GSB#2013-0904; 2013-0905; 2013-0906; 2013-1183

UNION#2013-0616-0013; 2013-0616-0014;

2013-0616-0015; 2013-0616-0021

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Cusack)

Union

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Ken Petryshen

Vice-Chair

FOR THE UNION

Christopher Bryden Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Cathy Phan Treasury Board Secretariat Legal Services Branch Counsel (March 5 to June 5, 2015)

Heather McIvor Treasury Board Secretariat Legal Services Branch Counsel (July 15 to August 26, 2014)

HEARING

July 15, 16, August 19, 25, 26, 2014; March 5, 6, April 13, 14, June 4 & 5, 2015

Decision

1Ms. B. Cusack commenced her employment in December 2011 on contract as a fixed term Registered Nurse (“RN”) at the North Bay Jail (“NBJ”). On March 27, 2013, she presented Ms. A. Carruthers, the Health Care Manager at the NBJ, four complaints in compliance with stage one of the grievance procedure in the Collective Agreement. On April 12, 2013, before the commencement of a discipline meeting where Superintendent Lou-Ann Lucier had planned to terminate Ms. Cusack’s employment, Ms. Cusack prepared a handwritten letter addressed to Ms. Lucier in which she wrote the following: “Please consider this my formal resignation from employment at the North Bay Jail.” Four days after she resigned, Ms. Cusack filed four grievances dated April 16, 2013. In one grievance she complains that she has been discriminated against for union activity. In another grievance she complains about a letter of discipline she received on March 18, 2013. This grievance relates to a letter of counsel issued to Ms. Cusack by Ms. Carruthers. In a third grievance she complains about continual bullying and harassment by Ms. Carruthers and Ms. Lucier. In the fourth grievance Ms. Cusack complains about an “unfair process” with respect to the latest posting for a permanent RN position. The requested remedy in each grievance is “full redress”. In addition to pursuing the four grievances on behalf of Ms. Cusack, the Union takes the position that Ms. Cusack’s resignation on April 12, 2013, was not voluntary. The matters before me initially then were the four grievances filed by Ms. Cusack and the issue of whether her resignation on April 12, 2013, was voluntary.

2At the hearing on July 16, 2014, counsel addressed certain production and procedural issues. I dealt with these issues in a decision dated July 29, 2014. One of the issues was whether the Employer could advance in this proceeding the alternative position that it had just cause to terminate Ms. Cusack if I found that Ms. Cusack’s resignation was not voluntary. I determined that it was entitled to pursue this alternative position in this case.

3The hearing resumed on August 19, 2014, with counsel providing me with lengthy opening statements. Union counsel noted that this was a complex case dealing with a number of issues. Referring to the Union’s detailed statement of particulars, Union counsel commented on the many instances where Ms. Cusack alleged that she had been bullied, harassed, discriminated against or treated unfairly by Ms. Carruthers, Ms. Lucier and a number of Operational Managers. Counsel noted in particular that the letter of counsel issued to Ms. Cusack by Ms. Carruthers, the decision not to select her for the permanent RN position and the decision to terminate Ms. Cusack’s employment for her role in an inmate suicide were examples of Employer conduct which not only contravened the Collective Agreement, but also illustrated that the Employer’s objective was to bring to an end Ms. Cusack’s employment at the NBJ. Counsel also noted that the Employer’s conduct towards Ms. Cusack had a detrimental impact on her emotional well-being. The Union took the position that all of the matters set out in its particulars provided the context for assessing whether Ms. Cusack’s resignation was voluntary. The Employer denied that it had contravened the Collective Agreement and that it was motivated by a desire to force Ms. Cusack from employment at the NBJ and it took the position that Ms. Cusack had voluntarily resigned her employment on April 12, 2013. In her opening statement, Employer counsel took some time to set out the Employer’s perspective of the events particularized by the Union. She noted that Ms. Cusack and other nurses in the Heath Care Department at the NBJ were unhappy with the decisions of the Employer to create the position of Health Care Manager and to hire Ms. Carruthers to fill the position in late July 2012, rather than fill it with a nurse from the Health Care Department. She indicated that some of the nurses and Ms. Cusack in particular did not appreciate that a manager would be monitoring the performance of their nursing duties. Employer counsel noted that Ms. Cusack formed a dislike for Ms. Carruthers, that she did not get along with a number of employees and that she was the bully in many instances. Employer counsel also took the position that most of the matters set out in the particulars were not relevant to the question of whether Ms. Cusack’s resignation was voluntary.

4It was apparent from the opening statements that the process contemplated by the parties for hearing the grievances would entail many hearing days. Given that the voluntariness of Ms. Cusack’s resignation was a central issue in this case and that there was a dispute over whether many of the matters addressed in the Union’s particulars were relevant to that issue, I met with counsel and suggested a different way of proceeding. I essentially proposed that the parties initially deal only with the issue of whether Ms. Cusack resigned voluntarily, that the facts as particularized by the Union be assumed to be true and proven for the purpose of dealing with the resignation issue and that the parties focus their evidence on the events that more immediately preceded the resignation. It was my view that proceeding in this way would be the most efficient way of addressing a key issue in dispute. A decision on the resignation issue might also affect how the parties would address the other issues in dispute. I asked counsel to advise me whether they considered proceeding in this way was problematic. After meeting with their clients, counsel advised me that the parties were agreeable to proceed in the way that I had suggested.

5The issue for determination in this decision then is only whether Ms. Cusack resigned her employment voluntarily on April 12, 2013. In determining this issue I will assume the facts particularized by the Union to be true and proven. Union counsel had provided the initial particulars to Employer counsel with a covering letter dated May 30, 2014. He subsequently filed amended and additional particulars by letter dated June 14, 2014. The other facts will be determined from a consideration of the oral and documentary evidence. The oral testimony essentially covered certain matters that occurred during the months of March and April 2013. In addition to Ms. Cusack, the Union called Mr. B. Pitfield, Ms. Ann-Marie Villeneuve and Ms. S. Parker as witnesses. Mr. Pitfield is a Staff Representative for the Union. Ms. Villeneuve and Ms. Parker were RNs at the NBJ at the relevant time and they were friends of Ms. Cusack, as well as colleagues. The Employer called Superintendent Lucier to testify. I have carefully reviewed the oral and documentary evidence. There were some challenges in determining what occurred in the week prior to and on April 12, 2013. There were some inconsistencies between Ms. Lucier’s testimony and Mr. Pitfield’s testimony and there were also some inconsistencies in the testimony of the Union’s witnesses. In large part these inconsistencies arose because the witnesses were testifying about events that had occurred well over a year and in some cases two years before they testified. In determining the facts based on the oral testimony, I resolved any conflicts in the evidence by considering what was most probable having regard to the totality of the evidence.

6The facts set out in the Union’s particulars are as follows:

1. The grievor tendered her resignation from NBJ and the Ministry on April 12, 2013, however, she takes the position that this resignation was not voluntary. As is outlined and particularized below, the grievor resigned as a result of persistent and insidious harassment, bullying and discrimination from members of management at the jail, in particular Nurse Manager Amanda Carruthers and Deputy Superintendent Lou-Ann Lucier.

2. The grievor alleges that Ms. Carruthers and Ms. Lucier both engaged in a course of vexatious, vindictive, and malicious conduct intended to intimidate her, isolate her, exclude her and demean her. Ms. Carruthers and Ms. Lucier exhibited favouritism, and openly expressed animosity towards the grievor. They both questioned her professional abilities and competence, in many cases in front of staff and inmates.

3. Further, the grievor understood that both Ms. Lucier and Ms. Carruthers threatened that they would seek to jeopardize the grievor’s license with the College of Nurses of Ontario (CNO), and would seek to have her license suspended or revoked if she did not withdraw her grievances and/or resign. The grievor thus resigned out of fear that Ms. Carruthers and Ms. Lucier would act on these threats. Simply put, she could not risk her license and resigned, subsequently filing these grievances in attempt to recover her RN job at the jail, and to seek remedies (discussed below) for the harassment and bullying she suffered at the hands of Ms. Lucier and Ms. Carruthers.

4. The grievor also takes the position that she has been discriminated against and harassed on the basis of her friendship and association with the union’s Local President, Mike Bissaillon. The grievor takes the position that this constitutes discrimination and harassment on the basis of union activity and on the basis of association.

5. The grievor also takes the position that she should have been the successful applicant in Job Competition 49851. The grievor takes the position that she was senior to and at least relatively equal to the successful applicant and therefore should have been awarded that job.

6. It is worth noting as well that four (4) of the grievor’s coworkers filed a group grievance against Ms. Carruthers and Ms. Lucier, raising many of the same concerns. Of these four nurses, two (2) have also resigned, and a third had to take a leave due to the negative working conditions caused by Ms. Carruthers and Ms. Lucier.

7. OPSEU Grievance #2013-0616-0021 has not formally been consolidated with the other grievances presently consolidated before the Board, and by way of these particulars the union hereby formally requests and proposes that these four (4) grievances be heard together.

8. The particulars giving rise to these grievances are outlined below.

Background

9. The grievor is an RN and has been registered with the CNO since August, 2009.

10. The grievor began working with the Ministry in December 2011, when she was hired to work as an RN at the North Bay Jail.

11. The grievor worked in the Health Care Department at the jail, with four other nurses – Nathalie Webster, Anne-Marie Villeneuve and Shirley Parker. Later, Marg McGillis was hired onto the team as well. In addition, the department included two (2) full-time nurses – Tamara Perchuk and Lynn Hurst.

12. As noted above, during her time at the jail, the grievor became friends with the union’s Local President, Mike Bissaillon. She was friendly with him at the jail, and spoke with him at many meetings.

Amanda Carruthers – General Issues

13. Ms. Carruthers was hired by the Ministry and began working at the North Bay Jail in and around late July or August, 2012.

14. After Ms. Carruthers was hired as Nursing Manager, working conditions quickly deteriorated, and Ms. Carruthers’ conduct contributed to the poisoning of the grievor’s workplace and her eventual forced resignation.

15. From her first day, and on numerous occasions, Ms. Carruthers was arrogant and condescending to the grievor in almost every interaction with her, and would frequently lecture the grievor as if reciting a textbook.

16. On almost a daily basis, Ms. Carruthers would frequently provide unsolicited advice and criticism of the grievor’s work in front of inmates and staff. For example, Ms. Carruthers would frequently escort the grievor on her (Cusack’s) rounds and would frequently interject while the grievor was counselling inmates on medical issues. On one occasion, the grievor was attempting to educate an inmate about an antibiotic he would be receiving, and Ms. Carruthers cut the grievor off and began to explain it herself. This behaviour undermined the grievor in front of other staff and inmates.

17. On occasions during which Dr. Boss, a staff physician, would visit the institution and department, Ms. Carruthers would monopolize his time with useless conversation and would attempt to outdo the nurses on the team while they were giving Dr. Boss information about a particular inmate. Ms. Carruthers would frequently recite what sounded like memorized passages from a textbook.

18. Ms. Carruthers would also tell inmates she was a wound care specialist, however, on many occasions the grievor witnessed Ms. Carruthers giving incorrect and medically questionable advice about wound care, for example, telling an inmate to shower with a dirty dressing on. The grievor had to go to Dr. Preston to have this order changed.

19. Further, Ms. Carruthers did not know the difference between Type I and Type II diabetes. For example, Inmate Toth was a newly admitted inmate with diabetes and while the grievor was giving him information on insulin use, Ms. Carruthers kept interjecting and giving him incorrect and potentially harmful information. The grievor attempted to gently correct her, however, Ms. Carruthers would become angry.

20. Ms. Carruthers would also nitpick and micromanage the grievors’ charting, yet Ms. Carruthers would often not chart herself, and on occasions charted for her friend, Marg McGillis. On another occasion, Ms. Carruthers asked the grievor to chart a conversation she had had with the Ombudsman. The grievor refused to do this as she thought it was improper under the CNO Standards and Guidelines to chart on someone else’s behalf. It is not clear that Ms. Carruthers ever charted or documented her conversation with the Ombudsman.

21. As well, the grievor felt that Ms. Carruthers was far friendlier with other nurses and staff as compared to her interactions with the grievor. For example, Ms. Carruthers made a point of meeting with all of the nurses to find out more about them, but did not do so with the grievor. She also did not share any of her experiences as a nurse with the grievor.

22. Further, Ms. Carruthers was friends with inmates on Facebook, and whenever the other nurses would attempt to counsel Ms. Carruthers on this, she would become angry and dismissive, and assert that she did not see any issues with being friends with current and former inmates on Facebook.

23. Further, whenever the grievor would attempt to discuss issues or topics on which she had a particular interest or expertise, Ms. Carruthers would cut her off and begin lecturing as if from a textbook.

24. For example, on one occasion, while the grievor was attempting to talk about colon cancer, a medical topic on which the grievor has particular knowledge, Ms. Carruthers cut her off, and attempted to act authoritatively on the subject. The grievor felt as though Ms. Carruthers was attempting to “outdo” the grievor’s own knowledge and to put down the grievor’s experience and expertise. The grievor felt as though she was a target of Ms. Carruthers’ personal jealousies.

25. On a separate occasion, Ms. Carruthers asked what “rainbow labs” were. The grievor provided a rudimentary explanation, however, Ms. Carruthers dismissed the grievor’s comments and did not ask any follow-up questions. The grievor again felt that she was the target of Ms. Carruthers’ insecurities and personal jealousy.

26. On numerous occasions, Ms. Carruthers would also ask the grievor what her age was. These enquiries made the grievor feel very uncomfortable, and she would politely advise Ms. Carruthers that her age was not Ms. Carruthers’ concern. Ms. Carruthers would respond by stating in a threatening manner, “I can find out”. She made comments like this on several occasions.

27. Additionally, Ms. Carruthers made many decisions that impacted on the nurses without understanding their role. This caused more work and stress in the department than was necessary.

28. For example, there was a tuberculosis vaccine form on the insulin fridge that had worked well and had been in place since the grievor started at the jail. Ms. Carruthers insisted on removing it and insisted that nurses record dosages in a book, a book that that had been designed for a much larger facility. Ms. Carruthers never sought the opinions of the other nurses on the team, and instead came in and disposed of a very effective system the nurses had been using.

29. The nurses gave the book a chance, but it was too labour intensive and did not work. The grievor and other nurses tried to explain this to Ms. Carruthers on several occasions, however, she would typically become quite angry and would not listen. The nurses eventually put the list back on the fridge, however, Ms. Carruthers would come into the health care unit and throw the list out or try to hide it.

30. Ms. Carruthers also granted time off for other nurses but would refuse to do so for the grievor, such an example occurring on Labour Day 2012. Ms. Carruthers would also refuse to let the grievor switch shifts; force the grievor to take days off without pay, and would not offer her overtime shifts.

31. Ms. Carruthers would also attempt to schedule team meetings on days when the grievor was not scheduled to work, in an effort to exclude the grievor. If meetings fell on a day when either the grievor or Ms. Webster could attend, Ms. Carruthers would abruptly reschedule the meeting to a different day in an effort to make it more difficult for either of these nurses to attend.

32. Further, Ms. Carruthers also blocked the grievor from training and educational opportunities. For example, on March 18, 2013, the grievor received an email from Ms. Carruthers, which was sent to all health care staff, asking if anyone was interested in attending a wound debridement course on April 30, 2013. The grievor responded that she would be interested in attending.

33. The grievor heard nothing further regarding the course, and on April 9, 2013 she sent an email to Ms. Carruthers enquiring as to whether she would be able to attend. She noted that casual and part time staff were attending the course. Ms. Carruthers wrote back advising she was unable to cover grievor's shift. However, Nathalie Webster was available to cover for the grievor. Ms. Carruthers was intentionally and vindictively attempting to deny training opportunities to the grievor.

34. Further, Ms. Carruthers gave the grievor's private cell phone number to GoodLife. GoodLife called the grievor twice at work and scared the grievor – she uses her cell phone only for emergencies and was worried there was a problem when she received the two calls on her cell. Ms. Carruthers advised the grievor that she had passed her cell phone number to GoodLife because she would receive a free purse if she gave GoodLife the phone numbers of 10 people. The union takes the position that this violates the Freedom of Information and Protection of Privacy Act.

Grievor’s Eviction on the Basis of her Association with Mike Bissaillon

35. The grievor was renting a basement from Kathy Ranger, a CO at the jail.

36. Ms. Ranger evicted the grievor in early March, 2013, asserting via text message that she required the basement for personal space and projects. However, in February, 2013, there were issues at the jail involving the suspension of several staff members, including Local President Mike Bissaillon. The grievor understands that Ms. Ranger and Mr. Bissaillon may have had disagreements in the past that led to the severing of a friendship. On one occasion in February 2013, Ms. Ranger was assigned to perform rounds with the grievor. During this, Ms. Ranger said many negative things about Mr. Bissaillon. Later, the grievor advised Ms. Ranger that she felt Mr. Bissaillon had been very kind and supportive to her and the other nurses. Shortly after this, Ms. Ranger became stand-offish with the grievor and evicted her shortly thereafter.

37. After this, Ms. Ranger was also rude and unkind to the grievor at work.

38. Subsequent to this, on or around March 17, 2013, the grievor left a written note for Ms. Lucier asking that she (Lucier) speak with Ranger about her behaviour as it was creating a tense situation for the grievor, which was impacting her work as well. The grievor also left a voicemail for Ms. Lucier that same day regarding this issue.

39. Ms. Lucier sent the grievor on email on March 19, 2013, confirming she received the note and that she would be setting up a meeting to discuss the issue.

40. The grievor did not receive any further word from Ms. Lucier until March 28, 2013 (one day after the grievor had presented the instant grievances at Stage 1) when she received an email from Ms. Lucier opaquely advising that she had spoken with Ms. Ranger and that there would be no further issues with Ms. Ranger.

October 2012: Suicide of Inmate Reed

41. In and around October, 2012, the grievor arrived at work and was ordered by Ms. Carruthers to immediately go to the administration offices. Ms. Carruthers did not tell her why.

42. When the grievor arrived there, she found Ms. Lucier and a Ministry investigator. Ms. Lucier advised that the investigator was there regarding the suicide of inmate Reed. The Investigator was tape-recording the conversation. The grievor attempted to outline to the investigator many of the issues they had been suffering at the jail, as outlined above, and below. The Investigator consistently turned the tape record off when the grievor made these comments.

43. The grievor felt that the investigator was rude, threatening, and seemed more intent on trying to find a scapegoat so that the Ministry would not have to bear responsibility for lack of staff and resources at the jail.

44. The grievor followed all applicable Ministry and Regulatory standards in respect of inmate Reed. As well, to the grievor's knowledge, no inmate at the North Bay Jail has ever been on a suicide watch.

45. As is outlined below, the grievor takes the position that the allegations regarding inmate Reed’s suicide were the result of further efforts on the part of Ms. Lucier and Ms. Carruthers to further harass and target the grievor.

Suicide Watches

46. When the grievor first started working at the jail, she wanted to put an inmate on a constant suicide watch. OM Mark Cyr declined her request. The grievor called Shirley Parker, who had to call Mr. Cyr and reason with him. He told Ms. Parker that the inmate didn't qualify for a suicide watch. Ms. Parker informed Mr. Cyr that it was the nurses’ decision to place inmates on a suicide watch and not open to debate.

47. On another occasion, OM Jeff Lamothe took inmate Racine off of suicide watch without doctor’s approval and did not inform the nurses.

48. Shortly after IM Reed’s suicide, the grievor attempted to place an inmate on a constant watch and Mr. Lamothe stated "What has happened in the past doesn't matter". He was condescending and intimidating to the grievor. OM Barnes was present and did not say a word and kept his head down the whole time. The grievor documented this refusal and wrote an OR. When the grievor gave this report to Ms. Carruthers, she appeared reluctant to confront the issue.

49. Two days later, Ms. Carruthers spoke to the grievor and advised that she (Carruthers) had spoken to Jesse Webster (the scheduler) who had told Ms. Carruthers that a constant watch was not necessary for any inmate, as they are "really not able to kill themselves".

50. The grievor attempted to explain why it was important not to second guess the suicide assessments and decisions of the nurses. Ms. Carruthers became very defensive and argumentative in response.

51. Further, other staff would frequently make sarcastic comments or complain when the grievor attempted to put inmates on suicide watch or send them to the hospital, Ms. Narburgh, an OM, Mr. Lamothe and Mr. Barnes in particular. This was both before and after inmate Reed’s suicide.

52. Ms. Narburgh would engage in arguments with the grievor and question the grievor's decisions because she did not want to call staff in or deal with the required paperwork.

53. One Saturday, the grievor came in for a day shift and inmate Deveaux had fallen from the top bunk and hit his shin. As soon as the grievor arrived, Ms. Narburgh cornered her in the nursing office and told the grievor about the incident and advised her that there was "nothing to worry about", or words to that effect. During muster, Ms. Narburgh again said the same thing in front of everyone.

54. After muster, the grievor asked to see the inmate. Ms. Narburgh tried to stall and suggested that the grievor wait until later. In response, the grievor demanded to see the inmate immediately. Upon assessment, the grievor found that the inmate's wound was large and the tendon and bone was clearly visible.

55. The grievor advised Ms. Narburgh that the inmate had to go to the hospital immediately. Ms. Narburgh began complaining that she had no staff and did not want to call staff in to work overtime. The grievor replied that the inmate had to go. The grievor takes the position that actions such as these, and others, on the part of Ms. Narburgh constitute harassment and intimidation.

56. The grievor addressed her concerns about Ms. Narburgh to Ms. Carruthers, however, it is not clear that Ms. Carruthers actually addressed these issues with Ms. Narburgh as the behaviour continued unabated. Ms. Narburgh also finished her shifts at 6pm and if there were admissions that were suicide watches she would become annoyed and try to change the nurses’ mind about the need for a suicide watch as she simply wanted to go home. Mr. Lamothe and Mr. Barnes would engage in this behaviour as well.

57. As a further example, on Easter Sunday, the grievor attempted to put three (3) inmates on suicide watch. Ms. Narburgh complained about this. Subsequently, on Easter Monday in muster, Mr. Barnes asked the grievor sarcastically if there were any inmates the grievor wanted to put on suicide watch. The grievor responded that if needed she would do so. Mr. Barnes then began challenging the grievor's decision in front of other staff, asking the grievor if the inmates had specifically said they were suicidal. The grievor responded by noting that the inmates don't necessarily need to specifically say they are suicidal to be placed on such a watch. The grievor had just received her allegation letter from Ms. Lucier regarding inmate Reed's suicide, and found this exchange with Mr. Barnes very upsetting. The grievor felt that Mr. Barnes was attempting to intimidate her. After this incident, the grievor burst into tears.

Marg McGillis – Ms. Carruthers’ Personal Friend

58. Shortly after she joined the North Bay Jail, Ms. Carruthers hired Marg McGillis as a nurse without running a formal competition. Ms McGillis is a personal friend of Ms. Carruthers and frequently made a point of stating this to the other nurses.

59. Ms. Carruthers always helped Ms. McGillis on every weekend or shift that McGillis was booked, whereas the grievor was expected to work alone and never received assistance or help from Ms. Carruthers. Further, other nurses were also expected to work on their own on weekends. Ms. Carruthers seemed to manipulate the schedule so that she could support and spend time with her friend on weekend shifts.

60. The grievor also had concerns about Ms. McGillis’ competence as a nurse, which she brought to Ms. Carruthers and Ms. Lucier. Further, Ms. Villeneuve and Ms. Parker sent an email to Ms. Carruthers expressing concerns about Ms. McGillis' competence as a nurse. However, neither Ms. Carruthers nor Ms. Lucier addressed these concerns or issues.

61. On March 22, 2013, the grievor had a number of issues with Ms. McGillis, and she submitted an occurrence report dated March 29, 2013 outlining these issues.

62. On April 3, 2013, Ms. McGillis worked a shift with Shirley Parker. During the shift, Ms. McGillis kept asking Ms. Parker a number of personal questions regarding the grievor, despite being told by Ms. Parker to stop.

December 3, 2012

63. On December 3, 2012, the grievor was suffering from severe migraines caused by working with Ms. Carruthers. She called in sick that day.

64. At 1500 that day, the grievor received an angry message at home from Ms. Carruthers that she had to bring in a doctor's note.

65. The grievor had only taken two sick days in a 13 month period to that point.

66. The grievor's doctor is in Toronto, and the grievor had an appointment with him on December 7, 2012 and obtained the note at that meeting.

67. After her return to work, the grievor spoke to Ms. Lucier about this, who attempted to avoid and dodge the issue for 5 minutes, until the grievor said she might file a grievance, at which point Ms. Lucier admitted she had suggested to Ms. Carruthers that she ask for a doctor's note

68. During this meeting, the grievor also raised with Lucier the fact that Ms. Carruthers kept saying "I can get you a job at CNCC. I will give you a good reference," comments that the grievor found very upsetting. The grievor also advised Ms. Lucier that Ms. Carruthers had persistently been asking the grievor for her age and the fact that this made the grievor feel very upset and uncomfortable.

69. The meeting ended when Lucier said in a dismissive manner "I will speak with Amanda."

70. Even after this meeting, Ms. Carruthers kept saying "I can get you a job at CNCC" and continued to ask the grievor what her age was.

71. One Saturday after December 3, 2012, the grievor was very ill at work but didn't call in as she was afraid of retaliation after December 3, and that Ms. Carruthers would be able to obtain medical notes for every sick absence with impunity.

72. Ms. Carruthers’ action in requesting this note, and Ms. Lucier’s complicity in it, are clear violations of Article 44.10 of the collective agreement.

73. Further, Ms. Lucier’s inaction in respect of Ms. Carruthers’ repeatedly imploring the grievor to work at CNCC is a violation of Article 2 and 3 of the collective agreement, and the Occupational Health and Safety Act.

Meeting of March 13, 2013

74. From almost the day that she started, Ms. Carruthers had had such a tremendously toxifying impact on the health care unit that the nurses had been seeking to have a meeting with the entire team and management to attempt to improve these problems and to air their concerns with Ms. Carruthers and Ms. Lucier.

75. After multiple requests, a meeting was scheduled to take place March 6, 2013.

76. The nurses sought to have Mr. Bissaillon present at the meeting. In a series of emails exchanged February 19 and 20, 2013, Ms. Lucier repeatedly stated that she did not want Mr. Bissaillon at the meeting as she felt it was a meeting to deal with health care issues, and that Mr. Bissaillon was welcome to attending meetings concerning labour issues. Ms. Lucier also singled the grievor out when all the nurses on the team wanted the meeting.

77. These emails came to the grievor’s attention, and on February 20, 2013, she emailed Ms. Lucier expressing her concern about the exchange between Ms. Lucier and Mr. Bissaillon, indicating that the whole team wanted Mr. Bissaillon present for the meeting.

78. As a result of the nurses’ intention to have union representation at the meeting, management cancelled the March 6 meeting at the last minute and rescheduled it to March 13, 2013. March 13 was a day that the grievor and Nathalie were not scheduled to work. Ms. Carruthers was clearly attempting to avoid this meeting and the issues that the team was seeking to have addressed.

79. The meeting eventually did take place March 13, 2013. The grievor was present, as were the other nurses on the health care team. For management, Ms. Carruthers and Mr. Roch St. Louis, Deputy Superintendent were present. Mr. Bissaillon had been suspended, so OPSEU Staff Representative Blair Pitfield attended in his place.

80. At the outset of the meeting, the grievor reviewed applicable CNO standards of practice as it was felt that Ms. Carruthers and management were not familiar with them.

81. During the meeting, the nurses repeatedly raised practice standard concerns. Mr. St. Louis however insisted that the nurses perform various unsafe nursing practices. Mr. St. Louis is not a nurse or health care professional.

82. The nurses also raised numerous issues with Ms. Carruthers’ management style, and her abilities as a nurse. Mr. St. Louis repeatedly dismissed the nurses’ concerns and treated their concerns as illegitimate and unfounded. In many cases, Mr. St. Louis cut the nurses off and dismissed their concerns without even listening to their concerns.

83. Nothing was resolved by the meeting. The message from management at the end of this meeting was that the nurses’ concerns were unfounded. Management continued to insist that the nurses perform medically improper and unsafe practices with inmates.

March 18, 2013 – Letter of Counsel

84. On March 18, 2013, the Grievor received a letter of counsel from Ms. Carruthers regarding an incident that occurred February 11, 2013, involving a purported disagreement between the grievor and a physician regarding medications.

85. Ms. Carruthers did not issue this letter until six weeks after the incident in question (February 11, 2013), but wrote the letter within just five (5) days of the March 13, 2013 meeting. This was a clear act of retaliation against the grievor as a result of her attempts to raise issues with Ms. Carruthers’ management during the March 13 meeting.

86. This letter of counsel also contains numerous factual inaccuracies. For example, there were no attempts to discuss the matter in private with the grievor, as is alleged in the letters’ 5th paragraph.

87. The inmate at issue, Leroy, in the letter had been caught hoarding her suboxone on two prior occasions. Other inmates had indicated that this inmate was selling these drugs on the range.

88. Dr. Preston had indicated that if the inmate was caught hoarding again she would be cut off.

89. This inmate was also abusive to staff and nurses

90. On February 10, the grievor caught this inmate hoarding suboxone in her lower jaw. Despite numerous requests, she refused to swallow it. The inmate eventually spit out huge chunks and put them in the garbage.

91. On February 11, 2013, Dr. Oyenarron was covering for Dr. Preston. The grievor explained to Dr. Oyenarron the issues with this inmate and suggested that the inmate be cut off of suboxone. Dr. Oyenarron agreed.

92. As he was about to implement this, Ms. Carruthers came to the nursing station and immediately undermined the grievor's concerns and stated that the inmate should be given another chance.

93. The grievor strongly disagreed with Ms. Carruthers' suggestions as this inmate had had several previous chances, the drug in question was an addictive and potentially dangerous substance, and it put the other inmates and staff at risk to continue to let her have access to the drug.

94. Ms. Carruthers was visibly angry and upset, and demanded to meet with the grievor in her (Ms. Carruther's) office. The grievor refused to do so as union representation was not available.

95. Later that evening, the same inmate bragged about how she had "got one over" on the grievor, and that from now on she was "only going to ask Amanda for things", or words to that effect.

96. The grievor worked February 12 and 13, and the inmate continued to give the grievor a hard time and be non-compliant and belligerent.

97. During these two shifts, the grievor documented three instances of this behaviour and left a message for Ms. Carruthers.

98. On February 13, 2013, Ms. Carruthers called the grievor at approximately 0800 and advised that she had spoken with Dr. Oyenarron and that they (Oyenarron and Carruthers) had agreed to cut the inmate off of the medication. Ms. Carruthers stated "We support you Bernadette".

99. Thus, as of February 13, 2013, the grievor had understood that she was following all orders and that the physician and Ms. Carruthers were in agreement with her assessments.

100. This letter is rife with gross factual inaccuracies. Further, it was given just five (5) days after the grievor played an active role in the March 13 meeting criticizing and raising issues with Ms. Carruthers’ abilities as a manager, and as a nurse. This letter is a clear act of retaliation.

Job Competition (Job ID 49851) – Full-Time RN Job at North Bay Jail

Background

101. On or around January 30, 2013, the grievor submitted an application for a full-time RN position with the North Bay Jail.

102. On or around March 4, 2013, the Grievor was advised by email that she would be interviewed for the position on Friday March 8, 2013, at 3:30pm. The grievor had requested this interview day so that she could prepare on March 7, 2013.

103. The grievor asked Ms. Carruthers if she could have March 7, 2013 off in order to prepare for her the interview. Ms. Carruthers told grievor she had tried to contact everyone to work the shift, but was unable to find a replacement for the grievor’s shift.

104. Subsequently, the grievor spoke to Ms. Webster who advised she was able and willing to work the shift, but had never been contacted by Ms. Carruthers.

105. Ms. Carruthers not only lied to the grievor that she had contacted other nurses on the team to take the shift, but was also trying to deliberately interfere with the grievor’s ability to obtain the job.

Interview Process – March 8, 2013

106. Prior to being interviewed, Ms. Carruthers would constantly state in front of the grievor that she had received many applications for the job. Ms. Carruthers did so to intentionally intimidate the grievor.

107. Two weeks prior to the interview, Mr. Barnes stated to Ms. Webster : “Be careful with Bernadette. She is anti-management”, or words to that effect. Barnes did this to defame the grievor in the eyes of other nurses to ensure they would be less supportive of the grievor.

108. When the interview occurred on March 8, 2014, the grievor had a number of concerns with the interview panel. For one, Ms. Carruthers was on the panel. Also on the panel was Karen Hellenen, who had had past conflicts with Mike Bissaillon. Further, after the interview, Ms. Carruthers told the grievor, while they were in the nursing station, and in front of another nurse, that she (Ms. Carruthers) had been discussing relationships with Ms. Hellenen and that Ms. Hellenen said “I just liked to bend over and get fucked up the ass”.

109. The grievor felt very uncomfortable being told this story, and also gave her concerns about the constitution of the interview panel.

110. During the interview, Ms. Hellenen did not make eye contact with grievor. As well, the grievor was asked during the interview to identify prohibited Code grounds of discrimination under the Human Rights Code. The grievor named more than 5 and then Ms. Hellenen waived her hand and dismissively said “that’s enough”.

111. The grievor was also asked about what educational opportunities she had explored while at NBJ. The grievor found this very unfair since Ms. Carruthers had denied her leaves to pursue educational opportunities.

112. Another question was to talk about what the grievor would do if she heard someone making discriminatory remarks in the jail. The grievor explained that that had in fact happened to her at the jail when an OM was making derogatory comments about homosexual people. The grievor advised that she confronted the OM. Ms. McDougall then asked the grievor what she would do if the behaviour persisted. The grievor advised that she would speak with a manager about the issue. Ms. Dougall said in a condescending and mocking tone, “Why?” The grievor responded that she would do so to avoid further confrontation with the individual. Ms. McDougall continued to stare at the grievor with arms crossed in a disconcerting and antagonistic manner.

113. In general, all of the interviewers were cold, dismissive, and did not smile at her during the entire interview. As well, it did not appear as though the panel was writing down the grievor’s answers or otherwise taking notes.

Outcome of Competition

114. On March 25, 2013, the grievor attended an appointment with her oncologist. Ms. Carruthers was aware the grievor had that appointment that day, and texted the grievor asking that she call her, during the appointment. The grievor spoke to Ms. Carruthers the next day.

115. On March 26, 2013, Ms. Carruthers advised the grievor that she did not obtain the position. Ms. Carruthers stated in a cold tone of voice: “I am sorry you did not get the job. We have hired someone else. It’s nothing personal”.

116. The grievor responded “It’s very personal and you know it”. The grievor went on to state that she was a good nurse and shouldn’t have been overlooked for the position. She also voiced concerns about the presence of Ms. Hellenen’s presence on the panel given her prior inappropriate workplace comments.

117. The successful applicant was a recent graduate. The grievor takes the position that she was relatively equal to the incumbent in terms of skills and ability, and was senior, and therefore should have been awarded the position.

118. A day after being told she did not get the position, on March 27, 2013, the grievor received an allegation letter regarding inmate Reed’s suicide (see below).

119. Further, the grievor was also advised after the competition was complete that Ms. Carruthers had told a number of people, including Shirley Parker, Dr. Preston and others that the grievor did not score enough points in her interview. The grievor takes the position that this was defamation, humiliating, and poisoned her work environment.

March 27, 2013 – Four Grievances Submitted at Step 1

120. On March 27, 2013, the grievor went to Ms. Carruthers’ office and submitted four separate Stage 1 grievance issues, the grievances herein at issue. Ms. Carruthers refused to turn around and face her until specifically asked to do so and did not discuss the issues with her at all.

121. Later that day and after submitting these grievances, the grievor received an allegation letter from OM Barnes regarding Inmate Reed’s suicide six months prior, in October 2012.

122. The allegation meeting was scheduled to occur April 5, 2013 but was later rescheduled to April 12, 2013.

123. The next day, March 28, 2013, the grievor was in Ms. Carruthers' office for a diabetic in-service via phone, between 12:00 and 1:30.

124. Brian Maki, Ms. Carruthers’ boyfriend, was staring at her in a cold and unfriendly manner during this phone call. Mr. Maki was generally cold, unfriendly and intimidating to the grievor after she filed the four grievances against Ms. Carruthers. The grievor submitted an OR dated April 2, 2013 regarding Mr. Maki’s conduct.

125. Despite this, Mr. Maki was subsequently (approximately 3-4 weeks later) promoted to an OM position.

April 2, 2013

126. April 2, 2013 was the date that the successful applicant was to begin at the jail.

127. That morning, while the grievor was in the nursing office, Ms. Carruthers came into the office and advised the grievor that “Juliana is here”. The grievor asked who Juliana was, and Ms. Carruthers gave the grievor a belligerent and condescending look and said in a snide tone of voice that Juliana was the nurse who was taking the grievor’s job, or words to that effect.

128. The grievor felt humiliated and greatly distressed by Ms. Carruthers' comment. The grievor wrote an OR regarding the incident, dated April 2, 2013, 11:06 am.

129. The grievor contacted Mr. St. Louis shortly after and advised him what had happened. Later that morning, Mr. St. Louis came to the nursing department and spoke to the grievor, who was now with Ms. Villeneuve. Mr. St. Louis seemed irritated to be dealing with these issues and kept making efforts to find fault with the grievor.

130. Later that morning, while the grievor was performing medication rounds, she noticed Mr. Maki against staring at her in a cold and hostile manner. He had been doing this since the grievor had filed grievances against Ms. Carruthers. The grievor asked Mr. Maki if he had a problem. He did not respond. The grievor wrote an occurrence report regarding this incident.

131. At the end of the day, Mr. St. Louis called both the grievor and Ms. Villeneuve to his office. When they arrived at his office, Mr. St. Louis was with Ms. Carruthers.

132. During the meeting, Mr. St. Louis kept repeating that the grievor had received an email that her (the grievor's) replacement would be starting that day. The grievor does not recall receiving this email.

133. Mr. St. Louis made a number of cruel and insensitive comments to the grievor during the meeting. For example, he stated: “I don’t know what your problem is, you are no casual-permanent”, or words to that effect.

134. The grievor advised that she felt that the harassment had intensified because she had filed harassment grievances against Ms. Carruthers and Ms. Lucier. Mr. St. Louis responded by waiving his hands at a stack of papers on his desk stated: “I have tons of grievances to deal with. It’s no big deal”, or words to that effect.

135. The grievor asked if Mr. St. Louis had or would be speaking with Mr. Maki. Mr. St. Louis responded that that was not the grievor’s concern and that he would be dealing with it. It is not clear if Mr. Maki was ever spoken to regarding his behaviours, however, it is again worth noting that he was promoted to an OM position several weeks after this meeting.

136. Ms. Carruthers said very little during the meeting, with Mr. St. Louis effectively speaking on her behalf. As well, throughout the meeting, Mr. St. Louis had his hand on Ms. Carruthers' shoulder.

137. Ms. Carruthers never denied the comments attributed to her.

April 12, 2013 Allegation Meeting

138. During the week of April 8, 2013, the grievor called EAP and made an appointment to see someone on April 9, 2013, but was called in for a shift. She still went in for her shift and attended a counselling appointment arranged through the EAP that afternoon.

139. On April 9, 2013, the grievor received an email advising that she was to attend a meeting on Friday April 12, 2013 at the OPSEU Regional Office to deal with the allegation regarding inmate Reed’s suicide.

140. The grievor called Mr. Pitfield to discuss the meeting. Mr. Pitfield has spoken to management about the situation and the suicide allegations, and conveyed to the grievor what had been discussed. From her conversation with Mr. Pitfield, the grievor understood that Ms. Lucier and Ms. Carruthers were going to threaten that if the grievor did not withdraw her grievances and resign, they would report her to the College of Nurses.

141. The grievor felt Ms. Lucier and Ms. Carruthers were threatening and harassing her, and blackmailing her.

142. The grievor accordingly resigned as she felt she had no other option, as she felt after everything Ms. Carruthers and Ms. Lucier had done, they were more than capable of making efforts to have the grievor’s nursing license revoked.

143. As a result of this call and the issues she had been experiencing at the jail since Ms. Carruthers started, the Grievor was in deep personal distress. She felt overwhelmed and terrified that she might lose not just her job, but also her primary source of livelihood, viz., her ability to work as a nurse.

144. Accordingly, the grievor attended the meeting on April 12, 2013, however, submitted her formal resignation at that meeting, rather than run the risk of Ms. Lucier and Ms. Carruthers attempting to jeopardize her nursing license.

145. That same day, April 12, 2013, the Grievor received a letter from Ms. Lucier stating that the grievor wished to resign from North Bay Jail because she had secured other employment. This is not accurate; the grievor had not secured other employment and this was not the reason for tendering her resignation.

146. The letter also states that "it is noted that the outstanding discipline stemming from the April 5, 2013 allegation meeting, in addition to two other separate matters that were recently bought to my attention remain on file".

147. The two new incidents were issues the grievor never had a chance to respond to, and hadn't been raised previous to this letter.

Subsequent to the Grievor’s Resignation

148. On or around May 7, 2013, the grievor and Ms. Parker, Ms. Velleneuve and Ms. Webster wrote a letter to Linda Ogilvie, a manager with the Ministry regarding the issues they had been dealing with in North Bay Jail, outlined in part above.

149. Further, two other nurses resigned for underlying reasons similar to those of the grievor, namely that the workplace had become so poisoned and toxic as a result of the actions of Ms. Carruthers and Ms. Lucier.

150. On August 5, 2013, the grievor faxed in her Ministry exit survey. On that survey, she wrote a number of lengthy responses, touching upon many of the issues outlined above.

151. For example, at question 8, under reasons for leaving, the grievor wrote: "forced to resign, abuse of power, duress, harassment, intimidation, favouritism, exclusion, singling out, undermining, double standards"

152. At page 4, question 10, in response to a question about things she liked least, the grievor wrote: "Disrespect towards me by Amanda Carruthers and Ms. Lou Ann Lucier as well as white shirts (discussed in grievance material). Lack of respect shown to officers by OMs and superintendent created a stressful environment.”

153. At page 7, question 13, regarding experiences of discrimination, the grievor writes that she has suffered from discrimination: "Manager Amanda Carruthers repeatedly asked what my age was. I wouldn't give it to her. She would state "I can find out". I ignored it. Did not want retaliation".

154. In response to question 17, regarding experiences of bullying/harassment, she provided a lengthy response touching on many of the issues outlined above.

155. On August 15, 2013, the grievor filed a human rights complaint with the Human Rights Tribunal of Ontario, again raising many of the same and similar issues raised in these grievances.

156. Shortly before her forced resignation, the grievor had also just found a new apartment and had provided first and last months’ rent. As a result of being forced to resign, she had to forfeit and leave the apartment, losing her rent deposits.

Conclusions

157. As a result of management’s bullying and vindictive actions, the grievor has suffered mental distress and anguish, suicidal ideation, feelings of helplessness, severe loss of confidence, and self-esteem. She has also had difficulty sleeping, has suffered a reduced appetite, has difficulty concentrating, and has continued to suffer the migraines that were caused by Ms. Carruthers. She has also suffered severe financial distress.

158. The grievor also takes the position that she was denied the position in the competition for Job ID 49851 as a result of the discrimination, harassment and bullying outlined above.

Amendment and Corrections to May 31, 2014 Particulars

We wish to provide several amendments and corrections to the particulars that were forwarded May 31, 2014. Please note that the Grievor had not had the opportunity to review the particulars I forwarded May 31, 2014, as the hearing dates were fast-approaching and we were seeking to forward particulars as quickly as possible. The below amendments and corrections do not fundamentally alter the nature of the case or grievances and constitute relatively minor factual clarifications:

. Paragraph 3: Ms. Lucier did not question the Grievor’s competence in front of staff, although the Grievor complained to her about Ms. Carruthers doing this. Ms. Lucier did not take these concerns seriously when they were raised.

. Paragraph 12: Ms. Perchuk and Ms. Hurst were part-time casual staff, not full-time nurses.

. Paragraph 31: In respect of the reference to Labour Day 2012, the Grievor did not ask to have that weekend off – she was scheduled to have the weekend off and received a call from Ms. Carruthers asking if the Grievor could work the Saturday and Sunday. The Grievor advised Ms. Carruthers she would do so only if she could work the Monday as that would entitle her to holiday pay. The Grievor understands that Ms. Carruthers attempted to assign these weekend shifts to other nurses in the department who threatened to quit if they were assigned the shifts. The Grievor feels she would never be able to get away with threatening with Ms. Carruthers in this fashion. The Grievor was forced to cancel plans she had that weekend as a result of Ms. Carruthers’ request.

. Paragraph 45: There have been suicide watches at the jail but to the Grievor’s knowledge a staff member has never been dismissed for an actual suicide that occurred at the jail.

. Paragraph 58: The Grievor also confronted Mr. Barnes about his comments in the OM's office. She was extremely distraught about this issue.

. Paragraph 61: In addition to the particulars at paragraph 61, the Grievor and Ms. Villeneuve confronted Ms. Carruthers because she had placed Ms. McGillis on 12 hour shifts by herself when the nurses had vociferously complained about how dangerous she was and Ms. McGillis herself admitted she could not handle 12 hour shifts. Ms. Carruthers kept repeating "she is a good nurse" and would not listen to their concerns.

. Paragraph 69: In addition to the particulars listed at paragraph 69, during the meeting, the Grievor also stated that she "felt singled out” and “wanted something done about it”, or words to that effect. Ms. Lucier then hastily blurted out "I was the one who asked Amanda to call you," or words to that effect.

. Paragraph 83: Lou Ann was also present at that meeting and also dismissed the Nurses' concerns and actively involved herself in health and safety practices by trying to overrule the nurses’ concerns.

. Paragraph 138: Roch St. Louis did not have his hand on Ms. Carruthers’ shoulder at this meeting – this behaviour occurred at a previous and additional meeting that took place prior to the March, 2013 meeting.

. Paragraph 151: Only one other nurse resigned (Ms. Webster).

In addition, the Grievor relies on the following additional particulars:

1. On one occasion, Ms. Carruthers poured the Grievor’s night meds on a Saturday and after she left the Grievor realized the narcotic count was way off since she (Carruthers) had poured the AM meds instead of the night meds. The Grievor had to call Ms. Carruthers to come back and correct the count. Ms. Carruthers did not want to come back to the institution to do this. The Grievor found this very troubling because she was alone and could have been accused of stealing narcotics. The Grievor was very distressed about this until she figured out what had occurred. The Grievor insisted that Ms. Carruthers return. Ms. Carruthers did return but was clearly and visibly upset about returning, notwithstanding the seriousness of the issue.

2. On another occasion, Ms. Carruthers also left the methadone fridge unlocked on Saturday (after Good Friday), and later tried to falsely accuse Ms. Webster of doing this. The Grievor did not say anything as she feared retaliation from Ms. Carruthers

3. Ms. Lucier tried to force the nurses to take diabetic blood sugars and give insulin on the range. All of the nurses objected to this and walked out as it constituted a health and safety concern. Ms. Lucier became visibly angry by this.

7As noted previously, the evidence called by the parties focused essentially on events that occurred in the months of March and April 2013. Although the particulars overlap with this time frame, it is the testimony from witnesses that will be the primary basis for determining what occurred during these two months. In March 2013, the particulars refer to the Health Care Department meeting that took place on March 13, 2013, the letter of counsel issued to Ms. Cusack dated March 18, 2013, and the circumstances of Ms. Cusack’s eviction from the apartment she rented from a Correctional Officer at the NBJ. The testimony begins to address the relevant events starting at the time when Ms. Cusack was told that she was not the successful candidate in the competition for a permanent RN position. The significant matters addressed by the testimony include the allegation meeting relating to the inmate suicide held on April 5, 2013, the events that occurred between the allegation meeting and the discipline meeting scheduled for April 12, 2013, and what occurred on April 12, 2013, the day Ms. Cusack tendered her resignation.

8On January 24, 2013, the Employer posted a permanent regular part-time registered nurse position that provided thirty-four hours of work per week. There were quite a few applications for the position and at least eight applicants were interviewed. Ms. Cusack was interviewed for the position on March 8, 2013. Ms. Carruthers was on the interview panel. Ms. Cusack ranked fifth in the competition. Letters notifying candidates that they were not selected were dated March 25, 2013. On March 25, 2013, Ms. Cusack was in Toronto for an oncologist appointment. While at the appointment she received a text message from Ms. Carruthers asking her to call Ms. Carruthers. Ms. Cusack essentially responded in a text message that she could not handle bad news today. Ms. Cusack correctly believed that Ms. Carruthers was contacting her about the results of the job competition. Given that Ms. Carruthers knew about her oncologist appointment, Ms. Cusack felt that the attempt to contact her then with bad news was vindictive and cruel. Ms. Cusack waited until the next day to call Ms. Carruthers. When Ms. Cusack did call early in the day on March 26, 2013, Ms. Carruthers told her that she did not get the job and that it was not personal. Ms. Cusack responded that it was very personal and that they both knew it. Ms. Cusack made some other comments about the competition, including that she was the best person for the job and that the decision not to select her for the position was another form of harassment. Ms. Cusack felt that the Employer’s decision not to give her the job was premeditated and unjust and she was upset about being denied this opportunity. This led her to tell Ms. Carruthers that she can have her resignation. Ms. Cusack testified that Ms. Carruthers then asked her if she could stay on to train the new people.

9After speaking with Ms. Carruthers, Ms. Cusack called the Health Care Department at the NBJ. Ms. Villeneuve and Ms. N. Webster were the nurses on duty at the time and she told them that she did not get the permanent nurse position. Ms. Cusack testified that they were both extremely upset at hearing this news. Ms. Cusack then called Mr. Bissaillon and told him what had happened. Ms. Cusack testified that he told her that the Employer was trying to get her to resign, not to make it easy them and to retract her resignation. Ms. Cusack then left a voicemail message for Ms. Carruthers advising her that she was retracting her resignation and she sent her a similar text message. In just a little more than one hour during the morning of March 26, 2013, Ms. Cusack had resigned her employment at the NBJ and she had retracted her resignation. There were a few emails between Ms. Carruthers and Superintendent Lucier that illustrate that Ms. Carruthers kept Ms. Lucier advised about her interaction with Ms. Cusack that morning. After Ms. Cusack retracted her resignation, Ms. Carruthers advised Ms. Lucier by email as follows: “And she has retracted her resignation …sigh.” Ms. Cusack subsequently received the March 25, 2013, letter from Ms. Carruthers advising her that she had not been successful in obtaining the permanent RN position.

10As noted above, Ms. Cusack was disappointed when she was not the successful candidate in the competition. She believed that the posted job was in effect the fixed term position that she held and she anticipated that by not obtaining the posted job she would be getting fewer hours at the NBJ. Some of her nursing colleagues at the NBJ were also disappointed in the outcome of the competition. Ms. Villeneuve and Ms. Webster were sufficiently troubled about the result that they went to see Ms. Lucier to express their concerns. Ms. Villeneuve and Ms. Parker testified that they and Ms. Cusack were disturbed and distraught when Ms. Cusack did not get the permanent nursing position. Ms. Parker indicated that Ms. Cusack felt that the posted nursing position belonged to her and that the selection of another candidate was further evidence of a conspiracy by the Employer to get her out of the NBJ. Ms. Villeneuve and Ms. Parker testified that Ms. Cusack did not discuss resigning with them as a result of not securing the permanent nursing position.

11It was near the end of her shift on March 27, 2013, that Ms. Cusack presented Ms. Carruthers with the four stage one complaints. Ms. Villeneuve was present as a witness when Ms. Cusack initiated the grievance process. Ms. Villeneuve testified that Ms. Cusack’s objective in making the complaints was to have Ms. Carruthers and Ms. Lucier held responsible for their actions against her and to have them removed from the NBJ. By letter dated April 3, 2013, Ms. Carruthers advised Ms. Cusack that her stage one complaints had been denied.

12On the day after she presented her complaints to Ms. Cusack, Ms. Cusack received an allegation letter dated March 27, 2013, signed by Ms. Lucier. The letter set out four allegations against Ms. Cusack concerning her conduct in relation to the suicide of an inmate.

13On November 7, 2012, an inmate was discovered shortly after 1:00 a.m. without vital signs, strangling from a ligature anchored to the cell door. He was pronounced deceased later that morning at the North Bay Regional Health Centre. Inspector J. Micucci conducted a Correctional Investigation and Security Unit (“CISU”) investigation into the sudden death of the inmate. He interviewed seven individuals during the investigation, including Ms. Cusack. His written report was submitted to the Regional Director of the Northern Region on March 14, 2013. Inspector Micucci concluded in his report that certain staff members failed to follow proper procedure when dealing with the inmate. He found that Ms. Cusack’s conduct was deficient in four respects. Superintendent Lucier reviewed the CISU report and then prepared allegation letters. The allegation letter to Ms. Cusack dated March 27, 2013, sets out the following allegations:

1. You failed to immediately assess inmate REED when you became aware of the heightened risk of suicide assessment.

2. You failed to complete the “Suicide Screening Tool” as required by the Standing Orders.

3. You failed to properly document your assessment and treatment of inmate REED in the Health Care Record, Part “D”.

4. You failed to follow the Ministry’s Suicide Policy.

14Ms. Cusack found the allegations against her extremely disturbing and felt that Ms. Lucier’s decision to pursue this matter was another form of harassment. She believed also that this action was in retaliation for her past criticism of certain Operational Managers for failing to place inmates on a suicide watch. Ms. Cusack testified that some of her nursing colleagues were “outraged” when she told them about the allegations and Dr. Preston was upset about them as well. Ms. Villeneuve and Ms. Parker testified that they believed the allegations against Ms. Cusack were unjustified and that Ms. Cusack was very upset about being implicated in an inmate’s suicide. Ms. Villeneuve testified that it was unheard of that a nurse could be held responsible for the death of an inmate and that if Ms. Cusack could be held responsible when exercising her professional judgment in assessing whether an inmate is a suicide risk, then any nurse could be held responsible in such circumstances.

15The allegation meeting on April 5, 2013, was held in the Superintendent’s office at the NBJ. Ms. Lucier and Mr. R. St-Louis, Deputy of Operations, attended for the Employer. Mr. Pitfield attended the meeting with Ms. Cusack. The purpose of the allegation meeting from the Employer’s perspective was to give Ms. Cusack the opportunity to address the allegations. Without detailing what occurred at the meeting, I note that Ms. Cusack was disappointed with what occurred at the meeting. In particular, she had expected that the Employer would have made certain documents available and they were not made available. She was also disappointed that no one else from Health Care was at the meeting. When asked how she felt about the allegation meeting, Ms. Cusack indicated that she was distressed because of management’s lying, their lack of ethics and the unprofessional nature of the meeting. She felt that they were not going to investigate what she told them, that their conduct represented further harassment against her, that the allegations were just a vehicle to get rid of her and that she could not trust management. She believed that any health care person would know that you cannot predict whether an inmate would commit suicide and that it was not appropriate to place blame on a nurse in these circumstances. Ms. Cusack also expressed the view that Ms. Lucier’s meddling with nursing decisions spoke volumes about the nature of her relationship with Ms. Carruthers. The Employer concluded the allegation meeting by advising the Union that it would soon provide Ms. Cusack with a decision on the allegations.

16Ms. Cusack agreed to work an overtime shift on Tuesday, April 9, 2013. She started her shift in the morning, attended an Employee Assistance Program (“EAP”) session at 2:00 p.m. at Callandar and returned to complete her shift. It was during this overtime shift that Ms. Cusack was handed a letter signed by Ms. Lucier advising her to attend a discipline meeting to be held on April 12, 2013, at the Union’s regional office at North Bay. Ms. Cusack testified that she reacted to receiving the letter by nearly collapsing and that she felt despair and suicidal. Since she did not know exactly what the meeting signified, Ms. Cusack called Mr. Pitfield from work and asked him what the letter meant. In a brief conversation Mr. Pitfield told her that it may mean that the Employer intended to terminate her employment. Ms. Cusack testified that the entire jail became aware of how upset she was. She indicated that COs gave her hugs, said goodbye and were telling her not to quit. She also indicated that inmates were also wishing her well. Ms. Cusack testified that she was not contemplating resigning at that time, that she did not talk to anyone about quitting and that the COs just formed their own conclusions about her quitting. Ms. Cusack completed her overtime shift and then went home.

17Ms. Cusack testified that soon after arriving at her apartment she received a call and had a phone conversation with Mr. Pitfield and Mr. Bissaillon. She indicated that the conversation started with Mr. Bissaillon asking her how important her nursing license was to her. She testified that she asked Mr. Bissaillon what he meant and Mr. Pitfield told her that the Employer wanted her to take back her grievances and resign or the Employer will terminate her employment and report her to the College of Nurses of Ontario (“CNO”). Ms. Cusack testified that upon hearing this she wanted to call the Police and file a report against Ms. Lucier and Ms. Carruthers because what they wanted was criminal and unethical. She indicated that Mr. Pitfield told her that he did not want to call the Police because he had received this information confidentially from someone outside of the NBJ. Ms. Cusack indicated that they did not discuss her resigning, but Mr. Pitfield did raise some of the options that were available to her. The discussion covered a number of matters including the Suicide Policy, the grievances she had initiated, what a report to the CNO would mean for Ms. Cusack, the likely outcome of the April 12, 2013, meeting and the nature of the arbitration process. Ms. Cusack indicated that the discussion ended with Mr. Pitfield telling her that he would see her at discipline meeting, which was scheduled for 10:00 a.m. on Friday, April 12, 2013.

18From her testimony, Ms. Cusack’s understanding of the situation from her discussion with Mr. Bissaillon and Mr. Pitfield was as follows. She was quite sure that her employment at the NBJ would be terminated at the Friday meeting. The fact that the meeting was to take place outside of the NBJ confirmed for her that her termination would be the likely outcome. She knew from Mr. Pitfield that one of her options was to let the Employer proceed with the termination of her employment and file a grievance challenging the termination. The other option was to resign. She believed that the Employer was threatening her in order to intimidate her and to force her to resign. She felt that a report to the CNO would tie her up in an investigation that would have an emotional impact. And there was always the risk that such an investigation could lead to the loss of her nursing license. Given this and her general mistreatment by the Employer, Ms. Cusack felt that she actually had no choice. She was told that arbitration is a lengthy process and that it was difficult to get reinstated if terminated. She was determined not to let the Employer bully her into dropping the grievances because she wanted Ms. Lucier and Ms. Carruthers to be held accountable for their conduct. She indicated that she would not drop the grievances, even if the Employer was prepared to pay her a million dollars and that Mr. Pitfield assured her that the Union would proceed to arbitration with her grievances.

19After her discussion with Mr. Bissaillon and Mr. Pitfield, Ms. Cusack was distraught and did not want to stay by herself. She drove to Ms. Webster’s home and stayed with her for a number of days. Ms. Cusack was not scheduled to work on the Wednesday and Thursday, the days just before the Friday discipline meeting. On the Wednesday she started looking for a job by sending out resumes. Ms. Cusack indicated that she did this because she was about to lose her job at the NBJ and she was concerned about a lack of income. She indicated that it was for this reason as well that she inquired about the money she had contributed to her pension. By email, Ms. D. Tregunna, an employee at the NBJ, informed Ms. Cusack that Mr. D. Armstrong was the person to contact about pension issues. On Thursday, April 11, 2013, at 6:32 p.m., Ms. Cusack sent Ms. Tregunna an email thanking her and then wrote: “I started two jobs and I am going to check if they have the same pension. If they do I will just roll it over.” Late in the evening on April 11, 2013, Ms. Cusack left a voice mail message for Mr. Anderson. After indicating who was calling, Ms. Cusack stated that she will probably be “canned” on Friday, then briefly laughs, and continues by saying that she just got two new jobs and has an interview on Monday. She then made her pension inquiry and asked Mr. Anderson to call her. Ms. Cusack sounded very upbeat when she left the message for Mr. Anderson. In her testimony, Ms. Cusack indicated that she did have an interview scheduled for the Monday, but she did not have two jobs at that time. She testified that she said that she had two jobs because she was upset and she did not want the Employer to know that she was hurt by their actions. She indicated that it was a matter of pride that led her to say that she had two jobs. The Union filed two Record of Employment (“ROE”) forms issued by two employers who had employed Ms. Cusack. An ROE issued by the Georgian Bay General Hospital in Midland records that Ms. Cusack’s first day worked was May 7, 2013, and her last day of work was February 5, 2014. Ms. Cusack indicated that she applied for this job while she was at the NBJ and that she did have a job interview at the Sturgeon Falls Hospital on Monday, April 15, 2013, three days after she had resigned. An ROE issued by Hillcrest Village Inc. in Midland records that Ms. Cusack started working there on October 29, 2013, and that her last day of work was March 4, 2014.

20Ms. Lucier and Mr. Pitfield also gave evidence about what occurred between the allegation meeting and the discipline meeting held on April 12, 2013. Ms. Lucier did not have any discussions with Ms. Cusack after the allegation meeting. Following the allegation meeting, she consulted with a number of individuals, including Ms. L. Ogilvie, an RN and Manager, Corporate Health Care, about the discipline that should be given to Ms. Cusack. She ultimately decided that the seriousness of Ms. Cusack’s conduct warranted the termination of her employment. Ms. Lucier was cross-examined in considerable detail about the decision to fire Ms. Cusack and she responded that it was absolutely not the case when Union counsel put to her that she was using the death of the inmate to get Ms. Cusack out of the NBJ. Ms. Lucier prepared Ms. Cusack’s termination letter a couple of days before the discipline meeting and dated it April 12, 2013. She did not give the termination letter to Ms. Cusack on that day because Ms. Cusack resigned. Ms. Lucier made the following handwritten note on the termination letter: “not issued - as she resigned.”

21Ms. Lucier testified that Mr. Pitfield called her at 5:00 p.m. on the day before the discipline meeting. She indicated that they had a good relationship and that he would often call her to discuss matters informally. She testified that Mr. Pitfield asked her if she would accept Ms. Cusack’s resignation if she resigned and that she responded by saying that it was Ms. Cusack’s choice. Ms. Lucier also recalled that Mr. Pitfield asked her not to terminate Ms. Cusack’s employment as a way of trying to discover her intentions and that she simply told him that she would see him at the meeting the following day. From her testimony, it appears that Ms. Lucier did not recall discussing the matter of reporting Ms. Cusack to the CNO. However, she was asked in chief if she had planned on reporting Ms. Cusack to the CNO and she stated that she did not intend to make such a report and that she was not aware that she was obliged to at the time. She testified that it was only sometime after Ms. Cusack resigned that she discovered that the Employer had an obligation in such circumstances to report a nurse to the CNO. During her cross-examination, Union counsel showed Ms. Lucier an email dated March 26, 2013, that she had received from Ms. Ogilvie. In this email Ms. Ogilvie refers to a number of matters and made the following comments about reporting Ms. Cusack to the CNO: “With respect to a CNO report, it is not mandatory unless you intend to terminate her (or believe her to be incompetent or incapacitated). Although not mandatory, I would advise that a report be sent to the CNO as I believe this is a serious incidence of negligence and failure to adhere to CNO practice standards - which had a direct impact on the outcome (i.e. death) for this inmate.” Ms. Lucier agreed that the contents of the email contradicted certain aspects of her testimony about the CNO. She indicated that she could not recall earlier discussions with Ms. Ogilvie about the subject and reiterated that her focus was not on reporting Ms. Cusack to the CNO, but rather on the disciplinary process. Ms. Lucier maintained that at no time did she tell Mr. Pitfield that she would report Ms. Cusack to the CNO if she did not resign.

22Mr. Pitfield testified that Ms. Cusack was frustrated after the allegation meeting because of the way the Employer had treated her, but that she gave no indication that she intended to resign. He indicated that he did have a discussion with Ms. Lucier in which she told him that the allegations against Ms. Cusack were serious and she mentioned reporting her to the CNO. He viewed her comments as not unusual. He asked Ms. Lucier if she had any interest in talking about the case before the discipline meeting and she indicated that she had no such interest. He testified that he never told Ms. Lucier that Ms. Cusack would be resigning, but he did ask her if she would consider not making a report to the CNO if Ms. Cusack was no longer an employee of the Ministry and that Ms. Lucier told him that she would probably not go through with reporting her to the CNO in such circumstances. Mr. Pitfield indicated that, following his discussion with Ms. Lucier, he did convey to Ms. Cusack that there was the potential for the termination of her employment and a report to the CNO, but that the Employer would not likely make a report to the CNO if she resigned. Mr. Pitfield did not recall telling her that the Employer wanted her to drop her grievances and he could not recall a three-person phone discussion on April 9, 2013, between Ms. Cusack, Mr. Bissaillon and himself. Going into the meeting on April 12, 2013, Mr. Pitfield thought it was possible that Ms. Lucier would terminate Ms. Cusack’s employment.

23As noted previously, Ms. Villeneuve and Ms. Parker were colleagues and friends of Ms. Cusack. Part of their testimony covered some of their discussions with Ms. Cusack before the discipline meeting. Ms. Villeneuve indicated that a significant concern and worry for Ms. Cusack was how she was going to support herself given that she was not successful in the job competition and she might be fired. When asked about whether Ms. Cusack discussed the issue of the CNO with her, Ms. Villeneuve recalled that Ms. Cusack told her that the Employer would not report her to the CNO if she resigned. She indicated that Ms. Cusack felt that she had no choice given that she wanted to keep her nursing license and was fighting for her livelihood. Ms. Villeneuve testified that “we tried to convince her not to resign.” Ms. Parker also recalled that Ms. Cusack told her that the Employer would contact the CNO if she did not resign. From her discussions with Ms. Cusack, Ms. Parker understood that Ms. Cusack did not know if she could stay at the NBJ because she could not afford to be fired or to lose her nursing license.

24This takes us to the discipline meeting on April 12, 2013, at the Union’s regional office at North Bay. Ms. Cusack, Mr. Pitfield and Ms. Lucier testified about what occurred at that meeting. Their descriptions of what took place were not entirely consistent.

25Ms. Cusack’s version of what happened at the meeting is as follows. She met Mr. Pitfield and he took her to a room where she sat by herself for a while. Mr. Pitfield came back to the room, told her that the Employer representatives had arrived and that the Employer had decided to terminate her employment. Mr. Pitfield then advised her that the best thing for her to do was to resign. When she asked him about the grievances, Mr. Pitfield told her that he would call Human Resources so the grievances would go right to arbitration. She considered what Mr. Pitfield had to say and then told him that she would resign. Ms. Cusack indicated that she decided to resign because Mr. Pitfield assured her that this was her best recourse to get her job back since she was not going to drop the grievances, including the grievance alleging unfair hiring practices. Mr. Pitfield placed a paper with the Union’s letterhead in front of her, she wrote out her resignation and Mr. Pitfield took it and gave it to the Employer. He then returned to the room and told her “It was done” and that he would be in touch with her about the grievances. During cross-examination Ms. Cusack was asked if she understood at the time that by resigning she would no longer be an employee at the NBJ and she responded that she did understand this and that was why she wanted to make sure that her grievances would go ahead. Ms. Cusack did not have any interaction with Ms. Lucier while she was at the Union’s office.

26Ms. Lucier’s description of what occurred at the Union’s office is as follows. Mr. Pitfield approached her and Mr. St. Louis in the front foyer of the office and asked if he could speak to her. He told her that Ms. Cusack was going to resign. She told Mr. St. Louis that he could leave and he left. She then went into a room off the foyer and she never did see Ms. Cusack. When Mr. Pitfield joined her in the room he reiterated that Ms. Cusack was going to resign. He told her that Ms. Cusack had secured employment at two other places and then said “It’s all good.” Ms. Lucier said that was fine and asked if she could get the resignation in writing. Mr. Pitfield left and returned a few minutes later and gave her Ms. Cusack’s written resignation. After reading it she asked if the letter could be dated. Mr. Pitfield left and returned with the date on the resignation letter. She thanked Mr. Pitfield and left to return to the NBJ. She was asked by Employer counsel if at any point on that day did she tell Mr. Pitfield that she would report Ms. Cusack to the CNO if she did not resign. Ms. Lucier responded by saying “Absolutely not.” She could not recall if Mr. Pitfield mentioned Ms. Cusack’s grievances.

27Mr. Pitfield’s testimony about his recollection of what occurred on April 12, 2013 is as follows. The Employer and the Union side were in separate rooms. He went to speak to the Employer representatives to get a heads up on what they planned to do. Ms. Lucier told him that she had decided to terminate Ms. Cusack’s employment, but if Ms. Cusack wanted to reign, she would accept the resignation and not go forward with a report to the CNO. He was not outraged by this and he did not consider Ms. Lucier’s statement to be a threat because he had seen this approach before and he had previously discussed with Ms. Lucier the hypothetical about what would happen if Ms. Cusack was no longer an employee of the Ministry. He simply took Ms. Lucier’s position to be that she intended to terminate Ms. Cusack’s employment because of the serious allegations, but she would permit Ms. Cusack to resign and not report her to the CNO if she resigned. He described this approach as a polite form of blackmail. He told Ms. Lucier that the Union would go ahead with Ms. Cusack’s grievances even if she decided to resign. He then left to discuss the situation with Ms. Cusack. He relayed to Ms. Cusack what Ms. Lucier had told him. Ms. Cusack was upset that the decision not to report her to the CNO was linked to her resigning, but they then had a discussion for five to ten minutes about what Mr. Pitfield described as the “pros and cons” of her options. Ms. Cusack could grieve her termination and proceed to arbitration with her other grievances, or she could resign, avoid a report to the CNO and still pursue her other grievances. He told Ms. Cusack that it was up to her to decide what she wanted to do. He understood that Ms. Cusack wanted to pursue her other grievances so that management could be held accountable for their conduct. Her concern about her competition grievance was that the process was flawed, but he could not recall whether they discussed trying to get her job back. He indicated that he did not advise Ms. Cusack that the best way to get her job back was to resign when Union counsel directly asked him about this. Ms. Cusack told him that she already had other work and that she was concerned about the impact that a report to the CNO would have on her work. Ms. Cusack thought about her options and then told Mr. Pitfield that she had decided to resign, given that she had another job and the Union would be going ahead with her grievances. Mr. Pitfield advised the Employer of Ms. Cusack’s decision and Ms. Lucier asked for the resignation in writing. Ms. Cusack wrote out her resignation with a little assistance from Mr. Pitfield and he brought the resignation letter to Ms. Lucier. Ms. Lucier asked Mr. Pitfield for Ms. Cusack’s Ministry identification, etc. and the meeting ended.

28When Ms. Lucier got back to her office at the NBJ, she advised the ADM at the Ministry’s regional office about the outcome of the meeting and she prepared and sent a letter to Ms. Cusack acknowledging her letter of resignation. The second paragraph of the letter dated April 12, 2013, reads as follows:

As you are aware, there was a meeting scheduled with you this morning at 1000 regarding the outcome of a disciplinary hearing. Prior to the commencement of the hearing your representative, Mr. Blair Pitfield, indicated that you did not want to proceed with the meeting, as you wished to resign from your employment with the North Bay Jail because you had secured other employment.

Ms. Cusack received this letter about a week after it had been sent and she was upset about the comment attributed to Mr. Pitfield concerning why she resigned. Ms. Cusack testified that she called Mr. Pitfield and asked him why he told Ms. Lucier that she had secured other employment. Ms. Cusack indicated that Mr. Pitfield denied that he had told Ms. Lucier that she had obtained employment.

29I noted previously an email about a pension enquiry that Ms. Cusack sent to Ms. Tregunna the day before she resigned and in which Ms. Cusack had indicated that she had just started two new jobs. On the morning of April 12, 2013, Ms. Tregunna responded by email advising Ms. Cusack to let her know if she needed more assistance. Ms. Cusack responded to that email on April 14, 2013, two days after she had resigned. The first two sentences of her email read as follows: “It’s a terrible time for nurses. Nathalie is resigning as well…”

30Ms. Cusack prepared her four grievances dated April 16, 2013, with the assistance of Mr. Bissaillon. These grievances were filed with the Employer and were to proceed directly to arbitration. None of her four grievances dated April 16, 2013, take the position that she wanted to rescind her resignation.

31The Union’s evidence covered other events that occurred after Ms. Cusack had resigned on April 12, 2013. The Union considered this evidence relevant to the question of whether Ms. Cusack had resigned voluntarily.

32Together with three of her former nursing colleagues at the NBJ, Ms. Cusack was signatory to a letter dated May 7, 2013, to Ms. Ogilvie. The letter referenced some of the deplorable conditions the nurses claimed to have endured and the letter ended by asking Ms. Ogilvie for help. The letter noted that, “two nurses were forced to resign under duress and harassment.” Ms. Cusack testified that she participated in this endeavour because she was concerned for the other nurses at the NBJ. Asked by Union counsel if she had expectations of going back to the NBJ when the letter was sent to Ms. Ogilvie, Ms. Cusack indicated that she would go back, but she wanted the issues she had identified to be addressed. Ms. Cusack also noted that the three other nurses who signed the letter, namely Ms. Villeneuve, Ms. Parker and Ms. Webster, had filed a group grievance in which they claimed that they had been bullied and harassed by Ms. Carruthers and Ms. Lucier. I was advised at an early stage of this proceeding that this group grievance had been settled.

33Ms. Cusack completed an Exit Interview Survey (the “Survey”) sent to her by the Ministry about four months after she had resigned. In her answers to some of the Survey questions, Ms. Cusack referred to some matters set out in the particulars filed by the Union. In response to the question about her reason for leaving, she checked off the box indicating that she had an employment opportunity within the OPS and under other reasons she wrote, among other things, that she was forced to resign. To the question of whether she would consider returning to work for the Division, Ms. Cusack checked off undecided. She testified that she checked off undecided because she wanted to see how the issues she had raised would be addressed.

34In an application dated August 15, 2013, Ms. Cusack made a complaint of age discrimination to the Human Rights Tribunal. While celebrating a birthday in February 2013, she had mentioned that Ms. Carruthers had often asked her how old she was. She was told that this was age discrimination and that she should make a complaint about it. She noted at least twice in her application that she had been forced to resign her employment at the NBJ.

35At the conclusion of the Union’s evidence, Union counsel filed two documents relating to counseling and therapy sessions that Ms. Cusack had received. The first document consists of clinical notes for a number of EAP sessions, starting on April 9, 2013. Ms. Cusack had testified about leaving work to attend an EAP session on April 9, 2013. The other document consists of a report from a therapist and her clinical notes. Ms. Cusack began seeing the therapist in September 2013. The Union did not intend to call the counselor or the therapist to testify and Union counsel advised that the documents were not being produced to establish that Ms. Cusack did not have the capacity to resign voluntarily. When the documents were filed, I advised counsel that they could make submissions during final argument as to what weight, if any, should be given to the information in these documents. Not surprisingly, Employer counsel took the position that the information contained in these documents should be given no weight, given that the authors of the documents did not testify and were not available for cross-examination. Having considered this matter, I agree with Employer counsel’s submission that the information in these documents should not be afforded any weight. I note that the information in the documents would have confirmed Ms. Cusack’s testimony about her emotional state during the latter part of her employment at the NBJ.

36Counsel made extensive submissions during the course of the two hearing days that it took to complete final argument. I do not intend to review their submissions in detail. They both thoroughly reviewed the evidence and made submissions on what factual determinations should be made having regard to all of the evidence.

37Union counsel submitted that I should prefer Ms. Cusack’s testimony where it conflicted with the testimony of other witnesses and he referred to a number of factors to support the Union’s contention that Ms. Cusack’s resignation was not voluntary. He noted in particular the harassment Ms. Cusack was subjected to by Ms. Lucier, Ms. Carruthers and some Operational Managers. He also noted that Ms. Cusack believed that she had been threatened by the Employer indirectly when she understood that it wanted her to withdraw her grievances and resign or it would terminate her employment and report her to the CNO. Union counsel submitted that a forced resignation was not a voluntary resignation. Counsel argued that the loss of the permanent nurse position, the Employer allegations against her in relation to the death of an inmate and Ms. Lucier’s decision to discharge her based on those allegations had an emotional impact that precluded Ms. Cusack from making a voluntary decision to resign. Union counsel also submitted that Ms. Cusack’s resignation was tendered in the heat of the moment with a hastily written letter and that Ms. Cusack had tirelessly sought reinstatement to her job at the NBJ. During the course of his submissions, Union counsel referred me to the following decisions: Re Anchor Cap & Closure Corp. and United Electrical, Radio and Machine Workers of America, Local 512 (1949), 1 L.A.C. 222 (Finkelman); OPSEU (Knox) v. Ontario (Ministry of Attorney General), [2010] O.G.S.B.A. No. 249 (Abramsky); Re Save-On Foods and Christian Labour Assn. of Canada (1999), 1999 CanLII 35963 (AB GAA), 82 L.A.C. (4th) 169 (Sims); Re Goodyear Canada Inc. and United Steelworkers of America, Local 189 (2002), 107 L.A.C. (4th) 239 (Goodfellow); Re Toronto Star Newspapers Ltd. and Southern Ontario Newspaper Guild (1990), 1990 CanLII 12879 (ON LA), 12 L.A.C. (4th) 273 (Brent); Re Toronto District School Board and C.U.P.E. (2003), 2003 CanLII 89635 (ON LA), 117 L.A.C. (4th) 289 (Shime); Re Automotive Industries/Weston Division and A.C.T.W.U., Loc. 1813 (1988), 2 L.A.C. 9 (4th) (Jolliffe); Re Lewisfoods Inc. and U.F.C.W., Loc. 175 (2002), 108 L.A.C. (4th) 266 (Stephens); and, Re Beacon Hill Lodge, Ottawa and O.N.A. (1985), 1985 CanLII 5436 (ON LA), 17 L.A.C. (3d) 65 (Brent).

38Employer counsel argued that all of the circumstances in this case compel the conclusion that Ms. Cusack resigned voluntarily on April 12, 2013. She submitted that the evidence did not support the conclusion that the Employer directly or indirectly threatened or placed any undue pressure on Ms. Cusack that would have the effect of nullifying her resignation. Counsel submitted that Ms. Cusack had been considering her options in the days preceding her resignation, she discussed the pros and cons of her situation with Mr. Pitfield on April 12, 2013, and in the end she made a considered and deliberate decision to resign her employment at the NBJ. Counsel argued that the stressful and emotional situation Ms. Cusack found herself in was not unusual in the circumstances and had no impact on her ability to resign voluntarily. Counsel noted that Ms. Cusack made no effort within a reasonable time after she resigned to contact the Employer or the Union to retract her resignation. In addition to OPSEU (Knox), supra, Employer counsel relied on the following decisions in support of her submissions: Re Meadow Park Nursing Home and Service Employees, Loc. 210 (1993), 1993 CanLII 16759 (ON LA), 36 L.A.C. (4th) 283 (Brandt); Murray and Ministry of Revenue (1977), GSB No. 34/76 (Beatty); Re Motorways Direct and Teamsters Union, Loc. 880 (1988), 1988 CanLII 9263 (ON LA), 35 L.A.C. (3d) 11 (M. Picher); Industrial, Wood, and Allied Workers of Canada, Local 1000 v. Norceram Products Inc., [2004] O.L.A.A. No. 919 (Chodos); Re Canada Packers Inc. and United Food and Commercial Workers, Local 114-P (1984), 17. L.A.C. (3d) 1 (Rayner); OPSEU (Kolmann) and Ministry of the Solicitor General & Correctional Services (1997), GSB No. 1372/92 (Mikus); Re Wellesley Central Hospital and Service Employees International Union, Local 204 (1996), 1996 CanLII 20321 (ON LA), 61 L.A.C. (4th) 433 (Gray); Re Teck Highland Valley Copper and United Steelworkers, Local 7619 (2010), 193 L.A.C. (4th) 369 (McPhillips); OPSEU (Marsh et al.) and Ministry of Community Safety and Correctional Services (2014), GSB No. 2011-0951 et al. (Stephens); OPSEU (Goossen) and Ministry of Community and Social Services (1998), GSB No. 1898/93 (Roberts); OPSEU v. Ontario (Ministry of Transportation), [2006] O.G.S.B.A. No. 1 (Abramsky); R. (S.) v. Ontario (Superintendent Financial Services), 2014 CarswellOnt 1833 (Shilton); and, Watson Lumber Company and United Steelworkers, Local 1-2010, 2013 CanLII 34421 (ON LA) (Surdykowski).

39As the decisions cited to me illustrate, there have been numerous situations in which arbitrators have been called upon to determine whether an employee voluntarily quite his or her employment. The principles that govern the exercise of deciding whether a resignation is voluntary have been in place for well over half a century. In Re Meadow Park Nursing Home, supra, arbitrator Brandt summarized the appropriate test to apply as follows:

The law in this area is quite clear. In order that an employee be found to have effectively resigned her employment it must be demonstrated not only that she had a “subjective intention” to resign but also that this intention be confirmed by some “objective conduct”. The concern that underlies this doctrine is that resignations frequently are offered in the heat of the moment or at times of some personal stress and that they may not express the employee’s real wishes. Consequently, arbitrators have looked at conduct over and above the expression of a desire to resign employment in order to satisfy themselves that the intention to resign is one which is continuing and real…

40The question of whether an employee had a real and continuing intention to resign, of course, depends on the facts of any given case. For this reason it is unnecessary to review all of the decisions that were cited by counsel. However, it is instructive to review some decisions to see which factors in all of the circumstance have been particularly relevant to the determination of whether an employee had a true and continuing intention to resign. Some of the relevant factors in the following decisions are present in the instant case.

41In Re Motorways Direct, supra, the grievor had been charged with serious criminal offences involving children and he submitted a written note of resignation to his employer. The employer did not accept the resignation, asked the grievor to give the matter some more thought and told him that his resignation would be accepted if it was witnessed by a union steward. The employer accepted a subsequent resignation note from the grievor who had been accompanied by a union steward. The grievor later filed a grievance alleging unjust discharge. The union argued that his resignation was not voluntary because of his mental intelligence and his mental state at the time he resigned. The arbitrator concluded that the grievor had voluntarily resigned. After reviewing some decisions, arbitrator M. Picher made the following observations at paragraph 21:

…The central issue is whether in the circumstances confronting the grievor at or about the time he tendered his resignation effective January 5, 1987, he can be said to have been in such a state of mind and emotion that his act in doing so was not free and voluntary. In cases of this kind it is critical to recall the distinction between the stress that any individual faces when he or she is called upon to make a difficult choice in trying circumstances, and the pressure or duress which impacts on an employee as a result of threats or inducements, either expressed or implied, by his or her employer. In the first instance the employee may be under pressure, but it is the pressure of external circumstance, usually not of the employer’s making. Life often involves making hard choices. While in dealing with such issues it is unwise to generalize, in many cases it will be difficult to draw a causal link between the sheer hardship of the employee’s circumstances and the voluntariness of his or her decision to resign. Where, however, as in the Beacon Hill case, the employer superimposes a degree of pressure by the utterance or even the suggestion of a threat or inducement, quite apart from the stress of the employee’s situation, the case for the involuntariness of the resignation may be more compellingly made out. In neither case however, is it particularly instructive to find that the employee did not “want” to resign. It is part of the human condition that individuals must, on occasion, make decisions and take courses of action which they find unpleasant and would prefer to avoid. Reluctant resignation is not involuntary resignation merely because it represents an outcome not of the employee’s own desiring. The true question is whether the employee did exercise a sufficient degree of independent judgment in the circumstances. Such factors as the time afforded to the employee, the availability of independent advice whether through a union representative, legal counsel or otherwise, and the expression of threats or promises by an employer, as well as all of the statements and conduct of the employee immediately before, during and after his resignation are pieces of evidence to be weighed in the over-all determination of whether he or she had the capacity to formulate an independent intention to resign and voluntarily did so.

42It was determined in Re Beacon Hill Lodge, supra, that the resignation of a nurse was not voluntary. Without prior notice and union representation, the nurse was confronted by the employer near the end of her night shift about a number of performance issues and told that the employer wanted her resignation effective immediately and that it did not want to harm her nursing career any further. Her request for time to consider the matter was denied. The nurse signed a letter of resignation with the understanding that she was being fired. Later that same day the nurse prepared a letter of retraction with the assistance of the union. The majority of the Board made the following observation at paragraph 45:

Although we accept that employers can suggest resignation as an alternative to an employee without necessarily jeopardizing the voluntariness of the decision to resign, we do not accept that such resignation can be obtained through the exertion of such pressure as would lead a reasonable person to conclude that the employee did not resign voluntarily. While evidence of intent may be seen as self serving, where the evidence of all the circumstances are such that there is obvious pressure placed on an employee who is vulnerable to pressure under the circumstances, then it is difficult to accept that the resignation reflected an act of the employee’s own free will. Such a conclusion is reinforced when the employee’s first reaction to the events is that she had been fired.

The majority of the Board made the following further observation at paragraph 38:

In each case cited to us, where the suggestion of resignation was employer- initiated and was found to be voluntary, the employee had a history of discipline or documented poor work performance, and the offer of resignation was made in the course of a meeting called to discuss the latest incident. That is, in each case the employee knew before the meeting that he/she was in some sort of trouble with the employer and was reasonably expecting that the employer would take some action against him/her. In situations where the nature of the meeting is known in advance the employee is in a position to prepare him/herself to answer allegations, to seek advice, and to contemplate alternatives he/she might take – even including resignation.

43One of the decisions considered by the Board in Re Beacon Hill Lodge, supra, was an unreported decision also involving the issue of whether a nurse resigned voluntarily. The Board described the essential features of the St. Joseph’s Hospital decision as follows at paragraph 35:

…the employee was serving her second probationary period with the employer and was summoned to a meeting with the director of nursing. The employee was given at least two days’ notice of the meeting and knew that it was to discuss criticism of her recent performance on her tours. After a review of the complaints, the employee was told she could either resign or stay until the end of her probationary period with little chance of being retained. She was also told that if her employment was terminated the employer was required to report it to the College of Nurses and that resignations were not usually reported. The employee indicated that she had discussed the possibility of resigning with a friend the day before and that she was considering alternate areas of employment in nursing. Following the submission of the letter she made no attempt to return to work and did not approach the union for several days. There were some disputes concerning whether the hospital had offered the employee time to consider her option, etc. The majority of the Board concluded that there was no coercion and at the top of p. 6 said:

The choices were unpleasant but the grievor exercised her own judgment in choosing between them. We are satisfied that [the employer] did not in any way force [the employee] to decide the matter in haste and we accept the director’s evidence that she offered the grievor several days to decide.

44The final decision I will refer to highlights the significance of consulting with or obtaining advice from the union before an employee resigns. In Re Canada Packers Inc., supra, the employer conducted an investigation of an incident and interviewed 11 employees. The employer advised each of the 11 employees that they would be discharged, but they were given the option to resign. Each of the eleven employees signed a resignation slip. One group of employees consulted the union before making their final decision to resign while another group of employees did not. The majority concluded that the employees who resigned without consulting the union did not resign voluntarily, but the employees who resigned after consulting the union did resign voluntarily. Arbitrator Raynor explained why in his view consultation with the union was a determinative factor at paragraph 33:

…The consultation with the union was somewhat similar to the seeking of legal advice. In our view, an employee who signs a resignation slip after consultation with his or her union and indeed upon the advice of his or her union cannot thereafter repudiate the resignation. Although the employees who received no union consultation may legitimately claim in the circumstances of this case that there was no subjective intent to resign, it is difficult for that argument to be made with respect to the employees who acted upon the union’s advice.

45Consistent with the approach of arbitrators when deciding whether a resignation of an employee is legally effective, I have considered the circumstances before, during and after Ms. Cusack’s resignation. Although I have set out the evidence that covered these circumstances in some detail, the facts most relevant for determining whether Ms. Cusack truly intended to resign are those that portray what occurred on the day she resigned and those that describe what happened during the week that preceded her resignation. As my review of the evidence discloses, there were contradictions in the testimony of Ms. Lucier, Ms. Cusack and Mr. Pitfield relating to the significant matters that occurred in that time frame. Although Union counsel submitted that Ms. Cusack’s testimony should be preferred when it conflicted with the testimony of other witnesses, I have concluded on a consideration of the totality of the evidence that Mr. Pitfield’s testimony should be preferred when there were conflicts between his testimony and the testimony of both Ms. Lucier and Ms. Cusack.

46After considering all of the evidence and in particular the evidence of what occurred on April 12, 2013, and what happened during the week before Ms. Cusack resigned, and after considering the submissions of counsel, it is my conclusion that Ms. Cusack voluntarily resigned her employment at the NBJ on April 12, 2013. My reasons for reaching this conclusion are as follows.

47When Ms. Cusack decided to resign and signed her letter of resignation, she was at the Union’s regional office for the purpose of attending a discipline meeting arising out of allegations that she had failed to properly perform her duties when assessing the suicide status of an inmate. The allegations against her were serious and she correctly believed in the days before the meeting that Ms. Lucier would likely terminate her employment on April 12, 2013. The discipline meeting was the culmination of a process that began many months earlier. The circumstances of the death of the inmate were investigated by the CISU. Inspector Micucci interviewed a number of employees and on December 12, 2012, he interviewed Ms. Cusack. In his report, Inspector Micucci found that Ms. Cusack failed to perform her duties properly. After considering the CISU report and after consulting other persons within the Ministry, Ms. Lucier issued the allegation letter dated March 27, 2013 to Ms. Cusack. Mr. Pitfield attended the allegation meeting with Ms. Cusack on April 5, 2013. It was on April 9, 2013, that Ms. Cusack received the letter issued by Ms. Lucier advising her that the discipline meeting would take place on April 12, 2013. Ms. Cusack believed that the allegations against her were unfounded and were part of the effort by Ms. Lucier and Ms. Carruthers to harass her and force her from the NBJ. There is no doubt that dealing with the serious allegations was stressful for Ms. Cusack and wore on her emotionally.

48An important issue is whether Ms. Cusack was threatened or unduly pressured to resign. Ms. Cusack testified about the three-way phone conversation she had with Mr. Pitfield and Mr. Bissaillon late in the day on April 9, 2013, during which she recalled Mr. Pitfield telling her that the Employer wanted her to take back her grievances and resign or the Employer would terminate her employment and report her to the CNO. From a consideration of all the evidence it is difficult to find that the Employer indirectly threatened or unduly pressured Ms. Cusack. No one from the Employer had contact with Ms. Cusack about the allegations after the allegation meeting. The only discussions Ms. Cusack had about the allegations were with some of her colleagues and with the Union, primarily with Mr. Pitfield. Mr. Pitfield did not recall a three-way telephone conversation on April 9, 2013, but he did not confirm that he had made at any time the comment attributed to him by Ms. Cusack. He did not testify that Ms. Lucier, the decision maker, or anyone else in management in the Ministry, made a threat of the sort described by Ms. Cusack. Indeed, Mr. Pitfield did not believe that the Employer had made any threat. He was the one who raised the matter of a resignation and a report to the CNO with Ms. Lucier, not Ms. Lucier. Ms. Lucier was proceeding with the task of determining what discipline to impose on Ms. Cusack and she appeared to have no interest in communicating with the Union about the matter before the discipline meeting. It was Mr. Pitfield who called Ms. Lucier in order to get some information about what she planned for Ms. Cusack. It is not surprising that an experienced Staff Representative who had a good relationship with the Employer would make such a call. The more information that he could get from the Employer would assist him and Ms. Cusack in dealing with whatever might confront them at the discipline meeting. Mr. Pitfield essentially asked Ms. Lucier if she planned to terminate Ms. Cusack’s employment and she did not reveal her plans in this regard. Mr. Pitfield did believe however that the discharge of Ms. Cusack was a possibility and I expect that the seriousness of the allegations against Ms. Cusack was a factor that influenced this conclusion. The other matter Mr. Pitfield wanted to enquire about is what Ms. Lucier planned to do about reporting Ms. Cusack to the CNO. As a Staff Representative of a Union that represents nurses at correctional facilities, Mr. Pitfield knew that the Employer was obliged to report a nurse to the CNO in certain circumstances. It makes considerable sense to me that in representing the best interests of Ms. Cusack that Mr. Pitfield would want to know whether Ms. Lucier was considering reporting Ms. Cusack to the CNO. This was an important piece of information for Ms. Cusack to have in order to make a fully informed decision at the discipline meeting. Mr. Pitfield hypothetically asked Ms. Lucier if she would report Ms. Cusack to the CNO if she were no longer an employee. He may have asked the question in this way because even then he may have thought that resigning was a viable option for Ms. Cusack. I am satisfied that Ms. Lucier answered his question by saying that she would probably not report Ms. Cusack to the CNO if she was no longer an employee. Mr. Pitfield then advised Ms. Cusack that there was the potential for termination and for a report to the CNO, but that the Employer would not likely make a report to the CNO if she resigned. There was no indication that Mr. Pitfield and Ms. Lucier had discussed the four complaints initiated by Ms. Cusack prior to the discipline meeting. In my view, these facts indicate that it is improbable that Mr. Pitfield communicated a threat from the Employer to Ms. Cusack in the way Ms. Cusack described in her testimony.

49Even if I had found that Mr. Pitfield had made the statement attributed to him by Ms. Cusack, I still would have concluded that the statement was not particularly relevant to the voluntariness of her decision to resign. It is important to recognize that on April 9, 2013, Ms. Cusack was engaged in a discussion with two Union officials and that she was not in a situation where the Employer was making the statement directly to her at a meeting where she was expected to make a decision immediately about resigning. Her immediate reaction to the alleged statement was to challenge the Employer by reporting the matter to the Police. This reaction suggests that Ms. Cusack was not particularly affected by what she characterized as a threat. Given that the statement she attributes to Mr. Pitfield was made three days before she resigned, it is unlikely that she gave it any significant consideration when she decided to resign at a meeting where Mr. Pitfield was present to address any of her concerns about the Employer’s position and to advise her about her options. Indeed, her own testimony about what occurred at the meeting on April 12, 2013, suggests that the alleged statement made by Mr. Pitfield on April 9, 2013, was not a relevant consideration for her when she decided to resign.

50Although I am satisfied that the Employer did not directly or indirectly make a threat or exert undue pressure on Ms. Cusack to resign, there is no doubt that the matter of the Employer making a report to the CNO was in play for Ms. Cusack since she understood that there was a good chance that Ms. Lucier would terminate her employment at the discipline meeting. Apart from Ms. Lucier’s intentions about making a report to the CNO, the reality is that the Employer was obliged to report Ms. Cusack to the CNO when it terminated her employment. From her discussions with Mr. Pitfield, Ms. Cusack understood that the termination of her employment would likely mean that a report would be made to the CNO. In addition to her concern about a report to the CNO, the likely termination of her employment meant that she would have to secure other employment. Although she may not have decided to resign until the discipline meeting, it is clear from her testimony and the testimony of her nursing colleagues that Ms. Cusack was considering resignation as an option. Before the discipline meeting she expressed the view to her nursing colleagues that she was left with no choice and she confirmed this sentiment in her testimony. The evidence suggests that there were primarily two factors that caused her to feel that she did not have a choice. She likely believed that she had no choice before the Friday meeting because resigning would avoid a report to the CNO and it would also improve her prospects for securing other employment. According to Ms. Villeneuve, some of her nursing colleagues were encouraging her not to resign.

51In addition to considering various options on the Wednesday and Thursday before the Friday discipline meeting, including resignation, Ms. Cusack was sending out resumes in an effort to secure other employment. Just before the Friday meeting, Ms. Cusack had indicated that she had two jobs when she emailed Ms. Tregunna and when she left the voice mail message for Mr. Anderson. She in fact had not secured a job before the Friday meeting, but only had an interview scheduled for the following Monday. I accept her explanation that it was essentially out of pride that she misled Ms. Tregunna and Mr. Anderson about getting other employment. Contrary to the submission of Employer counsel, I am satisfied that by itself Ms. Cusack’s efforts to secure other work is not evidence that she had intended to resign, but simply a recognition by Ms. Cusack that she was likely to lose her job at the NBJ and would need to obtain work to support herself. As noted previously, Ms. Cusack’s immediate and serious desire to get another job was likely a factor that influenced her to have an employment record that reflected a resignation, rather than a termination for cause.

52Mr. Pitfield discovered at the outset of the meeting on April 12, 2013, that Ms. Lucier did intend to terminate Ms. Cusack’s employment, but that she would not go forward with a report to the CNO if Ms. Cusack decided to resign. Mr. Pitfield recognized that Ms. Lucier mentioned resignation and the CNO only because he had hypothetically raised the issue with her previously. This is not a situation where the Employer was demanding that Ms. Cusack resign or face the consequences of termination and a report to the CNO. There was no suggestion that Ms. Cusack had to drop her grievances before Ms. Lucier would accept her resignation. Mr. Pitfield advised Ms. Cusack of the situation. Ms. Cusack was upset upon hearing what Mr. Pitfield told her, but none of it would have been a surprise. Mr. Pitfield and Ms. Cusack then discussed the pros and cons of the obvious options available to Ms. Cusack. The likely key options were that she could grieve the termination and proceed with her other grievances or resign and avoid a report to the CNO. The evidence does not contain much detail about the pros and cons that they discussed, but frankly the details do not matter. What is important is that Ms. Cusack had the opportunity to consider the pros and cons of the available options with the benefit of advice from an experienced Staff Representative. Ms. Cusack again wanted reassurance that her grievances would be carried forward so that Ms. Lucier and Ms. Carruthers would be held accountable for their conduct. She received that reassurance from Mr. Pitfield and he advised Ms. Lucier accordingly. After giving the matter some thought, Ms. Cusack advised Mr. Pitfield that she would resign. Mr. Pitfield was very confident when he testified that Ms. Cusack told him that she had secured another job. Ms. Cusack prepared and executed a resignation letter addressed to Ms. Lucier and she gave up her Ministry identification and other items that an employee would normally return to the Employer when the employment relationship came to an end.

53Ms. Cusack testified that Mr. Pitfield advised her that the best thing for her was to resign. She also indicated that he told her that resigning would be the best way to get her job back. It is improbable that an experienced Staff Representative would make such an unreasonable statement. The quitting of employment is the antithesis of a way get a job back. I prefer Mr. Pitfield’s testimony that he did not tell Ms. Cusack that the best way to get her job back would be to resign. It may be that they had discussed what remedy would be available to her if her competition grievance was successful, but it is not certain that winning that grievance would lead to Ms. Cusack being placed in the permanent position, as opposed to a re-running of the competition. In any event, the fact that Ms. Cusack may have thought that the best way to get her job back was to resign does not affect my view of the voluntariness of her decision to resign. She clearly knew that by resigning that she would no longer be an employee at the NBJ. The fact that she may have believed that the best way to return to the NBJ was to quit her employment does not mean she did not have a real intention to resign when she did so on April 12, 2013.

54Contrary to Union counsel’s submission, Ms. Cusack did not decide to resign in the heat of the moment with a hastily written resignation letter. As noted previously, she had a good idea of what to expect at the meeting on April 12, 2013, and she had the benefit if discussing the relevant issues with Mr. Pitfield and Mr. Bissaillon before the meeting. She also had as much time as she needed to discuss the pros and cons of the situation with Mr. Pitfield on April 12, 2013. The circumstances in the instant case are quite different from those in Re Beacon Hill Lodge, supra, where the nurse in that case had no advance notice of the meeting and was asked to resign in the absence of union representation. They are also different from circumstances near the end of March 2013, when Ms. Cusack told Ms. Carruthers that she could have her resignation upon hearing that she did not get the permanent RN position. There is no doubt that her decision to resign on that occasion was made in the heat of the moment and that she did not have a real continuing intention to resign. The circumstances in our case are similar in many respects to those referred to at paragraph 38 in Re Beacon Hill Lodge, supra, where an employee is in a position to prepare for a discipline meeting and to seek advice, and similar to those in St. Joseph’s Hospital where a nurses’ resignation was found to be voluntary when she resigned after being told that her employment would likely be terminated and reported to the CNO, but that resignations were not usually reported.

55Employer counsel submitted that an important factor supporting voluntariness in this instance is that Ms. Cusack had the benefit of union representation and advice. Although I do not favour the view expressed in Re Canada Packers Inc., supra, that union representation and advice is determinative in deciding whether a resignation was given voluntarily, I do agree that union involvement can be an important factor when considered in light of all of the facts. And I agree that Mr. Pitfield’s involvement is a significant factor in this case since it illustrates the extent to which Ms. Cusack was able to consider all of her options and to make her decision in an environment that was conducive to exercising independent judgment and making a considered and deliberate decision.

56Ms. Cusack’s opinion is that she really did have not a choice and that she was forced to resign. A reasonable assessment of the facts leads me to conclude that she did have a choice and that she was not forced to resign. Mr. Pitfield told her that it was up to her decide what she wanted to do given the options available to her. There is no doubt that she was confronted with making a difficult choice in trying circumstances. She nonetheless made a choice that she felt at the time was best for her in the circumstances. She chose to have a quit rather than a termination recorded on her employment record with the NBJ. She also chose an option that resulted in no report being made to the CNO. She was not forced to resign because it is clear that she was in a position to exercise her free will to choose the best option available.

57A review of the post resignation evidence in my view does not support the Union’s contention that Ms. Cusack’s resignation was not voluntary and that she had tirelessly sought reinstatement to her job at the NBJ. Indeed, the evidence is clear that she did not make a timely effort to rescind her resignation which supports the conclusion that her intention to resign was real and continuing. What occurred when she resigned in March 2013 illustrates that Ms. Cusack was aware that she could rescind a resignation and that she knew how to go about doing it. Although she met with Mr. Bissaillon four days after she resigned, and filed her four grievances dated April 16, 2016 with his assistance, Ms. Cusack does not refer to her resignation and she certainly did nothing then to challenge its validity. Her filing of the four grievances reflects nothing more than her continuing desire to have Ms. Carruthers and Ms. Lucier held responsible for their conduct, rather than an indication that she did not have a continuing intention to resign. Her participation in sending the letter to Ms. Ogilvie speaks more to a desire to support her fellow nurses and the fact that her four grievances were still alive, rather than having any relevance to the question of whether she resigned voluntarily. Her comments in the Survey and her human rights application about being forced to resign are, as I have described previously, not an accurate way to characterize her resignation. The filing of the human rights complaint is another attempt by Ms. Cusack to see that Ms. Carruthers and Ms. Lucier are held accountable and does nothing to question the validity of her resignation.

58I agree with the Employer’s position that the facts set out in the Union’s particulars that were not addressed by the testimony from witnesses are not particularly relevant to the issue of whether Ms. Cusack resigned voluntarily. Any harassment and bullying that occurred since Ms. Carruthers arrived at the NBJ was greatly overshadowed by the allegations against Ms. Cusack in relation to the death of an inmate that arose from the CISU investigation. Just because an employee is harassed and bullied does not by itself mean that the employee cannot resign voluntarily. The facts in the Union’s particulars do not alter my view that Ms. Cusack had a real and continuing intention to resign when she did so on April 12, 2013.

59My final comments relate to Ms. Cusack’s emotional condition before and at the time she decided to resign. As I noted previously, Ms. Cusack was emotional and upset to a degree about the state of affairs confronting her in April 2013. This is not surprising having regard to the nature of the serious allegations against her and her recognition that she would likely be terminated from her employment at the NBJ. There is no issue about whether Ms. Cusack had the capacity to form the intention to resign at the relevant time. However, it is possible that a heightened emotional state could impact on the ability of an employee to exercise independent judgment. In my view, the evidence does not support the conclusion that Ms. Cusack was impaired emotionally to the extent that it affected her ability to consider her options and to exercise a sufficient degree of independent judgment. In the days before the discipline meeting, she was seeking other employment and making inquiries about her pension options. The way she sounded in her voice mail message to Mr. Anderson on the night before the discipline meeting did not indicate that she was in an emotional state that would affect her judgment. If she was hiding her true feelings in that voice mail message, as she indicated in her testimony, she was certainly doing a good job of it. Mr. Pitfield had a number of contacts with Ms. Cusack in March and April 2013. He attended the Health Care Department meeting on March 13, 2013, and he attended Ms. Cusack’s allegation meeting on April 5, 2013. He had discussions with Ms. Cusack prior to the discipline meeting and he was in attendance at the meeting on April 12, 2013, when Ms. Cusack resigned. Other than noting that Ms. Cusack became upset at one point during their discussions at the April 12, 2013 meeting, there was no indication from Mr. Pitfield that Ms. Cusack was not in a position emotionally to cope with the decision making exercise confronting her. As an experienced Staff Representative it is likely that he would have noticed whether or not Ms. Cusack was in a position to effectively resign her employment. Although the April 12, 2013, meeting would have been a stressful and an emotional experience for Ms. Cusack, as it would have been for anyone in similar circumstances, the experience did not hamper her ability to effectively resign her employment.

60It is these considerations that led me to conclude that Ms. Cusack voluntarily resigned her employment on April 12, 2013. She truly intended to resign and her intention to resign was confirmed by her resignation letter and the surrendering of her Ministry identification, etc. Therefore, the Union’s request to have Ms. Cusack’s resignation revoked and to have her reinstated to a nursing position as the NBJ is hereby denied. I will remain seized of the four grievances filed by Ms. Cusack.