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HomeMy WebLinkAbout1996-0356ROSS97_04_03 __ OM_ EMPLOYES DE LA COURONNE 1111 ~~~~E~CE DE L'ONTARIO COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1Z8 TELEPHONEfTELEPHONE (416) 326-1. 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILEfTELECOPIE (416) 326-1. GSB # 356/96 OPSEU # 96E087 IN THE MATTER OF AN ARBITRATION Under - THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Ross) GRIEVOR - and - the Crown in Right of Ontario (Ministry of the Attorney General) Employer BEFORE R L. Verity Vice-Chair FOR THE G Leeb GRIEVOR Grievance Officer Ontario Public Service Employees Union FOR THE B Loewen EMPLOYER Counsel Legal Services Branch Management. Board Secretariat HEARING July 3, 1996 - October 16, 1996 November 18, 1996 January 13, 14, 15, 1997 . 2 DECISION ThIS matter anses as a result of a legal strike whIch began on February 26, 1996 and ended March 30, 1996 between OPSEU and the Government of Ontano. In a gnevance dated April 10, 1996, Mrs. SylVla Ross (the gnevor) alleges a VlolatlOn of the RetUrn to Work Protocol by the MInIStry'S refusal to allow her to return to the posltlon of Judges~ secretary As the partIes were unable to settle the matter, the gnevance proceeded In the normal fashlOn to arbltratlOn The heanng occupIed SIX days In whIch teshmony was gIven by eIght Wltnesses IncludIng four federally appoInted Judges. It IS necessary to state In outlIne the hIStOry of the case In order to illustrate the issue in dIspute. The gnevor has been employed by the MInIStry of the Attorney General as Judges' secretary for the Ontano Court of Justlce (General DIVlslOn) at K.1tchener SInce October 1992. FolloWlng a 17 year career as a legal secretary, SInce February 1989 she has worked for the Mmlstry In addlnon to the posItIon of Judges' secretary, there are two full-hIDe court reporters who, on a part-tIme basIs, perform secretanal dunes as reqUIred by the Judges. - Pnor to the commencement of the strike the UDlon and management entered mto an EssentIal Semces Agreement whereby they agreed, among other thmgs, as to whIch i 3 employees and the number thereof to be declared essentIal servIces workers. Under the terms of thIS Agreement, the gnevor was declared an essentIal semces worker In her capacIty as Judges' secretary and thus became subject to ss.40(1) and (3) of the Crown Emvloyees Collective Bargaining Act, 1993, as amended. SectIons 40(1) and (3) are as follows. ~ 40.- (1) Dunng a strike or lock-out. the employer 15 entltled to use, to proVIde essentIal servIces, such employees ill the bargammg umt as are necessary as provIded ill the essentlal semces part of the essentlal servIces agreement. (3) Employees who have been notIfied by the employer or trade umon that the employer 15 entltled to use them under subsectIOn (1) may not strike On March 22, 1996 Mr JustIce Salhany, then local admInIstratIve Judge of the Ontano Court of JustIce (General DiVIsIon) at KItchener, on hIS own motIon, declared one Erika Wuschnakowsla, to be an essentIal servIces worker (In her capaCIty as tnal co- ordmator) effectIve immedIately, ExhibIt 15 It will be observed that Mr JustIce Salhany's order dId not relate to the pOSItIon of the gnevor Unfortunately, the gnevor got caught up In the aftermath of Mr JustIce Salhany's order of March 22, 1996. Therefore, I thInk It IS useful to record, however bnefly, the aftermath of that order for the purpose of settIng the gnevor's actIons and the pOInt m Issue m proper perspectIve . 4 The exerCIse of JudIcIal power, on Its own motIon, to appomt Erika Wuschnakowsla an essentIal seIVlces worker called forth a VIgorous reactIOn on the part of the umon It was contended that the JudICIal order to declare an employee an essentIal seIVlces worker was an Improper mterference In a matter commItted to the umon and management by agreement under the Crown Emolovees Collective Bargaining Act. 1993 ~ Whether mterference or non-mterference resIdes m the order of Mr JustIce Salhany, m my VIew, It IS not necessary to decIde for the dIsposal of the Issue before me and accordmgly It would not be useful to pursue that mquuy I deal WIth the case of the gnevor, Mrs. Ross, and no other The effect of Mr JustIce Salhany's order was to mcrease the number of "declared" essentIal seIVlces workers above that agreed to by umon and management. On March 25, Local Uillon PresIdent Peter Hugo spoke to K.1tchener General DIVISIon Court SupeIVlsor Larry Ketchmark, adVIsed hill1 of the ill1pugned order of Mr JustIce Salhany and demanded that ill1medlate correctIve actIOn be taken. In the absence of a reply, Mr Hugo's reactIOn took the form of admItted retalIatIOn He attended at the K.1tchener General DIVISIon Court House on the mornIng of March 26, accompamed by Uillon Local Vice-President PattI ArrowsmIth and Uillon member JulIe Phair, for the specIfic purpose of callIng out the gnevor from the workplace In hIS purpose he succeeded. 5 ThIS bnngs me to an mCldent whIch may be referred to as the gnevor's alleged breach of the rules of confidentIalIty The CIrcumstances that gave nse to thIS alleged breach may be summanzed as follows. when Mr Hugo and hIS two umon colleagues went to the court house on March 26, they were subsequently Jomed by the gnevor who had left her workplace at Mr Hugo's call, pnor to the gnevor's arnval, the umon representatIves encountered Court SeTVlces Manager MIchel Gauvreau m the publIc area of the court - house, Mr Gauvreau admIttedly became agItated when he observed the arnval of the gnevor WIth her coat on and realIzed the sItuatIon, the partIes then WIthdrew to the pnvacy of the staff lunchroom where Mr Gauvreau mstructed the gnevor to return ImmedIately to her work statIon, and that failure to do so would be deemed abandonment of her posItIon, Mr Hugo mtelJected that Mr Gauvreau had no authonty to fire Mrs. Ross. The accounts of the verbal exchanges that followed are contradIctory Accordmg to Mr Gauvreau, the gnevor saId "Salhany had no busmess ordenng Erika back to work", ImmedIately addIng further words to the effect that the Judges had receIved dIrectIon from ChIef Justlce LeSage not to become mvolved In labour conflIcts dunng the cIvil seTVlce strike AccordIng to the gnevor, she made reference to a faxed memo from the executlve dIrector of the ChIef Justlce's office that she had "glanced at" earlIer that mornmg whIch referred to a Judgment, belIeved by her to be that of Mr JustIce GraInger, to the effect that labour dIsputes should be resolved between the labour board and management board. Mer - a further unpleasant exchange between the partIes the gnevor left the court house m the company of her umon colleagues. 6 It IS necessary to choose between these twQ verSIOns. Of mterest m thIS connectIOn IS a memorandum sent by ChIef JustIce LeSage to IIAlI RegIOnal Selllor JustIces, dated 23 February 1996, Re CIvil ServIce Strike", ExhibIt 17 No doubt that memorandum was delIvered to the office of Mr JustIce Salhany In It occurs the sentence, lilt IS llllportant that all JustIces remam lillpartlal dunng the cIvil servIce dispute II There was no phYSIcal eVIdence of a faxed memo that made reference to a Judgment of Mr JustIce Gramger It ~ seems to me that the gnevor's memory of the exchange 10 controversy IS rather vague On thIS pomt, I prefer Mr Gauvreau's recollectIon The external CIrcumstances appear to support hIS verSIOn of what was saId. Th~ memorandum of the ChIef JustIce was not marked IIconfidennalll or IIpnvate" The memorandum m Itself would not seem to loom large on the scale of confidennal1ty Nevertheless for the reasons gIven above, I find that the gnevor breached the rules of confidennalIty attached to the pOSItIOn of Judges' secretary Further, I find that the gnevor's walkout from the workplace on March 26 was a breach of the condItIOn of her employment as an essentIal servIces worker I pause here to state that the effect of my findmgs that the gnevor breached the rules of confidentIalIty and the condItIons of her employment as an essentIal servIces worker must be further conSIdered 10 the context of the Return to Work Protocol (the "Protocor') to - whIch I will refer more partIcularly at a later stage 7 On her departure from the court house on the mornIng of March 26, the gnevor qUIte Inadvertently carned away With her the keys to the court house IncludIng a key to the Judges' chambers as was her daily custom. GIven the events of the day, thIS InCIdent was a matter of great concern to the Judges to the degree that a secunty firm was employed to prOVIde overnIght secunty for the court house. When contacted the folloWing day the gnevor, In the presence of UnIon representatIves, returned the keys to SupervIsor Larry ~ Ketchmark. I am satisfied that the mCIdent was an madvertent takIng of the keys free of Improper motIve. I return to the sequence of events. FollOWing the gnevor's departure from the workplace on March 26, Mr Gauvreau met With several Judges to report what had transprred. AccordIng to Mr Gauvreau, the Judges were most upset by the events of the day Subsequently Mr JustIce Salhany made It clear to hlID that m therr opmIOn Mrs. Ross would not be allowed to return as Judges' secretary and would not be permItted access to the Judges' chambers. It should be stated that In the summer of 1995 dIfficulties between the gnevor and the Judges as to the acceptabihty of the gnevor's performance became qUIte pronounced and contInued thus until the commencement of the strike. I reserve for further dIScussIon the pros and cons of the dIscordant eVIdence beanng on thIS alllIDportant Issue. The strike ended March 30, 1996 FollOWing the usual ratification votes and the 8 sIgnmg of the Return to Work Protocol, ExhibIt 2, the employees returned to work on April 1 but the gnevor was met WIth a change of cucumstances. Mr Gauvreau explamed that she would be reassIgned to another pOSItIon WIthill the same classIficahon WIthout loss of pay, benefits or senIonty The pOSItIOn offered the next day was the optIOn of worlang eIther as a counter and lItIgatIOn clerk m the Ontano Court of Jushce (General DIVIsIon) or as a courtroom clerk m PrOVIncIal Court - both multI-illcumbent pOSItIons. The gnevor refuseg to dISCUSS any transfer and asserted that she had been hIred as Judges' secretary MeetIngs followed between the UnIon and management on April 2 and April 10 m an attempt to resolve the lll1passe but to no avail. On May 8, 1996 Mr Gauvreau adVIsed the gnevor ill wntmg that she was temporarily reassIgned to the pOSItIOn of counter and lItIgatIon clerk ill the general dIVISIon court house, ExhibIt 4 To bnng the hIStOry of the case up-ta-date, It-should be stated that she IS at present employed m the pOSItIon of counter and lItIgatIon clerk WIth unchanged clasSIfication pendmg the resolution of thIS matter As already stated, Mrs. Ross filed tbe gnevance dated April 10, 1996 In which she alleged a VIolatIOn of the Return to Work Protocol by the MinIStry's refusal to allow her to return to the pOSItIon of Judges' secretary The grievance, prepared by the gnevor In her own handwntIng, reads as follows. STATEMENT OF GRIEVANCE I gneve that I have not been returned to my pOSltlOn as Judges Secretary Slllce the enchng of the strike 9 on April I, 1996 as stated under Art. 111 of the return to work protocol. SETTLEMENT DESIRED 1 To be put mto my nghtful pOSItIon as Judges secretary lID.Inewately 2. CompensatIOn for hme smce Apr 1 till return to work 3 Mewcal costs mcurred dunng penod SlDce Apr lt96 4 Harassment to cease. . ~ At the outset of thIS heanng the umon moved for an order to amend the gnevance to Illclude the alleged breach of other paragraphs of the Protocol. To that request the board acqUIesced. Bnefly stated, the umon's pOSItIon IS five-fold. first, the MImstry's actIon III transfemng the gnevor to another pOSItion IS a repnsal contrary to paragraph 10 1 of the Protocol, secondly, the employer's actIons constItute dIscIplIne, III the form of a demotIon, for the gnevor's partICIpatIon III the strike contrary to paragraph 10.2 of the Protocol, thIrdly, eVIdence whIch predated the strike was Irrelevant and must not be consIdered, fourthly, the gnevor be returned to her pOSItIon as Judges' secretary; and III the alternative, gIven the MInIStry'S recogmtIOn that the proposed transfer was temporary, the gnevor should now be returned to the pOSItIOn of Judges' secretary Reference was made to the followmg authontIes. Ontario Public Sernce Emplovees Union and Carol Berry et al and The -Crown In RIght of Ontano (Ministry of Community and Social Services), March 13, 1986 (Ont DIV Ct.), and OPSEU (Union Grievance) and MinIStry of Finance, GSB #596/96 (DIssanayake) - 10 In OpposItIon, the employer's positIon summarily stated is as follows first, there was no breach of the Protocol III that the gnevor was transferred to an eqUIvalent posItIOn WIthm the same claSSIficatIOn (GAG 8) WIthout loss of pay, benefits or senIonty; secondly, the reaSSIgnment was necessary because the Judges were cntIcal of her performance both before and dunng the strike, had lost confidence ill her ability to perform the Job and requested that she not be returned to her posItIon as Judges' ~ecretary; thlIdly, that what occurred was a lateral transfer whIch was an appropnate response to an otherWIse Intolerable sItuatIOn Counsel candIdly acknowledged that, but for the request of the JudIcIary, the gnevor would have been returned as Judge's secretary followmg the strike. Counsel for the employer submItted the followmg authontIes: OPSEU (G. Beauoarlant) and Ministry of Transoortation GSB #1203/88 (Venty), OPSEU (Sidney) and Minzstrv of Transoortation GSB #1855/90 (McCamus), Re Bntish Columbia Emolovees' Union et al. and Attorney-General of British Columbia et al. (1983),2 D L.R. (4th) 705 (C.J S C.), Re British Columbw Government Emoloyees' Union and Attorney-General of British Columbia et al. (1985),20 D L.R. (4th) 399 (B C C.A.), and Bnruh Columbia Government Emplovees' Union v. Attorney-General of Bntzsh Columbw, Attorney-General of Canada. Intervener (1988), 53 D L. R (4th) 1 (S C C ) I turn now to conSIder the effect of the Protocol. Prepared as It was at the end of the strike, ItS Intent was to set aSIde whatever dIstasteful or Jarnng InCIdents that may have occurred In the heat of the occaSIOn and move ahead to restore a harmOnIOUs worlang rela tIOnshIp The matenal paragraphs of the Protocol, ExhibIt 2, read as follows. - 11 The parties agree that any Issue anSUlg out of the enforcement of tlus Protocol may be resolved under the gnevance and arbitratIon provlSIons of the Collective Agreement. The followmg applies to employees In the OPSEU bargauung umts, Including seasonal employees on luatus and for greater certaInty also Includes essentIal and emergency workers. 10.0 No Repnsals 101 Both parties agree that there will be no repnsaIs, d1scrimmahon or retalIatIon for any act or mactIon taken by any employee of the employer ansmg out of partiCipatIon In the strike. In addJhon, both parties agree that no employee shall Ill1tIate or participate In any repnSal, discrumnahon or retalIatIon for any act or InactIon taken by a manager or excluded employee dunng the strike. 10.2 It IS agreed that: (a) there will be no dJsclplIne taken agaIDSt any employee for any act done dunng the strike up to and Includmg March 29, 1996; (b) neither party willlll1tIate any gnevance or any clarm In any court or tnbunal for damages or other relIef, or any other claun. for any matter ansmg dunng the strike, and will d1scontInue any that have been Illluated; (c) In the Interest of re-establislung a harmomous workplace, both parties will reVIew any charges that may be outstanding and will determine whether there are any in wluch a recommendatIOn to discontInue any such charges nnght be made to the appropnate authonbes. 111 All OPSEU members, Includmg all essentIal seMceS workers shall be recalled to work on lusIher workmg day folloWIng the date of ratIfication by both parties. In case of shIft workers, normal shIft rotatIon that was In effect pnor to the strike shall resume and employees shall return to work on theIr next scheduled shIft. As I read the language of the Protocol, It would be dIfficult to conceIve how the parties could have more plamly mdIcated therr Jomt mtentIon that there be no repnsals, dISCr1IDmatIon, retalIatIOn or dISCIplIne for any act or mactIon taken by an employee dunng the strike . 12 In my VIew, the breaches of confidentIalIty and of the duty not to go out on strike when she Wq.S an essentIal servIces worker sprang out of, and were so Intimately connected WIth the strike that It must be held that they were acts or InactIOns ansIng out of partIcIpation In the strike The partIes deSIgnedly used broad and all encompassIng language In the Protocol, In my opmIOn, m order to mcrease rather than dlllllnIsh th~ number and character of acts that would be WIthm the protectIon of the Protocol. What then IS the effect of such a conclUSIOn? The effect of It must be that whIch the Protocol says, that there be no repnsals, dIscnnunatIOn, retalIatlon or dIscIplme agamst the gnevor for her 1ll1pugned acts or mactIon dunng the strike. To the Protocol I shall return later Much of the remamIng eVIdence was drrected to the relationshIp between the Judges and the gnevor The UnIon contended that the conduct and actions of the gnevor pnor to the commencement of the strike should be excluded as Irrelevant. WIth respect, I do not agree. I am of the VIew that the employer IS entItled to bnng forward all eVIdence allegedly relevant to the case. The admIssibilIty and relevance of such eVIdence and the weIght to be accorded to IS was dealt WIth as the case unfolded. A few words are necessary m order to illustrate the concerns of the JudICIary as to perceIved unacceptable performance on the part of the gnevor The Judges' chambers and library are located on the thItd floor of the court house. The secretary's desk IS SItuated near an electronIcally secured door leadmg to the Judges' chambers. To permIt entry to the 13 chambers, the secured door IS activated by pressure on a button attached to the secretary's desk. In my respectful VIew, Mr JustIce Ghthero In a letter of warm recommendatIon (to whIch he no longer adheres) of the gnevor, dated November 12, 1994 proVIdes an InsIghtful charactenzatIon of the nature and scope of the duty of the Judges' secretary at Kttchener - At that tune he wrote as follows, ExhibIt 14 TIns pOSItIon requires a lugh degree of profiCIency m secretanal skills, but much more. Much of the work done m Judges' Chambers 15 confidentIal and seOSltIve. While functIOmng as our secretary, she also has to frequently deal WIth members of the Bar or the publIc who need mformatIon or seek to have mput m the court process. The balance necessary m order to mamtam the mtegnty of our Chambers, and yet to be of aSSIStance to the Bar and the publIc 15 at tunes a dllficult one. Her dutIes mvolve not only the tradItIOnal skills of a secretary, but the qualItIes of an executIve secretary to five Judges, each of whom have dllferent approaches and expectatIons. I pass to Mr JustIce Salhany's testImony He was a member of the selectIon panel that InteIVlewed the gnevor and recommended her for the full-tune pOSItIon of Judges' secretary at Kttchener In December 1992, after wmnIng the competItIon, she was assIgned to that pOSItIon whIch she occupIed until March 1996 Accordmg to Mr JustIce Salhany, InItIally her performance was "very good" but began to detenorate WIthm a relatIvely short penod of tIme For example, she absented herself from her office desk for extended pen ods of tune WIthout notice to staff members which was dIsruptIve of theIr work and the telephOnIC commUnIcations WIthm the office. - 14 In the begmning JustIce Salhany thought that staff employees should resolve theIr problems wIth the gnevor themselves. However new problems presented themselves. the Judges' library fell three months behmd m updatIng; bills for servIces rendered to the Judges' office were not bemg attended to Nor dId the problems end there. The earlIer dIfficultIes WIth the gnevor's absences from her desk contmued so that occaSIOnally the Judges themselves hasi to attend to the secured door - Accordmg to JustIce Salhany the years passed WIthout matenal change m the SItuation 1995 mtroduced the events that would finally undo the foundatIOns of the ./ secretanal relatIOnshIp JustIce Salhany's account of these events may be bnefIy summanzed. a complamt was made to hun that the gnevor had scheduled a four week vacatIon whIch was one week more than she was entItled to; he spoke to Mr Gauvreau about the extra week and was adVIsed that It was m lIeu of accumulated overtune credIt whIch, (accordmg to the gnevor), had been approved by Justice Salhany; the Judge demed apprOVIng It and contended that he was never asked to approve It As It was an employer- employee matter I thmk It unlikely that JustIce Salhany was consulted. I accept hIS testImony on the pomt. I pause there. The gnevor was absent from the workplace two weeks ill July (vacatIOn) and two weeks ill August (vacatIOn) and on extended long weekends m August and September The gnevor testIfied that she was entItled to the extra tune-off by reason of accumulated overtune credIt. There IS supportmg eVIdence that she worked some - 15 overtlme. Mr JustIce Salhany stated that he had been told that the grIevor on some four or five occaSIOns had worked overtune nIghts and weekends but assumed that she was bemg paId. AssumptIon WIthout more IS not proof. It IS worthwhile to recall that Mr JustIce Salhany spoke to Mr Gauvreau about the extra week at or about the tIme of schedulIng hohdays. It seems to me that management, ~ haVIng been alerted m advance, had ample opportunIty to check the bona fides of her entItlement to the extra tlme off before she actually took It. I find no sufficIent eVIdence to contradIct her testunony of entltlement and accordmgly I accept her eVIdence on thIS pomt. In early September 1995 Mr JustIce Salhany decIded to convene a meetmg of all personnel for the purposes of aIrIng complamts. All the Judges and staff attended. Of suggestIOns to Improve the workplace there were many Among them was a suggestIOn by the grIevor that conSIderatIon be gIven to proVIdmg her WIth a specIal headset that would allow her mobility away from her desk, while at the same tune the ability to mOnItor the telephone. Cost made It prohibItlve saId JustIce Salhany At the conclusIOn of the meetmg, ~ however, he felt that there had been some resolutIon of workplace concerns. Four or five days later the grIevor went off on SIck leave for apprOJamately five weeks m September and October At that pomt, JustIce Salhany reassIgned the library dutIes to one of the court reporters. 16 On heneturn from medIcal leave the gnevor resumed her dutIes as Judges' secretary I pause to refer to a letter whIch figured prommently m the presentatIOn of the case On some date whIch the gnevor dId not fix exactly, except that It was m October 1995, she took the surpnsmg step of wntmg a letter of complamt agamst Mr JustIce Salhany to the CanadIan JudIcIal Council. The explanatIOn that she gave at the heanng was that she wanted the "harassment" and the "yellmg" to stop Cunously, a copy of thIS letter was neIther entered as an exhibIt nor read mto the record. It appears that the del1very of the gnevor's ongmalletter to the CanadIan JudIcIal Council went astray but a copy sent m November 1995 reached Its destInatIOn It dIed there, as bemg remote from the actIVItIes of the Council. Shortly thereafter the gnevor sent a memorandum, dated November 27, 1995, ExhibIt 13, to Mr JustIce Salhany It was dIVIded mto two parts, the main feature of the first part reads as follows As appropnately functIonal arrangements were not made to replace me dunng my absences, no one was trallled or able to fOIWard Judgement disks to Research and on my intenm returns, I dId not have the tune to do so I trust thIs will satisfy your concern WIth respect to a perceIved dehnquency on my part to complete my duties. It seems to me to proVIde a reasonable answer to what was a factually correct complamt by Mr JustIce Salhany about a back-log 10 forwardmg Judgment dISks to Research 17 The second part of thIS memorandum reads as follows: In future, as I am Judges' Secretary, an employee of the Mirustry of the Attorney General, I belIeve It would be more correct If any adnumstratlVe mqumes were directed to me from one of my managers, Larry Ketchmark or Michel Gauvreau. Of course, any directions that anyone of the Judges WISh to gIVe me With respect to secretanal aSSIgnments would not come under the heading of adrmmstratIve and those mstructIons would be addressed to me drrectly from the mdMdual Judge. It seems to me that the gnevor took a blunt stand on a pomt rather techmcalln nature. She went out of her way to remmd Mr JustIce Salhany of somethmg that obVIously he already knew It would appear to be an unusual way to mamtam a good workmg ./ relatIOnshIp WIth Mr JustIce Salhany Not surpnsmgly, Mr JustIce Salhany's reactIon to the gnevor's letter to the CanadIan JudICIal Council together WIth the Memorandum of November 27, 1995 was one of resentment, succmctly expressed thus. tilt made any form of commumcatIon impossible It was an IDlpossible sItuatIon" He went on to say that the Judges were lookmg to Mr Gauvreau to resolve the problem WIth that object m mmd, Mr Gauvreau proposed an exchange of theIr respectIve secretanes but the proposal was not agreeable to the gnevor because of her belIef that It would be simply a temporary aSSIgnment and that she would be reduced baSIcally to answermg Mr Gauvreau's telephone. I come now to the eVIdence of Mr JustIce GlIthero In Its substance It may be bnefly summanzed as follows. he had no problem WIth the gnevor for the first several years - but by the summer of 1995 he observed a detenoratIOn m her employment relatIOnshIp, he 18 spoke to tbe gnevor, tbe specIfic date he was unable to recall, Wltb regard to tbe "tense" atmospbere III the office, III September 1995 there was a JOIllt meetmg of Judges and staff to dISCUSS apparent problems III the office, the gnevor attended, and at one pomt m the meetmg she saId that her work load was very heavy JUSTIce Gl1thero went on to refer to an mCldent on January 24, 1996 whIch ha~ Ill1posed Itself In hIS memory' In the course of a tnal he undertook to fax to counsel, by 9 00. a.m the followIllg day, transcnpts whIch were properly edIted, to thIS end and pnor to 8.30 a.m the folJowing mornIng he amved at the gnevor's desk for her to type out bIS memorandum to counsel, she was on tbe telephone, he waIted for a few mmutes for her to get off the telephone and stood at her desk; she contmued to talk and he overheard two references to "the colleCTIve agreement", he then went to Mrs. Freeman, a court reporter, who dId the typIllg for hilll As regards the return of the gnevor as Judges' secretary, JusTIce GlIthero expressed the OpInlOn that "It wouldn't work from anyone's pomt of VIew mc1udmg SylVIa's she wasn't gettIng along Wlth other full-tIme staff and other Judges felt the same way" He also Illdlcated that III the event the gnevor was returned as Judges' secretary he would not be gIVIng her any confidentIal work to do unless no other secretary was available to do It. In cross-exarnmatlOn, he says that hIS concern regardmg the gnevor m confidentIal work was founded, III part, on the gnevor's act III leaVIng the court house to go out on strike 19 and takIng wIth her the keys to the Judges' offices whIch he belIeved had then gone out of her posseSSIOn. When Illformed that the gnevor handed the keys dITectly to Mr Ketchmark the followmg day, JustIce Ghthero commented tlIf that IS what happened It alleVIates some concern " The next sIgn post on the road leadmg to the present controversy was foreshadowed ~ by the replacement of the gnevor by Mrs. Freeman as secretary to JustIce GlIthero and was III the form of a memorandum, dated January 29, 1996, ExhibIt 10, from the gnevor to Mr Gauvreau To thIS memorandum I will return hereafter Bnefly stated, the eVIdence of Mr JustIce Sills may be stated as follows: he had been a JustIce of the Ontano Court (General DIVISIon) for approXlll1ately four and one-half years; he became Local AdmmIstrabve Judge at KItchener .on August 19, 1996, as regards the gnevor he stated that he had no concerns WIth her work as a secretary In fact, Mr JustIce Sills found the gnevor to be "an extremely competent secretary" He had concerns, however, about the gnevor's abilIty to get along With the Judges and the support staff. He found a further baSIS for thIS concern III hIS dIscuSSIOns With the other Judges regardmg the gnevor's pOSItIon III that she had lost the confidence of the Judges to a degree that "It was not possible" for her to return. Mr JustIce Mossop has been a Supenor Court Judge for 23 years and at present he IS a supernumerary Judge HIS bnef testrmony may be summed up as follows. he has no 20 reservatIOn about the gnevor's ability as a secretary; he referred to her hIgh qualItIes of servIce In a spmt of co-operatIOn and willIngness to work overtime, he regarded the gnevor's breach of confidentIalIty on March 26 as "an error In Judgment we all make errors. " I turn now to the gnevor She IS marrIed with three children age nrne, fourteen and ~ twenty-one She was proud to be the Judges' secretary at KItchener As to her workIng relatIOnshIp Wlth the Judges. It was great, "we were a team everybody on the thrrd floor" Her relatIOnshIp Wlth each of the Judges was equally satisfactory although "each had hIS own reqUIrements and a dIfferent way of domg thlI~gS." She conceded, however, that the relatIOnshIp Wlth Mr Justice Salhany dunng the last year was "very coo1." In cross-exammatlOn, she saId that m mId August 1995 she happened upon a memo from Mr Justice Salhany to Mr JustIce Ghthero when she had gone mto the latter's office, that In the memo Mr JustIce Salhany severely cntIcIzed her for shoddy work rn the library and for accumulatrng overtillle and that It basIcally destroyed her With regard to her memo to management, dated February 13, 1996, ExhibIt 7, rn whIch she illlputed a tlsmear campaIgn" against her on the part of Justices Salhany and GlIthero, the gnevor explamed It m thIS way' there was a steady and deliberate erOSIOn of her regular aSSIgnments so that her Job was down to VIrtually nothmg and It meant, as she belIeved, that her pOSItIon would be declared redundant. In the Wlsdom born of hmdsIght 21 she conceded that she should have handled the- sItuatIOn dIfferently I will return to the gnevor's eVIdence partIcularly as It relates to allegatIons of harassment Such III outlme IS the eVIdence III thIS case except for Mr Gauvreau's testImony whIch when put III context at a later stage will make the sense clear There will be some degree of duplIcatIOn of eVIdence smce I shall have to consIder the respectIve arguments - m more detail at a later stage It seems to me, however, that the nature of the case makes repetItIOn on a selectIve scale a vrrtue rather than a fault. ./' I thIllk It IS deSIrable to collect and classIfy under heads (1) and (2) the eVIdence on WhICh the employer sought to JustIfy the gnevor's transfer They are as follows. (1) Breach of the rule of confidentIalIty and breach of duty to remam on the Job as an essentIal worker, both of whIch occurred on March 26, 1996, and (2) AttItudmal and mterpersonalIty problems prejUdICIal to the operatlon of the JudIcIal Office. Up to a certam date there IS common ground that there was an all round good workmg relatIOnshIp m the Judges' workplace. It will be remembered that Mr Justlce Salhany stated that after a relatlvely short penod followmg the gnevor's engagement as Judges' secretary, her relatIonshIp WIth her co-workers was marked by dIfficultIes whIch 22 multIplIed so that by mId 1995 her employment relatIOns were marred by exceptIOnal dIfficultIes. Upon the eVIdence of Mr JustIce Sills, Mr JustIce GlIthero and Mr JustIce Salhany the atmosphere m the workplace became "very tense" towards mld 1995 It IS not surpnsmg that Mr JustIce Salhany as Local AdnllDlstratIve Judge at all relevant hmes would be the first Judge to become aware of such dIfficultIes. - For present purposes I have settled upon the begmDlng of 1995 as the date on WhICh some cntIcIsm began to present Itself agamst the gnevor Put m very general terms for the --purpose of comment, the gnevor's pOSItIOn was that the complamts in questIon were Wlthout substance, that JustIce Salhany was mlSlnformed and that no notIce was gIVen to mform her of the complamts except those m wntIng It would appear that the eVIdence of the gnevor and Mr Gauvreau are contradIctory on thIS pomt. It seems to me that there was a human factor whIch has pertInency here. It IS 1ll1portant to remember that on a fine pomt, memory of conversatIons becomes dIstorted and deflected m the mmds of honest Wltnesses who repeat these conversatIOns ill detail a year or more after the event. In lIght of the aforementIoned comments, I now enter upon the conSIderatIon of the case under the heads noted above 23 (1) Breaches of Confidentiality and Duty Mr JustIce Salhany, Mr JustIce Sills and Mr JustIce GlItherowere greatly concerned about the gnevor's breach of the rules of confidentIalIty and the other acts done by her on March 26 and 27, 1996 dunng the strike. I am not unmmdful of the publIc Interest and of the need for confidentIalIty and trust In the offices of the JudICIary Commandmg as these mterests are, m my respectful VIew, they do not supply me WIth a lIcence to change or ~ amend what has been wntten Into a umon-management agreement (the Protocol), whIch has Its source In law, Into somethmg else. The Immumty IS lImIted and not general. It does not cover cnnllnal acts. The llllmumty IS from repnsals, dlscnnllnatIon, retalIatIOn or dIscIplIne on the part of the employer from any of the gnevor's acts ansmg out of the course of the strike. In my VIew, the protectIOn of the Protocol encompasses the gnevor's Impugned acts both verbal and physIcal of March 26 and 27, 1996 and therefore I exclude them from consIderatIon m amvmg at a dIspOSItIon of thIS heanng. , (2) Attitudinal and Interpersonality Problems Prejudicial to the Operation of the : Judicial Office As already stated, I have settled upon the begmnmg of 1995 as the appropnate date on whIch (It was saId) sIgmficant cntIcIsm began to present.ltself agamst the gnevor Not (, the least of these complamts as alleged by Mr JustIce Salhany was that of repeated i I r , f I absences by the gnevor from her desk WIthout notIce whIch amounted to a dIsruptIve force r , , ! ~ [ m the workIng relatIonshIp WIth other secretanal support staff and the Judge~. ! t f. I. t , , I ! ! ~ ( 24 Accordmg to the testImony of JustIce Salhany, thIS alleged disruptIve force lead to stramed relatIOns between the gnevor and the secretanal support staff to the degree that It created a tense workplace The gnevor's posItIon tends toward a belIttlement of such complamts. I find It very strange that the local admmlstratIve Judge would convene an all personnel meetmg of Judges - and staff for the purpose of amng complamts If all was lIght and happmess m the workplace m mId 1995, as suggested by the gnevor This IS not to say that the gnevor was the sole cause of complamts. Other CIrcumstances requITe conSIderatIon In thiS connectIon It IS worthwhile to notIce the gnevor's testunony before the board. It was, m part, to thIS effect: With regard to her relatIOnshIp With Mr JustIce Salhany she saId that m the begmmng he was my bIggest supporter, but dunng the last year the relatIonshIp was "very cool.tI In cross-exammatIon, when questIOned about JustIce Salhany's eVIdence that complamts were made on a daily baSIS agamst the gnevor by co-workers she replIed "1 hadn't heard that before." When asked If she was saymg that she had no real problems With Mr JustIce Salhany, she answered "If he had a problem With me I wasn't heanng about Ittl In further cross- exammatIOn, she conceded that her complamt agamst Mr JustIce Salhany sent to the - Canadian JudiCIal Council m October 1995 contradicted her statement that she wasn't heanng about Mr JustIce Salhany's concerns. That was not all. Mr Gauvreau to whom Mr Justlce Salhany as admmIstratIve Judge would report complamts, stated that he sent the 25 grIevor memos cltmg deficIencIes m that she was mIssmg telephone calls, that she was forgettmg appomtments made for Judges, that she was curt to callers over the telephone and that the library was not bemg kept up The eVIdence of Mr Gauvreau was ImpreSsIve. He IS a man of mtellIgence and was not shaken m cross-exammatlOn. He saId that on January 25, 1996 Mr JustIce Salhany - complamed to hIm that Important phone messages were not bemg receIved by the Judges and that another Judge dId not get hIS typmg done because the grIevor was domg OPSEU busmess. In substance, hIS eVIdence m cross-exammatlOn contInued, m part: Q Mr JustIce Salhany was plckmg on Mrs. Ross wasn't he? A. No. He was clearly trymg to demonstrate to me that thIS person was not competent to be a Judges' secretary I dIdn't always agree With hIm. Q You saId that the atmosphere on the thud floor became pOIsonous after SylVIa Ross was hIred? A. That was the words of two Judges Mr JustIce Salhany and Mr JustIce GlIthero. Q DId you share that VIew? A. Yes. She would never change her attItude. I told her If she dIdn't she would never work out as a Judges' secretary Sh~ Ignored that. . 26 Q You dIdn't take any steps like sendmg her on a course? A. No What SylVIa needed can't be found m a course. I dIdn't know of any course that would benefit her Q No dIscIplme was gIVen to the gnevor at any tIme? A. No, not m the sense of progressIve dIscIplme I sent her memos suggestmg. changes. I pomted to her deficIencIes, that IS the beginnmg of dIscIpline. Q I show you ExhibIt 12, a memo m large pnnt from Mrs. Ross to Mr Justice Salhany A. After I heard of that memo I walked up to her desk and asked her what she was trymg to prove as It was a very accusatory memo drrected to Justice Salhany I never had any ill feelmgs towards SylVIa. It really bothered me that she would mamtam that attItude Q The Judges were upset on March 26 because of what you told them SylVIa had allegedly saId? A. Yes. In re-exammatIon Mr Gauvreau saId that the Judges told hilll that they dId not want the gnevor to return 27 Q "Isn't that the reason SylVIa was transferred to another posItIon?tI A. tlYes." As regards the last answer noted above, I thInk It IS llllportant to remember that, munedIately folloWIng the gnevor's letter to the CanadIan JudIcIal Council In October and November 1996, Mr JustIce Salhany told Mr Gauvreau that he felt the sItuatIon was ~ "Impossible" and conveyed the lIDpressIOn that he would prefer another secretary In order to be freed from the "pOIsoned atmospheretl In the Judges' workplace. The InabilIty of an IndIVIdual to harmonIze properly WIth supeIVlsors and peers does not fit easily Into any sIngle head to JUstIfy reasons for transfer In the case at hand It appears that the three supenor court Judges Involved In the heanng treated the gnevor's alleged defiCIencIes under head (2) as a matter of Incompetence and behaVIour Incomp~tible WIth her dutles as a Judges' secretary, VIewed objectIvely The Issue under head (2) IS complIcated by the fact that the gnevor was employed by the MInIStry of the Attorney General (the MInIStry) and assIgned to the positIon of Judges' secretary That fact calls for a charactenzatlon of the relatIonshIp between the MInIStry and the Judges as well as the relatIOnshIp betweeIl-Jhe Judges and the gnevor In her capaCIty as Judges' secretary I find lIDplIcIt In the relatIonshIp between the MInIStry and the Judges an lIDphed warranty that the .MInIstry should prOVIde the Judges WIth a person reasonably competent In skills and behaVIour as befits the pOSItIon of Judges' secretary 28 Competency and behavlOur IS Job specIfic. Performance IS to be vIewed on an objectIve standard. The settmg of a Judges' office IS dIfferent from many other areas of busmess m that It requIres, at all levels, a stnct adherence to rules of confidentIalIty, co-operatIOn and trust. Followmg the gnevor's return to the workplace In October 1995, relatIOns betwee~ the gnevor and the Judges steadily detenorated. As we have seen the gnevor wrote a letter to the CanadIan JudIcIal Council m whIch she lodged a complamt agamst Mr JustIce Salhany The gnevor tesnfied that there was a marked gradual erOSIOn of her Job assIgnments so that, m her own words, by February 1996 she was "not busy" Her testilllony on thIS pomt was not met WIth any counter-testImony On January 29, 1996 the gnevor wrote a memorandum to Mr Gauvreau, ExhibIt 10, as follows. Either Wednesday or Thursday of last week you advised me that It had been drrected that Lmda Freeman, a staff court reporter, would be fulfillmg the dutIes as Judges' Secretary for Mr Justice Gl1thero. There was no d1scuSSlon WIth me pnor to this drrection. It IS my firm belIef that Mr Justice Gl1thero is now working m conjunctIon WIth Mr Justice Salhany to give the appearance that staff reporters are required to do secretarial duties and, m so domg, make my posItion redundant I have had no problems m tbe past compJetmg .em: aSSIgnments for Mr JUstIce Gl1thero Recently, I put together qUite a large manual by way of photocopymg It 60 tunes, bmdIng It 60 tunes and prepanng it for couner to va no us court houses and at the same tune completmg aSSIgnments for Mr Justice Reilly, Mr Justice Sills and Mr Justice West. His dIctatIOn tapes are done m a tunely manner He prefers to do lus own filing I can thInk of no reason why a court reporter should be aSSIgned duties that have fallen under my Job descnptJon for over three years other than to once agam deliberately and WIthout ment, dIscredit my employment performance. 29 It also 1S my belief that as Mr Hams contmues w1th hIs re-organizatIon plans, that court reporters mIght be m Jeopardy of losmg therr staff pOSItIons. It 15 obvtous to me that both Judge Salhany and Judge Ghthero are protectmg therr personal court reporters. It would be commendable 1f 1t were not for the fact that they are playmg games With someone else's employment. I fmd the entrre SItuallon mtolerable and sad. Slgned ItS. Ross" (Mrs.) Sylvta Ross I thmk It necessary to look at a further memorandum from the gnevor to Mr Gauvreau and Larry Ketchmark, dated February 13, 1996, ExhibIt 7, In order to put both In con text. It was as follows. It has fmally been. disclosed to me why Mr Just1ce Glithero has re-assIgned secretanal duty requrrements he may have to Mrs. Lmda Freeman. Allegedly, Mr Just1ce Ghthero had work for me to do and I was unable to complete tlus work m a tunely manner I categoncally deny any such request. In fact, as you are aware, so many of my dulles have been re-aSSIgned to other court reporters that I fmd myself frequently With tune on my hands, a new expenence for me. There was no tune that Judge Ghthero ever approached me With any aSSIgnment. Judge Glithero s demeanour to me has been one of very cold. emulatmg the same treatment I recelVe from Judge Salhany At no tune did management d1scuss tlus change WIth me. At no tune did anyone ask me 1f 1t was true, that Judge Ghthero was unable to get an aSSIgnDlent completed by me. At no tune was I gIVen a chance to defend myself from these allegatIOns. When I do not know what 15 bemg saId agamst me, I am totally defenceless. As tlus is deflmtely an adIll1Illstrallve matter, I would suggest that the matter be dealt WIth by management. To allow these mCIdents to cODSlstently and COI1tmuously occur only contributes to a smear campa1gn that I truly beheve 1S bemg unplemented agaInSt me. It 1S my behef that management 15 not only aware of these machInations but 15 19nonng them on mstructIOns from the Judiciary pnnc1pals mvolved and alloWIng those persons mvolved to put me in a pos1tIon of no possible recourse as I have no one to speak on my behalf or protect me from unsubstant1ated accusallons. Signed "SylvIa Ross" I am satIsfied that both memoranda sprang out of the InCIdent of January 24, 1996 already set out In detail above, In whIch Mr JustIce Ghthero, In an emergency SItuatIon - 30 turned to hIS court reporter Mrs. Lmda Freeman for typIng and faxmg assIstance when he was unable to engage the attentIOn of the gnevor who was taHang on the telephone , The sIgmficance of the mCldent of January 24, 1996 IS lost 1f one looks at It m IsolatIOn. Mr JustIce Gl1thero testIfied, in part, to thIS effect: there was a deterioratIOn m the gnevor's employment relatIOnshIp, by the summer of 1995 it had become a tense office.,? he spoke to the gnevor WIth regard to the atmosphere m the office. I accept Mr Jusnce Gl1thero's eVIdence. It follows that the Judges' office was a tense worlang place before the mCIdent of January 24, 1996 In Itself It mIght appear to be a small mCldent It seems to me, however, that a faIr mference can be drawn from It as the cuImmanng incIdent that caused Mr JustIce Gl1thero to turn exclusIvely to Mrs. Freeman to perform hIS secretanal dutIes. The gnevor tesnfied that on her return to work In October 1995 Mr JustIce Salhany contInued to find fault WIth her work and kept leavmg "memos" of complamts about her work performance. Of the many alleged memos, she offered In eVIdence only one whIch does not appear to be a very weIghty one. It was a reply to a pOSt-It note, undated but apparently wrItten 10 February 1996, left on her desk by Mr JustIce Salhany on whIch he had wntten -the words "Who opened my mail - R.E.S II In response the gnevor left a typed message 10 large pnnt, ExhibIt 12, 10 these words. 31 I DID NOT OPEN YOUR MAIL AND I DO NOT APPREOATE A POSTE-IT NOTE STUCK TO MY DESK IMPLYING THAT I DID i HAVE WITNESSES WHO ARE AWARE THAT ALL MAIL HAD BEEN OPENED THAT CAME FROM DOWNSTAIRS. JUDGE REILLY AND LINDA FREEMAN ACfED AS MY WITNESSES. ~ What effect thIS message had on Mr JustIce Salhany I do not know Of Interest was Its effect on Mr Gauvreau To him It was a chilling thing. At that tmle he was waItIng to see whether the gnevor would be able to resolve the dIfferences between herself and Mr JustIce Salhany Mer he became aware of that memo, Mr Gauvreau saId "I walked up to her desk and asked her what she was tryIng to prove as It was a very accusatory memo dIrected at Mr JustIce Salhany I never had ill feelmgs towards SylVIa. It really bothered me that she would maIntam that attItude." AccordIng to Mr Gauvreau, on a number of occaSlOns he suggested to the gnevor that she do thIngs dIffe.rently to be more acceptable. Further, Mr Gauvreau went on to say that the gnevor maIntaIned that JustIce Salhany had to change and not her as she had done nothIng wrong ObVIously, In Mr Gauvreau's VIew, the gnevor was overreactIng to the SItuatIon. The. gnevor had and has a nght to speak out on her own behalf WIthIn reasonable hunts. I thInk that her letter to the CanadIan JudICIal Council was, however, a most unfortunate step As noted preVIously, neIther the letter nor a copy was entered Into the record of the board. That It was a deliberate and purposed letter IS beyond argument. In 32 other words, It was no spur-of-the-moment decIsIon. The letter was wntten and dIspatched m October 1995 Followmg an apparent mlscamage m the mail a copy was sent m November whIch reached Its destmatIOn. The CanadIan JudIcIal Council dIsmIssed Its contents as remote from Its actIVItIes and the gnevor was so adVIsed In February of 1996 It was a letter that provoked great resentment. In my VIew, thIS was an llllproper ~ letter m that It betrayed a failure on the part of the gnevor to apprecIate the standard of confidentIalIty and trust InCIdental to the pOSItIon of Judges' secretary Not surpnsIngly, the effect of the letter was to put an end to any worlang relationshIp between her and Mr JustIce Salhany It is not WIthout sIgmficance to notIce that Mr Justice Salhany dId not deal WIth the SItuatIOn m silence. He notIfied Mr Gauvreau llllmedIately that "It was an llllpossible SItuatIOn" and that the Judges wanted Mrs. Ross off the thud floor - that IS out of the Judges' office as Judges' secretary In my VIew Mr Gauvreau put hIS finger on the problem m no uncertam terms. In hIS words "She would never change her attItude. I told her that If she dIdn't she would - never work out as a Judges' secretary She Ignored that." The gnevor IS undoubtedly an mtell1gent person. I Jom m Mr Gauvreau's assessment that she had an attItudmal problem I gamed the ImpreSSIOn that she can 33 become locked mto a complete and utter belIef m her own opmIOn supersedmg whatever else her senses and mtellIgence tell her She knew that a Judge and hIS secretary must work together m a SpIrIt of co-operatIon, trust and confidentIalIty The SItuatIon on the eVIdence can be faIrly mferred - the gnevor -found Mr Justice Salhany's manner mtImIdatIng m repeatedly raIsmg complamts as to her work performance. Clearly she was not receptIve to cntIcIsm whether mented or unmented. - Not surpnsmgly, the SItuation produced a personalIty conflIct WIth the result that the gnevor formed a fixIty of purpose or a mmdset whIch I thInk explams her attItude when everythIng else told her that It was Incompatible WIth and unsUItable to the dutIes IncIdental to the posItIon of Judges' secretary In thIS connectIon I thInk It worthwhile to quote the gnevor's clOSIng words of testImony, "I should have dealt WIth It dIfferently once I saw problems appear In hIndsIght, it mIght have been better to have taken a reassIgnment." Employer-employee relatIons must encompass certaIn features of decency and faIrness. I do not put employer (Includmg supenors) - employee relatIons on a baSIS of feelIng I see It as a matter of respectIve dutIes. It IS the duty of every employee ill the daily workmg enVIronment to put forth her or hIS best efforts to get along WIth co-workers and to follow faIthfully and loyally mstructIons of supenors. 34 In the present case, the Judges owed a duty to those worlang under them - that IS the gnevor and secretanal support staff - to treat them faIrly and decently and not to subject them to mdIVIdual harassment. Harassment can rob an employee of self-respect and render competent performance of work Impossible. "Harass" IS defined in The Shorter Oxford EnglIsh DIctIOnary thus. 1) to wear out, or exhaust WIth fatigue, care, trouble, 2) to harry, lay waste, 3) to trouble or vex by repeated attacks, 4) to worry, dIstress WIth annoYlll.8 labour, care, Importumty, mIsfortune, etc. As already mentIOned, the gnevor alleged that she was provoked mto wntmg her letter of complamt agamst Mr JustIce Salhany because she "just wanted the harassment to stop I wanted the yellmg to stop" The question whIch requIres declSlon IS whether Mr JustIce Salhany harassed the gnevor as alleged. The llllpressIOn whIch I gamed of Mr JustIce Salhany IS that he was an actIve and VIgilant local admmIstratIve Judge who was moved by practIcal consIderatIOns. As to alleged defiCIencIes whether on the part of the gnevor or on the part of the secretanal support staff, I thmk he would speak hIS milld dIrectly, forcefully and repeatedly He testIfied tbat he had no ill feelIngs agamst the gnevor I take hIS words to mean that he respected her as a person but that over the duratIon of the~ quaSI employer-employee relatIOnsbIp he came to the conclusIOn that she lacked a proper understandmg of the total role of Judges' secretary In exammatIOn-m-chIef JustIce Salhany offered the suggestIOn "It may be that she couldn't handle the work." 35 Mrs. Ross (the gnevor) struck me as a pleasant, spIrIted and strong willed person I thmk she has courage and was not tllllorous in her dealmgs WIth Mr JusTIce Salhany as she demonstrated on March 26, 1996 On that day she decIded to leave the Judges' office and she left. It IS plausible that Mr JUSTIce Salhany from tIme to tIme grated on her nerves WIth - hIS complamts of alleged deficIencIes or InSUffiCIencIes. GIven her attItude and emotIOnal state, the gratmg of nerves could easily be translated m her mmd to perceIved harassment. It IS not altogether useless to notIce that counsel for the gnevor put no questIOns to Mr JustIce Salhany In respect to the Issue of harassment, nor IS It WIthout sIgmficance that Mr Gauvreau testIfied that, m hIS OpInIOn, JusTIce Salhany dId not pIck on the gnevor After a careful consIderatIon of the whole of the eVIdence m the case I am not persuaded that Mr JustIce Salhany harassed the gnevor as alleged m the penod leadmg up to the letter whIch was sent to the CanadIan JudICIal Council. There was, however, a gradual erOSIOn of work gIven to the gnevor follOWIng her letter of complaInt to the JudICIal Council. A plausible argument mIght be built on a submIssIon of harassment. However, I have conSIdered thIS aspect of the case and could find no suffiCIent support for It. FollOWIng the letter to the CanadIan JudICIal Council Justices GlIthero, Sills and Salhany lost all confidence In the gnevor's Judgment as to the - standard expected of the Judges' secretary It follows that there bemg, m my OpInIOn, sufficIent cause to lessen her dutIes, It does not constItute harassment. 36 As regards the matter of warnIng the gnevor as to performance concerns, Mr Gauvreau's repeated admonItion, that If she dIdn't change her attItude she would never work out as a Judges' secretary, proVIded clear notIce to Mrs. Ross that hIS warnIngs would be gIven effect. Two final questIOns present themselves. First, what was the reason establIshed b~ the employer for the gnevor's lateral transfer? True it IS that Mr Gauvreau stated that the reason the gnevor was transferred out of her pOSItIOn was because the Judges dId not want her as Judges' secretary TheIr reason was that they (JustIces GlIthero, Sills and Salhany) had lost confidence In her abilIty to perform the job as a result of her attItude whIch created tension WIth co-workers and whIch they found dIsrupTIVe of the workplace. Further there were breaches of the confidentIalIty and trust essentIal to the pOSITIOn of Judges' secretary All of the above was preJudicIal to the operaTIon of the Judges' offices at Kttchener The second questIon IS whether the' reasons gIven would JUstIfy the lateral transfer of any employee m the pOSItIon of Judges' secretary at Kttchener One must VIew the reasons obJectIvely GIven the findIngs of fact regardmg the gnevor's defiCIenCIes In the workplace and her breach of confidence', as eVIdenced by the letter to the CanadIan JudICIal Council, I am of the opmIOn that the employer was JustIfied in acung upon the Judges request that the gnevor be transferred. - 37 I find no eVIdence of condonatIon follOWIng the grievor's letter to the CanadIan JudIcIal Council. The delay between November 1995 and February 1996 IS explaIned by the fact that Mr Gauvreau clearly recogmzed that he would have to transfer the gnevor unless there was a reconcilIatIOn between the gnevor and the Judges. In thIS connecTIon, It IS noteworthy that the gnevor herself sought the IntervenTIon of Mr JustIce Sills WIth a VIew to openIng conversatIons between herself and Mr JustIce Salhany The subsequent "silence" - told her that such mterventIon was meffectual. As already IndIcated, to resolve the llllpasse for the benefit of the gnevor Mr Gauvreau made vanous appeals to others to aSSIst hIm to achIeve a reconcilIatIon but to no avail. The OPSEU strike Intervened and put to an end further efforts on the part of the MInIStry and accordIngly a transfer was set In motIon whIch came to frUItIon. I find thIS to be a very dIfficult case. The gnevor's pOSITIOn as Judges' secretary although not declared redundant on paper was such that, In realIty, she no longer filled the dutIes of Judges' secretary at Kttchener EffectIve commUnIcatIon between the gnevor and at least two of the Judges had come to an end. The board has gIven full effect to the terms of the Protocol and Its deCISIon rests on grounds that In no way compromIses or counters the terms of the Protocol IncludIng the prOVISIons that there be no repnsals, dISCrImInatIOn, retalIatIOn or dIscIplme by reason of partICIpatIOn m the strike. The grounds on whIch the transfer rests all preceded the strike 38 and were not condoned. GIven the unusual CIrcumstances of this case, the transfer of Mrs. Ross to an eqUIvalent posItIon WIthIn the same classIfication wIthout loss of pay, benefits or senIonty was an appropnate response on the part of the employer to a dIfficult sItuatIOn For the reasons set out above, I feel constraIned to the conclusIOn that the gnevance be dIsmIssed. ~ DATED at Brantford, Ontano, thIS 3rd day of April, 1997 ~~~