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HomeMy WebLinkAbout1991-0739.Fox.92-11-19 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTAR~O GRIEVANCE C,OMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 150 DUNDAS STREET WESL S~TE 2 I~, TORONTO, ONTARIO. MSG lZ8 TE&EPHONE/T~LEPHONE (4 ~6) 325-/358 180, RUE DUNDAS OUEST, BUREAU 21~, TORONTO (ONTARIO;. MSG 1ZB FACSIMILE/~L~COPlE : (4 t6) 326- t396 739/91 IN THE MATTER OF AN ARBITR~TiON Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Fox) Grlevor - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer BEFORE: N. Dissanayake Vice-Chairperson P. Klym Member D. Montrose Member FOR THE P. Chapman UNION Counsel Ryder, Whitaker, Wright & Chapman Barristers & Solicitors FOR THE R. Barrette EMPLOYER Counsel Legal Services Branch Management Board of Cabinet HEARING October 1, 1991 February 13, 14, 17, 18, 24, 1992 April 29, 1992 May 1, 21, 1992 2 DECISION Ms. Tricia A. Fox, a probationary employee with the Ministry of Correctional Services, at its Planning & Evaluation Branch in North Bay, Ontario, in'the position of Research Officer (commonly referred to as Senior Project Officer) was released pursuant to section 22(5) of the Public Service Act, for alleged unsatisfactory work performance. Ms. Fox grieves that She was unjustly dismissed, and seeks reinstatement with full pay and benefits retroactive to date of dismissal. The hearing in this matter commenced on October 1, 1991. Evidence was adduced over eight days, during which period 85 exhibits were filed. Subsequently the parties made written' submissions, the last of which was received by the panel on August 10, 1992. The Planning and Evaluation Branch is headed by a Director, Mr. Paul Whillans. The Branch consists of three units, one of which is the Programme Development and Evaluation Unit, more commonly referred to as the Research Unit. Dr. Robert Saltstone was the Manager of the Research Unit. This unit consisted of two sub-groups - the Statistics Group and the Research Group. Each group had a supervisor, holding the position of project coordinator, who reported to Dr. Saltstone. Under the Statistics Project Coordinator there were 3 statistics officers. In the 3 Research Group, there were 2 Senior Project Officers, who reported to the Research Group Project Coordinator. The statistics Lgroup employees maintained operational statistics pertaining to the Ministry, such as inmate counts, probation counts, admissions etc. The evidence is that their positions largely consisted of clerical and data management duties. The Research Group employees' main role was the completion of research and evaluation projects as assigned. They submitted the completed research projects to a committee known as ACRE (Advisory Committee on Research and Evaluation). Given the nature of the duties involved in the Research Group, the key players involved in this dispute are highly qualified people. The grievor is no excepti'on. Her credentials include a Bachelor of Social Science degree in Physical Education from Australia, and a Master of Education degree in Adult Education from the University of Manitoba. At the relevant time Ms. Fox was working towards abPhD from the Faculty of Education, University of Manitoba. She also had numerous journal publications and presentations Of papers at conferences. On March 31, 1990 Ms. Fox applied for the position of Project Coordinator of the Research Group, which had been aduertised. In the letter of application she states that her research skills are "in both the statistical and qualitative methods". She was 4 interviewed by Dr. Saltstone after which they had a further discussion over lunch. In total the discussions lasted some 2-1/2 hours. Both Dr. Saltstone and Ms. Fox agree that during these discussions Dr. Saltstone mentioned that quantitative research skills including measurement and statistical analysis were an important skill to perform the research undertaken by the Research Group. The grievor indicated that it was not her strong point. According to her, he responded by stating "that's ok because we have two statistics officers." Dr. Saltstone denied this. He testified that Ms. Fox stated that she was willing to brush up in that area. Dr. Saltstone did not feel Ms. 'Fox was qualified for the Project Coordinator position. However, based on a review of her resume and the discussions, he felt that she was qualified for a position of Senior Project Officer. She was offered that latter position. Ms. Fox had a concern whether it was prudent to suspend her doctoral studies to accept that lower-ranked job and made inquiries about the wages. Dr. Saltstone advised her that he would be able to offer' her the starting wage rate of a project coordinator.- She accepted the Senior.Project Officer position on that basis. The letter of release dated May. 22, 1991 identifies three areas where the grievor's work performance was seen as deficient. These are: 5 (a) Demonstrated weakness in the application of standard research design. (b) Demonstrated weakness in the application of inferential statistics (c) Unsatisfactory performance in written products. The union's position is summarized in the written submissions as follows: · It is submitted that, as detailed above, the evidence in this case clearly demonstrates that the Ministry's decision to terminate Ms. Fox was not taken "reasonably and in good faith", as that phrase has been interpreted by previous panels of this Board. To summarize the argument as it appears above: A The decision to terminate was not'taken in good faith as the Employer 1) Failed to give the Grievor an adequate opportunity to meet the expectations of the job as the Grievor was - (a) not provided with adequate training and familiarization; (b) not provided with adequate instructions; (c) not provided with adequate feedback; (d) not provided with an adequate remedial program; and, (e) not assessed according to a consistent standard of review, with an appropriate workload, and with appropriate timeliness. 2) Acted with an i~proper motive as the monitoring of the grievor and the decision to terminate was "coloured" - (a) as a reprisal for the Grievor's complaints to W. Gibson/P. Whillans; and, 6 (b) by the Grievor's poor relationship with Dr. Saltstone; (c) which was confirmed by the Employer's conduct of the grievance hearing. B The reasons on which the Employer relied in terminating the Grievor are unreasonable and/or bear no rational relationship to the facts established by the evidence. The parties are in general agreement as to the limits of this Board's jurisdiction to review a decision by the employer to release a probationary employee. The test in the private sector has been stated as follows by Callaghan J. in Re Municipality of Metropolitan Toronto, (Div Ct.) quoted in Re Municipality of Metropolitan Toronto, (1984) 18 L.A.C. (3d) 52 (O'Shea) at p. 56: The municipality is not required to justify the dismissal by affirmatiuely establishing reasonable or any cause. A probationary employee would be entitled to succeed on a grievance in relation to discharge only if he were able to affirmatively establish that the action of the employer was taken in bad faith in the sense that the decision was motivated by unlawful considerations or resulted from management actions which precluded the probationary employee from doing his best. In various decisions of this Board.the standard of Yeview has been described in different language. However, generally the Board's approach is in harmony with the test set out by Callaghan J. see, Re Abdulla, 1103/85 (Verity), Re shiralian, 914/86 (Roberts), Re Shaw, 410/88 '(Barrett) , and Re Speevak 1578/89 (Verity)'. 7 In Re Sheppard, 2492/86 (Slone), the Board reviews its jurisprudence and at pp. 14-16 discusses the extent to which the Board is entitled to review a release of a probationary employee. 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. However, the jurisprudence of this Board entitles us to review certain aspects of the release. The considerations fall within three somewhat overlapping categories: A. Lack of Good Faith: If the Employer lacked good faith in releasing the probationary employee, then the ostensible "release" will be considered actually to have been a dismissal, which can be grieved under Section 18(2) (c) of the Crown Employees Collective Bargaininq Act. Clearly the bad faith, if found, must be relatively serious. B. Unreasonable: While this term is utilized in the earlier decisions we do not take it to mean that we can review the merits of the employee's job performance and reinstate him if we find that the assessment was "unreasonable" that the employee had not met the job requirements. Reasonableness in his context is a species of good faith. Whereas the phrase "bad faith" could encompass a release improperly motivated or maliciously intended, "unreasonableness" speaks more to an objective assessment that the release did not flow logically or rationally from the facts. If, for example, there was simply no evidence that a probationary employee had not fulfilled or could not fulfil the job requirements, then no matter how well meaning were the actions of his superiors, the release would have been an unreasonable' exercise of .authority. C. Rational Relationship Between the Facts and the Release: This factor is nearly synonymous with "reasonableness". If the Employer's assessment that a certain set of facts justifies release is "irrational" on any half-intelligent view of the matter, then the 8 release becomes a discharge and can be reviewed. The "rational relationship" test should not be placed too high. It is easy to brand as "irrational" any thought process or decision with which one does not agree. The Deputy Minister must be free to make decisions, without being found to have acted irrationally merely because a Board of arbitration might have come-to a different conclusion. The employer agreed to proceed with its evidence first. Mr. Paul Whillans, (Director of the Branch), Dr. Robert Saltstone (Manager of the Research Unit) and Dr. Stanley Halliwell (Project Coordinator, Research Group) testified on behalf of the employer. Mr. Whillans testified that it was his decision as designee of the Deputy Minister, to release Ms. Fox and that while he relied on the comments and opinions of the grievor's direct supervisors, Dr. Halliwell and Dr. Saltstone, he also exercised his own judgement about the grievor's work performance based on his personal knowledge. The evidence indicates that Senior Project Officers work on research projects assigned to them. Evidence was led about the various projects undertaken by Ms. Fox during her period of employment. While both counsel took the witnesses through the minute details of the work produced by the grievor and the comments and criticisms of the same by her supervisors, it is not useful to review that evidence in detail in this award. Suffice it to say at this point that generally the supervisors were of the opinion that many of those assignments had technical deficiencies and/or spelling, structure and.format problemS, as well as serious~ flaws in research methodology. The grievor, as a general matter did not 9 dispute that the alleged deficiencies existed. However, she provided explanations as to why she did what she did. For example, she claimed that in some cases she was not provided clear directions as to what exactly she was expected to do, and in another she felt that the information required was not readily available. With regard to the spelling and formatting problems, her position was that she expected trhose to be corrected by the unit secretary who did the typing. Now we turn to the union's case. (A) BAD FAITH (1) Inadequate oDDortunity to meet job .expectations (a) Training and Familiarization The union relies on the evidence that the grievor did not see a copy of her job derscription until January 1991, that she received no formal training and that there were no formal meetings between the grievor and her supervisors to discuss her job responsibilities or office procedures. Counsel further points out that at the time Ms. Fox commenced her employment, the Branch had just moved from Scarborough to North Bay and that during the transition'period the office was in a stat~ of disorganization with employees sharing offices and documents stored in cardboard boxes. Counsel submits that while the grievor had a general idea about the work of the unit and her own role within it, she was not 10 provided a clear understanding about the expectations of her job and the criteria against which they were being measured. Cb) Adequacy of instructions Counsel points out that on assignment of projects the practice of the supervisors was to provide instructions orally. She submits that these instructions were often vague and incomplete. It is her position that the lack of clear instructions contributed to the grievor's difficulties in demonstrating her ability to meet the requirements of the job. It is further submitted that Ms. Fox received conflicting instructions as to which type of format is to be used. Counsel points out that most of the feedback was provided by way of editorial comments scr~bbled on the drafts. There was little feedback provided through discussion. The union takes the position that the grievor was first orally apprised of those concerns at a meeting on February 1st 1991, and that written notice of those concerns was not provided until March 8/91. C o u n s e 1 submits that-it ih important that a probationary employee be provided with feedback, in a timely fashion and with sufficient formality. It is submitted that the delay in providing the grievor with adequate feedback and the 'nature of the feedback received prevented the grievor from demonstrating her ability to perform the job. (c) Adequacy of Remedial Programme The evidence indicates that prior to the grievor being hired, she acknowledged and made her supervisor aware that she was weak in quantitative research and statistics. Counsel submits that having hired her despite that knowledge, the employer did not take any steps to assist her remedy the grievor's admitted "weakness" until February 1, 1991. It is further pointed out that a specific remedial programme was not developed for Ms. Fox until February 28,' 1991 and that she was provided with a reading list and a procedure for appraisal of her progress only on March 8, 1991. Counsel points out that due to the on-going work of the grievor the implementation of the remedial programme was postponed until April 25, 1991. Then Ms. Fox was away on an approved leave of absence between April 24, and May 7, 1991. As a result she had to do the reading on her own time, and not during normal work hours as contemplated by the remedial programme. Upon her return she was advised that her supervisors were not satisfied with the quality of certain research work she had done prior to going away. This caused her a great deal of stress which adversely impacted upon her preparation for the first review meeting with Dr. Halliwell scheduled for May 10. The grievor further testified that she objected to'Dr. Saltstone being present at the review meeting and yet he stayed for the first part of the meeting. This intimidated her and made her nervous. The grievor testified that during the period of the remedial programme she was quite busy with her work, that she was stressed to the point of being physical.ly ill. She 12 requested that the second review meeting be delayed but it was carried out on May 17th as scheduled. Union counsel submits that the remedial programme implemented during the last four weeks of the grievor's employment was not a fair and reasonable assessment of her ability to perform the job, since she was away on an approved leave of absence for part of this period, she did not get the opportunity to do her reading during normal working hours as contemplated, and she was under a great deal of stress during this period. Counsel further points out that Mr. Whillans in directing Dr. Saltstone to implement a remedial programme had specifically contemplated a .plan that would have "goals and targets" for the grievor to meet. It is submitted that the programme that was implemented did not include goals or targets. Cd) Standard of Review/Timing/Workload The union takes the position that 'the standard of review applied on Ms. Fox was different than that imposed on her colleague, Mr. John McFarlane. During the period in question he was almost exclusively engaged in one Project. The grievor was assigned three full research proposals. The contention is that the grievor was assigned a heavier workload. In addition, it is submitted that the grievor was subjected to strict time deadlines, while in Mr. McFarlane's case the deadlines were more flexible. It is further pointed out that while the employer was critical of 13 the number of drafts the grievor took to complete her proposals, a similar concern was not expressed about Mr. McFarlane, who did 12 drafts on his report. (2) ImDro~er Motive Ca) Reprisal The grievor testified about the following interactions and problems she encountered with Dr. Saltstone and Dr. Halliwell respectively Dr. Saltstone - The grievor testified that in November, 1990 she made a request to the unit secretary Ms. Charlene Gibson, that she be provided with a chair with a special back support. The chair she had'could not be'adjusted and caused her discomfort because of the arthritis in her knees and hips and because her legs were too long in comparison to the height of the chair. Ms. Gibson testified that she brought this request to Dr. Saltstone's attention and that he advised that he will not approve the request. Ms. Fox eventually received the special chair in January or February 1991. - After the unit had moved to the new building, the grievor ques{ioned Dr. Saltstone, in the presence of other employees, why Mr. Ash Sial, a project coordinator who had some 23 years seniority had been assigned an open concept office, while Dr. Halliwell a 14 recently appointed project-coordinator, was in an office with a door and Dr. Saltstone responded "It is none of your business". - A memorandum dated March 8, 1991 to the grievor from Dr. Saltstone making reference to her performance deficiencies had been placed in a tray to which all employees had access. The grievor felt that this had been done deliberately to embarrass her. - The grievor testified that Dr. Saltstone exhibited a cold attitude towards her "to the point of being rude". Particular mention was made of his failure to respond to greetings by the grievor such as "good morning" and "good bye". Dr. Halliwell The grievor testified about comments made by Dr. Halliwell, which she found to be offensive. Some were racist comments and others she felt were sexist. AlleGed Racial comments - During an informal discussion at the onset of the Oka crisis, Dr. Halliwell is alleged to have stated that "it was the result of a group of ignorant injuns" and when the military moved in he is alleged to have stated "I wish I were in the military. I would have been licensed to kill some injuns". The grievor testified that she made it known to Dr. Halliwell that she found the statements to be inappropriate. These allegations relating to 15 the Oka crisis were not put to Dr. Halliwell during his cross- examination. - The grievor testified that in the presence of Dr. Halliwell, Mr. sial, Mr. McFarlane and Mr. Jim Kinoshameg, she was demonstrating a hand-held module that translated various languages. She alleged that when she pointed out that it also included French, Dr. Halliwell said "Them damned French. We should bludgeon them with English. Don't you agree Trish?". She testified that she indicated that she did not agree. Of the persons named by the grievor as those present for the alleged conversation, only Mr. McFarlane testified. He recalled the discussion about the module but testified that he did not hear Dr. Halliwell utter the alleged comment. This allegation was not put to Dr. Halliwell during his cross-examination. - During another conversation Dr. Halliwell allegedly stated that "England .invented the class system". The grievor commented to Dr. Halliwell that she found it odd he would say that in the presence of a Pakistani, an Australian and a Canadian 'who all belonged to the Commonwealth. The grievor testified that she found this comment by Dr. Halliwell to be funny, but not offensive. No evidence was called from any of the other persons alleged to have been present. 16 Alleged Sexist Comments - The grievor testified that' upon Dr. Halliwell's return to work after attending a course, she asked him whether he enjoyed the course. According to her he responded, "it was really great because of all the lovely little ladies". She replied that she only asked about the course and was not interested about the ladies. The Halliwe!l could not recall this incident. - The grievor testified that Dr. Halliwell was in the habit of greeting women with statements such as "good morning ladies" or "hi ladies". On one occasion she was with the unit secretary Ms. Gibson, when he greeted them in that way. She informed him that she did not want to be addressed as "a lady". According to her, Dr. Halliwell was taken aback and inquired why. She explained that according to feminist theorists the term "lady" is derogatory and offensive in two ways. Firstly, it implied petiteness and delicateness and other feminists associate the term "lady" with "ladies of the night". The grievor testified that following this incident, on several occasions Dr. Halliwell greeted groups of women (including herself) with a "good morning ladies" or "hi ladies"and then immediately stated to her "Oh Trish. You don't like to be called a lady. I am sorry". The grievor testified that she felt he did that to tease her. 17 Dr. Halliwell testified that he recalled the grievor's objection to being referred to as a lady. He testified that while he felt that the grievor's, reasoning for the objection was "a great stretch of imagination"~ he understood that she was very sensitive. He apologized and strived not to use the term "ladies" in greeting a group that included her. However, sometimes he forgot and tried to repair that by informing the grievor that he forgot. He categorically denied that he was deliberately teasing her. - The grievor testified that on another occasion during a staff meeting a female employee made a statement and that Dr. Halliwell responded by stating something to the effect "Just like a woman to say that'S. Dr. Halliwell admitted that he may have done that - The grievor testified that at a x'mas party they were seated at a table, when Mr. Whillan's secretary arrived and there was no seat for her. She testified that Dr. Halliwell tapped his lap and said "if you want to sit you will have to sit on my lap". The grievor found this to be sexist and offensive. Dr. Halliwell recalled the incident. He explained that it was a party, that he was just joking around and that the secretary who was with her husband just laughed. - The grievor claimed that on another occasion in her presence Dr. Halliwell told the same secretary who had been recently married 18 - "now that you've been married for some time you must have learned some new tricks". The union's position is that the employer acted with an improper motive as the monitoring of the grievor and the decision to release her was "coloured" (a) as a reprisal against the grievor, for having made complaints to Mr. Whillans and the Deputy Minister, and (b) by the poor relationship with Dr. Saltstone. Counsel for the union also made submissions to the effect that the manner in which the employer conducted the hearing before this Board further demonstrated that the grievor's release was coloured by an ~mpr9per motive. Reference was made to the extent to which the employer went to attack the credibility of the grievor. We note that credibility was made an issue by both parties. In any event, the manner in which the employer's case is conducted is a judgement made by the legal counsel who represented the employer. We observed nothing improper or unusual in the manner she presented her case. In any event, the manner in which counsel conducted her case cannot, in our view, assist us in determining whether the decision to release the grievor in May 1991 was coloured by bad faith. 119 (c) Unreasonableness/No rational relationship between facts and release Union counsel reviewed in detail each- of the assignments completed by the grievor and the criticisms of the work by management. She contends that based on that evidence there was no rational basis for the employer to conclude that the grievor would not improve. It is further argued that there was no reasonable basis to conclude that the grievor had not improved following the remedial programme. Counsel cites again the heavy workload and the mental stress that adversely affected the grievor's performance during the remedial programme. It is submitted that the weekly review meetings conducted by Dr. Halliwell were not a reasonable means of assessing the grievor's progress during the programme. She points out that the grievor was not assigned and was not assessed on the basis of any research proposals following the remedial programme. She was released without having an opportunity to do any further research work. The Decision We observe first of all that the role of the Board in a grievance challenging the release of a probationarYemployee is not to scrutinize the employer's conduct to see whether there were deficiencies in the way the employee was trained, supervised, and directed. It will be a rare case indeed where such deficiencies cannot be pointed out. For management deficiencies to be ~elevant, 20 it must be clear that those seriously impeded the grievor's performance and ability tomeet 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 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 tha~ 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. 21 With those observations in mind, we turn to the facts of this case. Improper motive In setting out the union's case, we have presented the union's side of the story as presented to us. The employer witnesses admitted some of the allegations and provided explanations. In Other cases they could not recall the alleged incidents. In some other cases, the employer witnesses outright denied the allegations. We will not review the employer's evidence in this award because in our view, for purposes of determining this grievance it is not necessary for us to resolve the numerous conflicts in the evidence of the union witnesses and that of the employer witnesses. With regard to the behaviour attributed to Dr. Halliwell, for purposes of deciding this grievance, it is not necessary for us to decide whether Dr. Halliwell in fact engaged in the alleged behaviour and if so whether such beh~viour was racist, sexist or otherwise inappropriate. What is important is that the grievormade certain complaints relating to Dr. Halliwell's conduct. The issue is whether her release was in whole or in part a reprisal against her because she made those complaints. For purposes of this decision, we will assume, without finding, that the alleged conduct attributed by the union witnesses 22 to Dr. Saltstone and Dr. Halliwell are established. We are satisfied that the evaluation of the grievor's work performance by Dr. Saltstone and Dr. Halliwell, were not coloured by a desire to penalize' the grievor because of considerations unrelated to her work performance. We find that the relationship between Dr. Saltstone and the grievor was strained to the extent that Dr. Saltstone may not have been as "friendly" towards Ms. Fox, as he was with some other employees. However, the evidence does not disclose that that in any way affected Dr. Saltstone's treatment of Ms. Fox as an employee. When Mr. Whillans became aware of her concerns about Dr. Saltstone, he called a meeting to clear the air. The union points out that at this point Dr. Saltstone brought up issues of the grievor's work performance. Despite the timing, we cannot conclude on the basis of the evidence that Dr. Saltstone concocted imaginary performance problems because the grievor had raised concerns about Dr. Saltstone. As already noted the ultimate decision to release the grievor was taken by Mr. Whillans. We find that when the grievor brought her concerns to his attention, he acted even handedly in takin~ steps to ensure that both Dr. Saltstone and the grievor cooperate in facilitating a better understanding. The · grievor was satisfied and optimistic after the meeting. There was no suggestion that Mr. Whillans had any motive against the grievor. He directly supervised the grievor on two proposals. His 23 criticisms of the grievor's work were remarkably similar to those of Dr. Saltstone and Dr. Halliwell. The evidence is that the grievor brought to Mr. Whillans' attention, only two specific examples of alleged sexist comments on the part of Dr. Halliwell. There was no complaint about racist comments at all. Dr. Halliwell was not aware until the hearing that the grievor had concerns about any racist comments attributed to him. When the grievor's concerns about Dr. Halliwell's behaviour was brought to Mr. Whillan's attention, he directed Dr. Saltstone, as Dr. Halliwell's immediate supervisor, to speak to Dr. Halliwell. Dr. Halliwell admitted the comments that were attributed to him, butexplained that he had not intended to offend anyone. Dr. Saltstone made it clear that such comments were nevertheless not acceptable. The uncontradicted evidence is that' following this, Dr. Halliwell did not make any further sexist comments. What the evidence indicates is that there was a problem and that it was resolved. The evidence does not disclose any hostility between Dr. Halliwell and the grievor following this. On the contrary, the evidence indicates an amicable relationship between them. For example, the grievor admitted that following all of this, Dr. Halliwell and his family stayed with her for a few days while they were looking for a house of their own and that on one occasion she brought Dr. Halliwell a gift when she went for a conference to Ottawa. We have no basis to conclude that Dr. 24 Halliwell's assessment of the grievor's work was coloured by any hostility or improper motive. Adequate opportunity to meet job expectations The position of senior project officer contemplates an incumbent with skills in research methods acquired through formal education and experience. The grievor indicated in her letter of aDplication that she had skills in both qualitative and quantitative research methods. The uncontradicted evidence is that the Ministry's research unit predominantly used the quantitative methods of research which required an objective justification. This was contrasted with the qualitative research methods which are subjective and conceptual and are popular in academic circles. Given the uncontradicted evidence that the position required skills in quantitative research and that the statistics officers largely perform clerical and data management functions only, despite the grievor's understanding, it is inconceivable that Dr. Saltstone would have told Ms. Fox that it was ~'OK" that she was weak in that area. We find the employer's evidence credible, that given 'her assertion that she had skills in both types of research methods, given her extensive research experience and qualifications, the management believed that she will be able to "brush up" and overcome her weakness. As the Board pointed out in Re Shep~ard (supra), this Board is not enti'tled to review the merits of the employer's assessment 25 that the grievor lacked the requisite skills in quantitative research. While the employer also pointed out deficiencies in the grievor's work related to grammar, spelling and formatting, it was clear that the primary concern was about the lack of skills in quantitative research methods. The union did not seriously argue that'the employer's assessment of the grievor's work in this regard was wrong. The argument rather was to the effect that the employer had not provided the grievor adequate support and assistance to get over her weakness in this area, through proper training, directions and feed-back. The grievor agreed that Dr. Saltstone and Dr. Halliwell were experts in this field. Their assessment that she lacked an understanding of how to use Statistical terms, and lacked the ability to implement statistical analysis was not.contradicted by the union. As a general rule, the Board will consider the nature-of the feed-back provided to a probationary employee and the opportunity provided to remedy any shortcomings based on that feed-back, as important. However, those factors must be considered in the context of the particular case. The uncontradicted evidence is that the use of statistical terms and the performance of statistical analysis are basic skills,.which are acquired during university education. The Senior Project Officer position contemplates an incumbent fully equipped with the basic research skills, including skills in quantitative research. In a position such as this, we agree with the employer's position that it cannot 26 be expected to teach such basic skills to a probationary employee. While the grievor may not have received extensive training, directions or feed-back, we are of the view that the employer's obligation does not go as far as to require it to instil basic research skills in an employee employed in a position of Senior Research officer. In relation to clarity of directions, we note Mr. McFarlane's evidence that he had to return to his supervisors from time to time for clarification of instructions. The union saw this evidence as indicative of bad management and supervision. It is equally reasonable to argue that, given the nature of the position, it is incumbent upon the research officer to seek clarification if the directions provided are unclear or incomplete. There was a dispute in the evidence as to when the employer's concerns about the grievor's performance were brought to her attention. The union submitted that this was not done early enough in her probation to provide, her sufficient time to take remedial measures. The employer's position is that it was difficult for the employer to assess the grievor's skills until after she had completed a few research proposals, and that the concerns were raised at the 'earliest opportunity. As evidenced by her qualifications and publications, there is no doubt in our minds that the grievor is a very competent and intelligent individual. However, the totality of the evidence also leads to the conclusion that her area of expertise is geared 27 towards academic type of research through the use of qualitative research methods. Indeed, during her evidence, it appeared that she even believed that qualitative methods are superior. Thus she refused to agre~ with the management's suggestion that the ministry's research objectives are better achieved by quantitative research methods. Thus we cannot help but feel that she not only lacked the skills in quantitative research, but also did not agree with the management that those skills were required for the research objectives of the ministry. Based on the foregoing, we return again to the standard of review set out by the Board in Re Sheppard (supra). The Board held that "bad faith, if found, must be relatively serious". The evidence at best shows that there were disagreements between Ms. Fox and her superiors. There is nothing to suggest that these disagreements translated into a malicious intention to take reprisals against the grievor, particularly considering that the decision~ was taken by Mr. Whillans, who had no reason to dislike the grievor, and whose personal observations of the grievor.'s work corroborated and coincided with the criticisms made by Dr. Saltstone and Dr. Halliwell. The Board also held that a release can be deemed to be a discharge if it "did not flow logically or rationally from the facts". The example cited by the Board was a case where "there was simply no evidence that a probationary employee had not fulfilled or could not fulfil the job requirements". This certainly was not such a case. There was ample evidence that there were deficiencies in the grievor's .'work resulting from her unfamiliarity with quantitative research methods. Finally, the Board is entitled to ask whether "the employer's assessment that a certain set of facts justifies a release, is "irrational on any half-intelligent view of the matter." The employer concluded that the' grievor lacked a skill that was essential to effectively function in the Senior Project Officer position. A remedial programme consisting of reading assignments and weekly review meetings was implemented. The grievor was poorly evaluated by Dr. Halliwell at the review meetings on her comprehension of the reading assignments. The employer concluded that the grievor.had not improved and could not improve to the required level through the continuation of the remedial programme. Could it be said that employer's conclusions were "irrational"? 'As the Board pointed out in Re SheDDard, the rational relationship test should not be placed too high. The test is not whether this Board, based on the same facts might have come to a different conclusion. The Ministry's research projects predominantly employed quantitative research methods. The evidence indicates clearly that the grievor's expertise and'skills were in qualitative research. We accept the evidence of the employer's witnesses, who the grievor agreed were experts in the field of quantitative research, that the areas of difficulty experienced by the grievor, 29 use of statistical terms and statistical analysis, were basic research skills required to do quantitative research that~must normally be acquired through university education. When the employer detected a deficiency in the grievor's performance in this area, it attempted to assist the grievor in improving her skills by commencing a remedial programme. However, it found the results disappointing and unsuccessful in the first phases of the programme. The employer concluded that the grievor, had not acquired those skills and that she could not acquire those skills through continuing the remedial programme. We cannot conclude in these circumstances that the employer's decision to release the grievor was "irrational". While normally it may be reasonable to expect that an employer will carry through a remedial programme to a completion, where as here, the employer concludes from the first phases of the programme that the remedial programme cannot cure the grievor's deficiency in basic research skills, it was entitled to release the grievor. In summary then, based on the evidence we find that the grievor was released pursuant to section 22(5) of the Public Service Act, and this grievance is accordingly dismissed. Dated this 19th day of November, 1992 at Hamilton, .Ontario Uo Dissanayake Vice-Chairperson P. Ki~ Member D. Montrose Me.er