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HomeMy WebLinkAbout1976-0028.Simunovic.78-03-2028176 a 46177 CROWN EMPLOYEES 416/598 0688 Suite 2ldO GRIEVANCE SETTLEMENT 180 Dun&s Street west BOARD TORONTO, Ontario MSG lZ8 IN THE MATTER OF AN ARBITRATION -I"' Under The Between: Before: For the Grievor: For the Employer: CROWN EMPLOYEES COLLECTIVE BARGA~INING ACT Before THE GRIEVANCE SETTLEMENT BOARD . Mr. A. Simunovic And The Ministry of Natural Resources K. P. Swan Vice-Chairman E. J. Orsini Member A. Riseley Member Mr. Paul Cavalluzzo, Golden-Levinson 101 Richmond St. West, Suite 1908 Toronto, Ontario Mr. C. G. Riggs Hicks, Morley, Hamilton P.O. Box 371, Royal Trust Tower Toronto, Ontario Hearing: November l&h, 1977; February 3rd & 4th, 1978 Suite 405, 77 Bloor St~.'W., Toronto, Ontario -2- The grievor has brought four separate but related grievances before~,the Board for adjudication, concerning: his suspension for two days from January 2,~1976, which was imposed following investigation on February 12, 1976; his suspension for a period from September 2 to September 30, inclusive, 1976, which was imposed following investi- gation on September 24, 1976; his suspension from November 22, 1976 for twenty days, which was imposed following investigation on November 18, 1976; and his discharge, effective February 18, 1977, from the service of the Employer with the Ministry of Natural Resources. The train of events which leads to this unfortunate conclusion appears to have begun in October, 1975, although evidence was also adduced of a past record which, in the Employe,&: :ubmission, would bolster its case for discharge in light of all the circumstances. We cannot, of course, deal with the past record until we have determined that, on the occasion in question, there existed some grounds for dis- cipline: see Re Moss, 62/76. The grievor was first hired by the Ministry in 1957, and has served in a number of locations across the Province since that date. At all material times, he was employed as a professional forester, classified Forester ZA, in the Thunder Bay District of the North Central Region of the Ministry's operations. He had begun there.in 1971 as a _,; Unit Forester, in charge of Forest Management'for a specific area. He was subsequently placed, in 1973, in charge of woodlands management advice to private landowners under a woodlands improvement program. When that program was phased out, he became, by 1975, the "Special Projects Forester" for the district, and was assigned a series of projects which did not involve direct forest management work. There is some evidence that he was assigned this work because of dissatisfaction with his performance as a Unit Forester, and some evidence that he considered the work degrading and beneath someone of his qualifications and experience. Although these factors may have influenced the subsequent conduct of the persons involved, they do not directly bear on the matter before us. The grievor was assigned to do a "cull survey"~early in 1975, a study which was considered to be important to forest management in the district, ,There is conflicting evidence as to whether or not this project was properly carried out, but that evidence clearly indicates' that soma difficulty was encountered in getting the study under way. Given the vagueness of the evidence, however, it is better to pass over this incident as well in assessing the strength of the Employer's case against the grievor. By letter of October 28, 1975, (Exhibit 2) the grievor was assigned, by Mr. R. G. Klein, the Forest Management-Supervisor for the District, to conduct a study of the relationship, if any, between the size of areas "clear cut"- completely or substantially denuded of tree growth - and the subsequent rate of regeneration and growth of reforest- ation plantings. It appears that the Regional Forester, Mr. Flowers, was concerned to determine whether larger clear cut areas.were less likely to show successful regeneration or not, and that the task of carrying out studies on this question was referred to the Districts. -4- The grievor undertook this task reluctantly at best. He indicated in evidence that he considered the work to be beneath someone of his qualifications and experience, and that he also cons- idered, from the beginning, that the study could not possibly be successfully completed. He apparently gave this opinion to Mr. Klein orally on a number of occasions , and finally reduced it to writing on December 11, 1975 (Exhibit 3): I would suggest again that to determine the degree of influence of the size of clearcut on the rate of growth and survival will require the effort of carrying through especially designed projects.whereby all contributing interrelated factors cm properly,be assessed. To isolate one single influence such as the size of clearcut and to determine its importance, the soil characteristics climate, topography, slope aspect, availability of seed source, quality of planting and seeding programs, all of these will have to be taken into account. The grievor's objection, basically, was that any number of factors apart from the size of the clear-cut area can influence regen- eration rates, and .that isolation of the relationship between clear-cut size and regenerative success would require a special study which could provide controls for each of the,other factors. Only when the influence of the other factors could be controlled could the clear-cut size/ regeneration relationship be satisfactorily examined. The grievor did not receive an answer to this memorandum, and eventually he contacted the Regional Director, Mr. R.A. Baxter, and indicated that he had been left with nothing to do. Mr. Baxter referred -5- the matter to Mr. J. Hamilton, the District Manager, who met with the grievor on December 29, 1975 and discussed the problem. As a result of the discussion a further meeting was convened that day with Mr. Klein also in attendance. The burden of the discussion was that Mr. Klein did not consider the December 11 memorandum sufficient, nor did he approve of the way in which the memorandum was produced. His criticisms were that it was superficial, that it had proceeded on a faulty assumption, and that it was not responsive to the assigned task. Mr. Hamilton called another meeting for the following day, December 30, 1975. This meeting led directly to the first suspension complained of, and the'details of that meeting are therefore critical. Shortly before the meeting began, Mr. Hamilton had a letter (Exhibit 13) delivered to the grievor by hand. This letter set out certain criticisms of the grievor's work, and also includes the following statements: It seems *hat after submitting this report to your supervisor and in full knowledge that he did not have time to study your report you ceased work on your assigned task without the approval of your supervisor to do so. This unauthorized action by you has resulted in a considerable loss of nluable time to the Ministry. A few minutes later, the meeting commenced. The grievor first insisted ' that a secretary be present to record the proceedings. Mr. Hamilton '1 attempted to assure the grievor that no disciplinary action was intended, but the grievor was not easily placated. At that point Mr. Klein offered his own letter to the grievor (Exhibit 4), which set out in greater detail his criticisms of the grievor's memorandum of December 11. The grievor refused to read it. Some attempt was made to discuss the issues involved in the assigned study with the~grievor, but he again * z, _i * -6- refused to participate. He was therefore sent back to work, and the meeting was concluded. ,_~.. The grievor was subsequently suspended with pay, effective January 2, 1976, for "an alleged act of insubordination" (Exhibit 1). The suspension was eventually terminated, and.a suspension of two . : 'days without pay (described as "a fine")-was imposed apparently for insubordination in refusing to co-operate with his supervisors during the December 30 meeting. We have reviewed the circumstances of this suspension carefully, and we are of the view that it cannot stand. The supervisors involved in this incident treated the matter as a discussion about work assignments, and a review of progress to date. They were concerned to assure the grievor that no disciplinary action was contemplated, but each of them had reduced his views on the issues involved to writing in a form which was, at the very least, threatening to the grievor. Certainly the letter delivered to him shortly before the meeting was sufficiently "disciplinary" in tone to overweight any protestations by Mr. Hamilton that a simple work review was involved. It is, moreover, interesting that both supervisors had taken sufficient notes that they could testify with some accuracy as to the events of the day. The grievor's objection to the proceeding was that he was at a disadvantage when confronted with two supervisors, both taking notes, in an atmosphere which hardly conveyed an impression of a non-disciplinary work review. On balance, we support his pos~ition,. He was not insubor- . dinate in refusing to discuss his own alleged shortcomings in circum- stances so redolent of disciplinary consequences, if he had a reasonable . . -7- apprehension that his participation in a work review could beg the source of evidence to discipline him later. We therefore consider this sus- pension to have been improper, and we therefore award that the grievor be compensated for all remuneration lost in respect of these two days. Following his return to work from the suspension on January 30, 1976;the grievor was expected~to return to the study on regeneration, and there is evidence that this expectation was conveyed to him. He was spoken to by Mr. Klein on February 2, February 25, March 22, and May 3, in a fairly formal setting, about the expectations for the project. On the last date, Mr. Klein prepared a written instruction (Exhibit 5) setting out further guidelines and methodology for completing the regeneration study, and including a requirement for a weekly work audit. Such audits subsequently took place on May 13, and May 19, but the grievor by then appears to have ceased work on the project and to ,,, have been devoting much of his time to preparing complaints for higher managetint about the treatment he was receiving. On May 21, 1976, at Mr. Klein's request, Mr. Hamilton convened another meeting in his office. On this occasion, minutes were taken by a secretary and the local representative of the Union was present. From the minutes of that meeting (Exhibit 15), it is clear that the grievor , still felt that the task which he had been assigned was futile, and that the supervisors still felt that he had not put an honest effort into the assignment. Although the minutes reveal a considerable amount of mutual frustration, one thing obviously emerges from the discussion - the grievor was still under instructions to complete the project. , ; -a- At one point in the discussion, Mr. Hamilton asked Mr. Klein to "show (the grievor) by example" what was required. This statement produced some considerable confusion, first over whether a "sample" or an "example" was required, and secondly over what either of these expressions might entail. Over the next period, there was a certain amount of djscussion over just what Mr. Klein was to do for the grievor, and whether it had been done. Unfortunately, the uncertainty coincided with a period of extremely heavy forest fire activity, and.it. was some " time before Mr. Klein was able to spend much time with the grievor. Mr. Hamilton met with him on June 1, however, and instructed him to continue the study. Mr. Klein and the grievor did meet, finally, on June 9, and at that time it appears that Mr. Klein explained fully to the grievor 5 how the study might be completed. At the same time, Mr. Klein dis- cussed the possibility of setting a deadline for completion of the .'. project. They met again on June 16, but the grievor did not wish to participate in setting a completion date, and Mr. Klein subsequently imposed his own deadline, July 16, 1976, by a letter to the grievor dated June 18 (Exhibit 6). This letter sets out the deadline, and concludes: . ..I must also make it clear that failure to complete the assiqnment and report by noon on July 16, 1976 may result in disciplinary actian. On July 13, before leaving on vacation, the grievor submitted a number of pages of handwritten data to Mr..Klein (Exhibit 7). Mr. Klein found this submission inadequate and set out a detailed criticism of it in a letter dated August 16 (Exhibit~a), on the grievor's return -9- from vacation. The thrust of the criticism is'that only part of the data had been discussed, the data had been inadequately analysed, the data had not been arrayed or organized, and the report format was not appropriate; A new deadline was also imposed in this letter, requir- ing submission of the report on August 31, 1976. No report was forthcoming from the grievor on August 31, and he was subsequently suspended without pay from September 2 to September 30, 1976. The letter of suspension from the Deputy Minister is dated September 24, 1976 (Exhibit 1) and includes the fallowing observation: Your future with the Ministry rests entirely in your hands. However, if the pattern which seem to have existed~for.'some time continues and disciplinary action is required, this action will possibly be your release from our employment. This suspension wasp grieved and is before us in thisarbitration. Because it is really part and parcel of the events leading up to dismissal, however, we propose to return to a discussion of its validity only aftersetting out all of the facts before us. On October 1, 1976, the grievor met with Mr. Klein and a new deadline was disciissed. As the issue was not resolved, Mr. Klein set November 15 for completion of the study, and notified the grievor by letter on October 1 (Exhibit 9) that 'failure to meet the deadline could result in disciplinary action; The grievor replied on October 4, raising many of the same objections to the project, and requesting once again a "sample" of what was expected. Another meeting~was then called by Mr. Hamilton on October.6, and a confrontation occurred. - 10 - Over the next few days, a number of confrontations occurred involving ,the grievor with both Klein and Hamilton. All of the evi.dence, including According to Mr. Hamilton's summary of that meeting, contained in a letter dated October 6 and sent to the grievor, the grievor refused to participate in any discussion of how to proceed in the study, nor listen to any instructions from Mr. Klein. The meeting broke off after a very short time. Mr. Hamilton's letter concludes: You are directed to remain at your place of work and continue with your assigned project as per all previous instructions until .further notice. The grievor's conduct on this occasion and over the next few days, during which he attempted to arrange meetings with Mr. R. A. Baxter, the Regional Director, led to his suspension again on October 13, 1976. ~Following an investigation, he was reinstated to full pay for the period of the investigation, but he was then suspended for twenty days from November 22, 1976. The letter of suspension dated November 18;19:76 (Exhibit 18) contains the following provision: However, during this period if you assure us that you are willinq to fulfil the following conditions, the suspension will be terminated. 4 complete the project which was assi~qned to you by your supervisor b) produce a report, acceptable to your supervisor,~- 'A. in the proper format and c) to be completed within the time limits to be set by your supervisor.. The grievor did not return to work during the suspension, but i did return on December 13. He was once again instructed to work on the project, and he once again expressed his view that the project was futile. - 11 - the grievor's, indicates that he did not return to work on the project. Finally, on December 22, the grievor was suspended for the last time. Following investigation, the grievor was dismissed effective February 18, 1977. The evidence is clear that the grievor did not-complete the project, that he refused to discuss its progress with his supervisors on a number of occasions, and that he ultimately refused to work at all while in the office, occupying his time instead with.preparing his grievances and seeking the intervention of senior officials, up to the Deputy Minister, in his problems.. -No authority is needed for the, propos,i- tion that, on the face of it, the grievor was guilty of insubordination and a refusal to perform assigned duties on a continuing basis and in the face of gradually escalating disciplinary responses, which included a direct admonition that further repetition of his. conduct would lead to dismissal. In most cases, this Board would find such conduct to constitute clear grounds for dismissal. Here, however, the grievor raises some crucial issues of principle in defence which must be care- fully considered. On behalf of the grievor, Mr. Cavalluzzo put forward a care- fully constructed defence that relied on two major elements: first, an allegation that there was a deliberate campaign to get rid of the grievor, which required that he be frustrated and humiliated until he reacted in such a way as to justify dismissal; and secondly, that the grievor, as a professional forester, was acting in a justifiable and commendable way in refusing to perform work which, in his professional ,‘. - 12 - opinion, he considered futile. Mr. Cavalluzzo's -foundation for the first defence is basically speculative. He postulates five steps to get rid of an unwanted employee: .l. remove all the employee's responsibilities. 2. keep the employee idle for extended periods of time. 3. provide the employee with futile tasks. 4. isolate the employee. 5. build a record for the employee's discharge. We have little doubt that Mr. Cavalluzzo's blueprint would be diabolically successful, and were there evidence that such steps had been taken deliberately, we would be likely to interfere with any disciplinary action resulting from such a plan. We are simply unable, however,to infer so complex a conspiracy from the evidence before us. There is, it is fair to say, some evidence which points to the existence of each of the five conditions Mr. Cavalluzzo postulates. The grievor had been moved from job to job since 1973, finally having been given a job which he considered beneath him; there were,.however, valid and credible reasons advanced for each such transfer. The grievor had spent some periods of-idleness from time to time, but it is at.least~. equally consistent with the evidence to conclude that his idleness was due to his-own unwillingness to work on tasks which he did not like, rather than to some deliberate plan to frustrate him. There is Somers.: evidence that the task given to him in respect of the regeneration study was futile; we shall be returning to that matter later in our discussion of the second aspect of the grievor's defence. There is not, however, any evidence that anyone deliberately invented a futile task for him. Indeed, the same task was assigned to employees in other districts as well, and it is difficult to believe that such elaborate steps would be initiated merely to be rid of the grievor. On the other hand, there is ,evidence that the grievor was isolated, not invited to professional seminars and excluded from foresters' meetings. There is also evidence, as we have already noted, that his supervisors spent a great deal of time .and effort in building a record against him. There is also evidence, which we feel obliged to accept and believe, that Mr. Klein on one occasion alluded to the grievor's assignments as a case of giving him sufficient rope to hang himself. Although this is a disturbing statement, we do not think it goes very far, in context, to support the conspiracy theory advanced on behalf of the grievor. On balance, therefore, we are unable to -conclude that there was a deliberate scheme to drive the grievor to disciplinable conduct. We can, however, conclude that the performance of supervisory functions in respect of the grievor was less than effective, and we shall have more to say on that point later. The second major foundation of the grievor's case relates to his assertion that he had, in his professional judgment, con- cluded'that the task assigned to him was futile, and that he was therefore only acting properly, in a professional capacity, in refus- ing to proceed further on a study which could not be completed. Thismatter ~poses some fundamental questions, since it requires careful . . - 14 - definitionof the nature of professional employment and of the applicability of arbitral jurisprudence on disciplinary matters thereto. r We start with two assumptions which, given the state of the evidence available, we.are unable to conclude finally; both assump- tions may properly be made, we think, in the grievor's favour. First, we are prepared'to accept that the grievor was right in his conclusions that the study he was assigned to do could not be efficiently carried out on the basis of the data available. Professor K. W. Hearnden, Chairman of the School of Forestry at Lakehead University and himself an experienced and well-qualified Professional Forester, testified that from the data he had been given to study, he had concluded that the grievor's objections were valid, and that he,.had "behaved responsibly as a professional forester and a public servant of Ontario in advising his superiors that further expen- ditures of his time and effort on this assignment, within the confines of the instructions given to him, would be unproductive" (Exhibit 30). With respect, the conclusion reached in the quoted statement is precisely the major part of the issue before us, and no body'tharged with acting judicially can permit expert witnesses to usurp the function of determining the issues before it. We can, however, accept Professor Hearnden's conclusion that the grievor's objections were valid.and, for the purposes of this discussion of the grievor's defence, we shall do so. We should point out, however, that Professor Hearnden was shown only a small part of the data, and a par'?selected by the grievor. Our assumption, therefore, does not constitute a finding of fact; the evidence would not permit such a finding. - 15 - '- Second, we will also make some assumptions about the Forestry profession, about which we have no real evidence and about which we know little. We are prepared, for the purposes of this discussion to assume that the Professional Forester belongs to an ethical profession with specific prescribed standards of professional conduct, like the traditonal professions su~ch as law and medicine or the more modern professions such as engineering. In light of these assumptions, we.must now consider the effect of the grievor's refusal (for we consider his conduct to amount to that) to perform the work assigned to him. It is a commonplace in the arbitral jurisprudence that an employee who is instructed to carry out an assignment should, even where that assignment appears to be improper, proceed to carry it out and seek relief for the ~impropriety'later, whether through the grievance procedure or otherwise. There are excep- tions to this general rule, of course, and the arbitral jurisprudence identifies a number of acceptable excuses for refusing to carry out instructions, including danger to health and safety, unlawfulness, the existence of paramount interests which would be destroyed by obedience, personal privacy and other reasonable personal excuses. The effect of accepting the gkieuor's defence would be to identify a further exception to the general rule to permit employees to refuse to carry out assign- ..,i.< .ments for reasons of professional judgment. As collective bargaining for professional employees becomes more widespread, it will become necessary for arbitrators to resolve a-number of outstanding questions about the interaction between - f . - 16 - professional obligations~and employment requirements. These questions will not be easy to resolve, and the difficulty will be increased by the fact that there are, to date, virtually no precedents from which to develop answers. -One of the few Canadian arbitration cases in which the,matter has been discussed is me Douglas Hospital centre and United Management purses (1977) 15 L.A.C. (2d) 253 (Bairstow), in which the learned arbitrator deals with the grievance of a nurse against a pro- posed reorganization of nursing supervision. In'discussing the factors to be considered in such a case, the learned arbitrator makes the following statement of her views on the professional employment rela- tionship: In the exercise of arbitral responsibility, it has often been necessary for arbitrators to perform functions which. are not common in cowts of law. This may be because the criteria considered by arbitrators are of&n outside the competence of the traditional Courts of law. Crucial to the consideration of arbitrators are the practices of the industry or profession which become part of the bar- gaining relationship under certain conditions. The parties have the riqht to expect that their evaluation of a q2ievance will reflect not only those matters expressly spelled out in the written contract, but also in so far as the contract permits, the implicit realities of the relationships at the : work place,bearinq upon carrying out the objectives of the work establishment. Increasingly this arbitrator has been called upon to decide the merits of grievances which arise from different roots than what is generally accepted as a change in working conditions, i.e., wages, reclassifications, overtime, sen- iority, etc. The newer types of cases usually involve pro- blems which stem from the essence of professionalism, that is, the professional who has a strong sense of what he =e- yards as quality of performance. Professionals have been concerning themselves with how a job is performed as much as how they are paid for the job. Many factors are iiklved - their education, their work experience, their professional reputation and their job satisfaction and above all, their sense of responsibility for their performance. The tendency of the collective association to see its func- tion in a very different manner from that of a union repre- sentinq a group of blue collar workers, is becoming more prevalent. :. - 17 - In the case of DougJas Hospital we have a critical question which deeply troubles the arbitrator. What should our pri- mary concern be? Should it be the good of the hospital as an institution and its administrative procedures or should our concern be the good of the patients for which the hospi- tal exists? Obviously the two concerns are not exclusive and should be complementary. But frequently, as is the case here, the parties involved in providing the services disagree as to how best to accomplish the objectives. When those providing the services feel they should have some voice in the type of services given, should only management's.voice be heard? There is an even more subtle quality present here -- the re- lationship of nursing services to patients. The hospital has an approach in its concern for patient care and has proven that it~works well in one situation, to divide the supervisors evenly.amng all the services and all the patients on the even- ing shift. Another group claims a different approach is mre effective which has pi-oven for them to have worked better in the past. Can profe&ionals be forced effectively into a mold or pattern without jeopardizing the welfare of those they are qualified to serve if such service is performed at the expense of sincerity or enthusiasm? The result of disregarding the views of the professionals in such circumstances could have long-run implications. An impression given by management that the professional's views do not matter might have the effect of discouraging full exercise of the highest standards of pro- fessionalism. The industrial relations aspect of this involves the two partners working out the mst viable arrangements. With these observations we respectfully agree, and we accept the necessity tom take into account the professional considerations~in- herent in a situation where professionals are employed under a collec- tive agreement., How ought those considerations to apply to the case now before us? First, it is clear that our case is a disciplinary one, and not merely a grievance where the arbitrator is asked to pronounce on the pro- priety of some management action, as in Re'Douqlas~Hospital Centre, supra. Here the grievor has taken a position over a protracted series of trans- actions, and has clung to that position despite attempts to get him to change his mind; warnings of disciplinary action and actual disciplinary penalties. When an employee has taken such a definite attitude to those who supervise his work, the factors which induced such conduct must neces- sarily be of the most crucial kind. There is no doubt that supervisors can -. - 18 - be wrong, and may be stubbornly and unreasonably wrong, and that may even have been the case here. For an employee to obstruct work, to avoid performing his duties and to defy direct orders as this grievor has, however, very powerful justification indeed will be necessary. Although we do not have such facts before us, and we there- fore do not have to decide the matter finally, we can conceive of situations in which professional ethical considerations might justify an employee in refusing a direct order from a supervisor. A lawyer who was ordered to act in a way in respect of his or her employer's'interest which was contrary to the canons of ethics of the legal profession, a physician who was ordered to take medical action which conflicted with his or her professional judgment as to ethical considerations, or a nurse who was instructed to deal with a patient in a way contrary to ethical.principles, might well be found, at arbitration, to be justified in refusing to carry out such instructions. .: At the present time, only nurses of this group of professions are subject to collective bargaining in this province, but we think these examples are all sound. Similarly, there are circumstances which could have placed the grievor here in an analogous position. Had he been ordered to produce a report, over his signature~and his professional seal,~supporting a position which his superiors wished to take on a matter of policy regardless of whether or not the data would support such a position, then we have little doubt that his refusal would be upheld as a reasonable exercise of his professional judgment in any proceeding before this Board. We hasten to observe, however, that the present case is not of that sort. There is no hint that the grievor was ordered to act - 19 - improperly, to manufacture data or results, or to act inany way ,unethically or unprofessionally. He was asked to do a study and produce his own results from the data available, and there is no suggestion that, if he had done so, his results would have been in any way misused or misinterpreted. Putting the grievor's objections in their best light, he quite simply objected to carrying out the study because he had concluded at a very early stage that it was futile. Is this a valid exercise of professional judgment in the face of contrary professional judgment by his supervisors?. Can it justify a refusal to continue in the face of clear, express orders to proceed, orders which manifest an intention to impose disciplinary sanctions for refusal? In our view, the grievor's refusal in this case was improper, and cannot possibly be justified by the nature of his objections to the assignment. He was assigned a task which was considered to be important and necessary, but which he~considered to be futile. He made his objections known at an early stage, and made them known at least up to the level of the Regional Manager; those objections were not accepted. At~that point, the grievor had fulfilled his professional obligation to his employer, and there was no further responsibility on him to try to save his employer's resources. His supervisors, up to the Regional Manager, had confirmed that they considered the study a valid use of those resources, which they bore a responsibility to control and direct. The proper response for the grievor , in our view,.woulo be to have done the study, and in the process demonstrated clearly and unequivocally how the study could not be an effective one. The evidence is clear, however, that the grievor never did review all of the data available i ,, - 20 - to him, and never appears to have made any attempt to show that the '..~ data could not be arrayed so as to correct for the defects in the data and the existence of other variables which influenced regenera- tion. The grievor, on the basis of his early impressionistic conclusion, had proposed a different kind of study based on an intensive forest research project, a project which would obviously be expensive and time-consuming. The grievor could have rendered a considerable service to his employer by completing his assigned work and demonstrating clearly that no meaningful results could be produced from the assigned study. That demonstration would then-have been valuable information for the decision whether to commit resources.to the research project which the grievor had recommended. In the result, we consider the grievor's refusal to have been wrong, and his justification for the refusal-to be inadequate to support his conduct. We therefore find that there existed joust >~, cause to impose discipline upon the grievor for his refusal to car- ry out or participate in discussions of the project. Specifically, ,. ., we find that there existed ample grounds for the suspension from Sept- ember.2 -'September 30, 1976 and his suspension from Novembers 22, 1976 for twenty days. Although a number of arguments were addressed to us in respect of mitigation of the penaltjes imposed, we consider that these were properly directed to the ultimate sanction of discharge, and we thus proceed to consider them in that context. Mr. Cavalluzzo advanced six matters which, in his submission, __ ought to influence us to decide in 'the grievo~r's favour. Although - 21 - ~ he advanced them as a part of his. absolute justification argument, it appears to us to be impossible to support that argument, for the reasons which we have stated above. We consider, however, that these .factors might properly bearon our exercise of our jurisdiction, under s. 18 of the crown employees Collective Bargaining Act, to substitute another penalty for the penalty of dismissal which the Employer has invoked. First, the professional nature'of the grievor's objection was raised:as a mitigating- factor. It is true that'the.grievor was apparently firmly convinced that the study was futile, and he is supported in this position by Professor Hearnden's evidence. Taken by itself, we consider that this would indeed constitute a mitigating factor, always remembering that the force of a~professional judgment is blunted if it is expressed or acted upon in anything but a profes- sional way. Second, we are asked to find that, despite the futility of the project, the grievor did his best to perform it. This conclusion, we regret, simply cannot be inferred from the evidence. Indeed, the evidence is more consistent with a finding that the griever determined early on that he would not perform the project, and that he then did everything he could to avoid performance, He clearly never did review a,11 of the data available. He never did submit a comprehensive dis- ~- cussion of the state of the data and the basis of his conclusion that it could not support the study. Mr. Cavalluzzo submitted that the study became more and more complex as new wrinkles were added.to it, but our view of the evidence is simply that the instructions became more and .- : ,. <-, ” - 22 - more involved as the grievor insisted on more and more guidance from his supervisors. In our view, the evidence of the grievor's efforts to perform the study does not~assist his case at all. Third, we are asked to find that the grievor made an honest. effort to resolve,his problem through the proper channels, but was frustrated in his efforts. The evidence does indicate a number of efforts by the grievor to raise the issue with the Regional Manager, but we are less than satisfied that the grievor was always acting reasonably in so doing. In any event, it should have soon become clear that the Regional Manager clearly supported the assignment, and wished to haves it resolved at a local level. It is a pity, in retrospect, that no direct intervention by the Regional Manager ever took place, since the fact that the grievor had appealed to him of his own volition might have given him some leveragea.to make the grievor come'to a reasonable accommodation with his supervisors. Beyond that, however, we see no real force in this argument. Fourth, the grievor's evidence clearly points out an unfortunate communications problem between Mr. Klein and the grievor, and there is some evidence to the effect that this problem was Mr. Klein's fault. We agree that this is a mitigating factor. There are long gaps in the dealings between Mr. Klein and the grievor for which Mr. Klein must bear the responsibility, and there is evidence of some reluctance by Mr. Klein to take the grievor in hand over this issue. All employees, especially difficult employees like we believe the grievor to have been, require - 23 - supervision.from time to time, and it is the function of supervisors to provide it. In our view the failures of supervisors at several levels to respond quickly and firmly to the grievor's objections prolonged and exacerbated this affair, and we shall deal with the effect of that subsequently. Fifth, Mr. Cavalluzzo points to the grievor's seniority and experience. The grievor has been a professional forester since 1952 and has been in the Ministry's employ since 1957. He is 52 years of age, and has a large family, including one child in university. This is a factor which clearly has some weight, although it is obvious that compassion cannot be conclusive in an arbitration such as this one. At most, compassionate grounds might influence the Board to give the grievor the benefit of any doubt:. see i?e Phillips Cables (1974) 6 L.A.C. (2d) 35 (Adams). Finally, we are asked to consider the professional context of the dispute between the grievor and his supervisors, and to find a failure in the way in which management dealt with this dispute in such a context. We have already dealt with this aspect of the case in our earlier finding that the meeting of December 30, 1975 was improperly handled and that the suspension arising out of it was unjustified, and in our discussion immediately above of flaws in the supervisory response to the grievor. We shall deal with the effect of this factor below. .~ ” - 24 - / To the opposite effect, the Employer introduced evidence of,.the past record of the grievor while in the Ministry's~employ, and it is of little assistance to the grievor's case. As we have found grounds for discipline in the present, the evidence of the past record is, of~course, clearly admissible to counter the grievor's arguments for mitigation. The grievor began his service with the Ministry in 1957 in Toronto, and then was transferred to Pembroke in 1960. Subse- quent transfers to Sault Ste Marie in 1962, Sudbury in 1964 and Thunder Bay in 1971 were all involuntary, and all were ~occasioned, the grievor admits, by difficulties between him and his supervisors. Before the 1971 transfer, he had in fact been dismissed by the Ministry, but he was reinstated by the Public Service Grievance Board without compensa- tion, following a lengthy hearing into the matters then at issue. The Grievance Board's award is found among that board's decisions as simunovic, 565/71, and we see no reason to quote extensively from that decision. What is particularly tragic about the award, written by the learned Chair- man of that board, Professor R. Presgrave, is the extent to.which it mirrors our own findings of fact about the nature of the grievor's con- duct and the attitudes which he displayed. In short, the past record manifestly demonstrates that this is not the first occasion onwhich the grievor has had difficulty in accepting supervision nor in relating to other employees, including his supervisors. It remains only to characterize the various factors which relate to the propriety of the penalty of dismissal imposed on the grievor. Our view of this case is that it manifests a clear refusal - 25 - by the grievor to carry out assigned work over an extended period of time and in the face of a number of attempts to dissuade him or coerce him from his chosen course of action. That conduct takes place in the context of a long record of related, if not similar, difficulties with the grievor's work for which discipline had been imposed in the past. In mitigation, the grievor has demonstrated a misconceived professional objection to the work assigned, evidence of sloppy supervisory practices which: led to long delays and in the early stages of the incident perhaps even to some inference of- condonation of the grievor's conduct, and an argument based on ,.. .compassionate grounds of age and family.circumstances. After much agonized consideration, we are of the view that outright discharge of the grievor is too harsh a penalty, given the mitigating factors. On the other hand, we cannot ignore the fact of the grievor's past record, his attitude towards his superiors, and the clear evidence that, although he knew (at the very latest by May 1976) precisely what.was expected of him, by what date, and with what consequences of failure, he steadfastly refused to carry out his assigned work. In these circumtances we are unable to countenance an argu- ment for the grievor's reinstatement. The rehabilitative theory of employment discipline, which this Board has applied from time to time, clearly relies on the demonstrated potential of an employee to alter patterns of improper conduct and to comply with .expected norms. All of the-evidence available-to us militates against a conclusion that the grievor is likely to reshape his conduct if reinstated, and we must thus conclude that reinstatement would be an inappropriate remedy in this case. - 26 - Taking into account all of the factors discussed above, we are of the view that a monetary payment in mitigation of the dismissal penalty imposed is the only way in which a just result can be obtained for both the grievor and the Employer. We are aware that this is an unorthodox solution in dismissal cases, but our discretion under s. 18 appears to be wide enough to permit us to take such an approach, and we consider it to be justified by the unusual circumstances of this case. We therefore award, in addition to compensation for the two. day's fine imposed in January 1976, that the Employer shall pay to the grievor a sum equivalent to salary and benefits (including pension contributions as appropriate) for six months, at the rates which would be applicable to the six month period immediately following his dismissal. This sum is to be paid in mitigation of the penalty imposed on him, which we have determined to be too harsh in all the circumstances, and is thus in the nature of damages. Apart from this mitigation of penalty, the grievances before us are all dismissed. We shall remain seized of the matter in case any difficulty in implemen- tation is encountered. We wish to express our special thanks to Mr. Riggs and Mr. Cavalluzzo for their courtesy and assistance during-the long and difficult hearings in this matter. . DATED AT TORONTO THIS 20th DAY OF March 1978 ADDENDUM K. P. Swan Vice-Chairman I concur E. J. Orsini Member I concur A. Riseley Member The Board, as originally constituted to hear this matter, included Mr. Henry Weisbach as a member. Following the first hearing November .lB, 1977, Mr. Weisbach became ill. With the consent of the parties, Mr. Weisbach's place on the Board was taken by Mr. Arthur Riseley,who subsequeotly assumed a full role on the Board and parti- cipated in the formulation of the decision herein.