HomeMy WebLinkAbout1982-0420.Tkach.83-11-21IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between: OPSEU (Iris Tkach)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of Correctional Services)
Employer
Before: J. W. Samuels Vice Chairman
W. Walsh Member D. B. Middleton Member
For the Grievor: G. Richards Grievance Officer Ontario Public Service Employees Union
May 5, 1983
R. Anand Counsel Gowling & Henderson
Barristers & Solicitors July 13 and August 25, 1983
For the Employer: P. Van Horne Staff Relations Officer Personnel Branch Ministry of Correctional Services
Hearings: May 5, 1983 July 13, 1983 August 25, 1983
Page
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
On the Griever's Situation to January 1982 . . . . . . . . . . . . . . . . 5
January to June 1982 . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
The Incidents referred to in the Letter of June 21, 1982 . . . . . . . . . 19
1. May11,1982 . . . . . . . . . . . . . . . . . . . . . . . ...19
2. May27,1982 . . . . . . . . . . . . . . . . . . . . . . . . ..lg
3. May 28, 1982--telephone message . . . . . . . . . . . . . . . . . 21
4. May 20, 1982--purchase order . . . . . . . . . . . . . . . . . . 22
5. June 3, 1982 . . . . . . . . . . . . . . . . . . . . . . . . . . 22
6. June 4, 1982--filing orders . . . . . . . . .'. ; . . . . . . . . 23
7. June 4, 1982--processing requisitions . . . . . . . . . . . . . . 24
8. June 4, 1982--1PO No. 45047~. . . . . . . . . . . . . . . . . . . 24
9. June 15, 1982.. . . . . . . . . . . .~. . . . . . . . . . . . . . 24
10. June 16, 1982 . . . . . . . . . . . . . . . . . . . . . . . . . . 24
11. June,1982 . . . . . . . . . . . . . . . . . . . . . . . . ...25
The Letter of June 21 and after . . . . . . . . . . . . . . . . . . . . . 25
Conclusion................................28
Exhibits.................................32
Introduction
Mrs. Iris Tkach was a Clerk 2 General at the Hamilton-Wentworth
Detention Centre and she grieves a disciplinary letter given to her on June 21,
1982. This is the first in a series of grievances against disciplinary action
taken against her by the Ministry, culminating in discharge. While apparently
each action is related to one or more incidents, everything must be viewed
within an overall context of poor relations between the grievor and her super-
visors and fellow employees. We heard much evidence over three long days of
hearing concerning this overall context, and we will deal with that evidence
in more detail than would be necessary for the disposition of the particular
grievance before us, in the hope that our review will avoid the necessity of
the parties repeating some or all of this evidence during the course of their
presentations to the later Board which will hear all the other grievances
together.
The letter of June 21. 1982, is signed by Mrs. T. Veska, the Office
Manager at the detention centre, and reads as follows:
This will serve to notify you that your job performance
is not at an acceptable level, and further. that continuance
of this performance will not be tolerated. As a result your
merit increase. normally due August lst, 1982, will not be
recommended. Secondly, it will be recommended that your
anniversary date be changed to November lst, 1982 in order
to allow‘you an additional three-month period in which to
make a significant improvement and demonstrate you can perform
at an acceptable level thereby qualifying for the merit
increase. If your performance does not substantially improve
in that interval the merit increase may be further deferred
and/or more severe action taken.
On your performance appraisal of January 25th, 1982 it was
noted that the next merit increase would not be approved unless
your performance improved. Some improvements were noted for a
very short period of time thereafter, however, this noted
progress stopped and acceptable job performance has not been
maintained.
. ‘-
In an effort to assist you in making long-term, Iasting
improvements I am enclosing a partial list of recent
incidents, all of which have been discussed with you. You
are advised to review the list carefully in the hope that
you can benefit positively from these errors, not only to
avoid making similar mistakes in future, but more importantly,
learn to react more appropriately when confronted with con-
structive criticism and/or training.
It is hoped that you will adopt a positive approach towards
improving your job performance in order to successfully
fulfill the responsibilities of your position.'
Attached to this letter is the following "partial list of recent incidents":
May llth, 1982 Improper distributionof copies of a
memorandum from the Office Manager.
May 27th, 1982 Improper submission of travel claims to
Accounts Branch, and failure to ensure
copies of claims kept on file at the
institution.
May 28th, 1982 Documentation and processing of an
incomplete telephone message to the
Office Manager.
Improper completion of Purchase Order
No. 195506.
June 3rd, 1982
June 4th. 1982
Improper completion of IPO No. 45038.
Improper filing of orders;
Processing requisitions without the
proper approval.
June 15th, 1982
June 16th,1982
June, 1982
Improper completion of IPO No. 45037.
Mailed outgoing inmate letters without
postage.
Improper processing of invoice.
Documentation of misleading information
on Request to Purchase forms.
At the outset of this letter, Mrs. Veska says that the grievor's.~."job
performance is not at an acceptable level". To define this problem, in her
‘* ‘.I ‘,. re \ 3.
second paragraph, Mrs. Veska refers to the performance appraisal of January 25,
1982. wherein it was noted that the griever's next merit increase would not be
approved unless her "performance" improved. In this earlier performance appraisal,
Mrs. Veska had made the following remarks:
During the past six months since Mrs. Tkach's last appraisal
her work performance as a Clerk 2 General has been satisfactory.
During this period she has been absent 4% days on three
occasions due to illness.
Also during this period she was given a temporary assignment
as Senior Clerk at the Clerk 4 General level. Although she
performed most of the duties in a satisfactory manner, she was
unable to carry out some duties of the position due to her poor
interpersonal relations, which were noted as unsatisfactory in
her last appraisal.
Mrs. Tkach was unable to instruct and work with other staff
that normally report to the position of Senior Clerk. The
situation reached a'level where a staff member refused to.work
with Mrs. Tkach. It became obvious that she was unable to
function as a unit leader during her acting appointment.
On December 2nd, 1981 Mrs. Tkach was interviewed and counselled
regarding her failure to maintain an acceptable level of inter-
personal relations with her co-workers. She was informed at
that time that improvements would have to be made. Unfortunately,
we have been unable to detect any improvements in this area.
Her efforts in improving relations, ie. not speaking to or
avoiding other staff is also not acceptable. The incidents of
providing misleading/incorrect and annoying repcrts or statements
regarding insignificant issues have continued, and her peers have
openly voiced their complaints.
It is our opinion that Mrs. Tkach has not earned her merit
increase. However, due to pay administration policy which
requires the supervisor to formally notify the employee that
the increase will be deferred unless improvements are made in
her performance, and our failure to comply to this WUiMWnt,
this merit increase is approved.
However, this appraisal will serve to notify Mrs. Tkach that
the next merit increase will-not be approved and/or more severe
action taken if her interpersonal relations do not improve.
We note here that the grievorls overall performance was evaluated in two resPects--
"work performance" and "interpersonal relations". The Office Manager appears to
have been satisfied with the griever's efforts in the former category, but was
dissatisfied with the griever's progress in the area of "interpersonal relations".
Thus, when Mrs. Veska speaks of the griever's "performance" in the letter of
June 21, and refers back to her "performance" in the appraisal of January 25,
we find that, at the outset, she is telling the grievor that the Ministry con-
tinues 'to be dissatisfied with the griever's efforts in the area of "interpersonal
relations".
In the third paragraph of the letter of June 21, Mrs. Veska directs
the grievorls attention to a "partial list of recent incidents". All of these
incidents relate to "work performance", not 'interpersonal relations". Thus,
Mrs. Veska isnow telling the grievor that the Ministry is dissatisfied not only
with her efforts in the field of "interpersonal relations", but also in the
area of "work performance". However, even with respect to these recent incidents,
the Office Manager indicates that her primary purpose in drawing them to the
griever's attention is so that the grievor wi-11 Ilearn to react more appropriately
when confronted with constructive criticism and/or training". Again, we have
a reference to "interpersonal relations", this time directed to the relationship
between the grievor and her supervisors.
In sum, the letter of June 21 must be taken to warn the grievor that
the Ministry has concerns about her "performance." in two'areas--"work performance",
indicated by several recent incidents; and "interpersonal relations", indicated
by a failure to improve the faults noted in the performance appraisal of
January 25, and the griever's failure to react "appropriately" to constructive
criticism and training.
5.
In her grievance, Mrs. Tkach requests that her appraisal "be amended
to accurately reflect my job performance."
Onthe Grievprfs.Situatign.to.January.!982
Mrs. Tkach joined the Ministry in March 1980 as a 24-hour casual
employee, working four 6-hour days per week in inmate records at the Hamilton-
Wentworth Detention Centre. On January 5, 1981, she became a full-time employee
as a Clerk 2, working in purchasing and accounts payable.
She is married to a high school teacher. and is the mother of two
children. Before her employment with the Ministry, she held various jobs.
From 1959 to 1964, she was secretary and receptionist in the office of a medical
doctor. From 1965 to 1972, she was secretary to the President of an industrial
concern. She left this job to care for her newly-adopted child., From 1976 to
the.present, she has taken a number of courses at community colleges. These
involve psychology, communication skills, human relations, microcomputers, and
word processing.
The grievor was'interviewed for the full-time position in January 1981
by Mrs. Veska, and Mrs. M. Johnstone, the Assistant Office Manager (but a member
of the bargaining unit). The grievor recalls being asked by Mrs. Veska if she
was aware of the "game playing in the office among the girls". By this remark,
Mrs. Tkach took Mrs. Veska to mean incidents such as changing an employee's
leaving time on the attendance sheet. ignoring a new employee's questions when
training, and blowing small incidents out of proportion and going to management
with them. The grievor alluded to the experience of several other employees,
but all of this evidence was hearsay and of no probative value to this Board.
Mrs. Veska was not asked to testify in chief or on cross-examination about this
interview. Mrs. Johnstone testified that she could not recall Mrs. Veska
mentioning the "game playing", but she acknowledged that there were problems
in the office at the time. However, the problems which Mrs. Johnstone recalled
were to do with Mrs. Tkachls relationship with the other employees in the office
during the grievorls time as a casual employee. Mrs. Johnstone was not specific
in this regard because the grievor did not join her department until after she
became a full-time employee.
In her testimony, Mrs. Tkach referred liberally to a number of incidents
and.personalities; offering evidence about events 'involving these other persons.
We will not relate all of this evidence because some of it was all hearsay,
uncorroborated, generally not credible, and of no probative value to this Board
or any later Board dealing with the,other grievances. However, we will relate
the griever's evidence which was first-hand. Much of it was not the subject
of Ministry evidence, and therefore stands as uncontradicted testimony..
The grievor suggested to us that one of the reasons for the.problems
in the office was "nepotism". She said that the Deputy-Superintendent's daughter
worked in the office, and the wife of a Deputy-superintendent at another car-
rectional facility worked on the switchboard. Indeed, she acknowledged that her
own hiring could be characterized as 'nepotism", because she was a social friend
of Mr. OuCheneau, the Deputy-Superintendent at the Hamilton-Wentworth Detention
Centre. She never did explain how this "nepotism" created problems in the
office.
“. ; .
7.
Shortly after she became a full-time employee, the grievor typed a
letter to an employee named S. Capra concerning the latter's success in a
competition for the position of Records Clerk. At our hearing the grievor
testified that, at the time in early 1981. she raised this promotion with Mrs.
Johnstone because the grievor was concerned that the promotion was being made
without the holding of a competition, as was required by the collective agreement.
Mrs. Tkach testified that Mrs. Johnstone told her that it would be in Mrs. Tkach's
interest to keep quiet and to keep the Union out of the matter. Mrs. Johnstone
doesn't recall this conversation. In any event, the Ministry introduced in
evidence the memorandum that the grievor typed at the time (Exhibit 12). In
spite of the griever's testimony that she typed a letter on Ministry letterhead,
we accept the document as the one the grievor typed. even though it is on a
memorandum form, because the griever's initials are on the form identifying
her as the typist. And the form says clearly that the promotion came as a result
of a competition. In addition. the Ministry introduced the competition notice
. (Exhibit 14), and we accept that it was posted in the Hamilton-Wentworth Detention
Centre. though the grievor is adamant that it was not. Mr. F. Preston, a
correctional officer, testified that he couldn't recall the notice being posted,
though he looked at the notice board regularly ~around that time. However, the
notice says that the competition was restricted to persons at this detention
centre, and Ms. Capra must have responded to it because she was successful in
the competition. Put simply, we do not accept the griever's evidence that there
was no canpetition, and we have great doubt that the conversation she recalled
with Mrs. Johnstone ever did take place.
In the spring or early summer of 1981, Mrs. Veska was to be on maternity
leave. Mrs. Tkach testified that she recalled Mrs. Johnstone calling her into
8.
her office to ask if the grievor would mention to Mr. DuCheneau Mrs. Johnstone's
interest in filling in for Mrs. Veska. This would be good for the grievor and
Mrs. Johnstone would help the grievor to get the acting Clerk 4 position,
replacing Mrs. Johnstone. Mrs. Johnstone does not recall this conversation,
but does recall asking the grievor if she was interested in doing the Clerk 4
position. Mrs. Johnstone testified that, as soon as it was known Mrs. Veska
would be off on maternity leave, she knew she'd replace Mrs. Veska for the
duration of the leave. Mrs. Johnstone does recall that the grievor was very
free with the fact that she was a personal friend of Mr. DuCheneau. In our
view, Mrs. Johnstone is to be believed on this matter. We do not accept that
Mrs. Johnstone called the grievor in to have the grievor seek Mr. DuCheneau's
ear on Mrs. Johnstone's behalf.
In fact, the two women both moved up to handle the replacements
necessitated by Mrsl Veska‘s maternity leave. Just before this occurred, while
she was being trained for the Clerk 4 position, the grievor was at Mrs. Johnstone's
desk and found in it a stale-dated cheque. The grievor testified that she was
concerned about being responsible for the cheque if the auditors found it and she
raised the matter twice with Mrs. Johnstone, but was told to replace the cheque
in the drawer, and that the auditors wouldn't go in the drawer. The grievor saw
Mr. DuCheneau and mentioned,the cheque.. He told her to see Mrs. Veska, which
she recalls doing. Mrs. Johnstone recalled Mr. DuCheneau speaking to her about
the cheque, and that its presence was easy to explain. She can't recall an
angry conversation with the grievor over the cheque.
The grievor testified that, in September 1981, Mr. DuCheneau, the
Deputy-Superintendent, told her in her home that if she became a problem because
.? ‘e
a 9.
of her Union activities, she'd be "out the front door". Her husband asked how
this could be and the Deputy warned her that "we have ways and means of getting
rid of people". Mr. OuCheneau was not called as a witness. Thus,this testimony
stands as uncontradicted evidence given under oath.
Around the beginning of October 1981, the two women may have crossed
swords again over the accountable advance account. It was Mrs. Tkach's responsi-
bility to issue the cheques, and she kept a record of the cheques issued on the
stubs. She testified that Mrs. Johnstone began issuing cheques without making
the appropriate entries on the stubs, and Mrs. Tkach was concerned that this would
bother the auditors and she would be held responsible. She recalls telling
Mrs. Johnstone that her practice made it hard to keep the ledger, and Mrs. Johnstone
was annoyed. She then testified that she went to Mr. DuCheneau with her problem
and it ended after that. Mrs. Johnstone has no recollection of these events.
In November 1981, the grievor entered a competition for a position in
the Personnel Department. She was not successful. She testified that during
the selection process, she overheard Mrs. Johnstone talking with two employees--
Sharon Naylor, and Ann Garafalo--and Mrs. Johnstone was gathering complaints '
against the grievor. Mrs. Tkach said that she heard this conversation through
a wall between two offices. Mrs. Johnstone recalledthe griever's application
for the position, but testified that she did not go out collecting complaints
about the grievor. Rather, the employees came to Mrs. Johnstone with complaints.
Having observed the two witnesses giving their evidence, and bearing in mind
the matter to be explained next, we find that Mrs. Johnstone's version of these
events is more likely than the.grievor's account.
;I .
2 .
10.
Near the end of November 1981. Mrs. Tkach attended a meeting with
Mr. R.D. Phillipson, Superintendent of the Hamilton-Wentworth Detention Centre,
in the presence of Mrs. Johnstone. Mr. Phillipson was not called to testify
concerning this meeting. Mrs. Johnstone had very little recollection of this
meeting. She testified that she recalled Mr. Phillipson saying that the
grievor was a problem. Mrs. Tkach testified at length about her recollection
of the meeting. She said she asked for Union representation at the outset but
was ignored. Mr. Phillipson was red in the face and shouting. He said she was
making the other women uneasy by taking courses. He asked what the grievor was
trying to prove. He said that his own secretary was very anxious. He said that
the grievor was not an honourable person. She testified that the Superintendent
told her that she caused Ms. Naylor and Garafalo stress by trying to act as
their supervisor and telling them that she (the grievor) would do their appraisals.
He told Mrs. Tkach to stay away from Jackie Gardner (the OPSEU staff representative
in Hamilton), and that he was aware the grievor was always running to the .staff
representative. He told her to look to her husband, an educated man, for guidance
with her interpersonal problems, or better she could go into a dark room to
reflect on things. He had no complaints about her work as a Clerk 4, but her
interpersonal relationships overshadowed the work performance.
Mr. Phillipson reduced his recollection of the meeting into a memorandum
placed in the grievor's personnel file on December 2, 1981 (Exhibit 8). It reads:
The above employee was interviewed and counselled today con-
cerning her failure to maintain an acceptable level of inter-
personal ~relations with co-workers. Mrs. M. Johnstone, Acting
Office Manager, was present throughout the intervlew.
./!,
7 ~ 11.
Mrs. Tkach's July 27th, 1981 Annual Employee Appraisal Report,
describing the need to improve interpersonal relations, was read.
She was reminded that at that time it was pointed out the necessary
changes that must be made, however, improvements have not been
forthcoming; in fact if anything, the problem has deteriorated
to the point where she was now evaluated as "a nuisance:' to
other employees.
Co-workers have reported her behaviour to Local O.P.S.E.U.
representatives who subsequently passed them to senior institution
managers and in other cases complaints/remarks have been made
directly to senior institution managers.
In order that there was no misunderstanding as to what was being
discussed Mrs. Tkach was advised that her work output in quantity
and quality terms was quite satisfactory, however, her behaviour
had become so disruptive that her satisfactory work performance
output is now totally over-shadowed.
Much time was spent outlining specific examples to illustrate
interpersonal relation problems, e.g. unduly involving herself
in other employees' duties, assuming supervisory responsibilities
she does not have, questioning employees about matters of a non-
business nature, improper teaching methods, and unabashed
gossiping about other employees.
It was pointed out to Mrs. Tkach that it was not only in the
best interest of herself and evervone else in the Administrative
Area to work harmoniously, it~~ras-their.right.to.work~in~an~envlron~ ment frfte~of.t~e.ur?gleasantness~sbe.bad.prpvo~~~.wb~tber,.acc~~ental~y
or de!Wrate!y_caused.
In conclusion, Mrs. Tkach stated she knew interpersonal relations
were a problem and would again attempt to make the necessary
improvement. She also said she understood what had been told
to her as well as the need to behave in a harmonious, productive
state with co-workers. She was also informed that should her
disruptive behaviour continue there would be no alternative but
to release her from employment, particularly in view of the fact
this was now the second time in less than a six-month period that
a member of senior staff had found it necessary to discuss inter-
personal relations with her. Mrs. Tkach was also advised that
management was prepared to assist her with resolving these
problems successfully should she feel the need.for such assistance.
The grievor filed a grievance against this memorandum. She testified
that Jackie Gardner spoke with Mr. Phillipson and was told to hear what the other
women in the office thought about Mrs. Tkach before proceeding with the grievance.
. 12.
The Union staff representative did call a meeting of the office staff in the
staff lounge at the detention centre. Apparently the other women were not com-
fortable in the OPSEU offices. The grievor attended and recalls hearing someone
say she spoke too softly. Her friendship with Mr. DuCheneau was mentioned.
Ann.Garafalo supported Mr. Phillipson's memorandum. Mrs. Johnstone spoke about
the griever's reaction when her errors are pointed out to her. Jackie Gardner
told the other employees that the grievor was free to work in an atmosphere
"free of garbage" just as they were. Instead of trying to get the grievor fired,
they should give her a chance. Mrs. Tkach testified that Ms. Gardner told the
others to come to her if they had complaints about the grievor, rather than
going to management. After the meeting, Jackie Gardner told the grievor that now
Mrs. Tkach knew what she was up against. It was very "sticky", and the grievor
withdrew her grievance against Mr. Phillipson's memorandum. Mrs. Tkach testified
that the Union staff representative told her to go about her Union activities
quietly, and comnented that the problems in the office were due to ,management
bringing in friends and relatives.
After this counselling from Mr. Phillipson, the grievor withdrew her
name for re-election for Union steward. She had been the Steward from September
to December 1981. And, she testified, she "went underground:' with her Union
activities. She felt there was an anti-Union atmosphere in the office and was
urged by Ms. C. Nairn. a fellow employee, to drop her Union activities.
Mrs. Johnstone testified that she never heard of any office employee
being subjected to anti-union action by management. She is a member of the
bargaining unit herself. She seemed to know very little about the griever's
Union activities, and we have serious doubts that Mrs. Johnstone's actions in
.I
. 13.
the whole story were related in any way to the grievorls work in and support for
the Union.
In late 1981, Mrs. Veska returned from maternity leave, Mrs. Johnstone
resumed her position as Assistant Office Manager, and the grievor returned to
her position as a Clerk 2.
And so 1981 closed for the participants in this matter.
Jeouary.to_?uoe-1982
The new year opened with the performance appraisal of January 25, which
we have already quoted. Then matters were quiet.until the end of April.
The grievor testified that she had been going on Union ';educationals"
since September 1981. In late April,~she attended a weekend "educational" in
Owen Sound where she announced her candidacy for the Union's women's provincial
coordinator (she was elected in May), and could not get back to the office on
Monday morning because the roads had been cut off by a snowstorm. She had to
tell Mrs. Veska she was away from work because she had attended a weekend Union
meeting. When she returned to the office, she was told that her desk would be
moved out of the Personnel Office and back to the general office "for security
reasons". Her desk had been in the Personnel Office since early, 1981, though
she'was always doing accounts payable work. The grievor says that she couldn.'t
understand the move, because she had relieved in the Personnel Office and had
never abused the confidence placed in her. Mrs. Johnstone was not directly
involved in this move, but recalled it was done because Mrs. Tkach couldn't
. I 14.
get along with other employees. Mrs. Veska was not asked about the matter
at the hearing.
The grievor testified that her colleague, Ms. Nairn, told her she
had'been foolish to attend the meeting in Owen Sound and she'd have to suffer
the consequences.
The griever's work assignment, from the beginning of May through
June to the time of the letter grieved here, is somewhat unclear. The grievor
testified that she spent much time relieving on the switchboard. She,had much
less work than before, and often was not allowed to carry a task to completion.
Instead of Mrs. Veska simply checking her work and returning it, now Mrs. Johnstone
would pre-screen it before Mrs. Veska and then Mrs. Johnstone would get the work
back from Mrs. Veska. And Mrs. Johnstone would photocopy the griever's errors.
If this photocopying took place, this Board was given no evidence of it by the
Ministry. As well, the grievor testified that file cabinets were locked to her.
Mrs. Johnstone testified that in this period there were.no changes in the grievor’s
duties from her previous work assignment, but she does recall a period when she
monitdred the griever's work and testified that it might have been in May/June
1982. Mrs. Veska wasn‘t asked about this. We have concluded that the griever's
account of this period is to be preferred, and we accept that her work assignment
and degree of supervision did change somewhat in May/June 1982. In particular,
her work was monitored on an "active," basis. Errors in work were noted down by
Mrs. Veska and Mrs. Johnstone, and these notations form a significant part of
the letter grieved here.
On Sunday, May 2, the grievor became ill. Also on that day, she and
her husband noticed that their phone was not working properly - callers could
1
!.’
.
15.
not hear what was said on the Tkachls end of the line. On Monday morning, the
griever's husband left for school (we have already said that he is a teacher),
and was to call Mrs. Veska to tell her that the grievor was ill and would call
in when the phone was repaired. He did not call Mrs. Veskd as soon as he got
to school, but left his call to after 11 AM. In the meantime, around 9 AM,
Mrs. Tkach recalls a call from Mrs. Johnstone. She said she heard Mrs. Johnstone
speak, but couldn't make her reply heard because, of the problem with the phone.
It was repaired at around 2 PM, at which time she says she called Mrs. Veska
to report her symptoms, to tell her she would see the doctor the next morning,
and that she would call again after seeing the physician. Mrs. Tkach testified
that Mrs. Veska responded that a memorandum would go in the griever’s file because
the illness was not reported at 8:30 AM, and the grievor's'husband should have
acted more responsibly. This prompted a letter fran the grievorls husband to
Mrs. Veska (Exhibit 9), dated May 3:
Dear Mrs. Veska:
Re: Reporting of Absence
Mrs. Iris Tkach
..~.XMaY,.l982 . .._...-.
I called you at 11:15 a.m. today to inform you that my wife,
Mrs. Iris Tkach, was ill today, and could not report for work.
I further explained to you that our telephone service was
almost inoperative because of a very loud hum, making conver-
sation unintelligible unless shouted loudly. Because of this
hum, I was given the task of reporting her illness to you.
In the hustle and bustle of starting a new school week after
arriving back from out of town with a championship team, I made
the human error of forgetting to report to you, at least until
11:15 a.m., and not at 8:30, as I was supposed to. For this
oversight please accept my sincere and humble apology.
During our conversation, you enquired as to the nature of my
wife's illness. Further, you indicated to me that, although you
accepted my explanation for the delay in contacting you, you
would still make a report in Mrs. Tkach,'s file, for future
reference. For the record, would you please enter this letter
with your report? I am enclosing an additional copy for your
convenience.
3. -
16.
1. Mrs. Tkach was ill on 3 May, 1982, complaining of severe
flu-like symptoms.
2. Mrs. Tkachls telephone was almost useless, requiring repair
service.
3. Mrs. Tkach felt too nauseous to leave the house to call in.
4. Mrs. Tkach asked me, her husband, to report for her from
my place of employment.
5. I forgot to report to you at 8:30 a.m. as intended. I did
not report to you until 11:15 a.m.
6. Mrs. Tkach made an honest and reasonable effort to report
to you, fully relying on me, her husband.
7. The responsibility in Mrs. Tkach’s failure to report lies
with me.
Once again, I wish to convey my apologies for any inconvenience
I may have caused. Thank you for fulfilling my request to include
this letter with your report.
Yours truly,
Edward Tkach
On May 4, the grievor saw her doctor, She was told to stay off work for the rest
of the week, or until she was feeling better. He gave her a medical certificate
to this effect. She called Mrs. Veska and told her she had a medical certificate
indicating that she should stay off work for the week. that she had two prescrip-
tions, and that she would return to work earlier if she felt better. Mrs. Veska
told her to call in every day. On May 5, she left a message for Mrs. Veska
around 8 AM - she was still ill. On May 6, she left a message for Mrs. Veska
with Bonnie Nicholson. That afternoon. Mrs. Veska called and accused the grievor
of not calling in. When the grievor replied that she had left a message for
Mrs. Veska with Eonnie’Nicholson. Mrs. Veska responded that the grievor should
speak with Mrs. Johnstone or herself personally. Mrs. Veska asked the grievor
-
I. . 17.
why her line had been busy (the grievor says that she left the phone off the hook
to have peace and quiet), what her symptoms were again, and took the opportunity
again to say that the griever's husband was not very responsible for not calling
her at 8:30 AM on the Monday. On May 10, the grievor returned to work and gave
her medical certificate to Mrs. Veska. They also exchanged notes. The grievor
wrote:
This letter is to explain my understanding of the occurrences
on Thursday, May 6, 1982.
On Tuesday, May 4, 1982, I called you after seeing my family
doctor, Doctor Robert Chu, as you requested. I stated then that
he had advised me to stay home the rest of the week, as I had
a relatively serious throat infection and a type of flu. I
also stated that he gave me two prescriptions and a medical
certificate. 1 also said that if I should feel better, I would
return sooner, but if I did not, I would stay at home. You told
me to keep reporting.
On Wednesday, May 5, 1982, I called in at 8:15 a.m., and left a
message that I was ill. Again, on Thursday, May 6, I called in
shortly after 8:00 a.m. and spoke to Ms. Nicholson, asking her to
relay a message to you.that I was still feeling very poorly.
You called me at home on Thursday afternoon. In that conversation
you:
- questioned me as to why I did not call in (when I did)
- had me explain why my telephone was busy, as you tried
to call several times
- had me explain my symptoms again, when I already told you
I was bringing a certificate from the doctor
- told me my husband should be more responsible when given the
task of reporting my illness. (On Monday he apologized
while speaking to you, and later wrote you a letter. On
Monday afternoon and Tuesday, I apologized)
Although I did call in every day, I feel that I .should not have
been required to call in every day after stating I was following
doctor's orders and would bring a medical certificate. Because
you did insist that I call, and because of the telephone call on
Thursday, I felt that,you were harassing me and trying to inti-
midate me. It was as though my explanation, and a doctor's
diagnosis were not good enough. In summary, there appeared to me
to be no choice but to call the O.P.S.E.U. office and enquire about
the procedures for reporting illness'and the usage of the home
telephone during working hours. Should you have called to ask
about my health, your call would have been most welcome and appre-
ciated.
18.
Please put this letter along with the attached medical certificate
in my file.
Mrs. Veska replied:
In my reply to your letter of this date.please accept my
apology for the anxiety you experienced due to my misunder-
stood call of May 6th. It is obvious from your letter that
you perceived the entire content of the conversation in a
negative light.
If you recall, my first question to you was how are you? (you
sounded shocked and upset at my inquiry). I added that as you
had not called me as I had requested I therefore did not
know your condition. A message left for me prior to office
hours merely advised me that you would not be in to work that
day. On May 4th you advised me that your doctor had prescribed
medication and that you would wait and see what effect it had -
thus I requested that you call and let me know your condition.
At no time on May 4th did you state that you would be off all
week as advised by your doctor.
The telephone conversation was carried out under adverse con-
ditions due to your defensive response. I reminded you of
institutional policy that you are required to speak with a
supervisor and mentioned the busy tone on my earlier attempts
to call in view of the telephone problems you had on May 3rd.
In conclusion, I would like to add that I have never harassed
staff nor been accused of harassing staff. I see it.as an
imnature and senseless act and find it most disturbing that you
see me in this light - it makes working relations both difficult
and unpleasant.
Apart from this memorandum, we have no evidence from Mrs. Veska on this week.
She wasn't asked about it.
Finally, both Mrs. Johnstone and Mrs. Veska testified generally that
the grievor did not get along with her fellow employees, refused to acknowledge
her errors when they were pointed out to her, and did not take kindly criticism
or suggestions for improvement.
19.
We cmne now to the specific incidents referred to in the letter of
June 21, (982.
,... 1
On May 11, the grievor typed a memorandum over the signature of
Mrs. Veska which was to go to eleven unit supervisors with a printout attached
to each showing the department's furnishings. The memorandum appears to have
been addressed to the shift supervisor but showed clearly to whom copies were
going. Mrs. Veska signed the document and returned it to Mrs. Tkach for copying
and attachment of the printouts. The grievor did copy it, but then she put all
eleven copies in the shift supervisor's mail without the printouts. It had been
assumed by Mrs. Veska that the grievor would return the copies to her for
attachment of the printouts. Mrs. Tkach acknowledged in her testimony that the
memorandum did refer to the printouts. She also offered her return that day
from illness as a reason for the error; In our view, it was a clear mistake.
It would have been better if the grievor simply acknowledged it.
The report of this day differs dramatically, depending on whether one
listens to Mrs. Tkach or Mrs. Johnstone. The incident involves the travel claims
prepared by the grievor and submitted to head office. The claims come in a
triplicate form. They are separated into three batches, each is added up (the
total should be identical), then one batch goes to head office, one goes to
Mrs. Johnstone's files. and one is later split up with copies of the claims
going to the particular employees' files. Apparently, there was something wrong
20.
with a batch which went to head office in Toronto and a Mr. N. Thomas called
to get things straight. And this is where our story becomes confused.
Mrs. Tkach testified that she received his call and told him she was
on switchboard at the time but would call back. She told Mrs. Johnstone about
the call when Mrs. Johnstone returned from lunch and Mrs. Johnstone told the
grievor to handle it. Mrs. Tkach then got the office copy of the batch from the
files, called Noel Thomas and they proceeded over the phone to compare their
batches. First they discovered that a letter from staff training authorizing
one of Mr. Garstang's claims had not been copied and kept in the batch still held
at the detention centre. The claim itself was there, but not a copy of this
letter. Mrs. Tkach asked him'to send her a copy of the letter. Then, at the end
of the batches,which were in alphabetical order, it was discovered that Mr. Thomas
did not have a claim from Mrs. Veska. This was why his own addition did not
agree with the taped total (attached to the batch) submitted by Mrs. Tkach.
Mrs. Tkach suggests'that this claim fell off the batch in the mail though it
was in an envelope. When her discussion with Mr. Thomas was over, Mrs. Tkach
reported all to Mrs. Johnstone. And the grievor thought no more of the incident
until it was raised on June 21.
Mrs. Johnstone does not recall these events like this at all. She
testified that itwasshe who received the call from Noel Thomas. When they
compared the two batches, it was discovered that the detention centre’s copy was
missing the Garstang claim and Mr. Thomas didn't have Mrs. Veska's claim. And
when this was raised with Mrs. Tkach, she insisted that she never had one for
Mr. Garstang. However, Mrs. Johnstone did find Garstang's claim in the ledger.
21.
Furthermore, the copies were not in alphabetical order, and Mrs. Veskals claim.
did not come last, therefore it is improbable that it just fell off.
Having observed the witnesses giving their evidence, we conclude that
Mrs. Johnstone's version of these events is to be preferred. The significant
thing here is not the errors themselves but rather Mrs. Tkach's attitude towards
the incident, and her attempt to explain it all away. Parenthetically it should
'be noted that, .over two days of hearings during which she gave evidence, the
grievor acknowledged she might have been wrong only once, and ,that was with
respect to the memorandum on May 11. It is only human for employees to make
errors. Normally an employer has little significant grounds for complaint if
the employee acknowledges the error and doesn't commit it again. The griever's
testimony concerning the events of May 27 is perhaps the best illustration of
her approach to her own mistakes.
3 . ..~.May.~~..198?~~tele~hon$.message
On May 28, while she was on the switchboard, the grievor took a
message for Mrs. Veska. She relayed all the details concerning the caller,
but did not note down the substance of his call. Mrs. Veska testified that the
caller later told her that he had left a full message with Mrs. Tkach. Mrs. Tkach
did not say whether or not the caller had left a full message. In any event,
Mrs. Veska returned the call, and then, upon learning the reason for the call,
had to ask the caller to wait while she looked up the information he needed.
In our view, it is generally common sense to record the message if the caller
mentions the purpose of his call. However, on the other hand, it is a trivial
mistake not to record this, if the error is an isolated one of its type, and is
22.
hardly the sort of error which should be recorded for later disciplinary purposes.
Having observed the witnesses giving their testimony on this matter, one has the
profound feeling that this testimony best illustrates the general state of the
relationship between Mrs. Veska and the grievor -the grievor adamantly refusing
to,accept any responsibility for an error, and the Office Manager blowing the
error up into something far more than it deserves.
We had no substantial evidence on this matter, and it can serve no
part of the MinistryIs just cause for the disciplinary action. Apparently it
doesn't even refer to a purchase order, but rather to a different form--a request,
to purchase.
5,.-_June 3 1982 -~a.--..
Orders are recorded in a logbook. The purchase orders are recorded.
in numerical order. Sometimes, when a supplier needs a purchase order number
quickly in order to ship out emergency supplies, the number will be given to
him before the order is typed out. In this case, it may happen that the number
is left out of the logbook for some time, and a space will be left for it.
This happened for purchase order no. 45038 which had been typed by
Mrs. Tkach. However, it is not clear who first took the purchase order out and
gave the number to the supplier. It appears to have been Mrs. Johnstone, given
her own evidence that she normally gives the number to suppliers. Nor is it
clear who's responsibility it was to ensure that the number was entered in the
logbook--the person who first handled it, or the typist who filled it in.
23.
Mrs. Johnstone recalls the grievor denying vigorously that she had
had anything to do with the order, and Mrs. Johnstone had to prove to the grievor
that she had typed the order. The grievor recalls having been sick about that
time, and she first asked Mrs. Johnstone whether or not she had had anything
to do with it. But she acknowledged she had typed it when shown her initials
on the form. Mrs. Veska recalls the grievor coming into her office to complain
that Mrs. Johnstone had yelled at her in frontofother staff. But Mrs. Veska
had heard no yelling and said so to the grievor.. Mrs. Veska never had any
other complaints fromher staff about Mrs. Johnstone.
gut of this evidence, one can conclude nothing about the grievorls
work performance. The error may be attributable to Mrs. Johnstone, in which
case it is understandable that,the grievor would be peeved that she was being
blamed for the missing number in the logbook. The whole incident seems to be
simply an example of the bad relationship between the grievor and her supervisors.
The facts underlying this entry in the letter of June 21 are not at
all clear. Mrs. Johnstone couldn’t recall any specific incident of misfiling,,
and never gave an example to Mrs. Tkach. Mrs. Johnstone simply testified that
Mrs. Tkach misfiled some items and Mrs. Johnstone asked the grievor to leave the
filing to her.
There is nothing here on which this Board could base just cause for
discipline.
!. 24.
7 ~.-..3Une.~,-~~82~~RrQCesslo9_re4uisitiaos
On June 4, a requisition was found in the mail bag without Mr. Phillipson's
signature. Mrs. Veska and Mrs. Johnstone testified that it was the grievorls
responsibility to see that his signature was on the form before it went out.
Mrs. Tkach had obtained Mrs. Veska's signature and the form had been returned to
the grievor for the Superintendent's signature. Mrs. Johnstone recalled the
grievor acknowledging her error at the time. The grievor testified that, at
this time, she was not getting forms back from her supervisors, and that the
first time she heard of this complaint was on June 21.
We are inclined to accept the evidence here of Mrs. Veska and Mrs.
Johnstone.
8 . . . . . June.4.,-1982~~!~0.f(Q,-45047
We have no evidence concerning this matter.
On June 15, a bundle of inmate mail was found in the mail bag with no
postage. It was Mrs. Tkach's responsibility at the time to put the postage on
the inmate mail. But, the evidence discloses that it could well have happened
that scmeone else threw the bundle into the bag without Mrs. Tkach having the
chance to put on the postage. We find that there is nothing here for which this
Board can find Mrs. Tkach was responsible.
10. June 16,.1982
It is the practice for original copies of invoices to be sent to head
25.
.i
office for payment, and copies are filed at the detention centre, On June 16,
an original invoice was found in the files at the detention centre, and investi-
gation disclosed that Mrs. Tkach had sent the copy to the head office for payment.
The original was not marked "Paid". and this might have led to a second payment
of the same invoice. When Mrs. Johnstone brought the matter to Mrs. Tkachls
attention, the grievor denied vigorously that she had had anything to do with
the invoice. But Mrs. Johnstone found that Mrs. Tkach had sent in the copy to
head office with a notation that the bill had not yet been paid (this certification
is required when a copy is sent in for payment). We find that this was indeed
a mistake committed by Mrs. Tkach, but the most serious part of the incident
appears to be the way in which she responded to Mrs. Johnstone when the error
was.first discovered.
11 . . ..June.~1982
~Because of all the complaints about her work, some of them relating
to the time it was taking her to do tasks, Mrs. Tkach began making small notations
on invoices, etc., coming to her desk to show when the documents reached her.
Mrs. Veska and Mrs. Johnstone testified that these notations led to confusion
concerning their meaning. Mrs. Tkach said that she put the notations in a place
whichwas not confusing. In any event, she was asked not to do this, and it
appears she did stop. There is nothing here on which to ground discipline.
TCe.Letter.of.June.?l andafter
We have already seen the discipline letter of June 21, 1982. On that
day, Mrs. Tkach met with Mrs. Veska and Mrs. Johnstone to discuss the matter.
Their recollections of'this meeting differ. Mrs. Veska testified that she wanted
I ., 26.
the grievor to acknowledge her errors and to coinnit herself to improve. Instead,
the grievor denied it all and made rude accusations against Mrs. Veska. The
Office Manager recorded her version of the meeting in a memorandum on June 24
as follows:
At approximately 15:45 hours June 21st, 1982 Mrs. M. Johnstone,
Assistant Office Manager, and the undersigned met with the
above noted employee for the purpose of discussing the above-
mentioned letter.
Upon commencing to read the letter Mrs. Tkach asked whether
I had the authority to "change her anniversary date." I advised'
her that I was recoanaending that she not be granted her merit
increase which, if accepted, by the Superintendent would change
her anniversary date. She questioned management's authority to
do this several times during the meeting. (She did not question
the reasons nor whether itwasjustified.)
It was pointed out to Mrs. Tkach that not only were the errors
in her work unacceptable, but that her reaction when errors were
pointed out to her was of greater concern, ie. her almost spon-
taneous attempt to deny any error. She further demonstrated
this very point at the meeting by stating that she had not sent
the inmate mail out without postage. She was reminded that she
was responsible for the mail on that date,and asked for her
explanatton for the error. She replied that any number of
people have access to the mail bag. It was also pointed out
that there existed the very concern--she was not interested in
learning from an error but determined to prove she was not
responsible.
Mrs. Tkach further stated that she did not know about all the
errors listed and felt she probably wasn't. responsible for all
of them. She was assured that the details were available, and
that it was not felt that she needed complete proof that she was
at fault in order to learn and improve. It was further pointed
out that most of the errors listed had created incidents involving
;Esddenial, discu:sions, accusations, and later her repeated and
, "I'm sorry. when the error was proven to be hers.
Mrs. Tkach stated that she felt it was inappropriate for Mrs.
Johnstone to point out errors at her desk in the General Office,
that she. should be called into Mrs. Johnstone's office for this
task. It was pointed out that Mrs. Johnstone's office was no more
private than the General Office, and that if she reacted appro-
priately when errors were pointed out there would be no need for
privacy as other staff would not become aware of the discussion.
Mrs. Tkach stated that she did react normally.
27.
It became obvious during the interview that Mrs. Tkach was
convinced that we were going through this exercise due to some
personal dislike for her as at one point when I stated that I
had hoped she would change, she enquire, "Would it make any
difference?" Shewastold that I didn't like her implications
but she went on to accuse that I "was doing this" because she
was active in the union and I disapproved. Mrs. Tkach was
assured that this action was based solely on her work performance
and attitude affecting work. Her after-hours activities were of
no concern.
I concluded by stating that Mrs. Tkach was capable of doing a
good job--that she had proven this when.she was first hired,
and that I hoped she would take a positive attitude towards
improving.
She stated that she disagreed and asked whether I was finished
with her. At this point the meeting ended.
Mrs. Johnstone testified that this memorandum was an accurate reflection
of the meeting.
The grievor testified that, at the outset, she asked for a Union
representative and was ignored. She ,asked to discuss the list of errors but was
turned down. With respect to Mrs. Veska's mention in the memorandum of June 24
that Mrs. Tkach had accused the Office Manager of doing it all because Mrs. Tkach
was active in the Union, the grievor testified that she hadn't said this in the
meeting on June 21. However, she testified that she knew this was why she was
being disciplined. In her view at the time, it was all a result of her nomination
for Union office in April. Given the vehemence with which Mrs. Tkach prosecuted
her accusation of anti-Union bias against all her office colleagues at our
hearing, we find it very hard to believe that she did not mention this at the
meeting of June 21, and we are satisfied that Mrs. Veska's record of this is
accurate.
On June 25, the grievor was given a copy of the June 24 memorandum and
she refused to sign it.
* I. .,
. . . .
20.
The grievor then testified that, on July 2, she took an unsigned copy
of her grievance to Mrs. Veska. She returned first thing in the morning on
July 5 to discuss the grievance. She brought a new one, this time signed.~
Mrs. Veska told the grievor that she could discuss it with Mrs. Johnstone. The
grievor replied that Mrs. Johnstone was in the bargaining unit, and was a "team
leader". Mrs. Veska replied that "team leader" was "Union talk", and if the
grievor liked the Union so much, she should go work for the Union. Mrs. Veska
was not asked to comnent on this meeting, and the grievorls allegations stand as
uncontradicted and plausible testimony.
Concl~sien
The evidence and the demeanor of the witnesses at our hearing demonstrated
clearly that the griever had a very poor relationship with her fellow employees
and her supervisors. The grievor alleges that the root of it all is the anti-
Union bias which pervades the office. There is insufficient~evidence concerning,
the attitudes of her fellow~employees to sustain this.' On the other hand, the
griever's uncontradicted specific evidence of statements made by Messrs. Phillipson
and DuCheneau must be accepted by the Board as evidence of an anti-Union per-
suasion. The evidence is plausible and we heard nothing on which to base any
contrary finding. It must be made clear that it is still open to the Ministry
to call such evidence in any subsequent hearing concerning the griever's string
of grievances.
The grievor alleged also that Mrs. Veska'was motivated by an anti-
Union bias. In her memorandum of June 24. 1982, wherein Mrs. Veska recorded the
events of the meeting with the grievor concerning the letter in issue here,
r
_ a..”
i\‘ 29.
Mrs. Veska refers to the griever's allegation that the action was being taken
because Mrs. Tkach was active'in the Union and Mrs:Veska assured the grievor
that the denial of the merit increase was "based solely on her work performance
and attitude affecting work". Mrs. Johnstone testified that this memorandum
wasp an accurate reflection of the meeting. However, the grievor also referred
to statements made by Mrs. Veska on July 2 which tend to suggest an anti-Union
sentiment on the Office Manager's part, and this testimony was not commented
upon in evidence by Mrs. Veska.
We have reviewed in great detail the matters raised in the letter of
June 21. 1982. In the first place, the general allegation by Mrs. Veska that
the grievor has a serious problem in interpersonal relations in the office has
been proven. In particular, the Office Manager's concern that the grievor does
not react "appropriately" to constructive criticism has been proven. We find
that the general statements by Mrs. Veska and Mrs. ,Johnstone in this regard have
been borne out by the evidence concerning the incidents.of May 11; May 27, and
May 28 (telephone message). Secondly, the grievor did make mistakes which were
significant in the incidents of May 11. May 27, June 4 (processing requisitions),
and June 16. However. the difficulty for this Board is that. in ~spite of
Mrs. Veska's statement that her action was not motivated by anti-Union bias,
the griever's uncontradicted allegations concerning anti-Union statements made
by Messrs. Phillipson and DuCheneau, and by Mrs. Veska on July 2, leave a lingering
concern that the grievor was working in a hostile environment which contributed
to or was responsible for her interpersonal relations with her superiors.' This
concern is reinforced when this evidence is combined with the fact that many of
the specific incidents of poor work performance by the grievor were not substantiated.
‘;? ‘>
i L 30.
In the end, we are not satisfied that it has been shown adequately that the denial
of the merit increase was not tainted by anti-Union bias.
The grievor suggested that the problems really started following her
nomination for Union office in April 1982. But the evidence does not bear this
out. She had serious problems in 1981, and we have reviewed the events of the
meeting with Mr. Phillipson in late 1981, and his memorandum of December 2, 1981.
The grievpr's own evidence about the meeting of the office staff following this
memorandum shows that she had serious interpersonal problems with her fellow
employees well before the nomination in April 1982. It is true that the "active"
monitoring of the griever's performance began in May 1982. There are two possible
explanations for this. On the one hand, by this time, management realized it
would have to document its case clearly if it wished to discipline the griever
for her poor work performance. On the other hand, if there was an anti-Union
.bias on the part of Messrs. Phillipson and DuCheneau, and perhaps Mrs. Veska
too, this "active" monitoring could have been prompted by the grievoi's increased
Union activity. We were not given the evidence necessary to conclude that the
first explanation is correct.
In sum, we are unable to conclude that just cause has been shown
for the denial of the merit increase. The onus was on the Ministry to show just
cause. Once the evidence of anti-Union bias was introduced~by the grievor, it
was necessary for the Ministry to rebut the allegation in these circumstances.
Otherwise, this Board is left with the possibility that the grievor was working
in a hostile environment which contributed substantially to her interpersonal
and work oroblems. We order that the griever's merit increase be reinstated and
we reserve our jurisdiction to determine the coiapensation due to the grievor
as a result of this order. if the parties are unable to settle the amount
themselves.
'Done at London, Ontario, this 21 55 day of /i/s&& , 1983.
W. Walsh, Member
"I dissent" (to follow)
D.B. Middleton, Member
,- , . - ,.%
s - 32.
EXH!B!TS
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
Grievance Form, July 5, 1982
Letter of June 21, 1982
Performance Appraisal, January 25, 1982
Extract fran Policy on "Pay Administration"
Memorandum of June 24, 1982
Request to Purchase
Extract from log of purchase orders
Memorandum of December 2, 1981
Letter of May 3, 1982 from Mr. E. Tkach
Letter of May 10, 1982 from Mrs. Tkach
Reply, May 10. 1982
Letter of February 5, 1981
Letter of January 26, 1981
Competition Bulletin
DISSENT ---em_-
Re: I. TKACH. G.S.B. &?0/82
O.P.S.E.U. and MINISTRY OF CORRECTIONAL SERVICES
This dissent was purposely delayed to assess the impact, if any, of
the majority award on grievances not yet heard at arbitration which concern
in the ultimate the dismissal of the same griever Mrs Iris Tkach by the
Ministry concerned. The reasons for delay have given way to more pressing
considerations.
To avoid the readership disassociation which usually follows a
delayed dissent, we are submitting as an (aide memoiret certain salient
facts in capsule form which can be authenticated by rereading of the
majority award and its exhibits.
In result my colleagues on this Board granted a Merit Increase to
the grievor on the due date August lst, 1982 denied her by the responsible
management of the Hamilton - Wentworth Detention Centre. It is obvious
from the tone and language of the award that this granted relief was not
given on the usual grounds of the general quality of the grievor*s work
performance, but rather because the Board found plausible certain unsupported
if not refuted allegations of anti-union bias on the part of those in
management vested with the decision process.
This event, in our submission did not result of necessity from the worded
vtelief sought in the grievance form (See Grievance form - appended (1) to this
dissent), The point, being that there are select areas of Management discretion
and control which should only be invaded by arbitral authority if such a
result is made inevitable by the facts and/or remedy sought, and granting a
'Merit Increasel~once denied is surely one of these areas.
Continuing then with our recap of the substance and reasoning of the
Majority Award there is convincing evidence in the text and pertinent exhibits
that, during the assessment period for the August 1982 Merit Increase, the general
quality of the grievorrs work performance had not improved or been maintained
at a satisfactory level.
Her interpersonal relations with her fellow unionists in the office had
grown from bad to worse. In this connection there was substantial evidence
that the Staff Representative O.P.S.E.U. attached to the prison called a
special meeting on the premises with the purpose of persuading Mrs Tkach's
fellow employees to view her actions in a more kindly light and cease trying
to get her fired.
In addition, there was a grckling list of errors of recent origin which
'ihe -gement maintained were inhibiting the grievor'a *rfornn.nce at a
wxk output level.
:
Page 2.
The listing attached to the June 21st, 1982 letter (See Zx2rhibi.t 2 e
to the Award) was a partial listing only, and my colleagues concluded in
their award that Mrs Tkach made mistakes in the incidents of Hay llth, &y~27th,
June 4th (processing requisitions) and June 16th which were, in my submission,
inconsistent with the anticipated accuracy of a person with her experience.
The IMMgement alti maintained that the griever's wurk attendance
was below the overall average in the office.
Reconsideration of the reasons for denial of the Merit Incrcas.:- put
in evidence, and carerul reading of the zjority award leads this member to
the conclusion that the grievan,ce would have been denied by the author if it
were not for the weighting given to statements attributed by the griever to
Superintendent Phillipson and his assistsnt Du Cheneau and "perhaps Mrs Veska
too" which connoted anti-union bias on their part.
Although w colleagues in several instances in the body of their award
assessed the evidence of the griever as being less than credible when contested,
these incidents which were uncontested by reason of the absence of Messrs Phillipson
and Du Cheneau from our hearings, were accepted by them as plausible and
given such weight as to predicate the outcome of these proceedings. It is
doubtful whether the evidence of Mr. Du Cheneau would have be.en of value if
he had been called to the stand on the question of anti-union bias since it
was not contested that he was a social friend of the griever. ,.
This weighting belittles the written denial of Mrs Veska and Johnstone
in Exhibit 5 to the point in question (See Appendix 2) wherein the griever
had cited anti-union bias on the part of her interviewers as negating discussion
of her listed work errors. Mrs Veska was the Office Manager and Mrs Johnstone
was the griever's ismediate superior in office ranking who was in daily touch
with the griever at the work level and a member of the same Union. Where the
granting or denial of a Merit Increase was concerned the primary responsibility
lay with these two persons.
Cur hearings throughout were concerned with an obvious and pervasive
credibility question where the evidence of Mrs. Tkach was oeing evaluated,
and, in this instance, the griever, once again under oath, denied that she
made allegations of anti-union bias recorded in Exhibit 5. The grievor was
given a copy of this June 24th Memorandum.
Acceptance of Mrs Tkach's version of the meeting of June 21st as to
its content must lead to the conclusion that the Memorandum of June 24th
(Exhibit 5) was a fabrication by the Kinistry, or that the testimony of the
grievor in this crucial matter cannot be accepted. This member is in the
latter category, and, on this and other counts views much of the, by its
very nature, defensive testimony of the griever with distrust, and in particular
her allegations of anti-unionbias on which so much of the outcome of this
arbitration award depended,
Page 3
This minority member is unable to fragment credibility at will when
assessing the impact of the testimony of MI-S Tkach, and further refuses to
accept the doctrine that her testimony can be of doubtful value when confronted
or denied but trustworthy when not denied.
The test of wherein a particular situation the truth lies, in the view
of this dissenting member, does hot depend on whether evidence is contradicted
or not, but rather should be evaluated by review of the general credibility of
the witness.
In applying this test to the specific allegations of anti-union bias
attributed to Messrs Phillipson and Du Cheneau and to a lesser extent Mrs Veska,
we are confident that this alleged prejudice did not in fact preclude the
griever from obtaining her anticipated Merit Increase, but rather hold to the
view that it was correctly withheld on the usual basis of her work performance
and attitude affecting work.
In result this member would have supported the deferment of a Herit
L~cr%s~ ho Xrs. Tkach and denied the grievance.
Submitted for the record,
dbm/jm D. U. Middleton - Board Member.
APPENDM (1) ‘-TO DISSENT
EVAWCE FORM
Address of Ewbment--- ~_ - ..-. -_~.~ -I- 165 Brrton Stre"t
STATEMENT OF GRIEVANCE: .d
SETTLEMENT REQUIRED:
./ ,
Signature of Griever
STE!’ 3
.;
;;
@
fhnislry 01 ’ ?I
Memorandum
Correctional
Ontario Sehces EXHIBIT 5, APPENDIX 2 - TO DISSENT
Data
June 24th, 1%32
Nam~lTitlaierandl
TO File
AddresslCitv/Postal Cods
From T. Veska, Off ice Manager
AddrertlCilv/Postal Coda Hamilton-Wentworth Detention Cent re -J
Subject
Mrs. I. Tkach, Clerk 2 General
Delivery of Letter Dated June 21st, 1982
.
At approximately 15:45 hours. June 21st, 1982
Mrs. hi. Johnstone, Assistant Office Manager, and the under-
signed met with the above noted employee for the purpose of
discussing the above-mentioned letter.
Upon comme~ncing to read the letter llrs. Tkach asked
whether I had the authority to “change her anniversary date.”
I advised her that I was recommending that she not be granted
her merit increase which, if accepted, by the Superintendent
would change her anniversary date. She questioner: man?~‘r:l:en -‘s
authority to do this several times during the meeting. (She
did not question the reasons nor whether it wae justified. i
It was pointed out to Mrs. Tkach that not onl!
were the errors in her work unacceptable, but that her
reaction when errors were pointed out to her was of greater
concern, ie. her almost spontaneous attempt to deny an\
error. She further demonstrated this very point at rhe meerinc
by stating that she hnd not sent. the inmate mail mu; :virho:ir
postage. She was reminded that she ‘.vas re.spon.+iblt !-or r!li’
!:mil on that date and :Isked :o:, ::er rsplnnation to:‘ :!:v :.>r:;.‘:‘.
S!le replied rh:lf :~ny number rlr :)ecn?c !~nve ::cccs.i -,\ ..i‘..a -1:: \~
n a I: . It ‘vas ;1lso p”,!l: c,j :,,ir .-!I;,[ ;!,c2ri? ,a>;::j:p;(: -pi:‘) ‘..I!.”
:!o!lccrn--she :pns nor !.!lrcrcscril L!: iearn111g :rcm ‘Ii:: ,‘1’!“:!’
hut deiermined to prove she ‘was not responsible.
Mrs. Tkach further stated that she did not know about
all the errors listed and felt she probably wasn’t responsible
for all of them. She was assured that the details were
available, and that it was not felt that she needed ccnnle:r
proof that she was at fault in order to learn and improve.
It was further pointed out that most of the errors listed had
created incidents involving her denial, discussions, accusa-
tions, and later her repeated and loud, “I’m sorry.” when
the error was proven to be hers.
Mrs. Tkach stated that she felt it was inappropriate
for Mrs. Johnstone to point out errors at her desk in the
General Office, that she should be called into Mrs. Johnstone’s
office for this task. It was pointed out that Mrs. Johnstone’s
office was no more private than the General Office, and that
if she reacted appropriately when errors were pointed out
there would be no need for privacy as other staff would not
become aware of the discussion. ?lrs. Tknch stated that she ~.. . _ _
File--I. Tkach -2- June 24th, 1982
It became obvious during the interview that
Mrs. Tkach was convinced that we were going through this
exercise due to some personal dislike for her as at one
point when I stated that I had hoped she would change, she
enquire, “Would it make any difference?” She was told that
I didn’t like her implications but she went on to accuse that
I “was doing this” because she was active in the union and
I disapproved. Mrs. Tkach was assured that this action was
based soley on her work performance and attitude affecting
work. Her after-hours activities were of no concern.
I concluded by stating that Mrs. Tkach was capable
of doing a good job--that she had proven this when she was
first hired, and that I hoped she would take a positive
attitude towards improving.
She stated that she disagreed and asked whether
I was finished with her. At this point the meeting ended.
--------_--________-----
I. Tkach, Clk. a General
-----------------_-_-------------
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11 . Johnstone, Asst. Office .\lanager
Witness