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HomeMy WebLinkAbout1989-1578.Speevak.91-09-19 ONTARIO EMPLOY~'$ DE LA COURONNE CROWN EMPLOYEES DE L'ON TAFtlO GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS ., -.- ~80 DUNDAS STREET WEST, SUITE ~tOO, TORONTO, ONTAR.~. M5G IZB TELEt~ONE/TELEPHONE: f476) fl25- r355 180, RUE DUNDAS OUEST, BUF~EAU 2;~00, TORONTO (ONTARIO). MSG ~ZB FAC$IMiLE/TELECOPiE : (4t6.1 fl26-I396 IN THE MATTEI~ OF 2~N ]tlIBZTRAT[0N Under THE CRO~ ~P~YEE8 ~L~CT~ B~AZNZN~ ACT THE GR~E~CE SETT~~ BO~ BETWEEN 0PSEU (Sgeevak) Grievor- The Crown in Right of Ontario (Teachers' Pension Plan Board) Employer BEFORE: R. Verity Vice-Chairperson M. Lyons Member A. Merritt Member FOR THE S. Grant GR[EVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors FORT HE A. Tarasuk EMPLOYER Counsel Smith, Lyons, Torrence, Stevenson & Mayer Barristers & Solicitors April 23, 1990 August 15, 16, 17, 1990 November 20, 21, 1990 January 8, 9, 15, 1991 DECISION This matter involves a decision by the Teachers' Superannuation Commission (now known as Teachers' Pension Plan Board) to release Pamela Speevak, a probationary employee, on December 5, 1989 on grounds of failure to meet the requirements of her position. In a grievance dated December 7, 1989, Mrs. Speevak alleges that she was discharged without just cause and by way of remedy seeks reinstatement with full remedial redress. No issue of standard of arbitral review arises in this case because the Employer does not seek to justify its actions on the alternate grounds of a disciplinary response. The following provisions of the parties collective agreement are relevant: ARTICLE 19 - TERMINATION OF EMPLOYKENT 19.2 The Director may release from employment an employee at any time during the first nine (9) months of employment as a full-time regular employee for failure to meet the requirements of her/his position. ARTICLE 22 - GRIEVANCE PROCEDURE RELEASE DURING PROBATION 22.8 Any probationary employee who is released shall not be entitled to file a grievance. By Regulation 232 under the Crown Employees Collective Bar~aininq Act, the Teachers' Superannuation Commission is a Crown Agency within the meaning of s.l(2) of the Crown Employees Collective Bar~aininq Act. In the instant grievance, the Union disputes the bona fides of the purported release and alleges that Mrs. Speevak's performance was not fairly assessed during the probationary period. The Union contends that the release was, in fact, a dismissal without just cause and that the Employer's decision was motivated, at least in part, by reasons of anti-Semitism and anti-union animus. We are not concerned here with a release under the Public Service Act. We are concerned with a release under the Teachers' Superannuation Act, as it was at the time, on the facts of the- instant case. The Grievance Settlement Board has developed a large body of jurisprudence in release cases ~hich has been neatly summarized by Vice-Chairperson Swan in OPSEU {Peter Clarke) and Ministry of Correctional Services, 443/82: The Board's jurisdiction has been developed in a number of cases, including Leslie, 80/77, Haladay, 94/78, Tucker, 206/78, Pecoskie, 95/80, Atkin, 323/80, Turcotte, 344/80, Keane, 596/81 and Walton, 612/81 and 613/81. While the test has been differently expressed from case to case, we think that in essence the question before us is whether the Employer reasonably and in good faith exercised the authority in Section 22(5) of the Public Service Act to release the employee on probation, and did not seek merely to cloak a disciplinary discharge behind the release procedure. In essence, this is a question of fact, and therefore depends upon all of the circumstances of the case. Beginning with the Leslie decision, the Grievance Settlement Board .has consistently held that a termination of 4 employment that may properly be characterized as .a. bona fide release is beyond its jurisdiction to disturb. If it is not a bona fide release, it is a dismissal under s.18(2)(c) of the Crown EmploYees Collective Baraaininq Act. That determination is a question of fact which is dependent upon all the circumstances of the case. Before descending to the particulars of the case, a few general observations would seem to be appropriate. We do not for a moment discount the reality of anti-Semitism in our society for it is a danger that should be combatted by every available tool.- It presents itself in various forms from flagrant openness to subtle insinuation but the poison is as abhorrent however presented. Briefly stated, the grievor's case is this - that the grievor was a competent employee, that she properly discharged her duties given her status as a probationary employee, that she was a victim of a prejudicial attitude on the part of her supervisor including the prejudice of anti-Semitism. To these allegations, in essence, the Employer's case amounts to this - assuming without admitting that the grievor was a competent employee who performed her services adequately, the release was grounded on her persistent refusal to co-operate in a manner consistent with the necessity for teamwork, and her failure to recognize the fundamental importance of teamwork, and her release was untainted by any prejudice against her, anti-Semitic or otherwise At the outset it should be stated that Mrs. Speevak is a well educated and bright person who seems to have the innate ability to do the job to which she was assigned. Confirmation is to be found in the testimony of other employees - Mrs. Maud, Mrs. Lovisotto, Mrs. Mandel and even her supervisor Miss Mitra Singh. We turn now to a consideration of the evidence. We do not refer to all episodes attitudinal or otherwise but fairness dictates that there be some mention of significant events. The- evidence lends itself to a division of two parts: first, the allegations of anti-Semitism and second, the allegations of. performance concerns. We postpone consideration of the aspect of anti-Semitism until later in the Decision. In this particular case, we do not feel ourself able to accept unreservedly either the whole story as told by the grievor or the whole story as told by the supervisor, Miss Singh. We have, however, stated the impression left upon our minds and the reasons which have lead us to accept or reject a particular statement. When assertion is met by counter-assertion, we have sought guidance by consideration of probability or by extrinsic evidence. Naturally we studied with particular care the demeanour and the personality of the two principal witnesses, Mrs. Speevak and Miss Singh and the manner in which they gave their evidence.. An allowance must be made for the operation of emotional stress and injured vanity in a case such as this and of a partisanship not always conscious. In making findings of fact on matters in dispute, we are mindful of the test as laid down by Mr. Justice O'Hallaran of the British Columbia Court of Appeal in Faryna v. Chorn¥ [1952] 2 D.L.R. 354 at p. 356 where he stated in part: The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surroun~ the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. Only thus can a Court satisfactorily appraise the testimony of quick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience in combining skilful exaggeration with partial suppression of the truth. Again a witness may testify what he sincerely believes to be true, but he may be quite honestly mistaken. For a trial Judge to say "I believe him because I judge him to be telling the truth", is to come to a conclusion on consideration of only half the problem. In truth it may easily be self-direction of a dangerous kind. Pamela Speevak commenced work with the Teachers' Superannuation Commission as a pension administration clerk on March 6, 1989. She was one of seven clerks in Unit 2 of the Pension Administration section which is located on the 5th floor of 5650 Yonge Street in Toronto. The purpose of the position is to administer the payment of allowances under the. Teachers' Superannuation Act (as it then was) to ensure compliance with Commission policies and procedures, to maintain accurate pension records, and to answer enquiries from pensioners and their representatives. The duties and related tasks of the position are accurately described in a Position Specification form dated August 20, 1988 (Exhibit 5). Mrs. Speevak was assigned to process ali files where a pensioner's S.I.N. number ended in 6. To elaborate upon the grievor's antecedents: She graduated (cum laude) from Concordia University with a Bachelor of- Arts degree in Honours Sociology. She had the benefit of university courses in economics, statistics, accounting and business administration. Prior to employment with the Commission, Mrs. Speevak worked for approximately one year in a similar position as benefits clerk, Employee Benefits branch of the Ministry of Government Services. In addition, she had experience with various Toronto law firms as office manager - accounting and some general business experience in both Toronto and Montreal. Mitra Singh became the grievor's supervisor on March 13, 1989, approximately one week after the grievor began her probationary term. Miss $ingh h~d seven years previous experience with the Ontario Hospital Association where she served for the final nine months.as supervisor of pension and group benefits. At the Teachers' Superannuation Commission, Miss Singh reported to 8 Doug Lyons, assistant manager, Pension and Administration section.. For the first several months.~ll went well, although Miss Singh observed that the grievor was critical of several of her co-- workers. It was during the month of June that various incidents occurred which gave management the feeling that Mrs. Speevak could have an attitudinal problem. For example, she and fellow employee Jennie Maud got into a dispute which the grievor felt was insignificant but which, caused Mrs. Maud, a long term employee, to_ complain to her supervisor Miss Singh about the grievor's attitude. The dispute arose when Mrs. Maud, pursuant to her duties, had attempted to check the accuracy of the grievor's monthly medical reports. Although Miss Singh successfully settled the dispute, Mrs. Maud's complaint about the grievor being overly critical and hard to work with was to surface again. On June 30, Miss Singh met with the grievor to advise her that there was a general office concern that she (the grievor) complained too much about the heavy workload and that she was disrupting the team atmosphere by excessive talking (Exhibit 7). ~On the same day, a staff meeting was held in the Pension Administration section to establish a special three month project, to accommodate the early retirement of some 4,000 teachers. 9 Pension administration clerks were told to be on standby.to go down to the third floor where the Benefits section is located to assist with the "coding" of forms. This special project was the prime responsibility of the Benefits section, with assistance as and when required from the Pension Administration section. As the sequel developed, on the morning of July .4 a meeting was held for all members of Unit 2 in which Mrs. Speevak was assigned to go down ,to the Benefits section to assist with coding of July inceptions. Later in the day, the grievor questioned her supervisor on two separate occasions why she (Mrs.- Speevak) had been assigned to the third floor and insisted upon justification. To this, Miss Singh made plain to the grievor that she perceived her attitude as being negative (Exhibit 8). The grievor's attitudinal problems continued. On July 5, Miss Singh met with the grievor and orally reviewed the job description and the performance appraisal form. The supervisor's memorandum (Exhibit 9) confirms that key areas were identified where the grievor needed improvement, including attitude to'work and team participation. On July 27 occurred the Kerr incident, where .the grievor's handling of a pensioner's concern was the subject of a complaint. Miss Singh investigated the incident and concluded that the grievor had misunderstood the pensioner's request and had 10 forwarded an inappropriate letter (Exhibit 10). The problem was corrected by the grievor under Miss Singh's direction. The incident itself is of small moment, but is consistent with Miss Singh's testimony that she made reasonable efforts to assist the grievor through the probationary period. Two incidents occurred on August 11 when Miss Singh and senior clerk Vanda Lovisotto were absent from the work place. Assistant manager Doug Lyons requested Mrs. Maud to send a pension administration clerk to the third floor. Mrs. Maud was in charge of Unit 2 in the absence of the supervisor and the senior clerk.- According to Mrs. Maud's evidence, the only person available at the time was Mrs. Speevak. Mrs. Maud testified that the ~rievor refused the asskgnment, became argumentative, raised her voice, and stated that the request was unfair because she had performed the same task the previous day. Mrs. Maud then reported the refusal to Mr. Lyons who insisted that the grievor be instructed to go to the third floor. Mrs. Maud testified that although she informed the grievor of Mr. Lyon's direction, the grievor made no effort to comply. On Mrs. Maud's evidence, the grievor later advised her that she (the grievor) had telephoned the project co-ordinator and had been told that assistance was not required. It is common ground that this incident provoked a scene in the office. The grievor's version is to this effect - that Mrs. Maud had no authority, as far as she was aware, to order her to 11 take on this assignment, that she (the grievor) had pgrformed the same duty for the past week and one-half, that it was unfair to continue an already over-extended assignment, and that she would have explained the circumstances to Mr. Lyons had she been made aware of his order. It will be observed that the two versions 'of this incident are in conflict. It is not unusual to find a witness recalling the same incident with different versions with both expressing their honest beliefs. To the point in question, we prefer Mrs. Maud's recollection. The incident is significant, however, to the degree it reveals the grievor's attitude towards direction. On the same day, a second incident occurred which is worthy of note. On August 11, Doug Lyons was made aware that personal correspondence addressed to the survivor of a pensioner, · dated June 22, 1989, had been found in a pension kit in the resource centre on the fourth floor. This kit, along with a letter, was supposed to have been sent by the grievor to one of her clients in June of 1989. Since the kit contained confidential information, finding it in a public area and at such a late date understandably exasperated Mr. Lyons. Almost immediately, Mr. Lyons, on the basis of information then available, wrote an inter- office memorandum to Miss Singh (Exhibit 11) which briefly outlined the problem and began with the words, "I want this lady gone" and concluded with the words "See whether we have enough to let her go or how we should address this" 12 A word of explanation is necessary as to the grievor's duty in respect to the kit and letter in question. She was responsible for preparing the material for mailing. According to her evidence, she placed the material in an addressed envelope and then placed the envelope unsealed in the section mail tray. Had the letter been sealed there would be no doubt that the grievor had fully completed the task. Evidence indicated that all mail so handled should have been sealed. However, the evidence also indicated that the sealing requirement was more honoured in its breach than in its fulfilment. In these circumstances, Mrs° Speevak was not at fault for the breach of procedure inasmuch as she was following what appeared to be the normal practice. With the benefit of hindsight, it appears that Mr. Lyons too quickly assumed that the fault lay at the hands of the grievor. There was no explanation given to the Board on the issue of responsibility for leaving the survivor's kit containing confidential correspondence in the resource centre and we do not speculate in that regard. Counsel for the grievor urges the point that Mr. Lyons' memo of August 11 manifested the prejudicial attitude of the supervisory staff to fault the grievor immediately without making sufficient effort to investigate the matter. We do not underrate the force of this argument on behalf of the grievor. On the other hand, in fairness to Mr. Lyons, his reaction must be viewed in light of the grievor's previous attitudinal behaviour including the 13 incident involving Mrs. Maud that had occurred earlier the same day. On August 12, the memorandum prepared by Doug Lyons came to the attention of Miss Singh with the comments attached as previously referred to. Miss Singh prepared a summary of incidents (Exhibit 14) which reflected adversely on the grievor's ~overall performance. She then met with the grievor on August 15 for approximately one and one-half hours, reviewed the performance history of some seven complaints and for a second time orally reviewed her performance analysis. According to Miss Singh, the- grievor failed to appreciate the significance of management's concern about her performance and f~lt ~"she.was being picked on". Miss Singh wrote a letter to the grievor dated August 25 which in effect was a general summary of the discussion between them on August 15. It is important to quote this letter: 25 August 1989 MS. Pam Sp~evak c/o Pension Administration Teachers' Superannuation Commission Dear Pam: This will confirm our discussion of 15 August 1989 when you were advised of areas of concern regarding your attitude and behaviour at work and certain aspects of your performance as a Pension Administration Clerk. There have been several incidents over the past two months of unacceptable behaviour on your part which has 14 resulted in complaints from your co-workers and. management. It was noted that on two occasions you challenged. directions given'to you to go to the 3rd floor to process new pension inceptions. As you know, this is a task stated as one of your job functions. You also approached management and other staff members to solicit support for challenging the justification and rationale of such action. Your willingness to accept directions and changes has not been evident and this has made the implementation of procedures and functions extremely difficult. There were also other incidences involving conflicts with other members of your work unit which resulted in loss of production time and frustrations, as well as complaints from peers that you were constantly talking and causing disturbance in the team's atmosphere. This made it- difficult for others to concentrate and carry on with their work. You will recall that these concerns were brought to your attention as they occurred.' Another, more serious, area of concern resulted from your performance in two specific incidents: - complaint from a pensioner (Dorothy Kerr) that you were insensitive to her situation. The information you provided over the telephone was ambiguous and wrong when compared to the information you sent in your letter. The result was a possible loss in OHIP coverage and frustration to the pensioner. - failure on your part to mail a survivor pension application form to a spouse of a pensioner. Despite the fact that you signed the covering letter, you did not ensure that it was properly inserted into an envelope and placed in an outgoing mail tray. When we discussed this matter you could not account for the fact that this letter (no envelope), complete with personal financial information respecting the death of the pensioner - name, address, SIN, amount of pension, date of death, etc. was discovered in a service pension application kit located in the Resource Centre on the 4th floor. As you know from the training sessions ~YQU attended entitled "FIPPA Awareness", the Commission has a very serious responsibility for the maintenance of confidentiality of personal information obtained for purposes of its. administration. As you are also aware, the Resource Centre is a public place. The discovery of records such as the above letter by another member of the public, would cause considerable embarrassment and dismay to members of the Commission and its staff. Further, such a discovery could instigate a complaint from the Office of Freedom and Information and Protection of Privacy. I am sure you will appreciate the seriousness of your actions. In order to meet the requirements of your position, an immediate and continued improvement must be evidenced in the following areas: - your attitude towards your duties and responsibilities in following directions and_ acceptance of established procedures. - you must portray a more positive attitude towards your job, co-workers and your supervisOr. - .less disruptive talking and socializing during working hours. - you must apply your knowledge to maintain strict standards of performance to provide accurate and timely information and to protect the right of confidentiality of personal information. You are reminded that you are still on probation. Failure to demonstrate improvement in the areas mentioned will be taken into consideration in determining your eligibility to be placed on regular staff and could result in termination of your employment with the Commission. Yours truly, "Mitra Singh" Mitra I. Singh Supervisor, Unit 2 Pension Administration It will be observed that the letter concluded with a 16 warning to the grievor that "failure to demonstrate~improvement" could jeopardize her appointment to the regular staff. There was no reply to Miss Singh's letter of August 25. In the circumstances, we do not think that it called for a formal response. September and October passed without notation of further incident. At some point during this period, the grievor was alerted to the fact that she would be assigned to the task of co- ordinating year-end activities. She was forewarned to allow her preparation time, although according to Doug Lyons the task itself_ would not commence until about mid-December. We accept Mr. Lyons testimony on this point. As already mentioned, the grievor and,her co-workers were advised on June 30 that their section was to assist in a special program to accommodate the early retirement of some 4,000 teachers. That special program was completed on or about October 1. The section staff successfully completed the special project only to be confronted by a resultant backlog in meeting payroll deadlines, processing medical refunds and information respecting pensioners. In early November, five clerks prepared a proposal to address the backlog problem, which was accepted and readily implemented. The grievor expressed concern to both Doug Lyons and Mitra Singh as to the reason for her inclusion as a participant'in 17 this latest initiative when she had been assigne~'to-co-ordinate the year-end activities. On the evidence of both Miss Singh and Mr. Lyons, her inclusion in the backlog clearance initiative was reasonable since the actual year-end duties would, not commence until mid-December. The grievor was directed to suspend preparations for the year-end activities and to assist with clearing the backlog. The grievor did accede to that request but according to Miss Singh did so with little enthusiasm and in an unsatisfactory manner. Miss Singh testified that on November 20, the grievor was- asked to process a routine dependent file, gather the facts and recommend action, hereinafter referred to as~"the routine dependent file" Miss Singh later learned that there had been no follow-up on the part of the grievor. By memo dated November 20 (Exhibit 17), Miss Singh drew the grievor's attention to the issue and insisted that she process the file immediately. We accept Miss Singh's account of this incident. On the same day - November 20 - there occurred what wa~ described throughout as "the Khan incident" (Exhibit 18). There are two versions of this contentious matter. Miss Singh's version is best related in her own words as set out in her letter to the grievor dated November 30, 1989 (Exhibit 19): 18 30 November 1989 Ms. Pam Speevak c/o Pension Administration Teachers' Superannuation Commission Dear Pam: You will recall that my 25 August 1989 letter specifically outlined key areas of your job which you were required to improve. Since then I have noticed on several occasions that you have not made significant attempts to meet the standards which were set. There were two incidents where your poor performance resulted in a complaint and dissatisfactory service to a pensioner. On Monday, 20 November 1989, I asked you to follow up a telephone inquiry from a pensioner (Mr. H. Khan). I gave you the specific details and requested that you look up. the file and call back the pensioner. Mr. Khan telephoned me twice on Thursday, 23 November 1989, asking me to follow up his inquiry because he did not receive a satisfactory answer. Mr. Khan also lodged an official complaint with Mr. Foster, the Divisional Director. On Friday, 24 November 1989, when I investigated the matter, you informed me that you resolved the file and had promised to Mend a copy of the OHIP letter. Upon further investigation, I found that you did not and had not completed the file. For the past month the department attempted to clear out the backlog. As a result five clerks were asked to co- ordinate the work schedule, when this contingency plan was made, you were asked to assist with file processing and suspend the year-end activity function. You expressed concern regarding these arrangements and continued to question the rationale for this action. You approached the Assistant Manager, to again express your concern about year-end, even though a general meeting was held and details were provided to all clerks in the department. The Assistant Manager met with you and explained the reason. You continued to slow down your production by lingering and socializing during regular working hours. I met with you after observing this and advised you that you were required to assist in these short term measures. However, you continued questioning and socializing. Pam, from your performance and attituder it~is evident that you are not making any attempts to improve. You have made it extremely difficult for'the department to accomplish its goal. You continue to disrupt the working environment, and put the Commission at risk by providing inadequate service to pensioners. In spite of repeated instructions to you, your attitude indicates a lack of interest or concern in improving your performance and meeting the requirements of your position. You are reminded that you are nearing the end of your probationary period that an immediate improvement is required in order to be considered eligible for appointment to regular staff. Failing any evidence of efforts to meet this requirement, your employment will be terminated at the end of your probationary appointment. Yours truly, "Mitra Singh" Mitra Singh Supervisor Immediately upon receiving this letter, the grieVor met with both Doug Lyons and Mitra'Singh. The grievor impugned the veracity of the contents of the letter in question. Mr. Lyons suggested that-she provide a written response. To this suggestion the grievor acquiesced. The grievor's written response was delivered by Miss Singh and to members of senior management on December 4. For accuracy, we produce the letter in response: 3 - DEC - 1989 Subject: YOUR LETTER OF 30 NOVEMBER 1989 Dear Mitra, The gravity of your letter of 30 November 1989, warrents 2O a prompt response. The following is the response. Concerning Paragraph 1: No standards have been communicated to me either orally or in writing. Concerning Paragraph 2, 3, & 4 (Re: Mr. H. Khan) " .... the specific details" (see Para 3.) consisted solely of the words "Handle It" written on a yellow 3M Post-It note, which was attached to a telephone message to Mitra Singh from the counsellors. The information in the file (H. Khan) indicates that the counsellor was trying repeatedly to have Mitra Singh deal with Mr. H. Khan. Dates and proof will be shown on demand. Some simple investigation/review of Mr. H. Khan's file would have revealed the following to you. OHIP was fully covered with arrears taken. Mr. H. Khan's- previous address on file was not his correct one. Initially the OHIP letter was forwarded to Mr. H. Khan's former address. I contacted Mr. H.-Khan as soon as instructions were given to me. He was relieved that someone finally responded to him. I explained that he was fully covered and this would reflect-in his November pension cheque. I then determined in speaking with H. Khan that he had never received our letter. He changed his address without notifying us of the change. I immediately sent a copy of the letter on file to his proper address (PRIORITY POST) I then updated his file to reflect his current address to prevent a repetition of the same. His letter of confirmation of his new address is forthcoming. Mitra, if you require assistance reviewing the file of Mr. H. Khan, regarding the above matter, I will be more than happy to help you. Concerning the Remaining Paragraphs: The remaining allegations in your letter can similarly be shown to be devoid of factual basis. Review of my work would demonstrate that I have been actively participating in clearing the stated backlog of files. While I find your letter to be without factual basis, often it contradicts readily available information. It further surprises me in view of the following, facts: There was a note of commendation from yourself to me regarding collection of tax overpayments and the summarizing .the list of T4A's and sending letters to the government to collect overpayments. Your note stated "This is very good" The savings to the commission when collected will be $4,029.33. There were numerous other instances of positive feedback from yourself to me. I also received a positive feedback letter from aPensioner (Mr. G. Heggarty) Copy available on request. It is understood that this type of feedback is rare. There were numerous, instances of positive oral feedback from Vanda Lovisot%o, senior clerk and yourself as to~my accuracy and how timely my work was completed. I also handled all the balancing and writing up .associated with the Monthly Medical Reconciliation_ Reports for the pension payroll department. I did this over and above my daily workload for the months of May, June and July 1989. The heaviest months especially in view of the extra 4,000 pensioners taking advantage of the OPEN WINDOW. In August 1989, the task was reassigned to two other clerks. They could not successfully perform the function and I stepped in to complete the task, at your request. It then was successfully completed. Subsequently this task has been reassigned to the Analysis unit and my assistance is still requested and given on a monthly basis. On several occasions you told me ;that" .... you are going to be put into a responsible position of co-ordinating year-end activities and utilizing your accounting and supervisory skills."...You are going to be a supervisor, for some reason you stated this in mid November 1989. Over the months I have given in many ideas and proposals for changes in methods of production and streamlining of work. One such proposal was given to you in September 1989. It has largely been largely implemented save for allocation of specific staff members. It is understood that the anticipated efficiency gains are being achieved. Mitra, we are charged with the task at working toWards and meeting the Department goals. This requires teamwork. If you have any questions on the above matters or any other aspect of my work, let's discuss it ASAP, to ensure goals are continuing to be met." Yours truly, PAMELA SPEEVAK The Board is now faced with a choice between two versions of the Khan incident. The main issue arising from the Khan incident is the allegation of the grievor's delay in processing the file. While already noted, Miss $ingh asserts that she gave the grievor instructions on November 20. The grievor as confidently asserts that she did not receive instructions until November 23. On a careful review of all the evidence including the external circumstances, we are unable to determine the probable date on which the assignment (the Khan incident) was given to the grievor. In any event, this incident was resolved to Mr. Khan's satisfaction within a day or two on or about November 24. On December 4, for the first:time, the grievor advised senior management including Shirley Heath, Manager, Administration and Finance and Doug Lyons that she had experienced anti-Semitism by supervisor Mitra Singh. Mrs. Speevak met with Doug Lyons to express that concern. Subsequently, the grievor spoke with Divisional Director Bill Foster and advised him of the alleged anti-Semitic remarks. A meeting was scheduled for the grievor to meet with Mitra Singh to review her written response at 10:15 a.m. on December 5. That meeting was cancelled by Miss Singh without explanation. At 4:20 p.m. on December 5, ten minutes prior to the end of the probationary period, Miss Singh terminated the grievor's 23 employment by giving her the following letter: _.. 5 December 1989 'Ms. Pam Speevak c/o Pension Administration Administration & Finance Department Dear Pam: This is further to my letters of 25 August 1989 and 30 November 1989, when you were advised of areas of your performance, and attitude towards your job, which required improvement. As there has been no evidence of efforts on your part to meet these requirements, I regret to advise you that you are not eligible to be appointed to the regular staff of the Teachers' Superannuation Commission. Your employment is therefore being terminated as of today, 5 December 1989, for failure to meet the requirements of your position during your probationary period. Yours truly, "Mitra Singh" Mitra Singh Supervisor, Pension Administration The grievor maintains that she had been "an exemplary employee" during her probationary period and that a number of the alleged incidents were "blown out of all proportion" and 'embellished in her words "to satisfy Doug Lyons"~ In the grievor's words, "I did nothing to warrant what was happening to me" Mrs. Speevak was critical of the fact that there had been no formal appraisals and no comprehensive performance review. One comment arises on Mrs. Speevak's criticism of no formal review. Although a formal performance review is' not mandatory,, it would seem 24 reasonable to expect such an appraisal where a -probationary employee is not viewed as performing to the required standard. We now turn to consider the allegations of anti-Semitism. In this connection it is useful to begin with the evidence of Mrs. Ruth Mandell. Mrs. Mandelt is a pension administration clerk who has worked for the Commission for approximately 15 years. She testified as to three incidents which involved her where Miss $ingh made uncalled for remarks. These remarks were alleged to have been made by the supervisor early in the morning, prior to 8:00 a.m., and in the absence of other employees. Mrs. Mandell recalls that- the first remark made by the supervisor was "you must be rich" According to Mrs. Mandell she replied: "I am not rich, you must have more than I do because you have a home". The second remark was to the effect "what's it like to be Jewish?". Mrs. Mandell testified that she replied: "what's it like to be East Indian?" Mrs. Mandell recalled that she was taken aback by the second remark and felt that the conversation was unbecoming to a supervisor. The third remark made by Miss Singh to Mrs. Mandell was to enquire if her husband was Jewish. Mrs. Mandell testified that at no tim~ did she hear Miss Singh make similar remarks to the grievor. Mrs. Mandetl was an impressive witness and we accept her testimony without reservation. Her evidence at the hearing went unchallenged by the Employer. It should be stated that the grievor testified that she heard Miss Singh "tease" Mrs. Mandell by making such comments in the workplace as "Ruthie, so you're Jewish"; "is Max Jewish also?"; "hey look, Ruthie is Jewish"; "aren't you loaded Ruthie?"; and "tell us how rich you are" It will be observed that the grievor's recollection of the words attributed to Miss Singh are much more prejudicially coloured than Mrs. Mandell's. AS already indicated, we accept the evidence of Mrs. Mandell. On June 6, the grievor took Miss Singh to lunch. .Initially the conversation focused on the grievor's education and background and other pleasantries. On the basis of the grievor's evidence, Miss Singh made a number of "bizarre comments" including. "what's it '~ike to be Jewish?"; "how do you know someone is Jewish?"; and "is it hard to be Jewish?". The grievor asserted that she was extremely uncomfortable with these questions but was unsure at that stage whether they resulted-from bona fide curiosity of the Jewish fait~ Or overt feelings of anti-semitism. According to Mrs. Speevak, Miss Singh surmised that the grievor was Jewish. Miss Singh counter-asserts that the grievor volunteered the fact that she is of the Jewish faith and that'she (Miss Singh) casually let it' pass and denied the remarks attributed to her. It seems strange that Miss Singh who was the luncheon guest of the grievor would gratuitously raise the matter of the grievor's religious faith. Continuing her allegation of anti-Semitism, the grievor referred to an incident on an unfixed date when she was putting on her coat to leave the office. She testified that Miss Singh pulled on the sleeve of her coat and said to her in the presence of other employees "Wow, would you take a look at this jacket. Pam is Jewish. She must be rich to afford such a jacket". Mrs. Speevak stated she spoke to Miss Singh the following day and that the supervisor apologized for the incident, denied that she was anti- Semitic and stated that it wouldn't happen again. Miss Singh acknowledged this particular incident. On the_ day in question the grievor was wearing an attractive black leather coat and according to Miss Singh she said "is it true Jewish people are'wealthy?" To this it was said that Mrs. Speevak smiled and replied "yes, some of them are". The evidence differs on the date of the apology. On Miss Singh's version, the grievor told her that she had spoken to her husband about the matter and thereupon Miss Singh apologized for what she described as an "inadvertent remark". She fixes the date of the apology on the basis of her own memorandum as being several weeks after the coat incident. Further allegations of anti-Semitic prejudice on the part of Miss Singh are as follows: On unspecified dates in July, August, SePtember and October, 1989 Miss Singh was alleged to have made a number of racial remarks to the grievor in the workplace in 27 the presence of other employees, including Mrs. Ruth Mandell, to the effect: "you must be rich"; "all Jews are rich"; "how can you work if you are Jewish?"; "what's it like to beJewish' ~". ; and "is your husband Jewish?" Mrs. Speevak testified that kindred r~marks were made by Miss Singh to her "over and over again as frequently as twice a day~'. Miss Singh categorically denied these repetitive allegations of a prejudicial nature. It is noteworthy that Mrs. Speevak testified that these repetitive prejudicial remarks'-~ere made to her in the presence of other office employees. It is not- without significance, that no other office employee was called tO support these allegations. We note that the grievor's allegations of racial slurs repeated over a period of some three months stand in isolation. It is of significance that Mrs. Ruth Mandell, a long time fellow clerk throughout the relevant period and a member of the Jewish faith has no recollection of such remarks directed to the grievor by Miss Singh. On this point, the Board accepts the testimony of Miss Singh. This is not to say that the grievor said something she did not honestly believe. In the retrospect of an emotional stress arising from termination of employment and the circumstances of this case, the grievor may have been led to a partisanship on this 25 point not conscious, which is not altogether surprising in view of the sensitivity of the issue. It was evident to the panel that the grievor was labouring under considerable emotional turmoil. One must look at the evidence of anti-Semitism not in isolation but rather in the setting of the whole case. we find that there were four incidents and that it would be difficult for the grievor to hear these remarks without a sense of outrage. The impugned remarks admittedly made to Mrs. Mandell and Mrs. Speevak, standing alone, might give colour to a suspicion of an anti-Semitic prejudice. However, on a careful and critical examination of the- whole of the case, and with the benefit of hearing the evidence of each of the principal witnesses, we do not believe that the grievor's termination of employment was tainted by any anti-Semitic prejudice. We believe that the reason for termination was the employer's perception that the grievor had an unacceptable attitudinal problem. On the issue of anti-Union animus there was simply no evidence to support that allegation. The Board was advised that Mitra Singh left her employment with the Teachers' Pension Plan Board in the fall of 1990 to return to employment with the Ontario Hospital Association. The employer introduced post-release/discharge evidence involving a person called "Pam" who allegedly made three unsolicited 29 telephone calls to the O.H.A., purportedly to cast ~doubt on the employment of Mitra Singh and to blacken her reputation. In particular, we heard evidence from Nancy Vose, O.H.A. manager of human resources as to a telephone call she made to a person called "Pam" on September 10, 1990. This evidence was tendered by the Employer for purposes of credibility over the strenuous objection of counsel for the Union. The Board wishes to make it clear that we exclude from our consideration all such evidence which in our view has no probative value to the issues before us. It would appear that most arbitrators in both the public- and private sectors accept the principle that the employer is entitled to assess suitability for full-time employment "on the broadest of grounds" See generally, Re Porcupine Area Ambulance Service and Canadian Union of Public EmploYees, Local 1484 (1974), 7 L.A.C. (2d) 182 (Beatty) where the arbitrator stated at p. 184: Suitability would appear to encompass such notions as the character and compatibility of the probationary employee ..... as well as a determination that such an employee is not likely to meet either a present or future standards and requirements demanded by the company ..... It can be said that capacity to perform the job and attitude are both components of the requirements of a position. Grievance Settlement Board jurisprudence makes it clear that failure to correct an attitudinal deficiency, in appropriate circumstances, can form the basis of a bona fide release. See generally, Keane_, 596/81 (Roberts); Bargello, 61/82 (Roberts); and i Blackshaw, 557/83 (Verity). In the instant case, we are satisfied that there is ample evidence to conclude that this is not a bona fide release and that the grievor was dealt with in a disciplinary fashion. Despite a number of errors made throughout the probationary period, we find that the grievor was fully able to perform the technical requirements of her position. By all accounts, she is intelligent, well-spoken and has the ability to learn new concepts quickly and accurately. As Miss Singh candidly acknowledged, the grievor has an aptitude for numbers and a solid background of training and experience in accounting procedures. Presumably for that reason, she was chosen to co-ordinate the year- end activities, a duty previously performed at the supervisory level. We find it strange that the year end co-ordination project was assigned to Mrs. Speevak towards the close of her probationary period if she had, in fact, been performing in a markedly unsatisfactory manner. It should be stated that the year-end project was to commence in mid December after the grievor's probationary period had ended. It is true that the grievor demonstrated a number of attitudinal deficiencies, particularly between June and August 1989, which reflected adversely on her overall performance and 31 which were brought to her attention. Mrs. Speevakl_s rg!uctance to accept constructive criticism was naturally a source of concern to the employer. It is a given that any employee, probationary or regular full-time, has a duty to act in accordance with the reasonable directions of a supervisor' The evidence satisfies us, however, that there was a notable improvement in the grievor's general attitude following Miss Singh's letter of August 25. Having requested the grievor to undertake the co-ordination of year-end activities, it is not altogether surprising that Mrs. Speevak questioned her supervisor. and Mr. Lyons on being assigned to the backlog team. A preparation period for co~ordination activities is perfectly understandable, parti6ularly for a probationary employee as'suming a first time duty. In our view, the Employer unreasonably faults the grievor for questioning the diversion from the preparation period for co- ordination activities to the backlog project. There was no notation of any incident reflecting adversely on the grievor's performance during the m~nths of September and October, 1989. 'indeed, it was not until mid November, some two' weeks prior to the end of the grievor's probationary period, that the employer documented two further concerns, to which reference has' already been made. To avoid misunderstanding we refer to the two incidents on November 20; namely, "the Khan incident" and "the routine dependent file". In 32 essence, the employer relies upon these two documented incidents in mid November to conclude that there was a recurrence of an attitudinal problem. In our opinion, the evidence suggests that it is unreasonable to justify such an assessment. Briefly stated, Miss Singh viewed the grievor's attitude as an unacceptable problem. In our view, Miss Singh took an unreasonably adverse view of the grievor's attitude. On the other hand, we find that the grievor's conduct was not totally free of criticism. Mrs. Speevak did not sufficiently recognize that the office was labouring under the burden of considerable back-log of work and that management expected a little extra by way of co-operation of the staff. With some five days remaining in her probationary period, including a weekend, the grievor was given a letter critical of her performance with instructions for immediate improvement or termination of employment. Not surprisingly Mrs. Speevak submitted a strong response (Exhibit 23) in defence of her performance. At first blush, this letter has the colour of impertinence on the part of an employee towards her supervisor. However, on careful analysis of the circumstances it is, in our view, more consistent with the response of a distraught employee who clearly saw there were differences between herself and her employer that needed to be dealt with in frank and forthright words. An allowance may fairly be made for the fact that it was a response from an employee who felt she had been unfairly dealt with and feared that she would be terminated at the eleventh hour of her probationary period. .It is worthwhile to repeat verbatim the two final sentences of Miss Singh's letter to the grievor dated November 30, 1989 (Exhibit 19), which was received by the grievor late in the morning on December 1: You are reminded that you are nearing the end of your probationary period that an immediate improvement is required in order to be considered eligible for appointment to regular staff. Failing any evidence of efforts to meet this requirement, your employment will be terminated at the end of your probationary appointment. The probationary period in question ended'at 4:30 p.m. on December 5, 1989. In other words, the grievor's probationary period would expire within five days of Miss Singh's letter of November 30 which included a non-working weekend. In effect, the grievor was given two days to demonstrate "an immediate improvement" "in order to be considered eligible for appointment to regular staff". Given the time frame of Miss Singh's demand for improvement, it appears to us that her letter was unreasonable and out of touch.with reality. On the evidence, we find that the employer did not reasonably and in good faith exercise its authority to release the grievor during her probationary employment period. In the result, this grievance must succeed on the finding that the facts do not support a bona fide release and that the employer's actions must then be characterized as disciplinary in nature. The grievor shall be forthwith reinstated to her position as a Pension Administration Clerk with compensation for lost wages and benefits together with interest subject, of course, to the usual rule of mitigation of damages. The Board shall retain jurisdiction in the event of any difficulty encountered in the implementation of this decision including the appropriate quantum of compensation. DATED at Brantford, Ontario, this 19th day of September, ~ VERITY, Q.C. '- VICE-CHAIRPERSON :?. ........... A. MERRITT - EMPLOYER MEMBER G.S.B, 1578/89 SPEEVAK (OPSEU ~ Teachers' Pension P. lan Board). ADDENDUM I fully support the comment in the award that "...the reality of anti-Semitism in our society...is a danger that should be combatted by every available tool. It presents itself in various forms from flagrant openness to subtle insinuation but the poison is abhorrent however presented." In the present case, although it was found that the Grievor's termination was not tainted by anti'-Semitic prejudice, there is no doubt that the Grievor's supervisor, Mitra Singh, made anti-Semitic remarks to both.the Grievor and Ruth Mandel on several occasions. It is totally inappropriate for a super- visor to make such comments, especially to a subordinate, even if the supervisor believes such comments were "innocent" or "I didn't mean anything by them" or "I didn't know they were offensive". Nor does the fact that the Grievor may have raisled the issue of religion confer on the supervisor the right to make such comments. Regardless of how 'innocent' they may have been, I found the anti-Semitic comments of ).;itra Singh abhorrent. I trust she has learned something from these circumstances and that she will avoid making any similar comments in 'the future. a~ Toronto this 9th day of July, 1991. DISSENT Having read the award of the majority in the Speevak case, I find that I must dissent from its findings. I would Iike, first of all, to briefly review the facts of the case, perhaps from :a somewhat different point of view than that that was set out in the award. The grievor, Mrs. Speevak, a well-educated and bright person, seems to have the innate abiility to do the job to which she was assigned. This ability was confirmed by her fellow employees, Mrs. Maud and Mrs. Lovisotto, ane even by her supervisor, Miss Mitra Singh. She also had previous experience in the type of work to which she had been assigned. However, there is a great deal of difference between having the ability to do a job and actually doing it successfully. The attitude which one brings to a job can make al! the difference between being a successful' employee and a valued member of the team -- and the one who is consistentIy causing problems. The Question then that must be answered; whether management was justified in releasing the grievor when it did or was it not? In presenting its case, the management cited a considerable number of incidents where it believed that the grievor was in error and where her attitude, in particular, lay at the root of her problems. In looking at these problems, one cannot help but be struck by how her attitude generally had caused the problem, or if it did not, it had exacerbated the problem once it had occurred. And one must remember that, in looking at each of these prob!ems, the grievor was on probation and was learning the job, supposedly trying to convince her'empIoyee that she would be an employee worth'retaining at the end of the nine month probationary period. It was during the month of June, t989, that various incidents occurred which gave management the feeling that Mrs. Speevak was going to be a problem. On June 14, for example, she and a fellow employee, Mrs. Jenny Maud, got into a dispute which the grievor felt was insignificant, but which caused'Mrs. Maud, a long-term employee, to go to her supervisor, Miss Singh, to complain about Mrs. Speevak. Although the dispute was settled, Mrs. Maud's complaint about the grievor being hard to work with and overly-critical was to surface again and again. Indeed, at the end of June, another episode had occurred where the grievor's supervisor had had cause to reprimand Mrs. Speevak regarding other employees' concern that she complained too much and that she caused a disruption in the work area. Specifically, the grievor complained that the medical report for the month of June, that she had been asked to do, was not her job and that she had too much work to do. After a discussion with Miss Singh, the grievor ilad agreed to do better in the future, but'this was an attitude which one would not expect of a probationary employee. However, it had been only a few days later, on July 9, that the grievor questioned not only Miss Singh, but also her other supervisors as to why certain changes in work pIans were being made, and more specificalIy, why she should have [o go down to the 3rd floor to help with an overload concerning receptions. Once again, Miss Singh had told her she was perceived as having a negative attitude to her work and not being adaptable. Obviously, by the end of July, the grievor is seen by both the supervisors and her fellow emplc>ees as hard to work with and arguTentative. There then occurred over a period of time a number of incidents in whi. ch which she had mistakes in dealing with clients and fellow employees, such as in the "Kerr incident", for example on pages 9-10 of the award, where the grievor's handling of the case left much to be desired, t believe it is safe %o say that i% would have not occurred if the grievor had been more careful in the handling of the whote matter. In itself, what she had to do was not difficult; it was just that she had bandied it rather carelessly and gave the impression that she had felt that her errors Were not al! bad and that people in the department had been overly "picky". Another episode, one of two incidents which occurred on August Il, wa~ the finding of an opened package containing a Survivor Kit with an accompanying confidentia! letter in the Resource Centre -- an area !eft open to the pubIic. This package was to have been sent to a Mr. Cross, one of Mrs. Speevak's clients, and was supposed to have been sealed. Testimony at the hearing reveaIed that the sealing was not always carried out as it shouId have been by members of 'the department. Still, the fact that not everyone following the order strictly does not necessarily excuse the grievor. At any rate, when the Kit was discovered by another employee, who then reported it to another supervisor and then to Mr. Lyons, Mrs. Speevak~s supervisor, Mr. Lyons was naturally more than a 11ttIe upset. In fact, he was so upset that such information of a confidential nature had been left lying about that he wrote a memo to the grievor's immediate supervisor in which he stated, "I want this lady gone!" -- a sentence on which the Union placed great store as to She reason for the grievor's ultimate dismissal, which would occur four m~nths later! Although it was never proven at the hearing that the grievor had been responsible for the Survivor Kit finding its way to the Resource Centre, · it is obvious that two major incidents alt in the same day, in which Mrs. SpeevaK had been the key person, caused Mr. Lyons to lump to the conclusions that he did. In addition, Miss Singh pointed out at the hearing that there were errors in the letter accompanying the Kit. Mr. Lyons's memo had requested Miss Singh to investigate further and report back to him. The upshot of the whole matter was another interview with the grievor with the gravity of the matter being pointed out. It seems obvious that Mrs. Speevak was being given another opportunity to improve with the expectation that she might show that she could get along with her fellow employees and be more careful with her work. The other incident that occurred ~on the same day of August II involved a fellow employee, Mrs. Jenny Maud, who, while being temporarily in charge of the department, had requested that the grievor go down to the 3rd floor to help out. The grievor refused to'go saying that Mrs. Maud had no right to give her orders, it was unfair, and that she had just been down there the previous day. Mrs. Maud, backed by other employees, believed that she did have the authority and said that the grievor was at the time the only one free from pressing tasks and should go. The upshot of this whole matter was that the grievor contacted the key person, Mr. Tunney, on her own authority and Mr. Tunney, who was evidently upset by the delay tn getting help, then said for her to forget it and that she was no longer needed. The next example of her somewha~ careless attitude was the complaint made by a fellow worker, Ms Jovette Lefebvre, that the grievor had left information of a confidential nature with a client's roommate, much to the chagrin of the client. This incident seemingly occurred in Iate August and was, of course, against the policy of the Commission. Miss Singh, in her evidence, says that the grievor admitted that she had done this and expressed her regret, but in her testimony, Mrs. SpeevaK said she could not remember the incident. Weighing the credibility of the two people over the days of the hearing, I have no problem in believing that Miss Singh's evidence is the more credible. Early in November, there then occurred the first of three incidents which were to play a major role in the dismissal of the grtevor. The first incident had to do with the "backlog", a problem created by the early retirement of some 4,000 teachers and how to deal with the resultant problem usin§ the existing staff. A committee of five clerks worked out a solution which was quickly accepted and implemented. The grievor, however, had expressed concern to her supervisors about her incIusion in the plan when she had already been assigned to coordiante year-end activities. According to both Mr. Lyons and Miss Singh, her actual year-end duties would not begin until mid-December so that there was no real problem in her assisting. The grievor took the explanation with ill-grace and resisted her incIusion. Eventually, she did agree to assist but did so according to Miss Singh with "little enthusiasm and in an unsatisfactory manner". In other words, her problem came first and the good of the organization was secondary. There then occurred the second and third incidents both on November 20 as the grievor's probationary period was nearing its end. A dispute arose between the grievor and her superiors over the processing of a dependant's file. Showing that she seemed to have learned little and that her attitude had not changed, the grievor basically refused to do what she had been asked. What's more, she never did do the job; eventualIy, saying that it was too difficuIt for her to Go, although she had originally argued that it was something that shouldntt have been done at all. Whatever the ins and outs of the problem were, her attitude was stilI uncooperative and insubordinate. The other episode was the grievor's handling of the Khan problem, when she was, according to Miss Singh, requested to handle a problem in regards to a pensioner, Mr. Khan. The details are set out on pages 18, 19, and 20 of the award. Miss Singh and the grievor gave conflicting testimony.- Essentially, Miss Singh claimed that she had given the grievor a telephone message from Mr. Khan on November 20 and had told her to handle the problem after consulting the file. Whatever happened between November 20 and 24 is.unclear with the grievor claiming to have looked after the matter while Miss Singh stating that she had not. In the interim, the pensi.oner had complained to Mr. Foster, a supervisor. The central fact remains that the grievor did not send the letter until November 24, although she claimed to have handled the problem earlier, if so, then why had Mr. Khan felt it was necessary to phone Mr. Foster on November 23? I found that the grievor's testimony in this matter was evasive and not straightforward, particuIarly ~n comparison to that of Miss Singh's. In my opinion, the grtevor did not follow through with what she had been requested to do on November 20 and her explanation for her actions on page 20 of the awarddo not ring true. Certainly it was the last straw as far as the management was concerned and was followed on November 30 by a letter from Miss Singh to the grievor,, putting the grievor on short notice. The letter outlined the grievor's short- comings, particularly stressing the Khan incident and the grievor's uncooperative and insubordinate attitude along with the fact that she did not seem to be making any effort to improve her attitude in any way. To quote the letter: You have made it extremely difficult for the department to accomplish its goal. You continue to disrupt the working environment and put the Commission at risk by providing inadequate service to pensioners. It requested an immediate improvement and failing that, the grievor would be terminated. The grievor and her two immediate supervisors, Miss Singh and Mr. Lyons, met on December I to discuss the letter of reprimand. The grievor was given an opportunity to write a response over the weekend. This letter was received on December 4 and rather than being conciliatory or cooperative in tone, it was just the opposite. Two passages from the letter are all that is needed to show its tone: ?) Mitra, if YOU require assistance reviewing the file of Mr. H. Khan, regarding the above matter, I wili be more than .happy to help you. 2) Mitra, we are charged with the task at working towards and meetin§ the department's goals. This requires teamwork. If you have any questions on above matters or any other aspect of my work, let's discuss it ASAP to ensure that goals are continuing to be met. Under severe cross-examination, the grievor admitted that the tone of the letter left much to be desired, a feeling with which management certainly agreed. When one reads the two above excerpts, one can only wonder as to who i$ the supervisor and who is the employee, and if this is the way the grievor acts as a probationary employee, how would..si~e, act if... appointed to permanent .staff? Faced with this offensive and unrepen'~ attitude on the part of the grievor, management released her on December 5. Having 'set out tile facts of the case as I sea them, I should like to point out that I do agree with the findings of the majority that the dismissal of the grievor was not motivated by anti-Semitism on the part of the management and particularly, not on the part of i.ls Singh. The ~itole matter has been thoroughly analyzed by the majority on pages 24 to 26 of tae award, but I s~ouId Iike to make two comments in regards to the allegations. First of all, it is indeed ~r~,'~ strange that the grievor had waited until December 4 before making any'accusations of anti-Semitism. She had been employed for nearly nine months; yet, she had not raised ~he issue with Mr. Lyon~or Mr. Foster nor had her fellow Jewisl~ employee, Mrs. ~ande11, heard any anti-Semitic remarks directed at the grievor. In regard to the large number of alteged incidents of anti-Semitism supposedly directed at the. grievor by Ms Singh, one can only wonder how Mrs. I.landell heard none of them when her desk was in the immediate vicinity. Furthermore, one would have thought that in her self-serving letter of December 4 Ms Speevak would have raised the issue since it was likely going to be the last opportunity to ~ustify her position. Of course, the obvious answer is that there is no reason to raise it since it did not figure in the reasons for her disagreement with ~s Singh and her threatened dismissal. However, I must say that beyond this, I cannot accept the conclusions reached by the majority. The majority has included the exceIlent statement of Mr. Justice O'Hallaran on page 6 of the award regarding the attitude and demeanour of witnesses on the stand and how carefully their evidence must be examined and weighed by those sitting in judgment, particularIy in regard to witnesses who are "quick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience in combining skiIful exaggeration with partial suppression of the truth." One could, I think, assume that in this case one of the two major protagonists, either Miss Singh or Mrs. Speevak, must fail into this category or why should it be included in the award? No clear comment is made at the end of the quotation by the majority, but to my mind it is sureIy the grievor who is being described for she is far more experienced and quick-minded' and far more at home on the witness stand than Miss Singh, who struck me as being somewhat naive, inexperienced, and lacking the confidence and verbal skiIIs of the grievor. I think that the award bears this out for, in nearly every case, when there is a choice to be made as to whose evidence is preferred, Miss Singh's evidence is chosen. Consequently, it is difficult to understand the statement of the majority on pages 27 and 28 that says; This is not to say that the grievor said something she did not honestly believe. :In the retrospect of an emotional stress arising from termination of employment and the circumstances of this case, the grievor may have been led to a partisanship on this point not conscious, which is not aItogether surprising in view of the sensitivity of the issue. It was evident to the panel that the grievor was IabourJng under considerable emotiona! turmoil. First of at1, I cannot agree with this last statement, particularIy as an excuse for her not telling the truth and secondly, in my opinion, most of the grievors are in that state when on the stand and I must say that Mrs. Speevak seemed to handle whatever emotiona! stress she was under far better than the majority of grievors and witnesses with whom I have come into contact. It is simply an explanation with which I find difficult to agree particularly when one looks at the considerable amount of experience the grievor has had, as for example, with a number of law firms in Toronto and the self-confidence which she showed during the case. There is, in my opinion, little doubt that the grievor was not a credible witness. One must~ therefore heed the appropriate remarks of Mr. Justice O'HalIaran in Weighing the grievor's testimony at every turn. Another exceIlent quotation, used on page 29 of the award,'is that of Arbitrator Swan from Re Porcupine Area Ambu!ance Service and Canadian Union of Public Employees, Local 1484 (1974), 7 L.A.C. (2d) 182 (Beatty) which states Suitabi]ity would appear to encompass such notions as the character and compatibility of the probationary employee...as welI as a determination that such an 'employee is not likely to meet either a present or future standards and requirements demanded by the company .... Furthermore, the award states that the employer is entitled to assess suitability for full-time empIoyment "on the broadest of grounds". In general then, the probationary employee must not only have good technical ski!is, but her attitude must be cooperative, she should be compat£bIe and be of good character. In this case, it was the attitude of the grievor which was the problem. It would appear from the evidence that, even from the firs-~ day when at her first meeting with Miss Mitra Singh, she complained about the fact that the office was not computerized and as well as criticizing two of her fellow empIoyees, there was going to be an attitude problem down the road. This overl¥-critica! attitude continued to be evident during the nine months of probation. There was also a certain arrogance and'condescension in her attitude to fellow employees like Mrs. Jenny Maud and to her supervisor, Mitra Singh. The two above-mentioned excerpts quoted from her December 4th letter, on page 7 of this dissent, are a perfect example of this condescension. The majority, in the ~ward, felt that she had done better during the months of September and October after her interview in August with Miss Singh; in fact, so well that she had been requested to coordinate certain year-end activities. It cited that this as evidence that management had intended to keep her on staff and that she had been doing good work. This is no doubt true, but once again, Et was her attitude that had caused the trQubIe. Management no doubt felt that, during this period, she had changed her attitude and could be an useful employee, but it was the attitude displayed in the three incidents in November, as she was nearing the end of her probationary period, that brought her dismissal. They were: (a) the unnecessarily uncooperative attitude re heIping with the backlog project instead of accepting the change gracefully and pitching in to help (pp. 16-17 of the award); (b) the routine dependant file mentioned above (p. t7 of the award); and (c) the Khan incident atso covered above on pages 17-18 of the award. In each of these incidents, she showed that she had not'changed and that she was not going to be a cooperative employee. So, although she obviously had the a~ility to coordinate the year-end work, her attitude to it and to the excIusion of the more pressing needs of the whole organization showed management that she did not have the "team" attitude they had been looking for. And even though the majority may find it "strange that the year-end coordination project was assigned to Mrs. Speevak", one can easily see how management, feeling that the employee did have good skills and wanting to show confidence in her, could appoint her. And, indeed, is that not the whole purpose of a probationary period? It is to assess the whole person and see if she fits into the organization, and as'mentioned above, arbitrators ha~e given management wide latitude in this assessment. On page 32 of the award, the majority assert that the empIoyer relies on...two documented incidents in mid November to conclude that there was a recurrence of an attitudina! problem. In our opinion, the evidence suggests that it is unreasonable to justify such an assessment .... In our view, Miss Singh took an unreasonably adverse view of grievor's attitude. Let us examine this statement in detail. If these November incidents had been the first, then one might possibly agree. But, they were not the first. Indeed, there was a period of calm in the fail, but when the pre-August attitude of the grievor resurfaced in N~vember, it was not by any manner or means unjustified for Miss Singh to take the view that she did. To my mind, it was a very reasonable view that the grievor was stil! argumentative, uncooperative, and arrogant. She had not changed. Given the approaching end of the probationary period~ Miss Singh acted in a very normal and reasonable way. The late date of the letter from Miss Singh to Mrs. Speevak with request for "immediate improvement" has been criticized by both the Union counsel and the majority on page 33 of the award. At first reading, one might believe that there was some truth to their position. It would appear that it would be difficult to effect improvement in the five days that were left before the probationary contract ended. To my mind, however, the improvement being sought by management is in the attitude of the grievor, not in her technical skills. An improYement or a promise of an improvement is Quite possible within the time restraints. Seeking proof of such changes even at the eleventh hour, Mr. Lyons and Miss Singh at %he meeting of December gave the grievor the opportunity to write a response. Therefore, the letter, which Mrs. Speevak now had the opportunity to wr~te, was crucia! in the extreme and the key to whether or not she would go or stay. If the letter had been conci!iatory and promises had been made to be more cooperative and to work with management, then it is Quite 1~ke1¥ that the grievor, given her technica! skills, would have been retained. However, when one reads the letter that the grievor had sent to Miss Singh on December 4, one finds no evidence of any conciIiation whatsoever. One finds instead a long list of points of seif-justification in defence of what she had done. There was no evidence that she had even been ten percent to blame, only that she had been one hundred percent correct on all points. The fina! paragraph of the letter, on page 7 of this dissent, is, in my opinion, condescending, impertinent, and arrogant to such an extent that it aIone would be atl the proof necessary that, indeed, Miss Singh was correct when she stated evidence that Mrs. Speevak did not realize what her problems were and was not likely to ever come to such a realization. The letter, combined with the accusation raised for the first time by the grievor on that same day ~ December 4 that she had been the subject of anti-Semitic treatment, was all that was needed for management -- and not just Miss Singh -- to agree that she should be terminated as an unsuitable probationary employee. Indeed, what strikes one after a careful analysis of what had happened on' December 4 is that the grievor, instead of being somewhat conciliatory, is now taking an offensive position. Consequently, after one studies the details of November 30 to December 4, it is difficult to agree with the majority that the grievor's letter was "the response of a distraught employee". The majority suggest~ that "an allowance may fairIy be made for the fact that it was a response from an employee who felt that she had been unfairly dealt with and feared that she would be terminated at the eleventh hour of her probationary period." To my mind, it is more the letter of an employee who, for her whole probationary period, had seldom seen why she was criticized by her supervisors and thus, who is'sure she has not been at fault and does not have the words "conciliation" or "cooperation" in her lexicon. Obviously, then I cannot agree with the majority that the employer did not act in good faith and that the release was not a bona fide one and must be characterized as disciplinary in nature. The release was made after nine months of attempting to change the attitude of the grievor and to get · her to see that she must cooperate and work with the team. When her attitude, as set out in her letter of defence, ~ad shown no change at the eleventh hour, then how could management not be justified in finding her unsuitable for the ]ob? The fact of the matter was that she was unsuitable! The line between being found suitable in the job and being discharged for disciplinary reasons is very narrow. Was Mrs. Pamela Speevak discharged because she was unsuitable or because management just wanted to get rid of her without just cause? As Arbitrator Swan has stated on page 3 of the award, each release must be examined and a decision made on al! the circumstances of each case. In this instance, it would seem that the majority is resting much of its own case on the short,period of time which the grievor was given to improve. As I have set out above, I be!ieve that the majority has misinterpreted how much and what kind of improvement was necessary and how long such improvement might take. The fact of the matter is that there was no attempt at improvement, even in the three or four days at hand nor had there been over the full nine months, for the grievor had always felt that she was always right. Therefore, for the majority to use this as a main reason for overturning the dismissal is simply, in my opinion, incorrect. Consequently, given the uncooperative and negative attitude of the grievor, one cannot help but agree that the dismissal on the grounds of unsuitabiIity was ~ustified and should have been upheld. A.~erri:~, ~ember