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Home My WebLink About1989-0755.Fabro.92-12-11 ONTARIO . EMPLO Y~-S DE LA COURONNE CROWN EMPLOYEES DE L 'ONTARIO GRIEVANCE COMMISSION DE. SETTLEMENT R =GLEMENT BOARD DES GRIEFS ~80 DUNDAS STREET WE$% $~TE 2f¢, TORONTO, ONTARIO+ dO 7Z8 TELEPHONE/TELEPHONE: (4 ¢6) 32~ 7358 180, RUE OUNOA$ OUEST, BUREAU 2700, TORONTO (ONTAR~). MSG 1Z8 FACSIMILE/T~CO~IE : (4 ~6) 32~ ~396 755/89, 757/89, 2152/87, 1695/87, 541/88, 773/88, 905/88, 906/88, 1100/88, 740/89, 741/89., 754/89, 1342/89, 1374/90 IN THE MATTER OF AN ARBITRATION Under TH~ CROWN EMPLOYEES COLLECTIVE B/%RGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN .... OPSEU (Fabro) Grievor - and - The Crown in Right of Ontario (Ministry of Industry, Trade & Technology) Employer BEFORE J. Roberts Vice-Chairperson E. Seymour Member D. Clark Member FOR THE A. Ryder GRIEVOR Counsel Ryder, Whitaker, Wright & Chapman Barristers & Solicitors FOR THE P. Rusak EMPLOYER Counsel Mathews, Dinsdale & Clark Barristers & Solicitors HEARING December 13, 1989 October 18, 1990 November 6, 15, 20, 1990 April 26, 1991 May 8, 13, 1991 June-7; 1991 September 14, 28, 1991 October 25, 28, 1991 November 9, 23, 1.991 December 3, 1991 January 28, 1992' March 20, 1992 May 8, 1992 June 3, 4, 1992 July 6, 1992 August 12, 13, 18, 20, 1992 I. INTRODUCTION This award represents the culmination of a long and drawn out hearing process that. began three years ago, in December, 1989. At that time, a panel comprised of Professor R. J. Roberts, Mr. Ed Seymour and Mr. George Milley~ commenced a hearing in which we were ultimately asked to determine some 28 harassment grievances that the grievor had filed over .s6veral years. Subsequently, on August 10, 1990, the grievor was discharged and on November 15, 1990, after settlement negotiations failed to bear fruit, the parties agreed that this panel should hear the discharge grievance first. We thereupon ordered that the evidence previously heard in the case would run to the discharge grievance. At the completion of the evidence, it was submitted on behalf of the Employer, the Ontario Development Corporation ('0DC), that ODC had just cause to terminate the grievor because he had an attitude problem that led him to refuse to do the job that management asked of him. It was submitted on behalf of the grievor, however, that (1) he performed his work competently and the allegations of management to the contrary were part of a bad faith design to force the grievor out of ODC; or (2) in the alternative, any failure on the part of the grievor to'meet the 1 Later, Nov=-9/gl, 'Mr. Milley was replaced by Mr. Don Clark. 2 legitimate expectations of management did not result from an attitude problem within his control but rather from a bona fide illness. For reasons which follow, we conclude that the grievor's failure to meet the legitimate expectations of management resulted from illness and not an attitude problem, and hence, it was not open to the ODC to ~erminate the grievor upon disciplinary grounds. II. GE~ B~CKGROUND According to the evidence, ODC was set up by the Ministry of Industry Trade & Technology in the early 1960's. It essentially was to function as an investment bank to stimulate small and medium sized businesses that were too high risk to obtain adequate funding elsewhere. It assisted these businesses with three programs: term lending; loan guarantees; and, revolving .lines of' credit for exporters. Over the past five years, ODC has averaged three hundred million dollars in loans and loan guarantees.and twenty to thirty million dollars in export lines of credit. At the outset, ODC had three branches: Loan 'Applications; Disbursements; and Loan Administration. In 1986, another branch was added. It was called Special Loan Services. The idea was to assist Financial Officers in Loan Administration when it appeared to. them that certain loans that they administered in their port- folios might be going sour. ~hey would refer these problem loans to Special Services, whose'Technical Consultants were supposed to 3 act as trouble shooters, in that their job was to assess the viability of the problem borrower and' then recommend to the Financial officer whether to continue supporting the borrower or call the loan and realize ODC's security, if any. The Technical Consultants in Special Services were at the top of the totem pole, so'to speak. Their job was recognized as having more discretion and responsibility than that of a Financial officer, and their salary range was at the very top 'of the bargaining unit. They had considerable business expertise and credentials. The grievor, for example, possessed both an Engineering Degree and an MBA. In general terms, the Technical Consultant from Special Services assessed viability by investigating the management expertise of the borrower; its organization of its accounting records; market share; state of competition; product acceptance in the market place; and the nature of the industry in which the borrower operated. This would involve obtaining as much pertinent documentation as possible, interviewing the principals of the borrower, and contacting other lending institutions such as banks with which the borrower dealt. The Technical Consultant was expected to analyze this data and make a determination whether the borrower could be turned around in a short period of time. Normally, this analysis and recommendation would be given in a concise, type-written report to the Manager, Special Services; the 4 Financial Officer who requested the viability study; and the Portfolio Manager to whom the latter reported. Usually, the Technical Consultants in Special Services were not required to follow a uniform pattern in the way in which they carried out their functions. They were entitled to exercise their own discretion in determining, for example, whether a personal visit to a borrower was necessary or, indeed, whether it was even necessary to issue a comprehensive final report. Their judgment with resped~ to this would seldom, if ever, be called into question. That would only happen, it seems from the evidence,· if concern arose about the manner in which a Technical Consultant was · going about performing his or her job. THE CONCERNS ~%BOUT THE GRIEVOR PRE-JANUaRY, 1987 The grievor was a long-term employee with ODC, having commenced employment in 1974. There was some indication in the evidence ·that soon after, in 1975, the grievor was treated by a psychiatrist,. Dr. Ian Hector, for erratic behaviour arising from the grievor's perception that he was being over-loaded. There was little in the evidence, however, to indicate that from 1975 to about 1984, the grievor had any serious difficulties in coping with his work environment. Mr. John Quigley, who, like the grievor, started in 1974 as a Financial Officer, said that the 5 only problem he observed with'the grievor was his tendency to go into great detail when discussing business cases, which sometimes would~ cloud or confuse the issue. Mr. Quigley had considerable opportunity to observe the grievor in this period. They shared the same office when they started and they both' were part of a group who went to lunch together every Friday for several years. in 1984, however, there began to arise certain manifestations of concern on the part of management regarding the behaviour of the grievor. Mr. B. Parr, the then Supervisor, Loan~Administration, testified that on AuguSt 31, 19'84, he was having coffee in the coffee shop with the grievor when they were approached by Mr. William Smith, who was then the grievor's Supervisor. According to Mr. Parr, Mr. Smith was angry that the grievor had chosen to go for a coffee, apparently against a policy that Mr. Smith had established, and told the grievor that he would fire him because of the problem he had become, in terms of insubordination, if it were not for the fact that he, Mr. 'Smith, was retiring that day. Mr. Fabro also testified to this incident. In his testimony, he added that Mr. Smith advised him that he was building a file on him for purposes of justifying his termination. This led the grievor t° investigate documents that had been placed in his file and, ultimately on October 12, 1984, the filing of a grievance. 2 On November 22, 1985, this grievance was mediated in the Grievance Settlement Board and a settlement agreement was executed pursuant to which a confidential directive was 6 Then, in October, 1984, it seems another controversy involving the grievor erupted. On October 3, 1984, the grievor, apparently without clearing the matter with management, sent a memorandum to the Legal Branchof ODC essentially accusing one of ODC's borrowers of taking ODC for at least nine hundred thousand dollars. The memorandum suggested that the borrower be the subject of "test- case,, litigation. In addition to this, the grievor also, according to some witnesses, called the Deputy Commissioner of the Ontario Provincial Police and the Deputy Minister of Agriculture, again without first clearing these inquires with management. The troubles of the grievor seemed to continue into 1985. On November 4, 1985, Mr.'A. D. Croll, the Executive Director and Chief Executive officer of ODC, requested Dr. Mittler, the grievor's family physician, to arrange for psychiatric evaluation of the grievor. This request Suggested that the grievor was perhaps not in good mental health. By this time, the grievor was off work on a. two-month period of sick leave. Mr. David Smith, the other Technical Consultant in Special Services, testified that while the griev°r was away, those who had to take over his files found a considerable number of errors and-omissions, such as a cheque that had not been deposited for an inordinate length of time or unanswered correspondence. Mr. Smith also testified that at issued by Mr. A. D. Croll, Executive Director and Chief Executive officer of ODC, ordering the removal from the grie¥or's file of all material of a disciplinary nature. meetings of the personnel in the department, the grievor would often ramble on and get off topic. -This behaviour drew complaints from David Smith and others who attended the meetings, because it affected their ability satisfactorily to deal with all of the items on the agenda. Nevertheless, the grievor's psychiatric evaluation concluded on November 12, 1985, with a report indicating that the grievor was "not suffering from any psychiatric disorder whatsoever, apart from a moderate degree of anxiety." This report was made by Dr. C. V. Murray, a Psychiatric.Specialist who has practised'in Toronto since '1959. Dr. Murray said that he had evaluated the grievor in three sixty-minute sessions before hew rote this report. He said that he found the grievor to be in excellent mental health and not suffering from any mental disorder whatsoever apart from some understandable anxiety arising out of some alleged personal animosity between him and Mr. William Smith, the Supervisor who had retired on August 31, 1984.3 In the course of these events, it seems, the grievor indicated that ODC's expectations of him were unclear. This led to some effort on the part of Mr. Kaye MacMillan, the then Director, Loan This may have been a reference to ongoing negot-iations regarding the removal of disciplinary documents that Mr. Smith apparently placed in .the grievor's file. As previously noted, the grievor's grievance regarding this was settled on November 22, 1985, shortly after the grievor final visit to Dr. Murray. Administration, to clarify in memorandum form the duties that the grievor was expected to perform, On April 16, 1986, the grievor grieved these memoranda as harassment. The grievance was settled on August 26,.1986, under a Memorandum of Settlement in which the Union and the grievor agreed to withdraw the grievance in return for an assurance from ODC that the memoranda were "only instructional and shall not in any way be regarded as disciplinary, nor shall they be on Mr. Fabro's corporate personnel file." Certainly the grievor's difficulties with management continued into 1986. Mr. Art T°fano, a Financial Officer who also dealt with· the borrower that the grievor had accused in 1984 of taking ODC for nine hundred thousand dollars; testified that early on 1986, an auditor for the government, Mr. Staunton, interviewed both him and the grievor regarding ODC's dealings with this ~borrower. Later, a draft auditor's report was sent to ODC. It contained highly critical comments, several o~ which appeared to be directed toward ODC's dealings with this borrower. According toTMr. John Quigley, who at the time was still the grievor's peer and colleague, this draft report became a "cause celebre" at ODC and efforts were made to correct perceived errors in the report before it came out in November, 1986. Mr. Tofano testified that he overheard Mr. MacMillan state that the auditor's report was mostly the result of a disgruntled employee. He said he formed the opinion that Mr. MacMillan was referring to the grievor. On July 15, 1986, the grievor received a negative appraisal fromMr. MacMillan."" 9 It will be recalled that it was in 1986 that the Special Services Branch of ODC was formed. Originally six Technical Consultants were delegated to this Branch; however, soon after, two retired and one quit. This left three Technical Consultants in Special Services: the grievor, Mr. David Smith, and Mr. John McCoy, whose entire time was taken in dealing with receiverships and liquidations. The grievor and Mr. Smith were the only Technical Consultants whose duties involved making viability studies. In addition to performing viability studies, Mr. Smith also assisted Mr. McCoy in receiverships and, in his spare time, worked on designing software for a management information system to help keep track of all ODC loans. David Smith testified that as to viability studies, he and the grievor had similar workloads of about five to ten cases at a time. He said that these cases were assigned, done, and then more came in. Upon cross-examination, he agreed that once a visit to the borrower had been set up, .the turn-around time for a viability studywas approximately one week. Seventy percent of the:files, he said, could be completed within about one week of the visit while another thirty percent of the files might, for one reason or another, drag on for approximately six months. Mr. Smith also. said that he was aware that management at ODC was encountering problems with the grievor's work in Special Services. He knew that the grievor was filing several grievances, 10 although the grievor kept quiet about his problems and would not tell him why. He also said that he was aware that the grievor was attempting to act as a consultant to borrowers when this was not part of the job of performing a viability study. He said that he thought that the grievor was in trouble because management felt he was not performing his duties. ~TU~Y, L987 ~0 JULY ~988 In January, 1987, the grievor's old 'colleague, Mr. John Quigley, was appointed Acting Manager, Special Services. This was a responsibility that was added to his existing responsibility as Manager of the Export Support Loan Program. He had occupied the latter position since 1982. Mr. Quigie'y testified that after he became the grievor's supervisor, the relationship between them changed. He said that at times, it became very difficult to get information from the grievor. There would be long pauses by the grievor before he would give an answer. At other times, he said, the grievor would give an over-abundance of information. Mr. Quigley said that the grievor's behaviour seemed erratic. Just as David Smith had already noted, Mr. Quigley noticed that at staff meetings the grievor would make long, winding speeches, causing other staff members to complain that nothing got-done because of the grievor's behaviour. 11 When asked about the grievor's performance in the period of a year and a half between January, 1987 and July, 1988, Mr. Quigley said that initially it was difficult even to get from the grievor a list of the cases he was working on. When he finally got the list, he said, there were five to six cases on it and he requested reports on them so that he could assign the grievor more action requests. (An action request was the document submitted by a Financial Officer to initiate a .viability. study regarding a borrower he or she suspected of being in difficulty.) After he requested these reports, .Mr.. Quigley said, several months passed and no reports appeared. He went to the.grievor several times and asked for tkem and the grievor promised to produce them; however, the promises were not kept. Instead, Mr. Quigley said, he receiVed verbal updates in great detail as to what was happening at the time with the borrower. These updates, he said, were not satisfactory. There was no analysis of the borrower's position, no conclusion as to viability and no recommendation. Moreover, the updates were not in writing and thus were incapable of being transmitted in fixed form to the Financial officer who originally made the action request. After several months, Mr. Quigley said, he only got two to three reports. In the entire eighteen-month period from January, 1987 to July, 1988, he said, he could only assign two new action requests to the grievor plus one Financial Officer Portfolio in which the grievor only had'to send to collection loans that were not working. Mr. Quigley said that of the two new cases that he assigned to the grievor, one was assigned on September 3, 1987 and the other on November 12, 1987. Although he had requested viability reports from the grievor in these cases by September 10 and November 19, 1987, respectively, he still had not received a report on either one by June, 1988. Mr. Quigley testified that when he enquired about the reports, the only answer that he received from the grievor was that written reports were not necessary 'because his verbal updates were sufficient. His resultant inability to pass on to the requesting Financial 'Officer any written conclusion as to viability, Mr. Quigley'said, frustrated the whole idea of acting quickly before the borrower's security evaporated. Like David Smith, Mr. Quigley also noted that the grievor did not confine himself to the preparation of viability studies. According to Mr. Quigley, the grievor would act like a Technical Consultant to the borrowers he was supposed to investigate, providing them with technical advice and then telling Mr. Quigley how much they appreciated it. Mr. Quigley added that the grievor was sympathizing with borrowers and in most cases recommending re- scheduling their loans to give them more time, even if on the balance sheet they were not even solvent. Frustrated, Mr. Quigley complained to his boss, Mr. Kaye MacMillan, the Director, Loan Administration. Mr. Quigley said that he did so because Mr. MacMillan had more experience 'in supervising the grievor than he did. According to Mr. Quigley, Mr. MacMillan recommended getting help from Ms. Joanne LeBlanc, of the Human Resources Branch of the Ministry. APparently, there were several meetings during which Mr. MacMillan, Mr. Quigley and Ms. LeBlanc worked closely in developing a detailed job description plus specific performance objectives and standards that, Mr. Quigley said, they hoped would assist the grievor in performing viability studies according to the expectations of management. This new .job specification along with its associated performance objectives and standards, was introduced on January 1, 1988. At that time, the grievor's colleague, David. Smith, was away, so 'that the only employee immediately affected by the job specification, etc., was the grievor. Mr. Quigley testified that the idea was to try and start afresh with the grievor from January 1, 1988 onward. He said that he knew it would be hard to get out of the grievor the kind of work that Special Services needed. To assist in reaching this goal, he said, it was decided that the grievor should be given performance appraisals every six months to 14 clarify at regular intervals- management's expectations of the grievor regarding his' duties and responsibilities. JULY 8, 1988, FIRST PERFORMANCE APPRAISAL (JANUARY 1, 1988 TO O'U1FB 30, 1988) The grievor's first performance appraisal under this new system was originally scheduled to take place at 3:00 p.m. on July 7, 1988. Mr. Quigley advised the grievor in writing of this on July 4th. When the grievor came to Mr. Quigley's office,.however,. he objected to the fact that Mr. Quigley was accompanied by Ms. LeBlanc from the HUman Resources Branch. AS a result, the meeting did not take place at that time. It was rescheduled'to July 8th. Mr. Quig!ey testified that in the course of the July 8th meeting, he read his performance appraisal, covering the period January 1, 1987'to='June 30, 1988. The appraisal covered in great detail the difficulties that Mr. Quigley had experienced with the grievor since becoming his supervisor. It also contained a case- by-case review of the action reqUests assigned to the grievor since January 1, 1986. It undoubtedly took Mr. Quigley a considerable number of hours to prepare the docUments. The appraisal reminded the grievor that his role was to review the viability of problem clients and report in writing his analysis 15 of the situation and his recommendation. Verbal reports, the performance appraisal stated, were unacceptable. The appraisal then reviewed a lack of timeliness in making visits and submitting reports in the cases that had been assigned to the grievor. It then went on to note that the grievor was deficient in the written reports that he had submitted. It was said that they were neither clear or concise, nor did some of them reach a definite conclusion. The grievor was also criticized for seeking to act as a consultant to clients to which he was not even assigned and entering into discussions with outside parties without keeping the office informed. Mr.' Quigley noted that the latter behavioUr was embarrassing and unacceptable. He warned that further actions of this type would be treated as insubordination and attract disciplinary action. According to Mr. Quigley, the grievor remained 'silent during the performance appraisal except to say,."thank you very much" at the end of the interview. Mr. Quigley then advised the grievor that he was being given seven new action requests upon which his performance would be appraised approximately two months from then, on August 30, 1988. Mr. Quigley advised the grievor that if he had a problem with the performance objectives and standards that were attached to the new job specification, to-get back to him. This, along with notice that the grievor was being removed from responsibility for the Financial Officer Portfolio, was confirmed to the grievor in a written memorandum on the same date, July 8th. 16 V~. SEPTEI~ ~-8, 1988, SECOND PEI~OI~',~CE APPI~'rS~ff~ ~ULY 1, :1.988 .... TO. AUGUST 30, 1988 The second perfOrmance appraisal did not occur as scheduled on August 30th. According to Mr. Quigley, the grievor postponed the date of the appraisal because he was going away on vacation and he also had to make a business trip to Kenora. On September 1, the grievorwrote a memorandum toMr. Quigley in which he complained of the deadlines that Mr. Quigley had established for visits and reports in response to the action requests that he had been assigned. He also blamed the typing pool for a late report and suggested that the due date should be considered to be met upon his placing his report in the basket for typing. The performance appraisal was then rescheduled for September 9, 1988, however, once again there was no meeting. .Th~.~griev0r, apparently, had advised that he would not be available for the performance .appraisa~i because he was going home due to illness. The. meeting was then rescheduled to September 14; however, this meeting likewise was postponed. Thereafter, on September 19, .Mr. Quigley wrote a memorandum to the grievor advising him that he had noted that the grievor was unilaterally changing the due dates on the cases that were assigned to him, and notifying him that this was not acceptable. Thereafter, the grievor filed a grievance against this memorandum. 17 On September 28, 1988, the performance appraisal finally took place. Once again, the grievor objected to Ms. LeBlanc's presence. Mr. Quigley also testified that he thought that the grievor showed up with a tape recorder. It then was agreed by Mr. Quigley that the meeting would take place solely between himself and the grievor. This occurred on the same day. Once again, Mr. Quigley had prepared a detailed memorandum addressing the performance of the grievor in the areas of meeting deadlines; providing sound financial and operational analysis of the borrower's operation; the need for concise, well-organized reports in a crisp writing style; the need for brief reports of only two to three pages in length; the need for the use of proper. grammar; the need to avoid rambling on When discussing.cases with Portfolio Officers; and the need to avoid stepping out of his role and acting as a consultant to the borrowers that he visited. Mr. Quigley also responded to the grievor's memorandum of September 1. He advised him that he was not to change due'dates without Mr. Quigley's permission and, inter alia, that it was not within the grievor's a~thority to notify Mr. Quigley that he was unilaterally making changes instead of requesting such changes from him.~ In conclusion, Mr. Quigley reaffirmed his willingness to assist the grievor in attempting to meet management's expectations. He also suggested that the grievor take a report writing course, which suggestion, the evidence indicated, the grievor took up. The appraisal ended upon a hopeful note because, in Mr. Quigley's view, the grievor's performance had improved and he thought that the grievor would continue to improve until all of. the objectives and standards had been met. This optimism was also reflected in the course of the meeting.. Mr. Quigley stated that he and the grievor had a fairly good discussion, with some two-way conversation. He said .that he thought that the meeting was very positive in getting %he grievor to correct some of his deficiencies and felt that he had the grievor's complete agreement in attempting to achieve these goals. As to the due dates that were specified for each of the files that had been assigned to the grievor, Mr. Quigley explained to the Board that while this was usually not done with respect to Senior Technical Consul.tants such as those in Special Services, he deemed that deadlines were necessary in order to induce 'the grievor to make efficient use of his time. He also said that, to the grievor's knowledge, he was not completely rigid with respect to these completion dates. If a report was two to three days late, he said, there was no problem. On the other hand, if the report was two weeks late, that was a problem. David smith, he said, had no difficulty in meeting his expectations in this regard. As to the improvement in the grievor's work, Mr. Quigley ~tated that on some of the seven files that had been assigned, the 19 grievor met his expectations. On these, he said, the grievor'made client visits by the specified time. His reports, however, were still a major problem in terms of timeliness, clarity and analysis. As to the grievor's shortcomings in analysis, Mr. Quigley said that 'generally, the grievor only reported back what the client said. This was not the required independent analysis of the client's financial reporting, production scheduling, and efficiency. · Nevertheless, Mr. Quigley said, he thought that at the end of this performance appraisal the grievor understood'ODC's expectations and would continue to improve. Things, however, rapidly went downhill. One day after the performance appraisal, on September 29, 1988, Mr. Quigley sent a memorandum to the grievor containing several suggestions to assist him in making more efficient use of his work time. Apparently, Mr. Quigley was concerned that between September 12 and September 22, 1988, the grievor had sent five type-written memoranda, one of which was eleven paragraphs long, to colleagues in the same building when short hand-written notes or Oral communication would have sufficed. His memorandum also suggested that when called by borrowers being handled by other colleagues, the grievor should not get into detailed conversations with them but tactfully advise them that another staff member was'looking after their case. This memorandum was not well received by the grievor. In fact, it became the subject of another grievance. 2O In October, 1988, David Smith commenced working under the new job. description for the position of Technical Consultant in Special Services, along with-its associated performance objectives and standards. In. his testimony, Mr. Smith strongly suggested that he found this experience humiliating. He said that the new job description removed the discretion of the Technical Consultant as to how to do the job. He also stated that the Sob description was well known in Special Services and among the Portfolio Officers as the "Fabro special". It was, he said, sort of a joke around the office. On October 26, 1988, he protested in the following memorandum to Mr. Quigley: Memo to: John Quigtey " From: D. Smith Subject: Position Specification The purpose of this memo is to express several concerns that I have with respect to the new job specification for my position as Special Services Consultant. I realize that this is an attempt, by management to measure the performance of a certain individual by defining the job into specific measurable segments, however, this new specification has some serious negative long-term implications for the position. I don't want to be penalized as a result of a dispute between management and another staff member. - I am concerned that the new specification has lowered the status of the position. As you are 'aware, the title 'Business Consultant is used by our Ministry for their IDO-3 positions which provide advisory services, to business. If my position is defined significantly differently than the TC-1 positions in Loan Applications, the future prospects for the status of the job are poor. 'I feel that the job has been seriously downgraded. 21 - The flavour of professionalism which has always been prevalent has been seriously eroded. Phrases such as "within established 'deadlines" and "ensuring all dates are met" have replaced a system of delegation with a situation where tasks are assigned in a rather restrictive atmosphere. The discretion of the Consultant to take whatever steps, he feels are appropriate under the circumstances appears to have been seriously reduced. Working with clients over the long-term is apparently no longer possible and no longer part of the mandate of this job. - I find it appalling that the Corporation would measure the performance-of its senior professional staff by an "absence of complaints". I have always acted in a professional and conscientious manner and I want to be treated in an appropriate manner'. I think this new job specification is a step in the wrong direction. I don't want to take sides in your dispute with G. Fabro, however, I cannot support this new specification as written. I am willing to work with you to develop a more equitable specification. In all honesty, I don't think this specification is fair to me. Essentially, Mr. Smith considered that, as applied to him, the new job description'was puni%ive in that it lowered the status of his Position and seriously eroded the flavour of professionalism in his job. Meanwhile, on November 15, 1988, the grievor returned to his psychiatrist, Dr. Murray. Dr. Murray testified that he found the grievor to be seriously .and chronically depressed. He said the grievor was exhausted with poor concentration. He was unable to make or adhere to simple decisions and was unreceptive to suggestions. All-in-all, Dr. Murray said, this deterioration in 22 the grievor's~ mental state was caused by his perception of unfair treatment at work. The grievor returned to Dr. Murray on November 24, 1988. The timing of this visit and the previous one strongly suggests- a connection with apprehension over the .approach of the grievor's third performance appraisal, which was .scheduled to take place on December 2, 1988' VII. DECEMBER 2, 1988, THIRD PERFORMANCE APPRAISAL (SEPTEMBER 1, 1988 TO NOVEMBER 3, 1988) On December 2, Mr. Quigley-only gave a partial appraisal to the grievor. It seems that the grievor advised him that he was ill with stress and exhaustion and'that he would-be off sick for approximately three weeks. As a result, Mr. Quigley testified, he agreed only to give a verbal appraisal to the grievor and give him the detailed written appraisal ~ater on. In the verbal appraisal, Mr. Quigley advised the grievor that he had not observed 'any significant improvement in his work performance and that the quality and quantity- of his work were totally unacceptable and considerably lower than minimum.performance standards. He warned him that the situation was serious and that he should appreciate the consequences of failing to improve. Mr. Quigley also ~dvised the .grievor that he was willing to discuss any areas that needed clarification. He added that he welcomed the grievor's comments. 23 On December 3, 1988, the grievor went off on sick leave and remained on sick leave for. approximately six months, until May 23, 1989. He returned, to work on Monday, May 26, 1989.' Dr. Murray testified that he continued to see the grievor throughout this period, on December 15 and 28, 1988; and January 6, February 6, February 23, March 13 and May 10, 1989. Dr. Murray stated that when he saw the grievor on December 15, 1988, the grievor did not advise him that he was off on sick leave. He added, however, that the grievor was in such a state that if'he had asked him for a doctor's note he certainly would have given him one .' Meanwhile, on December 23, 1988, Mr. Quigley finally issued a reply to David Smith's protest memorandum of October 26th. This reply stated, in pertinent part: MEMORANDUM TO: David Smith FROM: John Quigley Acting Manager Special Loan Services SUBJECT: Performance Evaluation This~is further to your memorandum dated October 26, 1988 regarding the job specifications, objectives and standards of performance for your position. I was surprised at your reaction to the documents in question and will attempt to clarify their purpose which I hope will alleviate your concerns .... To address the specific points contained in your memorandum, I would offer the following comments for your consideration: 24 1. Working Title Change:. Although you are correct in saying the MITT has business consultants at the IDO 3 level, the working title has nothing to do with the classification. In checking with the Human Resources Branch, I was given the example of policy advisors who are classified at 3 different levels, secretaries who are classified at up to 8 different levels, etc. The title was changed to better reflect the broad scope of their duties and responsibilities and not mislead applicants when the position is advertised. 2. Professionalism: I disagree that the objectives and standards of performance have any effect on the professional nature of the work. I do not intend' to "police" the process any more than it has been done in the past. The Consultant still has the same amount of discretion to take whatever action is deemed appropriate. Consultants have always been accountable for justifying their actions as required, and this will not change. Likewise, there has always been a lot of flexibility for a Consultant to act independently and again I do not intend this to change. However, if I feel you are not using your time effectively or your summary reports do not provide the information required, I~would certainly be bringing it to your attention with"or without the objectives and standards. Notwithstanding the above, if you have any specific suggestions of how you would recommend I change the job specification, objectives or standards, please submit them to me in writing and I'll review them and discuss whether or not I agree they are suitable. 3. Measuring ~performance: I agree that "an absence of complaints" is not necessarily the only method of measuring performance and would welcome your suggestions as to how we could assess the quality of you~ advice, to clients and assessments of borrower viability. The issue here is that we need to provide employees with feedback of a more official nature. As you are possibiy aware, the job competition process now reqUires a close review of employees' files and this is a determining factor in whether or not you are awarded a job; if you do not have any performance appraisals this cannot be used to your advantage. As previously stated, I am very satisfied with your performance and if I were to be assigned to another position and you were to have problems with my replacement, there is nothing on file to substantiate your work performance. 25 I sincerely believe that you should give me the benefit of the do~bt until you have specific examples of how I have used the position specification, objectives or standards in a manner in which you feel~is unfair or unreasonable. I will be more than willing to meet with you and to discuss problems as they occur but I am optimistic that this process will work well. I hope that the above helps you understand that I have no ulterior motives and that I look forward to our working well together and resolving problems once we have examples to work on. (signed) J..Quigley In their testimon~~, both Mr. Quigley and David Smith agreed that the grievor's behaviour became more erratic after the introduction of the new job specification and its assoc~'ated 'objectives and'standards. Mr. Smith added that.~he sat in the office next to the grievor's, and that as time went on, Mr. Quigley was spending more and more time in closed-door sessions in the grievor's office. Some of these, he said, lasted from a hal~ hour to one hour in ~uration. He estimated that by this time, about 20% of Mr. Quigley's day was spent dealing with the grievor, either in terms of conferring with him or in preparing his appraisals. Mr. Smith went on to say that the escalating level of conflict between the grievor and management seemed to place the grievor under tremendous pressure and a considerable amount of stress. He noticed changes in the grievor's behaviour. For example, he said, the grievor would frequently come in to his office for advice from' him regarding how to react to something thatMr. Quigley had said. 26 The escalating conflict, he said, ran contrary to Mr. Quigley's usual management style. He said that Mr. Quigley normally had a "laid-back" manner, and the conflict, with the grievor seemed totally out of character. " It was unclear from Mr. Smith's testimony whether the 1988 Christmas party occurred before or after the grievor went off on sick leave; however, it was clear that the grievor attended, and in the course of the party mentioned something about a gun. Thereafter, Mr. Smith said, the police were called in and interviewed him and others about this. subject and also an alleged threat that the grievor had made in the Spring of 1988 regarding a supposed "reign of death". According to Mr. Smith, it was the Chief Operating Officer of ODC, Mr. St. Amont, who called the police. As to his own performance under the requirements of ~the new job specification, Mr. Smith said that he had problems with its requirement for the submission of full reports instead of one paragraph s~maries that he used to make in appropriate cases. He also said he had difficulty in the majority of cases meeting the due dates specified by Mr. Quigley. When that happened, he said, he went to Mr. Quigley and requested that the due dates be varied. Mr. Quigley did so. 27 Dr. Murray testified that when he saw the grievor on May 10, 1989, he adVised him that he was unfit to return to work. He was concerned that the grievor was not even complying with instructions regarding tranquillizers and anti-depressants that Dr. Murray had prescribed, and could not give a reasonable explanation for failing to'do so. The grievor, according to Dr. Murray, responded with a rambling monologue and refused to listen. As a result, the grievor returned to work on May 23, 1989 against his psychiatrist's advice. There was a strong inference to be drawn from'the evidence that one of the grievor's motivations in returning to work after this six- month absence was to avoid a reduction in income that would have occurred by virtue of his being placed upon long-term disability after using up six months-worth of sick leave~~ Mr. Quigley testified that when the grievor returned to work, he decided not to give him the written part of his third appraisal right away because of the nature of his illness. He concluded-that it would be better to wait until two months after the grievor's return to work. He did notify the grievor, however, that his fourth performance appraisal, covering the months of June, July and August of 198'9, would take place on August 31. Mr. Quigley was also concerned about the grievor's continual failure to supply satisfactory doctor's notes during his six-month period of illness. Between January 27 and May 23, 1989, Mr. Quigley had sent the grie¥or four separate letters requesting 28 medical certificates justifying his absence. These letters, apparently, met with varying degrees of success. In the final letter, dated May 23, 1989, Mr. Quigley stated, in pertinent part: Since you have told me that it was work related problems which caused you to be absent from work for the past 6 months, I am concerned that when I assign you work it will again cause your health to suffer. In order for your doctor to determine whether you are able to return to work, I encourage you to · discuss the performance problems you and I have been working on since June 1988 with him. He should be aware that you Will be expected to perform a typical business consultant's workload and that your performance will be evaluated accordingly. Since June 1988, you and I have met to review your work performance on three (3) occasions - in June, September and December. As you are aware your performance is unsatisfactory and requires significant i~provement. It is crucial that you and your doctor determine whether your mental and physical health will affect your ability to meet the requirements of your job. If so, you should remain on sick leave until you are well enough to perform your duties according to the objectives and standards discussed in June 1988. If not, your doctor should review your job description (I would also suggest the objectives, standards and assessments to date) and confirm in writing that he is aware of the problems which caused your recent absence and does not believe your returning to work at this time will negatively affect your health. The medical certificate you provided today does not meet our~ requirements and is therefore not acceptable. If you grant me permission, I will gladly forward a copy of this letter to your doctor and answer any related questions. As such I am not willing to permit you to return to work until you provide me with a certificate which clearly indicates that your doctor is aware of your performance problems which you said has led to your absence from work. I hope this helps you understand why a more detailed medical certificate is required before you will be allowed to return to work. I feel-it is very important that if you and I are going to work together in resolving your work performance problems, it is essential that we establish that your health is not affecting your ability to perform your duties. (signed) John Quigley Mr. Quigley indicated that he was unwilling to permit the grie¥or to return to work without informed clearance from his doctor that he was able to meet the requirements of his job without further risk to his health. He suggested that the doctor should review the grievor's job description along with its associated objectives and standards and the grievor's performance assessments before concluding that the grievor could return to work without a negative impact upon his health. Of course, given the caution that the' grievor had received from Dr. Murray on May 10, advising him that he was unfit to return to work, the grievor was perhaps understandedly less than anxious to comply with this request. He neither asked Mr. Quigley to speak to his psychiatrist, nor did he authorize him to do so. On May 15, 1989, he submitted a medical certificate from hiS~famil¥ physician, Dr. Mittler, that Mr. Quigley deemed unacceptable because it did not say that the griev0r was "mentally and physically" fit to perform the job. This issue remained, unresolved between the grievor and Mr. Quigley when the grievor returned to work on May 26th. 'Shortly thereafter, on June 12, 1989, the Ministry obtained a legal opinion from counsel in response to an apparent request inquiring about the steps to be followed in order to be able to terminate the grievor for incompetence. Initially, counsel for the Union attempted to introduce this legal opinion into evidence; however, it was ruled-inadmissible by Arbitrator Gorsky, sitting pursuant to a special appointment to hear submissions upon that issue. Arbitrator G~rsky did, hOWever, state in his published award the nature of the request that led to the opinion. A little more than two months after the grievor returned to work, on August 4, 1989, Mr. Quigley attempted to give him the written documentsr~pertaining to the third appraisal of his performance, which had taken place on December 2, 1988. This attempt resulted in a bizarre game of "hot potato" between Mr. Quigley and the grievor. Mr. Quigley said that in the morning, he took the written performance appraisal documents4 to'the .g~ievor's office. The grievor suggested that everything that took place previously should be forgotten and they should begin at that point The written comments in the package of documents constituting the third performance appraisal stated, inter alia, that the grievor still was not getting the proper financial information upon which to base an analysis. It also was noted that the grievor's reports were full of irrelevant information regarding the personality, etc. of the borrower. There also were criticisms of inappropriate side comments made by the grievor upon characteristics of the borrower and/or its employees. It was noted that the grievor's report writing skills were not improved and that he was still acting as a consultant to borrowers. 31 with a clean slate. Mr. Quigley replied that this was unacceptable and left the package of documents on the grievor's desk. The grievor then took the package to the Chief Operating Officer of ODC, Mr. St. Amont, advising Mr. St. Amont that he did not want to deal with it because he was going on vacation. Mr. St. Amont gave the package back to the grievor that morning. After lunch, the package ended up back on Mr. Quigley's desk. Mr. Quigley got upset and took the package back to the grievor's office. At the time, Mr. Quigley Said, he probably raised his voice. The grievor then went to get another emploYee as a~witness' to Mr. Quigley's over-reaction. Mr. Quigley placed the package on the grievor's desk and left. This was at about 1:30 p.m. At 3:00 p.m., the grievor, accompanied by another employee, came to Mr. Quigley's office with the package. The grievor refused to enter Mr. Quigley's office. Mr. Quigley left to get his boss, Mr. MacMillan. The grievor placed the package on Mr. Quigley's desk and then disaDDeared. When Mr. Quigley found the grievor in the hall, he asked him to meet with him in his office. The grievor refused and walked away, saying he was going on vacation. By this time it was nearly 5:00 p.m. Mr. Quigley once again placed the package on the grievor's desk. On the following Monday morning, however, the package appeared once again on.the desk of Mr. St. Amont. The game did not conclude until August 23, when Mr. Quigley 32 sent the package to the grievor with a handwritten note. This time, it was not returned. In the interim, around August 14 or 15, the grievor had asked Mr. Quigley to review a particular case and explain to him what Mr. Quigley wanted in a optimum report. Pursuant to this request, Mr. Quigley met with the grievor and reviewed.a report that the grievor had made on a particular borrower. Mr. Quigley followed this meeting up on Auqust 18, 1989 with a memo that'criticised the grievor's repetitiveness in the report, his lack of organization, the undue length of the report, and the grievor's tendency to include extraneous detail 'such as comments upon the personal background of the borrower. Mr. Quigley stated that although he took the time to prepare this memorandum as a teaching guide for the grievor he did not feel that the grievor was genuine in his ~request. Mr. Quigley said that, in his.opinion, the grievor was not anxious to learn but just wanted him, Mr. Quigley, to do the work and delay the process. He did, however, agree that the August 16th meeting was one of the more positive meetings he'd had with the grievor. 33 VIII. AUGUST 31, 1989, FOURTH PERFORMANCE APPRAISAL (JUNE TO AUGUST,~ 1989) The fourth performance appraisal was not held on August 31. Instead, the grievor initiated a bizarre game of "hide and seek" with Mr. Quiglley. First, the appraisal was rescheduled to September 6, 1989, because the grievor said he was going to be out of town on plant 'visits. Then, it was .rescheduled to September 7, 1989 because the grievor said he had a medical appointment. Then, it was rescheduled to 9:00 a.m. September 14 because the grievor decided to take a week's vacation. At 9:00 a.m. on September 14, however, the grievor telephoned the office to 's~ay'~that he was held up by a slow-down on the TTC and would not be in until 9:30 a.m. Mr. Quigley said that he put a note on the grievor's desk rescheduling the meeting to 10:00 a.m. The grievor did not show. Mr. Quigley went searching for the grievor and found him in the coffee shop. He asked him to come to the meeting. The griever replied that he would after he finished his coffee. At 10:15 a.m.,. however, the grievor telephoned Mr. Quigley to say that his lawyer advised him not to attend the performance evaluation because the matter was before the courts. Mr. Quigley refused to accept this and told the grievor to meet with him by 11:30 a.m. The grievor did not show up. Mr. Quigley saw the grievor on the street after that, and the grievor said that he could not meet with Mr. Quigley 34 at that time because he had another meeting at 11:00 a.m. Mr. Quigley then rescheduled the meeting for September 18, ~ 1989. However, the grievor did not show up. When Mr. Quigley investigated, he found that the grievor was not in his office. On the following Monday, the grievor called in sick. There followed another six-month period of absence from September 18, 1989 to March 6, 1990. During this period, the grievor returned to Dr. Murray on October 5, 1989, January 15, February 7, February 12, and February 23, 1990. It was also during this period of absence that our hearings began on the grievor's harassment grievances. It will be recalled that our first'date of hearing was December '13, 1989. As such, union counsel were becoming involved on behalf of the grievor and requesting reports from Dr. Murray regarding the grievor's competence. The involvement of Union counsel seemed to buoy up the spirits of the grievor. For example, Dr. Murray noted that when he saw the grievor on January 15, 1990, the grievorshowed him a statement of claim relating to his grievances. He said that he felt good and liked Union counsel with whom he was dealing. On February 7, 1990, Union counsel requested an update on the grievor's condition. Apparently pursuant to this request, Dr. Murray saw the grievor on February 12th. Thereafter, on February 23, 1990, Dr. Murray wrote the following letter: 35 Dear Mr. Ryder: Re: Gregory FABRO I am sorry for the delay in responding to your letter to me of Eebruary 7th, 1990, in which you request an updated report on Mr. Fabro's condition. I am happy to tell you that his condition has improved profoundly and to such a degree that I have no hesitation whatever in declaring that he is well enough to resume work without'any further delay. The difference, in fact is quite startling between his condition at present and that which I observed when he was under my care previously. Briefly, he is looking extremely well, and has regained some 10 lbs. weight which he had lost previously during the period of stress. His appetite is satisfactory, he sleeps well. without medication, and his physical energy is all it should be. He is no longer depressed, his powers of concentration have returned, and he is optimistic and looking forward keenly to a return to his work which he enjoys. He als0 feels, I should think with considerable justification, that he made it~61ear that he does not consider that it was ordinary work pressure which caused him to have his "breakdown", but that this was a sequel to the harassment which he was forced to endure over a prolonged period, and I have no problem in agreeing with this.' It is a pleasure to inform you that he has recovered completely from his state or, depression and exhaustion, and in my considered opinion, he is perfectly well enough to resume his duties without delay. I think it will be noted that he has regained his confidence, his drive, his good judgement [sic], and his eagerness to work. Once again, my regrets for the delay in writing. Yours very truly, (signed) C. V. Murray., F.R.C.P.(C). Dr. Murray stated that the grievor had made a complete recovery from his state of depression and exhaustion and was well enough to resume his duties. As already noted, the grievor returned to work on March 8, 1990. 36 It should be noted that from january 11, 1990 onward, Mr. Quigley had. been attempting to obtain an independent medical assessment of the grievor's condition pursuant to Article 52.9 of the Collective Agreement. It would be an understatement to say that the grievor was uncooperative d~ring the period of his absence. In fact, he grieved Mr. Quigley's requests. Shortly after the grie~or's return to work, on March 11, 1990, Mr. Quigley once again pressed the issue, demanding that by March 30., the grievor named three independent physicians by whom he would be willing to be examined. The grievor did not comply and was suspended for two days. On March 15, 1990, Mr. Quigley was finally able to review with the grievor his fourth performance appraisal, which review had originally been scheduled for August 31, 1989. This appraisal noted serious deficiencies in the grievor'squantity andquatityof work, and a marginal, although still unacceptable, improvement in meeting deadlines and writing style. It also stated that a significant improvement was still necessary in the grievor's assessment o~ the viability of borrowers. The appraisal gave three examples where, according to Mr. Quigley, the grievor recommended rescheduling loans with no analysis to support his recommendation~ As to deadlines, the appraisal stated that of seven reports requested, six were received late. As to quantity of work, the appraisal stated that management 37 expected fifty reports per year while the grievor was doing six in three months. As to the quality of work, the assessment stated that there was no improvement in getting objective financial information. The grievor's analysis was poor. He still was trying to act as a consultant to borrowers, and this recently had caused' a complaint to be received from the.receiver's section regarding a borrower that was in receivership. The appraisal warned the grievor that continued failure to meet the minimum standards of his job would place his employment in jeopardy. On April 5, 1990, the grievor telephoned Dr. Murray and complained that he was being subjected to ruthless harassment at work. On April 18, the grievor Went to see Dr. Murray and on May 1, 1990, Dr. Murray sent the'following report-to Union counsel: Dear Mr. Ryder: Re: Gregory FABRO Further to our phone conversation of Friday, April 27th, this is a brief account of my most recent meeting with Mr~ Fabro, on April 18th, 1990. You are in possession of my earlier report of February 23rd, 1990 in which I' was happy to pronounce Mr. Fabro ~to be well enough to resume his former duties without delay. I saw him for an hour on April 18th, 1990, and was immediately struck by the change in his appearance and manner, contrasted with that witnessed less than 2 months earlier. He told me that he had returned to work on March 8th, 1990, eager to .resume his. duties. However, after a short time there had been a recurrence of difficulties, with criticism at the slightest provocation, or without provocation, and persistent harassment of the-kind he had endured for so long in the past.~ Mr. Fabro told me that he could work competently and well, as long as he is left in peace. However, he made it plain that he was being overloaded, and that in the .circumstances, he said, "I can't do it forever." I observed that his condition had deteriorated, although not yet to the extent of some months ago. He looks weary, has lost about 10 lbs. weight, spoke more slowly and his · concentration was not as sharp. This condition is very familiar to me. In the R.A.F. and U.S.A.F. in World War II, the medical officers called it "combat fatigue" or "battle fatigue", and it happened to the best and the bravest who had been under stress for too long. More recently, one of the terms is "burnout". In Mr. Fabro's case, I urge very'strongly that action be taken to relieve the unremitting pressure before irreparable damage is inflicted on him. Yours very truly, (signed) C. V. Murray,' F.R.C.P.(C). As can be seen this was considerably different from the report of February 23, which pronounced the grievor fit to returns, to work. Dr. Murray observed that within a short time, the grievor had considerably deteriorated, and he urged that some action be taken before irreparable'damage occurred to the grievor. In his testimony, Dr. Murray agreed upon cross-examination that when he issued his optimistic letter of February 23, 1990, clearing the grievor to return to work, he had made a mistake. This was, he admitted, demonstrated by the rapid deterioration of the grievor within a very short time thereafter. 39 David Smith testified that in the Spring of 1990, the conflict between the grievor and Mr. Quigley was becoming more intense. Closed door meetings between Mr. Quigley and the grievor were becoming more frequent. Mr. Quigley was spending more and more of his time dealing with the grievor. Mr. Quigley indicated that he was encountering once again problems with the grievor back-dating.documents and, in one case, placing a back dated report into a file without Mr. Quigley's knowledge. He said that the grievor started coming to him more and more frequently, and he found that it was getting to be too much to handle. The grievor would give status reports on his files with no analysis and would place hand-written notes in the files, again~ merely reporting status and containing no analysis. In mid-April, 1990, the detailed position specification that David smith termed in his testimony the "Fabro special" was revised, and apparently timed to go into effect during a general decentralization in the office. This position specification returned to David Smith full responsibility for the clients a~.igned to him and did not require him to write reports where they were deemed unnecessary. Deadlines, however, were still assigned. Most of the revisions in this job specification, however, did not apply to the grievor. He was still required to write reports- on every case. Ail of the files that he was assigned were still marked urgent. Mr. Quigley testified that he maintained these requirements with respect to'the grievor because of his concerns about his deficiencies. He said that he still wanted the grievor to write reports on every case because he wanted to see what was going into the grievor's decision-making process. Meanwhile, the grievor continued to see his'psychiatrist, .Dr. Murray. He made visits to him on May 9, June iS, July 12, July 20, and August 28, 1990. .- Once again, an incident of bizarre behaviour occurred. On May 11, the grievor purported to comply with Mr. Quigley's long- standing request for an independent medical assessment by naming three doctors by whom he would be willing to be examined; however, investigation subsequentl~ showed that one was a gynaecologist, one was retired, and the other was not taking new patients. On June 20, 1990, Mr. Quigley renewed his. request for' an independent medical assessment under Article 52.9 of the Collective Agreement, and warned of further discipline for failure to comply. This elicited a written response from Union counsel dated June 22, 1990. This response suggested, inter alia, that in demanding the names of three doctors under threat of discipline, management was straying beyond its legal rights. By hand-written memorandum dated June 26, 1990, the grievor voluntarily provided the names of three other physicians who were acceptable to him. The memorandum, however, directed the attention of management to a paragraph in Union counsel's letter of June 22, stating that the grievor would not present himself for examination by one of these physicians unless management agreed not to have any direct cbntact with the physician. iX. JUNE 29, 1990, FIFTH PERFORMANCE APPRAISAL (I~,RCH ? TO JUNE 15, 1990) The fifth performance appraisal took place as scheduled. It noted that the grievor was still submitting his reports late; making poor analyses; engaging in poor information gathering; and making poor recommendations. The appraisal also noted that the grievor's writing style had deteriorated and he still was making irrelevant comments on the personal background of borrowers. It also was noted that the Director of the Legal Branch had complained that the grievor, without authority, had taken one of their files. The grievor was notified that in one month's time a sixth performance appraisal would be made and if his performance did not improve to a satisfactory level, Mr. Quigley would recommend his dismissal. 42· Upon cross-examination, Mr. Quigley conceded that his scheduling of a sixth performance appraisal so close in time only gave the grievor about fifteen working days within which to improve. Mr. Quigley stated that they were coming close to the point of no return. ODC could not continue with the grievor in this fashion. He wanted to give notice to the grievor that he only had a short time within which to correct his deficiencies.' On July 18, the grie¥orwrote the following memorandum to Mr. Quigley: Re: Uvix Computer Controls et al Further to our many, many discussions on this account since day i it was assigned to me, ~hrough to as recently as the other day, attached is my signed letter of reply. And your copy. Frankly John, I have a lot of meaningful work to. do here, and not a lot of time like some others have on their hands to sit and do you know what. In light .of the vast amoun~ of information I've taken the courtesy of to'keep you (overly) informed. I was jolted way back by your lack of leadership, guidance, support, attitude and perhaps rudeness expressed to me the other day. I am also constantly annoyed at your open admission that you are scared since you do not know what either Board, Corporate, or Branch policy are. These are things that I have been constantly asking you for, and you say you'll give, but you never do. How can a subordinate get on with the job his superior wants when the superior won't tell the subordinate what the rules of the game are. On top of that, the superior can ·unilaterally change (unspecified) rules at will. On top of that, under no circumstances will the superior support the subordinate. Yesterday, you were terrified when I simply asked you to initial the file copy of a letter I was sending out, simply as evidence that you had seen it. You refused to do it and went apparently spastic. Why? 43 One is unable to understand how since February of 1987, you, without a competition and allegedly without experience of consequence'-in-receiverships or'work-outs, etc. could remain as Acting Manager (maybe titular) over this Special Accounts Branch for some 3 1/2 years and not be abreast of "Corporate Values" as glowingly broadcast 'by The Management Board of Cabinet. To wit: Corporate Values A clear statement of corporate values is the best foundation for common organizational goals and objectives. The following corporate values must be communicated to and provide the direction and purpose for the .daily activities of all employees of the Government of Ontario. Excellence in service to the public Quality service calls for prompt, courteous and helpful responses to public requests for assistance and information. It also demands that the actions of the Ontario Public Service' be consistent and based on ethical conduct and sound administrative practices. Employees as a critical resource The Government is committed to maximizing the initiative and creativity of its employees. The achievement of this objective is assured through the provisions of leadership and guidance that ensures fair treatment, personal'growth and the development of each individual. (Where be thy fair treatment, leadership and guidance one might ask.) Excellence in management Good management practices focus on results, accountabil'ity, responsive decision making and delegation of authority and responsibility. It is often said anyone can edit a letter or. report, once it is written by someone. That part is a snap. The tough part is putting together the original. John, take this in a.constructive way. I have work to do and would like to get on with it. And I'm not a fan of reversing my field, being unethical or devious. I strive for excellence, in service to the public and my superiors, i support the Management Board of'Cabinet Corporate Values. I have written and signed my response to Uvix Computer, Mr. Walmsley, dated July 17th. I am, I believe duly authorized to send it out. However, to be more that fair (again) I give it to you (along with your copy). I authorize you to send it out. If you want. If you want to continue to behave as you did the other day, without revealing to me any idea of what your desires are, then if you've got all this spare time maybe you might wish to send out your letter. Go ahead. That is fine with me. I've told you over and over, just tell me what you want done, and I'll do it. My main goal is to serve you as you wish. But in fairness, you should tell me what you want. John, I have a lot of work to do and not ulterior motives or hidden agendas. I have to get onwith it I don't have time to play around. If you want me to do something let me know. Respectfully, (signed) Gregg Fabro As can be seen, the grievor's memorandum was rambling, confrontational, and, in some respects, even insubordinate. David Smith stated in his testimony that by this time, the conflict between Mr. Quigley and the grievor was really escalating. On July 23, 1990, the grievor went off on sick leave for the final time. A few days prior to this, on July 20, the grievor had seen his psychiatrist, Dr. Murray. There also was placed in evidence a doctor's certificate dated July 23, 1990 from Dr. Murray indicating-that the griev0r was under his care and had been 45 instructed that he was not well enough to continue his duties until further notice. ~ On August 10, 1990, the Ministry sent the grievor the following letter of termination: Mr. Greg C. Fabro 268 Millwood Road Toronto, Ontario M4S 1J8 Dear Mr. Fabro: You have been made aware of your unsatisfactory performance and the need to improve many times. You were warned in your June appraisal that dismissal would be recommended unless your performance improved to a satisfactory level. As your performance continues to be unsatisfactory I hereby dismiss you pursuant ~to~.section 22(3) of the Public Service Act. You are entitled to file a grievance at the second state of the grievance procedure if you wish to grieve your dismissal. Yours truly, (signed) Len Pitura Deputy Minister The grievor was terminated under the section of the Public Service Act authorizing a Deputy Minister to dismiss a public servant from employment for cause. Unfortunately, due to an apparent mix-up within the offices of the Union, this medical certificate was not seen by either Mr. Quigley or other management in ODC until presented at a hearing of the Grievance Settlement Board in this case in April, 1991. 46 Mr. Quigley stated in his testimony that he recommended the termination of the grievor because after two years of informing the grievor of management's expectations and his need to improve, the grievor was still not meeting the required standards even with a reduced workload, and if he continued on staff, he would still require very close supervision that should not be necessary at his senior level. He added that the fact that the grievor had called in sick had no bearing upon his decision. When questioned upon cross-examination regarding an apparent coincidence between the timing of his recommendation to dismiss the grievor and his own departure as Acting Manager, Special Services, Mr. Quigley'agreed that he felt that he should deal with the grievor before he left. He reiterated, however, that throughout the entire period of time, he was looking for improvement in the grievor's performance. David Smith testified that after the grievor left on JulY 23.,. 1990, he overheard Mr. St. Amont saying that the grievor would never come back as long as he was there. Mr. St. Amont was not called by ODC either in its case-in-chief or in reply. 47 X. OTHER EVIDENCE ENTERED ~%T THE HEARING In an attempt to demonstrate that Mr. Quigley's criticisms of the grievor in his performance appraisals were exaggerated and unwarranted, counsel for the Union called the principals of two borrowers with whom the grievor had dealt, Messrs. Fred China and Melville Element, to give evidence regarding their impressions of the grievor. Also called were two Financial Officers from ODC who had requested viability studies that had been performed by the grievor, Messrs. Mick Zuibricki and Neil O'Connell. Mr. China testified that in 1988, the grievor telephoned him for an appointment to come over and make a report on his company. He said that the grievor's conduct was professional. He asked'Mr. China and his colleagues what their problems were. He wanted to see the operation. The grievor, according to Mr. China, stayed at the plant in the morning and then went to his hotel to make a report in the afternoon. He returned the next day to advise that he was going to give his report to 0DC, and that was the end of the matter. .Upon cross-examination, Mr. China stated that he had not seen the grievor since 1988 and conceded that he had no idea of what 'ODC expected of a Technical Consultant in Special Services. Mr. Element testified that in mid-1990, when he was involved in an attempt to save an ostensibly bankrupt ODC borrower, he had two three-hour meetingswith the grievor. He said that the grievor 48 was aware of the seriousness of the situation from the viewpoint of ODC and wanted to know his manufacturing plans. He said that he was~impressed with the grievor. Unlike the others~that he had seen from ODC, he said, the grievor came to visit. Mr. Element indicated that he had dealt· With ODC on two previous occasions within the last 25 years, plus Financial officers from various banks. He said he sensed from the grievor that he fully understood his business plans. The grievor recommended that he purchase from the bankrupt company its molds for making plastic elevator fixtures, with the money being paid to ODC as realization of part of its security. Unfortunately, Mr. Element said, the grievor was terminated, although he did not realize that at the time, and replaced by another Technical Consultant from Special Services, Mr. Ivor Austrins. ·L According to Mr. Element, Mr. A6strins·did not make a visit. Then, just as Mr. Element had raised the funds to purchase the molds, Mr. Austrins decided to put the molds up for auction. At the auction, the molds were sold to Mr. Element's competitor for $10,750.00. If the deal that had been reached with the grievor had gone through, Mr. Element said, ODC would have receiVed from $25,000.00 to $30,000.00 for the molds. Mr. Zuibricki testified that in April, 1990, the grievor was assigned to-perform-a viability'study that he had requested. He and the grievor visited the plant'together, and in his opinion, he said, the grievor did a good job. He said that the grievor had a very good grasp of the financial statements of the Company, was professional, experienced, and understood the process 'and working capital needs of the client. While it was clear that ODC had to wind-downthe Company, he said, he was impressed with the grievor's recommendation to obtain an appraisal on the Company's silo. Upon cross-examination, however, Mr~ Zuibricki conceded that this was a very simple type of situation. Only one piece of equipment was involved.. He also agreed that the Technical Consultants from Special Accounts were to act as trouble shooters and that this was a more demanding area than the other areas in ODC. Mr. O'Connell indicated that the grievor performed viability studies upon some of his problem borrowers in 1986. He said that he had no problem with the reports he received from the'grievor. They satisfied his needs. He said that he wanted conclusions plus supporting documents and the reasons for declining sales. He was not concerned about irrelevancies'or verbosity. He said that his preference was for facts and that he would formulate his own opinion as to the who. He measured the value of a report, he said, 50 in terms of its information, allowing him to choose among alternatiYes. Counsel for the Union also invited the Board to consider documents indicating that Mr. Austrins, who replaced the grievor, generally carried out the recommendations that the grievor had already made. Further, he suggested to Mr. Quigley upon cross- examination that Mr. Austrins had precisely the same caseload as the grievor. Mr. Quigley rejected this suggestion, saying that when he left, Mr. Austrins had 30 to 40 cases, not eight like the grievor. Finally, counsel for the Union placed into evidence several of the files upon which the grievor's performance appraisals had'been based. He drew the attention of the Board to certain alleged errors or exaggerations that, he said, Mr. Quigley had made in the course of making his written comments. He also suggested that the Board accept that documents were ~placed in the file on about the same day as they were dated. 'We were further invited to regard hand-written notes and status reports that the grievor had placed in the files as equivalent to the viability reports requested by Mr. Quigley. Counsel for oDC called one further witness in reply: Dr. Hyman Bloom, a Forensic Psychiatrist. Dr. Bloom gave evidence as to several different types of personality disorders. In response to a partial s~mary of the evidence of the grievor's behaviour that was put to him by counsel for ODC, he concluded that the recited facts were virtually all consistent with the existence of a personality disorder called passive-aggressive personality. X. SUMMARY OF THE SUBMISSIONS OF COUNSEL As might have been expested in a case of this nature, the submissions of both counsel focused, upon characterizing in a fashion most favourable to their respective cases the extensiv~ evidence that we heard in the course of this arbitration. Counsel for the Employer characterized the grievor as a clever and manipulative employee who had an attitude problem that led him to'refuse to take instructions from his superiors and, in fact, treat Mr. Quigley in particular in a belligerent and disrespectful manner. In the course of making this submission, counsel invited the Board to determine that Dr. Murray, the grievor's Psychiatrist, was not a credible witness. His letters and testimony, it was submitted, evidenced a bias toward the grievor. His powers of observation and recollection, it was submitted, were flawed. Counsel also emphasized'that Dr. Murray's notes, when examined at the hearing, contained no evidence of treatment and.no objective analysis, but only a recitation of the'complaints that the grievor had to make about his superiors. All-in-all, it was submitted, Dr. Murray was an "easy mark" for the grievor, who soon learned to manipulate him by feigning bouts of depression, etc. Counsel for the grievor, on the other hand, made two very different characterizations. First, counsel submitted that the grievor was a competent employee who had become the victim of a plot by management to force him out of ODC. Secondly, and in the alternative, it was submitted that in any event any failure on the part of the grievor to meet the legitimate expectations of management did not result from an attitude problem within his control but rather from a bona fide illness. In support of his first characterization, counsel for the Union began with the June, 1989 request by management, for a legal opinion regarding the steps to be followed in order to be able to terminate the grievor for incompetence. This suggested, it was submitted, that Mr. Quigley's entire pattern of conduct toward the grievor since becoming his supervisor was not directed toward getting out of him the quality and quantity of work that,'it was said, Special Services needed, but rather toward building a case to justify the grievor's discharge. Management's likely motivation 'for this undertaking, counsel suggested, was to punish the grievor for acting as a major contributor to the November, 1986 Auditor's Report, which was so embarrassing that, in Mr. Quigley's words, it became a "cause celebre" at ODC. The grievor, it was submitted, was ODC's scape goat. 53 Mr. Quigley, counsel submitted, was brought in to do the job of forcing the grievor out of ODC. It was for this reason, counsel contended, that Mr. Quigley introduced the "Fabro special" and subjected the grievor to' what counsel characterized as an unprecedented, heavy-handed and brutal appraisal process. Mr. Quigley, counsel submitted, should not be believed by the Board in his assertions that he was merely resorting to this process in order to bring the grievor's performance up to acceptable standards of quality and quantity. That the grievor's work was already acceptable, in terms of quality and quantity, counsel submitted, was evident from. comparison of his output under the "Fabro special" with that of David Smith, and also from the actions of Ivor Austrins, who replaced the grievor, in generally carrying out the recommendations that the grievor had already made. In further suppor~ of this submission, counsel referred the Board to the evidence of Messrs. Zuibricki, O'Connell, Element, and China. These witnesses, it was submitted, showedin their evidence that the grievor's performance as a Technical Consultant in Special Services was competent from 1986 through to his dismissal in August, 1990. Turning to the alternative submission of counsel for the Union, it was submitted that the grievor's illness was not feigned, but was a matter of established fact. Moreover, it was submitted, there was a causal link between this illness and anxiety created in 54 the grievor from stress on the job, including the threat to his employment that was manifested in the latter stages of the review process. In this regard, counsel urged the Board to reject the attack of counsel for ODC upon the credibility of Dr. Murray.' It was submitted that Dr. Murray based his diagnosis upon his own observations of the grievor and not simply upon what the grievor told him. Referring to Dr. Murray's extensive resume, counsel pointed out that he was an experienced Psychiatrist who was incapable of being manipulated by someone feigning illness. He did not, it was submitted, merely do whatever the~ grievor requested. It also was pointed out that the only diagnosis of illness before the Board was that of Dr. Murray. Had management co- operated with the Union in the latter part of June, 1990, it was submitted, an independent assessment of the grievor's mental health might have been available; however, this avenue was not pursued. As to the testimony of Dr. Bloom, it was stressed that he never had examined the grievor and clearly was not in a position to dispute Dr. Murray's diagnosis. X. THE DECISION OF THE BOARD Having considered the foregoing submissions in light of a thorough review of the evidence, we have reached the following conclusions: (1) from the time of inception of the Special Loan Services Branch of ODC in 1986, the grievor consistently failed to meet the legitimate expectations of management regarding the quality and quantity of his work; (2) this failure did not result from an attitude problem within the control of the grievor; (3) rather, the grievor's failure to meet the legitimate expectations of management resulted from a bona fide illness; (4) this illness was a disorder of a psychiatric nature which caused the grievor to react to perceived stress in an erratic manner, ultimately resulting in severe depression characterized by poor concentration, poor judgment, listlessness, endless repetition and long-windedness; (5) this psychiatric disorder was not within the control of the grievor; and, (6) as a result, it was not open to ODC to terminate the grievor upon disciplinary grounds, We will set forth our reasons for reaching each of these conclusions hereinbelow: (1) From the time of inception of the Special Loan Services Branch of ODC in 1986, the grievor consistently failed to meet the legitimate expectations of management regarding the ~ualit¥ and quantity of his work The evidence shows that even prior to 1986, the grievor was having difficulties with management regarding the quality and quantity of his work. It will be recalled that in November, 1985, the grievor went off on two months of sick leave and received a psychiatric evaluation at the request of Mr. A. D. Croll, the Executive Director and Chief Executive Office of ODC. While the grievor was away, those who had to take over his files found a considerable number of errors and omissions in them. This led the grievor to make a complaint that he later repeated several times, that he was unclear as to management's expectations of him. The other Technical Consultant assigned to perform viability studies for special services, David Smith, also indicated that as far back as November, 1985, he was aware that management was having difficulties with the grievor's work. He said that he thought that management was concerned about the grievor's tendency to attempt to act as a consultant to borrowers, and that generally, management felt that the grievor was not performing his duties. He added that at meetings the grievor would tend to ramble and get off-topic, leading to complaints from his colleagues. 57 As to }tr. Quigley, the main witness for ODC, we find that in the main, he was a credible witness. The suggestion of counsel for the Union that he was brought in by management for the specific purpose of getting rid of the grievor and that his evidence had to be evaluated in that light, cannot be sustained. The evidence shows that in January, 1987, when he became Acting Manager, Special Services, Mr. Quigley was one of the grievor's friends. They once shared an office together and went to lunch with a group of other employees every Friday. There even was evidence that the 'grievor might have been relieved when Mr. Quigley was appointed. The grievor once described him 'as a "buffer" between Mr. MacMillan and himself. The Board cannot draw from the sequence of events the causal link that counsel for the Union invited us to draw between ODC's embarrassment at the 1986 auditor's report, the 1987 appointment of Mr.. Quigley as Acting Manager, Special Services, and the 1988 introduction of the new job specification, with its associated performance objectives and standards, that became known as the "Fabro spe~al". These events were separated from each other by too much time to enable any reasonable inference to be drawn that they were~somehow part of an overall plot or plan to rid ODC of the grievor. Moreover, as has already been indicated, the'weight of the evidence is against drawing any inference that Mr. Quigley was appointed Acting Manager of Special Services for this specific purpose. 58 We do not ignore that on June 12, 1989, the Ministry obtained a legal opinion in response to an apparent request about the steps to be followed in order to be able to terminated the grievor for incompetence. It seems to the Board, however, that making such a request falls far short of evidencing a design to get rid of the grievor reaching back to 1986. Moreover, in our opinion, it falls short of evidencing that the dominant motivation of ODC from June 12, 1989 onward was to rid itself of the grievor rather than turn him into a productive employee. Arbitral notice, may, we think, be taken of the fact that it is not uncommon for management to seek to explore all of its options, including that of termination, when faced with a chronically~difficult employee. By the time this legal opinion was sought, Mr. Quigley had more than enough reason to conclude that the grievor was a chronically difficult employee. He experienced difficulties with the grievor 'over a period of two and one half years. These .difficulties had begun to consume up to 20% of.Mr. Quigley's time. They also had resulted in the grievor being off on sick leave for a period of six months and his return to work without the clearance from his doctor that Mr. Quigley had repeatedly requested certifying that the grievor was able to meet the requirements of his job without further ~risk to his mental health. In these circumstances, it was not unreasonable for management to seek to explore all of its options, and we decline to infer that 59 management's actions from June, 1989 onward were directed toward the single goal of terminating the grievor. We accept, however, that as David Smith indicated, the atmosphere of conflict between Mr. Quigley and the grievor escalated as time went on. But even taking this into account and allowing for a consequent p6tential for harshness in Mr. Quigley's subsequent written appraisals of the grievor, the conclusion seems inescapable that the grievor was, in fact, failing to meet the · legitimate expectations of management in the quality and quantity of his work. 'Time after time, Mr. Quigley had advised the grievor that he was deficient in: (i) meeting deadlines; ~ (ii) providing sound analysis of the financial and operational health of the borrower's business; (iii) providing crisply written and well organized reports of only two to three pages in length; and, (iv) remaining within the narrow bounds of his role as an assessor of viability, thereby avoiding being drawn into ~cting as an ongoing business consultant to the borrowers that he visited. While there was transitory improvement in some areas, such as making visits in a timely manner, and 'an attempt at improving in the area of report-writing, the grievor consistently fell short of the mark in most of the other areas. Moreover, we accept Mr. Quigley's evidence that .by the time of the fifth performance 60 appraisal, on June 29, 1990, the grievor's writing style had deteriorated. it seemed well established in the evidence that the expectations of management regarding the quality and quantity of viability studies prepared by its Senior Technical Consultants in Special .Services were more than legitimate. DaVid Smith testified that the performance objectives and standards established by Mr. Quigley in consultation with Mr. MacMillan and Ms. LaBlanc were similar to the format of a job description that he had made up for himself when he first started in the position. His main concern, as illustrated in his letter to Mr. Quigley, was that the new job description took away the discretion and responsibility that he believed he deserved as a Senior Technical Consultant at ODC.. He also testified that he had some concern about the due dates for reports; however, he agreed that he had no difficulty in obtaining extensions from Mr. Quigley whenever necessary. In his reply to David Smith's concerns, Mr. Quigley indicated that the change in job specification was motivated by a need to provide employees w~th feedback of a more official nature. He also indicated that he was flexible with respect to Mr. Smith's concerns about professionalism and the time limits for making visits and submitting reports, and invited specific suggestions regarding ways in which to improve the job specification and its &ssoci~ted objectives and standards. For us, the main point to be derived from the concerns expressed by David Smith and Mr. Quigley's response i~ that neither .~disputed the need for a viability study to provide a sound financial and operational analysis in a concise, well-organized and 'well-written report. There also was no disagreement between them with respect to the need for a Senior Technical Consultant with Special Services to avoid stepping outside his or her role and becoming drawn into acting as a consultant to borrowers. In this respect, we note that David Smith testified that he was aware that the grievor was attempting to act as a consultant to borrowers when he was not supposed to, and that this concerned management. We do not regard the testimony of the two Financial Officers from ODC, Messrs. Mick Zuibricki and Neil O'Connell, as relevant to the legitimacy of the objectives and standards established by Mr. Quigley. The personal preference of Mr. O'Connell, which apparently was to weed out relevant facts and place his own analysis ~pon them, would appear to say more about Mr. O'Connell's view Qf his own capabilities than it does about the legitimacy of management's expectations. Likewise, we take nothing from the evidence 'of Mr. Zuibricki that in April, 1990, the grievor performed in a professional, experienced and informed manner in the course of evaluating one of Mr. Zuibricki's borrowers. In this regard, we note'that Mr. 62 Zuibricki conceded upon cross-examination that the situation was very simple, in which only one piece of equipment was involved. The evidence of Messrs. China and Element, the principals of two borrowers with whom the grievor 'had dealt,· is similarly dismissed. Mr. China conceded in cross-ex~min~tion that he had no idea of what ODC expected of a Technical Consultant in Special Services. Mr. Element similarly lacked the expertise.necessary to make an informed judgment on this score2 While he had dealt with ODC on two previous occasions and also with Financial officers from various banks, he did not convey in his evidence any familiarity with the expectations of management of financial institutions like ODC. Finally, we decline the invitation o~ counsel for the Union to substitute our judgment for that of. Mr. Quigley, based upon a review of the files upon which the grievor was appraised, comparison of the number of files in which he performed viability studies with the number of files allegedly handled by David Smith within the same period; and, consideration of documents indicati~ that Mr. Ivor Austrins, who replaced the grievor, generally carried out the recommendations that the grievor had already made. On all of the evidence, no case has been made out for our taking the extraordinary step.of second-guessing the managerial judgment of Mr. Quigley. 63 First, we have already concluded that Mr. Quigley was not out to "get" the grievor, and accordingly, wemust decline to conclude that~ his overall assessments of the grievor were tainted by a desire to achieve this goal. While Mr. Quigley, by virtUe of the escalation in the conflict between him'and the grievor as time went on, might have tended to be'harsh in some of the specifics of his assessments, his general comments regarding the quality and quantity, of the grievor's work were credible. Secondly, Mr. Quigley's general comments regarding the deficiencies in the grievor's work were confirmed, at least in part, by other witnesses'such as David Smith. Even Mr. O'Connell inferentially confirmed some of Mr. Quigley's general observations when he testified that he was unconcerned about .verbosity, irrelevancies, .and lack of analysis in viability studies that the grievor had prepared for him. Documents produced at the hearing also confirmed the accuracy of Mr. Quigley's observations regarding the grievor's rambling and sometimes ungrammatical writing style. Thirdly, there was a lack of direct evidence on behalf of the grievor to refute testimony on behalf of ODC to regarding the deficiencies in the quality and quantity of the grievor's work. For example, Mr. Quigtey rejected a suggestion that Mr. Austrins, who succeeded the grievor, had precisely the same case load as the grievor. Yet Mr. Austrins was not called to substantiate the suggestion that counsel for the Union put forward. In the same 64 vein, both Mr. Quigley and David Smith testi~ied that the latter performed many functions in addition to preparing viability studies. Mr~ Smith also confirmed in the main Mr. Quigley's estimate of the turn-around time for a file. He said that seventy percent of the files could be completed within about one week of the visit to the borrower. Yet once again, no direct evidence 'was offered on behalf of the grievor to refute what must be taken as telling points in the case for ODC. In light of the foregoing considerations, we must decline to .accept the submission that the grievor was a competent employee throughout the course of his employment as a Senior Technical Consultant in the Special Services Department of ODC. We must conclude, instead, that throughout this period, the grievor consistently failed to meet the legitimate expectations of management regarding the quality and quantity of his work. (2) Thi§ Failure did not result from an attitude problem within the control of the grievor There simply is no credible evidence in the record to support a conclusion that the failure of the grievor to meet the legitimate expectations of management resulted from an attitude problem within his control. Dr. Bloom, who testified that certain facts relating to the grievor's behaviour were consistent with the existence of a personality disorder called passive-aggressive personality, cannot be regarded by the Board as having given authoritative evidence as 65 to the actual condition of the grievor. As was conceded, Dr. Bloom never examined the grievor and, indeed, had never met the grievor prior to the day upon ~hich he testified. .His evidence, it seems to us, is incapable of forming the basis for any inference that the grievor does, in fact, suffer from the disorder of passive- aggressive personality. Much was made in the submissions of counsel for CDC of the fact that on two occasions, in 1988-89 and 1989-90, the grievor returned to'work after absences of six months in duration, or in other words, just before his sick leave compensation would have been reduced by virtue of being switched from short-term to long- term disability payments. In fact, in the submissions of counsel for the Union, it was virtually conceded that in at least one of these incidents, the grievor was motivated to return to work by a concern not to suffer a reduction in income. This showed, in the submission of counsel for ODC, that the grievor possessed a calculating nature and that, indeed, all of his actions, vis-a-vis Mr. Quigley were calculated to undermine him in his position of authority. This intent, it was submitted, was reflected in several memoranda sent to Mr. Quigley by the griev0r, including the rambling, confrontational and insubordinate memorandum that the grievor wrote to Mr. Quigley on July 18, 1990 and which has been reproduced in the text of this award. 66 We do not agree. The facts relied upon by ODC are far too slender to support such a weighty proposition. They are as least as consistent -- perhaps even more consistent -- with an inference that thegrievor's perception, and hence his reaction, was impaired by an illness of psychiatric nature. This leads us to our third conclusion below. (3) The grievor's failure to meet the legitimate expectations of management resulted from a bona fide illness It seems to the Board that the evidence upon this score is yirtually overwhelming. It shows that as far back as 1975, the grievor was treated by a psychiatric, Dr. Ian Hector, for erratic behaviour arising from the grievor's perception that he was being "overloaded". This erratic behaviour manifested itself in many ways, one of which, as observed by David Smith, was a tendency to ramble on and go off-point when discussing business cases. In late 1985, ODC arranged for the grievor to undergo another psychiatric evaluation, this time while he was off. work on a two-month period of sick leave. During his absence, unexplained errors and omissions were found in the files that he was handling. When he returned to work, more difficulties followed. Then, in 1987, when Mr~ Quigley became the grievor's Acting Manager, his erratic behaviour once again surfaced. At some points, Mr. Quigley said, the grievor would make long pauses before he would give an answer while at other times, he would give an over-abundance of information. He also noted the grievor's tendency to ramble on and get off topic during staff meetings.. Further, when the new job specification, with its associated objectives and standards, was introduced, both Mr. Quigley and David Smith noticed an increase in the grievor's erratic behaviour. Mr. Quigley said that in December, 1988, he became so concerned about the grievor's illness with stress and exhaustion that he agreed only to give him a verbal appraisal and submit to. him a detailed written appraisal later on. Six months .later, when the grievor returned~to work, Mr. Quigley remained so concerned about the state of his health that he delayed a further two months in giving the written appraisal. Further, he sent letters to the grievor suggesting that he was concerned about the grievor's ability to meet the requirements of his job without further risk to the grievor's mental health. In addition to these observations of supervision and co- workers, the record shows several incidents of bizarre behaviour that seem to the Board to be more indicative of ill'ness than the existence of an attitude problem inducing the grievor to seek to undermine management. We refer, of course, to the gun and death threat~ that apparently were made in 1988; the game of "hot potato" that the grievor played with respect to the documents pertaining to his third appraisal from August 4 to August 23, 1989; the game of 68 "hide and seek" played with respect to the fourth appraisal in September, 1989; and his.bizarre suggestion in May, 1990 that he would be willing to be examined, inter alia, by an independent. physician who turned out to be a gynaecologist. We also note the frequency with which the grievor sought to obtain psychiatric assistance, particularly toward the latter stages of his employment. For example, he saw Dr. Murray, his psychiatrist, on November 15, November 25, December 2, DeCember 15 and December 28, 1988. He returned to Dr. Murray on January 6, February 6, February 23, March 13, May 10 and October 5, 1989. In 1991, the grievor saw Dr. Murray on JanuarY 15, February 7, February 12, February 23, April 18, May 9, June 18, July 12, July 20, and August 28. There is no basis in the evidence for inferring that these visits were anything but genuine attempts to seek psychiatric assistance. Certainly, there is no basis in the evidence for inferring, as was suggested by counsel for ODC, that they were part of a plan by a crafty "fakir" to manipulate Dr. Murray, who was characterized as a suggestible psychiatrist, into saying whatever it was that the grievor wanted him to say. (4) The grievor's illness was a disorder of a psychiatric nature which caused the grievor to react to perceived stress in -an erratic manner, ultimately resulting in severe depression characterized by poor conCentration, poor judgment, listlessness, endless repetition and long-windedness Dr. Murray, the grievor's psychiatrist, was the only expert witness to testify who had Personally examined the grievor.~ He was perhaps not the most persuasive expert to come before the Grievance Settlement Board but he was the only psychiatric expert to give testimony regarding the actual condition of the grievor in the' present case. We acknowledge that, according to the evidence, the grievor made it very difficult for 0DC to obtain any independent psychiatric evaluation, and that from January 11, 1990 onward, Mr. Quigley had been attempting to obtain such an assessment of the grievor's condition. There is no doubt that an independent assessment would have been very helpful to the Board; however, the blame for the absence of one cannot be laid entirely at the feet of the grievor. We note that on June 22, 1990, the Union offered terms under which the grievor would be examined by an independent physician; however, there was no indication in the evidence that ODC either took up this offer or attempted to negotiate more favourable terms. In any event, the Board was left solely with the testimony of Dr. Murray. As counsel for ODC stressed in her submissions, this testimony left much to be desired. The notes that Dr. Murray produced constituted mere records of what the grievor had said during the courseofTa session. They did not contain any analysis .of the'grievor's condition, nor did they record any medications or 70 course of treatment that Dr. Murray might have prescribed. MoreoVer, Dr. Murray proved to be far from the. most observant witness, even apparently forgetting his own acquaintance with Dr. Mittler, the grievor's family physician and the person who .had referred the grievor to Dr. ~Murray. Counsel for ODC also submitted that Dr. Murray could not be regarded by the Board as a dispassionate or impartial witness. Reference was made to a letter that Dr. Murray had.prepared in the course of the hearing of this matter when it became apparent that the" hearing would 'be delayed because Mr. Quigley had to undergo heart surgery prior to' resuming the stand for purposes of cross- examination. This letter read as follows: May 21, 1991 'Mr. Alick Ryder, Q.C., Ryder, Whitaker, Wright & Chapman, 30 St. Patrick Street, Suite 600, TORONTO, Ontario, M5T 3A3. Dear Mr. Ryder: Re: Grag FABRO t~--- I understand from Mr. Fabro that you would like an up-to-date report from me about his condition. I was him again last week for a one-hour interview. Needless. to say, I ~find that his condition has generally deteriorated even more. It is obvious that he has lost even more weight, and as'before, he appears exhausted, although at all times, pleasant-mannered and considerate. You must be aware by now that he is not a man who is prone to complain a good deal, even under .the most gross and prolonged provocation. His depression is very obvious which is scarcely surprising, in view of the fa~t that he receives no financial benefits, and has been reduced to living on his savings while the court proceedings drag on. I need hardly'tell you that I am gravely concerned about his condition, and the probability that if circumstances do not change, he will become the victim of either a severe emotional breakdown or will encounter a grave and fatal cardiological emergency, such as~a coronary occlusion or a stroke. In my opinion, it is of the utmost urgency that the legal proceedings be concluded without delay, before it is too late. Yours very truly, (signed) C. V. Murray, M.D., F.R.C.P. (C), Consultant Psychiatrist. As can be seen, Dr. Murray warned of a severe emotional breakdown or fatal cardiological emergency if the arbitration proceedings were not concluded without delay. Pointing out that this arbitration hearing continued on for over one year after May, 1991, without any emotional, breakdown or cardiological emergency occurring to the grievor, counsel submitted that Dr. Murray was prone to react 'to suggestions of counsel for the Union on behalf of the grievor and Present exaggerated conclusions on that basis. In light of this, it was submitted, he could .not be regarded as impartial and his credibility was seriously drawn into question. We acknowledge that counsel has brought forward significant flaws in the evidence presented by Dr. Murray. As the above letter demonstrates, he seemed to lack the dispassionate balance in the presentation of his findings normally to be expected from an 72 impartial expert. Yet this apparent tendency of Dr. Murray to stray from the role of observation into that of advocacy, stops short of leading us to conclude that, as contended by counsel for ODC, Dr. Murray was a mere tool to be manipulated by the grievor and devoid of any independence of judgment. That Dr. Murray was not prone to do whatever the grievor wanted him to do was illustrated in Dr. Murray's evidence regarding the grievor's return to work after his first six-month absence from December, 1988 to May, 1989. Dr. Murray testified that when he saw the grievor on May 10, 1989, he advised him that he was unfit to return to work and the grievor refused to listen, responding with a rambling monologue. Certainly it was clear that the grievor returned to work against his psychiatrist's advice,, and if he had asked Dr. Murray to clear him to return to work, Dr. Murray undoubtedly would have refused. Moreover, the accuracy of many of Dr. Murray's observatiOns of the' grievor was confirmed by our own observations during the lengthy course of this hearing. On severa.I occasions, Dr. Murray stated' that he noted that the deterioration in the grievor was reflected in his physical appearance and demeanour. According to Dr. Murray, the grievor had lost considerable weight, ~is concentration was poor, he was listless and spoke very slowly. In the course of our hearings, the Board could not help but note occasions where the grievor's condition deteriorated just as 73 described by Dr. Murray. On several occasions, the grievor appeared to have progressively lost considerable weight. On these occasions, he also appeared more and more distracted and listless in his demeanour. Accordingly, we have little difficulty in accepting Dr. Murray's Observations of the physical and mental condition of the grievor. We also have little difficulty in concluding on the evidence that the grievor exhibited these physical and mental symptoms in reacting to stress that he perceived to be unfairly exerted upon him by management at ODC. As we have already concluded, this perception was a distorted one in which actions of management that were either neutral or beneficial, in the sense that they were designed to help the grievor, were erroneously perceived by the grievor to be harmful in intent and probably even part of a plan to get rid of him. For the Board, the most disappointing aspect of the psychiatric evidence in this case was that it did not present any diagnosis 0f why the grievor's perception of reality was distorted in this fashion. From the evidence, it seems that all that Dr. Murray attempted to do was to treat the grievor's symptoms by prescribing anti-depressants and the like. The root cause of the grievor's illness, it seems to us, was never addressed. For want of a more precise definition, all that we can call it is a disorder of a psychiatric nature. We find that the grievor had a disorder 74 of a psychiatric nature which caused him to react to perceived stress in a erratic manner, ultimately resulting in severe depression characterized by poor concentration, poor judgment, listlessness, endless repetition and longwindedness. (5) This psychiatric disorder was not within th'acontrol of the ~rievor There is nothing in the record to indicate that the grievor was capable of controlling the impact of this psychiatric disorder upon his beha~iour. In fact, the evidence is all the other way. The most telling example of this involves his rapid deterioration upon returning to work after each of his six-month absences. It will be recalled that after the first absence, the grievor returned to work against his psychiatrist's advice. A little more than two months after that, the grievor initiated the bizarre game of "hot potato" regarding the documents from his third performance appraisal. Then, in August and September, 19~9, the grie~or played hide-and-seek with Mr. Quigtey to avoid, receiving his 'fourth performance appraisal. After that, it will be recalled, he went off on his second six-month period of absence. Mr. Quigley testified that all the while, he was concerned about the grievor's mental stability. After returning from his second period of absence, in March, 1990, this time with the approval of Dr. Murray, the grievor's condition deteriorated in remarkably short order. A mere five 75 weeks later, in April, the grievor was seen by Dr. Murray and described as looking weary, having lost about ten pounds, speaking more slowly, and not as sharp in his concentration. This, of course, was followed by another incident of bizarre behaviour, . i.e., the gynaecologist incident. The foregoing pattern of behaviour show that the psychiatric disorder of the grievor was not within his control. Try as he might, with or without approval.of his psychiatrist, the distorted way in which events were perceived by him led him once again into severe depression. The process was not within his control. (6) As a result, it was not open to ODC to terminate the ~rievor uDon disciplinary ~rounds It goes without saying that an employee cannot~be disciplined for actions that are not within his or her control. In this case, the grievor was terminated under Section 22(3) of the Public Service Act, i.e., the Section of the Act authorizing the Deputy Minister to dismiss a public servant in a disciplinary sense,' "for cause". The grievor's failure to meet management's expectations was not. deliberate but due to illness. Moreover, at the time of his dismissal the grievor had been off work as a result of his illness since July 23, 1990. We find that this illness was bona fide, as evidenced by Dr. Murray's certificate dated July 23. In this regard, we decline an invitation from counsel for ODC to infer that the certificate was withheld from management until April, 1991 through some impropriety. Rather, it seems that the delay was due to an apparent mix-up within the offices of the Union. X]. REM. EDY By way of remedy we direct that the grievor be reinstated forthwith but not immediately returned to his duties. Rather, we direct that he be treated as having been on disability leave from July 23, 1990 onward, with appropriate adjustments for the compensation that was paid to the grievor from May 13, 1991 up to the hearing following that date pursuant to our interim award dated June 7, 1991. It is also directed that the grievor not be reinstated to employment in his former position until he is pronounced fit to do so by an independent physician selected by management with due notification in writing to the. Union. Management will be entitled to supply to this physician a copy of this award and the current job specification for a senior TechnicalT Consultant to guide him or her with respeCt to the duties and responsibilities expected to be performed. No other information shall be provided, however, that might materially affect the neutrality of the physician. As to the treatment of the grievor as being on disability since July 23, 1990, it is the view of the Board that on the evidence, the grievor would have qualified for disability benefits 77 as of that date and would have remained so qualified up to and including the date Of issue of this award. Regardless of whether the Employer's disability insurer agrees with the Board's assessment, however, it is our order that the griever is entitled to-all of the compensation payments and benefits that would have accrued to an employee on disability since that date. We decline, however, to award any further compensation. We will retain jurisdiction of the matter pending implementation of the terms of our award. DATED at London, Ontario, this llth day of December, R/. J. Roberts, Vice-Chairperson "I Dissent" D. Clark Employer Member DISSENT G.S.B. #755/89, etc. OPSEU (FABRO) and The Cro~n in }light of Ontario (Ministry of I~dustry, Tra~e and Technology) Having carefully reviewed the decision of the majority in this matter, I must, with respect, dissent. I am not convinced that it has been established that there was a causal relationship between the grievor's consistent failure to meet the legitimate expectations of management concerning his work performance and his apparent medical condition. As the award pointed out, it seems all that Doctor Murray (the grievor's psychiatrist) attempted to do was to treat the grievor's symptoms by prescribing anti'depressants and the root cause the grievor's illness was never addressed. In essence, Dr. Murray based his decision on what the grievor told him. Moreover, as indicated in the award at page 70, Dr. Murray proved to be far from the most observant witness, even apparently forgetting his own acquaintance with Dr. Mittler, 'the grievor's family physician and the person who had referred the grievor to Dr. Murray. Although the majority'of this Board concluded that Dr. Murray had not been manipulated by the grievor and therefore devoid of any independence of judgement, re'ferring to Dr. Murray's May 21, 1991 letter to the grievor's counsel, the majority stated at pages 71-72 of the award that Dr. Murray "seemed to lack the dispassionate balance in the presentation of him findings normally to be expected from an impartial expert". I think it is important to consider Dr. Murray's perception of the' grievor's work environment. In Dr. Murray's letters to the grievor's counsel of November 6, 1989, May 1, and July 23, 1990, referring to the grievor he said "... he described an extremely troubled work situation... (Exhibit I0) , "... and persistent harassment of the kind he had endured for so long in the past..." and "... he made it " it plain that he was being overloaded " (Exhibit 12), ... is clear that .the harassment has continued, and indeed, persecution might be a better term..." (Exhibit 13). Clearly 2/.. - 2 - Dr. Murray was under the impression that the grievor was being overworked and harassed, The evidence, I submit, did not support this assumption. I ca~_certainly appreciate the frustration that Mr. Quigley, the grievor's supervisor, must have been experiencing throughout this two y.ear ordeal, for on the one hand he was spending approximately twenty percent of his time dealing with the. grievor, preparing very detailed performance ~pprais~ls and trying to assist the grievor by eventually reducing his case load and assigning him cases closer to Toronto and on the other, the 'grievor appeared to do everything in his power to avoid meeting with Mr. 9uigley to discuss the performance appraisals. To me, a very disturbing aspect of this case was the fact that the grievor at one point utilized the services of two different Doctors, i.e., Dr. Murray and Dr. Mittler and their diagnosis of whether the grievor was fit to work conflicted. When the grievor went off work due to illness on December 2, 1988~ after receiving the verbal portion of the performance appraisal, he obtained a medical certificate from Dr. Mittler dated December Z, 1988 which stated that the grievor "... is under my care and unable to work from D.ecember 5 to December 23, 1998" (emphasis added) (Exhibit '4'3' ~'~' , .... page 1). In the meantime, the grievor went to see Dr. Murray on December 15 and 28, 1988 and did not return t-o work in December 1988 as one might expect based On Dr. Mittler's cer%ifieate. In fact, the grievor did not return to work until May 23, 1989. Interestingly enough, when the grievor saw Dr. Murray on December 15th, he did not tell him he was off on sick leave. During the grievor's absence, Mr. Quigley wrote him a number of letters in an attempt to ensure that' his health was not a factor in his inability to perform his .duties. Mr. Quigley's letter of January 9, t989 (three days after the grievor saw Dr. Murray) was followed by another letter of January 27, t989 in an attempt to obtain a medical certificate in order that the grievor could be paid under the short term sickness plan. That letter was followed by another dated February 10, 1989 in which Mr. Quigley asked the grievor to have Dr. Mittler certify that the grievor was under his care from December 24, 1988 onwards in order that the grievor could be paid. The grievor saw Dr. Murray on February 6 and 23, 1989 but-still did not produce a medical certificate. On March 3, 19.89 Mr. Quigley wrote another letter to the grievor asking him to contact Dr. Mittler's office if he could not get an appointment before March 10, 1989 and have Dr. Mittler send the certificate directly to Mr. Quigley. The grievor then saw Dr. Murray on March 13, 1989 and no medical certificate was obtained. Finally, Mr. Krulicki, the OPSEU Staff Representative, sent Mr. Quigley a letter dated March 15, 1989 attaching a certificate from Dr. Mittler dated the same day indicating the grievor would be off work for an indefinite period of time. Clearly the Employer had every reason to conclude that Dr. Mittler was the grievor's treating physician. In support of this argument, the grievor eventually obtained a medical certificate from Dr. Mittler dated May 15, 1989 indicating the grievor would be able to return to work on May 23, 1989. Dr. Mittler stated in the certificate that ".,. I have reviewed the submitted current position description and the above captioned is mentally and physically fit and able to perform the duties of his position" (emphasis added). Even Mr. Krulicki from OPSEU, in his May 59, 1989 letter to Mr, .Quigley, indicated that the grievor had now complied with Mr. Quigley's original letter of January 9, 1989 and Mr. Krulicki stressed that "... it is the Union*s position that he should be returned to his normal duties without further delay". Dr. 'Mittler felt the grievor was mentally and physically fit to return to work. Apparently, Dr. Murray did not, for when he saw the grievor on May 10, 1989 he advised him he was .unfit to return to work. According to Dr, Mittler's certificate however, which was dated five days after the grievor saw Dr. Murray, Dr. Mittler was of the opinion the grievor could return to work. On August 4, 1989 when Mr. Quigley attempted to give the grievor the written documents pertaining to the third performance appraisal that had not been given to the grievor when he left work on December Z, 1988, the grievor would not accept them and stated that he was going off on vacation. - 4 - When Mr. Quigley tried to conduct the fourth performance appraisal on August 31, 1989, the meeting was rescheduled a number of times due to the grievor initiating what was referred to in the award as a bizarre game of "hide and seek". The meeting did not take place and the grievor went off work sick from September 18, 1989 to March 6, 1990. In his February 23, 1990 letter to the grievor~s counsel, Dr. Murray concluded that the grievor's condition had improved profoundly and to such a degree that he had no hesitation whatever in declaring the grievor well enough to resume work "without any further delay". The ~rievor returned to work on March 8, 1990. In the meantime, Mr. Quigley had been attempting, without success, to obtain an independent medical assessment of the grievor's condition. On March I5, I990, Mr. Quigley was finally able to meet with the grievor to discuss the fourth performance appraisal which had been scheduled for August 3I, I989. The appraisal put the grievor on notice that his job was in ~eopardy. On April 5, 1990, the grievor telephoned Dr. Murray and complained he was being subjected to ruthless harassment at work. He then visited Dr. Murray on April 18, 1990. Dr. Murray wrote to the grievor's counsel on May 1, 1990 and stated that the grievor was suffering from "battle fatigue" and "burnout". How could the .grievor possibly be suffering from burnout when he had only been back to work since March 8, 1990, a period of only six weeks and only.two months after Dr. Murray pronounced the grievor fit for work? The fifth performance appraisal took place on June 29, 1990 and the grievor 'was advised that another appraisal would take place in one month's time and if his performance did not improve, Mr. Quigley would recommend dismissal. The grievor went off sick for the final time on July 23, 1990 and was terminated on August 10, 1990..~ - 5 - A medical certificate from Dr. Murray dated July 23, 1990 stated "The above-named is under my care, and I have instructed him that he is not well enough to continue his duties until further notice".' The majority noted in the award Ipage 45) that "Unfortunately, due to an apparent mix-up within the offices of the Union, this medical certificate was not seen by either Mr. Quigley or other management in CDC until presented at a hearing of the Grievance Settlement Board in this case in April, 1991". agree. It is most unfortunate that this mix-up occurred and the medical certificate was not produced until some eight months after the grievor was terminated because I am certain the management of ODC would have pressed for further clarification of what was meant by "under my care" and in all likelihood pursued the issue of an independent medical assessment. One must bear in mind that Mr. Quigley, even as late as June 20, 1990, had been attempting to have the grievor undergo a health examination pursuant to Article 52.9 of the Collective Agreement. He had been trying to obtain this assessment since January 11, 1990. The grievor, in May of 1990, gave Mr. Quigley the names of three doctors, a gynecologist, a retired doctor and a doctor who was not taking new patients. Mr. Quigley was indeed a very patient supervisor, For six months he had been attempting to have the grievor comply with his request. On June 22, 1990, counsel for the grievor wrote to counsel for the Employer and agreed that the grievor would provide the names of three doctors who 'could examine the grievor on the condition that the Employer have no direct contact with the doctor it selected from the three names. The majority of the Board noted on page 69 of the award "that an independent assessment would have been very helpful to the Board; however, the blame for the absence of one cannot be laid entirely at the feet of the grievor. We note that on June 22, 1990, the Union offered terms under which the grievor would be examined by an independent physician; however, there was no indication in the evidence'that ODC either took up this offer or attempted to negotiate more favourable terms". With respect, I do not know what else the Employer could have negotiated in light of Mr. Quigley's previous attempts to have the grievor provide a medical certificate during his absence from December t988 to May 1989. The grievor had a pattern of going off sick when J.t was time to review his performance appraisals. On top of this, he made it extremely difficult for the Employer to obtain any information which would substantiate his illness. I feel the Employer had just cause to terminate the grievor. In my opinion, the grievor refused to take instructions from his supervisor, did everything imaginable to avoid having his poor work performance reviewed with him, did not perform his job because of an attitude problem and treated his supervisor in a most disrespectful manner even to the very end as evidenced by his last memorandum to Mr. Quigley which was reproduced on pages 42-44 of the award. I do not feel that it has been established that the grievor's poor work performance was a result of some illness. The majority of the Board relied on the evidence of Dr. Murray. Dr. Murray at one point in time felt the grievor was unfit to work and some five days later Dr. Mittler issued a certificate stating the grievor was mentally and physically fit to return to work. In February of 1990, Dr. Murray indicated that the grievor was well enough to return to work "without delay" and shortly thereafter declared the grievor to be suffering from "battle fatigue", Dr. Murray admitted later on that he made a _. ~ mistake with respect, to his February diagnosis. Dr, Murray felt the Employer was harassing the grievor. Dr. Bloom, the psychiatrist ~who was called on behalf of the Employer, was given a set of facts about the grievor's .behaviour and concluded such behaviour was consistent with a personality disorder called p~ssive aggressive personality. The majority of the Board preferred Dr. Murray,'s evidence because Dr. Bloom had not actually examined the grievor, in my opinion, Dr. Murray based his opinion on the same behaviour. It was Dr. Bloom's evidence that'a personality disorder was not a mental illness~ Counsel for the Employer introduced Exhibit 64 which, among other things, made reference to the "Diagnostic criteria for 30t.84 Passive Aggressive Personality Disorder" which stated (at pages 357-358):