amend the WIN to indicate vacation rather than lieu time. Otherwise, Ms. Emile would consider
it unauthorized leave and deduct the time from her pay.
[40] The grievor did not attend the meeting on April 21st and, as a result was given a five day
suspension. The letter of suspension referred to her previous discipline for her failure to attend
meetings and complete assignments these refusals to discuss and attend meetings were
continuing acts of insubordination. When Ms. Emile handed the letter to the grievor, she became
agitated and said “What do you want? All you do is insult and threaten me with insubordination
and termination.” Ms. Emile described her tone of voice as loud and argumentative.
[41] On May 25th Ms. Emile sent several emails to the grievor. The first expressed
disappointment about her failure to attend weekly status meetings. She advised the grievor that
since she had not attended these meetings, Ms. Emile would be forced to discuss her
insubordinate behaviour and PDLP by email. Usually the employee completes a PDLP and
discusses it with her supervisor. The result is a mutually agreeable contract between the
employee and the supervisor. Although the supervisor can complete a PDLP for an employee, it
defeats the purpose of the exercise.
[42] In the second one Ms. Emile attached a PDLP that she felt was a better reflection of the
grievor’s performance. In that PDLP Ms. Emile noted that the grievor had failed to complete
any assignments, refused to attend weekly and Cluster meetings and had acted in an
insubordinate manner which had not been corrected by discipline.
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[43] In the third email, Ms. Emile advised the grievor of her next project, MTO/BCV, which
was to be lead by Niven Harrichand and due on June 22, 2009. Attached were the details of the
assignment.
[44] On May 27th, the grievor sent Ms. Emile a message advising her that she would be out of
the office between 9 a.m. and 12 p.m. for a medical appointment. She also stated “I have made
up the time. Ms. Emile’s response was that she could not reasonably make up the time and, in
any event, the time had not been requested nor authorized. The grievor was told to indicate this
time in WIN as vacation.
[45] On June 1, 2009 Ms. Emile expressed disappointment that the grievor had missed another
weekly status meeting and rescheduled it to June 3rd. The purpose of the meeting was to discuss
her PDLP before Ms. Emile filed it and the work plan for her assignment.
[46] On June 10, 2009 the grievor sent Ms. Emile an email to tell her that she would be out of
the office between 9 a.m and 12 p.m. for a medical appointment. Again, she stated “I have made
up the time”. Ms. Emile’s response was identical to the previous memo about medical
appointments; that is the time was not requested or authorized, the appointment was too long and
the grievor did not have the overtime to make up those hours. Ms. Emile stated she was
disappointed and confused about the grievor’s refusal to follow her instructions.
[47] Mr. Nakano scheduled a meeting for June 12, 2009. The grievor did not attend and she
was given an eight day suspension. The reasons set out in the letter of discipline were the same
as the ones in the previous disciplines: namely, failure to attend meetings or complete
assignments. The letter was given to the grievor on June 15th by Ms. Emile. The grievor told
Ms. Emile that she would not meet with her until she “cease and desist”. Because the grievor
had not opened letters in the past, Ms. Emile told her the dates of the suspension and the return
date by email. Ms. Emile testified that in her opinion an eight day suspension was reasonable
given the fact that none of the earlier ones had caused the grievor to correct her behaviour.
[48] On July 13, 2009, the grievor advised Ms. Emile by email that she would be out of the
office from 1:00 p.m. to 5:00 p.m. the following day. She added “I have made up the time”. Ms.
Emile reiterated her previous objections. On that same day Ms. Emile communicated her
concerns about the deadline for her current project. She pointed out that she had not submitted
any weekly reports or attended any meetings to discuss the project.
[49] Three days later the grievor sent the following email to Ms. Emile:
I will be way or out of the office the following days:
July 20th-21st vacation
July 27th Medical Appointment 1:00 p.m. to 5:00 p.m.
I have made up my time
August 10th – 14th vacation
August 19th vacation
August 24th-25th vacation
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If the above changes, I will inform you as soon as possible
[50] Ms. Emile’s comments were that she had been told repeatedly that she could not make up
time without prior authorization and that four hours was too long for a medical appointment.
[51] The next communication between them occurred on July 23, 2009. Ms. Emile stated that
although she had extended the deadline on her assignment to July 17th, the grievor did not meet
the new deadline. She did not produce one status report. A meeting was scheduled for July 30,
2009, which the grievor did not attend. The disciplinary letter that followed on August 6th
advised the grievor of her fifteen day suspension. The reasons given were the same as in the
previous suspensions but included her refusal to follow Ms. Emile’s instructions regarding leaves
and her persistence in taking two unauthorized leaves. When Ms. Emile gave this letter to the
grievor, she told Ms. Emile that she “was not abandoning her job” and she would be in to work
the next day. When Ms. Emile said she would meet with the grievor to discuss these matters, the
grievor said “Unless you cease and desist I will not come to your office. I will come to work
tomorrow.
[52] On September 3, 2009 Ms. Emile sent an email to the grievor stating that, since she had
not attended the weekly status meeting on August 31st, she was forwarding the grievor’s next
assignment entitled Define Test Data from Business Requirements for DDC2 Project. She
included the details of project lead and due date of September 21, 2009. She also reminded the
grievor that she was expected to provide weekly status reports and attend weekly meetings to
discuss the progress. On September 15th, Ms. Emile sent an email reminding the grievor of the
due date and expressing her disappointment that the grievor had not attended any weekly status
meeting.
[53] The grievor did not attend the next status meeting and did not complete her assignment.
A meeting was scheduled for October 7th to discuss these issues but the day before that meeting
the grievor advised Ms. Emile that she had a medical appointment on that day and would be out
of the office from 9:00 a.m. to 12:00 p.m. Ms. Emile responded by expressing her
disappointment but stating that the meeting would proceed whether she attended or not. She also
told the grievor that it was critical they meet. The grievor did not attend that meeting.
[54] As a result the grievor was suspended for 20 days for failing to attend meetings, failing to
complete assignments and taking unauthorized leaves without prior consent.
[55] In December Ms. Emile communicated by email concerning the details of her new
assignment, Design of Test Strips for Vision Registration-Parent Notification Initiative Project.
The deadline was December 28, 2009. Ms. Emile was clear that she expected weekly status
reports every Friday and told her she would be on vacation but could contact Petra Wilkes during
her absence. The grievor did not provide weekly reports, attend status meetings or complete the
project by the target date.
[56] Another meeting was scheduled for January 11, 2010. The grievor’s response was a
confusing “I cannot address this as I have no knowledge OT it but I hope we can work together”.
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She also said she was arranging for union representation and would let Ms. Emile know when
she had made arrangements. Ms. Emile postponed the meeting for one day to allow her time to
prepare. The grievor told Ms. Emile that she could be available between 10:30 a.m. and 12:30
p.m. on January 12th, between 11:00 a.m. and 12:00p.m. On January 13th or from 10:30 onwards
on January 15th.
[57] The grievor did attend the meeting on January 13, 2010. Also in attendance was Jennifer
Markle-Hoskin, union representative, Terrence Robinson, HR, Mr. Nakano and Ms. Emile. The
grievor was asked several times why she had not completed her assignments, why she had not let
Ms. Emile know she would be late, why she had not prepared weekly status reports or attend
weekly status meetings. She claimed to have no knowledge of the most recent assignment. She
repeated her request that Ms. Emile cease and desist. In response to a direct question from Mr.
Nakano about her emails, the grievor admitted that she did not have time to read them all. Ms.
Emile testified that it was an essential feature of her job to keep current with electronic
communication. There was no excuse for not reading her emails promptly.
[58] The grievor told them that there were false claims of insubordination, that the Employer
was “bent” on termination and asked why she should waste people’s time just so the Employer
can fire her.
[59] What followed next was the letter of termination set out previously. Ms. Emile testified
that she, Mr. Nakano, an HR consultant from MGS and Mr. Ray Thompson, the Chief
Information Officer met to discuss their next move. It was agreed that the grievor had failed to
correct her behaviour despite numerous escalating disciplines and that she had persisted in her
insubordinate and disrespectful attitude. They decided that their only recourse was to terminate
her services.
[60] In cross-examination Ms. Emile was asked whether she made inquiries about the
grievor’s medical appointments. She was asked if she followed up with her requests for time off
or whether she suggested and IME or contacted the Employee Assistance Program for her. Her
response was that she made numerous efforts to talk to the grievor about her medical and
personal issues to no avail. She said she had given the grievor several invitations to speak with
her but the grievor refused. She also said that it was up to the employee to take the initiative in
these matters, not the Employer.
[61] Mr. Ray Nakano was involved in the disciplinary actions taken with the grievor. Ms.
Emile reported to him. He had very little daily contact with the employees in the department but
was kept informed through mandatory monthly meetings, including he EAP counsellors, during
which they discussed matters of interest. It was in the summer of 2008 that he was made aware
of Ms. Emile’s concerns about the grievor’s conduct; i.e., refusing to attend meetings, not
completing assignments, refusing to give reasons for either, taking unauthorized leaves, taking
too long for medical appointments. He considered her previous disciplinary record, her refusal
to correct her behaviour and her continuing conduct despite efforts to assist her. He also
considered the impact of her actions on the workplace. Every time the grievor failed to complete
a project, another employee was forced to take over her responsibilities. In addition, the
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grievor’s open disrespect for Ms. Emile was disruptive and destructive to the work environment.
He concluded that he had no other option but to discharge her.
[62] The grievor’s testimony is that her problems at work began shortly after Ms. Emile took
over as her supervisor. Initially the grievor would greet her, but Ms. Emile’s responses were
unpredictable. One day she would return the greeting, another day she would either ignore the
grievor or scowl at her in an angry manner. The grievor assumed she wanted to be alone and
stopped greeting her. She assumed Ms. Emile knew what she was doing.
[63] She had mentioned to Ms. Emile that there were issues she would like to talk about but
Ms. Emile was never around. As a result, Ms. Emile began asking for weekly status reports.
Before that the grievor would submit one every three months, as did others in the department.
[64] Another explanation given by the grievor involved her return to work after the strike in
2008. Her previous job duties were removed and she was given whatever assignments were left
over from other employee’s work projects. When she was hired she had extensive access to the
computers to allow her to do her work but after the strike she lost her full access and needed an
ID and a password to sign on to a program. She discussed this issue later she stated that she did
not recall any request for weekly status reports and she did not recall being assigned any projects
by Ms. Emile. She complained to Ms. Emile about her access problems but did not recall
whether they were resolved. She never regained full access to the computer.
[65] Another reason for her difficulties at work was her request for family medical leave to
care for her mother. Most of the responsibility for her mother’s care fell to her and the stress of
the situation caused her to be vulnerable to her own medical problems. She was exhausted and at
times was too sick to visit her mother. She told Ms. Emile about her mother’s condition because
she wanted to keep them up to date and because she was hoping for some understanding. Her
mother passed away in November of 2008. Her mother had been a very active woman who took
care of the family and her passing was a significant event in the grievor’s life. When she told
Ms. Emile and asked for leave, she felt that Ms. Emile was angry at her for wanting a leave. She
glared at the grievor and made faces at her.
[66] At the beginning of their relationship in 2007 the grievor stopped talking to Ms. Emile.
Most of the time she left the grievor alone but in 2008 she began making faces at her. When
asked about whether these events had an impact on her work, she replied that she did not know.
[67] She recalled receiving two letters of counseling and being told not to report to work
sometime in August by Ms. Emile. She did not remember whether Ms. Emile told her the reason
for the unpaid time off. When asked why she was given these days off, she stated it was for the
usual reasons; namely, for being on strike, for filing grievances, for needing family medical
leave. She was being harassed for garnishments of her wages; there was talk of lay-offs and
McGuinty days. She was being singled out for these reasons. More significantly, these acts did
not occur until after she applied for family leave.
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[68] It was the grievor’s view that she was being intentionally isolated from her co-workers.
She was given no work and despite her requests to discuss these issues, especially her problems
with access to the computer; they refused to meet with her. She felt it was clear that Ms. Emile
wanted to get rid of her.
[69] She was directed to the memo of December 8, 2008, in which she had asked for
discretionary unpaid leave for personal reasons. She did not recall the email or the personal
reasons that necessitated the leave. It might have been related to her own health issues or to her
mother’s passing.
[70] The grievor’s memory was problematic. She did not recall Ms. Emile’s request for
weekly status reports. She did not recall receiving or reading letters of the first two suspensions.
She was asked whether, during the discussion of the unpaid leaves, Ms. Emile referred to them
as suspensions. The grievor did not recall her saying that.
[71] Her evidence was that she did not always read her emails and only made sure to read
those that were sent to her personally. She did not recall the email of January 5, 2009 telling Ms.
Emile that she could not address Ms. Emile’s concerns because the work had been reassigned.
[72] She did not recall Ms. Emile talking to her about the unpaid time off for medical
appointments. Her answer to questions about this issue was that she always gave Ms. Emile
notice of the appointments and always made up the time. She testified that when she read the
email from Ms. Emile about the five day suspension, she felt insulted and threatened. However,
she did not recall any discussion with Ms. Emile about the memo or telling her how she felt. She
did not recall telling Ms. Emile to cease and desist.
[73] She did complain to Human Resources as far back as 2002 about what she described as
her “odd situation”. By that she meant the fact that after the strike she was transferred to a new
job and her full access to the computer became restricted.
[74] Her memory about the discharge meeting was equally vague. She recalled that they did
not talk about much except her medical appointments. She was pretty sure she had asked for
help. She told them at the meeting that she did not have time to read all her emails but was
terminated before she had an opportunity to read them. She also needed more time to complete
her assignments. It had been a long time since she did that kind of work and she needed help in
preparing a schedule.
[75] She stated that the Employer did not try her in another position or assigned her to another
supervisor. She had enjoyed her work before the strike and felt she could return as a productive
employee.
[76] In cross-examination she was directed to Ms. Emile’s emails requesting weekly status
reports and meetings. She denied that was their purpose and, further, stated that “I| am not sure –
I was not involved in this”. In response to a question about her comment she explained she
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meant the assignment at the time. She was asked about meetings with Ms. Emile and Ms. Sajfert
about these issues. She stated that, although she had heard of Ms. Sajfert, she had never worked
with her. When she worked under another supervisor she said she might have submitted weekly
status reports but probably not since she wanted to lay low. She said it was up to the manager to
follow up on these matters. If she did not hear from her manager, she laid low. When asked
directly whether Ms. Emile was asking for weekly status reports, she again said she did not know
because she was not involved.
[77] She was directed to the various emails from Ms. Emile which set out details of her new
assignments. The grievor stated she did not know about them and maintained that she had not
been assigned work by Ms. Emile. Her answer to these emails was either “I don’t know” or “I
was not involved” or “I was not engaged”.
[78] When it was said that the emails seem to show that Ms. Emile made attempts to meet
with the grievor, she said she did not remember refusing to meet. When it was put to her that she
must have known about the assignment in January of 2009, the grievor stated she would not have
communicated through email and suggested that anyone could have printed those emails.
[79] When it was said she did not attend the meetings with Ms. Emile, her response was
always “I don’t know” and “I was not invited”.
[80] The grievor was asked about the issue of access. She explained that she once had the
highest access possible but, after the strike, it was limited. She did bring up the issue with
management but, since they had taken her access, she did not expect much assistance. Until Ms.
Emile became her supervisor, it was not a problem. Her previous manager would give her
whatever access she needed. But at some point the management wanted more personal
information about the employees and she objected. The grievor filed a grievance about this but
was not successful at arbitration.
[81] It was pointed out to her that her manager was quite clear about the work expected on her
assignments. Her response was “what assignment”. She was directed to emails setting out the
particulars of her assignments and asked whether, despite her claims to the contrary, that Ms.
Emile was trying to engage her in the work of the department. She replied that she had not seen
this email.
[82] She denied being spoken to about her medical appointments. When referred to Ms.
Emile’s comments about the length of the appointments, the fact they were not authorized and
that she could not make up the time with lieu time, the grievor said that she was doing what she
had done for 10 years and, as far as she knew, that was still the proper way to do it. She asserted
that Ms. Emile would not talk to her at the time. She became upset and stated that she was being
accused of something. She maintained that no one had spoken to her about these medical
appointments, ever. She did not believe the emails.
[83] In reply, Ms. Emile declared that she had never made faces at the grievor. She stated that
she was a professional and a charge like that questions her integrity.
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SUBMISSIONS OF THE PARTIES
[84] Ms. Cathy Phan, counsel for the Employer, took the position that the two grievances filed
by the grievor should be dismissed on the basis of the documentary evidence. It shows a pattern
of insubordination and defiance that warranted all of the discipline she received. Her refusal to
attend another meeting on October 8th and failure to complete the assignment of December 7,
2009 were culminating events that were deserving of termination.
[85] It was submitted that Employer did not jump to discipline. The grievor received two
letters of counseling with a clear warning that discipline would follow it her behavior did not
improve. It did not and she continued to refuse to attend meetings, submit weekly status reports
and persisted in taking three hour medical appointments. She was given a letter of reprimand.
That was followed by another letter of reprimand and a one day suspension. Her behaviour did
not improve, even though she had been warned that her continued behaviour could result in
termination.
[86] The documentary evidence shows that she continued to refuse to attend meetings, submit
weekly status reports, complete her assignments and take three hour leaves for medical
appointments. The only explanation offered by the grievor was that she did not read all of her
emails and did not know she had been assigned any projects. Her only other response to
questions was “no comment”. She had received one, three, five, eight, fifteen and twenty day
suspensions and the only recourse left to the Employer was termination.
[87] It was asserted by the Employer that there is no evidence before the Board that the
grievor has acknowledged her errors or will correct her behaviour in the future. From the first
letter of counseling to her termination, she made no efforts to correct her conduct.
[88] The Employer also stated there are no mitigating factors to persuade the Board to
reinstate the grievor. From July of 2008 to February of 2010 she was disciplined numerous
times for the same behaviour. She engaged in a campaign of defiance intended to undermine the
authority of her supervisor. She was openly insubordinate in the open area of the office. It asks
that the grievance be dismissed.
[89] In the alternative, the Employer submitted, if the Board were to consider reinstating the
grievor, it should consider the extraordinary remedy of damages in lieu of reinstatement. In the
instant case, the evidence was replete with examples of repeated acts of defiance. The Employer
has been very patient and has exhausted all alternative avenues to help the grievor correct her
behaviour. The grievor is not a team player and Ms. Emile testified that her co-workers and
Team Leaders have stated that they did not want to work with her.
[90] There is clearly no trust between the grievor and the Employer. The grievor has accused
the Employer of discriminating against her and of lying in order to get rid of her. She accused
Ms. Emile of making faces at her. Her manner and attitude at the hearing was evasive, and
defensive. She refused to read documents put to her in her evidence-in-chief and cross-
examination. If she was returned to work there is a risk that the animosity of her co-workers will
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escalate and develop into a poisoned work environment. The grievor has been openly
contemptuous of Ms. Emile which weighed heavily on her. She testified it was hard to work
with someone who has no respect for you.
[91] Mr. Ryan White, counsel for the Union, began his submissions by reviewing the
evidence. The grievor had worked for the Employer for ten years and for the first seven was a
satisfactory employee. There is nothing in her record to suggest otherwise. Her problems did
not arise until August of 2009. How did a seven year employee with a clean work record find
herself on a path to termination? The Board heard evidence about the difficult time the grievor
was having personally. She was the major caregiver during her mother’s illness up to her death.
At the same time she began to feel she was being singled out by Ms. Emile. She perceived their
relationship as problematic. The events leading to this situation began in 2008 and escalated
quickly. The Employer made no efforts to deal with the grievor’s real issues just began papering
her file with discipline.
[92] The Union submitted that this is a case of unsatisfactory work performance that should
have been dealt with in a remedial manner rather than disciplinary. If the Board should find
there was culpable conduct, there are significant mitigating factors to suggest the penalties given
the grievor were not appropriate.
[93] Dealing with the issue of insubordination, the Union conceded that the orders to the
grievor were given by a person in authority and that the assignments were not completed and she
did not attend mandatory meetings. But it contends that the orders were not understood by the
grievor. Her instructions were given by emails and the grievor admitted that she did not read all
of her emails. There is no evidence that the grievor received and read these emails and was
aware of the content of them. The Employer argued that but, the Union asserts, that reinforces
its position that the grievor was unable to meet the standards of her job.
[94] It relied on the principles regarding non-culpable termination for performance issues set
out in Re Maritime Telegraph and Telephone Co. Ltd. and International Brotherhood of
Electrical Workers, Local 1030 (1984), 16 L.A.C. (3d) 318 (Cotter). In that case the Board
found that the grievor had been terminated for an innocent inability to meet the standards of the
job. Therefore, a disciplinary response was inappropriate since issues of deterrence, progressive
discipline, culminating incident and just cause are not the accepted manner of treatment.
However, it found that the employer had a significant obligation to consider the following
factors:
Has the employer in objective terms the nature of the work to be performed and the standard
expected.
Has the employer established that the grievor was made aware of the standard?
Has the employer established that the grievor’s work performance was below that standard?
Did the employer provide supervisory direction to the employee to assist him to achieve the
standard?
Did the employer take reasonable steps to move the employee into other work within the
bargaining unit that was or might have been within his qualifications and competence?
Did the employer bring home to the grievor the fact that the performance was unsatisfactory and
that dismissal might result from a continued failure or inability to meet the standard?
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Did the employer afford the grievor a proper opportunity to challenge its assessment of his work
by grievance?
Does the evidence support the inference of a continuing inability on the part of the employee to
meet the standard?
[95] The Union also asserted that the Employer did not make any efforts to move the grievor
to another work situation. Clearly she and Ms. Emile were not getting along and the tension
between them was growing. The Employer had a duty to try to assist the grievor to become a
satisfactory employee again and that was not possible as long as she was reporting to Ms. Emile.
The Employer also had the authority to offer the grievor the option of a lay-off with the right to
exercise her seniority rights providing a vacancy exists, on another job that the employee is
capable of performing.
[96] It was said that the Board heard evidence about the stress the grievor was experiencing at
the time. She was dealing with her mother’s illness and death as well as her work concerns. She
was also stressed because of her perception of the relationship between her and Ms. Emile and
the harassment she was feeling. Whether it actually existed or not, she believed it did and that
added to her emotional burdens. She was not advised to seek help through the EAP until her pre-
termination meeting. She might have benefited from their services. There were other avenues
open to the Employer to help the grievor. It could have asked for an Independent Medical
Examination to ascertain her state of health.
[97] With respect to the Employer’s submissions regarding damages in lieu of reinstatement,
this Board should not consider such an extraordinary remedy given that there are options the
employer could have considered short of termination. This Board should have no difficulty
fashioning a remedy that will satisfy those obligations. The Employer has stated the grievor
showed no remorse or took responsibility for her actions. The grievor says she did not receive
the emails that were said to contain the details of her assignments and the expectations of the
Employer. Assuming she is correct, there would be no reason to express remorse or claim
responsibility.
[98] In reply, the Employer stated there is no medical evidence to substantiate her claim that
she was so sick it had an impact on her ability to do her work. In fact, when asked that question
directly, she replied that she did not know.
[99] With respect to her position that she did not receive the emails about her work
assignments, status reports and status meeting or her medical appointments, that is simply not
credible. Even if she did not receive all of them, she did receive enough to realize Ms. Emile had
some concerns. As well, she was given hand delivered copies of some and had direct face to
face meetings with Ms. Emile. She cannot claim she did not know what was happening.
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REASONS FOR DECISION
[100] The grievor was terminated after more than seven years of service. The reasons given for
the termination are set out in the letter of termination as follows:
1. your continued failure to attend scheduled meetings with your manager including your weekly
status meetings on November 23, November 30 and December 7, 2009
2. your failure to inform your manager that you would not attend these meetings and to provide an
explanation as to why you did not attend.
3. your failure to complete the work assignment due on Tuesday, December 29, 2009
4. Your failure to produce any of the requested status reports related to the above mentioned
assignment or provides a satisfactory explanation as to why you were unable to complete the
assignment.
[101] That letter referred to a series of disciplinary steps taken by the Employer between
October of 2009 and her termination on February of 2010. During that period of time she
received two letters of counseling, two letters of reprimand, one, three, five, eight, fifteen and
twenty day suspensions and, finally, a termination. The reasons for the disciplines were
essentially the same throughout her entire progressive discipline history.
[102] Ms. Emile was the grievor’s immediate supervisor and the author of the emails, letters
and memos the grievor received. She testified at the hearing and her evidence was consistent
with the documents admitted during the proceedings. For that reason I have reproduced many of
the documents because, in my view, they are reflective and illustrative of the relationship
between the grievor and Ms. Emile and explain, to a large extent, the Employer’s response to the
grievor’s conduct.
[103] Her problems began as far back as July of 2008 when she was given the Adoption
Disclosure project and Ms. Emile asked for her PDLP. At the same time the Project Manager
wrote to the grievor about the completion schedule for the project. The grievor did not respond
to either and in August Ms. Emile set up a meeting to discuss the project and renewed her
request for her PDLP. The grievor’s response to this email became her standard response to the
numerous requests and orders to meet and/or complete her PDLP. Her responses were that she
was unaware of any work assignment, she did not have access and she could not attend the
meeting because she had a doctor’s appointment.
[104] In September of 2008 the grievor was given two letters of counseling concerning her
failure to attend meetings and her refusal to discuss or complete assignments. She was advised
for the first time that her conduct was insubordinate and could result in discipline.
[105] The Union has taken the position that the grievor’s actions should not have been treated
as disciplinary but should have been seen as the actions of a troubled employee who could not
meet the expectations of the job. It says the Employer should have considered her conduct
within the framework of the principles set out in the Maritime case (supra).
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[106] Dealing with that issue first, I disagree. While there may be some validity to this
argument, the evidence does not support such a finding. Once again, these are the factors to be
considered:
Has the employer in objective terms the nature of the work to be performed and the
standard expected.
Has the employer established that the grievor was made aware of the standard? Has the
employer established that the grievor’s work performance was below that standard?
Did the employer provide supervisory direction to the employee to assist him to achieve
the standard?
Did the employer take reasonable steps to move the employee into other work within the
bargaining unit that was or might have been within his qualifications and competence?
Did the employer bring home to the grievor the fact that the performance was
unsatisfactory and that dismissal might result from a continued failure or inability to meet
the standard?
Did the employer afford the grievor a proper opportunity to challenge its assessment of
his work by grievance?
Does the evidence support the inference of a continuing inability on the part of the
employee to meet the standard?
[107] There can be no doubt that the Employer objectively established the standards to be met.
Her assignments were, according to Ms. Emile, within the duties of her position and her level of
competence and seniority. Ms. Emile testified that all of the projects the grievor had been
assigned were within her field of expertise and knowledge. There is also no doubt that the
Employer has proven it clearly communicated those standards to the grievor. Even if she had
not, the grievor was invited on numerous occasions to contact Ms. Emile or the project leader for
assistance and she did not. Given that she did not provide status reports on her progress or
complete any projects, the only conclusion must be that she did not or could not meet the
standards. The Employer advised the grievor numerous times that her performance was
unsatisfactory and that discipline up to and including termination was a possibility.
[108] That leaves two questions for the Board: did the Employer take reasonable steps to move
the grievor to another position that might have been within her qualifications and competence
and has the evidence shown a continuing inability to meet the standard. The answer to those
questions is found in the conclusions of the Board with respect to the whether the discipline
imposed was reasonable.
[109] The prime reason for the Employer’s decision to discipline the grievor is insubordination.
While it has been dealt with as two or three distinct scenarios, the fact is the grievor actively
and/or passively ignored or defied the Employer’s instructions in a consistent and persistent
manner. The evidence is contained in her own email messages to Ms. Emile.
[110] First, the grievor refused to attend scheduled mandatory status and cluster meetings.
Whenever she was advised about a meeting, she claimed to have a doctor’s appointment and
could not attend. When the meetings were rescheduled to accommodate her appointments, she
still did not attend. She was given warnings repeatedly that a failure to attend would be
considered insubordination and be subject to discipline and still she would not attend. For a
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period of time she ignored the emails entirely but, after a while began offering excuses. When
asked to attend a meeting to discuss the BCV project, her response was that “I cannot address
this as you reassigned to others”. Another response to a weekly status meeting was “there is no
need and you have my weekly status”. When Ms. Emile told the grievor that she had to adjust
her WIN to reflect vacation rather than paid leave, the grievor said she did not know what Ms.
Emile wanted and then said “I cannot take you seriously”. In a face to face conversation
between the grievor and Ms. Emile, the grievor was given a direct order to come to Ms. Emile’s
office, to which she insisted that she was too ill to comply.
[111] Another issue involved her failure to provide weekly status reports. The few that she did
submit were identical and, in Ms. Elise’s view, did not tell anything about the work she was
doing. They were hardly weekly reports on her progress or difficulties on a project. Similarly,
she refused to complete a PGLP. She ignored Ms. Emile for some time but finally told her that
she did not think the PDLP was a valid monitoring tool since it had to conform to the opinion of
management. Ultimately, she told Ms. Emile to complete it for her.
[112] Equally telling was her response to repeated admonishments concerning the duration,
approval and characterization of her medical appointments. Again, despite clear warnings about
possible discipline, the grievor disregarded her supervisor’s orders and continued to take
whatever time off she wanted. The grievor stated that was the way it had always been done and
she did not intend changing her practice.
[113] It is settled law that establishing insubordination requires proof that the employee was a
given a clear and direct order, that the order was given by someone in authority and that it was
ignored or denied. In the instant case, there were several instances of direction, instruction and
orders that the grievor was given by email, letter and direct communication. These orders were
not followed. A review of the documentary evidence confirms the Employer has satisfied that
prong of the test. The expectations and deadlines were clear. The orders or directions were
given by her immediate supervisor and the Head of the department. The second prong of the test
has been met. Finally, the grievor’s own responses to these orders are replete with examples of
her refusal to do what she was told. She was disciplined numerous times for her refusal to attend
meetings, provide weekly status reports and failing to complete assignments.
[114] I am satisfied that all of the elements necessary to support the Employer’s claim of
insubordination have been established. The Union argues that the grievor’s conduct was due to
the stress she was under at the time. It points to the burden the grievor had to bear during her
mother’s illness and passing. She herself was experiencing health problems that necessitated
numerous medical appointments. Adding to those issues she felt she was being harassed at work
by Ms. Emile. The accumulation of those factors resulted in her inability to deal with projects
and deadlines so that she ignored, to a large extent, her supervisor’s emails. It suggests that if
that was not an explanation, it is a mitigating factor this Board should consider when assessing
the appropriate penalty.
[115] While I accept the grievor’s evidence about the stress she was dealing with at the time her
own evidence was that she did not know whether it had an effect on her work. She did not
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provide any medical evidence to demonstrate her state of health or the effect it had on her work
performance. It is not enough for her to simply claim stress as an explanation for her conduct.
She has to show that there is medical proof to support her position. There is no evidence before
me that would allow me accept her statement alone as proof of its effect on her behavior. She
did not discuss these problems with her Employer. It cannot be said it should have considered
these issues and taken steps to assist her when it was unaware there were any problems. There is
an obligation on an employee to advise the employer of any factors that affect her performance,
especially if that employee has been warned as often as this grievor about the consequences of
continued misconduct. Since she did not, she bears the burden of her inaction.
[116] Additionally, there is a tone to her responses to Ms. Emile that suggests that she knew she
was refusing to obey instructions. In the first instance she cannot claim to be unaware of
assignments when her own responses indicate otherwise. The grievor provided weekly status
reports about first assignment, albeit unsatisfactory in Ms. Emile’s view, in July of 2008.
Nevertheless, she stated, in response to Ms. Emile’s email, that she did not know of any work
she had to complete and, in any event, she did not have access. In that memo was the first
example of her attempt to avoid a meeting by scheduling a medical appointment. The grievor
was also very clear about her opinion of PDLP’s and refused to complete one despite repeated
requests. On another occasion she told Ms. Emile there was no need to meet since she had
submitted her weekly report. Her responses are not simply examples of a disinterest in her work
but rather an intentional disregard for Ms. Emile’s authority. The conversation between them on
February 11, 2009 shows open defiance to Ms. Emile’s authority in a public area of the office.
[117] It is this intentional disregard and disrespect of Ms. Emile and her position that leads me
to the conclusion that these grievances must be dismissed. This case is a classic example of the
doctrine of progressive discipline that, unfortunately, had no effect on the grievor’s attitude and
behavior. She was given many opportunities to correct her behavior but did not. She was
warned many times that discipline, including termination, was a possible consequence of her
continued insubordination. Her disrespect of Ms. Emile and her position of authority are
obvious. I am convinced that, if the grievor were reinstated, her opinion and treatment of Ms.
Emile would persist. I believe the Employer had no alternative in the circumstances but to
discharge her for cause.
[118] The Union has asked that I consider damages in lieu of reinstatement. Given my ruling
there is no need for me to address this issue.
[119] For the reasons set out above, the grievance is dismissed.
Dated at Toronto this 23rd day of January 2012.
Loretta Mikus, Vice-Chair