[1990] OLRB Rep. December 1339
2105-89-U The Ontario Public Service Employees Union, Complainant v. Sudbury Youth Services Inc., Respondent
BEFORE: M. A. Nairn, Vice-Chair, and Board Members J. A. Ronson and K. Davies.
APPEARANCES: Kevin Whitaker, Peter Slee and Jean Sigouin for the complainant; Brian R. Gatien and B. Crockford for the respondent.
DECISION OF THE BOARD; November 30, 1990
This is a section 89 complaint alleging that the respondent violated sections 64 and 66(a) of the Labour Relations Act (the "Act"). The complainant trade union withdrew its allegation of a violation of section 79 of the Act and also withdrew its request for consent to prosecute the respondent. After several days of hearings in Sudbury the parties convened in Toronto in order to make submissions. Having heard the parties' submissions, the panel adjourned to consider the matter, following which, we ruled that we were dismissing the complaint. We now provide our reasons.
The complaint concerns the termination from employment in November, 1989 of the grievor, Mr. Jean Sigouin. The respondent asserts that it terminated the grievor's employment for just cause, more specifically the grievor's overall poor performance. The complainant asserts that the grievor was terminated, at least in part, because he was responsible for bringing the union into the workplace and that the timing of the discharge was designed to keep the grievor off the union's negotiating committee. We heard considerable evidence in this case including thorough cross-examination of all of the witnesses. We do not intend to refer to all of that evidence but will summarize our findings.
There is no dispute between the parties concerning the application of the legal principles involved in this case. It is agreed that the onus is on the respondent to satisfy the Board on a balance of probabilities that the decision to terminate the grievor's employment was not motivated even in part by reason of the grievor having exercised his rights under the Act.
In determining any issues of fact we have assessed the credibility of the witnesses using factors including the consistency of their evidence, their demeanour, their ability to resist the influence of interest to modify their recollection, the firmness of their recollection, and what appears to us to be reasonably probable when the circumstances and the testimony of the witnesses are considered. Ms. Crockford was very straightforward in her evidence including throughout an extensive cross-examination. We found her to be a very credible witness and we accept her evidence. We found Mr. Pitz's evidence less credible in part, in that we are of the view that he exaggerated certain of his concerns. However, overall much of his evidence was consistent with Ms. Crockford's and with evidence called by the complainant. We found the grievor's evidence to be unresponsive, and in certain circumstances vague and/or selective.
The respondent operates a residential home for young offenders. The grievor was employed as an adolescent youth worker at the facility. The home has ten beds and most residents stay about a month. There are approximately ten full-time and twelve part-time staff employed. They are responsible for the supervision and care of the residents. Ms. B. Crockford is the Services' Director and Mr. R. Pitz is Assistant Director.
The grievor was hired in July 1986 on a part-time basis and transferred to full-time employment in the summer of 1987. He was hired without having the usual formal qualifications for the job. However as a condition of employment he agreed to complete a programme of course work available locally. The grievor's probationary period was extended in January 1988 to April 30, 1988. The respondent has established regular monthly supervision meetings with individual staff and supervisors in addition to evaluations and staff meetings and development sessions. The extent of these meetings with staff reflect the sensitive and demanding nature of the work being performed. The service is subject to scrutiny from various government agencies and family and the care and supervision of the residents can at times be difficult.
The complainant conceded that the grievor experienced serious performance problems in the past and that he was not a model employee in the fall of 1989 prior to his termination. We do not intend to review here all of the evidence we heard with respect to the grievor's performance over the course of his employment. However, there had been at least two matters, firstly, the failure to take a course and secondly the failure to report an allegation of abuse, that the grievor knew could have warranted his dismissal. In addition, among other things, he had been disciplined for the inappropriate use of locked isolation, for inappropriate staff coverage, and for failing to attend a staff training session.
In February 1989 the grievor failed to record an allegation of abuse of a resident by a staff member during his shift. There is no doubt that both Ms. Crockford and Mr. Pitz treated this as a serious breach of policy. We are satisfied that given the nature of the service and the nature of the allegation, their concern was well-founded. They were frustrated by the grievor's only display of concern, which was directed at whether he was to be paid for two and a half hours for being called in for the investigation of the incident. The complainant suggested that this frustration evidenced an antipathy towards the grievor in the context of employment issues and hence evidence of anti-union motive. We do not agree. Ms. Crockford and Mr. Pitz did not accept the grievor's priorities. They were of the view that had he properly reported the incident in the first place there may well have been no need for him to come in on his own time. At worst, it was a minimal consequence for what the respondent considered to be a serious error.
Also in the spring of 1989 the grievor and his partner were having difficulty working together, to the extent that it was interfering with the provision of service. After attempts to assist both, they were told by Ms. Crockford to work out their problems or start looking for other work. We are satisfied that in the spring of 1989 the grievor knew his continued employment was in serious jeopardy.
The grievor was then evaluated in July 1989. Mr. Pitz, the grievor's supervisor, attended that evaluation as did Ms. Crockford. It was a lengthy evaluation. The complainant asserts that the evaluation was designed to "set-up" and "browbeat" the grievor. Yet the evidence, including that of the grievor, does not establish that. Certainly a number of concerns were raised and discussed. The individuals participating in the evaluation brought different views of the grievor's performance to it. Ms. Crockford was concerned that the self-evaluation completed by the grievor was dramatically different from her own evaluation. She asked Mr. Pitz to attend the evaluation because he was the grievor's immediate supervisor and had more direct contact with him.
In reviewing the evaluation, although there are some areas where the grievor has improved or maintained an acceptable performance, there are also areas where serious concern remains. There is no doubt that during this evaluation the grievor was upset. He offered to resign. This offer was rejected by Ms. Crockford on the basis that she felt the grievor finally evidenced a willingness to change his behaviour and be more responsive to direction. During the evaluation, the grievor volunteered the information that he was involved in the union's organizing campaign. The grievor suggested as well that his role with the union influenced the evaluation. Ms. Crockford advised the grievor that the only relevant issue was his work performance. We note that the grievor left the evaluation having accepted it and indicating he would try to improve. No complaint was forthcoming until almost five months later and after his termination, notwithstanding his suggestion that his role in the union had been a factor in the evaluation. We are also satisfied that the grievor was aware that his continued employment remained in jeopardy.
The complainant, relying on evidence of Mr. Micelotta, argues that the respondent was aware of the grievor's role in the organizing campaign as early as June 1989. Even assuming that, there was nothing to stop the respondent from accepting the grievor's resignation on July 13, 1989 if they had wanted to act on that information. The grievor made no suggestion whatsoever that the resignation was anything but freely offered and rejected. The conduct of Ms. Crockford, Mr. Pitz and the grievor is more consistent with the conclusion that job performance was the respondent's only concern.
There is no evidence of any union activity prior to mid-May 1989. The union's first organizing meeting was June 15, 1989. The certification application was filed on June 27, 1989. Upon learning of the union's application, Ms. Crockford sought advise with respect to the rights of the respondent and of the employees. The certification application was processed without the need to attend a formal hearing and a certificate issued to the complainant. Although she frankly acknowledged she was initially hurt and angry that the employees were organizing a union, we accept her evidence that upon learning of the level of support for the certification application she resigned herself to the expression of choice by the employees. The Act does not require that an employer like the fact of a union organizing in their workplace or that they not feel angry about it. The Act prohibits action against the trade union or employees. We are satisfied that Ms. Crockford understood this distinction.
The allegation that the termination was designed to keep the grievor off the union's negotiating committee is not supported by the evidence. Ms. Crockford candidly admitted that she did not think that having the grievor on the union's negotiating committee would be good for the staff as she did not feel he would do a good job. This view was consistent with the views of at least some of the complainant's witnesses. The evidence does not support the conclusion that Ms. Crockford felt it would also be of benefit to the respondent not to have the grievor participate on the negotiating committee and that she then acted in concert with Mr. Pitz to terminate the grievor's employment. Although perhaps somewhat naive of some of the dynamics often found in labour-management relationships, Ms. Crockford's concern was genuinely expressed. We accept her evidence that she was prepared to deal with anyone the union put forward on its negotiating committee. The evidence of Mr. Fraser, an employee called by the complainant, about the conversation that he had over lunch with Ms. Crockford concerning the grievor's participation on the negotiating committee, supports this conclusion.
Mr. Pitz on the other hand, was of the view that having the grievor on the negotiating committee would be of benefit to the respondent. His reason was the same, that is, he felt the grievor would be ineffective. We do not take this as evidence of anti-union motive. It represents nothing more than the more usual recognition of opposing interests at the bargaining table.
From the complainant's point of view the employment relationship had survived what were the most serious breaches of conduct on the grievor's part. From the spring of 1989 to his termination, the respondent agreed that the grievor had not engaged in a repetition of serious misconduct. The complainant argues that this fact casts serious doubt on the respondent's argument that the decision to terminate was taken free of any anti-union motive.
Following the evaluation in July, the respondent was optimistic that the grievor was more willing to take responsibility for his conduct. That optimism however proved unwarranted. We heard extensive evidence of a number of incidents between July and November 1989 upon which the respondent ultimately relied in support of its decision to terminate. These included plans of care not being completed, medications not recorded, concern over how an incident between residents involving spitting was handled by the grievor, inappropriate use of sarcasm, inappropriate use of the word "do-do" in recording, and a failure to attend a required staff development session.
In each case the complainant attempted to show that these incidents were of a minor nature, had been exaggerated, or were an attempt to "set up" the grievor. In this regard the complainant challenges particularly the role and evidence of Mr. Pitz. Having reviewed all of that evidence we are of the view that some of Mr. Pitz's concerns may have been exaggerated. However we are also satisfied that any exaggeration arises from Mr. Pitz's distaste for the complainant's performance at this stage of his employment and not from any anti-union motive. At a time when the grievor knew or ought to have known that his employment relationship was in jeopardy (when one might anticipate that an employee would perform at his best) the grievor chose to engage in further irresponsible, although minor, misconduct.
For example, the complainant failed to attend a staff development session on November 9, 1989 shortly before his termination. The notice for the meeting made it clear that the service felt it important that all staff attend and requested that if anyone was unable to attend, to notify Ms. Crockford or Mr. Pitz as soon as possible. The grievor did not attend nor did he contact anyone. He was the only staff person not in attendance. When confronted and in his evidence, the grievor's reaction was essentially "what's the big deal?". Yet in November 1987 the grievor had been disciplined for a similar failure to report for staff training and was warned that a recurrence would result in more serious discipline. This occurred in the context of an employee who does not have the formal education requirements for the job and could arguably benefit more from such sessions.
Similarly, the grievor's recording of the expression "all do-do" intending to mean "all asleep", in the respondent's log is conduct, in and of itself, which would not warrant termination. Yet it was unprofessional. The log forms part of the service's official records and may be referred to externally.
The complainant led evidence showing that the use of a raised voice and of sarcasm can be tools in handling residents' behaviour. We accept this. However it was also clear from all the witnesses that these tools could be used inappropriately. In one incident relied on, Ms. Crockford and Mr. Pitz felt the grievor's use of sarcasm to be inappropriate. They felt it conveyed frustration and/or anger and an inappropriate reference to violence.
Notwithstanding that the grievor could have enrolled in a course in the fall of 1989 he failed to do so. In his evidence he acknowledged that he had not as of the hearing, enrolled in such a course due to the fact that he had been discharged and was not sure whether he wanted to continue in this type of work. This evidence of what at best might be described as a lack of enthusiasm and at worst, a non-caring, ambivalent attitude, was consistent with the grievor's response with respect to other concerns raised about his performance.
Mr. Pitz reported these incidents to Ms. Crockford. In the context of the grievor's record, these incidents took on a greater significance. The will to improve evidenced in July had not manifested itself. Ms. Crockford reviewed the matter with Mr. Pitz and they decided to recommend that the grievor's employment be terminated. This recommendation was placed before the Board of Directors of the Service and was accepted.
The complainant argued that the grievor had been singled out for discipline. Mr. Fraser was not disciplined for sleeping on the job. He was surprised. He expected to be disciplined for the incident. It was clear however that neither Ms. Crockford or Mr. Pitz were aware of the incident although Mr. Micelotta apparently was. However, Mr. Fraser was disciplined in April 1989 for a more minor incident whereby he breached a security procedure by not ensuring that he or his partner were available at a work station. Mr. Pitz referred to anecdotal notes about the grievor that he kept on "sticky yellow" papers. Yet he keeps such notes on other employees as well. Mr. Fraser and Ms. Harvey confirmed that other employees also used sarcasm and a raised voice in dealing with residents, but whether a response was appropriate or not would depend on the circumstances, the words used, the tone, etc. Overall, this evidence is more consistent with the conclusion that the respondent monitors all its employees and is prepared to take action as necessary, whether through discipline, discussion at monthly supervision meetings, or through evaluations.
The complainant also argued that because the incidents following the July evaluation were of a minor nature, and because of the timing of the evaluation and the termination in relation to the union's organizing campaign and preparation for negotiations, the employer cannot overcome the onus on it to show that its decision was free of anti-union motive. We agree with the complainant that the timing of events is an important factor to consider. Where a union organizer is discharged during or soon following an organizing campaign it is natural to question whether the employee's involvement in the union played a role in the decision to terminate. To that extent, where there is a connection in time between the events there may always be a doubt. However, the respondent is not required to satisfy the Board beyond any reasonable doubt but on a balance of probabilities and that doubt may well be satisfied by other evidence.
Further we agree that where a discharge appears to be arbitrary or harsh it may undermine the employer's assertion that the employee's union activities played no part in the decision to discharge. However we disagree with the conclusions advanced by the complainant on the evidence in this case. Throughout his evidence the grievor showed little if any appreciation of the respondent's concerns. We are satisfied that, taken as a whole, they were largely legitimate concerns sincerely held. The grievor had been provided with considerable direction and opportunity to improve. Whether discharge was appropriate in the circumstances is not the issue. However, the evidence is more consistent with the conclusion that the termination was not motivated by reason of any union activity than the assertion that in the circumstances the termination was an arbitrary or overly harsh response.
Having regard to all of the evidence and submissions of the parties we were satisfied that the decision to terminate the grievor's employment was in no way motivated by his participation in the union's organizing campaign or in anticipation of his participation on the union's negotiating committee. Therefore we dismissed the complaint.