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HomeMy WebLinkAbout1990-1938.Jelinek.93-12-20 ? - ..~~ ONTARIO EMFLOY~SDEt..A COURONNE ~__ ,.~ CROWN EMPLOYEES DE L'ONTARIO BOARD DES GRIEFS 150 DUNDAS STREET WEST, SUITE 2?00, TORONTO, Ot~TARIO, t80, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO]. MSC., 1Z8 FACSIMILE/TELEcORIE : (4 ~.6) 326- t396 1938/90 IN THE MATTER OF AN ARBITRATION Under , THE CROWN EMPLOYEES COLLECTIVE BARGAINING AQT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Jelinek) Grievor The Crown in Right Of Ontario (Ministry of Community & Social Services). Employer BEFORE ' J. Emrich Vice-Chairperson M. Lyons Member H. Roberts Member FOR THE J. Paul GRIEVOR GrieVance Officer Ontario Public Service Employees Union FOR THE S. Patterson EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING March 11, 1991 June 24, 25, 1991 July 4, 1991 Dece~ber 11, 1991 February 3, 4, 1992 March 6, 1992 April 27, 1992 May 14, 1992 · June 19, 1992 September 11, 1992 January 14, 1993 March 8, 1993 April 19, 1993 Written submissions dated: July 23, 1993 ~. I. INTRODUCTION On August 29, 1990, the grievor filed a grievance protesting his termination on August 22, 1990 from his position as Unit Clinical Coordinator classified as Social Worker 2 in the Secure Custody Program at Syl Apps Youth Centre in Oakvflle, Ontario. The grlevor had been hired on November 8, 1989 and it is undisputed that when he was terminated, the grievor'was a probationary employee. His release was-pursuant to s.22(5) of the Public Service'Act, which provides: (5) A deputy minister may release from employment any public servant during the first year of his employment for failure to meet the requirements of his position. R.S.O. 1980, c.418, s.22. The deputy minister may delegate authority to effect a release in accordance with the provisions of s.23. 23 (1) With the consent in writing of his minister, a deputy minister may delegate in writing any of his powers. under this Act to any public servant or any class · thereof in his ministry. (2) With the consent of his. minister, a deputy minister may delegate any of his duties under this Act to any public servant or any class thereof in his ministry. R.S.O. 1980, c.418, s.23. It was common ground that Ms. Lyrme Bullard, Administrator of Thistletown Regional Centre, had been delegated authority to effect the release. The letter of release is as follows: Community and Services sociaux Social Services et communautaires Au~ust 20, [990 Mr, J.M. Jelinek ¢/~ ThLstletown Regional Centre $¥~ Apps Campus 47~ Iroquois Shore Road Oakville. Ontario Dear Mr. 3eline~, Z have received a recommendation and Z have reviewed the facts regarding your probationary employment with the Ministry as a social Worker in the Secure Program section of ThistletownRegional Centre. Based on my review, I have concluded, that you have failed to mseC the requirements of the position, Accordingly, by the authority delegated to me by the Deputy Minister, I hereby release you from employment for failure to meet =he requirements of,the po. lcion 'in accordance.with Section 22(5J of the l~ublic Service Act. Yo~ release ti effective from Tuosda¥, Au~lls~ 22, 1990. Please contact Mr. Rick Martin, Manager, Human Resources at .1210..extention 308, to arrange a meeting to complete your benefits documents upon separation. · ._ ..... Lynn~/~ullard / Administrator 0~20:01 ~' 2 II. - PROCEDURAL ISSUES During the course of the hearing two issues arose which we were asked to include in the award. A) MArch 5, 1992 - Grievor Contact with Chair On March 5, 1992, the Chair received a telephone call from the grievor seeking an adjournment of the hearing day scheduled the next day because he wanted to proceed ~with separate representation. The Chair toldthe grievor that he would have to attend the next day al the hearing and make his request at that time; when all parties would be present to address his request. The Cha/r telephoned Mr. Paul to advise him that the grievor had contacted the Chair and to obtain assurance from Mr. Paul that he would be in attendance at the hearing the next day. At the opening of the hearing on March 6, 1992, the board convened in camera with counsel for the parties. Mr. Paul advised the board .that the grievor was withdrawing his request for separate representation. The Chair recounted the conversation which had occurred by telephone the previous day Vfith the grievor and Mr. Paul. The hearing reconvened with everyone present. The panel addressed the grievor indicating that they understood that the grievor was withdrawing his request and the grievor indicated his assent. Counsel for the .Employer indicated that he had no objection to raise. The hearing then resumed. B) Rt~llng on Scope of Cross-~srnlnation of Orievor Counsel for the Employer proceeded to ask the ~rievor questions delving into the circumstances leading up to a memorandum of settlement between the grievor and his former employer, The Mental Health Centre,' Penetanguishene. The memorandum of settlement was admitted into evidence and sets forth the terms under which the grievor resigned his position as a Clinical Social Worker. Cross-examination concerning the circumstances behind the settlement proceeded for a series of twenty-two questions when the Union objected to the relevance of further questioning concerning matters' behind the settlement. Mr. Paul argued ihat the issue in the case before th~ panel was whether the release of the grievor from his position at Syl Apps was bona fide and rationally linked to his failure to meet the requirements of the position. He added that the grievor's resignation from Oakridge at PenetangUishene upon agreed terms is not related to the issue before the panel in this case. Mr. Paul pointed out that no issue concerning his termination from Penetanguishene was raised in opening statement or. at any time as grounds for substantiating the grievor's release from Syl Apps. The line of questioning posed to the grievor prior to the point of objection was to suggest that his former employer was dissatisfied with the grievor's Work. The evidence that would be put forth by the grievor's former supervisor, Dr. J. MacDonald, amplifying On performance issues was put to the grievor. The grievor denied the allegations in this summary of Dr. McDonald's evidence. Counsel for the Employer turned to questioning the grievor further on his performance appraisals at O~.kridge; at which point the objection arose. 4 Mr. Patterson argued that his questioning was relevant and admissible on two grounds. First, the evidence contradicts the grievor's assertions in diredt examination 'that he had a good employment record, gets along well with people, and that he had never had a problem with supervision like he encountered at Syl Apps. The evidence was relevant to show whether the grievor's performance at Syl Apps Was an abberation or not. Secondly, the evidence is relevant and admissible to discredit the grievor's Credibility since the grievor had testified in direct examination that he had left of his own accord. Mr. Patterson indicated that he intended to call evidence to show that the grievor was being pushed out the door and when he was on the cusp of release, the grievor retained a lawyer, Mr. Lunnie, to negotiate the termination. At the hearing, the panel recessed to deliberate upon the parties' submissions, then reconVened to issue the. following oral ruling, which we now confn'm: "From the outset, the Employer has based its release (~f the grievor on concerns that are documented in the performance appraisals filed in evidence and the viva voce evidence we have received that expand upon the concerns raised therein. At no time has it been raised as a reason for release of the grievor that he supported his employment application with a fraudulent Or misleading previous record of employment or references. Mr. Nesrallah testified in cross-examination that he and Ms. Donna Close had sat on the selection panel, but at no time in these proceedings can the panel members recall that the Employer's 'witnesses were questioned about the sort of allegations raised now about the grievor's record of employment at Oakridge. The evidence does not show that these allegations were relied upon by the Employer at the time the grievor was released. Thus,' to advance these matters in cross-examination of the grievor today for the purpose of establishing the nature of the grievor's previous employment record or that working relationships at Oakridge are similar to the problems he encountered at Syl Apps mounts to a change in grounds. This the panel will not permit. At the very least, these concerns should have been raised earlier with the Employer's Witnesses in chief as being relevant to the reasons for release. To raise these at this stage of the 5 proceedings seems a prelude to the Employer splitting its case ahd will not be countenanced. The grievor's termination at Oskridge is the subject-matter of a Memorandum of Settlement. Ordinarily, as a policy to promote the efficacy and finality of such settlements, it is not permitted to go behind such settlements to ascertain the truth of the matters that otherwise would have been determined by litigation, but for the settlement. Thus, the panel is reluctant' to receive evidence about the quality of the grievor's work and working relationships at Oakridge for the purpose of making i~mdings of fact about these matters given that they would be of tangential relevance to the central issues in this case of the quality of the grievor's work and working relationships at Syl Apps. The grievor in chief indicated that he had never before been terminated or fired. He indicated in explaining his previous employment history that he had changed jobs frequently to follow better opportunities, enhance his education and career development. The general tenor of his evidence has been that his working relationship with Mr. Nesrallah was eXceptionally difficult. In particular, he defends his plans of care as being in standard form and generally delivered on time. The Employer seeks to tender the evidence of Dr. MacDonald from'Oakridge to show that the grievor was on the brink of being £rred, that his work was unsatisfactory, being not in the form required or 'timely, and that the grievor was incapable of dealing with a dual reporting relationship in supervision. We have already indicated why this evidence will not be admitted for establishing the truth of those allegations. However, the Employer argues that it could be tendered for the purpose of testing the grievor's credibility. In cross~examination the grievor has said he would deny most of those allegations. The problem with receiving this' evidence for the purpose of assessing the grievor's credibility, is that at'most we would be invited to infer that'because the grievor may have prevaricated about the nature of problems he encountered at Oakridge, he is likely to prevaricate about problems at Syl Apps. We have a wealth of evidence already before us from witnesses testifying about the nature of the problems that were encountered by the grievor and by supervision concerning 'the grievor's work at Syl Apps. From this sort of evidence we shall have a basis from which to make £mdings on credibility that are central to this issue before us, rather than tangential. The'prejudice to the grievor is substantial, and' the time and expense involved to receive the evidence surrounding the events at Oakridge are excessive for making findings of credibility. We find that the probatiVe value of this evidence for the purpose of making findings on credibility to be outweighed by the prejudice, extra delay, and expense entailed in receiving such evidence~ This is particularly so when the evidence is about tangential matters and would be inadmissible to prove the truth of the events. 6 IIi. STANDARD OF ~~ It 'has been argued successfully in other cases that where the statute confers upon a .designated public servant delegated authority to exercise discretion on a matter, it is this person who must ensure that all relevant information has been made available and who must decide whether a recommendation should be accepted. For instance, see G.S.B. #802/92 OPSEU (Sandman) and The Crown in Right of Ontario (Ministry of Health) and G.S.B. #577/89 Re OPSEU (Nesbitt) and The Crown in Right of Ontario (Ministry of Correctional Services). Although the Union raised the .point that Ms. Bullard, the designated public servant in this'case, did not testify to explain ~he process followed in reaching the decision to release, the Union did not base its attack of the release on that ground. Rather, the Union framed i~s case arguing that the decision to release was not bona fide and that on an objective assessment, the release did not flow log/cally or rationally from the facts: The parties were agreed that the' appropriate standard of · review is stated in G.S.B. #2492/86 Re OPSEU (Sheppard) and The Crown in Right of Ontario (Ministry of Government Services) (Slone) and followed in G.S.B. 410/88 R_fie OPSEU (Shaw) and The Crown in Right of Ontario (Ministry of Communitv and Social Services). After canvassing the Board's earlier jurisprudence in the earlier cases of Leslie, Fe .rraro, Abdulla andSchiralian, the panel in the Sheppard case summarized the guidhug pr/nc/pies in the follow/ng way at pp. 14-15: It can be argued with some logical force that this Board does not sit as an appeal tribunal from the decision by a Deputy Minister to release a probationary employee for failure to meet the requirements of the position. We are not · entitled to substitute Our assessment of the probationer's job 7 pe~o~.,-mance for that o~ t, he Deputy Minist, er. ~oweYer, jurisprudence of this Bo~d entitles .us ~ ~view ~a~ ag~s of the ~lease. ~e considerations f~l ~thin t~ somewhat overlapp~g ca~gories: A. ~ of ~ F~: If the Employer la~ed g~d faith ~ ~leas~g the probationa~ employee, then the os~nsible "release" ~1 be considered actually W have b~n a dismissal, which c~ be ~ieved under Se~ion 18(2)(c) of the Cw~ Employees Co1~tive B~ga~g Act. Cle~ly the bad faith,'~ fo~d, must be relatively serious. B. U~~ble: ~ile this tern is utilized ~ the e~lier d~isions, we do not t~e it ~ me~ that we ~ review the me,ts of ~he employ~'s job ~ffom~ce ~d re~s~a~ h~ ~ we fred ~at the assessment was "~easonable' ~hat the employee had not meg the ~ob requ~emengs. ~asonablene~s ~ this con~ is a s~cies of g~d faith. ~ereas the phrase. "bad faith" co~d encompass a release ~pro~rly mo~iva~d or mEiCiously ~nded, '~easonableness obj~ive assessment that the release did not flow Io~ly ra~ionEly ~om the fa~s. If, for exmple, there was s~ply no evidence ghat a proba~ion~ employ~ had not ~filled or co~d not ~ffll the job requ~ements, then no mater how well me~g were the a~ions of his su~dors, the release wo~d have b~n ~ ~easonable exercise of authority. C. ~fio~ ~fio~p ~~ ~ Fa~s ~d ~e ~~: This facgor i~ nearly synonymous' with "reasonableness." ~ the Employer's assessmen~ ~hat a ce~a~ set of fa~s justifies release is '~ation~' 0n ~ h~f- intelligent view of ~he major, then the release becomes a . ~s~te ~d ~ be reviewed. ~e 'ralionE relationship' ~st shodd not be plaid t~ high. It is easy W br~d as '~ationE" any thought press or decision ~th whi& one · d~s not a~. ~e Deputy ~is~r mus~ be free to m~e decisions, ~thout berg fo~d to have a~d ~a~ion~ly mealy b~ause a Board of ~bitra~ion might have come W a d~ferent conclusion. The Union argued that to support its. decision to release as bona fide and rationally linked to the facts, the Employer must show that the performance appraisals which formed the basis for the decision to release were conducted according to the policies and guidelines set forth in the management manuals for the Ontario Public Service and for the Ministry. In support of its argument, the Union referred us to the following cases: Re The Queen in Right of Ontario and Ontario Public Service Employees' Union et al (1984) 45 O.R. (2d) 361 (Ont. Div. Ct.); G.S.B. #372~84 Re OPSEU (Ruvert) and The Crown in Right of Ontari(~ (Ministry of Correctional Services~ (G0rsky)i G.S'.B. #440/82 Re OPSEU (Black) and The Crown in Right. of Ontario (Ministry. of Revenue) (Joliffe); G.S.B. #0389/88 Re OPSEU ('r]awley_) and The Crown in Right of Ontario (Ministry of Natural Resources) (Dissanayake); and G.S.B. #729/90 Re OPSEU (Agboka) and The Crown in Right of Ontario (Ministry of Revenue) (Fisher). On behalf of the Employer, it was argued that it constitutes an improper change in grounds and is too late for the grievor to impugn the performance appraisals that led to.his release. In any event, the Employer argues that even ff there was technical non- compliance .with guidelines for appraisal, contained in the~ Ontario Manual of Administration, such non-compliance does not vitiate the decision to release. The appraisal process met the concerns and objectives of the process, and the grievor was made aware early on and .throughout his probationary period Of the deficiencies.. management had identified in his work, clinical judgement, and professional conduct. In support of his argument, Mr. Patterson referred us to the Hawley case at p.18: 9 Counsel for the Employer is correct to the extent that the Board will not require technical compliance with the written words. Nevertheless these policies have a rationale and a purpose. If the Employer can satisfy us that the rationale and purpose of the written policies were achieved by some' alternate procedure, the Board is less likely to be concerned. Nor are we concerned unduly about the use of the memo format in place of the appraisal forms issued by the government. What is important is that the process of appraisal used must be such that the Board can be satisfied that the concerns and objectives of the written policy have been met. Furthermore, counsel for the Employer referred us to G.S.B. 739/91 Re OPSEU kq?ox) and The Crown in Right 'of Ontario (Ministry of Correctional Services) (Dissanayake) as authority for the proposition that only deficiencies, in the supervision process which seriously impede the grievor's performance and ability to meet the job requirements are relevant. Mr. Patterson argued that the Fox case supported the view that the Board must take into account the nature of the. position held by the probationary employee and the education and qualifications brought to the' position by the probationer when reviewing the evidence. He referred us to pp.19-20 of Fox~ decision: We observe £trst of all that the role of the board in a grievance challenging the release of a probationary employee is not to scrutinize the employer's' conduct to see whether there were deficiencies in the way the em. ployee was trained, supervised, and directed. It will be a rare case indeed where such deficiencies cannot be pointed out. For management deficiencies to' be relevant, it must be clear that those seriously impeded the grievor's performance and ability to meet the job requirements. The grievor pointed out many shortcomings in the'management practices which are irrelevant on this basis, For example, the failure to provide the grievor with a copy of her job description, the failure to provide formal feedback other than by way of written comments on her drafts, the failure to perform formal performance appraisals. We agree that it would have been 10 preferable if those things were done. However, the failure to do those is of .no significance for purposes of deciding this case unless it can be shown that they seriously impacted upon the grievor's' performance. The second observation we make is that in reviewing the evidence, the Board must take into account, the nature of the position held by the probationary employee. This is particularly so in reviewing the evidence relating to training, supervision and direction, and feedback. The level of supervision, direction and feedback that may be deemed as reasonable must depend on the sophistication of the position. For example, an incumbent with a minimal education occupying a clerical position may reasonably expect his supervisors to provide extensive training, to closely supervise him, and to give detailed directions and feedback. On the other hand, where the position by its very nature envisages a highly qualified and sophisticated incumbent, the Employer is entitled to. expect the employee to work on his own initiative and independently, with minimal training, direction, and feedback. We adopt the standard of review articulated in the Sheppard and Shaw cases articulated above, we also agree that deficiencies found in the training, supervision; and direction of the grievor must be shown to have seriously affected the grievor's ability to meet the job requirements. We do not find that the fact that the grievor's office was not in the cottage for a number of months significantly affected the grievor's ability to meet job requirements. There is a continuous log of activities kept on the cottage. There are daily issues meetings at the cottage and frequent mini-team meetings and an internal mail system by which the griev0r could keep apprised of events and incidents. Furthermore, we do not find that differing philosophies of treatment as identified in Dr. Keeling's testimony and commented upon in Ms. Parker's testimony played a significant role or impacted Seriously on the grievor's ability to meet the job requirements. Nor do 11 we find that the grievor was given such inadequate orientation to the position that he was not aware of the requirements of his role as Unit Clinical Coordinator. IV. 'REVIEW OF THE BASIS FOR ~E The panel heard extensive evidence during the course of many days over a period of two years. On behalf of the Employer, we heard evidence from the grievor's immediate supervisor on administrative issues, Mr. Douglas Nesrallah, Program Manager, Secure Custody, and from his immediate supervisor on clinical issues, Ms. Donna Close.~ We heard as well from Ms. Beverley Parker, Director, Secure Programs at Syl Apps Youth Centre. On behalf of the grievor, we heard evidence from the grievor, from another Unit Clinical Coordinator at Syl Apps, Marg Simmons, and from Dr. Kenneth Keeling, Senior Psychologist at Syl Apps Youth. Ms. Bullard did not testify. The basis upon' which management acted was provided by testimony from Ms. Beverley Parker and from Mr. Nesrallah. By memorandum, dated July 31, 1990, Ms. Parker indicated to Ms. Bullard her support for Mr. Nesrallah's recommendation for termination of the grievor. 12 -memorandum '® To: Lynne BuLt~r~ O~e: ~u17 3~, 1990 Director. Thistletown ~e~an~ Centre Copy: ~ck M~ F~m: Beverley J. P~ker ~ug Nesr~ah D, rec~or ~ Secu~ ~yl Apps C~pus ._ Re:. Jay Je~ek Perform~ce A~pr~s~_ ! enclose copie~ of Performance Appraisals '(three) as well as memoratldu~ summarizing appraisal issues regarding Jay Jelinek. I .have met with Mr. Jelinek, Doug Nesrallah and Rober~a Roberts, as~ s~nior soc~al'wor~ consultant, to go over these issues, and I support Doug Nesrai!ah's recommendation for terminat/on. The matter has been d/scussecl with Human Rcsources and has 3tick, ~arth3's approval. Because the matter has been dealt w~th just prior to .the begitlning of your vacation, there Will be some urgency to this upon your ~eturn;a~ Mr, JeLinek knows the meoommenclat~on has been made. Beverley. J. Ps~.qa~ BJP:JC In her testimony surrounding this step in the process, Ms. parker indicated that the first three performance appraisals were forwarded to Ms. Butlard, but not the fourth and i%al appraisal. At Ms. Parker's request, Mr. Nesrallah prepared a memorandum summarizing the performance issues that had been identified in respect to the grievor's work. 13 memorandum To: Beverley J. Parker Date: July 26. 1990 Director, Secure Programs From: Douglas O. Nesrallah Program Manager Re: Supervision issues Regagding Jay Jelinek Covering the Period December 1, 1989 to Jul3f 24, 1990. Inclusive ~lnce the time of Mr. Jelinek's employment here at Syl App$ Campus (Nevember 8, 1989, date of commencement), there have been numerous and consistent .supervision issues, A brief summary of these issues follow s: o Difficulties with Unit Supervisor, Flora Lamont (his Unit Supervisor at that time). Concerns identified having to do with Jay's difficulty in focusing on the issues and respon(ling. directly to issues, or questions presented to him; and his -difficulty in hearing residents and staff when they addressed .. him; and the general question of his unfocused style. Three meetings were held in all. o December 14, 1~$9: Concerns regarding JaY's style - he digresses, his style is florid, he provides extraneous information. Note from Flora in my Supervision Log that Jay is. "running around like a crazy person" and driving her crazy. o January 4, 1990: I identified f~r Jay that. Plans of Care and the way they are written would become the topic of Supervision for the two of us. Further discussion - .Jay overworks issues generally, and changing meetings when previously advised not to change meeting dates ~.ucl times. o January'2~, 2990: ! met with Jay regarding my concern that Jay was developing a,habit of pointing out how we were not following through on Policy, versus actually doing the clinical work I was hoping he wou~d get at (for example, during Incident Reviews. ~ebruary 2, 1990': 'There was a huge confusion over a.discharge conference that should have been a review conference for a resident, and Jay had come to me about re-scheduling the meeting. February 12, 1990: ~ray still raised issues with regard to FIora' and I referred him back to he~. I identified performance issues during this meeting that we would be looking at on a regular basis over the next several months as part of the performance appraisal process. I expressed concern how his evolving relationship with Flora would directly impact on the quality of care the kicis in Cottage 3 were receiving. 14 Beverley 3. Parker July 28, 1990 Page 2 o February 27, 1990: Jay..advised that he was dissatisfied with his fi~r. st performance appraisal. February 21 & 22, 1990: Regarding two of Jay's conferences around residents. Both notes have to do with vague presentations, generally weak presentations, and Jay's overall poor delivery. o March 15, 1990:' I helped Jay formulate goals for treatment plan. ) Jay seemed unable to comprehend or grasp the direction we were going, in with these treatment goals. ,~o March 19, 1990: Discussion with Jay on the matter of priori{izing his time in order to get the Plans of Care done in a reasonable 'time frame. .o March 21, 1990: I noted ongoing issues with regards to Plans Of C are. · ' ~ April 3, 1990: Difficult supervision session. My question during' this meeting was:' Could Jay demonstrate that he could Carry out .. his role as Unit Clinical Coordinator as outlined in the program description.- ss contrasted previously? Jay disagreed with me that he has not been carrying out his role - and he felt he was carrying out his role effectively. ApriI 19, 1990: I expressed serious concerns regarding the clinical input around' discharge planning for a resident. Jay disagreed. -' May 7, 1990: I reviewed reports with' Jay and went over goals. for each of them. These involved five different residents. o June 15, 1990: Discussion with J.ay took place regarding how a Treatment Plan should be written. We discussed style and length. During this meeting, I spoke with 3aY around his credibility on the team. He indicated to me that I needed to be more specific . when I had such concerns. o July 12, 1990: I discussed issues with Jay regarding an Incident Review and Plan of Care with a resident. Jay disagreed with my · 'position. Also discussed was the fact that Jay went home sick · on the afternoon we were having supervision, and left me a note saying he would be off the following day for vacation. July 12, 1990: Last note that Jay was telephoning Beverley Parker to advise her of his health status, rather than calling me. Douglas O. Nesrallah DON:JC 15 · The grievor prepared written addenda to respond to the criticisms of his work contained in the first three performance appraisals.. Ms. Parker testified that she had forwarded the grievor's addenda to Ms. Bullard, but her evidence was not unqualified. In cross-examination, she stated that she assumed that they had been attached to the grievor's first three performance evaluations. The suggestion wa~ put to her that the addenda were not attached to the performance appraisals in the grievors' personnel She responded that was possible, but she did not know why the addenda would not be fried with the performance appraisals. There was no evidence from personnel in Human Resources having custody of the grievor's personnel file to clarify this point, nor evidence from Ms. Bullard to clarify what material had been received and considered-by her in reaching the decision to release the grievor. Ms. Parker indicated, that following the grievor's third performance appraisal, dated May 24, 1990, the grievor spoke to Ms. Parker requesting a meeting to address his response to Mr. Nesrallah's supervision issues and to have' an objective impartial social work professional in attendance. The grievor's request was dated June 15, 1990 and was fQed in evidence: memorandum ® ~'.~,. o~, .... TO: Beverley J. Parker oate: June [5, 1990 Director, Secure Programs. I received your memo this afternoon, My objective or goal'was to have an impartial review of all relevant circumstances as they concern my employment. .. The reason for my suggestion is my belief that my previous comments and reflections'put me in jeopardy and produced treatment of my person I consider unacceptable. To accomplish the objective [ suggested an impartial external profes- sional person. An example of such a person was Mr. Sheehan with whom I have not dealt personally. There was an alternate sug~estion'made by you. I am prepared to provide additional oral and written comments on all aspects of'the situation. M. Jay Jeiinek 16 A meeting was held on July 4, 1990 at which the grievor, Ms. Parker, Mr. Nesrailah, and Dr. Roberta Roberts were present. Dr. Roberta Roberts was the senior social work consultant at Thistletown. She attended at the~ invitation of Ms. Parker. Ms. Parker had suggested Dr. Roberts as a suitable external professional. In his evidence, the grievor indicated that he had wanted Donna Close, his clinical supervisor, to be in attendance. His memorandum of June 15, 1990 does not make such a suggestion. Furthermore, Ms. Parker recalled clearly that the grievor was requesting an uninvolved professional to be'in attendance. By this time, Donna Close had not b~en providing much supervision to the grievor, but had allowed Mr. Nesrallah to fulfill that function. The grlevor had tried several times unsuccessfully to reach Donna Close for supervision after the early Spring of 1990 and had become frustrated with her preoccupation with other work. We prefer the evidence of Ms. Parker on this point, that the grieVor did not request Donna Close to attend the July 4th meeting. In any event, she did not attend. Ms. Parker agreed, in cross-examination, that the grievor's addenda to his performance appraisals raised serious allegations in respect to the working relationship between the grievor and the Unit Supervisor, Ms. Lamont, regarding inadequate clinical supervision he had received from Ms. Close, and concerning the supervision style and hostile attitude Of Mr. Nesrallah. Ms. Parker stated in chief, and in cross-examination, that the reason for the July 4th meeting· was to address the concerns raised in the grievor's addenda and to speak about the supervision process. The meeting was not held to discuss thel· grievor's' termination. Prior to and at the meeting, Ms. Parker advised the grievor that everyone 17 had reviewed his addenda, yet the grievor spent nearly the entire hour .reading his addenda to those present. A few questions in clarification were posed .to the grievor and the meeting ended. Ms. Parker testified that she took no action to address the grievor's concerns and she agreed that the grievor's concerns went unresolved. She stated that she did not perceive the grievor's Problems to be specifically related to Mr. Nesrallah, Ms.' Close, or Ms. Lamont; rather, the deficiencies identified with respect to the grievor's suitability had.to do with his ability ~o function as a Unit Clinical Coordinator and his ability to grasp plans of care. Throughout the supervision process and up to the point that she wrote to Ms. Bullard supporting Mr. Nesrallah's' recommendation to release the grievor, Ms. Parker did not deal directly with the grievor.. She was content to. advise Mr. Nesrallah concerning the depth and focus of his supervision of the grievor and she referred Mr. Nesrallah to the Human Resources Department once she became aware in May that Mr. Nesrallah was considering the possibility of release. She admitted in cross- .examination that she did not know that Mr. Nesrallah had not reviewed the performance appraisals and the grievor's addenda with the grievor. She further admitted that she was not aware that Mr. Nesrallah had not discussed with the grievor the impending decision to release following the July 4, 1990 meeting. Mr. Nesrallah's recommendation concerning release was contained in the fourth' performance appraisal. She further acknowledged in cross-examination that she did not know upon what information Ms. Bullard acted in reaching the decision'to release the grievor, other than the material which Ms. Parker forwarded to her with her 'memorandum of July 31~ 1990. Other than acknowledging that at some point she may have suggested that the grievor speak to Dr. Roberta Roberts about a transfer, Ms. Parker took no steps to investigate the facts further or to consider options other than release, follo ~wing the meeting of July 4, 1990. We find this inaCtion on the part of Ms. Parker remarkable given that she admitted in cross-examination that the tone and content of the performance appraisals were not in accordance with policies and guidelines for ~ppraisals of probationary employees. Ms. Parker acknowledged in cross-examination that' she would not have adopted the format used. The content of the grievo'r's addenda made it clear that the grievor and Mr. Nesrallah had become embroiled in a deleterious and emotionally charged relationship.. Ms. Parker seemed to be aware that Donna Close had ceased providing much active clinical supervision of the grievor since early Spring 1990, yet she agreed in cross-examination that it would not be usual for clinical supervision to cease because Mr. Nesrallah was providing supervision on administrative-matters. Furthermore, she perceived that weaknesses identified in the grievor's performance were related to clinical issues. Ms. parker admitted in cross-examination that the first three months of supervision should have been formal with goals and objective parameters set as performance standards for the grievor. Yet the evidence of Mr. Nesrallah was that such a process was not followed in the initial months following the grievor's hire; rather, the grievor's supervision was informal in that time frame. We find that the omission Of Donna Close 5o Provide continuing clinical supervision to the grievor throughout his probationary period, the omission of Mr. Nesrallah to set up objective performance goals in consultation with the griev0r at the outset, and the omission of Ms. Parker to take steps to defuse the escalating conflict between the grievor and Mr. 'Nesrallah had a significant impact on the grievor's ability to meet the requirements of his position. Ms. Parker admitted in cross-examination that Mr. Nesrallah's recommendation carried great weight in the process to release the grievor~ Furthermore, the evidence revealed that Ms. Builard, who was charged with authority to make the decision to release the grievor, lacked relevant information at the time of making her decisionl Finally, the witnesses who testified indicated that they'were not aware of any investigation or review of the facts conducted by Ms. Bullard. Furthermore, none of the witnesses knew the basis upon which Ms. Bullard acted, other than the material fox-warded to her with Ms. Parker's memorandum of July 31, 1990. Indeed, counsel for the Employer characterized Ms. Bullard's action as "rubber-stamping" the decisions of Mr. Nesrallah and Ms. Parker. The role of the Unit Clinical Coordinator is set forth in a document entitled Secure Custody/Detention Program DesCription, Thistletown Regional Centre, Syl ApPs Campus, dated March 8, 1989 at pp. 14-15: · Hole of the Unit Clinical Coor~instor The Unit Clinical' Coordinator's role is to facilitate the identification of clinical needs of residents and response to . those needs while in the program. The assessment process, begins at the point of admission and continues throughout the duration of the resident's stay. The provision of service will, where appropriate, .be ex~nded to family members, guardians or significant others~ inasmuch as the well-being of each resident is seen to be contingent upon the well-being of the family Or system of reference for the resident. The Unit Clinical Coordinator will also work in dose collaboration with the Unit Supervisor to ensure the smooth delivery of all clinical and operational aspects of the Secure program. 2O The Unit Clinical Coordinator will also be responsible for: ., 1. Develops~ coordinates and im~olements individualized treatment/intervention plans (Plans of Care) · Ongoing consultation with cottage staff regarding clinical issues pertinent to residents in program. · To encourage relevant community agencies to participate and give input to regular conferences as well as follbw-up on treatment plans decided upon. · Working closely with Prime Workers and cottage staff in developing, monitoring, and amending individual programs for residents on ongoing basis between conferences. · Liaising with (and begin to make contact with) and/or referrals to community based agencies, where applicable. · Involving/consultingwithresident, family/guardian, significant others, Probation Officer, etc. with a view to planning, obtaining input re appropriate . post-secure placement. 2. Does individual, family, and grouv counselling · Involvement through counselling with individual clients and their families when warranted. · Leading residents' group meetings. 3. Acts as a clinical resource for the unit orogram team and the facility · . Ensuring .that relevant Clinical information is · shared with all staff members in order to respond better to residents' needs while in Secure Detention/Custody. · Participate in staff training and development in clinical· areas. 4. Contributes to the design, implementation, and maintenance of the therapeutic environment · Participation in any meetings which pertain to planning for residents during their stay in Secure Detention/Custody. · . Participate in Clinical Management meetings. 21 Both Mr. Nesrallah and Ms. Parker identified this'description as aCCurately describing the job and Ms. Parker indicated that it was more accurate than the position specification. This document was provided to the grievor at orientation. The evidence revealed that Ms..Close abdicated her role in providing clinical supervision to the grievor certainly by March 1990, if not sooner. On the grievor's ~stimony, she bowed' out of meaningful contact with the grievor as of January or February 1990, apart from a joint supervisory session in March or April 1990 in respect towr/ting plans of care and plan of care review reports. Ms. Close testified that she was involved With the grievor up to March or April 1990.because she was able to recall her participation in a joint supervisory session of the grievor with Mr. Nesrallah around that time. The evidence of Marg Simmons, another Unit Clinical Coordinator, emphasized that a close supervisory relationship with Ms. Close was of invaluable assistance in carrying out the role of Unit Clinical Coordinator.' We reiterate our conclusion that the abdiCation by Ms. Close of her supervisory function in respect to the grievor seriously impaired his ability to perform and meet the job requirements. It is clear that the opinion formed of the grievor by Mr. Nesrallah played the pivotal role in the process leading to the gr/evor's rele~se. We heard extensive evidence surrounding the supervisory sessions held by Mr. Nesrallah with the grievor. 'We heard extensive evidence from Mr. Nesrallah and the grievor concerning the content of the supervisory notes, the performance .appraisals and addenda, and the incidents referred to as examples in those documents. Counsel for the Employer character/zed the problems w/th the grievor's performance which emerged from the evidence as falling within four areas: 1) 'the inability or refusal of the grievor to take ownership 'of issues .coming within his responsibility; 2) the apparent inability of th~ grievor to identify, synthesize and communicate Clearly, to provide focus upon important clinical issues at meetings and to members of the multi-disciplinary team; 3) the difficulties the grievor manifested in writing reports' such as the plan of care ~and plan of care review; and 4) problematic · aspects of the grievorts clinical judgement and professional condUct. It would take a tome to detail each instance touched upon in evidence as examples of these problems, but we shall highlight examples in order to illustrate our conclusions in respect to the four areas in turn. 1) Own p In his testimony and in the performance appraisals and supervision notes fried, Mr. Nesrallah criticized the grievor for a propensity to avoid responsibility for resolving problems with co-workers such as Flora Lamont, the Unit Supervisor, and Joan Barton, the Programme Secretary. It was clearly a source of irritation and frustration for Mr. Nesrallah that Mr. Jelinek would raise complaints about the quality and timeliness of Joan Barton's work without raising those concerns directly with her. Mr. Nesrallah's response to the grievor's complaints was to refer the grievor back to the secretary directly. The evidence indicated, as does the memorandum of Ms. Parker dated November 14, 1989, that Joan Barton had been temporarily assigned as secretary to the Secure Custody Programme in November 1989, around the same time that Mr. Jelinek began work at Syl Apps. Ms. Marg Simmons, 'a Unit Clinical Coordinator who was hired in March 1990 to work in Cottage 2, testified that she had encountered continuing 23 problems with the quality and timeliness of Ms. Barton's secretarial service and she could recall mentioning this to Mr. Nesrallah on one occasion. The problems that Mr. Nesrallah noted in respect to Joan Barton and the grievor are not mentioned after the first performance appraisal. It was part of Ms. Barton's responsibility to schedule meetings and it was the evidence of both Ms. Simmons and the grievor that she did not take 'direction from them readily concerning scheduling of meetings or the quality 'and tfrneliness of her work. Unit Clinical Coordinators have no line supervision responsibility -over the programme secretary, but the programme manager does. We find that it was neither fair nor realistic for Mr. Nesrallah to expect any continuing problem with the quality of Ms. Barton's secretarial work to be dealt with by the grievor alone without intervention or direction from Mr. Nesrallah to the programme secretary. Indeed, Mr. Nesrallah in cross-examination denied that there were any problems with Ms. Barton's work, despite complaints from the grievor and Marg Simmons. We' fred that Mr. Nesrallah abdicated his supervisory role in respect to Ms. Barton and blamed the grievor for the problems encountered. However, we fred that'the problems with Ms. Barton are not mentioned after the first performance appraisal and are not mentioned in Mr. Nesrallah's memo of July 26, 1990 to Ms. Parker. We therefore fmd .that this deficiency in handling the situation by Mr. Nesrallah did not significantly impact upon the grievor. There were continuing problems noted in the supervision notes and in the first two performance appraisals with the working relationship between the grievor and the acting Unit Supervisor, Flora Lamont. Prior to the grievor's hire on November 8, 1'989, Ms. Lamont had been carry/ng out her responsibilities for her acting appointment as well 24 as some of the responsibilities of Unit Clinical Coordinator for the residents in Cottage 3 due to a critical shortage of staff. She was an unsuccessful candidate in the competition for a permanent position as Unit Supervisor and left Syl ApPs around March 1990. The grievor found that Ms. Lamont was not cooperative or commUnicative with him concerning clinical issues for residents whom she had been handling prior to Mr. Jelinek's appointment. The role conflict is noted in Mr. Nesrallah's supervision notes on January 29, 1990, and he notes that the grievor agreed to approach Ms. Lamont to set up regular meetings or sessions to review and update the grievor on cases as a means to minimize the communication gap. In the performance appraisal of March 23, 1990, Mr. Nesrallah noted that the role conflict problem had subsided and in his supervision notes for January 29, 1990, and in his testimony he noted that Jay and Flora had reported to him that they were resolving issues between them. In any event, by ~he time Mike Brown is appointed as Unit Supervisor, the problem of role conflict is not pursued in the performance appraisals and the evidence indicates that there was a satisfactory working relationship between the grievor and the new Unig Supervisor. We'fmd that it was neither fair nor realistic to saddle the grievor with' all the blame for the role conflict with Ms. Lamont. Once Mr. Nesrallah had instructed~both the grievor and Ms. Lamont unequivocally to work Out their problems with each other, without his intervention, the problems seemed to subside. The evidence did not indicate that there was a Continuing problem of role conflict between the grievor and the Unit Supervisor through to the point that the grievor Was released. However, the role conflict with Ms. Lamont is relied upon by Mr. Nesrallah in his July 26th memorandum to justify the grievor's release. We fred that Mr. Nesrallah's criticism of the grievor on this issue had a. significant adverse 25 impact upon the grievor. Mr. Nesral~ah did not act in an objective or even-handed manner. He clearly was irritated by the grievorts conduct and empathized with Ms. Lamont. On an objective assessment, both the grievor and Ms. Lamont participated in role conflict. Mr. Nesrallah did not appear to credit the grievor for achieving a satisfactory working relationship with Mr. Brown. The major example offered of the grievor failing to assume responsibility for his mistakes occurred when Flora Lamont assigned to one of the.prime workers in Cotgage 3, Rob Lister, the task of preparing a behaviourial summary, on 'a resident. Mr. Nesrallah explained that the residentts probation officer, .Mr. Beauchamp, had requested Ms. Lamont to have the report prepared in time for a court appearance ~he following week. Ms. Lamont was absent on the Thursday and Friday of the week the report was assigned, so Rob Lister approached the grievor to review the draf~ report he had prepared. The grievor, on reviewing'the draft, judged that tl~e clinical contex~ and issues needed to be developed to a greater extent. The grievor offered ~o assist in the writing of the report. In the result, the report was not ready 'at the time arranged and Ms. Lamont became furious with the grievor. She berated the grievor directly; and complained to Mr. Nesrallah about the grievor's interference. For his part, the gi*ievor felt that he had been by-passed by Flora Lamont concerning the probation officer's request for a clinical report on a resident in his Cottage. In his supervision notes of January 29, 1990, Mr. Nesrallah faulted the grievor ~for not checking back with Ms. Lamont concerning what sor~ of repor~ was required and when. In his testimony, Mr. Nesrallah acknowledged that he became angry with the grievor about this issue and empathized with' Ms. Lamont's irritation. He testified that he told ihe grievor ghat since 26 only a behaviourial summary had been requested and the probation officer was fully apprised of the clinical issues with respect to the resident, it was appropriate for the request to have been channelled to' Ms. Lamont. Furthermore, he told the grievor that he should ha~e referred the prime worker back to Ms. Lamont for further direction or in her absence, checked with Mr. Nesrallah. From his response in the addendum to the £~rst performance appraisal and from his testimony, it is apparent that the grievor understood this incident as a role conflict with Ms. Lam°nt and that he had been .unfairly criticized for offering assistance to a prime worker, a duty contained in his role description. We fred that it was a reasonable expectation on the part of Mr. Nesrallal~ that the grievor should have ascertained the nature of the report required and whether there was a deadline to be met. The grievor's testimony and written response show that he did not accept responsibility for any error on his part in this matter. In the next section we shall review the evidence pertaining to the ability of the grievor to identify, synthesize, and communicate clearly clinical issues in respect to residents. The "ownership" issue overlaps into this area as well. 2) Identification, Synthesis, and Clear Communication of Cliaical Issues - Focus As early as December 14, 1989, Mr. Nesrallah began to note that the grievor had a propensity to digress, provide extraneous information, and use a florid style when communicating clinical issues in respect to residents. By JanUary, Mr. Nesrallah observed that the grievor's problems stemmed from his approach to identifying clinical issues, .as well as from' the manner in which the grievor communicated such issues. Mr. Nesrallah' made notes to this effect on January 17, 1990, and on February 21, 1990 27 with respect to the grievor's presentation, at a plan of care meeting in respect to resident T.N.; on February. 22, 1990 concerning a plan of care meeting for resident S.G., at which a probat, ion officer was noted' to ask the grievor what point the grievor was trying to make. On February 28, 1990, Mr. Nesrallah noted a comment made by the grievor at 'a meeting concerning the admission of resident H.B. suggesting a'behaviourist approach to treatment ·that would train the resident like mice. On March 21, 1990, at a plan of care meeting in respect to K.G., Mr. Nesrallah noted that the grievor had undermined: his own'clinical approach by supporting the behaviourist approach suggested by the youth workers concerning refusal of writing materials ix) the resident at bedtime when she was .most anxious. Earlier, on March 12, 1990, Mr. Nesrallah criticized the grievor for requesting that the same resident, K.G., refrain from sexual intercourse during the term of"her stay. Mr.. Nesrallah characterized the grievor's requirement as a sexist contract., that ignored the underlying clinical issues for the resident whose past history of abus~ was conducive to sexual 'acting-out. On March 23, 1990, Mr. Nesrallah noted that at a team meeting concerning resident S.G., the grievor was asked by a team 'membe~ to explain what he meant by the phrase that the resident "used sex as a transitional object." Mr. Nesrallah noted that the grievor became flustered and embarrdssed and was unable to provide a dear, concise response understandable to both ~clinicians and lay-person members' of the team. In respect to resident S.G., Mr. Neskallah noted that the grievor handled inappropriately the resident's request for a temporary release, which request was supported by the resident's probation officer. The plan of care for this resident had stipulated that he obtain a psychiatric assessment and be assessed for substance abuse because at the time of admission he had manifested 28 psychotic episodes. The plan of care had recommended ·that there be no temporary releases sUpported until after the appropriate assessments had been conducted. The grievor took the position at the meeting and in discussion with Mr. Nesrallah that the temporary release should be supported. At the hearing;. ~he grievor reiterated his view that as a matter of law, the resident was entitled to apply for a temporaryrelease. We fred that the griev°r at tl~e time and at the hearing seems to have missed the point. Regardless of whether the resident was entitled'in law to apply for the temporary release, the Crucial clinical decision was whether the clinicians at Syl Apps would officially support or recommend denial of the request to the Provincial Director. Furthermore, Mr. Nesrallah noted that the gri-evor at the trine attributed the problem to an omission by management to make the temporary release policy clear to him at an earlier point in time. Yet, at another point in his testimony, the grievor suggested that he had been surprised that the release was granted by the Provincial Director. On April 11 and 19, 1990, Mr. Nesrallah noted concerns with the inappropriateness of the discharge planning conducted by the grievor in respect to resident J.L. The plan supported by the grievor and the resident's case manager was to discharge the resident to live with his mother in six weeks' time. The resident had not lived with his mother for approximately two years. He had a violent history and had' attempted to strangle a case worker at ~a group home, which had led to his admission to 'Syl Apps for six months. The grievor had not ensured that there was representation or reports from the resident's school or from his play .therapist. In Mr. Nesrallah's view, given that the resident's mother lived in a batchelor apartment, on social assistance, and 29 given the treatment goals in the plan of care, discharge to a therapeutic ~etting would have been more appropriate and consistent. On April 19,' 1990, Mr. Nesral]ah noted a meeting with the grievor relating to resident C.S., a pyromaniac with sexual identity problems. Mr. Nesrallah was critical of the way in which the grievor had identified and communicated the clinical issues for this resident. In direct examination, Mr. Nesrallah explained that.the grievor had failed to prepare the resident and failed to communicate at the plan of care conference that the pyromania related to sexual dysfunction. Another relevant issue to the question Of sexual dysfunction and gender identity was whether the resident's involvement with a known homosexual as his caseworker was appropriate in the circumstances, in direct examination, Mr. Nesrallah characterized the grievor's presentation of the case as "an 'overly conscientious boy, with a single mother, With poor parenting skills, and who happened to be a fire-setter." In cross-examination, Mr. Nesrallah recalled that this supervisory session was very difficult and that he had yelled at the grievor. Mr. Nesrallah also acknowledged that he had had a difficult supervisory session w/th the grievor on ApriI 3, 1990 and yelled at him then too. The grievor recalled the April 19th meeting as being difficult and that Mr. Nesrallah yelled at him, although the grievor understood that Mr. Nesrallah was mad at h'im simply because he had relayed the concerns of the cottage staff concerning whether C.S. should have a case manager who was effeminate. In chief, the grievor's evidence suggested that he did not express any personal opinion about the propriety of the assignment. In cross-examination, the grievor retorted that even if he disagreed with the propriety of tl~e assignment, Mr. Nesrallah ought not to have abused his authority by behaving the way he did ~ i.e., yelling at the grievor. In June, Mr. Nesrallah met with the grievor and Mike Brown, the Unit Supervisor, to discuss issues the cottage staff had raised concerning the grievor's style and delivery which wei, e affecting his credibility with the team. Mr. Nesrallah suggested that the grievor meet with the cottage staff to confront them' about such allegations at a subsequent team meeting, However, Mr. Nesrallah acknowledged that this step would be difficult and he was not surprised that the grievor chose not to'do so.. On June 20, 1'990, Mr. Nesrallah nOted that the grievor's presentation at Plan of care conferences for residents S.B. and RN. did not clearly identify or communicate the underlying clinical issues. On July 5, 1990, .during a plan of care review for resident K.G., Mr. Nesratlah noted that the style of the grievor's presentation was not conducive ~ .discussion of clinical issues. He noted that the grievor raised the concept of rewarding her misbehaviour. Mr. Nesrallah took issue with the grievor's approach as being opposed to the programme's philosophy. By this time~ the meeting with Beverley Parker had taken place and the relationship between the grievor and Mr. Nesrallah was so strained that little meaningful communication occurred between them directly. The grievor, in his evidence, denied that the supervision he received from Mr. Nesrallah amounted to coaching, a~sistance, or training. He indicated that Mr. Nesrallah's attitude toward him changed remarkably after the conflict with Ms. Lamont at the end of January 1990 over the grievor's offer to help the prime worker, Rob Lister, prepare a report on a resident. He supported his view in' chief by asserting · - 31 that at the July 4th meeting. "Mr. Nesrallah didn't Object to the suggest.ion that his attitude had changed" after the Rob Lister case report problem with Flora Lamont. In cross-examination and from the other evidence, we f'md that although Mr. Nesrallah may have clarified some aspects covered in the grievor's addenda, the JUly 4th meeting did. not lead to much discussion: Mr. Nesrallah, as did other members of supervision, chose to remain silent, even if they disagreed With the content of the addenda. Apparently'the grievor interpreted Mr. Nesrallah's silence on this point as tacit assent. For the first three months following his hire in November, the grievor characterized his supervision as informal, .with no criticisms of his report writing, or of other aspects of his performance. The grievor, after repeated questioning, eventually acknowledged that there was a meeting with Mr. Nesrallah in February when Mr. Nesrallah reviewed some matters of concern prior t~ receipt of his first performance appraisal. He acknowledged that he had received some orientation, although he disagreed with Mr. Nesral]ah as its extent.' .He acknowledged that he had requested a copy of the policies and procedures manual and received it to review prior to December. He acknowledged that he received a copy of guidelines for clinical report writing from Donna Close before January and from Mr. Nesrallah in March or April. He acknowledged that he had regular supervision from Ms. Close each week on Friday up to January during which they discussed clinical issues and aspects of his role: We f'md that given the grievor's lengthy clinical experience and academic qualifications, the extent of orientation and the guidelines and policies provided were adequate. Mr. Jelinek took the view that from January on, Mr. Nesrallah's attitude and supervision was hostile, adversarial, and negative. He could not accept the perfo~rmance 32 appraisals as legitimate because he viewed them as not embodying performance standards that were objective, measurable, reasonable, or attainable. Rather, he perceived .the performance appraisals as containing many out of context remarks calculated to be disparaging of the grievor. When 'pressed repeatedly in cross- examination as to whether he felt he needed to improve or change his performance in response to the performance appraisals, the grievor responded by questioning the validity of the appraisal process. In re-examination, he asserted that he tried to meet the expectations as he understood them either from the goals or from the manual. We reviewed carefully the evidence of the grievor in response to the criticisms of the grievor's clinical approach and case presentation style. In general, the grievor did not accept that the criticisms of his performance were valid. He defended his performance by ascribing blame to others. In some instances, he blamed Mr. Nesrallah for being unable to accept or tolerate a difference in professional clinical judgement. For instance, Mr. Jelinek referred to a divergence in clinical approach between Mr. Nesrallah and himself concerning resident K.G. in reference to the supervisory note made on July 5, 1990. Mr. Jelinek took the stance that it was inappropriate that her misbehaviour be rewarded by being taken to the snack bar by her worker; usually, residents were taken to the snack bar as a reward for good behaviour. In another example, Mr. Jelinek defended his stance on the temporary release for' S.G. mentioned in supervisory notes in March 1990. In brief, the grievor testified that the resident was legally entitled to apply for a temporary release and since the case manager supported it, he should not oppose the application. Mr. Jelinek opined that the plan of care, if it did not contempla~ a temporary release at that point in time, was unrealistic and not in conformity with 33 clinical opinion favouring family reintegration. Later in his testimony he indicated that he was surprised that the temporary release was granted. We find the grievor missed the point that the role of the Unit Clinical Coordinato~ was to offer advice based on the treatment goals in the plan of care which, in this case, would postpone a temporary release of the resident unt//assessments were conducted. In response to the "mice" comment, as a reference to the grievor advocating a behaviour modification approach to handling resident HE., Mr. Jelinek explained that the clinical approach taken previously with this same resident on a prior admission had been unsuccessful. Mr. Jelinek ~ok the opportunity to explain to cottage staff a different approach, the behaviour modification approach, as an alternative that might be considered. He defended this as appropriate to a case conference which includes an element of in-service clinical training. In other instancesl Mr. Jelinek ascribed blame to his role conflict with Flora Lamont and to Mr. Nesrallah's favouritism of Ms. Lamont, which, in the grievor's view, led to Mr. Nesrallah to take a critical view of his work and clinical judgement. For instance, the grievor's evidence indicated that he had been blamed ,mfairly for trying to assist Rob Lister to prepare the report requested by' the probation officer, Rick Beauchamp; that Ms. Lamont was mistaken about the due date; and that Mr. Nesrallah was mistaken that the report was required for a court appearance. We have already indicated that it would have been responsible and reasonable for the gr/evor to seek clarification as to what sort of report was required and the due date. In other instances, the grievor ascribed blame to conflicts between Mr. Nesrallah and Ms. Close as to how clinical issues are to be identified and goals to be formulated in. 34 plans of care. The grievor adopted this as an explanation to defend his work in drafting plans of care for residents R.V. and S.B. In the latter case, the grievor also ascribed blame to the difficulty in coordinating reports in a timely fashion from various members of the multi-disciplinary team. In this instance, the grievor acknowledged that he had pointed out that Dr. Chamberlain had been difficult to contact so as to clarify whether he would have continuing involvement as the primary therapist. · On the whole, we fred that the supervision notes and the testimony surrounding the events noted reveal that there was some basis supporting Mr. Nesrallah's critical assessment of the grievor's ability to identify, synthesize, and communicate clearly clinical issues of residents. However, the evidence also reveals that Mr. Nesrallah had little respect for differences in clinical approach taken by the grievor. Mr. Nesrallah chose to treat Such differences as a personal attack upon his authority and upon his ability to maintain a cohesive clinical approach by care givers. The evidence of Ms. Close, Nits. Parker and Ms. Simmons indicated that differences in clinical judgement and approach are aired in team meetings. It is the duty of the Programme Manager as Chair to forge a consensus upon an integrated clinical approach to each resident. It is the role of the Unit Clinical' Coordinator to support the Programme Manager in that task. Unfortunately, by April 1990, ffnot sooner, Mr. Nesrallah manifested an inability t° handle supervision issues with the grievor in an objective, constructive fashion - he descended to yelling at the grievor and keeping a paper trail which portrayed the grievor in an invariably disparaging way. We recognize that Mr. Nesrallah was frustrated because the grievor's academic credentials and previous clinical experience reasonably 35 would lead to the expectation that the grievor would not havre difficulty in identifying, synthesizing, and articulating clinical issues. Nonetheless, we fred that the grievor was entitled to'a more objective, constructive approach in supervision.' The dynamic which emerged from Mr. Nesrallah's disparaging and hostile approach was that the grievor became inured to his criticism because he perceived Mr. Nesrallah to be biased. We conclude that the pernicious quality of this supervisory relationship significantly and adversely affected the. ability of the grievor to meet the requirements of his position, particularly in the absence of assistance from Ms. Close after March and in the absence of intervention by Mrs. Parker. ' 3. Dit~_culties in Clinical Recording - i.e. Pi.-. of Care and Plan of Care Review Reports In her testimony, Ms. Close indicated that she had detected problems with the organization and clarity of plans of care drafted by the grievor. To illustrate, Ms. Close recalled having a joint supervisory session with the grievor and Mr. Nesrallah in March 1990 to review the grievor's draft plan of care for resident R.V. At this juncture the grievor was provided guidelines for clinical recording by Mr. Nesrallah. Later she was asked by Mr. Nesrallah to attend and chair a plan of care review conference on June 20, 1990 for the same resident R.V., as Mr. Nesrallah was unable to attend. She nbted that a consensus emerged at the meeting that the central clinical issue for this resident was to address feelings of loss, grief, and mourning. However, when she reviewed the grievor's draft plan of care review, the grievor had identified the chief goal for therapy 36 as assisting the resident to develop positive transference with persons in authority. She edited the draft and added the .clinical issue concerning loss and mourning. Ms. CIose explained that her supervision fell off after March because Mr. Nesraliah was increasing his supervision of the grievor concerning goal formulation and identification of clinical issue in plans of care. She felt it would be redundant for her to do the same. She added that the grievor's problems arose at the most basic level of report writing, whereas her expertise was sought by Unit Clinical'Coordinators usually in respect to. more complex issues of clinical management, She disputed the grievor's evider~ce that her supervision dropped off in January; she placed the turning point in March. When asked in cross-examination whether she recalled indicating to the grievor that Mr. Nesrallah had said to her that Mr. Jelinek would be gone in six months, she responded "No." When asked whether she recalled that Mr. Nesrallah had consulted with Human Resources to discuss performance appraisal, she responded "Yes." She could not specify the time frame when Mr. Nesrallah had consulted with human resources, but she indicated in her evidence that Mr. Nesrallah was advised by Human ResoUrces personnel to go through performance appraisal, but not for the purpose of termination. She also indicated that she became aware by January or February 1990 that there were supervision issues with respect to the grievor's writing of plans of care. She gleaned this impression from regular supervision sessions she had with the grievor in the initial three months following the grievor's hire and from editing his draft plans of care and plan of care review reports. We fred that the supervision and guidance provided by Ms. Close continued to March 1990, and' was adequate to that point. Given that the grievor was 37 still experiencing problems with identifying and articulating clinical issues, in her view, we find that~ it was inappropriate for her to cease her supervision of the grievor thereafter, particularly in the context of 'the difficult supervisory relationship with Mr. Nesrallah. The evidence shows that both Mr. Nesrallah and Ms. Close had identified problems in this aspect of the grievor's work by January.' It was one of the reasons that Mr. Nesrallah sough~ advice from Human Resources on how to address this with the grievor. We can only characterize the grievor~s testimony in this area as evasive, · guarded, and defensive. In direct examination, the final version of several plans of care and plan of care reviews which had been assigned to the grievor were put to him for comment. He insisted that his reports were ail eventually approved by Mr. Nesrallah. We £md that the grievor'S answers were calculated to mislead the Board as to the extent of revision that had been required. When the draft versions Were put to him in cross- examination, the grievor refused to accept the editing as a form of assistance or that the extent of editing reflected a problem in his ability to organize and articulate the clinical issues in a clear, coherent, logical format, but ascribed blame to differences between Mr. Nesrallah and Ms. Close in goal formulation and writing format. t We conclude that the evidence of Ms. Close and Mr~ Nesrallah is to be preferred on this issue. We £md that the evidence shows that there were significant problems with the grievor accepting and conforming to expectations and standards for clinical recording, despite considerable assistance in the form of editing and discussion provided by Ms. Close in the early stages of his employment and subsequently by Mr. Nesrallah. 38 Furthermore, we fred that by mid-January, Mr. Nesrallah had concluded that he had a performance problem with Mr. Jelinek. We also find that Mr. Nesrallah had a personality conflict with the grievor such that he became readily exasperated with ti~e . grievor and became increasingly unable to provide assistance in a Ixelpful manner; supervisory sessions by April became so difficult that Mr. Nesraltah was reduced to yelling criticism at the grievor. We have already articulated our conclusions about the knpac~ that the approach taken by Mr. Nesrallah had upon the grievor's opportunity to demonstrate that he could meet performance expectations. 4. Clinical Judgement and Professional Conduct Much of the illustrative evidence pertaining to the problems identified in this area has been reviewed above. For instance, the support for the early,temporary release for S.G,; the discourse on a 'behaviour modification approach for resident H.B.; the disagreement concerning what would be suitable punishments or rewards for and suitable conduct by K.G. in light of the clinical issues arising from a history of abuse; the apparent difficulty the grievor had in articulating to cottage staff what was meant by the term "uses sex as a transitional object" used by Dr. Meen in respec{ to resident S.G.; the stance taken by the grievor, concerning the assignment of a e0mmunity worker who was a known homosexual to resident C.S., whose clinical issues included pyromania linked to sexual dysfunction and problems with gender identity; and the problems with discharge planning for resident J.L. We f'md that the whole of evidence supports a conclusion that there was some problem with the grievor's clinical judgement. However, we also Fred that the grievor was denied sufficient assistance from Ms. Close to assist 39 him to develop his clinical judgement and tn articulate clinical issues in a manner that was consistent with the predominant clinical ideology at Syi Al{ps, which appears ~o be the psycho-social model. We t'md that Mr. Nesrallah had concluded certainly .by May' 1990, and perhaps even by March, that the grievor was headed for termination and that · he would document a consistent paper trail in that direction. In this context, given the ' difficult working relationship that. had arisen between the grievor and Mr. Nesrallah, the omission by Ms~ Close to continue to provide clinical assistance to the grievor, inCreased the severity of the impact upon.the grieVor's attitude and performance. Furthermore, · senior management took no conCrete steps to alleviate the conflict between the grievor and Mr. Nesrallah, despite the content of the addenda, which should have induced some reaction. The offer of a transfer to the grievor by Mr. Nesrallah in January or early February occurred before the supervisory relationship had become so difficult. The query by Ms. Parker as to whether the grievor could work elsewhere on July 4th was half- heart~d, resulting only in a referral to a person that even Ms. Parker admitted in her evidence had no authority to provide a job to the grievor. Mr. Nesrallah's ·supervision was problematic for the reasons outlined, as well as the further reasons that in the initial stage of the grievor's employment following his hire, Mr Nesrallah provided little SUpervisory feedback to the grievor to put the grievor on notice that his performance was not meeting expectations. Furthermore, in this time frame and up until March or April, the grievor was contending with a problem with his hearing that was not resolved until after the second performance appraisal. Thus, from his hire in November until early spring, the grievor's compromised ability to hear what was said at team and mini-team meetings could have affected his ability to summarize accurately what transpired at 'these meetings, yet he was responsible for taking minutes and for providing an accurate ~reflection of treatment goals and progress in clinical recording. We are of the view that the employer was under a duty to accommodate the grievor in respect to his hearing problem. While the employer did assist the grievor to have this problem addressed,' the supervisory response did not seem to link 'these issues to problems that were noted in clinical recording in the early stages. · CONCLUSION We conclude that the evidence supports a finding that there were performance problems which underpinned management's decision to effect the grievor's release. However, the probationary employee is also entitled to have supervision which is fair.and affords an adequate opportunity to demonstrate that performance standards can be met. Furthermore, the performance standards set should be objective, measurable, reasonably related to the worl~ and responsibilities. We fred that Mr.. Nesrallah failed to providb adequate supervision to the grievor in the initial stages of his employment from November to February. We £md that Ms. Close provided inadequate supervision to the grievor from March to August. We fred that Mr. Nesrallah failed to proyide fair, objective supervision after March and allowed his judgement of the ~,rievor's performance' · to be clouded by a personality clash with the griever. We f'md that these deficiencies in the supervision accorded to the grievor seriously impacted his ability to meet the performance standards expected. We find th: :~ i~rformance standards expected were 41 that the grievor be able to provide sound clinical judgement and be able to identify, synthesize and communicate clinical issues in a dear, logical and coherent fashion that is consistent with' the psycho-social clinical model predominant at Syl Apps. These performance standards are reasonable and relevant to the duties and responsibilities of the position. The problem lay in the assistance accorded to the grievor to realize those performance standards. 'That is not to say that the grievor's thirty years' previous clinical experience and academic qualifications are not relevant. The grievor's background and qualifications would form a rational justification for' management's assumption that the grievor ought to. have been able to meet the performance standards more qUickly and with less supervision than would be required for a recent graduate without dirdcal experience. However, when the whole of the evidence is considered, we conclude that the grievor, even with his considerable knowledge and experience, was entitled to a fair, objective assessment of his performance and to ~ve an adequa~,~ opportunity to demonstrate that he could meet the performance s~ndo_rds. As mentioned earlier, the decision of management to release the grievor pivoted upon Mr. Nesrallah's supervisory process and opinion. We have found deficiencies in'the rational basis for that opinion and in the process followed. We cannot dose ws'thout adverting to the manner in which the grievor was advised of his termination. Although he knew from his fourth performance appraisal and from Mr. Nesrallahs' deportment generally that Mr. Nesrallah was recommending release, the grievor was not aware that the recommendation had been approved officially until 8:30 a.m. on the morning of August 22, 1990 when Mr. Nesral]ah handed him his letter of discharge. Mr. Nesrallah switched versions in his evidence as to whether he invited 42 the grievor to his office to explain the letter or whether he simply handed him the letter near the security doors in the lobby. Either way, the method was in.considerate. The grievor was offered no opportunity to collect his personal effects and notes from his office. Ms. Parker denied that she gave any such direction, although Mr. Nesrallah testified that Ms. Parker had ordered that he not be allowed to go'io his office. The termination was effected in a brutal, uncivil manner, which even Mr. Nesrallah conceded in cross- examination. If.anything, the manner in which Mr. Nesrallah effected delivery of the release letter confn'ms our view that he harboured ill will toward the griev0r, and had done so for some time. REMEDY In short, the grievance is allowed in part. 'While the Union has not established that the grrievor is able to meet the performance requirements of the position, the Union has established that there were significant flaws in the good faith and rational bas'is supporting the decision to release which adversely affected the grievor's ability to demonstrate that he can meet the position requirements. We therefore order that .he be reinstated to his position as a Unit Clinical Coordinator at Syl Apps subject to completion of his probationary period. In view of the length of time that has ~elapsed since his termination on August 22, 1990, we would urge the Employer to provide the grievor upon. his reinstatement a refresher orientation to assist him in reintegrating to the curreht treatment team. '43 We are not convinced that the grie¥or can meet the position requirements. In the case G.S.B. #729/90 Re OpsEu (Agboka) and The Crown in Right of Ontario (Ministry of Revenue), cited by the Union in this case, the panel commented upon the propriety of awarding compensation in cases where release of a probationer is not upheld. In the Agboka case, the Union conceded in dosing argument that the grievor was not able to perform the job in question. By 'way of remedy, the Union was not seeking reinstatement to the grievor's former position but reinstatement to a different position. At pp.18-I9, the panel articulated the reasons why it would not order reinstatement to a different position. At pp.16-17, the panel articulated its reasoning concerning the remedy of compensation to a probationary employee upon reinstatement to his former position where a release has not been upheld and where the evidence indicates that the grievor may not be able to meet the position 'requirements: First of all, it is clear that any re-instatement would be to a probationary position with the balance of the probationary period to run. This has been .the procedure followed in a number of probationary re-instatement cases [Walker 1272/88 (Fisher), Sheppard 2492/86 (Sloane) and Nicholson 1294/88 (Ratushny)].~ Secondly in terms of compensation,'although a number of awards have automatically given compensation, upon re- instatement [Walker 1272/88 (Fisher)] some awards have not iManiate 56/77 (Swan)]. If one applies the basic principles of contract damages to these cases, the rule is that the Grievor should be put in the same position he would have been had the contract not been breached. If the contract had not been br~ached,~the grievor would have been in the position that at any time up to the end of his probationary period he could have been released due to his failure to meet the requirements of the job. He-would only .achieve the coveted prize of permanent status once he had successfully completed hi~ probationary'. period. It follows then *_.hat we do not know at *_,his point whether or not the grievor will pass his prebation_~_ry period 44 ff he is reinstated. In fact he could be reinsta~ to his probationary status and fail to pass probation. If ~h,~t is so, why reward him now with over 2.5 years of back pay? Instead ~_h_e compensation award should be made conditional upon his succe__zsful completion of ~_he reinsured probationary period. Th~_, srrsngement would provide hi,. with t~he full compensation to which he ',may be entitled while at the same, Thus, if the grievor were to be reinstated, this Board would not provide for automatic compensation, rather we would make it a condition that his compensation award be contingent upon the successful completion of his probationary (emphasis added) While these reasons were obiter in the Agboka case, we agree with the principles articulated and fred them applicable to the instant case. We therefore order that · compensation to the grievor be conditional upon his successful completion of the probationary period and.subject to a duty to mitigate his losses since he was released in August 1990. In the result the grievance is allowed in part. At the part/es' request we remain seised to deal with problems arising in the' implementation of this. award which the parties are unable to resolve 'themselves. Dated at Kingston, Ontario, on this 2oth day of December, 1993. Jane h Vice-Cha irper son "I dissent" - partial dissent to follow Michael Lyons Member "I concur with addendum" Harry Roberts Member 46 Addendum 1938/90 OPSEU (Jelinek) and the Crown in Right of Ontario (Ministry~ of Community & Social Services) After carefully reading the analysis of the evidence presented in the above case, leading to the decision set out in the final award, I am persuaded to concede, with some r~luctance, that the remedy'proposed is not unreasonable under the circumstances. JI am completely in agreement with ad share the belief that, as noted at the top of page 44 "we are ·not Convinced that the grievor can meet the position requirements." I strongly support the ruling that compensation, if any, which might be paid to. the grievor, be conditional, upon his successfully completing the revised probationary period, and not otherwise. H.- Roberts, Member PARTIAL DISSENT G.S.B. 1938/90 OPSEU (~elinek) and THE CROWN IN RIGHT OF ONTARIO (Ministry of Community and Social Services) This was a difficult and complex case. It required 17 hearing days over more than two years to complete the evidence and arguement. I cc~pliment the Chair for the excellent job she did in sun~m~rizing the facts and arguements. For the most part I agree with the conclusions reached in the award; unfortunately, I must partially dissent, primarily because of the remedy which the Board orders. Essentially, there are three parts to the remedy: 1 - that the Grievor be. reinstated; 2 - that the Grievor be required to ccmplete the remaining portion of his probationary period; 3 - that compensation to the Grievor be conditional upon his his successful completion of his probationary period; It is the third aspect of the remedy with which I disagree. The Board's usual practice is to award full retroactive compensation when a grievance challenging a probationary release is allowed.' It see~s clear frcm the award, that'the reason that the majority decided not to award ccmpensation until the Grievor completed his probation was because "the Union has not established that the Grievor is able to meet the performance requirements-of the position" and therefore "we are not convinced that the Grievor can meet the position requirements". However, with respect, it is not up to the Board to determine whether or not the Grievor can meet the position requirements', nor dOes the Union bear the burden of .establishing that he can. It was agreed that the appropriate standard of review of a probationary release is stated in Sheppard, G.S.B. 2492/86 (Slone). That award says in part at page 14: "It can be argued with some logical force that this Board does not sit as an appeal tribunal from the decision by a Deputy Minister to release a probationary employee, for failure to meet the requirements of the position. We are not entitled to substitute our assessment of the probationer's job performance for that of the Deputy Minister." Sections 22(5) and 23 of the Public Servi~e Act gives the Deputy Minister or his/her delegate the sole authority to determine whether or not a probationary employee has met the reqirements of the position. Accordingly, the Board, in my view, lacks the jurisdiction to step into the shoes of the Deputy Minister and to make this determination. If the board ~re to undertake 'this task, it w~uld amount to second guessing the decision of the Deputy Minister. This Board does not have that authority. On the· issue of onus, in Mitchell, G.S.B. 1610/89 (Emrich),the Board · clearly found that the Employer had the onus of proving that the release of a probationary employee was reasonable and in good faith. It is inconsistent to claim that in this case the Union bears the onus of showing that the Grievor could meet the requirements of the position. In Sheppard, supra, the Board outlines the aspects that must be considered when reviewing a probationary, release. (These are quoted on page 8 of this decision. ) None· of these factors require the Union to establish that the Grievor is able to perform the job requirements; rather, they all deal with whether or not the Employer met its responsibilities. In this case, the Union clearly showed that the Employer did not. In fact, the lack of good faith by the Employer, along with the poor supervision and inadequate evaluations given to the Grievor, made it highly improbable that the Grievor would be able to meet his job requirements.. During an employee's probation period, both the employee and the employer, have a responsibility to to take steps that will help the employee to successfully cc~plete his/her probation. In this case, the BOard found that the Employer failed to meet its responsibility; yet, unless the Grievor successfully completes the remaining portion of his probation, there will be no consequences for the Employer. · This should not be so. Since the Board'found that the Employer was at fault in this matter, the Grievor ought to be ~compensated, regardless of whether or not he successfully completes his probation. Remember also, that the Board recognized that the liklihood that the Grievor will successfully cc~plete his probation has been reduced because, given the length of time that has elapsed since his release (3% years), his skills are likely rusty. By deciding to return the Grievor to his position but not to award cc~pensation, until he has cc~pleted the remaining portion of his probationary period, the Board is departing frc~ the traditional remedy that has been overwhelmingly followed by Arbitrators in similar cases. This is also a departure from the well established principles 'in_Blake, G.S.B. 1276/87, (Shime). In light of the above, ~ would have ordered that the Grievor be returned to his position (subject to completion of his probationary peri~d) with full ccmpensation. Dated at Toronto this 4th day of January, 1994. Re: G.S~B. #19~ O~.S-~,.U. (Jelinek) and The Crown in P~ht of Ontario fMi-~tr~ of Co~m,-~ty and S~_ '~! Serdces) ADDENDUM There is no question that in a case of the release of a probationer, the burden of proof rests upon the Employer to establish that the release was bona fide and reasonable. Indeed, our conclusion on the merits was that the release was neither bona fide nor reasonable. However, when we turned to the issue of the appropriate C°mpensa~ion which should be awarded to the grievor consequent upon this finding on the merits and our order that the grievor be re/nstated, we needed to consider what would be an appropriate measure of the grievor's loss, given all the circumstances of the case. At. p.43, we concluded that "While the Union has not established that the grievor is able to meet the performance requirements of the position, the Union has established that there were significant flaws in the good faith and rational basis supporting the decision to release which adversely affected the grievor's ability to demonstrate that he can meet the-position requirements." In phrasing our conclusion in this manner, we do not intend to reverse the burden of proof which rests upon the Employer throughout to defend its 'decision to release as bona fide and reasonable. At the same time, however, this was a case in which we found at p.26 that "both the grievor and Ms. Lamont participated in role conflict." At p.27 we found that the grievor refused to accept responsibility for any error on his part in respect to a report deadline, when it would have been reasonable to do so. At p.33, we noted that the grie),or did not accept any 1 criticisms of his performance as valid and he customarily would ascribe blame to others. In respect to the issues around clinical recording, our review of the evidence resulted in the following findings at p.38:. "We can only characterize the grievor's testimony in this area as evasive, guarded, and defensive .... We irmd that the grievor~s answers were calculated to mislead the Board as to the extent of revision that had been required." ... "We trmd that the evidence shows that there were significant problems with the grievor accepting and conforming to expeci~ti0ns and standards for clinical recording, despite considerable assistance in the form of editing and discussion provided by Ms. Close in the early stages of his employment and subsequently by Mr. Nesrallah." Furthermore, at p.39, we stated our conclusion on the evidence that "We £md that the whole of the evidence supports a conclusion that there was some problena with the gr~evor's clinical judgement." In measuring the extent of the loss suffered by the grievor in consequence of his release, some account must be taken of his contribution to that loss and of his lack of candour. Thus, at p.44 we expressed the view that we were not convinced that the grievor can meet the position requirements. His incumbency in the position is contingent upon the successful completion of the proba~onary period. M~klug the award of compensation conditional upon successful completion of the probationary period properly balanced the concern arising from deficiencies noted in the grievor's performance and demeanour with the deficiencies in the supervision process. The deficiencies in the supervision process COmpelled our decision on the merits, but deficiencies in the grievor's performance and demeanour as a witness led us to conclude that recovery of compensation for his loss Should hinge upon successful completion of the probationary period. 2