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HomeMy WebLinkAbout1990-3159.Breen et al.93-01-28 DecisionONTARIO EMPLOYES DE LA I CROWN EES DEL ONTARIO G R I EVAN C E SETTLEMENT REGLEMENT BOARD DES GRIEFS Commission DE 180 DUNDAS STREEt WEST, SUITE 2100, TORONTO, ONTARIO. M5G 1Z8 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO). M5G 1z8 BETWEEN BEFORE FOR THE GRIEVOR FOR THE EMPLOYER HEARING 3159/90 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (Breen et al) - and - Grievor The Crown in Right of Ontario (Ministry of the Attorney General) Employer W. Kaplan I. Thomson F. Collict Vice-Chairperson Member Member M. Hart Counsel Cavalluzzo, Hayes & Shilton Barristers & Solicitors M. Failes Counsel Winkler, Filion & Wakely Barristers & Solicitors July 5, 1991 October 22, 1991 March 23, 30, 1992 April 6, 7, 10, 1992 June 9, 10, 1992 July 15, 16, 27, 28, 1992 August 18, 19, 1992 2 lntroduction The procedural history of this case is outlined in our decision released on April 21, 1992. This case concerns five identical grievances filed on January 25, 1991. The statement of grievance is: I grieve that the Employer has violated the Rest Periods and Health and Safety provisions of the collective agreement by its high-handed and self-centered management style and by the lack of an ability to relate well on an inter-personal basis causing unnecessary distress to myself and others. The relief requested is: That the Employer and its new Manager comply with the collective agreement, that the rest periods be restored to what they have been, that there be reimbursement for any and all losses caused by its callous disregard of the staff as human beings and that the respect which has been earned by the staff at this office be accorded the employees. In the alternative, it is requested of the Ministry that a newer Court Services Manager be substituted for the one employed here at present. The five grievors, Cindy Breen, Susan Nelson, Bonnie Langille, Donna Nicholson and Lynn Snider all work for the Ministry of the Attorney General at the Kingston County Courthouse. Cindy Breen and Susan Nelson work in the Sheriff's Office. At the time the grievances were filed, the three other grievors worked in the General Division. Bonnie Langille and Donna Nicholson continue to do so, while Lynn Snider now works at the Ministry of Health. It should be noted at the outset that the union is no longer seeking a remedy 3 with respect to hours of work. This issue was settled following the first day of hearing, and the only issue now before the Board is whether or not there has been a violation of Article 18.1 of the Collective Agreement. It provides: The Employer shall continue to make reasonable provisions for the safety and health of its employees during the hours of their employment. It is agreed that both the Employer and the Union shall co-operate to the fullest extent possible in the prevention of accidents and in the reasonable promotion of safety and health of all em p I oyees. It should also be noted at the outset that some of the evidence in these proceedings was given out of order for the convenience of witnesses and the parties. This evidence has been reordered in this award. Needless to say, the substance of the evidence has not been changed. It should also be noted that it was agreed by the parties that evidence could be led respecting events which transpired after the grievances were filed; but which occurred prior to the second day of hearing. Before turning to the evidence it is helpful to set out a few of the background facts. All of the grievors are long-service employees. As a result of court integration, the decision was made to hire a Court Services Manager with general supervisory responsibility over the Sheriff’s Office, the General Division and the Criminal and Family Courts. Dianne Aziz was appointed Court Services Manager. It is the gravaman of all five grievances that her management style constitutes a violation of Article 18.1. The evidence in this case is described in detail, for it was not readily susceptible to summary. Moreover, the nature of this case demands that detail. Unlike 4 conventional occupational health and safety grievances, the instant one does not point to a particular management practice or policy which it alleges contravenes the Collective Agreement. Rather, the union points to a particular manager, Ms. Aziz, and argues that her management style is in contravention of the Collective Agreement. To prove its case, the union must lead evidence of that style. Obviously, in hearing that evidence the Board accepts as a general principle that it is possible that "management style" could result in the contravention of this provision of the Collective Agreement. The Board also accepts, as a general principle, that in a case of this kind, the evidence of employees other than the grievors may be relevant to the disposition of the matters in dispute, insofar as such evidence goes to establishing the breach of the Collective Agreement alleged by the grievors. THE UNION CASE Evidence of Cindy Breen Cindy Breen testified. She has worked in the Sheriffs Office since 1979. Her main duty is to wait on customers, receive documents for service and ensure that they get served. She works with Deputy Sheriff Wallace Revell and Susan Nelson, the other clerk and another grievor. Mr. Revell was her supervisor until November 1990 when Dianne Aziz was appointed Court Services Manager. When Ms. Breen heard about Ms. Aziz's appointment she was sceptical because because she had heard stories about her and about the way Ms. Aziz had treated her staff in her prior position at the Ministry of Housing. Ms. Breen was worried because she was used to working in an open work environment and did not want that environment to change. 5 Ms. Breen testified that her apprehensions notwithstanding, she intended to give Ms. Aziz a chance, and to approach her appointment with an open mind. Initially, everything worked out well, and Ms. Breen found Ms. Aziz to be friendly, open and extremely enthusiastic. Ms. Breen testified about a meeting she and Ms. Nelson had with Ms. Aziz in the second week of November 1990. One of the purposes of this meeting was to discuss an issue of concern to Ms. Breen and Ms. Nelson, namely flexible hours of work to accommodate childcare. Ms. Breen and Ms. Nelson explained how they organized their work schedules and Ms. Aziz told them that the status quo was satisfactory. Even though that part of the grievance relating to schedules was settled early in these proceedings, this issue figures somewhat prominently in this case in that the dispute over schedules materially contributed to the deteriorating atmosphere in the workplace and the grievances which are before us. Accordingly, and notwithstanding the settlement of this matter at an early stage in these proceedings, this issue must be addressed. In November 1990 (and previously), Ms. Breen arrived at work at 8:30 a.m. She took one hour and fifteen minutes for lunch and left work each day at 4:30 p.m. She did not take any breaks, rather she extended her lunch hour. Ms. Breen testified that she has been following this schedule since beginning work for the Ministry, and at the November meeting with Ms. Aziz she was advised that she could continue doing so. On November 12, 1990, Ms. Breen received a letter addressed to all the staff from Ms. Aziz which dealt with a number of issues including schedules. In this respect, Ms. Aziz wrote: "In each office I have observed that you cover off for each other and ensure that during the hours of operation have adequate staff available. Your approach 6 appears to work well, and I have no need to change it." Subsequently, Ms. Breen and the other staff were advised that their system of breaks would change. On January 10, 1991, the five grievors in this case (and another employee named Bonnie McLean) received a notice from Ms. Aziz:. In earlier correspondence I have advised you that I wished to develop uniform personnel practices for all members of our staff in this County and to coincide with all staff in our Region. In both the Family Court and Criminal Court, staff (who comprise of more than 50% of our total staff) have two rotations, 8:15 a.m. to 4:30 p.m. and 8:30 a.m. to 4:45 p.m.; lunch breaks are one hour (noon or 1 p.m.) and either formal (1 5 minutes) or informal rest periods are taken (informal rest periods appear to be the norm). Rest periods are not attached to lunch hours or days end. To ensure uniform personnel practices, moving forward toward our new organization, I am asking the General Office and Sheriff's office to adopt the following as of February 4, 1991 Hours of Work: Staff must be in attendance for the full period addressed below: 8:15 a.m. to 4:30 p.m. or 8:30 a.m. to 4:45 p.m. Your supervisor manager will ensure full coverage the 8:15 a.m. start time is optional if staff prefer to start at 8:30, we could also discuss an 8:45 to 5 p.m. shift. Lunch Breaks: 7 One hour 12-1 or 1 to 2 Rest Periods: for the interim period prior to integration, and the full introduction of our new organizational structure, the following will be the options for rest periods: A staff area is available for formal rest periods in the room to the right of the stairway. 1. Staff may choose to avail themselves of a formal rest period for fifteen minutes in the morning and afternoon (e.g. 9, 9:15, 9:30/2, 2:15, 2:30); your supervisor will allocate times to ensure coverage. Should staff not take a formal rest period, this time is not accumulated nor can it be used toward time to me made up, taken with lunch or at the beginning or end of the day. It is understood that should formal rest periods be taken, then the remaining workday would not include time away from the desk for beverages/snacks, nor time at the desk attending to personal matters. or 2. Staff may choose to take a more informal approach where during the working hours, they leave the work area to obtain beverage/snack and bring it back to their desks or attend briefly to personal business at their desk. Should staff, during a working day, take formal breaks and have the informal approach in addition, then the employer would not be receiving a full days work. 4 Thank you for your cooperation. Should you have questions about the change, please contact your supervisor. a Ms. Breen testified that the changes implemented by this memorandum were not discussed in advance with her or with the other grievors. Moreover, the memorandum itself was delivered on a day that Ms. Aziz was away on business, and upon her return she refused to discuss the matter and then left on holiday. Ms. Breen was extremely upset by the change and the manner in which it was implemented, particularly in light of the fact that Ms. Aziz had promised her that she would have an open management style. The change interfered with her childcare arrangements, and after receiving this memorandum, Ms. Breen's pre-existing cough became more severe and she consulted her physician. Ms. Breen testified generally about her relationship with Ms. Aziz. She described an incident in which Ms. Aziz told her that the staff in the General Division never believed that she (Ms. Aziz) would become their boss, leaving Ms. Breen to think that Ms. Aziz had a grudge against them arising out their treatment of her when she processed her own divorce. Ms. Breen never felt comfortable around Ms. Aziz, and only spoke to her when she had to. Ms. Breen testified about an incident in December 1990 when Ms. Maureen Evan's (the Registrar) parking sign was taken down and left in the hall. More will be said about this incident later. Suffice it to say, that it left Ms. Breen feeling very upset. When Ms. Evans was suspended as Registrar in February 1991, Ms. Breen was quite disturbed and felt that Ms. Aziz and Mr. Bob Beaudoin, the Regional Director in Ottawa, were looking for a way "to get" Ms. Evans. Ms. Breen was so upset about this development that she began to shake, and that triggered her coughing. Ms. Breen went to see her doctor, who advised her to take time off work. She did not then do so because Susan Nelson was already on sick leave, and if Ms. Breen went too that would leave Wally Revell in the 9 Sheriff's Office all alone. The "scotch tape incident" also disturbed Ms. Breen. In January 1991, Deputy Sheriff Revell went into Ms. Aziz's office (she was occupying the Sheriffs Office immediately adjacent to the area in which Ms. Breen worked). Mr. Revell went into the office to use the fax machine, and when in there he found that scotch tape had been placed on the locked filing cabinet drawers. Ms. Breen could not believe that Ms. Aziz was "so paranoid," and she was left feeling extremely disturbed about how the previously open work environment had deteriorated. This impression was confirmed after Ms. Evans was suspended and the locks were changed on her office door. Staff were instructed that they could only enter the office in pairs. There were other disturbing incidents as well. One incident involved the coffee machine located in the Sheriff's Office. Ms. Breen was also disturbed when some parking tickets went missing, and she began, for the first time, to lock her desk drawer. The day that Ms. Evans was suspended, the fax cord in Ms. Aziz's office went missing. It appeared later in the day, and the explanation that was proffered by Ms. Aziz, that the cord was needed at the Ministry of Health, did not make any sense. Another incident involved the arrival of a locksmith. Ms. Breen was worried, in the aftermath of Ms. Evan's suspension, that she would be next and that she might be "locked out" of the office the next morning. The next morning, Ms. Breen learned that a lock had been installed on Ms. Aziz's office door. Mr. Revell questioned Ms. Aziz about this, and Ms. Breen heard her say that he had no right to question her about this and that the office would be kept open when she was present and locked when she was away. Ms. Aziz explained how staff could access the off ice in 10 her absence by contacting the County Administrator who was not a Ministry of the Attorney General employee. After witnessesing this incident, Ms. Breen ended up coughing all day. She then took sick leave between February 19th and March 15th. Initially, Ms. Breen was scheduled to return on the 11 th, but did not return on that date. Ms. Breen's doctor was absent and Ms. Breen wished to consult her before returning to work. Accordingly, she telephoned Wally Revell and advised him that she would not be back until the 15th. On the 12th, Ms. Aziz telephoned her at home and told her that she was supposed to have been back at work the day before. Ms. Breen explained to Ms. Aziz that she had misunderstood her doctor's letter, and that the 11 th was the earliest possible date that she could return. Ms. Aziz told her that if she was not back the next day that she would be considered absent without leave. Ms. Breen told Ms. Aziz that her doctor was away and that she would not be returning to work until she consulted with her doctor on the 15th. Ultimately, Ms. Breen did not return to work until around March 25th. Ms. Breen also testified about her work environment, and the work environment in the General Division which was situated next door. The work environment in the Sheriffs Office was very relaxed as the Sheriff was very relaxed. It was more "hyper" in the General Division because the Registrar, Maureen Evans was "hyper." There were also "morale problems" next door. Accordingly, when Ms. Aziz suggested that the staff in the two offices "cross-train", Ms. Breen was not interested as she did not want to go into that kind of environment. She liked where she worked, and she described the Sheriff's Office, prior to Ms. Aziz's arrival, as a big family. She no longer J 11 likes it at work. She gets knots in her stomach and is often anxious. She carries medication for her cough, has trouble sleeping at night and has headaches. Ms. Breen testified that her work environment has also resulted in family discord. She applied for Worker's Compensation, but her claim was denied. That denial was, at the time of hearing, under appeal. Ms. Breen told the Board that while some of the incidents she described sound petty, the cumulative effect of those incidents has affected her life. She wants people to know what has happened to her, and does not think that anyone should be 'treated the way she was treated. In cross-examination, Ms. Breen was asked about her telephone conversation with Ms. Aziz on March 11, 1991. While she agreed that she did not have any problems when she returned to work, she testified that Ms. Breen's tone of voice and the fact that she was calling her at home was disturbing. Ms. Breen testified that she did not consider it reasonable for Ms. Aziz to call her at home because she had telephoned Mr. Revell with the news that she would be seeing her doctor on the 15th. Ms. Breen testified that after the lock was installed on Ms. Aziz's door, there were never any problems in obtaining access to her office in her absence. With respect to the work schedule, Ms. Breen reiterated her evidence in chief that Ms. Aziz was not around after the changes to the schedule were announced in her January 10, 1991 memorandum. She was, however, around before those changes were introduced. Ms. Breen did not ask to meet with Ms. Aziz to discuss those changes, although she heard that Maureen Evans did do so and that Ms. Evans's request was denied. Ms. Breen ended up coming into work fifteen minutes earlier so that she could take an extra fifteen minutes at lunch time. This made a real difference to her schedule, and required her to move more quickly in the mornings to get her three children ready for school and at the end of the day. It also meant that she could not meet her six year old at home for lunch. This was extremely upsetting. While Ms. Breen could understand why Ms. Aziz would want to lock her office door, in light of the missing parking tickets, she could not understand the way she went about it and the other things she did like putting tape on her filing cabinets. When Mr. Revell discovered the tape he called the other staff in to have a look. This and other incidents caused Ms. Breen to lose sleep because she felt that Ms. Aziz did not trust her. With respect to cross-training, Ms. Breen testified that this matter had been raised prior to Ms. Aziz's arrival. Ms. Breen did not want to cross train then, and she did not want to cross-train after Ms. Aziz was appointed Court Services Manager. She liked the job she was doing, and so when Ms. Aziz raised the matter Ms. Breen told her that cross-training was incompatible with her wishes. Moreover, she did not want to work in the General Division because of the different environment. Why go there, she asked, if she did not have to? Finally, with respect to her cough, Ms. Breen testified that it had improved since the winter of 1991, and in fact, the winter of 1992 was her first cough free winter in several years. Evidence of Dr. Maria Bukowskyj Dr. Maria Bukowskyj testified. She is a specialist in internal and respiratory medicine and has practised in Kingston for approximately nine years. Dr. Bukowskyj saw Ms. Breen on referral from Ms. Breen's family physician on 13 February 5, 1991. Ms. Breen has a history of respiratory problems during the winter a cold in the fall was followed by a prolonged cough in each of the previous three years. Dr. Bukowskyj diagnosed a post viral cough in February 1991, and as her cough was severe she prescribed medication rather than allowing the virus to take its own course. The treatment which was prescribed reflected the seriousness of the cough steroids are usually given to individuals with significant asthma. Generally this treatment is effective, but Ms. Breen's condition worsened when it should have improved. This led Dr. Bukowskyj to conclude that stress might be a factor, and she testified that the link between coughing problems and stress is well-established in medical literature. Ms. Breen was directed to take time off work, and in fact she was absent on medical leave for most of the month of March 1991 as a result of her coughing difficulties. Dr. Bukowskyj saw Ms. Breen frequently during this period, and subsequently. At one point she had to prescribe codeine to suppress the cough. This was an extreme step indicating the severity of the problem. Dr. Bukowskyj's diagnosis of stress as a contributing cause found corroboration in information provided to her by Ms. Breen, namely that the cough was worse while she was at work, and went away at night while she was asleep and on week-ends. The last time Dr. Bukowskyj saw Ms. Breen was in October 1991. At that time she was doing well, and had learned to adjust her medication to control her symptoms. In cross-examination, Dr. Bukowskyj was asked some questions about stress, and she agreed that part of her diagnosis was based on information about working conditions provided to her by Cindy Breen. The other part of her 14 diagnosis was based on her own observations with respect to Ms. Breen's coughing and the connection between coughing and stress, as well as elevated blood pressure and a high pulse. Dr. Bukowskyj agreed that stress management was not within her area of expertise. She also testified that the viral infection which Ms. Breen presented was not uncommon, and that insofar as Ms. Breen was concerned she had had similar problems previously. Ms. Breen was, accordingly, more susceptible to these problems. When dealing with a patient with increased susceptibility it was not uncommon to find an increased recovery period. While Dr. Bukowskyj prescribed medication for the cough, the only medical treatment she recommended for the stress was that Ms. Breen stay away from work for several weeks. Evidence of Bonnie Langille Bonnie Langille testified. She began work with the Ministry in 1980 and holds the position of Junior Deputy Local Registrar. Employees in the General Division all work behind a counter, with the exception of the Registrar, who had an office across the hall. Members of the public come in and approach the counter where they are served by the employees. In November 1990, Bonnie Langille, Donna Nicholson and Lynn Snider all worked in the General Division. Ms. Langille knew Ms. Aziz prior to her appointment as Court Services Manager as she served her in the early 1980s when Ms. Aziz processed some of her personal legal documents. Ms. Langille also had some dealings with Ms. Aziz when Ms. Aziz worked at the Ministry of Housing. 'There was reason for the General Division and Ms. Aziz to deal with each other over landlord and tenant matters. Ms. Langille had some problems with Ms. Aziz in these dealings insofar as Ms. Langille and Ms. Aziz did not see eye-to-eye on the extent of the General Division's responsibility for assisting in the filling out of legal documents. When Ms. Langille heard about Ms. Aziz's appointment, she was devastated by the news. Ms. Langille had also heard about Ms. Aziz's management style, and did not want to be managed by a rigid manager. After hearing the news about Ms. Aziz's appointment, the staff in the General Division approached Ms. Evans to express their concerns, including one that Ms. Aziz would rely too heavily on the Manual of Administration. Ms. Evans encouraged the staff to be positive, noting that changes were necessary and that Ms. Aziz should be given a chance. Ms. Langille testified that she and the other staff tried to do that, but that the environment quickly deteriorated. Ms. Langille testified that when she was first hired she was told not to take breaks during the day, but to take them with her lunch hour. The January 10, 1991 memorandum came as a surprise to Ms. Langille, particularly in light of the November 12, 1990 memorandum in which Ms. Aziz promised the continuation of the status quo. Another unwelcome and disturbing change was the end of free parking. Ms. Langille testified that until December 1990 she had never paid for parking. The details of the parking arrangements will be canvassed fully in the decision that follows. Suffice it to say at this point, that a number of different arrangements were in place allowing employees to park for free. This changed in November 1990 when Ms. Aziz issued a memorandum advising employees that the County would begin ticketing cars without parking tickets on December 3, 1990. Employees were advised that they could purchase parking tickets. I 16 The Ministry received as part of its lease with the County a number of parking tickets for use by crown prosecutors, judges and program vehicles. Invariably, all of these tickets were not used, and Ms. Langille asked Ms. Aziz if employees could lobby the judges for their tickets when they no longer required them, and in that way continue to park for free. Ms. Aziz agreed, but the plan did not work out. Soon thereafter Ms. Aziz reported that some parking tickets were missing or had been stolen. Employees had to begin paying for parking. Related to this parking issue was the taking down of Maureen Evans's parking sign. It was taken down by the janitor on December 6,1990. Ms. Evans was very embarassed by this, and it turned out that the janitor had been ordered to take down the sign by Ms. Aziz. Ms. Langille and Ms. Nicholson also had parking signs, but they were not taken down. On December 7, 1990 Ms. Aziz asked Ms. Langille to remain behind after a staff meeting. She said that she wanted to discuss the low morale in the Registrar's Off ice, and to also discuss a problem that took place over a request by Judge Honey for a courtroom. Ms. Langille told Ms. Aziz that the staff were not used to someone with her management style, and Ms. Aziz said that she would tone down in that she realized that she was dealing with long term employees with many sensitivities. There was desultory discussion about relations with Ms. Evans, and other discussion about different issues such as parking, overtime and so on. Ms. Langille testified that at the end of the meeting she felt better about things generally. Ms. Aziz advised her at this meeting that she would be relying on the Manual of Administration, and Ms. Langille testified that she did not know what this would involve as she was not familiar with it. Notwithstanding this generally positive discussion, the work environment did not subsequently improve and Ms. Langille testified about a number of other disturbing incidents. One such incident involved Justice Campbell, a senior local judge now deceased. One day he buzzed Ms. Langille's intercom looking for Ms. Aziz. Later Ms. Langille heard the judge yelling at Ms. Aziz. Ms. Langille had known Judge Campbell for ten years and had never before heard him raise his voice. Another incident involved discussions with members of the local bar during work hours. Ms. Langille and other staff working in the General Division knew many members of the local bar who would come into the office to process various documents. One day Ms. Evans asked Ms. Langille if she had spoken directly to local lawyers about things going on in the office. Simply put, it had been reported to Ms. Evans by Ms. Azizt that Ms. Langille and other General Division employees were airing their complaints with members of the public. Ms. Langille was extremely upset about this and asked Ms. Evans to tell Ms. Aziz that it was not so. Ms. Langille testified about another incident involving the fax in Ms. Aziz's office in February 1991. Ms. Langille learned that the cord was missing when she received a telephone call advising her that the fax was not receiving. She then went into Ms. Aziz's office and found the cord was missing. She asked Ms. Aziz about it and was told that the cord was needed at the Ministry of Health. As it turned out, this was the day that Maureen Evans was J ! 18 suspended, and Ms. Langille later deduced that Ms. Aziz had t k n the rd away so that no message relating to the suspension came in while she was away from her office. The incident bothered Ms. Langille because she believed that Ms. Aziz was not being truthful when she said that the cord was needed at another ministry. Ms. Langille was also disturbed by Ms. Evans's suspension. On February 12, 1991 Mr. Beaudoin appeared in the afternoon and asked to speak to Ms. Evans. Soon thereafter Ms. Evans left the building looking for a box in which to pack her belongings. Subsequently, she left the building. A staff meeting soon took place and employees were advised that Ms. Evans had been suspended pending an investigation into allegations of mismanagement and insubordination. Ms. Langille was stunned and extremely nervous. The employees were advised that Ms. Evans's off ice would be sealed. Employees were also advised to make no comment if asked about the suspension by the press. A Registrar from another county was brought in temporarily. After Ms. Evans was suspended Ms. Aziz indicated to Ms. Langille that she wished everyone to start with a clean slate. Ms. Langille did not believe her, and felt that she had already tried to do this in the past. Ms. Langille did not feel comfortable speaking to Ms. Aziz and avoided doing so. In June 1991, Ms. Langille had a disagreement with Ms. Aziz about invoice payments for one of the freelance process servers. At the time in question, Ms. Aziz was working in the Registrar's Office when Mr. Roy Bullock came in and asked about payment. Ms. Aziz told him to go and speak with his supervisor, Wally Revell. Later on in the day Ms. Langille was in the Sheriff's +e..-.- ! 19 Office as was Ms. Aziz, Mr. Revell and Mr. Bullock. An extremely unpleasant incident then took place. According to Ms. Langille's account, Ms. Aziz said something different to Mr. Bullock then she had earlier said. Mr. Revell made some complaints about her conduct. Ms. Aziz told Mr. Revell that he did not have any power over this. Ms. Langille then told Ms. Aziz that her lying was destroying the place and that Ms. Aziz was a power junky. Ms. Aziz then cautioned Ms. Langille to remember who she was talking to. Ms. Langille testified that the cumulative total of all of these incidents was to leave her feeling nervous all of the time. Even though Ms. Aziz subsequently transferred her office to the Criminal Courts, there is still a lot of tension in the office. Ms. Langille worries about what will happen next and how her words will be used against her. Her confidence has been affected, and she feels exhausted at the end of each week. She believes that her career with the Ministry of the Attorney General has been ruined, and thinks that Ms. Aziz has poisoned people against her and her abilities. Ms. Langille believes that if the stress continues for much longer she will not be able to take it. She testified that in her twenty years in the workforce this is the first and only time that she has encountered problems of this kind. Ms. Langille was asked numerous questions in cross examination. She agreed that one immediate impact of Ms. Aziz arriving on the scene was that staff had to start paying for parking. Ms. Langille agreed that she and other staff members were told that the reason that they had to pay for parking was because the County became aware that they were not paying for parking when they should have been. Ms. Langille testified that while paying for parking did not cause stress, the implementation of the new policy was stressful 20 because one day Ms. Aziz said that staff could ask judges for unused parking tickets, and later this decision was reversed. Ms. Langille acknowledged that Ms. Aziz advised her that the reason why the decision was reversed was because of the requirements of the Manual of Administration, and that when payment began Ms. Aziz arranged for it to be graduated so that staff did not have to pay full amount right away. It was suggested to Ms. Langille that Ms. Aziz attempted to assist employees by allowing them to lobby judges, and only when she later found out that she could not do this did she reverse her decision. Ms. Langille testified that it did not seem that way at the time, and that previously the Manual had not been strictly adhered to. However, in Ms. Langille's view, the problem was not that Ms. Aziz followed the rules, but the manner in which she went about doing so. It was suggested to Ms. Langille that she has resisted change on several occasions. For example, when procedural changes involving paper work were implemented Ms. Langille expressed concern. Indeed, she agreed that she referred to the particular change as a "load of crap." Ms. Langile also expressed some concerns with respect to changes in procedure involving priority items, but agreed that some of :he changes that have been made have been good. Ms. Langille was adamant that she was looking forward to court integration, and knew that it had to be implemented Ms. Langille was asked some questions about the fax cord that was missing the day that Ms. Evans was suspended. She testified that she subsequently determined that the reason why the cord was missing was so no faxes J 21 relating to Ms. Evans's suspension came into the office while Ms. Aziz was away. Several days after Ms. Evans was suspended, Ms. Langille asked Ms. Aziz about the missing cord because it was important to her to know why Ms. Aziz had taken the cord away. Management counsel suggested that it was none of Ms. Langille's business whether or not the cord was there, and Ms. Langille replied that she considered it to be her business. Some questions were asked about Ms. Langille's first encounter with Ms. Aziz over the filing of her personal legal documentation, and she was also asked about the relationship between the General Division and the Ministry of Housing. Ms. Langille testified that she and other staff in the General Division had been told that they were not to help fill out forms, but that Ms. Aziz would telephone and say that it was their responsibility, and would advise clients that they could expect this kind of assistance. Management counsel suggested that this revealed a communication problem, but Ms. Langille testified that the problem persisted after the General Division explained what it could and could not do. Questions were also asked about breaks. Ms. Langille arrives at 8:45 a.m. and works until 1 :00 p.m. She then takes lunch until 2:15 p.m. and works until 4:45 p.m. Accordingly, she works for 6 3/4 hours a day and is paid for 7 1/4 hours. During her lunch, Ms. Langille pays bills and does errands. Ms. Langille found it stressful after the schedules were changed so as to no longer allow employees to add their two fifteen minute breaks to their lunch periods. Ms. Langille testified that she does not take breaks during the day, and only makes personal calls in the case of emergency. She agreed, however, that in the course of preparing for this case she may have called her lawyer during 22 working hours. Ms. Langille was aware that Ms. Aziz supervised other bargaining unit staff in the two other courts, and told the Board that the three courts employed approximately forty persons, both full- and part-time. Of these forty persons, only the five in the instant case have filed grievances. Ms. Langille was aware of employees who worked in the General Division who were not experiencing any problems at work. Ms. Langille agreed that prior to Ms. Aziz's arrival that there were morale problems in the General Division. A number of questions were asked about these morale problems. Ms. Langille testified that reporting to Ms. Evans was a deputy registrar named Joan Cherry. Ms. Cherry did not testify in these proceedings. Ms. Evans had her office across the hall, while Ms. Cherry worked in the General Division. The morale problems involved Ms. Cherry, and Ms. Langille testified that she complained about having to do Ms. Cherry's work. Ms. Langille was particularly upset about a 1989 performance evaluation that suggested that she was not doing her job when it was Ms. Cherry who was not doing her job. Ms. Cherry became ill and eventually left the Ministry in July 1989. Ms. Nicholson and Ms. Snider received similarly unsatisfactory performance evaluations, and the three complained about them to Ms. Evans. When asked whether or not she had ever been critical about Ms. Aziz to members of the public, Ms. Langille replied that she did not express her opinion unless asked to do so. Ms. Langille testified that she no longer makes critical remarks about Ms. Aziz at the counter of the General Division, and testified that she stopped doing so when these proceedings began. Prior to that she did express her opinion to various people, and said that they were her personal friends and so she did not feel it was improper to share her views with them. It was not inappropriate to do so, in her view, when it was done in confidence, although it may not have been prudent to express these views across the counter. Ms. Langille was asked about the Roy Bullock incident. She testified that Mr. Bullock came in while Ms. Ariz was at the counter in the General Division. Ms. Langille agreed that Mr. Bullock came in waving papers and saying "where is my money?" She also agreed that at this point Ms. Aziz advised Mr. Bullock to go and see Wally Revell. Ms. Aziz said something like it was Wally's responsibility. Ms. Langille agreed that Mr. Revell sends the paper work for Mr. Bullock's payment to the Financial Officer, Accordingly, Ms. Langille agreed that there was nothing bizarre about Ms. Aziz telling Mr. Bullock to go and see Mr. Revell. Ms. Langille testified, however, that it seemed like Ms. Aziz was trying to blame Mr. Revell. When asked whether Ms. Aziz ever said anything to this effect, Ms. Langille testified that she could not remember his exact words. Ms. Langille ultimately agreed that there was nothing wrong with what Ms. Aziz had said to Mr. Bullock. What then of the incident that subsequently followed involving Mr. Revell, Mr. Builock, Ms. Langille and Ms. Aziz? Ms. Langille testified that when Mr. Bullock, Mr. Revell and Ms. Aziz were speaking she could see that Mr. Revell was upset, and felt that he was being blamed for some mix-up. Ms. Langille then said that Ms. Aziz had said that it was Mr. Revell's fault because she had earlier formed the impression that Ms. 24 Aziz was blaming Mr. Revell. At this point, Ms. Aziz advised Ms. Langille that it was none of her business, and Ms. Langille then made the comments about Ms. Aziz's lying destroying the workplace. Mr. Revell then turned to Ms. Aziz and said that "this has to stop" and "you are finished." Ms. Aziz then said "how do you have the power to do this" and that is when the whole issue about power came up. Ms. Langille testified that she was never disciplined for her part in the Bullock incident, nor was she ever disciplined for speaking critically about Ms. Aziz over the counter at work, nor was she ever disciplined for making personal telephone calls on government time, although she did receive a memorandum instructing her to stop doing so. Ms. Langille testified that Ms. Aziz has done some favours for her including giving her a discretionary acting appointment. Ms. Langille testified that she felt that she was being more closely supervised than necessary and than the staff in the other courts. She said that she did not like being watched. It was suggested to her that her "bad mouthing" of Ms. Aziz at work might have something to do with the supervision she was receiving, and she agreed that that would be a legitimate concern to the employer. She also agreed that given the morale problems in the office prior to Ms. Aziz's arrival, it was not surprising that the employer should think that the General Division required some additional supervision. In re-examination, Ms. Langille testified that while other staff have not filed grievances she knows them to have been upset by Ms. Aziz's activities. Ms. Langille was asked some follow-up questions about the 1989 performance evaluation which she received. She testified that she had been doing Ms. 25 Cherry's job in addition to her own because Ms. Cherry could not cope with the demands of her position. At a certain point, Ms. Langille stopped filling in on this basis when she learned that Ms. Cherry was telling Ms. Evans that she and the other employees were not doing their jabs properly. Ms. Evans then apparently told Ms. Cherry that she had to do her own work and soon thereafter she left the Ministry. Ms. Langille testified that prior to Ms. Aziz's arrival she would often stay late and come in on the week-ends to work to catch up on the back log. Other than the 1989 performance appraisal, Ms. Langille has never been criticized for her work. The reason why Ms. Langille spoke to customers about work at the counter was because the customers would ask her how things were going. Evidence of Susan Nelson Susan Nelson testified. She began work with the Ministry in 1976 and works in the Sheriff's Office. She waits on the counter and also does bookkeeping. Ms. Nelson was apprehensive when she learned that Ms. Aziz was appointed Court Services Manager because she had heard that Ms. Aziz had had grievances filed against her at the Ministry of Housing. Ms. Nelson also heard that Ms. Aziz was a "rigid" manager and she was afraid that would affect workplace f I exi bil ity On November 12, 1990 Ms. Nelson went to see her physician] Dr. Cristoveanu. She was upset about the fact that she had a new boss. Dr. Cristoveanu also testified and his evidence indicates the different dates of the consultations which subsequently took place. Initially, things went well. Ms. Nelson found Ms. Aziz to be pleasant. A meeting was held with Wally Revell, Cindy Breen, Susan Nelson and Dianne Aziz soon after Ms. Aziz arrived at work and, as I( ..I. 26 noted in the Cindy Breen evidence, among the issues discussed was the matter of breaks. Ms. Nelson has a four-year-old who takes a school bus to work. She liked to be at home to see him on the bus, and sometimes she liked to meet another child at home for lunch. Ms. Aziz assured her that provided everything was working out she would not interfere with the status quo. When Ms. Nelson received the memorandum in January 1991 changing her hours of work she was devastated. She felt betrayed, and the betrayal was aggravated by the fact that Ms. Aziz was not around to discuss the change. Ms. Nelson testified that in the aftermath of this memorandum, when Ms. Aziz returned from holidays, she refused to discuss the change. Ms. Nelson testified that she knew this because Ms. Evans told her so. After the hours of work were changed and Ms. Aziz returned to the office, Ms. Nelson began to feel that Ms. Aziz was watching her and the other employees. She also formed the impression that the janitor was watching her too. She became suspicious. Ms. Nelson was away sick when Maureen Evans was suspended but she began to worry that she would be next. After Ms. Nelson returned to work she was advised by the local union representative, Mike Campbell, that allegations were being made that she was saying things she should not be saying to members of the public at the counter. Ms. Nelson told Mr. Campbell that she had not said anything to any member of the public, although she had told Mr. Revell that Ms. Aziz did not care about her or her family. This was illustrated to her in April 1991 when her husband's grandmother died and she asked Ms. Aziz for a day of compassionate leave. Ms. Nelson was very close to her husband's grandmother, and when she 27 returned to work Ms. Aziz asked her some questions about her request. This was upsetting to Ms. Nelson and she started to cry. Later Ms. Aziz explained that she was required to ask these questions. Ms. Nelson received the leave. Ms. Nelson told the Board that she used to enjoy work, and that her office was extremely happy and productive. Ms. Nelson is now unhappy at work and is afraid of being disciplined, especially for arriving at work late. In cross-examination Ms. Nelson was asked what constituted many grievances and she indicated that she thought three or four would be a lot. Ms. Nelson was asked about the implications of the changes to her schedule and she testified that while she was worried about her children waiting for the bus, an 8:45 starting time would have acommodated that concern. However, if she then had to leave at 5:00 p.m. that would be inconvenient for after-school activities. The schedule changes were upsetting because the work was getting done and the off ice was known for its efficiency. Ms. Nelson never personally asked to speak to Ms. Aziz about the schedule changes because she felt that Ms. Aziz was not open to change. That part of the memorandum indicating that other arrangements were still possible was brought to Ms. Nelson's attention, and she testified that she asked Ms. Evans to speak to Ms. Aziz about such an arrangement. Ms. Nelson has never been disciplined for being late, and she agreed that she might have become a little paranoid about some things. Ms. Nelson also agreed that the questions that Ms. Aziz asked with respect to the request for a compassionate leave were related to that request. Ms. Nelson did not agree, however, that the questions had to be asked, given the obvious nature of the request, and so this was upsetting to her. 28 Evidence of Dr. Nicholas Cristoveanu Dr. Nicholas Cristoveanu testified. He has been Susan Nelson's family physician since 1981. Dr. Cristoveanu testified that Ms. Nelson suffers from major depression, sometimes referred to as endogenous depression, and that this was first diagnosed in 1988. At that time, Ms. Nelson saw a psychiatrist and was treated with medication. While on medication in 1988 and 1989, Ms. Nelson returned to a normal state, so much so that one would not ordinarily know that there had been a problem. This was not so on November 12,1990 when Ms. Nelson again consulted Dr. Cristoveanu whose medical report was introduced into evidence: [Ms. Nelson] was doing well on her full dose imipramine when I saw her in relation to work stress, starting November 12,1990. At that time she mentioned she had a new boss and that there was a resultant restructuring of her job and the office. She found the changes in a system that was working well with happy employees, extremely stressful. This caused her increasing symptoms of depression and anxiety. At that time she did not wish to take time off work. I saw her again on January 1 1, 1991 with the major complaint of job stress. Her depressive symptoms were relatively stable and she was continuing on full dose antidepressants. We discussed again her having time off which she declined. On February 12, 1991 I saw her again in relation to stress anxiety and depressive feelings in relation to her job. At this point she agreed that she required time off work to help her cope, so I prescribed one month off and gave her my usual off work form which stated she would be off for "medical reasons," I was thus very shocked to receive a phone call from a woman who claimed she was Mrs. Nelson's supervisor and was making inquiries into these medical reasons and whether or not the medical 29 leave was job related. I declined to speak to her without Mrs. Nelson's authorization. I felt this phone call to be highly inappropriate. On February 26,1991 I saw her again and she was feeling much better off work. This made it clear to her that work was causing her distress, irritability and anxious feelings. She returned to work March 11, 1991. [remainder omitted] Dr. Cristoveanu testified as to this report, and also told the Board that prior to November 1990, work-related problems were never among those factors causing Ms. Nelson depression and anxiety. He was of the view that Ms. Nelson's depression, in contrast to her stress, was more the result of other factors. The job-related nature of the stress became clear to Dr. Cristoveanu when he examined Ms. Nelson at the conclusion of her sick leave. In cross-examination, Dr. Cristoveanu was asked a number of questions about Ms. Nelson's medical history and testified that while he was not an expert, it was possible that on-going depression might make one more susceptible to stress. Dr. Cristoveanu also agreed that there was a possibility that a person could worry about something at work needlessly and that this would cause stress. However, he testified that he did not find any ring of unreasonableness to the job-related concerns which Ms. Nelson raised, including the changes to her schedule and the authoritarian practices of her new supervisor. Dr. Cristoveanu was then referred to his notes for the consultation on November 12, 1990 which indicate that Ms. Nelson was suffering undue stress, and he testified that Ms. Nelson advised him that she was under stress because of a new boss and the pending restructuring and not 30 because of the changes to her schedule which would not be implemented for some months. Evidence of Lynn Snider Lynn Snider testified. She began to work in the General Division in February 1980. She stopped working there in April 1991 when she left to take a new job with a different ministry. When Ms. Snider first heard about Ms. Aziz's appointment she was apprehensive because of her previous dealings with her, and because of rumours about her from other employees whom she managed. Several years ago when Ms. Aziz was filing some personal legal documents, Ms. Snider attempted to assist her and found her to be difficult. Ms. Snider testified that Ms. Aziz did not seem to understand that there were rules which had to be followed. Ms. Snider testified that Ms. Azir's first few weeks on the job went well. Ms. Snider indicated that she was looking forward to court reform, and that Ms. Aziz told her and the other employees that she was pleased with how things were going. Ms. Aziz told her that her mandate was to implement a new strategic plan, not to make changes in the way things were done. Like the other grievors, Ms. Snider's schedule was changed in early 1991 when she received the memorandum from Ms. Aziz indicating changes in the way breaks could be taken. Ms. Snider had been adding her breaks to her lunch period since the early 1980s. She arrived at work at 8:30 a.m. and left at 4:30 p.m. After the new system was introduced Ms. Snider could only take one hour for lunch and had to stay an extra fifteen minutes at the end of the day. She testified that she now supposedly took two breaks a day, one in the morning and one in the afternoon, but in practice she did not take the two breaks because there were always people who needed to be served at the counter. Ms. Snider was upset about the change to her schedule, as well as the manner in which the change was implemented. Ms. Aziz, as the other grievors have testified, was not present to discuss the change as she was away on business, and later away on vacation. Ms. Snider was asked about the changes in the General Division after Ms. Aziz's arrival, and her evidence mirrored that of Ms. Langiile. Ms. Snider also described a number of disturbing incidents in the workplace. Ms. Snider was in the office the day that Ms. Evans's parking sign was taken down, and Ms. Snider was upset about this. She was also upset when Ms. Evans was suspended, and the manner in which Mr. Beaudoin explained the suspension to her was disturbing, as were his instructions not to say anything about it in dealing with the press. Ms. Snider recounted an incident wherein Ms. Aziz advised her and Donna Nicholson that they would be permanently receiving a higher classification, and then later issued a memorandum indicating that the higher classification was on an acting basis. Ms. Snider felt like she was being watched by Ms. Aziz, and that her comings and goings were monitored. Ms. Snider was also disturbed about paying for parking and the fact that one day Ms. Aziz said that the employees could lobby the judges for unused tickets and then she later said that they could not and had to pay. Ms. Snider described the workplace as confusing and stressful. Indeed Ms. Snider testified that she felt threatened and also was worried about her own employment prospects. The day Ms. Evans was suspended Ms. ?- I 32 Snider felt so upset that she could barely drive home. Accordingly, she went and consulted her doctor. Among the symptoms which she presented were tension, insomnia and stomach cramps. Ms. Snider was advised by her doctor that she had high blood pressure, and she told her doctor about goings on at work. Ms. Snider's physician advised her to look for a new job. Several weeks after Ms. Evans was suspended Ms. Snider went back to her doctor's office, and she was advised to take some time off work. Ms. Snider continued to work and began to look for a new job. Like the other grievors, Ms. Snider testified that following Ms. Aziz's arrival the whole atmosphere of the workplace changed and that the change was not positive. Ms. Snider felt like she had knots in her stomach and it was a struggle to get through each week. In cross examination Ms. Snider was asked about court reform and she testified that she welcomed it. Management counsel suggested that this was not the case, but Ms. Snider insisted that it was. Counsel introduced Ms. Snider's 1989 performance evaluation into evidence. Ms. Snider did not agree with the evaluation she received and wrote on her appraisal: "I feel that because of the threat of what regionalization will mean to me and the lack of proper supervisory skills of an immediate supervisor, my enthusiasm and motivation has decreased." Ms. Snider explained that these comments were made before she knew what court reform was going to be all about. Ms. Snider agreed that there were some problems in the General Division prior to the arrival of Ms. Aziz, but testified that these problems were the result of employees having to cover up for Ms. Cherry. Ms. Snider agreed that she was advised by memorandum from Ms. Aziz that there would be some changes, and she agreed that some changes were i 33 operationally necessary. Ms. Snider testified that notwithstanding her apprehensions about her job security, she was never disciplined. Nevertheless, she insisted that she felt threatened, and she also felt as if she was caught up in a web of deception and lies. Ms. Snider did not like the way the changes to the breaks were made, but agreed that she was able to work out a modification with Ms. Evans. She did so after reading the memorandum indicating that flexibility was still possible. The details of the arrangement Ms. Snider made need not concern us here. Ms. Snider testified that if she had child care problems she could deal with them provided that she made-up any missed working time, and that this was satisfactory to Ms, Evans and Ms. Aziz. Ms. Snider was asked about the problems with respect to her classification, and she testified that on Ms. Aziz's first or second day of work she asked her what her classification grievance was all about. Ms. Snider explained why she felt she should move up in the OAG grid. It was suggested to Ms. Snider that several days later Ms. Aziz sent her a memorandum indicating that after looking into the matter she could not offer her the permanent classification she sought, but could offer her acting pay at the higher level. It was also suggested that apologies were conveyed. Ms. Snider agreed that this was so, but testified that she rejected the offer. She earlier testified that Ms. Aziz had offered her the higher classification on a permanent basis. Accordingly, she was disappointed and upset by the change. Ms. Snider testified that when she moved to her new job Ms. Aziz got her a card and there was a cake. Nevertheless, she did not feel happy about how she had been treated. She also felt concerned about the janitor and noted i I 34 that he seemed to be watching her. Ms. Snider was asked whether or not she ever complained to members of the bar while at work, and she testified that if she was asked how her day was she would tell the truth. Ms. Snider would discuss Ms. Aziz with other employees while at work. Evidence of Dr. Jill Greenaway Dr. Jill Greenaway testified. Ms. Snider has been a patient of Dr. Greenaway's for the past ten years. Dr. Greenaway saw Ms. Snider on February 12, 1992. Ms. Snider came in for a routine physical examination, and it was apparent to Dr. Greenaway that she was upset. Her blood pressure was up, and she told Dr. Greenaway that she was under stress and that it was related to her work. Dr. Greenaway testified that Ms. Snider is normally level headed and that on this occasion she was acting quite unlike herself. In 1986, Ms. Snider had some problems with hypertension, but they had not returned since then. Dr. Greenaway saw Ms. Snider a second time about one week later to review her blood pressure. Ms. Snider was still upset and was feeling light headed. Dr. Greenaway suggested that she take some time off work, and there was a discussion about her changing jobs. Ms. Snider returned for a consultation in mid-March 1991. At this time Ms. Snider appeared to be feeling better and her blood pressure was normal. In cross-examation, Dr. Greenaway was asked a number of questions about Ms. Snider's blood pressure. Dr. Greenaway did not prescribe any medication for the blood pressure, nor did she conduct any other tests to determine stress. She was, however, concerned about the elevation in blood pressure. Dr. Greenaway determined that the stress was caused by events at work, and 35 did so based on the information which was provided to her by Ms. Snider. Evidence of Donna Nicholson Donna Nicholson testified. Ms. Nicholson began her career with the Ministry in 1960, working until 1970. She returned to work in 1982 and has been permanent since 1985. Ms. Nicholson works in the General Division. The change in breaks introduced in January 1991 affected Ms. Nicholson because after the change was implemented she did not get to take beaks. She was told that she had to take either formal or informal breaks, or a combination of the two. Ms. Nicholson decided to take an informal break in the morning and an informal break in the afternoon. This system did not work because there were always people in the off ice who needed to be served, and lawyers would say things if she was sitting at her desk drinking coffee while they had business to attend to. When Ms. Nicholson began work her two breaks were attached to her lunch. Ms. Nicholson was working the day Ms. Evans was suspended. When she saw that Ms. Evans was crying she too began to cry. Ms. Nicholson was shocked to learn that Ms. Evans had been suspended, and testified that the results of the subsequent investigation were never explained to her. Ms. Nicholson described some of the changes in the office environment since Ms. Aziz arrived on the scene. She testified that the office used to be a pleasant place in which to work, but that this has changed and employees are left wondering who will be next to go. Ms. Nicholson does not feel any trust in the system and feels as if she is being watched. When Ms. Nicholson heard about the missing parking tickets she began, for the first time, to lock her desk. Ms. 36 Nicholson has considered leaving her job but has not done so in part because she is older and testified that she has fewer job opportunities. In cross-examination Ms. Nicholson was asked about past and current practice with respect to breaks. When she began to take one informal break and one formal break, she would take the latter at 3:00 p.m. or 3:15 p.m. Ms. Nicholson agreed that these are both busy times in the General Division. Ms. Nicholson was also asked about paying for parking, and she agreed that at certain times in the past, prior to Ms. Aziz's arrival, that she has paid for it. Nevertheless, it was Ms. Nicholson's general understanding that parking was free, and while Ms. Nicholson was not exactly sure where she got her parking cards from, that all changed after Ms. Aziz arrived and employees were advised that they had to start paying. With respect to her concern about "who would be next", Ms. Nicholson agreed that she is still on the job. She did not agree, however, that her concern was the result of needless worry, given what happened to Ms. Evans. Ms. Nicholson was asked if what happened to Ms. Evans was not a matter betwen Ms. Evans and the employer and that if Ms. Evans wished her to know the details of it she could tell her. Ms. Nicholson replied that Ms. Evans could not do so because she was told not to talk to any of the employees. Ms. Nicholson also stated that as an employee she felt that she should have been told more about it. All Mr. Beaudoin told her was that Ms. Evans had been suspended pending an investigation. The results of that investigation were never formally communicated to her. Ms. Nicholson was asked if she would agree that there was a morale problem i 37 in the General Division in 1989. While Ms. Nicholson had indicated as much on her performance appraisal, she testified that the problem was with Ms. Cherry. Ms. Nicholson was asked if she discussed the "Cherry problem" with other employees and agreed that they had probably done so. She was then asked if a collective decision was made by the employees in the General Division to bring this problem to the attention of management by everyone commenting on it on their performance evaluations. Ms. Nicholson denied this suggestion, and stated that she had a problem with Ms. Cherry, and that she brought her problem to the attention of management. Ms. Nicholson agreed that after Ms. Cherry left she did not receive hands on supervision as Ms. Evans's office was across the hall. This changed after Ms. Aziz arrived. Ms. Nicholson testified that this did not bother her. When asked whether it was true that within one month she, Ms. Langille, Ms. Snider and Ms. McLean had decided to ostrasize Ms. Aziz, Ms. Nicholson testified that she did not recall thinking that. Ms. Nicholson was asked if part of this "agreement" was not to speak to Ms. Aziz when alone. She testified that she was not comfortable in speaking to Ms. Aziz alone, but did not recall any agreement not to do so. Ms. Nicholson did not agree that within one month of her arrival, employees in the General Division were giving Ms. Aziz the "cold shoulder." Ms. Nicholson did agree that she and the other employees wanted Ms. Aziz to go, and reference was made to the grievances which request this remedy Ms. Nicholson disagreed that that there was a service "pecking order" at the General Division prior to Ms. Aziz's arrival. Ms. Nicholson did not agree that Ms. Aziz pushed customer service more than anyone else, and testified that 38 this has always been a priority. Ms. Nicholson did agree that management became more visible, and testified that she was looking forward to change. Ms. Nicholson never heard Ms. Langille or Ms. Snider complaining about Ms. Aziz to clients in the office. She denied the suggestion that complaints of this nature continued throughout 1991. Evidence of Maureen Evans Maureen Evans testified. At the time of her suspension and subsequent resignation Ms. Evans had thirty-two years of seniority. She became Registrar in June 1979. Ms. Evans considered applying for the Court Services Manager position. She spoke to Mr. Beaudoin who indicated to her that she would not get the job. Since Ms. Evans had six years until retirement she eventually decided not to apply for the position. When Ms. Evans heard that Ms. Aziz had been given the job she was surprised, and one reason why was because Ms. Aziz had earlier told her that she was not an applicant. After Ms. Aziz began work things initially went well. Ms. Evans offered her support. Soon enough, however, matters went awry. Ms. Evans testified about the January memorandum in which Ms. Aziz changed the method of taking breaks in the Sheriffs Office and General Division. Ms. Evans testified that she earlier advised Ms. Aziz against making this change; that it would not work, that the employees were used to flexible breaks, and that it was not necessary. Ms. Evans testified formal breaks would not facilitate service given the nature of the work in the office. Ms. Evans testified that Ms. Aziz stated she wanted uniformity to facilitate integration, and that the adding of the breaks to the lunch periods was "cr i m i nal " 39 Ms. Evans testified that before Ms. Aziz arrived there was no problem with breaks, and that if the office was busy, employees would work right through the lunch hour, and take work home and come in on week-ends to ensure that the work got done. Ms. Evans testified that she advised Ms. Aziz that the employees would be upset. Ms. Aziz replied that she did not mind, and that she liked grievances. With respect to the removal of her parking sign, Ms. Evans testified that it was removed on December 6,1990. A local lawyer found it and gave it to her. Ms. Evans was furious and went to see the City Administrator, Mr. Silver, who indicated to her that Ms. Aziz wanted the sign taken down. Ms. Evans then telephoned Ms. Aziz and asked what she was doing. Ms. Evans explained that she worked late at night and that the parking lot was dark, and she wanted a parking place near the courthouse. Ms. Aziz replied that she would get back to her, and then later said that she would have the sign reinstalled. Ms. Evans was extremely upset and discussed the matter with Judge Campbell and others. Ms. Evans also testified that one day Ms. Aziz told her that employees were complaining over the counter. When Ms. Evans heard this she instructed her employees to stop doing so. Subsequently, Ms. Aziz again advised Ms. Evans that the staff were still complaining over the counter, and indicated to her that she had heard this information from Susan Breau and David Hurley, both of whom were local lawyers. Ms. Evans then told Ms. Aziz that she had discussed this matter with employees in the General Division, and had been assured that they were not complaining in public. Ms. Evans then met Ms. i 40 Breau in the hallway of the Courthouse and asked her about it. Ms. Breau denied the allegation. Later that day, Ms. Evans spoke with Mr. Hurley's wife, who worked with him, and she indicated that she did not think that Mr. Hurley had registered these complaints. Ms. Aziz subsequently telephoned Ms. Evans and said that she had no business talking to Ms. Breau about this matter. According to Ms. Evans, Ms. Aziz said that she was forbidden to do so, and then she also ordered her not to talk to Mr. Hurley. That night Mr. Hurley called her at home and left a message that he was not involved in this matter. He later sent a letter to this effect to both Ms. Evans and Ms. Aziz. Ms. Evans testified that she investigated these allegations because she thought that Ms. Aziz was making them up. Ms. Evans also testified about a request that Ms. Aziz made that she vacate her office and move to another one in early February 1991. Ms. Aziz wished to move into her office. Ms. Evans wrote back indicating that it would not be possible for her to move out on the day requested by Ms. Aziz. Ms. Evans did not wish to give up her office, but realized that she had to and so indicated in her letter that she could not move out until the following Monday as she had to attend a meeting. On February 12,1991 Ms. Evans received a written reprimand from Ms. Aziz for communicating confidential personnel information to Ms. Breau and others, for failing to support management, and for refusing to vacate her office as instructed. Later that day, Mr. Beaudoin arrived and handed Ms. Evans another letter suspending her from her position because "allegations of insubordination as well as questionable management and operational practices have been brought to my attention." Mr. Beaudoin requested that Ms. Evans hand over her office keys, leave the courthouse and not return, and not communicate with any of the employees. He indicated 41 that an investigation of the allegations would take place. Ms. Evans testified that she was shocked by these events. She got her things together, called Judge Campbell to advise him what had happened, got in her car and went home. The following September or October Mr. Beaudoin telephoned her and told her that she had been exonerated and could return to work. Ms. Evans choose to take early retirement instead. She returned to the courthouse to clear out her office, which had been sealed for the previous six months. In cross-examination, Ms. Evans gave some more information about her job history. She was appointed Registrar in 1979 and agreed that she did not obtain the job as a result of a regular job competition but as the result of an order in council. She testified, however, that it was not because of any political connections because she did not have any. She did have the support of the local bench and bar. Prior to court reorganization Ms. Evans ran her off ice with considerable autonomy, although there were annual audits. Ms. Evans was asked about a "pecking order" in the courthouse in which senior and more prestigious lawyers received better service, and testified that this claim was not correct. Sometimes junior counsel would defer to senior counsel, but otherwise her employees did not differentiate between lawyers. Ms. Evans was asked whether she was aware of morale problems in the office in 1988-1 989, and she testified that she was not. In her view, the morale problems began after Ms. Ariz arrived. The only problem in the General Division that Ms. Evans was aware of was a concern with classification. Ms. Evans did agree that the employees were unhappy because ths Deputy 42 Registrar was not doing her job, but she testified that she was not aware that this was affecting morale. Ms. Evans agreed that there was some general apprehension about change resulting from court integration, but that everyone wanted change. Ms. Evans was asked some questions about employee appraisals and about some concerns expressed on those appraisals about morale problems in the off ice. She reiterated her evidence that she was aware of these concerns, but did not believe that it was affecting morale, and she pointed out that the work was getting done. Ms. Evans testified that writing performance appraisals was not one of her strengths. Ms. Evans was asked whether or not she was aware that the employees in the General Division were airing their grievances about Ms. Aziz to members of the public, and she testified that the information she had about this was provided by Ms. Aziz. Ms. Evans had no direct knowledge of this. After Ms. Aziz told her about complaints being made to Ms. Breau and Mr. Hurley, she went to see her employees and asked them if they had been talking to lawyers. Ms. Evans did not mention any names, and all of the employees denied the allegations. Ms. Evans felt it was important for her to check these allegations out; not to chastize the lawyers, but to get to the bottom of it. Ms. Evans ran into Ms. Breau in the courthouse hallway, and after asking her about it Ms. Breau was visibly angry. Ms. Evans testified that she denied the allegations. Ms. Evans was referred to the Elaine Freedman Report, about which more will be said later, in which Ms. Breau is quoted as saying that staff had been complaining to her. Ms. Evans said that this reference is to Sheriff's Office staff, not employees in the General Division. *--- I 43 Ms. Evans was asked about the removal of her parking sign and she agreed that it was put back up the same day that it was taken down. Ms, Evans was asked whether Ms. Aziz apologized to her that day, and she replied that she could not recall as she was so upset about what had taken place. Ms. Evans was asked about changes to breaks, and she told the Board that she had discussed these changes with her staff after the appearance of the memorandum announcing the changes. Ms. Evans objected to the changes, and did not believe that they had to be so regimented and inflexible. Ms. Evans was asked if she agreed that the changes were made so that all employees worked the same 7 1/2 hours a day, and she replied that they always did that. With respect to moving her office, Ms. Evans agreed that discussion had been going on about this for some time, and that it had been her understanding that she would not have to move offices after the Court Services Manager was appointed. Ms. Evans enlisted the assistance of Judge Campbell who wrote a letter to Mr. Beaudoin, and who also spoke to Ms. Aziz about this matter. Ms. Evans was asked about the meeting between Judge Campbell and Ms. Aziz. Ms. Evans was present for part of that meeting and testified that Ms. Aziz yelled at the judge and then marched out of the office. Ms. Evans had a long professional relationship with Judge Campbell, and the two of them would often discuss matters relating to the administration of the courthouse. Ms. Evans did not think that there was anything wrong in talking to him about what was going on. Ms. Evans was asked about a meeting she had with Ms. Aziz early in November 1990. While she did not recall saying that the employees could be difficult, 44 she did initially recall telling Ms. Aziz that they would "work to rule" if they did not like something management had done. Ms. Evans then corrected herself to say that she did not use the words "work to rule," and could not recall what exactly she had- said at the meeting. Ms. Evans was aware that the employees in the Sheriff's Off ice did not wish to cross-train, and she explained this by noting that they had classification grievances outstanding. Ms. Evans was not aware that employees in the Sheriffs Office did not wish to work for her. Ms. Evans was also asked some questions about when and how she learned that Ms. Aziz had been appointed Court Services Manager, and about some of her activities, and those of her counsel, after her suspension. Suffice it to say that Ms. Evans learned that Ms. Aziz had been hired from Ms. Aziz's sister. After learning this she communicated the information to others. She was later spoken to by Mr. Beaudoin about communicating confidential management information. After Ms. Evans was suspended she had some contacts with the local bench and bar committee, as did her counsel. Ultimately, neither of these issues are very relevant to the disposition of the grievances before us. Evidence of Bonnie McLean Bonnie McLean testified. Ms. McLean works part-time an contract as a judge's secretary, and her office is located down the hall from the General Division and immediately adjacent to the judge's chambers. Ms. McLean was working that day in December 1990 when Ms. Evans's parking sign was taken down. She was in her office when Ms. Aziz came in to see Judge Campbell. Ms. McLean could hear voices being raised, and she was concerned because she had never heard Judge Campbell raise his voice before. Ms. McLean described 45 Judge Campbell as a 72 year-old gentleman with a heart problem. Ms. McLean testified that several days later Ms. Aziz asked to speak to her and inquired whether or not she was angry with her. Ms. McLean tried not to involve herself in the conversation, but indicated that she was concerned about the episode in Judge Campbell's office. Ms. Aziz stated that she respected Judge Campbell. Ms. McLean testified that she was not comfortable having this conversation with Ms. Aziz, and that she had heard about incidents in which Ms. Aziz twisted conversations around if there were no witnesses. Ms. McLean testified that the employees had generally decided not to speak to her if they were alone. Ms. McLean also told the Board that she had another conversation with Ms. Aziz in February 1991 regarding Judge Campbell's parking card. At the beginning of that month Ms. McLean requested Judge Campbell's card from Ms. Aziz but did not get it. She tried to get it several more times, and then Ms. Aziz advised her that the cards had gone missing. Ms. McLean was concerned about this. She testified that everyone felt as if they were under suspicion, and that some employees began locking their desks. Ms. McLean speculated to a number of employees that there might be a thief around. Ms. McLean also testified about another incident in which she considered applying for a posted position which was restricted to employees of the Ministry of the Attorney General, Courts Administration, Frontenac County. She indicated her interest to Ms. Aziz, who said that she should apply for it. Soon thereafter, however, a revised posting came out restricting the competition to classified staff. Ms. McLean then realized that as a contract employee she was not eligible for the position. This was upsetting to her and Ms. Aziz came over and asked what was wrong. Ms. McLean explained what was wrong, and she testified that Ms. Aziz then said "so" in a belligerent manner. Ms. McLean then went into her office and called her union representative. Ms. Aziz followed her in, and determining that it was a personal call, she instructed Ms. McLean to put the phone down. Ms. McLean felt shaky and nervous and did not reply to a comment made by Ms. Aziz. Later in the day she apologized to Ms. Aziz, and said that she did not know what restricted meant on the first posting. What was upsetting to her, however, was Ms. Aziz's manner. Ms. McLean also testified about an incident in May 1991 when Ms. Aziz came in and asked for Bonnie Langille's home telephone number. Ms. Langille was away sick, and Ms. Aziz needed to get into the off ice safe, and so wished to call Ms. Langille to get the combination, The only other employee who had the combination, Donna Nicholson, was also away sick. Ms. McLean knew that Ms. Langille's telephone number was unlisted, and she did not feel that it was proper for her to give it out. She testified that after indicating this to Ms. Aziz, Ms. Aziz got very belligerent and demanded the number. Instead, Ms. McLean dialed the number and then passed the telephone over to Ms. Aziz. This encounter was upsetting to Ms. McLean, and she testified that she found Ms. Aziz threatening. She also testified that Ms. Aziz's moods would swing from threatening to sweet, and that this encounter left her feeling shaky, When Ms. Evans was suspended Ms. McLean thought that they had suspended the wrong person. In the aftermath of that suspension, Ms. McLean felt concerned about her own position. She testified that morale in the office began to deteriorate after Ms. Aziz arrived. In cross-examination, Ms. McLean testified that she was a casual friend and neighbour of Ms. Langille outside of work, but did not socialize with the other grievors. She testified that by the time Ms. Aziz had the meeting with Judge Campbell she and other employees had collectively decided not to meet with Ms. Aziz alone. She testified that in her meeting with Judge Campbell, it was Ms. Aziz who was yelling, and that while Judge Campbell also raised his voice, he did so in response to Ms. Aziz's yelling. Ms. Evans was also at this meeting, although she left at some point. Ms. McLean felt that Ms. Aziz was disrespectful to Judge Campbell, but that he was not disrespectful to her. Ms. McLean also testified that after Ms. Aziz told her that the parking cards were missing, she went into the Sheriffs Office and told the employees working there about it and expressed her concern to them. Ms. McLean felt that there was a morale problem because her own morale had gone down, and she could tell that other employees were edgy and unhappy. She testified that there was no morale problem prior to Ms. Aziz's arrival. While employees in the General Division were unhappy about Ms. Cherry, Ms. McLean testified that this was not a moral problem but a problem with Ms. Cherry not carrying her load. Ms. McLean testified that the morale problem arrived with Ms. Aziz. Ms. McLean had heard rumours about Ms. Aziz prior to her arrival but had an open mind. Nevertheless, within a month, Ms. McLean was wary of her, and the reasons included the incidents described above. Ms. McLean also did not like the greater emphasis placed on confidentiality, which was accompanied by a 48 general lack of management communication. Ms. McLean could tell that other employees were unhappy because when she would go into their offices they would express their unhappiness to her. This did not happen every time, but it happened. The communication problem was illustrated to Ms. McLean by the insufficient information and misunderstandings surrounding the job posting. Ms. McLean was asked a number of questions about her concerns with respect to communication, and she agreed that she learned, for example, about the posting at a staff meeting. She also agreed that staff meetings were a useful means of communicating information, and that she clearly indicated to Ms. Aziz that she was interested in applying for that position, and that Ms. Aziz indicated in reply that she should. Ms. McLean testified that Wally Revell was sitting beside her at the time because she made sure that she had someone with her when she asked Ms. Aziz about the matter. Ms. McLean agreed that when the notice was re-posted there were a number of changes to it, including the more explicit restriction to classified employees only. Ms. McLean also agreed that the reason why Ms. Aziz spoke to her after the notice was re-posted was because she found her, Ms. Langille and Mr. Revell standing in the hall looking at the notice and that it was apparent to her that something was wrong. Management counsel asked if it was true that Ms. McLean accused Ms. Aziz of misleading her in the ensuing discussion, and Ms. McLean testified that this was correct; that she felt that she had been misled, that she was upset, but that she was not aggresive. With respect to the incident wherein Ms. Aziz entered Ms. McLean's office while Ms. McLean was on a personal call with her union representative, Ms. I 49 McLean insisted that Ms. Aziz's tone was unreasonable, and in the result it was hard to separate the tone from the request. The saying of "so" and the general threatening tone could not, in Ms. McLean's view, be separated from the request to put down the telephone which may or may not have been reasonable. With respect to the subsequent apology, management counsel suggested that there was more to it than testified to in chief. In particular, counsel described an incident in which Ms. McLean refused to do some work which was assigned to her. Ms. McLean agreed that the incident had taken place, and testified that she felt, since she could not apply for the posted position, that she was not qualified to do the work in question. She said that she returned the work and indicated that it was not in her job description. She agreed that she might have told Ms. Aziz that she would not do it, and that this was insubordinate. She later apologized for this insubordination. Ms. McLean agreed that Ms. Aziz took no action with respect to this insubordination, and just let the incident pass. In Ms. McLean's view, the problem could be traced to the fact that Ms. Aziz misled her with respect to her eligibility for the posted position. While Ms. McLean now agreed that restricted, as that term appeared on the first posting, meant classified, as that term appeared on the second posting, she was not familiar with the terms at the time in question, and that Ms. Aziz would have known that she was operating under a false assumption when she misled her. This was exacerbated by her belligerence. Ms. McLean was also asked about Ms. Aziz's request for Ms. Langille's telephone number, and she agreed that Ms. Aziz made the request at approximately 9:00 a.m., and that the court should have been open and 50 operating at that point and this required opening of the vault. Ms, McLean wondered why Ms. Aziz did not have the combination, and she reiterated her earlier evidence that Ms. Aziz was threatening in the way she asked for Ms. Langille's telephone number. Ms. McLean testified that she could understand if Ms. Azir had been agitated that the General Division was not open, but she could not understand the way in which her manner changed after she refused to provide her with Ms. Langille's telephone number. Evidence of Roy Bullock Roy Bullock also gave evidence. As the evidence of the grievors makes clear, Mr. Bullock serves papers, working out of the Sheriffs Office. He told the Board that in June 1991 he had some problems in receiving payment. Normally, he submitted his invoices to Wally Revell, who sent them away for processing, and two weeks later Mr. Bullock would receive his money. Beginning in April or May, the system stopped working as it was supposed to. Mr. Bullock approached Ms. Aziz on several occasions to discuss this matter with her. One such occasion was on June 12,1991. Mr. Bullock was annoyed because he had received a phone call from his bank to the effect that he did not have enough money in his account to cover a check. This humiliated him, and it was not his fault because he was owed money. He spoke to Ms. Aziz, while she was in the General Division, and asked her why he was not getting his money. She told him to speak to Wally Revell, as Mr. Revell was his supervisor. Mr. Bullock testified that he was annoyed by this remark, and said that he had better see his lawyer. He was annoyed because it was her office, not Mr. Revell's, which was responsible for sending the invoices to Toronto. Mr. J 51 Bullock also testified that he has noticed a change in atmosphere in the courthouse since Ms. Aziz arrived. It is no longer a happy and jovial place. He told the Board that the employees appear to him to be depressed. Mr. Bullock was asked some questions in cross-examination. Suffice it to say, it is not clear that the incident he described took place exactly when he said that it had. Moreover, it is clear that at the time in question Mr. Revell was his supervisor, and was responsible for beginning the payment process by submitting the invoices. After the incident in question, Ms. Aziz sent Mr. Bullock a memorandum explicitly setting out the process to be followed. Mr. Bullock was asked why he was so annoyed that Ms. Aziz sent him to see his supervisor, and he replied that he was not annoyed by this. Evidence of Susan Breau Susan Breau testified under union subpoena. Ms. Breau is a Kingston litigation lawyer, and she gave evidence about a certain incident involving a number of the grievors and Ms. Aziz referred to in the evidence set out above. Ms. Breau first met Ms. Evans when she was in law school. In early February 1991 Ms. Evans asked to speak to her in her office. Ms. Breau went inside and Ms. Evans asked her if any of the staff had been complaining to her about working conditions in the courthouse. Ms. Breau replied that some had, and Ms. Evans then asked if Ms. Breau had raised this issue with Ms. Aziz. Ms. Breau said that she had not. 4 Ms. Breau testified that she had a good working relationship with the staff at both the Sheriffs Office and General Division, and considered some of them to be friends. She had known them for a number of years and she noticed, 52 beginning in November 1990, that they were unhappy, and that morale had changed. Ms. Evans also asked Ms. Breau if she knew whether David Hurley, another lawyer in town, had complained to Ms. Aziz and Ms. Breau replied that she did not, and noted that Mr. Hurley did very little litigation and so would not be required to file documents in court. Ms. Breau testified that Ms. Evans was convinced that she had complained to Ms. Aziz, and told Ms. Breau that if she had complaints about the staff she should make them to her. Ms. Breau maintained that she had not complained, and that if she did have a complaint she would raise it first with Ms. Evans. Ms. Breau did tell Ms. Evans that some of the staff had spoken about their unhappiness in the workplace, and Ms. Breau also recounted for the Board an example of an organizational change in the office which she did not like but which the staff urged her to try. This incident reflected, in Ms. Breau's mind, the willingness of the staff to adapt to new changes. The day after this meeting with Ms. Evans, Ms. Breau met Ms. Aziz. This was the first time that the two had met, although Ms. Breau knew who Ms. Aziz was. The two met at Family Court, and Ms. Breau asked to speak to Ms. Aziz. Ms. Aziz agreed, and Ms. Breau brought along another lawyer to act as a witness. Ms. Breau asked Ms. Aziz why she was saying that she, Ms. Breau, had been making complaints about the staff. Ms. Aziz became very angry at Ms. Evans and said that she should not have said anything as she had been told this in confidence. Ms. Breau defended Ms. Evans and said that she had every right to bring this to her attention. The conversation cdntinued and Ms. Aziz stated that she had heard rumours to the effect that the staff were complaining to Ms. Breau. Ms. Breau said that the only place the issue could have been discussed was at the local Brew Pub, and she asked Ms. Aziz for 53 her source of information. Ms. Breau testified that she was devastated by the misuse of her name. Ms. Breau testified that since February 1991 it is impossible to have a friendly conversation with the staff. While the atmosphere prior to Ms. Aziz's arrival was not perfect, it was relatively harmonious. Ms. Breau testified that she told Elaine Freedman, a government lawyer asked to investigate the suspension of Maureen Evans about whom we will hear more, that while there was a certain pecking order in the courthouse with some lawyers getting better service than others, the atmosphere was relaxed and helpful until Ms. Aziz arrived. In cross-examination Ms. Breau testified that sometimes the General Division was busy and sometimes it was not. Ms. Breau could not recall if employees complained about Ms. Aziz by name, or if their complaints were more generalized. Ms. Breau was asked about the incident she descrived in her evidence in chief involving a procedural change in the General Division that indicated to her that the employees were open to change. She did not know that this particular initiative was suggested by the employees. She did know that the staff no longer seemed to be happy. Ms. Breau discussed this unhappiness and tension with employees and colleagues, and in many cases she found that her impressions about what was going on were confirmed by others. Ms. Breau testified that it was quite possible that this issue would have been discussed at a Friday night get-together at the Brew Pub. Ms. Breau was concerned that her name had been misused. She was also concerned when she learned that the staff had been directed not to bring any 54 more complaints to her attention. Ms. Breau was concerned that she had been used to silence her friends. Management counsel asked Ms. Breau whether or not management was entitled to instruct its employees not to discuss personnel and other issues with customers. Ms. Breau replied that she was a member of the legal profession using the courthouse, and so it was incorrect to characterize her as a customer. In Ms. Breau’s view, she was, in part, the employer. As a user of the court system, and as an officer of the court, she was a partner in that system, and so had some say in how that system functioned. Accordingly, in her opinion, employees had every right to bring their grievances to her attention. Later in the cross-examination, Ms. Breau agreed that if non-business conversations were interfering with work that that would present a problem to managment, but that she still expected an answer if she asked a question about activities in the courthouse. Accordingly, she did not consider it to be a problem if an employee complained about the Court Services Manager because that would be of interest to members of the Bar. Ms. Breau was asked if she would be upset if her own employees complained to her clients about her. Ms. Breau answered that she was not a client of the court, and while she would be upset and disappointed she would also look at herself. If her staff continued to complain for several months then she would think that those complaints were inappropriate. Ms. Breau was asked about her meeting with Ms. Aziz. It was suggested to her that Ms. Aziz simply said that she had heard that employees were complaining and what about it. Ms. Breau said that this is not what took place. Ms. Breau testified that in the first part of her meeting with Ms. Aziz all Ms. Azir said was that she had heard complaints. Later on in the meeting, when pressed, Ms. Aziz admitted that all she had heard were rumours. Ms. Breau agreed that she told Ms. Aziz that one of the reasons she was so distressed about being involved was because she knew that if she had a good relationship with employees that she would get good service. In that regard, Ms. Breau agreed that certain lawyers received better service at the courthouse. Ms. Breau was concerned about receiving good service, and she testified that some lawyers would not be as concerned about this as she was. Ms. Breau testified that most of time she received good service, although there were occasions when she had concerns about service, but that those concerns were never sufficient to make her lodge a complaint. Ms. Breau told the Board that some things have improved since Ms. Aziz arrived on the scene and other things have not. Ms. Breau could no longer tell if employees were happy or not as only business is discussed. Evidence of Elaine Freedman Elaine Freedman also testified under union subpoena. Ms. Freedman is now the Senior Official Guardian, and on February 19, 1991 was appointed by the Assistant Deputy Attorney General to conduct an investigation into the suspension of Maureen Evans. Ms. Freedman's report was introduced into evidence, and she briefly described the investigation which she conducted. In all, she interviewed approximately forty persons. Ms. Freedman concluded, following her investigation, that the allegations of misconduct could not be substantiated. Ms. Freedman was asked a number of questions in cross-examination and agreed, among other things, that at the end of the day she found that Ms. 56 Evans had refused to exchange offices when directed to do so, that Ms. Evans had been going to speak to judges about management problems, but that this should be understood in the context of long-term work relationships, that there were morale problems prior to Ms. Aziz's appointment, that some lawyers believed that "good looking and senior counsel" received preferential treatment at the General Division, and that there was "power struggle" going on between Ms. Evans and Ms. Aziz. Ms. Freedman formed the impression that Mr. Beaudoin did not like Ms. Evans, and did not want her to remain in her job. Evidence of Joanne Lillis Joanne Lillis testified. Ms. Lillis is employed by the Ministry of Housing and used to be supervised by Ms. Aziz. Ms. Lillis gave some background evidence with respect to her duties and responsibilities and experiences at the Ministry. It was then agreed by the parties that: "Over the period of time that Ms. Lillis worked with Ms. Aziz she felt that she experienced problems similar to those experienced by the grievors in the instant case. During this period of time, the office in which Ms. Lillis worked was the most productive in the province. The witness would agree if she testified that the office was well managed subject to the qualifier in the first sentence. Moreover, the parties are also agreed that while Ms. Lillis felt that she had similar problems to those experienced by the grievors in the instant case, the employer does not agree to any finding that these problems actually existed." Evidence of Nina Charnillard Nina Charnillard testified. Ms. Charnillard is a free-lance court reporter, and is a former correctional services officer. Ms. Chamillard testified about an incident involving Ms. Aziz. The long and the short of her evidence is that Ms. .%"-, 57 Chamillard was working as a court reporter in a criminal matter and knew the accused. She did not want the accused to be able to contact her directly, should he seek a transcript for the purpose of preparing an appeal, nor did she wish for her relationship with her husband, who was a correctional officer, to become public knowledge in the correctional institution. Accordingly, Ms. Chamillard used her maiden name when preparing transcripts, and after the trial began went into the General Division and advised Ms Aziz, Ms. Langille and Ms. Nicholson that under no circumstances should any personal information about her be released. Ms. Chamillard testified that the presiding judge ordered that this information be kept confidential. Subsequently, Ms. Chamillard received a collect telephone call from the inmate. She hung up the telephone when she realized who it was on the line. The inmate called a second time to request a transcript. This time the call was not collect. Ms. Chamillard asked the inmate to put a guard on the telephone, and she asked the guard not to let the inmate call her again. Ms. Chamillard telephoned Ms. Aziz after the first call and asked her how the inmate obtained her telephone number. Ms. Aziz denied any involvement. Ms. Chamillard then called the General Division and spoke with Ms. Nicholson who advised her that she had overheard Ms. Aziz giving the information out to the inmate. Ms. Chamillard then spoke with Ms. Aziz who now admitted having done so. Ms. Chamillard suggested that Ms. Aziz take a course in criminal justice so that she would know what she was dealing with. Ms. Aziz never apologized for what she had done or explained why she did not admit it when first asked. In cross-examination, Ms. Chamillard agreed that court reporting was a >VI 58 public service, and that her maiden name, under which she operated her business would have been known to inmates in the institution in which she had previously worked and in which the inmate in question was confined. Ms. Chamillard also agreed that her telephone number was in the phone book. Ms. Chamillard agreed that it is important for accused persons to quickly obtain trial transcripts, particularly in cases, such as the one in issue, a habeas corpus case, where the accused was unrepresented. Ms. Chamillard was asked about her visit to the General Division in which she requested that her name and telephone number not be given to this particular accused, and she testified that everyone present could hear what she was saying. Ms. Charnillard agreed that she said that she did not want personal information given out, and was asked whether it would be fair to assume that this meant her home telephone number and home address. She affirmatively replied that it also included her business telephone number and address. Ms. Chamillard recalled that her exact words were that her name and telephone number was not to be given out. Even though the latter was easily obtainable in the telephone book, there was no point in making it easy for the accused to obtain the desired information. Ms. Charnillard testified that Ms. Aziz should also have been aware of the court order requiring that her personal information be kept confidential, and should have acted as the conduit for any inmate request for a transcript. Ms. Chamillard was asked a number of other questions about this matter, and was asked if the real reason why she was so upset with Ms. Aziz was that in June 1991 she applied but did not obtain a clerical position with the Ministry. Ms. Chamillard testified that she was upset because of the threat 59 to her security. She was then asked if she was upset because of the sale by the General Division of a transcript another court reporter had prepared, and she replied that court reporters earn income from selling transcripts and so any sale by persons other than court reporters affected their economic interests. Some questions were asked about how Ms. Chamillard obtained certain documents with respect to this matter. Ms. Chamillard testified that she was in the General Division on the day when the improper sale took place. She stated that this sale was wrong because the income belongs to the Court Reporter, and so the materials should not be sold by the courthouse. Evidence of Mr. Justice Byers Mr. Justice Byers testified under union subpoena. He was appointed a District Court Judge in Belleville in May 1988. At that time, district court judges went on circuit, and Justice Byers found himself in Kingston on a regular basis. He testified that courthouses are unique institutions with their own personalities. Justice Byers testified about fiscal restraint and the need to work long and hard to keep up with the workload. According to Justice Byers, among the unique features of the Kingston courthouse were the long serving employees and the local judge, Judge Campbell. Ms. Evans was another key player in the Kingston legal community, and in Justice Byers view, she was among the best and most experienced court administrators. Justice Byers testified that working under hard conditions the employees became very close, and in the result things always ran smoothly. Justice Byers liked the employees in the General Division; he considered them friends and he would frequently purchase donuts on his way into town to share with them. According to Justice Byers, he no longer likes going to Kingston because the family atmosphere has been destroyed. He is of the view that Ms. Evans was 60 treated poorly. Justice Byers testified that it would have been difficult for any new manager to come into the Kingston courthouse given the family atmosphere, and the longstanding loyalties among the employees, particularly if that person did not have any experience in managing courts. He testified that one reason why he no longer brings donuts into the courthouse is that he would have to eat them himself because he understood that he could not speak to the employees in the Sheriff's Office and General Division; that if he were to do so, they would be hurt in some way. In cross-examination, Justice Byers testified that prior to Ms. Aziz's arrival, all was well in the courthouse, as far as he was aware. He did not know anything about the Joan Cherry problems. He testified that he had been approached by one or more grievors with complaints about Ms. Aziz, but never took any steps to intercede with respect to those complaints. He also discussed matters in Kingston with other judges and may have generally discussed the matter with Mr. Beaudoin. Justice Byers testified that he met with Ms. Aziz and she asked him not to take sides with respect to the issues in dispute, but that his sympathies were with the employees. Justice Byers recognized that taking sides would create a management problem. Evidence of Dr. Lucille Peszat Dr. Lucille Peszat testified. Dr. Peszat has thirty years' experience in the health industry, and has occupied a number of senior positions in the academy and elsewhere. Among other things, Dr. Peszat runs a consulting practice, and has expertise in stress management. Dr. Peszat told the Board that the 61 Canadian Centre for Stess and Well-Being (the "Centre") is an educational and health organization with the mandate of helping people to manage stress and cope in these changing times. Dr. Peszat counsels individuals, conducts educational seminars and particpates in a wide variety of activities to further the mandate of the Centre. She was retained by the union to give an expert opinion about the stress claim advanced in the instant case, and the employer did not object to her being called as an expert witness. Dr. Peszat testified generally about stress studies and the pioneering work of Dr. Hans Selye. She told the Board that she also assists individuals and groups in managing change, and she noted that stress and change often go together as stress can follow change. Dr. Peszat explained that stress is both a physical and emotional reaction, and it can be felt by individuals as well as by groups. If stress is allowed to go on for a long time it may result in physical and emotional deterioration. Not all stress is bad, and Dr. Peszat noted that stress is part of life. In general, there are three types of stress: positive, neutral and negative. Dr. Peszat testified about these three types, and she also told the Board about her conclusions after meeting with the grievors. Dr. Peszat met collectively with the grievors on two occasions, and reviewed their medical records. As a result of these meetings and this review, Dr. Peszat formed the opinion that there was stress present in the workplace, and this opinion was based not just on what the grievor6 told her, but on her own observations of the grievors. Dr. Peszat testified that she could observe stress symptoms in the grievors. In general, these symptoms include anxiety, depression, worry, fatigue, emotional tension, nervousness, 62 headaches and pain, frustration, inability to concentrate, tics, indigestion, sweating, pounding heart, compulsive eating and loss of appetite. Stress can also be manifested in the workplace, and these symptoms include difficulty in making decisions, bursts of anger, poor memory, mistakes, difficulty in getting along with others, excessive day dreaming, and the increased use of tranquilizers. According to Dr. Peszat, certain of the grievors showed high levels of agitation and fatigue. They were, moreover, highly sensitive to questioning. Other symptoms which she observed included feeling the blues, bad sleeping, bad eating habits, taking the work situation home at night, and defensive body language. Dr. Peszat testified that the grievors were very sensitive about how they were being perceived in the outside community, and were particularly sensitive to a fear that they were thought of as incompetent. Dr. Peszat sensed strong feelings of breavement and loss, and saw in the grievors some of the classic stages of the bereavement process. In Dr. Peszat's view, the grievors have lost an environment in which they were comfortable, one in which they worked in an outstanding fashion, and were recognized for doing such. Dr. Peszat noted that stress can become exagerated if accompanied by the bereavement process. Dr. Peszat noted that the treatment of their supervisor, Ms. Evans, was stresful to the grievors for they had respected her and they felt that management had treated her in an insensitive way. In addition, stress arose from a concern that they too would be treated in a similar fashion. Dr. Peszat noted that the feelings of stress can be magnified when a group of people feel the same way about the same thing, and that this can have an effect on the work environment. 63 Dr. Peszat did not measure the grievor's blood pressure or determine whether the grievors' had ulcers, but she could see that they were under stress, and this determination was made in her interviews with them. Dr. Peszat noted some hostility to questions, and she noted a concern that the situation at work was not improving and would not improve. She found the grievors to be emotionally involved as was exhibited by crying and verbalization of their concerns in the interview process. Dr. Peszat testified that it was difficult for her to end her conversations with the grievors because they needed an opportunity to express their concerns, and she testified that there was considerable "unfinished business" which was also one of the causes of stress. Given that the stressful conditions had been in existence for some two years, Dr. Peszat considered it remarkable that the grievors were functioning as well as they were. Dr. Peszat also testified about group dynamics and noted that the grievors acted as a support group for each other. When one of the grievors was feeling a high level of stress, all the other members of the group became likewise affected. Dr. Peszat could not identify any positive stress in the group, and testified that the fact that there was a group of individuals who were similarly situated was critical to the survival of the grievors in the stressful circumstances which they found themselves. It also resulted in them taking on the non-work stresses of each other. They had become close as a result of their shared group experience. Dr. Peszat testified that all jobs have stress, and that employees who do not 64 have a large amount of control over their jobs tend to have more stress. In the instant case, the usual stress of employment was exagerated because of the fact that the grievors were not given sufficient information about what was expected of them. Dr. Peszat testified that the manner in which management communciated with the grievors, by memorandum, was stressful, and that the stress was aggravated by the fact that there was no consistency in the messages being delivered. This was illustrated by one of the grievors telling her that she no longer knew the difference between right and wrong. Moreover, certain changes which were introduced, such as the changes to the breaks schedule, not only caused stress, but also undermined some of the grievors' fundamental values, including their family values and their role as mothers. Dr. Peszat testified about the relationship between stress and illness, and spoke generally about how the former can cause the latter. Dr. Peszat determined that there was a relationship in the instant case, and she also determined that chronic, acute and anticipatory stress could be found among these grievors. For example, anticipatory stress arose in this workplace by events such as Ms. Aziz's weekly visit to the workplace, after she moved her office to another building. In Dr. Peszat's view, this workplace was rife with stress, and it began before the grievors arrived at work and after they went home at the end of the day. The long and the short of it was that every day was stressful, and one of the major reasons why was the changes brought about by the arrival of Ms. Aziz. Dr. Peszat reiterated some of her earlier evidence about the relationship between stress and change. In her view, that relationship could be seen in 65 this case. Dr. Peszat formed the view that Ms. Aziz brought with her a much more formalized management system than what was previously in place. Dr. Peszat was of the view that Ms. Aziz was an autocratic manager who tended to write things down rather than speak about them, and was probably not as sensitive to the human dimension as was the previous manager. Dr. Peszat testified that the introduction of a new person with a new style caused bereavement, and also caused lots of tension as the employees did not know how to operate in the new system. Dr. Peszat told the Board that while Ms. Aziz's way of doing things was a legitimate form of management, it was not the style of the 1990s in that it did not have a strong humanistic bent. According to Dr. Peszat, autocratic managers like to get things done according to the rules, and this type of manager is often a stress carrier insofar as they bring stress with them to the workplace. In addition, Dr. Peszat testified that she was of the view that this new management style resulted in a struggle over power, and was further characterized by inconsistency in how Ms. Aziz operated and how she was perceived to have operated by the grievors. Dr. Peszat illustrated this point by refering to the initial memorandum from Ms. Aziz which was positive in tone, but which was soon followed by a memorandum several months later which was to the opposite effect. That fact that the second memorandum introduced changes without consultation was, Dr. Peszat testified, further evidence of Ms. Aziz's autocratic style. This inconsistency, and others, caused the grievors to lose trust in Ms. Aziz and further contributed to their stress. Another factor contributing to stress in the workplace was the failure of 66 management to adequately follow-up in the aftermath of the Freedman Report. This became "unfinished business", and that generates conflict and stress. Dr. Peszat testified that there was a lot of gossip and rumours, but no official information ever came from management. Other unfinished business included the matter of parking and court reorganization. The fact that the employees were not being given the opportunity to have input into these matters was a further cause of stress. According to Dr. Peszat, once stress has been identified in a workplace, management has a responsibility to respond. If the factors that cause the stress cannot be removed, then the employer must, according to Dr. Peszat, conduct educational and other programs so as to equip supervisory and other personnel to manage the stress. This may require the modification of existing policies, or the introduction of new policies. Dr. Peszat testified that while change can be introduced, it must be introduced slowly and with sensitivity. And this meant change followed by rest periods accompanied by consultation and communication with affected employees. In Dr. Peszat's view, this did not take place in the instant case. Dr. Peszat could find no evidence that management in this case motivated employees to work with it in introducing change, and this is another reason why the workplace became so stressful. While one of the normal reactions to change is resistance, Dr. Peszat told the Board that it could have been managed with this group of employees because of the high regard that they had for the way that they performed their jobs and the way they were perceived in the legal community. Dr. Peszat found little evidence of resistance in her examination, and she looked to see if the 67 grievors had banded together to stop change. She found no evidence of this, and testified that the grievor's knew that change was inevitable. What resistance existed was in response to Ms. Aziz's management style and to the manner in which change was introduced. According to Dr. Peszat, management also increased the stress level by failing to provide the grievor's with appropriate positive feedback and recognition, and this problem was exacerbated by the inconsistency referred to earlier. A general absence of humanism on the part of Ms. Aziz, was according to Dr. Peszat, another contributing factor to the stress in the workplace for it undermined the employee's self-esteem and created a lack of confidence. Dr. Peszat found a high level of burnout in the grievors and testified that a number of the grievors were seriously at risk because of it. Dr. Peszat was very strongly of the view that the current condition of the grievors was directly related to events at the workplace, and that ultimately the source of the difficulty was Ms. Aziz. Dr. Peszat feels that the actions of the manager were not appropriate in that she put the task ahead of the people she was managing, and that this was done deliberately. While Dr. Peszat has previously seen similar cases involving one employee and his or her supervisor, she has never before seen a case where so many employees are saying that something is wrong about a particular manager. In her view, this alone signals that something is seriously wrong in the workplace. If something is not done, Dr. Peszat foresees that some of the grievors may have a breakdown. In terms of resolving this matter, Dr. Peszat expressed concerns that an attempt to bring in a mediator was unsuccesful, and testified that this 68 failure suggested a general hopelessness in the workplace. In her opinion, the best thing that could be done to improve the situation would be to separate the manager and these grievors. If that was not possible, Dr. Peszat suggested that management needs to learn more about stress and the affect of its activities. Management must use its power for constructive purposes and involve all of those who will be affected in the planning of change. Dr. Peszat also recommended that something be done to restore the reputation of the grievor's in the local legal community. At the end of the day, however, the best thing that could be done was, according to Dr. Peszat, the introduction of new management. Dr. Peszat was asked a number of questions in cross examination. Dr. Peszat testified that depending on how stress was defined, one did not necessarily need extensive training to diagnosis it. Stress can be perceived quickly and accurately by someone who knows what to look for. Dr. Peszat was asked if physicians could become confused in differentiating between depression and stress, and she answered that depression is sometimes a manifestation of stress, but that in any event many doctors were familiar with stress that occurs independently of depression, although some are not. Dr. Peszat agreed that some aspects of stress are objective and some are subjective. For instance, saying that you cannot sleep is a subjective aspect, while an objective aspect could be medically determined by the administration of hormonal and muscular tests. Dr. Peszat agreed that these tests were part of the "stress profile" which Dr. Selye was working on at the time of his death. Dr. Peszat also testified that she had not administered these tests to the grievors, and that other than testing for blood pressure, and testing related to Ms. Breen's cough, none of the grievors' physicians had administered these 69 stress tests. With respect to Ms. Breen's cough, Dr. Peszat agreed that the only reference in the medical report was that the physician felt that the cough was enhanced by stress. Dr. Peszat was asked how stress should be diagnosed and treated. In her view, a doctor was not necessarily in the best position to diagnose stress. Dr. Peszat agreed that if she was a medical doctor she might or might not administer the stress profile. It would depend on the symptoms presented. Once stress is diagnosed, taking time off work is a possible treatment, as is exercise. Dr. Peszat agreed that stress can come from sources other than work, and she agreed that the determination of the cause of stress depends to some extent on the information provided by the person feeling the stress. This information can be corroborated by medical and psychological tests. While psychological tests are also dependent on what people tell you, they are designed to get at the truth, and in Dr. Peszat's experience, people who come for stress counselling generally tell the truth. Dr. Peszat testified that even if a person had some ulterior motive to allege stress, she can generally determine the truth of a claim based on her skill and experience. Dr. Peszat testified that the constant rehashing of issues within a group could have a negative impact on the stress being felt within that group. Dr. Peszat was asked whether employees would feel stressed if they decided to "take on" a manager, and she replied that they would probably feel jubilant and not stressed. Dr. Peszat was asked if stress would result from collectively complaining about a manager, particularly if the scheme was not going well. In Dr. Peszat's view, it would depend on the circumstances. 70 Dr. Peszat agreed that her diagnosis of stress in this workplace was based on what the employees had told her and what she had read in various documents. Dr. Peszat testified that she did not hear the other side, but that she still had sufficient evidence to support her conclusions. While Dr. Peszat could give a better assessment if she had heard the other side, she believes that she had enough information to support her diagnosis. Even in the absence of all of the facts, Dr. Peszat still believes that her statements and conclusions were correct, and she testified that she makes many decisions without all of the facts. While more facts would allow one to make a better diagnosis, the absence of facts does not, in Dr. Peszat's view, invalidate the diagnosis which is reached. Dr. Peszat was asked a number of questions about her evidence in chief. She testified that one of the changes that caused stress related to the requirement that the grievor's respond according to policy, and more formally to customers who come into the office. While the job itself may or may not have changed as a result of this, the result of the style change was confusion and a difficulty in distinguishing between right and wrong. Moreover, management role modelling resulted in a formalized workplace with less laughing and joking and this too contributed to stress. According to Dr. Peszat, virtually all of the changes which were introduced caused stress because the workplace had previously been informal, and a new emphasis on following the Manual of Adminstration and rules was very stressful. The changes to parking, including the removal of Ms. Evans' sign, and breaks illustrated this. Dr. Peszat also pointed to Ms. Evans's suspension as stressful, as was the fact that there was now a full-time manager on site 71 when the grievors were used to working independently. In general, the change to the workplace was indirect, and was characterized by Ms. Aziz's autocratic approach. Dr. Peszat testified that while a manager has a right to change offices, it was the way that it was done in this case which caused distress. The grievors could not help but become aware of the conflict between Ms. Aziz and Ms. Evans, and this conflict was not only stressful, it was also "catchy." It was stressful to the grievors to see Ms. Aziz taking notes of conversations. Also stressful were the new security practices which were introduced. Dr. Peszat was asked about her evidence in chief in which she testified that it was important to the grievors that they be seen to be doing a good job by the clients they served. Dr. Peszat testified that the grievors placed a high value on ethical relations with clients, and she agreed that this would include treating lawyers fairly and equally. Dr. Peszat was asked whether this would include favouring particular lawyers, and she answered that it would depend on the grievors' values and beliefs. Dr. Peszat agreed that if the grievors were told to change the way in which they dealt with customers this could cause stress. In Dr. Peszat's view, the grievors and Ms. Aziz had different values, particularly those related to family issues, and this was indicated by her changing the manner in which the grievors took their breaks. Dr. Peszat agreed that she had no first hand knowledge of Ms. Aziz's family values, and also agreed that the January memorandum changing the breaks was generally directed at establishing consistent policies in all three courts. Dr. Peszat agreed that consistency was very important in dealing with a group of 72 employees, but that the implementation of policies should be based on individual circumstances. If changes to established policies were necessary, Dr. Peszat was of the view that those changes should be discussed in advance and an attempt made to reach a consensus. Dr. Peszat was asked if she knew why a change was introduced requiring the grievors to pay for parking. She testified that she did not know. What she determined was stressful was employees being told that they would have to pay for something that they previously received for free. Also of concern to her was the manner in which the change was introduced. Dr. Peszat opined that the employees should have been brought into a room, sat down and asked for their input. While there was nothing wrong with employees receiving information about this change by memorandum, given that this was a group of people accustomed to this privilege and working independently, it would have been better to implement the change more sensitively. The inconsistency in approach to free parking leading up to the change was another factor contributing to stress. Dr. Peszat was asked about Ms. Evans' suspension, and she testified that it was an unresolved issue causing stress. In her view, management has an obligation to explain issues of this kind to employees, particularly in a case like this where Ms. Evans was completely vindicated of all the allegations brought against her. Dr. Peszat testified that the employees had a right to know that their supervisor had been vindicated, even if she eventually decided not to return to work. Dr. Peszat was asked some questions about different management styles, in 73 particular the autocratic and humanist styles. She testified that the autocrat tends to withold information, while the humanist tends to share it. Managers who hold meetings and encourage discussion are, in Dr. Peszat's view, at the humanist end of the spectrum. The same could be said with respect to managers who give positive feedback to employees. Dr. Peszat noted, however, that even autocrats hold meetings and establish committees, so that the existence of either was not necessarily evidence of a humanist approach to management. In response to management counsel's questions, Dr. Peszat agreed that a humanist manager would meet with staff to discuss policies and proposed changes, and would encourage flexibility with respect to the introduction of change. In contrast, an autocratic manager would implement change without discussion or flexibility. Dr. Peszat was asked how, in the instant case, changes brought about by impending court integration could be implemented according to the humanist model. She testified that employees should first be given some general information about integration, followed by a rationale for the process, and information about how they would be involved in that process. Dr. Peszat testified that it was her understanding that these steps did not take place. While there were some staff meetings, those that occurred were not oriented in a humanist way with give and take. Instead, Dr. Peszat testified that there was a lot of confusion, particularly in the early stages when it was important to lay a humanist foundation. According to Dr. Peszat, one of the problems in this case was that the grievors, in particular those working in the General Division, had a high "comfort level" with Ms. Evans, and a low one with Ms. Aziz. In these 74 circumstances, it would have been better if change was introduced slowly so that the grievors could become comfortable with their new manager. With respect to the breaks issue, Dr. Peszat agreed that a good way of approaching that issue would have been for all the managers to be gathered together and advised that the change had to occur. A next step would have been to get the managers together with their employees to obtain their input on the proposed change, to explain the rationale and to canvass possible alternatives. Then, after the change was introduced, flexibility in implementing it was essential. Dr. Peszat emphasized, however, that this is not what occurred in this case, in that it was her view that when Ms. Aziz introduced the change she gave the impression that it was a fait accompli. Dr. Peszat was also of the view that it would have been better in these circumstances if the line manager, Ms. Evans, had introduced the change. Dr. Peszat was asked if she was aware that Ms. Aziz supervised approximately 45 employees, and she replied that she thought the number was closer to 35. Dr. Peszat was aware that these employees worked in three separate locations and all of them reported, during the time preceding the grievances in question, to a line manager occupying a position similar to that held by Ms. Evans. Dr. Peszat also knew that there were people working side by side with the grievors in the General Division at the time in question. Dr. Peszat was asked what she learned in her discussions with them, and she replied that she did not talk to them. She was also asked if she talked to the approximately forty other persons who worked under Ms. Aziz and who did not grieve, and she replied that she did not talk to them either. In addition to speaking to the grievors, union counsel and the union representative, Dr. 75 Peszat also reviewed the documentary record and some newspaper clippings. In re-examination, Dr. Peszat testified that communicating information is not sufficient; it is the manner in which the information is communicated that separates the humanist manager from the autocrat. It is much better to communicate in person than by memorandum, because a memorandum gives the impression that the decision cannot be changed, while a conversation still holds out the possibility of input and change. The January 10, 1991 memorandum was an example of an autocratic memorandum, and Dr. Peszat contrasted it with the one sent out in mid-November 1990, which was more humanist in approach. Dr. Peszat also advised the Board at the conclusion of her evidence that in preparing for this case she also met with Mr. Wally Revell and Ms. Bonnie McLean. THE EMPLOYER'S CASE Evidence of Dianne Aziz Dianne Aziz testified. Ms. Aziz began her Ontario Public Service career in November 1985 with the Ministry of Housing, eventually becoming the Manager of the Rent Review Office in Kingston. As has been established, in November 1990, Ms. Aziz became the Court Services Manager in Kingston. She testified that prior to her appointment the three Kingston courts had reported independently to headquarters in Toronto. Ms. Aziz testified that her first step, upon receiving her new appointment, was to assess the three courts in terms of management policy. Her second step was to implement change, and that required a change team. In her case, that team was comprised of herself and the managers of the formerly separate courts: Ms. -*IT-”. 76 Evans, Mr. Revell, Ms. Stoness and Mr. Bearss. It also included Mr. Fudge who was self-employed in the small claims court. Ms. Aziz testified that she wished to communicate to the employees through line managers in order to ensure consistency in management. Initially, however, she met with groups of employees to discuss with them how they felt about the impending changes. These meetings were held within one week of her arrival on the job, and Ms. Aziz testified that she intended that the line managers would then take over the communications functions while she established the general policies. Ms. Aziz also expected that employees would communicate through their managers who would then pass on the information to her. Ms. Aziz testified that once a change is introduced, flexibility is critical, as is management support of that change. Ms. Aziz testified about her relationship with Ms. Evans. She first met Ms. Evans in May 1990 when she was asked by the region to assist her in running a competition. Ms. Aziz has participated in approximately twenty-five competitions. Ms. Evans had never run a competition before using the Manual of Administration as a guide, and Ms. Aziz instructed her in this, as well as sat on the panel with her and helped her draft the questions. In June 1990, the Ministry of the Attorney General asked Ms. Aziz to help with the hiring of summer students, and she did so. Ms. Aziz felt as if she got along with Ministry employees, and so when the Court Services Manager’s position was posted she applied for it. Ms. Aziz did not tell anyone that she had done so, considering the matter personal, and so when Ms. Evans asked her if she had applied for it she said that she had not. J 77 The day after Ms. Aziz was interviewed for the job, Ms. Evans contacted her and said that she thought that she was not going to apply for the job. Ms. Aziz testified that Ms. Evans went on to say that rumour had it that Ms. Aziz was to be given the position. Ms. Aziz acknowledged that she had applied and asked her not to discuss the matter with anyone else as she did not wish her employees at the Rent Review Office to know about it. Ms. Aziz was offered the job at the end of September 1990, and she began work on November I, 1990. November 5, 1990 was Ms. Aziz’s first day on the job, and Ms. Aziz began work by meeting with the employees in the three courts either individually or in groups. According to Ms. Aziz, when she first arrived on the job, Ms. Evans advised her that her employees were difficult and tended to work to rule when they did not get what they wanted. On November 12, 1990, Ms. Aziz circulated a memorandum to all employees which has already been referred to in evidence. It provided, in part,: It has been a pleasure meeting with you over the last few days. I am impressed by your professionalism and dedication to your work. Staff seem optimistic about the changes coming and as we move toward integration a positive outlook will make change easier. I feel comfortable that we are now thinking of ourselves as members of one staff. Courts Administration, although we may be geographically separate and have different technical responsibilities this is the first step in integration. It is my commitment to provide you with dear direction and structure, through the local management group or directly. Organizing and consolidating management takes time and I have asked for your patience as we slowly make changes which benefit us all. ... 78 Consistent management policies will be developed and communicated to staff, the first of which are below: ... Staff Meetings: I have asked your supervisors to have regular staff meetings (every three weeks minimum) where information is given and staff have an opportunity to give information to the supervisor in a group setting. ... Ms. Aziz testified that the purpose of this memorandum was to emphasize the importance of communication. It also sought to give employees a sense of the big picture and the changes which were forthcoming. Ms. Aziz testified that the memorandum also indicated who the supervisors were for each court, and the Sheriff's Office, and this was to make clear the role of the supervisors in communicating information to employees. In all of this, management consistency was essential, and Ms. Aziz testified that concerns had been expressed to her by some employees about different rules in different parts of this workplace. Ms. Aziz testified that the importance of consistency was discussed at the first meeting of managers held on November 6, 1990. Ms. Aziz advised the managers, including Ms. Evans, that it was essential that employees be kept up to date, that staff meetings be held, and that good lines of communication be established. Ms. Aziz testified that she had a discussion with Ms. Breen and Ms. Nelson on her second day on the job at which time they raised with her the accommodations they required for child care. Ms. Aziz testified that 79 Ms. Breen told her that she required an extra fifteen minutes at lunch time to pick her children up and bring them home for lunch, feed them, and deliver them to the babysitter. Ms. Nelson told her that she needed to come in fifteen minutes later so that she could wait with her children for the school bus. Ms. Aziz testified that she did not have any concerns about these arrangements at the time, so she indicated that this would be fine. Ms. Aziz testified that this discussion was about accommodating childcare needs, not about tacking breaks on to the lunch period. Ms. Aziz testified generally about the staff complements in the various off ices, and who replaced whom when employees went on sick leave. Altogether, Ms. Aziz was responsible for 45 permanent and contract employees, and other than the grievances in the instant case, there have been no grievances or concerns raised about her management style. After Ms. Aziz arrived at work she looked into the matter of parking, initially because she wanted to know where to park. She testified that she spoke with Ms. Evans about it who advised her to speak with Mr. Silver. She did so, and when she did he raised certain concerns, namely that employees who parked at spots with personalized signs were not being ticketed and were not paying for parking. Ms. Aziz was concerned about the personalized signs because employees at the other courts did not have signs of this kind. She testified that Mr. Silver advised her that the County would soon begin to ticket cars which had not paid for parking. On November 19, 1990, Ms. Aziz circulated a memorandum to employees indicating that as of December 3, 1990, they would have to start paying for parking. Previously, employees with personalized signs did not pay for parking, while other employees were given 80 parking cards by the Sheriff, and these cards were inserted into a machine which issued a ticket permitting the employee to park for free. Ms. Aziz testified that under the terms of the lease with the County, the Ministry received nine free parking places. These spaces were, according to the Manual of Administration, resewed for crown attorney's, judges and program vehicles. Ms. Aziz testified that she was concerned about the cost of parking to employees, and so she tried to make excess parking cards available to employees at the reduced government rate. She also sought to obtain a reduced parking rate for employees from the County. In addition, Ms. Aziz decided to address the sign issue, and the fact that four employees had personalized signs, and that other employees did not. She then sent a memorandum to Mr. Silver directing that the parking cards be given to her for distribution each month, and further directing that the personalized parking signs be removed. According to Ms. Aziz, employees in the General Division were very upset with her when they learned of these developments. While these employees had been friendly with her during her first few days on the job, they were now angry with her. If she said "hello" in the morning she would barely receive a response. Ms. Langille then asked Ms. Aziz if the employees could ask the judges for their cards when they no longer required them, and Ms. Aziz indicated that this would be fine with her. She testified that while technicially this is not permissible under the Manual of Administration, she agreed because the employees were very angry, and she was also being pressured by local judges to permit this. Ms. Aziz testified that she was concerned about doing something that she was not allowed to do, so she 81 wrote a memorandum to the judges, with their parking cards, advising them that the cards were for them alone. If the judges decided to give their cards to someone else, that was their decision. Ms. Aziz did not consider this to be a long-term solution, so she wrote the County in mid-December 1990, asking for free, reduced parking or a graduated increase in parking rates for Ministry employees. Ms. Aziz testified that she continued to be pressured by employees and judges about the parking, and in March 1991 she issued a memorandum stating that when there were extra parking tickets one would be given to the General Division and one to the Sheriff's Office. When this initiative came to the attention of Mr. Beaudoin, he advised Ms. Aziz that this was contrary to the Manual of Administration, and on May 21, 1991, Ms. Aziz issued another memorandum indicating that there would be no further distribution of parking tickets. Ms. Aziz testified the grievors developed an open hostility to her over this parking issue, and that this hostility continues to the present day. Ms. Aziz also testified about the breaks issue. According to Ms. Aziz, soon after she began work Mr. Bearss and Ms. Stoness raised the matter of breaks with her. They expressed concern that employees in the Sheriffs Office and General Division were getting a special deal. Ms. Aziz considered arrangements such as this as contrary to her goal of consistent application of management policies. Moreover, Ms. Aziz testified that the effect of the arrangement was to give employees in the Sheriff's Office and General Division a shortened work day. The work day was shortened because the two fifteen minutes breaks were added to the lunch hour, but employees 82 continued to take informal breaks during their shifts. Ms. Aziz testified that she did not have a problem with employees taking longer or shorter lunches, nor did she have any particular concerns about employees starting work earlier or later. Her concern was with a shorter work day for a small number of employees working at one court location. She noted that other employees who worked in the same courthouse did not have a similar arrangement. According to Ms. Aziz, she raised these concerns with Ms. Evans in early January 1991 and advised her that because of consistency, all employees would be required to work a normal work day. There would, however, be flexibility in that work day to address childcare and other needs. Ms. Aziz testified that she further advised Ms. Evans that employees would be given sufficient notice to make alternative arrangements pending the introduction of the new regime. Ms. Aziz asked Ms. Evans to discuss this issue with her employees and to advise her of any concerns which were raised. According to Ms. Aziz, Ms. Evans soon told her that the employees did not like the change, and that she personally did not agree with it. Ms. Aziz advised her that it would be implemented to ensure consistency, and she attempted to reinforce the notion that the different courts were now all one unit and consistency was necessary. Ms. Aziz testified that she also discussed the matter with Mr. Revell, and asked him to speak to Ms. Breen and Ms. Nelson. She said that she also asked him to indicate that the schedules would not be rigid, add that there would be sufficient flexibility to provide for their childcare and other needs. She testified that Mr. Revell was very upset about this change, and was reluctant to speak to Sheriff's Office employees. Subsequently, Ms. Aziz issued the I a3 memorandum of January 10, 1991 which provided that as of February 4, 1991, breaks could no longer be added to the lunch hour. Ms. Aziz testified that she attempted to communicate a message of flexibility in that memorandum. Around January 22, 1991, Ms. Evans asked Ms. Aziz to meet with her staff to discuss this issue. She indicated to her that her employees were not prepared to go along with it, and that they wanted their union representative to also attend this meeting. Ms. Aziz refused this request, and on January 24th she convened a management meeting at which time the issue was again discussed. Mr. Revell and Ms. Evans expressed their dissatisfaction with the change, while Mr. Bearss and Ms. Stoness tried to convey to them their positions with respect to uniformity and special deals. Ms. Aziz testified that she tried to reinforce to Mr. Revell and Ms. Evans the necessity of the new arrangement, and the fact that special needs could still be acommodated under it. The next day, the grievances in the instant case were filed. Ms. Aziz testified that throughout November, December and January she had the feeling that Ms. Evans was not supportive of her management efforts, and she gave a number of examples to illustrate this point. Ms. Aziz felt as if Ms. Evans was undermining her with the judiciary, and that she humiliated her in front of other employees when she made a mistake as she learned about court administration. On one occasion, when Ms. Aziz arranged for a General Division judge to sit in a family courtroom, Ms. Evans, in front of other employees, said that this was an incorrect thing to do, suggesting, according to Ms. Aziz, that she did not know what she was doing. Ms. Aziz testified that she was very upset about this incident, and the next day she instructed a4 Mr. Silver to remove Ms. Evans's parking sign. Subsequently, Ms. Aziz asked Mr. Silver to put the sign back up and apologized to Ms. Evans for asking that it be taken down. Ms. Aziz testified about her conversation with Judge Campbell referred to earlier in the evidence. She told the Board that the judge called and asked to see her. She went to his office, and he raised his voice and expressed concerns about a number of issues including office morale, payment by the staff for parking, assigning a General Division judge to a family courtroom, and the number of memorandums which she sent. Ms. Aziz testified that Judge Campbell was yelling, and she raised her voice in reply. According to Ms. Aziz, she asked the judge how he could try and convict her without hearing her side. She also indicated that it was not his job to intimidate her and interfere in the administration of the courts. She also told him that the information that he had received from Ms. Evans were half-truths and lies. Ms. Aziz testified that she attempted to refute some of the allegations which Judge Campbell made, and for his part, he called Ms. Evans into the meeting. According to Ms. Aziz, Judge Campbell told Ms. Evans that she did not have to worry, and that she could come and speak to him about these matters. At that point, Ms. Aziz excused herself from the meeting, but on the way out she told Ms. Evans that what she had done was improper and that she would be getting back to her about it. A meeting was held between Ms. Evans, Ms. Aziz and Mr. Beaudoin, and Ms. Evans was instructed to raise any further management concerns with Ms. Aziz. After the grievances were filed, Ms. Aziz found the grievors to be openly 85 hostile to her, and she soon began to have concerns that these employees were sharing their grievances with members of the public over the counter, and with judges. Ms. Aziz spoke to Ms. Evans about this in early February 1991, and indicated to her that this conduct was unprofessional and undermined the the confidence of the public in the work of the court. Ms. Aziz advised Ms. Evans that grievances had been filed, and that this was the proper procedure for employees to resolve their concerns. Ms. Evans asked Ms. Aziz how she knew that concerns were being expressed, and Ms. Aziz testified that she told her that the two names she had heard were Susan Breau and David Hurley. Ms. Aziz asked Ms. Evans to counsel her staff not to engage in further public complaining. Ms. Aziz testified that Ms. Evans gave her no indication that she intended to confront Ms. Breau or Mr. Hurley with these allegations. Ms. Aziz testified that the next thing that happened was that Ms. Evans came to see her and said that she had spoken to the employees concerned and they had denied making any over the counter complaints. Ms. Aziz said that she then considered the issue closed until she was approached at Family Court by two women, one of whom was Ms. Breau. A meeting then took place, and Ms. Breau told her that she had been hauled on the carpet by Ms. Evans who had said that Ms. Aziz told her that Ms. Breau had complained to her about the employees. The details of this meeting, as recounted by Ms. Aziz, need not concern us. Suffice it to say that Ms. Aziz was particularly concerned about Ms. Evans communicating confidential management information to Ms. Breau. Ms. Aziz was asked some questions about her decision to move her office into the office occupied by Ms. Evans. She testified that she made this decision because her office was located in the Sheriff's Office, and to get to it she had to walk through that office, and the employees in that office would not speak to her. When they did speak to her, they were hostile. Accordingly, she decided to move to an off ice where she did not have to face that hostility, and she choose Ms. Evans's office. She spoke to Ms. Evans about this matter on January 24,1991. Ms. Evans advised her that she did not want to move her office. Ms. Aziz testified that she told Ms. Evans that she did not want to take her office, and would look around and see if there was any other office she could use. She did so, but could not find another suitable office and so advised Ms. Evans that she required her off ice. Ms. Evans asked what would happen if she refused to give up her office, and Ms. Aziz advised her that she would be suspended. Ms. Evans asked her to put her request in writing and Ms. Aziz did so. On February 8, 1991, Ms. Evans was directed to exchange offices with Ms. Aziz on February 11, 1991. On February 9, 1991, Ms. Evans wrote Ms. Aziz indicating that she would not be able to move the office on the day requested because she would be attending a meeting. She also suggested that Ms. Aziz spend time in the other court locations, and in any event, that the exchange of offices await certain renovations. Around this time, Ms. Aziz also received a copy of a February 8,1991 letter sent by Judge Campbell to Mr. Beaudoin in which the judge enumerated various concerns he had about the situation in the Kingston courthouse. The letter raised a number of other concerns, including the impending office switch. Ms. Aziz testified that this letter was upsetting to her as Ms. Evans had been counselled to direct her concerns about management to her and not to Judge Campbell or anyone else. a7 Ms. Aziz determined that it had now become necessary to take some action against Ms. Evans. On February 12, 1991 she wrote Ms. Evans a letter listing a number of her concerns, including the disclosure of confidential information, involving judges in court administration, and the refusal to exchange off ices. The memorandum concluded: "This letter serves as a written reprimand for failing to follow management's direction resulting in acts of insubordination. These incidents have been communicated to Bob Beaudoin, Regional Director, for consideration of further disciplinary action." Later that day, Ms. Evans was suspended by Mr. Beaudoin. Ms. Aziz testified that after Ms. Evans was suspended she began to realize that General Division employees were not receiving the same information about management decisions as were employees in other locations. Ms. Langille advised her that Ms. Evans had not been circulating the minutes of the management meetings. Ms. Aziz provided employees in that office with a copy of the minutes. She testified that the reason why part of one of the minutes was whited out was because that part dealt with breaks, and that issue had been grieved. Accordingly, she did not think it appropriate to include it in the materials she provided. Ms. Aziz testified about a number of the other issues raised in this case. Ms. Aziz testified that in April 1991 she moved her office to Criminal Court, and one reason why she did so was because of the hostility of the grievors in the Sheriff's Office and General Division. Prior to moving her office, she had a lock installed on her door, and one reason why was because of the missing parking cards. With respect to the missing fax cord, Ms. Aziz testified that she removed it because some confidential management information was expected by fax concerning Ms. Evans, and she did not want that information to arrive in her absence. She testified that Ms. Langille caught her off guard when she asked where the cord was, and she felt that Ms. Langille was setting her up. With respect to the Roy Bullock incident, Ms. Aziz testified that she never blamed Mr. Revell for Mr. Bullock's checks being late, and that when she attempted to clarify what she had said, Ms. Langille reacted by calling her a liar or saying that her lies were "killing this place." For his part, Mr. Revell told her that she was through. Ms. Aziz did not take disciplinary action in either case. With respect to providing the name and telephone number of the court reporter, Ms. Aziz testified that Ms. Chamillard came into the General Division and said that she was working on this case with the particular accused, and asked that no personal information be given out. The accused subsequently telephoned Ms. Aziz looking for the court reporter so that he could obtain a transcript. Ms. Aziz did not think that there was anything wrong with giving out the court reporter's first name and off ice telephone number, Ms. Aziz testified that she did not consider this to be personal information, but she apologized to the court reporter for the fact that she was upset. With respect to Ms. Nelson's request for a day of compassionate leave, Ms. Aziz testified that it was her responsibility to gather the information. With 89 respect to her telephone call to Ms. Nelson's physician, Ms. Aziz testified that she made the call because she was advised by the union that Ms. Nelson had made a claim for worker's comensation, and it was her obligation to report these claims, and the information she had been given, a form letter from the doctor saying the patient would be absent, was insufficient. With respect to the janitor spying, Ms. Aziz testified that what happened was that she called the General Division one morning at 8:35 a.m. No one answered. She then telephoned the Sheriff's Office and no one answered. Ms. Langille, Ms. Nicholson, Ms. Breen and Mr. Revell were all absent that day on account of sickness. Ms. Nelson did not start work until 8:45 a.m. Accordingly, Ms. Aziz "beeped the janitor and asked if anyone was there. He advised her that Ms. Nelson had arrived at work. Ms. Aziz went over to the General Division and opened it. Some staff were brought in from other locations. Ms. Aziz did not, however, have the combination to the safe and that is when she approached Ms. McLean for Ms. Langille's telephone number. Ms. Aziz testified that the janitor was not her spy. Ms. Aziz was asked some questions about cross training, and efforts she made to find out about the cross training interests of employees in the three courts. She testified that, in general, she received a good response. Introduced into evidence, however, was the response of Ms. Breen, who wrote when asked if she was interested in cross training that she had "no interest." Ms. Langille, Ms. Nicholson and Ms. Snider sent Ms. Aziz identical memorandums reading: "In response to your survey concerning Cross Training, as you know we have questions which have not been answered to date. We request a copy of the Ministry policy regarding Cross Training to clarify this practice within the Ministry of the Attorney General." Ms. Aziz responded to the request, noting in her response that the questions raised were discussed with Ms. Evans on February 6,1991, and Ms. Evans had been asked at that point to answer them in a meeting with her employees. Ms. Aziz testified that she has attempted to involve the grievors in court integration, and had invited them to serve on various committees. Ms. Langille, for example, was invited to attend a strategic planning weekend in April 1991. She attended on the Friday night, but did not return the next day because of freezing rain. Ms. Aziz also testified generally about her attempts to keep communication open with her employees, and her efforts to publicly recognize their accomplishments, for example in the newsletter of the Frontenac Law Association, and in memorandums praising them for their accomplishments. Ms. Aziz was asked a number of questions in cross-examination. She testified that Ms. Evans first advised her of problems with her staff when the two of them served on a job competition panel in May 1990. She indicated that Mr. Beaudoin raised similar concerns about the management of the courthouse. Ms. Aziz testified that it was Mr. Beaudoin who suggested that she locate her office in the courthouse because he felt that Ms. Evans needed management assistance with her difficult staff. Ms. Aziz testified that Mr. Beaudoin told her that he thought that Ms. Evans spent a lot of time on the telephone. Ms. Aziz was asked what she meant by the term difficult staff, and she replied that she did not mean difficulties in performance, but in interactions. Ms. Aziz testified that before beginning work she read all of the personnel files of the employees in the three courts. This review 91 indicated to her that there had been some problems. Ms. Aziz was asked some questions about breaks. She agreed that Ms. Breen and Ms. Nelson expressed a concern that the status quo not change. Ms. Aziz testified that their childcare arrangements could be acommodated, but she did not recall saying that they could attach their two breaks to their lunch periods. Ms. Aziz agreed that these two grievors were looking for reassurance that their arrangment would not change, and Ms. Aziz testified that she gave them that reassurance by indicating that she would and could acommodate their needs. Ms. Aziz was asked what precipitated the memorandum of January 10,1991, and she reiterated her evidence in chief. Ms. Aziz could not recall if Ms. Evan's advised her to go slowly in implementing change, but she did recall Ms. Evans expressing concerns about this particular change, and Ms. Aziz testified that her response was to be flexible in its implementation. Nevertheless, she felt as if she had no choice but to introduce consistency and end the shortened work day, Ms. Aziz testified that supervisors were instructed at the management meeting to be flexible. Ms. Aziz was asked why she did not stick around after the memorandum of January 10,1991, knowing as she did that this memorandum would be upsetting to employees. She replied that she was not the front line manager, and that the front line managers, Ms. Evans and Mr. Revell, were responsible for implementing the change. Even though both Ms. Evans and Mr. Revell did not agree with the change, they were still responsible as management for implementing it. Ms. Aziz testified that she had no choice but to eliminate the disparity. 92 Ms. Aziz testified that notwithstanding their own objections to the change, she expected Ms. Evans and Mr. Revell to implement it. She understood that the breaks were important to the grievors, and that changing them would have an impact on some of them. She did not, however, consider it her job to sit down with these employees to explain why the change was being introduced; she considered that to be the responsibility of the front line managers. Ms. Aziz maintained that she kept her original committment to Ms. Breen and Ms. Nelson. She was asked why, considering she knew how important the longer lunch hour was to them, that she did not take the time to sit down with them. She again replied that this was not her job. She was asked how this fit in with an "open door" policy, and she replied that her door is open, but if employees want to talk about something that should be handled first with their supervisor, then she directs the employee to his or her supervisor. Ms. Aziz was asked a number of questions about the breaks, and about the length of the lunch hour. It is not necessary to go over this evidence in detail. The main issue in contention is not how long the lunch hour was, but whether the employees were working a shorter day as a result of tacking the two formal breaks on to the lunch hour, but still taking informal breaks during the day. Ms. Aziz testified that this is what was of concern to her for it resulted in a shortened work day. Ms. Aziz agreed that the grievors had expressed a concern to her about their inability to take formal breaks during the day, because of the demands of customer service. 'She noted, however, that there was counter service in the other courts, and breaks could still be taken. She testified that at Family Court, employees take informal breaks throughout the day. At Criminal Court, employees take one formal and one 93 informal break. Ms. Aziz testified that it was Ms. Evans's responsibility, as the manager, to ensure that employees got their breaks, and in that there were three staff members in the General Division, the breaks could be staggered. Moreover, on a busy day, Ms. Evans could have helped out at the counter, and in that way ensured that employees receive their breaks. In response to union counsel's questioning, Ms. Aziz expressed her concerns about breaks in some detail. The long and the short of this evidence is that the tacking on of breaks to the lunch period resulted in the grievors working less hours in the day than they were obliged to work. Very simply, the grievors work fewer hours, according to Ms. Aziz, because in addition to their formal breaks, they take informal breaks in which they make phone calls, obtain beverages and so on. Ms. Aziz testified that she had no objection to employees drinking coffee at their desk; her objection was to the shortened work day. Ms. Aziz was asked whether drinking coffee and making personal telephone calls while at work was cheating the taxpayer, and she replied that both were fine within reason, but that both were not fine if they resulted in a shortened work day. Moreover, both were not fine if they resulted in a lack of uniformity with the other courts. Ms. Aziz was asked if she recalled a conversation in which she stated that the conduct of the grievors was "criminal." She replied that she felt that the shortened work day was criminal, but not in the sense of going to jail. She testified that this was a figure of speech, similar to saying that it was criminal when grocery prices go up. Ms. Azir agreed that employees at the courthouse were highly regarded for 94 their efficiency by the bench and bar. Ms. Aziz testified that the Sheriffs Office was efficient, but that when she began work there was a significant backlog in the General Division, in particular with respect to the civil filing and the trial lists. Ms. Aziz was asked about the request that she meet with employees to discuss the changes to the breaks, and she testified that Ms. Evans advised her that the employees were not prepared to go along with this. While Ms. Aziz was prepared to be flexible, she testified that when the employees said that they would not comply, she decided not to meet with them. Ms. Aziz testified that Ms. Evans represented the employee's reaction as an outright no, and in those circumstances she did not see what benefit could result from a meeting. Ms. Aziz agreed, however, that the employees did comply as of February 4,1991, and continued to do so until a settlement of this part of the grievance was arrived at at an early stage in these proceedings. Ms. Aziz was asked about staffing in the Sheriffs Office, and she agreed that there were two staff members and the Deputy Sheriff. She agreed that the Deputy Sheriff was, on occasion, called out of the office, but she described those occasions as infrequent. She did not agree that there could be a problem in taking breaks in that office. Ms. Aziz is aware of Ontario Government policy with respect to flexible time and acommodating working parents, and she testified that she believes that her actions are consistent with this policy. Ms. Aziz did not, however, consider offering the same arrangements with respect to breaks to all the other employees because she believed that a shortened work day was inconsistent with the collective agreement obligation to work 7 1/4 hours per day. Ms. Aziz testified that the opportunity for flexibility remained after the breaks were changed, and she illustrated this by stating that Ms. Nelson, for example, could have been acommodated by coming in at 8:45 (and in that way seeing her children onto the bus) and she could have made up the time by taking fifteen minutes less at lunch. If she also had to leave early at the end of the day, Ms. Aziz stated that this also could have been acommodated, and she would have still received her two breaks, either two formal breaks, or one formal and one informal break. Ms. Aziz was asked some questions about her evidence in chief regarding delays in processing materials in the General Division, and she testified that she conducted her own investigation and also had discussions with members of the bar. She testified that the work was put in work baskets, but that until she reorganized the procedures, there was no priority pile for items that had to be turned around right away. Ms. Aziz also instructed employees to complete some paper work at the counter. Ms. Aziz was asked a number of questions about the grievors speaking to members of the public over the counter about non-business things. She agreed that she was aware that some of the grievors had first name relationships with members of the local bar, but she was unaware of any personal friendships. Ms. Aziz also agreed that the difficulties in the courthouse were a matter of some discussion among lawyers, judges, employees and others, although she indicated that she only knew this because this is what employees told her. Ms. Aziz testified that she did not speak to members of the local bar about the problems, although she did speak with Mr. Beaudoin, and with representatives from the Ministry. She testified that she 96 heard about Ms. Breau and Mr. Hurley discussing the matter from a friend who apparently overheard their discussion in the Brew Pub. Ms. Aziz testified that she was aware of the close working relationship between employees and judges, and so she could understand in a personal way why judges might be concerned. She also agreed that if people look unhappy, others might naturally ask them how they were doing. She further agreed that she could understand why, in response, a person would answer, although she did not necessarily think that it was professional to do so. Ms. Aziz was asked whether it was professional to rely on overheard discussions, and she testified that her objective was to stop the unprofessional conversations. Ms. Aziz told the Board that she knew that the grievors were unhappy, but that they had filed grievances and had a procedure to deal with their complaints. Moreover, she stated that she did not think that the grievors were all that unhappy in that they laugh and joke around, and only stop doing so when she comes into the room. Ms. Aziz was asked some questions about the appropriate response to concerns that employees were airing their grievances with members of the public, and she agreed with union counsel that it was proper for the front line manager to investigate, and if the employees denied the allegations to take them at their word. Ms. Aziz was asked about another incident involving employees making this kind of complaints, and she testified that in early March 1991 she telephoned the local union representative and advised him that she had heard that Ms. Nelson was referring to her as "Lady Di" and was also saying that she did not care about their families. She testified that she expressed a concern to the union representative about this. When asked why 97 she did not speak directly to Ms. Nelson, she testified that Ms. Nelson was not talking to her, and when she tried to speak to her Ms. Nelson raised her voice. In these circumstances, Ms. Aziz testified, she felt that it would be better to use the union representative as a buffer through which her concern could be expressed. i Ms. Aziz was asked a number of questions about employees not speaking to her. She agreed that employees would say "good morning" in response to her having done so, but that any attempt to engage in conversation was rebuffed. According to Ms. Aziz, all of the grievors except for Ms. Breen say hello in response to her. She testified that she is no longer in the courthouse very often, but when she is there she attempts to engage the grievors in topical conversation. She agreed that if she asked employees a question about office procedures, she would receive a reply, although she did not agree that she always received complete cooperation. She gave an example of Ms. Langille chastizing her in front of others when she made a mistake in processing a document while she was still learning the job. Ms. Aziz was asked how employees could know when it was acceptable to chit-chat and when such activity would be "criminal," and she replied that she considers conversation to be part of the workday and never said otherwise, and she distinguished this kind of conversation from an informal break. Chit-chat can take place as an employee works. Ms. Aziz was asked some questions about grievances and she agreed that the Deputy Sheriff has filed a classification grievance, and that Ms. Breen, Ms. McLean and Mr. Revell have ait filed grievances with their new supervisor, Ms. St. Denis. Ms. Aziz testified that Mr. Revell's grievance was settled, Ms. 98 McLean's was dispensed with at second stage, and Ms. Breen's was denied at second stage and is still outstanding. Moreover, some kind of complaint has been filed with respect the termination of the services of Nina Charnillard, the court reporter. Ms. Aziz testified that after the incident with Judge Campbell, she asked Ms. Langille to stay late, and at that time told her that she felt that she was not getting total support from Ms. Evans. She testified that Ms. Langille told her she did not want to have another Joan Cherry situation. Ms. Aziz denied the suggestion that Ms. Langille told her that she did not want to become involved in a "struggle for power." She also testified that Ms. Langille told her that she did not think that there would be such hands on management, and also did not expect her to be walking around as much as she was observing what was going on. Ms. Aziz agreed that her major motive in directing that Ms. Evans's parking sign be taken down was anger. She also testified that it was her understanding that when the Sheriff retired at the end of September 1990, he gave the extra parking cards that he had collected and not given out to Ms. Breen and Ms. Nelson. Ms. Aziz told the Board that her concern was the proper distribution of cards according to the Manual of Administration. Ms. Aziz testified that the cards belonged to the Ministry, and if a judge wished to give his or her card away that would be a misuse of the ministry's property. Ms. Aziz again reviewed the history of the parking issue, and she testified that she did not authorize employees to speak to judges about obtaining their cards, she just indicated that she would not oppose this. She testified that she took this position in response to pressure, and that is also why she agreed to distribute one extra card to the Sheriff's Office and one to the General Division. Ms. Aziz did not agree that employees would be confused about the direction she was taking with respect to the parking issue. Ms. Aziz testified that there is no flexibility in the Manual of Administration, and she agreed that if it is written in the book that is the way she does it. Ms. Aziz was asked some questions about the missing parking cards, and she told the Board that Ms. McLean came to her for Judge Campbell's card, and it was at that point that she realized that some cards were missing. Ms. Aziz agreed that when employees learned that cards were missing they might be concerned, although no one ever came to her to directly express such a concern. Ms. Aziz recalled that it was Ms. McLean, not herself, who went around saying that there was a thief. For her part, however, Ms. Aziz agreed that she never reassured employees about this issue, or told them not to worry. Ms. Aziz did, however, put a lock on the Sheriffs Office door, because of the missing tickets, and because of the confidential records in her office. Ms. Aziz did not tell employees in advance that she was having a lock installed, and she could not think of any particular reason why the locksmith came after office hours. Ms. Aziz testified that she believes that she has the right to lock her office door. Ms. Aziz added that her door was only locked after office hours, and that when employees asked her about the lock she told them that she did not mean to offend anyone, and then gave the explanation for locking her off ice that she just gave. Ms. Aziz testified that she did put scotch tape on her locked filing cabinet, and did so because the seal would be broken if someone opened the cabinet. Ms. Aziz testified that she put the tape on so that no one would open the .,-_-"---^-.,..--I.. I 100 cabinet, and she pointed out that there was in fact an attempt to open it. Ms. Aziz did not agree that putting tape on the cabinet was bizzare, and she pointed out that the parking cards had gone missing, and that she also received a lot of confidential documents. Ms. Aziz did not agree that installing the lock on her door, putting tape on her cabinet and the missing parking tickets raised the level of apprehension in the office. Ms. Aziz agreed that she did not tell Ms. Langille the truth about the missing fax cord, but felt that Ms. Langille was setting her up, and that it was none of her business. Ms. Aziz did not agree with the suggestion that she could have simply advised employees that she was expecting a confidential fax, and stated that she did not consider this to be their business. With respect to sealing Ms. Evans's office after her suspension, Ms. Aziz testified that this was done on the instructions of Mr. Beaudoin, and Ms. Aziz stated that it was her understanding that Mr. Beaudoin explained this when he met with employees after Ms. Evans was suspended. Ms. Aziz did not agree that sealing the office would have highlighted tension in the office, and she testified that while the office was technically sealed from February through September, employees still had controlled access if they required something in the office. Ms. Aziz did agree that the suspension of Ms. Evans would have caused employees concern, given the fact that some of them had worked for her for a decade or more. Ms. Aziz testified that she met with employees a day or two after Ms. Evans was suspended to advise them of the interim management arrangements. She agreed that she told employees that she wished to turn over a new leaf, and in response to a question from employees, she told them that if anyone asked about Ms. Evans they were to say that she had been suspended pending an investigation. Ms. 101 Aziz did not explain to employees the allegations against Ms. Evans because Mr. Beaudoin had suspended her and he had met with employees in the wake of that suspension. Ms. Aziz could not recall if she said anything to reassure employees, although she did reassure them about communications in the future. Ms. Aziz testified that Ms. Langille expressed concerns that employees had not been receiving information, and Ms. Aziz explained that Ms. Evans was to have been providing the information. Ms. Aziz was asked if she communicated any information to employees about the Evans investigation, and she testified that she believed that Mr. Beaudoin told them what would be going on. Ms. Aziz was asked why she never communicated to employees the fact that Ms. Evans had been exonerated by the Freedman Report, and she replied that she had not seen that report until it was ordered produced by the Board at the commencement of this hearing. Ms. Aziz testified that she was notified at the end of June 1991 that Ms. Evans would not be returning to work pursuant to some arrangment which she had made with the Ministry. Ms. Aziz then told employees that the position would be filled. Ms. Aziz testified that the last time she spoke to employees about Ms. Evans's suspension was a day or two after the suspension. Ms. Aziz testified that she now realizes that she should have obtained Ms. Nelson's consent before contacting her doctor. On one occasion she told Ms. Breen that if she could not take the heat she should get out the kitchen, and she testified that this was an emotional reaction to having to staff an office with two out of the three people away on sick leave. Ms. Aziz testified that this comment was inappropriate and it was the result of frustration. Ms. 102 Aziz agreed that Mr. Revell was upset when he heard her say this. Ms. Aziz testified that she had no choice but to ask the questions which she did when Ms. Nelson applied for compassionate leave. She testified that as a result of the dictates of the Manual of Administration, and the interpretations given to the provision in question by the GSB, she was required to apprise herself fully of the facts before making a decision. Ms. Aziz recalled that Ms. Nelson was upset, and she testified that she later went up to her and attempted to console her. Among the questions asked was how many times a week Ms. Nelson saw her husband's grandmother. Since the Collective Agreement did not, at that time, provide for bereavement leave, Ms. Aziz felt that the answer to this question would assist her in establishing the relationship for the purpose of granting the discretionary leave. Ms. Aziz was asked a number of questions about the Roy Bullock incident. After reviewing this incident with Ms. Aziz, union counsel asked her how employees were to know when she was telling the truth and when she was lying. Since Ms. Aziz had lied about the fax cord, wasn't it reasonable for employees like Ms. Langille to wonder if she was lying about what she said to Mr. Bullock? Ms. Aziz replied that she did not lie about what she said. She simply directed Mr. Bullock to his supervisor. This was the reasonable thing to do, and when asked about it in the meeting with Mr. Bullock, Mr. Revell and Ms. Langille, she provided an explanation. Ms. Aziz stated that she could not understand what Mr. Revell was so upset about. She testified that Mr. Revell said that she would be finished before the end of the day, to which she replied, "Wally, where do you get the power to remove me?" Ms. aziz considers Ms. Evans to be responsible to some extent for the instant I*- > 103 grievances because she had not supported management. Ms. Aziz was asked how many employees had left the courts since she arrived, and she reviewed the numbers with the Board. Suffice it to say, that three employees, including Ms. Evans and Ms. Snider have left the General Division, and no employees have left the other courts. Ms. Aziz testified that a supervisor's position became available in the General Division, and that Ms. Langille unsuccessfully applied for it. Ms. McLean was unsuccesful in her application for a full-time position. Ms. Aziz did not sit on this latter panel. Ms. Aziz did not agree that Ms. Langille and Ms. Mclean had essentially done the positions they had applied for, and she distinguished those jobs from the ones held by both women. Ms. Aziz stated that these were not cases of people applying for jobs which they already held. Ms. Aziz agreed that following her initial refusal, which may have been related to her job classification dispute, Ms. Breen did indicate some particular areas of interest in cross training. Ms. Aziz contacted the janitor, the day the General Office was not opened, because he had a master key. Ms. Aziz reiterated that the janitor was not her spy. Ms. Aziz agreed that she did walk around the offices she supervised, and stated that this was an acceptable form of management Ms. Aziz testified that she felt very frustrated in her job, with judges pressuring her, with members of the bench and bar committee interfering with management and so on, and one result of that frustration was that she filed a human rights complaint alleging harassment. Ms. Aziz also wrote a letter to the Chair of this Board with respect to certain complaints she had about the union's activities in this case. Ms. Aziz stated that she does not feel that she is responsible for any of this mess. She does feel that if there had been less interference, then matters might have turned out differently. 104 She testified that she has done the job to the best of her ability following Ontario Public Service procedures and practices. Ms. Aziz testified that the grievors are unhappy because they have failed in their attempt to get her removed. Evidence of Ann Finlay Ann Finlay testified. She works as a senior analyst with the Ministry of Housing in a non-bargaining unit position. Between August 1987 and April 1990, she was a member of the bargaining unit and worked under the supervision of Ms. Aziz in the Rent Review Office. When Ms. Finlay worked as a rent review administrator there were approximately eight employees in the office, and when she left to take her new job there were several more. Ms. Finlay testified that it was a pleasant environment in which to work. While there was the potential for considerable stress given the nature of the job, that potential was not realized, and the office environment was very enjoyable. Ms. Finlay testified that Ms. Aziz was very involved with activities in the off ice, she liked to help out if people were busy, and there was lots of communication and interaction on a daily basis. Moreover, there were regular staff meetings which presented the opportunity to bring up concerns. Ms. Finlay found Ms. Aziz to be open and flexible, and while there were rules that had to be followed, Ms. Aziz found those rules to be consistently applied. Ms. Finlay testified that it was a good off ice, with a good reputation for productivity, and everyone received acknowledgement for work well done. Ms. Finlay was aware that Joanne Lillis had problems with Ms. Aziz, but those problems, including the filing by Ms. Lillis of a grievance regarding travel 105 compensation, did not get in the way of their professional relationship. For instance, when the off ice moved there was a second parking spot available, and Ms. Aziz assigned it to Ms. Lillis on the basis that she had the greatest seniority. Ms. Finlay testified that the Rent Review Office was open between 8:00 a.m. and 5:00 pm., and there was a steady stream of customer traffic. Ms. Finlay told the Board that Ms. Aziz developed a system for alternating the early shift in the summer time that treated everyone fairly, and she also invited employees to become involved in various new projects. Ms. Finlay did not know Ms. Aziz before they started working together, but they have subsequently become personal friends. In cross-examination, Ms. Finlay agreed that employees would sometimes express dissatisfaction with things that happened in the office, but that she could not recall any particular complaints about the off ice or about Ms. Aziz. Ms. Finlay was aware that Ms. Lillis had launched at least one other grievance, but she tried not to get involved. Ms. Finlay was aware that there was conflict between Ms. Lillis and Ms. Aziz, but was also aware of other problems that Ms. Lillis had, and there were times when Ms. Lillis was withdrawn and unhappy. Ms. Finlay knew that there were four union stewards in the office, but testified that one of them was more involved than the others. Ms. Finlay was also asked to be a union steward. Ms. Finlay did not think that it was unusual for there to be four stewards in an eight person office because the persons who became stewards did so to find out about the collective agreement. Ms. Finlay testified that Ms. Aziz encouraged employees to know about that agreement. Ms. Finaly was asked whether she 106 was asked to become a steward so that everyone in the office could be one and be better able to deal with Ms. Aziz in the result, and she replied that she thought people were becoming stewards to become more involved. Moreover, it was her opinion that one reason why so many people became stewards was because a number of the employees in the office considered themselves to be friends with Ms. Aziz, and the idea was that if there were a number of stewards, union messages could be delivered to her by more than one person instead of the same messenger every time. In re-examination, Ms. Finlay testified that Ms. Lillis was the source of most complaints, and that she had health problems that took a long time to diagnose. Her teenagers also caused her considerable stress and she often did not feel well. Evidence of Cathy Graham Cathy Graham testified. She joined the Ministry of the Attorney General in 1987 on a contract basis, working first at the Family Court in a clerical position. Ms. Graham became a permanent employee in 1984 and worked in the Family Court until April 1991 when she became the finance and administrative clerk in the Criminal Court. Before moving to the Criminal Court, Mr. Don Bearrs was her line manager, and Ms. Aziz was indirectly her supervisor. Later, after she moved to the Criminal Court, a direct supervisory relationship was established between Ms. Graham and Ms. Aziz. Before the move, Mr. Bearss would return from management meetings with Ms. Aziz and he would then assemble the employees for an informal meeting to bring them up to date with what was going on. These informal discussions took place during work hours, and employees had an opportunity to provide ".e.-- 107 feedback. Ms. Graham also had communications with Ms. Aziz when she would visit the office. Informal discussions would take place, and those discussions included the potential implications of integration on Ms. Graham's position. There were also more formal meetings with Ms. Aziz when information would be provided, and employees would be given the chance to express concerns and ask questions. Ms. Graham told the Board about one concern she expressed, about the implications of her accepting a promotion on the workload of the remaining employees, and how that concern was satsifactorily resolved in discussions with Mr. Bearrs and Ms. Aziz. When Ms. Graham accepted the new job at the Criminal Court she came to be managed directly by Ms. Aziz. §he would have daily contact with her. Ms. Graham described her as fair and consistent in the application of policies. Ms. Graham testified that information is communicated at meetings, that Ms. Aziz instills confidence in her, that she backs her up, and that what criticism she receives is constructive. In cross-examination, Ms. Graham testified that between November 1990 and April 1991 there were formal staff meetings with Mr. Bearss, including two with all of the employees from all of the courts. Meetings at the Criminal Court would generally occur about once per week. When Ms. Aziz worked at the Family Court, which was generally once each week, she would answer the telephone, learn Family Court procedures, and would discuss different matters as they arose. Ms. Graham reiterated her evidence that Ms. Aziz treats everyone consistently, and she illustrated the point by referring to her 108 treatment of applications for employment received from the children of some of her friends or people she knew. These applications did not receive preferential treatment. Ms. Graham testified that Ms. Aziz established the hours of work, and then made it known that they were to be adhered to by everyone, with everyone receiving the same treatment with respect to breaks. Ms. Graham agreed that Ms. Aziz uses memorandums more often to communicate information than did Mr. Bearss, but she would not agree that most of her communications took memorandum form. Evidence of Arlene Stoness Arlene Stoness testified. Ms. Stoness works at the Criminal Court and is the group leader and book-keeper. She has been in that position for five years, and has worked for the government for twenty-one years. When Ms. Aziz was appointed in November 1990, Ms. Stoness was the Senior Clerk and Bookkeeper, reporting to Ms. Aziz. Ms. Stoness was and remains a member of the bargaining unit. Ms. Stoness testified that she is not concerned that Ms. Aziz has a lock on her office door, nor has she been caused any stress by Ms. Aziz's management style. Ms. Stoness has received no complaints from other employees about Ms. Aziz's management style. Ms. Stoness has found Ms. Aziz to be very flexible. Whenever Ms. Stonees needs time off, it is not a problem to obtain it. She finds communication to be very open, and she is frequently asked for suggestions about changes in the workplace. Ms. Stomss testified that Ms. Aziz gives recognition for work that is well done, that she is not authoritarian, and that she has an open-door policy. 109 Introduced into evidence were the minutes of a meeting held on November 6, 1990. The salient part of these minutes reads: Consistency of Management: It is very important that all staff be managed consistently. The first step in integration is the appointment of the Court Services manager who will implement unified management policies which will be relayed through the individual division managers. Managers are asked to operate within the collective agreement in terms of overtime, time off for doctors appointments etc. I would ask that no special deals be made with staff regarding time off without my approval. Ms. Stoness could recall attending this meeting and receiving these minutes from Ms. Aziz. She could not recall whether or not she circulated these minutes to employees, but she did recall telling them about them. Other minutes of meetings were reviewed, and Ms. Stoness testified that some would be distributed to employees, others were not, but that in any case the information contained therein was communicated to employees. An example of materials which were submitted to employees was a form in which employees were to indicate their areas of interest for cross training. Ms. Stoness testified that a majority of the employees she worked with filled out these forms and expressed an interest in receiving cross training. Ms. Stoness recalls that at one meeting she attended the question was asked whether the minutes should be circulated. At that time, she and Mr. Bearss were generally circulating these materials, but Ms. Evans was not. Ms. Aziz indicated at this meeting that Ms. Evans should circulate the information to her employees. Ms. Aziz expressed the view that it was important that employees know what was taking place at the management meetings. Ms. 110 Stoness testified that Ms. Evans did not understand why the materials should be circulated, and there was an ensuing discussion of the pros and cons of doing so. Ms. Stoness could also recall a discussion at a management meeting about breaks during the work day. Ms. Stoness was concerned about practices in the Sheriff's Office and General Division. In the other courts, employees were not allowed to accumulate breaks, and Ms. Stoness and Mr. Bearss were concerned about the fact that some employees, but not others, were allowed to do so. In cross-examination, Ms. Stoness testified that she attended the management meetings in her capacity of group leader at the Criminal Court. She agreed that other employees did not attend these meetings, but they would find out later what had transpired. With respect to Ms. Aziz's "open-door" policy, Ms. Stoness testified that she feels comfortable in approaching Ms. Aziz and she has seen other employees do so as well. Ms. Stoness maintained that even though she supervised these other employees, they still spoke to her and she had a fairly good idea about how they felt. Ms. Stoness was asked some questions about the circulation of the minutes and other materials. She could not recall any confidential information in those documents, nor could she recall receiving any instructions with respect to the circulation of confidential materials. With respect to a particular memorandum, Ms. Stoness could not recall one portion of it being marked confidential, and she testified that she circulated the document in question without any changes. Introduced into evidence was a copy of that same document with a portion removed, and the word "confidential" written in the margin. Ms. Stoness did not "white-out" the portion, nor did she write "confidential." The item in question, from the minutes of a management meeting on January 24, 1991 dealt with breaks and with the impending changes to hours of work in which breaks could no longer be accumulated. Ms., Stoness could recall Ms. Evans saying at this meeting that they system at the Registrar's Office was working well and that there was no need for change. It will be recalled that this incident was reviewed earlier in the case. Evidence of Chris Hahn Chris Hahn testified. He works at the Ministry of Housing as a rent review administrator. In April 1992, he moved to Ottawa. While at the Ministry of Housing, Mr. Hahn was managed by Ms. Aziz. He did not suffer from stress. He found Ms. Aziz to be very professional. He testified that she had an open-door policy, and that she gave him a lot of help. In his view, Ms. Aziz treated everyone the same, she had a good sense of humour and it was a positive experience to work with her. He testified that she emphasized good customer service. He observed a professional relationship between Ms. Aziz and Ms. Lillis. In cross-examination, Mr. Hahn testified that he was never a union steward. He would sometimes receive instructions by memorandum from Ms. Aziz. He was not aware of any complaints about Ms. Aziz, but he was aware of complaints about the rent review legislation. Mr. Hahn has been managed by a number of different managers. Ms. Lillis was his assistant, and he was aware that she was unhappy, although Ms. Lillis never told him that. He described Ms. Lillis as an excellent employee. He never had any problems at f 112 work. Evidence of Kim Ridgley Kim Ridgley testified. She has been a client service representative at the Ministry of Housing since April 1987. Ms. Aziz was her manager. Ms. Ridgley described Ms. Aziz as a team player. Ms. Aziz stuffed envelopes, answered the telephone, and acted as a backup as required. According to Ms. Ridgley, Ms. Aziz's door was always open, and she offered encouragement to employees who did a good job. Ms. Ridgley was not a steward, but was asked to become one. She knew that there were four stewards in the office but she did not know why. She thought it was a way for everyone to get involved. Ms. Ridgley had no concerns about Ms. Aziz as a manager. In cross-examination, Ms. Ridgley was asked some questions about the stewards in the office and about Ms. Lillis. She named the stewards, who included Ms. Lillis, and she testified that she knew that Ms. Lillis was upset but that she did not think it was about Ms. Aziz's management sytle; she thought it was about Ms. Lillis's personal conflicts. Evidence of Lorraine Pelot Lorraine Pelot testified. She is a law student at Queen's University. She worked in the General Division between April and July 1991. She had previously worked as a summer student at the Ministry of Housing under the supervision of Ms. Aziz. Ms. Pelot did not experience any stress working for Ms. Aziz. She found her to be friendly and easy to talk to. When she wanted to take time off she was able to by making the time up. At the General Division, she worked closely with Ms. Langille and Ms. Nicholson. Ms. Pelot 113 would hear critical talk about Ms. Aziz among the other employees. Among the criticisms she heard was that Ms. Aziz was not processing the paper work properly. For her part, if she noticed that Ms. Aziz made a mistake she would correct it and/or tell her about it the next time that she was in the off ice. In cross-examination, Ms. Pelot testified that before she began work at the General Division, Ms. Aziz advised her that there were some tensions in the workplace, but that she did not go into any detail.. In reply to a question from the Board, Ms. Pelot could recall one occasion when a lawyer came in and remarked about tensions in the office and there was a reply by some of the staff to that. Evidence of Steven Silver Steven Silver testified. He is the County of Frontenac administrator, and has been in that position since January 1986. His responsibilities include parking at the courthouse. He gave some evidence about the parking lot and the introduction of a central meter system in 1985. This system requires customers to put a ticket on their dash every day to indicate that they have paid for parking. In September 1990, by-law enforcement at the parking lot was given to a different firm, and it came to light that the officer in charge was not enforcing the by-law for cars checked at spots which had a reserved sign. Mr. Silver testified that these signs were first installed when there was a gate system, one in which employees paid at the gate, and the signs were given to employees who worked in the building so that they could park closer 114 to work. Mr. Snider also testified that Ms. Langille, Ms. Nicholson and Ms. Snider had paid for parking at different times in the past. The county had received no payment for parking since June 1987. Having learned all of this, and knowing that a new Court Services Manager was to be appointed, Mr. Silver decided to leave things as they were. He raised the issue in November 1990 with Ms. Aziz, and she agreed to advise the employees that they had to start paying for parking. Mr. Silver testified that the Ministry receives a specified number of parking cards as a part of its lease, and it is of no concern to the county what happens to them. Moreover, he had no concerns about signs being posted for some employees in the parking lot. He testified that Ms. Aziz asked him to have one sign removed in November 1990 because she did not like the reserved system. Mr. Silver subsequently asked the janitor to remove the sign. On December 14, 1990, Ms. Aziz wrote a letter to the County of Frontenac in which she asked that employees be allowed to park for free, or in the alternative, be given parking at a reduced rate. The letter, which was introduced into evidence, refers to the high and uncompetitive cost of parking at the courthouse, and also notes that many employees are raising young families and some are single parents, and the cost was accordingly unaffordable. In cross-examination, Mr. Silver was asked a number of questions about the cards. Basically, each card gave the holder twenty days of parking. It did not matter when those days were taken. They could all be taken on one day by the cardholder bringing in twenty cars. This fact explains why the County did not pursue what the Ministry did with its cards after receiving them. Evidence of Keitha Cunniam Keitha Cunniam testified. Ms. Cunniam is a member of the bargaining unit. She is now a permanent employee, with work experience in the General Division, the Sheriff's Office, and the Criminal and Family Courts. When Ms. Cunniam worked at the Criminal Court she had to pay for parking. Parking is free at the Family Court, and she paid for parking at the courthouse. Either directly or indirectly, Ms. Cunniam has been supervised by Ms. Aziz. Ms. Cunniam has not felt any stress as a result of this. Instead, she has found working for Ms. Aziz to be a positive experience. She described Ms. Aziz as a good communicator, and helpful with problems. Ms. Cunniam worked in the Sheriffs Office and General Division in the spring and summer of 1991 as the replacement to Ms. Snider, who accepted a position with another ministry. In her view, the other employees treated Ms. Aziz in a cold and crude manner. Ms. Cunniam testified that she had never seen anyone treated in such a way before, and she noted that the new supervisor in that off ice, Ms. Karen St Denis, receives similar treatment. Ms. Cunniam testified that during the summer of 1991 there was favourtism exhibited to some of the lawyers who came into the office, and meetings were held about this. Ms. Cunniam also witnessed Ms. Langille criticizing Ms. Aziz over the counter during the summer of 1991. She heard Ms. Langille say that Ms. Aziz was incompetent and that she did not do her job properly and that any mistakes were Ms. Aziz's fault. Ms. Cunniam testified that this activity continued although it had, by the time she gave testimony in these proceedings in the summer of 1992, quieted down. However, a few weeks prior to her giving evidence, a lawyer came into the office to complain about J 116 not getting a case down on the court list, and Ms. Langille replied that it was Ms. Aziz’s fault. Ms. Cunniarn also told the Board that employees would discuss Ms. Aziz while at work and these critical discussions were generally lead by Ms. Langille. Ms. Cunniam testified that she is treated as an outsider, and when she arrived on the job she was questioned by Roy Bullock who wanted to know if she was an Aziz spy. Ms. Cunniam testified that there have been periods since she began to work in the General Division when the employees working there have not been very motivated in assisting customers, and this resulted in her making some complaints. Ms. Cunniam was asked about a document introduced into evidence earlier in the proceedings. It was a receipt for a trial transcript, and reference to it can be found in that part of this decision setting out the evidence of Ms. Chamillard. Ms. Cunniam testified that Ms. Chamillard could not have obtained it on her own as court reporters do not have access to the file where it is kept. The implication of this evidence was that someone had improperly given confidential information to Ms. Chamillard. In cross-examination, Ms. Cunniam was asked about communications in the Sheriffs Office and General Division, and testified that small meetings would take place. Ms. Cunniam testified that she sometimes has difficulty in getting to work on time, in part because she is a single mother with two children. Accordingly, she has arranged to work between 9:00 a.m. and 5:00 p.m. She made this arrangement with Ms. Aziz on the recommendation of Ms. Nicholson. Ms. Cunniam recently received an appointment as the coordinator of the family support plan when that plan is implemented. She testified that she does not know if anyone else was asked if they were interested in doing 117 this job. With respect to favouritism, Ms. Cunniam testified that some lawyers would get better treatment, and that included having their work completed first, or receiving better service at the counter. Ms. Cunniam agreed that some matters are more urgent than others. She was specifically asked when she heard Ms. Langille say to a member of the public that Ms. Aziz was incompetent, and she answered that she heard it all of the time. When asked by union counsel to name one lawyer who Ms. Langille said this to, Ms. Cunniam reiterated her evidence with respect to the incident that had just ocurred some weeks previously. She insisted that it happened all of the time, and upon being directed by the Board to answer the question, Ms. Cunniam named several lawyers including Ms. Breau. With respect to being treated like an outsider, Ms. Cunniam rejected a suggestion that Ms. Langille assisted her in preparing for her interview for the position. She also elaborated on her evidence about employees not doing their job. She testified that in the fall of 1991, she, Ms. Nicholson and Ms. Langille were working in the General Division, and they were not responding to customers. This went on for some time until Ms. Cunniam spoke to Ms. Aziz about it. After Ms. St Denis started work the problems continued. One day they would look after customers, the next day they would not. Ms. Cunniam would have to ask them to go and look after the customer. She testified that she did not know what they were doing when they were not looking after the customers. Ms. Cunniam testified that this problem was the subject of an office meeting, during which Ms. Aziz advised everyone that the customer came first. A similar message was given by Ms. St Denis. Ms. Cunniam testified that Ms. Nicholson and Ms. Langille would not refuse to go to the counter, they would just say that they were too busy. Ms. Cunniam has observed Ms. Langille, Ms. Nicholson, Ms. Breen and Ms. McLean having meetings in which they "whisper." Ms. Cunniam was asked if she had private meetings with Ms. St Denis, and she answered that she did not, but that she would go into her office if she had a question. Ms. Cunniam has experienced lawyers complaining to her, she has also received compliments. There are lots of complaints about service being too slow, particularly the receipt of divorce certificates. The evidence having been completed, the case proceeded to argument. Union Argument Union counsel began her submissions by noting that the grievors in this case have collectively accumulated close to one hundred years of service with the Ministry. Counsel observed that the Kingston courthouse previously enjoyed an excellent reputation, but that a series of events have effectively destroyed this workplace, and poisoned the atmosphere in which the grievors work. According to union counsel, this case is not about court reform, it is about change in the workplace, the manner in which that change was introduced, and the effects of that change on these employees. Referring to the evidence of Justice Byers, that courts are unique institutions with their own style and personality, counsel noted that the employees in this case were both long serving and loyal, and their loyalties were personal. Counsel conceded that it would have been difficult for any new manager entering this environment, but that it was particularly difficult in this case because of Ms. Aziz's management style. Counsel argued that Article 18 of the Collective Agreement imposes on employers an obligation to make reasonable provision for the health and safety of employees. Whatever that provision means, it must, counsel submitted, mean that the employer has a duty to take action when health and safety problems are brought to its attention. In counsel's submission, the employer in the instant case had, and did not meet, its obligation to deal with the employee concerns which have been raised. That obligation, in counsel's submission, was to listen, to understand and to intervene as appropriate. Counsel noted that the Board did not hear any evidence of the official response to the Freedman Report, a report which indicated serious problems at this workplace. According to union counsel, the employer has sought to bury this situation. Counsel noted that neither Mr. Beaudoin nor any other responsible official from the Ministry testified about the Ministry's response to the union's health and safety concerns, and that the only concern Ms. Aziz ever expressed was replacing employees who were away sick. Counsel reviewed the findings of the Freedman Report at some length, and observed that with the exception of Ms. Evans's refusal to change offices, all of the concerns expressed about her conduct were extremely trivial. Counsel argued that the decision to suspend Ms. Evans was relevant because of the effect that it had on the other 120 employees in the workplace, long-service employees who were in a special kind of workplace with strong personal loyalties to each other. This fact was also, in counsel's submission, important to keep in mind in the assessment of the other issues in dispute for if it were forgotten, those issues could be trivialized and belittled. Counsel suggested that another important thing to keep in mind was not what was done, but how it was done. The way in which Ms. Evans was suspended was very unusual for the Ontario Public Service. The same point could be made, in counsel's view, with respect to all of the other changes which were introduced in this workplace, and which affected the grievors so profoundly. Counsel argued that the situation in this workplace deteriorated because a trust was broken. Counsel noted that in her first few days on the job, Ms. Aziz indicated to Ms. Breen and Ms. Nelson that the flexibility they had long enjoyed would be maintained. Counsel argued that Ms. Aziz knew how important the work schedules were to these grievors, but she went ahead anyway and changed them, even after Ms. Evans and Mr. Revell told her that the employees would be unhappy. Counsel focused on how this change was introduced by memorandum while Ms. Aziz was away and unable to discuss the change with employees. Counsel argued that this example illustrated a lack of sensitivity, as did Ms. Aziz stating that it was not her job to explain the change, but that that job belonged to the frontline managers who disagreed with her decision. Counsel argued that Ms. Aziz does not really have an "open-door" policy; the evidence indicates that her door is only open, she suggested, if the topic is one that Ms. Aziz wishes to discuss. Counsel argued that this deficiency was apparent 121 in the aftermath of Ms. Evans's suspension: employees who had known her and worked with her for years were not told anything about why she had been suspended, and this naturally left some of them feeling as if they might be next. Counsel aruged that it was noteworthy that no one in management ever had the decency to tell employees that Ms. Evans had been completely exonerated of the charges brought against her. Counsel suggested that a humanist manager would have sat down with the employees and told them what was going on. The mishandling of the break issue and the suspension of Ms. Evans were two incidents that broke the trust between management and the employees. There were other incidents as well which, if taken in isolation, might not, according to counsel, seem like much, but considered cumulatively, contributed to the deteriorating atmosphere in the workplace. Counsel argued that the installation of a lock on Ms. Aziz's door after regular working hours and the missing parking tickets created considerable apprehension. Employees accordingly become suspicious and less trusting, and in that result it was hardly surprising that they refused to speak to Ms. Aziz when alone. Counsel suggested that an atmosphere of mutual paranoia soon developed and relations in the workplace worsened further. The putting of scotch tape on the locked filing cabinets was another symptom of the decay, one that union counsel described as both funny and sad. The lies with respect to the fax cord was another example, while the removal of Ms. Evans's parking sign was, seen in this context, a highly symbotic act. Incidents, like the raising of voices in the meeting with Judge Campbell, resulted in a further worsening of the office environment, particularly given the strong personal loyalties that employees had for each other. 122 Counsel argued that Ms. Aziz's authoritarian management style was made apparent by the fact that she refused to discuss the changes to breaks with employees when requested to do so. Even if it was true that Ms. Evans had correctly communicated the fact that the employees did not intend to go along with the change, Ms. Aziz still should have met with them. Counsel noted that the employees did go along with the change. Counsel suggested that Ms. Aziz did not, as she claimed, have a flexible management sytle. Instead, she did everything by the book, and her disposition of the parking issue was an example of this. Counsel noted that employees had been receiving free parking for years. Counsel did not take issue with the fact that employees were told that they had to pay for parking; what she objected to was the manner in which this decision was implemented. Counsel asked why Ms. Aziz never checked with the Audit Branch to find out if there was some way that she could provide free parking privileges to her employees, nor did she check to see whether it would be possible for judges to pass on the unused parts of their parking cards. Counsel argued that it was not because of the County's decision to collect for parking that these employees must now pay for parking, rather it was because of the way Ms. Aziz had handled the issue, in particular her writing judges and saying that it was contrary to Ministry policy for them to pass on their cards. Counsel argued that Ms. Aziz was not truly consistent in her application of policies because she rigidly applied them. Consistency, in counsel's submission, requires recognition of differences, flexibility, and informality. I 123 These hallmarks of consistency were, counsel suggested, absent in Ms. Aziz's management responses. It was noteworthy, in counsel's view, that Ms. Aziz did not understand the implications of her actions, that she did not understand that employees would be upset about hearing that by having a coffee at their desk they were committing a "crime." The positive feedback that Ms. Aziz did provide employees, in the County of Frontenac newsletter for instance, was hardly sufficient, in counsel's view, to offset the other damaging actions and remarks. Counsel argued that employees in these two offices would not know whether or not they were allowed to talk, and this explains why they did not talk much around Ms. Aziz. It was understandable, given the dispute over breaks, that employees would wonder if personal conversations would be considered an informal break. This situation contributed to tensions in the offices, as did Ms. Aziz's management style of walking around a style that counsel submitted was never explained to employees, and left some of them feeling as if they were being watched. Counsel pointed out that Ms. Aziz testified that she had been alerted to some problems in the courthouse, and that was one reason why her office was initially located there. In counsel's view, the effect of this was to leave employees feeling as if they had been placed under a microscope. It was significant, in counsel's view, that Ms. Aziz did not heed the advice she received from Ms. Evans and others encouraging her to adopt a go slow approach. This reflected, counsel suggested, a lack of awareness on Ms. Aziz's part that the court was special place and that change had to be introduced slowly. It also reflected the fact, counsel argued, that Ms. Aziz 124 did not understand that trust, respect, friendship and loyalty had to be earned. Given that these grievors had earned these things with the judges and members of the local bar, it was hardly surprising that judges and lawyers became involved in the situation in the courthouse. Everyone who worked in, or came into the courthouse knew, counsel submitted, how bad the situation was in that they heard about Ms. Evans's suspension, and many of them were interviewed by Elaine Freedman as she went about writing her report. The speaking over the counter had to be seen in that context. In counsel's view, what the grievors did was no less inappropriate than what Ms. Aziz did when she wrote to express her complaints about union conduct to the Chair of this Board. In counsel's submission, the grievors were not saints, but they were not evil conspirators either. Instead they were a group of people who came together because they faced a mutual threat. Counsel argued that everyone involved in this case bears some responsibility for what had happened, but that the employer had a particular responsibility because it had the power to make changes. Counsel made some comments with respect to the individual grievors, beginning with Ms. Snider. Counsel pointed out that Ms. Snider left her job to take a better one out of the court system. Counsel stated that Ms. Snider was, like the other grievors, apprehensive about change, and was also apprehensive because she had had some dealings with Ms. Aziz in the past and found her to be difficult. Her fears were soon confirmed, and after Ms. Evans was suspended, Ms. Snider feared that she might be next. Counsel referred to Ms. Snider's evidence, in which she discussed experiencing physical tension, 125 cramps and insomnia, and her struggle to complete each week at work. Counsel noted that these sentiments, and symptoms, were shared by other grievors, and argued that this was the result of the workplace stress. Counsel reviewed the evidence of Ms. Snider's doctor, and her conclusion that her stress was work related. With respect to Susan Nelson, counsel pointed out that she was a long-serving employee, who was both dedicated and rational. Ms. Nelson felt spied on, betrayed and hurt because of the handling of the break issue which for her was a matter of some importance. She too feared losing her job, and felt under stress as a result of working for Ms. Aziz. Counsel referred to the way she felt when she applied for one day's compassionate leave. Counsel argued that Ms. Aziz acted in an intrusive and insensitive fashion, and failed to properly exercise her discretion. She failed, according to counsel, to recognize that she was dealing with human beings who had sensitivities. Counsel pointed out that Ms. Nelson became afraid to go to work, and became very nervous about being late for work. Counsel reviewed the evidence of Ms. Nelson's doctor, and his conclusions that her stress was work-related. The breaks issue was also very important to Ms. Breen, and counsel also reviewed her evidence. Ms. Breen's work difficulties manifested themselves in breathing problems, terrible headaches and insomnia. Counsel argued that Ms. Breen also felt betrayed by Ms. Aziz, and stated that Ms. Aziz did nothing to repair the total breakdown in trust which she had created. Counsel reviewed the evidence of Ms. Breen's doctor, and her conclusion that stress had strongly aggravated her respiratory problems. 126 In counsel's view, Ms. Nicholson also suffered from the deteriorating work environment. Counsel noted her long service and how the events described in this decision led her to lose trust in her employer. Ms. Langille was also a long-service employee, and counsel argued that the evidence established that she too felt the stress of what was happening in the workplace. In her case, the stress was exacerbated because she was a natural leader to whom the other grievors looked for support. Counsel argued that a strong group dynamic did develop, but that this should not be confused with a conspiracy. Any conspiracy theory would be shallow and would miss the point. Counsel took the position that employer actions created the alienation that led the grievors to bind together for their common good. The grievors turned inward because they could not get any help from the outside world. Counsel referred to the efforts of Judge Campbell to assist the grievors, and argued that this example illustrated the fact that the grievors had to rely on themselves and each other. Counsel argued that the evidence of those persons who testified that they had no problems with Ms. Aziz's management style was ultimately not very helpful to the Board. It was important to bear in mind that the courthouse was a unique institution with its own particular history and dynamics. A chain of events began arising out of this context, and so what went on in other contexts was of little value as a comparison. In counsel's view, Ms. Aziz's management style was the problem, and counsel pointed to some evidence from cross-examination in which Ms. Aziz stated that a person need not be happy at work to be productive at work. I 127 In counsel's submission, all change causes stress, and so the implementation of change is very important. Counsel referred to Dr. Peszat's testimony, and argued that the evidence in the case established that the presence of job related stress was established in this workplace. Counsel pointed to the conflicts, the inconsistencies, the presence of unresolved issues and other factors to illustrate this point. In counsel's view, the evidence established this to be a workplace with unreasonable levels of stress. Counsel pointed out that Dr. Peszat found both chronic and acute stress to be present, and also found the situation, considered generally, to be extremely serious. Counsel argued that occupational stress is, in the 199Os, an issue of serious concern for employers and employees. It was noteworthy, counsel added, that Dr. Peszat described the situation at the Kingston courthouse as one of the most extreme examples of stress that she had seen. Counsel noted that Dr. Peszat described stress as catching, and argued that it had caught and spread in this workplace because the Ministry has not done anything about it. In that regard, counsel was adamant that the responsibility for doing something about the situation in the courthouse fell squarely on the Ministry given the realities of the employer-employee relationship. Counsel pointed to Ms. Aziz's evidence in which she said that she did not bear any responsibility for these developments, and argued that everyone who has been involved bore some level of responsibilty. However, the employer was particularly responsible given its obligations under Article 1 8. Counsel argued that this was a difficult case, but pointed out that the issues raised are not unprecedented. In counsel's view, it mattered little for the purpose of construing the collective agreement obligation, whether the J 128 threat to occupational health and safety came from a person or a machine. In either case, the employer had a duty to act. Counsel also referred the Board to W.C.A.T. decision No. 684/89, 16 W.C.A.T.R. 132 (Carlan) in which the Tribunal found there was a relationship between stressors at work and the worker's disability. The employer in this case did not deny the existence of a disability, namely a disability due to anxiety or stress, but argued that it was not job-created. The decision in 684/89, like the instant case, reviews at some length the work environment. It also reviews the medical evidence. Particularly noteworthy, in counsel's submission, was the finding that while psychiatric evidence may be the most desirable evidence of of a stress-related disability, it was not mandatory for such a finding. The panel held: In this panel's view, it is necessary to look at the evidence and assess its reliability, not by arbitrary standards, but by the content and analysis of the reports. It would be wrong to automatically disentitle disabled individuals who come from small communities without access to specialists. It would be equally incorrect to require family physicians to refer patients for treatment simply to allow their patients to meet some kind of adjudicative standard. Medical treatment should be provided for the treatment of disabilities and not be required solely for the purposes of the adjudication of insurance schemes (at 148). The panel then went on to apply the medical evidence to the situation at work and made the connection between the two and therefore allowed the worker's appeal. Counsel noted that in reaching this decision, the Tribunal made some observations with respect to non-work stressors: 129 Finally, the panel considered the implications for this claim of the two competing standards being advanced for stress claims - one, the predominant test, or two, the lower significant test. It is our view that the factors which produced the disability in this case were the work-related stressors, and, furthermore, we do not accept that in this case there were any significant non-work stressors. It is therefore our view the worker has established that the work stressors were the predominant factors in the development of her disability. Because the worker has met the highest standard advanced for stress claims, it is unnecessary to decide if a different standard of proof should be applied in stress related disability claims. That analysis only becomes necessary when there are competing sources of the disability. Since we have concluded that those competing sources do not exist, we will not deal with the issue (at 149). Counsel argued that in the instant case one of the issues to be determined was whether the stresses at the workplace predominated, and she suggested, with reference to some of the facts, that they did. Counsel also reviewed the matter of remedy with the Board, and cited Re Oil, Chemical & Atomic Workers & Polymer Corp. Ltd, (10 L.A.C. 51 (Laskin). Counsel argued that where there is a right there must be a remedy, and she referred the Board to the Crown Employees Collective Bargaining Act and the duty and responsibility of the Board to make final and binding decisions (see also Re Samuel Cooper r&Co and ILGWU 35 D.L.R. (3d) 501. One such remedy in this case would be to make a declaration of a violation of the Collective Agreement. Counsel also urged the Board to direct the employer to establish a plan of action to deal with its violation, and then to retain jurisdiction with respect to the implementation of this part of the award. Counsel cited I__- *-, ,' " 130 a number of cases in support of this proposal: Re Canada Post Co rpo ratio n and CUPW 11 L.AC. (3d) 13 (Norman) and Newfoundland Farm Products Co rp and Newfoundland Assoc iation of Public Employees 35 L.A.C. (3d) 165 (Dicks). Counsel also urged the Board to make an order of damages on the basis that the employer's failure to maintain a safe workplace deprived the grievors of their right to a safe workplace. These damages should be symbolic, no actual damages having been established. Employer Argument Employer counsel began his submissions by stating that this case was not about stress, nor was it about health and safety. Counsel argued that if the case was really about stress and health and safety, the grievors would have accepted the employer's offer of stress counselling. They did not, and accordingly, counsel argued, they could hardly say the case was about stress. In counsel's submission, the case was about getting rid of Ms. Aziz. Counsel argued that there were two important legal issues requiring determination. The first was an evidentiary one, and the second related to jurisdiction. In counsel's submission, where evidence was uncontradicted it must be accepted. Where evidence is contradicted and where there is a member of the bargining unit who could testify but is not called upon to so, the Board must infer that that person would not support the union version of events. Counsel cited a number of cases in support of this proposition including Kraus Ca rpet Mills Limited a nd UFCW (Hinnegan, unreported, February 14,1989), Avon Sports wear and United Ga rment Workers of America (Devlin, unreported, February 23, 1984) and Re Canadian Lukens Ltd and USWA 12 L.A.C. (2d) 439 (Schiff). With respect to jurisdiction, counsel 131 argued the CECBA gave the employer the right to manage the workplace, and accordingly its management of the workplace was not within the jurisdiction of the Board. Accordingly, the union allegations with respect to management of the workplace could not support a grievance under the Collective Agreement in that management style fell within management's statutory right to manage. Only overt management actions, beyond the scope of day to day managment, could support a grievance under the Collective Agreement. Counsel argued that the evidence established that there were no such overt actions in that there was nothing unusual about either management style or the management changes which were introduced. Turning to the evidence, counsel began his submissions by referring to the testimony of Dr. Peszat. In counsel's view, Dr. Peszat was not an objective witness. Counsel pointed to her statement that even if she was given additional and different facts her conclusions would not change. Counsel pointed out that Dr. Peszat did not talk to other bargaining unit employees who worked in the same offices, including Ms. Cunniam and Ms. Pelot, but relied on almost entirely on the version of events given to her by the grievors. That information was not complete, and counsel argued that the evidence established that Ms. Aziz did communicate with her employees, did give out positive reinforcement, did establish committees and did a number of other things characteristic of the humanist manager. Unfortunately, counsel submitted, none of these things were brought to Dr. Peszat's attention by the grievors, and accordingly her expert evidence was questionable. In contrast, counsel pointed to the evidence of other members of the bargaining unit who described quite a different management style. 132 In counsel's view, the evidence did not establish that Ms. Aziz was an authoritarian manager, but did establish the fact that she tried to involve employees in activities in the workplace, and that she did so in an open and flexible manner. Counsel pointed to the breaks issue as an example of management flexibility. Counsel pointed to the January 10, 1991 memorandum which made it clear that flexibility was possible. In counsel's submission, Ms. Aziz kept her committment to Ms. Breen and Ms. Nelson. Counsel referred to the evidence of other witnesses including Ms. Graham and Ms. Stoness which he argued further corroborated the fact that Ms. Aziz was a flexible manager. Other witnesses testified that Ms. Aziz was a good manager, and even Ms. Lillis agreed that the Rent Review Office where she worked was well run. In counsel's submission, this case is not about management style. What it is about is a group of employees in the Sheriff's Office and the General Division who, under the instigation of Ms. Langille, attempted by pressure, coercion, rudeness and intimidation, to get what they wanted. In pursuit of their goals they undermined management and used an "old boy" network at the courthouse. Counsel argued that prior to Ms. Aziz's arrival, the courthouse was run like a fiefdom. Connections meant everything, in counsel's submission, and that is why some lawyers received better service than others. Counsel referred to the evidence of Ms. Breau, and also referred to an appendix in the Freedman Report containing an April 3, 1989 memorandum from Ms. Cherry to Ms. Evans in which similar allegations are made. Similar evidence was also given by Ms. Cunniam. Counsel pointed to the evidence of Ms. McLean, who had testified that within \-- I 133 a few weeks of Ms. Aziz's arrival, employees in the Sherriff's Office and General Division had decided that they were not going to speak to her. This, counsel submitted, is exactly what Ms. Aziz testified to when she was on the stand. Counsel argued that in seeking to obtain what they wanted, the grievors did not just act rudely, they also sought to use their connections, with Judge Campbell and Justice Byers, and with members of the local bar. It was noteworthy, in this respect, counsel argued, that one of the main concerns that Ms. Breau had in being involved in this matter was that she did not want the grievors to give her bad service when she came into the courthouse. Counsel referred to Ms. Langille's evidence in which she testified that she had stopped complaining about Ms. Aziz over the counter after being asked to do so. That evidence was contradicted by a member of the bargining unit, Ms. Cunniam, who testified that Ms. Langille continues to criticize Ms. Aziz to customers who come into the off ice. The conclusion was inescapable, counsel argued, that Ms. Langille was not telling the truth. Counsel argued that it was a "myth" to suggest, as had the grievors and their counsel, that this was a great place to work prior to the arrival of Ms. Aziz. Counsel referred to the performance appraisals of some of the grievors which indicated otherwise. So too did the refusal by Sheriff's Office employees to cross train in the General Office. The references to low morale and lack of proper supervision suggested that the probfems which Ms. Aziz faced were in place prior to her arrival. Also in place, according to counsel, was experience among the grievors in working together to achieve some common goal. Removal of Ms. Cherry was such a goal, and it was followed, 134 counsel argued, by a group decision, using the means counsel earlier outlined, to achieve the same objective with respect to Ms. Aziz. One important reason why was because she conveyed the County's request that it be paid for parking. Counsel argued that there was nothing wrong in Ms. Aziz following the Manual of Administration with respect to parking, and argued that she took some extra steps to assist employees who would be required to pay. In counsel's submission, Ms. Aziz attempted, one way or another, to accomodate employees who then charge her with inconsistency with respect to the administration of the parking rules. Having to pay for parking, for the first time in years, angered the General Division employees. Soon, counsel argued, they were joined in anger by the Sheriffs Office staff when they were told that they could no longer attach their breaks to the lunch hour. Counsel referred to the problems this practice was having in the other courts and among other employees. Counsel pointed out that Ms. Aziz sought to obtain the assistance of her frontline managers in implementing this change, but that she was thwarted instead. In counsel's submission, all that Ms. Aziz wished was that employees work a full day, and that there be consistent practices throughout the integrated court. Flexibility was possible, and specifically provided for in the January 10, 1991 memorandum. Nevertheless, in counsel's submission, Ms. Breen and Ms. Nelson did not like the change and so joined with the grievors in the General Division in their effort to obtain the removal of Ms. Aziz. The instant grievances, all of which were identical, came immediately after. 135 Counsel made some submissions with respect to the union's interpretation of the evidence. In counsel's view, the evidence did not establish that Ms. Aziz said that the grievors were "criminal," but that the breaks issue was "criminal." There was no evidence, in counsel's view, that Ms. Evans ever advised Ms. Aziz that the grievors wished to discuss the breaks issue. The evidence was that they did not accept the change and wanted a meeting with their union representative present. This was different than requesting a meeting to discuss the flexible implementation of the change. Counsel pointed to the evidence of rudeness and insubordination to Ms. Aziz, including the Bullock incident. Counsel pointed out that the grievors did not like the fact that Ms. Aziz had a walkaround managment style, and suggested that one reason why was because they were not used to it. Counsel pointed out that Ms. Evans was not aware that her employees were being publicly critical of Ms. Aziz, and she was also unaware of the morale problems in her office. This general lack of awareness, counsel suggested, contributed to the various difficulties which arose. Counsel also made some submissions with respect to a number of other issues which have arisen in this case. There was nothing wrong, he argued, with Ms. Aziz taking the fax cord away so that a confidential fax did not arrive in her absence. In counsel's view, the evidence established that Ms. Langille knew why she had taken the cord away, and her questions with respect to it were just one more example of her disrespect for her manager. Counsel pointed out that Ms. Aziz apologized for ordering that Ms. Evans's parking sign be taken down, and also pointed out that the only reason this 136 issue became public was because Ms. Evans walked around the courthouse making an issue of it instead of phoning Ms. Aziz and asking what was going on. There was nothing wrong with Ms. Aziz doing what she had to do in assessing Ms. Nelson's request for compassionate leave. Counsel made some submissions with respect to the atmosphere of paranoia in the office. The evidence of the janitor being a spy was, counsel suggested, petty and unfounded, and one reason why people might have become upset about the missing tickets was because Ms. Mclean, not Ms. Atiz, went around the office telling people that there was a thief. Ms. Aziz was entitled to lock her door, and the fact that employees were gathered by Mr. Revell to look at the tape on her filing cabinets was, counsel submitted, not an appropriate way for employees to behave. Counsel argued that paranoid means unjustified fears, and that all of the fears expressed in this case fell squarely wit hi n that definition. Counsel made some submissions with respect to the medical evidence. He pointed out that each of the grievors who consulted a physician with respect to stress had pre-existing medical conditions. None of these grievors were given the medically recognized stress tests, other than having their blood pressure tested. Counsel pointed out that Ms. Breen suffered from a cough in previous winters, and that her cough went away at the end of the winter of 1991, and did not return the following winter. In the case of Ms. Nelson, her problems soon stabilized, while those of Ms. Snider also cleared up in short order. It was hardly surprising, counsel suggested, that they all felt some stress, for it would be naturally stressful to come together as a group to take on a manager and seek her removal. 137 Counsel urged the Board not to rely on the Freedman Report, which he argued had nothing to do with the instant case, and which in any event, had numerous factual mistakes. Counsel argued that the suggestion that the Ministry was not taking action in this case was an unfounded one, and that he was present representing the Ministry which was fully aware of the case and which had offered the grievors stress counselling. Counsel argued that when the grievors realized that this panel of the Board was not going "to fire" Ms. Aziz, they sought to turn these proceedings into a media circus by putting Ms. Aziz under a microscope and subjecting all of her actions to scrutiny. In counsel's submission, the grievors have sought the public humiliation of Ms. Aziz. In counsel's view, the facts established a disturbing, increasing and continuing use of unpleasant tactics by the grievors including rudeness and insubordination and the enlisting of local judges and lawyers to get what they wished. Counsel argued that the litigation of these grievances had been unproductive and was a discredit to women, tribunals and unions. He requested that that all the grievances be dismissed. Union Reply Counsel began her reply by rejecting the suggestion that the union had behaved improperly in these proceedings. It was perfectly proper, in counsel's view, for the grievors and the union to turn to the Board for assistance, for there was no where else to go. Accordingly, management counsel's statement that this case discredited women, tribunals and the unions was, according to union counsel, inflamatory, disturbing and offensive. 138 Counsel argued that the purpose of this case was not to humiliate Ms. Aziz, but to obtain the resolution of serious problems in the Kingston courthouse. The fact that Ms. Aziz's management style does not affect everyone the same way was neither here nor there. Counsel referred to the employer's characterization of much of the evidence, and took issue with it. The main point, however, of her reply was to the effect that the employer must accept responsibility for what had taken place in this workplace. The employer has not done so, and has, in counsel's view, shown general disrespect for these grievors and their concerns. These concerns should not be ignored, nor should they be belittled. Rather, counsel submitted in closing, they should be addressed. Decision Having carefully considered the evidence and arguments in this long and drawn-out proceeding, we have come to the conclusion that the grievances must be dismissed. This is a very unhappy workplace, but it cannot be said, on the evidence before us, that the employer is in breach of the Collective Agreement. As a general matter, we accept the principle that employer actions, including the day-to-day management of the workplace, could cause stress leading to a breach of Article 18.1 of the Collective Agreement. We also accept, as we note at the start of this decision, that in determining whether or not there has been a breach, the Board may exercise its discretion to hear wide-ranging evidence about conditions in a workplace from persons other 139 than a grievor. We exercised such discretion in this case, and heard both union and employer witnesses on point. Employees who are aggrieved about the management of a workplace, and who allege that such management has violated the health and safety provisions of the Collective Agreement and placed their health in jeopary, have every right to file grievances and refer those grievances to the Board. Accordingly, we reject employer counsel's argument that this Board is without jurisdiction to review the management of the workplace. To be sure, the Ministry has the statutory right and responsibility to "manage" the workplace, but where a grievance is filed and referred to this Board alleging that such management has violated a provision of the Collective Agreement, the Board has the authority to take jurisdiction and decide the matter. Otherwise, management could shield all of its activities from arbitral review under the rubric of its statutory obligation to manage. In making this determination, we also categorically reject employer counsel's contention that the grievors have in some way abused the process by referring this dispute to the Board. The grievors had every right to do so, and the evidence makes it perfectly clear that their unhappiness with their workplace was real, and in many respects, justified. In similar fashion, however, Ms. Aziz, as the new Court Services Manager, was faced with management issues which she was required to address. It is worth noting in passing that the Board was somewhat surprised by the failure of any senior representative of management to come and give evidence with respect to the employer's response to the deteriorating conditions at the courthouse. As a general matter, management has the 140 responsibility to try to understand employee concerns. In dismissing these grievances, we will resist the temptation to review each of the incidents described in this decision. The union case rests on these incidents being cumulatively considered. Moreover, no useful industrial relations purpose would be served by a point by point review. A number of findings must, however, be made. First of all, we find that the union has not established a breach of the Collective Agreement. This is an extremely difficult case because the evidence clearly establishes that this is a stressful and unpleasant workplace. This finding is not, in our view, sufficient, however, to constitute a breach of Article 18.1 of the Collective Agreement. To some extent, every workplace is stressful, and many workplaces are unhappy. This workplace was both, but that does not mean that the employer is in breach of its obligations under the Collective Agreement. To find such a breach, the union must prove that the employer has not made reasonable provisions for the safety and health of its employees, and in the result that the employees have been placed in jeopardy. It does not require actual harm to be established; in some cases the union can succeed simply by showing the potential of harm. In the instant case, the union has not discharged its burden. The evidence does not show that the employer has failed to make reasonable provisions for the health and safety of its employees. indeed, what little evidence there is is to the opposite effect given that the employer offered, but the union rejected, stress counselling. It should also be noted that the ArticIe 18.1 i 141 obligation is a shared responsibility, and requires the cooperation of the union in the reasonable promotion of safety and health of all employees. Refusing the offer of stress counselling does not meet the requirements of this provision. In addition, and without attempting to apportion blame, the evidence establishes that both the employer and the grievors share responsibility for the deterioration of this workplace. We do not need to categorize incidents to demonstrate that both Ms. Aziz and the grievors might have, and should have, done certain things differently. No one is blameless. Our finding with respect to a breach might have been different had the medical evidence more clearly established the grievors health and safety had been placed in jeopardy by the stress in this workplace, and had the other evidence established that that stress was solely created by management actions. In our view, the medical evidence is insufficient for this purpose. Ms. Nelson went to see her doctor within days of Ms. Aziz's arrival. Ms. Nelson's physician diagnosed "work stress" on November 12, 1990. However, it cannot be said that this stress was in any way caused by Ms. Aziz other than by the fact that she arrived on the job and this development was, in and of itself, stressful. Ms. Breen went to see her physician in February 1991, after the grievances were filed, with respect to her cough. The medical evidence indicates that Ms. Breen had a serious coughing problem, but it also establishes her having a history of this problem. This evidence does not establish a causal link between events at work and the ensuing cough. Ms. Snider also went to see her doctor in February 1991, after the grievances were filed, who diagnosed high blood pressure caused by workplace stress. This symptom quickly abated. No medical evidence was tendered with 142 respect to Ms. Langille and Ms. Nicholson. Dr. Peszat testified that in her opinion all of the grievors were under stress, and that this stress was caused by Ms. Aziz. Dr. Peszat's evidence was generally instructive about stress. It was not, however, persuasive with respect to her diagnosis of this workplace. Her failure to temper her conclusions with a recognition that they were based solely on the information provided to her by interested parties, and by a further recognition that additional facts might, although need not, result in her having to revise her opinion, seriously undermined her credibility with the Board. At the end of the day, the evidence is clear, and contrary to Dr. Peszat's opinion, that both parties share responsibility for the deterioration of the workplace. There is no question but that the grievors found the workplace to be stressful. We do not, however, find that this stress was caused solely by the employer, nor do we find that the stress the grievors felt constitutes a breach of Article 18.1. The timing of the grievances should also be kept in mind. They were filed within a day of the grievors being advised that their work schedules would change. Virtually everything that has gone wrong in this workplace has now been subjected to arbitral scrutiny. While the evidence does not credit either party, it may have served a useful catharthic purpose. We hope so. We also hope that with the conclusion of these proceedings the parties commit themselves to establishing cordial relations and creating an atmosphere of good will. This will require the grievors and Ms. Aziz to collectively agree 143 on a fresh start, without which this office will remain an unpleasant environment in which to work. For the foregoing reasons, the grievances are dismissed. DATED at Toronto this 28 day of January 1993. William Kaplan Vice-Chairperson ’ I. Thomson Member F. Collict Member