Jul y 2 2006

IN THE MATTER OF AN ARBITRATION

BETWEEN:

ALGONQUIN COLLEGE

- and -

OPSEU, LOCAL 415

(the "Employer")

(the "Union")

Grievance of MEM re Termination (OPSEU File No. 341502)

AWARD

Board of Arbitration:

For the Union

Paula Knopf, Chair D.A. Pearlman, Employer Nominee Pamela Munt-Madill, Union Nominee

J.D. Sharp, Counsel Luc Presseau, Director of Human Resources Barbara Foulds, Chair, Nursing Studies Marie Cormier, Dean, School of Health and Community

Studies

Susan Ballantyne, Counsel Grievor

Jack Wilson, Secretary, Local 415 Pat Kennedy, Vice President, Local 415 Elizabeth Harris, Steward

Appearances:

For the Employer

A hearing in this matter was held in Ottawa, Ontario on November 25, 2003, October 1, November 5, 16, 17, 24, December 8, 13, 2004, March 31, July 21, 26, October 24, 25, November 21, 22, 2005, March 9 and April 18, 2006

INTRODUCTION

This case involves the termination of a probationary employee who taught in the College's Nursing Studies program. The Employer acknowledges that the grievor was a good teacher. Others describe her as an excellent or an "extraordinary" teacher. Nevertheless, she was terminated approximately one and one half years into her probationary period. The Union alleges that the termination was done in bad faith. The Employer asserts that there were numerous non-teaching employment concerns that justify the termination of her employment.

The evidence and argument was presented over 17 days of hearing. The issues are numerous. Only the relevant and significant evidence shall be reviewed in this Award. For the most part, there is little dispute about the facts. There are also few issues of credibility. However, what is in dispute is the interpretation and meaning of what happened over the time that the grievor was employed as a full-time teacher.

The two key persons in this case are the grievor, 11111111111111111111 and the Chair of Nursing Studies, Barb Foulds. Ms. Foulds holds a B.Sc.N., a Masters in Education and a Ph.D. She became the Chair in 2001, with a mandate under the new Dean to foster several initiatives in clinical education. One of these initiatives was aimed at breaking down traditional boundaries in health care and giving all the programs equal prestige. This was, in part, designed to respond to the changes in RPN and PN practice, and the phasing out of the RN teaching programs at the College level. This led to many fundamental changes in the assignments to existing faculty and the recruiting of new teachers who would be expected to work in more than one program. 101110111111111111111 was hired as a full- time teacher shortly after Ms. Foulds became the Chair. also has an impressive résumé, including a Master's Degree in Nursing. She had already taught on a part-time basis at this College since 1998, as well as teaching at the University of Ottawa since1993. In the Fall of 2001, she was hired by Algonquin College as a full-time member of the faculty. There were great expectations for her because she had proven herself as a part-time teacher in both the Diploma and Continuing Education specialty programs. However, in November of 2001, she was terminated. Then, on January 2, 2002, the parties reached a Memorandum of Settlement reinstating her. The parties agreed that the situation precipitating the initial termination and reinstatement would not be put into evidence at this hearing. On the other hand, they agree that their Memorandum of Settlement is very germane to this case because it formed the foundation of the grievor's relationship with the College and her Department Chair thereafter. The Memo reads:

The parties' signatories agree that 'll...ft will be reinstated under the following conditions:

1. The effective date of this reinstatement will be January 2, 2002.

2. This reinstatement is in no way an admission of wrongdoing by the College but rather is an opportunity fora11111111111to satisfy the expectations of a full-time faculty member.

3. be assigned a workload and will be advised as soon as possible. The assignment will be at the discretion of the manager.

As a condition of this reinstatement, ammarwill:

1. Agree to participate fully in a mentoring program beginning Wednesday, January 2 nd , 2002 until January 11, 2002. During this time, she will receive instruction from members of the management team of the school relating to her responsibilities as a full-time faculty, and the College's expectations. These expectations include both academic and administrative matters.

2. Collaborate with the Chair of the Department, Barbara Foulds, in the communication of this settlement. In particular, at a staff meeting:

a. to communicate that the differences between the department and IMMINIS were legitimate and have all been resolved satisfactorily

b. to acknowledge that she was absent from the College during the first week of class within the first month of employment and that the College considers this to be an error in judgment which contributed to her dismissal.

3. 11111111111111111111will agree to monthly meetings with the Chair of the Department during which issues will be brought forward and discussed openly. These meetings will continue for a period of six (6) to twelve (12) months. It is understood that a union representative, as well as a representative from human resources, may be in attendance as observers only.

4. 11111111.1•111111101111s will continue to abide by the standards and the rules and regulations applicable to any full-time employee of the College.

5. 1111111.1111.11111 is to contact the Chair of the Department when in any doubt about a rule or policy.

Should any of these conditions not be respected it is understood that further disciplinary action may be necessary up to and including dismissal.

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It is also understood that her probationary period will be reset at 2 years from the date of reinstatement.

The conditions of this reinstatement governed the parties in the months that followed. However, it should be noted that within weeks of the reinstatement, the College no longer insisted on the public acknowledgement referred to in the second paragraph 2. Interestingly, the College viewed this settlement document and its protocols as a "second chance" fore, whereas she refused to accept that description; instead, she insisted on referring to it simply as "a reinstatement"

On May 14, 2003, the grievor's employment was terminated for the second time. Her grievance over that termination is what concerns this hearing. The relevant portions of that termination letter read:

As a probationary employee, we have raised concerns on numerous occasions about areas of your performance that we felt were in need of improvement. In fact, the College terminated your employment in November of 2001 but agreed to reinstate you and provide an additional opportunity to meet the expectations for the School and the Program. Certain conditions were included in your reinstatement, including acknowledgements on your part and specific actions required.

In light of the above and your performance appraisals from March 2002 and January 2003 and concerns raised repeatedly by management and colleagues, the College has determined that we must discontinue the employment relationship effective immediately.

This Board of Arbitration is very conscious of the fact that the onus in this case is upon the Union to show that the termination was done in bad faith. This is not a full-time employee who is entitled to the just cause protections of the Collective Agreement. However, while the onus remains on the Union to prove the bad faith that has been alleged, the actual allegations arise out of the Employer's treatment of the grievor and management's reactions to her performance. Therefore the easiest way to analyze this case by reviewing the reasons the Employer relied upon as performance concerns and as justification for the termination. These can then be viewed against the Union's evidence. Accordingly, the evidence shall be addressed according to topic and in chronological order, wherever possible.

THE PROBATIONARY PERIOD

Under this Collective Agreement, there is a two-year probationary period. This allows both the College and the new teacher time to adjust to the position

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and determine whether permanent status will ensue. Marie Cormier, the Dean of the Schools of Health and Community Studies, has had a distinguished career with this College for 30 years. She was the person with ultimate authority over the Nursing Studies program and who made the effective recommendation to terminate the grievor's employment. Ms. Cormier testified that the intent during the probationary period is for the new hire to move to permanent status. She testified that the College hires people who are expected to succeed with their teaching assignments because of their background and training. However, in order to achieve a permanent position, she says the College looks for the capacity to deliver the curriculum effectively, to work effectively as a member of the "team", to understand and adhere to College policies and procedures, and to have the "indefinable" quality of "professional comportment". She also said that while teaching is a "critical facet" of the equation, "there are times for a full-time teacher, being a member of the team is important, even more important than the ability to teach". The examples she cited of "team" responsibilities that might be more important than teaching were curriculum development and following College policies.

THE INITIAL MEETINGS FOLLOWING REINSTATEMENT

In order to understand the context, it must be mentioned that upon the grievor's reinstatement in January of 2002, a series of meetings were set up for the grievor to meet with Dean Cormier and her Chair, Barb Foulds. They met several times in January, wherein was told about the institutional and departmental organization, its communication structure and "hierarchy", the responsibilities of the Coordinator, and expectations regarding workload, decision making, team work and professional development. All three women described these initial meetings as "valuable and positive".

On February 21, 2002, 1.1111111111111 met then with Ms. Foulds and the Director of Human Resources and the Union Secretary to review the past two months of employment in accordance with the earlier Memorandum of Settlement. The purpose of this meeting was to bring forward any issues that needed to be discussed. The meeting began with 1111161111111111 expressing her appreciation for the "support" she had been receiving from the Chair and the Dean. She also was proud to tell them that she had been selected as a voting delegate to the upcoming RNAO conference. She felt that her election was an honour, and that her participation would bring professional recognition to both her and the College. She described herself as being able to serve as an "ambassador" for the College. She also raised the fact that there would be a scheduling conflict with her attendance at the conference and her College responsibilities. She told them that she had been "making inquiries" with her Coordinator about the "feasibility of options" available for alternate coverage for her teaching responsibilities as they had been discussing her selection as a delegate. Ms. Foulds' reaction was to indicate that she had already heard from the Coordinator that had been trying to change her schedule so that

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she could go to the meeting, before discussing it with the Chair. Ms. Foulds had concluded that 1111111111Mwhad contravened the Memorandum of Agreement by failing to communicate directly with the Chair about a leave request. As Ms. Foulds explained in her testimony, "That conversation [about the leave arrangements] should have started with me" because a Coordinator has no authority to alter the schedule or reassign teaching duties. Ms. Foulds felt that even the grievor's "fact-finding" should have started with the Chair. 11111111111111111111 responded to Ms. Foulds' consternation by trying to stress that there had been no attempt to arrange a leave through the Coordinator; she had simply sought information to present directly to her Chair. IIIIMINNIS testified that she had tried to make it clear that her only intent in speaking to the Coordinator was to gather and present options to Ms. Foulds so that an informed decision could be made when the application for leave was submitted. However, despite this explanation, Ms. Foulds felt that the discussion with the Coordinator represented a "lack of understanding about who made the decisions about leave" and a disregard of the series of meetings in January that had been devoted to explaining the lines of authority to In cross-examination, Ms. Foulds conceded that she had never been told by the Coordinator that had asked for a reassignment of workload or permission to attend. Ms. Foulds explained that the Coordinator had brought the issue to her attention, "since I assign the workload". However, the problem from Ms. Foulds' perspective seems to be that the grievor should have dealt only with Ms. Foulds with regard to the application for leave and the rearrangement of classes.

Both Ms. Sumitro and Ms. Foulds were upset by this discussion. It is clear that the Chair saw ...1M as bypassing the established lines of authority. MIME was equally upset. She was concerned about the fact that the Coordinator left the Chair with a misapprehension about the conversation and its intent. 1111111111111111111 felt that the Chair should have discussed this issue with her before reaching the conclusion that her authority was being by-passed. Although the grievor and the Chair were somewhat upset about this issue, Ms. Foulds was able to make it clear that if wanted to make any changes to her workload in the future, she must first discuss this with the Chair. IMEMIli agreed to this.

Despite this confusion, the meeting appeared to conclude on a positive note. The grievor and Jack Wilson, the Secretary of the Union, left feeling that the meeting was "very helpful". They agreed that there was no need for another meeting for another two months. Indeed, they felt that the requirement for monthly meetings that was contemplated in the Memorandum of Agreement could be relaxed.

This background sets the stage for the series of performance concerns and events that lead the College to the decision to terminate the grievor. For the most part, these concerns were communicated in formal Performance Appraisals and/or letters.

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PERFORMANCE APPRAISAL: January 2002 —March 2002

Dean Cormier testified that she had instructed Ms. Foulds to make all expectations and concerns very clear to MIN///h. The Performance Appraisal is a vehicle for outlining strengths and weaknesses in performance. Ms. Foulds described the first Performance Appraisal as a synopsis of the few months since the reinstatement and as "an opportunity to clearly zero in on some concerns . . . and clearly lay out the expectations. . . We were looking for a plan of how to, from her [the grievor's] perspective, improve communications."

(i) Positive Feedback

411111111111.'s teaching skills were applauded:

11111 demonstrates a keen interest in and commitment to her teaching and her students. She thoroughly prepares for each teaching session. al is interested in the teaching- learning continuum and has indicated a desire to learn more about student evaluation. In addition, ab brings a strong nursing knowledge base to her teaching and she has demonstrated an ability to share that knowledge with her students.

(ii) Negative Feedback

(a) Respect for Management Structure: the RNAO Conference:

immos was criticized for failing to indicate that she had a "true understanding of the management structure and her responsibilities, i.e., her communication as a faculty [sic] with her immediate supervisor". The specific example cited against MM. was, "Despite repeated direction to bring all requests or discussions regarding workload, leave or professional development directly to her immediate supervisor, she [the grievor] once again inappropriately approached a coordinator to negotiate professional development leave before discussing the situation with her supervisor". This relates to the attendance at the RNAO conference discussed above.

11111=011 responded to this criticism verbally and later in writing on March 28, 2002, with what she called a "clarification" of the context of her discussion. She wrote, "I did speak to the coordinator as part of a fact gathering exercise so that I could provide you, my manager, the information you would require to make a determination about the PD opportunity." Jack Wilson, the grievor's Union representative assisting her at this time, testified that in his many years at the College he would often speak to a Coordinator about the feasibility of rearranging assignments before presenting an application for leave to a

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Department Chair. He said this would give the Chair the information that would be necessary to make the decision about a leave request.

Ms. Foulds was asked to explain why this allegation was contained in the Performance Appraisal despite her concession that she knew that the Coordinator had never been asked by 1111111101111111111 for permission to attend or for the reassignment of classes. Ms. Foulds responded, "She [the grievor] wanted to go to this conference, she was teaching that day and wanted to make arrangements and I was not consulted." When asked who the Coordinator was who had brought this issue to the Chair's attention, Ms. Foulds was unable to recall who that had been.

This was a factor in Dean Cormier's decision to recommend the termination of the grievor's employment. Dean Cormier spoke about this issue in her testimony, and indicated that she was under the impression that 11111111.0110 had asked to discuss the adjustment of her schedule with the Coordinator. Dean Cormier resisted, describing this as a matter of the grievor trying to "negotiate" with the Coordinator, and explained that the problem was that the grievor had asked someone without authority to make decisions. Ultimately, Dean Cormier admitted that she had no direct knowledge about this issue and had never discussed the conversation with the Coordinator involved. The Dean had formed her impression from the information she received from Ms. Foulds.

(b) Expression of Teaching Preference:

The appraisal included Ms. Foulds' concern about what she saw as the grievor's "perception" that she had been hired to teach in the diploma and degree Nursing program. The Chair wrote, "We have discussed this perception at length and have reiterated that faculty are hired to teach in a variety of program areas and are not restricted to one area." The performance appraisal notes that Ms. MM. would be teaching in the Practical Nursing program in the following semester, "thereby adding to [the] range of teaching experiences". Ms. Foulds testified that she felt that the other programs needed 111111111.111's practical experience, and that this type of assignment had been discussed at the time of her hire. The comment in the Appraisal arose out of a concern that the grievor was not accepting the nature of her assignments, and that she was expressing discontent. Ms. Foulds conceded that this statement of preference had been given by 111111111111111111) in response to the Chair's request for all faculty to set out their preferences for teaching assignments. The grievor had indicated a desire to remain at the RN Continuing Education level, which had been her original assignment prior to the first termination. However, 111111111111111111ii tried to assure the Chair that she did not mind teaching in new areas and was "ready to meet the challenge". This is also confirmed in e-mail correspondence to the Chair. Ms. Min also testified at the hearing that although the RN program was her "first love", she was always willing to take on the "challenges" of other assignments in the department.

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(c) Development of an Improved Communication Plan:

Ms. Foulds directed 11111111111111111111s to provide a "written plan to address ... goals on improving communication with [the] immediate supervisor". was told to "outline the goals and the specific strategies she [would] implement to obtain those goals".

did submit a document that outlined her "goals" with respect to teaching, research, professional development and "communication". Under this last heading she wrote, "To continue to strengthen professional relationship with management team." [sic] Ms. Foulds considered this single line to be inadequate because it did not say how better communication would be achieved. So she instructed 1111111111111111111111ito come up with a better plan. 1111=1111.

responded with an e-mail saying, "It would be helpful if you could advice [sic] me on a strategy that we could then discuss at a later meeting." Ms. Foulds responded by e-mail saying, "... it is now in your hands to determine how we are going to facilitate communication." Ms, Foulds testified that she did not feel it would be "helpful" to offer any further guidance, including an indication of what was inadequate with the draft. Ms. Foulds testified that she was interested in seeing 1111111111111.1.'s "input" or "insight" into the issue, although she did offer a further meeting "if requested". It does not appear that the meeting was requested, and shortly after this, did come up with a list of strategies that was then acceptable to Ms. Foulds.

The grievor and Union's complaint about this issue is that Ms. Foulds faulted the grievor's attempt to set forth a strategy, yet failed to give any direction about what was wrong with the first draft or provide assistance that would have facilitated an understanding of what was expected.

March 2002 to August 29, 2002

There were numerous meetings with the Dean and the Chair following the reinstatement, and reausioillft also met her supervisors with her Union representative that term in accordance with the reinstatement protocol. However, by March, 111111111111ft began meeting alone with Ms. Foulds. Due to scheduling and personal demands, the parties agreed to by-pass what would have been the April monthly meeting. No formal meetings involving the Union or HR were then scheduled due to the semester break until August.

August 29th was the next significant "monthly" meeting contemplated by the Memorandum of Settlement and therefore included a representative of the Union and H.R., as well as the grievor and Ms. Foulds. Mr. Wilson testified that the Union and the grievor went to this meeting confident that "things were going well" and that there were no areas of concern that 11111111111111111111could not deal

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with herself. She was unhappy with her assignment of office space, but she had no issues that she wanted raised at the meeting.

However, Ms. Foulds had a very different perception of the situation. Ms. Foulds had several performance concerns and approached this meeting as "an opportunity for Into acknowledge that there were management concerns". Accordingly, Ms. Foulds tabled three specific concerns:

a) "Trust and Communication"

A College carpenter had told Ms. Foulds that he had attended to a repair request in 1111•1111111111iis office, had quoted a $45.00 charge, and that Ms. SM. had said that she was "afraid" to approach her Chair for authorization to proceed. Ms. Foulds concluded from this conversation with the carpenter that she was not trusted by and, further, that she had failed again to abide by their agreed upon strategy of bringing concerns directly to the Chair. Ms. Foulds admitted that she reached this conclusion even before discussing the issue with the grievor. Ms. Foulds testified that even if the grievor denied the comment, the denial would not be believed. Ms. Foulds admitted that she had already decided to believe the carpenter over the grievor, no matter what was said by11111111.111111111 When this issue was raised with 111111111111.111111111 at the meeting, she denied saying that she did not trust her Chair and tried to explain that she simply had told the carpenter not to proceed until she got the Chair's authorization. Ms. Foulds explained why she chose to believe the carpenter over the grievor even before hearing the grievor's explanation: "The carpenter deals with 100's and 100's of employees. I couldn't imagine why he'd tell me that if it wasn't so." Accordingly, when 110111111111111111 did proffer her denial and explanation later, this was not given any credence. Ms. Foulds counseled her to "change her behaviour".

and Mr. Wilson were very surprised and disturbed by this issue because Ms. Foulds had already authorized the minor repair without any prior indication of a concern and because •'s denial had been given no credibility.

Dean Cormier was aware of this matter, and it was a factor taken into consideration in the decision to terminate. To her it reflected a "very inappropriate and unprofessional" comment by 111111111111111. Dean Cormier never discussed this with 1111111111111111, but also assumed that the carpenter had been telling the truth. Dean Cormier remarked rhetorically, "Why would the carpenter bring it to Barb's [Ms. Foulds'] attention if she [the grievor] hadn't said it." Dean Cormier admits that she was never told of 111111111111111111111s response to the allegation.

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b) The grievor was accused of having "difficulty fitting in" to the department because of a comment she had made to a Coordinator about being "unhappy" with the transfer to the PN department:

Ms. Foulds was very concerned about the fact that ■ had told the PN program Coordinator that her teaching assignment in that area was not her "first choice". Ms. Foulds felt that the Coordinator had reported the comment out of a concern that the PN team may have difficulty "pulling together".

11111111111111111111b recalled that during a conversation at a social gathering she had been asked about her new assignment in the PN area and that she had responded by making positive comments but also mentioning that her "first love" was the RN program. However, she tried to assure Ms. Foulds that she was "delighted" to be working with the new team, and was willing to take on a new challenge.

c) There was discussion about concern that 111111111111111111111 had made a commitment to attend a conference without first getting approval from her manager:

This issue arises out of the fact that IIIMMOMB had had an abstract of a research project accepted for presentation at a conference slated for late September 2002. Professional development is a recognized aspect of a teacher's duties and is allotted time on the SWF 1 . However, faculty must seek to obtain leave if attendance at the conference conflicts with the teaching schedule. 1111111Mbohad not sought "permission" to submit the proposed abstract, nor is that the norm. But she did make the submission with the encouragement of the Dean earlier in the year and she had notified both Ms. Cormier and Ms. Foulds when the proposal was accepted in February 2002. She had also indicated in e- mails that she knew her attendance at the conference would depend on their approving her leave. In May, 11111111111111111116 submitted a leave request form, seeking up to two days' Professional Development leave. In July, she reminded Ms. Foulds of the request, and received the response that the leave could not be granted without a review of the Fall timetables and teaching schedules. Ms. Foulds says that she raised this issue at the August 29 th meeting because it appeared that assumed that the acceptance of her abstract at the conference would mean that the leave would be automatically granted.

The discussion about this whole issue became confused at the August meeting. Ms. Foulds had raised the issue because she saw it "another" example of something that 111111111111111111111111 should have first discussed with the Chair before assuming that leave would be granted. On the other hand, the grievor and the Union believe that proper channels had been respected and that the Dean and the Chair had been made well aware of the acceptance of the grievor's abstract and desire to attend the conference months in advance. Confusion over the

Standard Workload Form

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issue could not be resolved because no one at the meeting had any relevant documentation about the initial request or the correspondence that followed. While the Union perceived the concern to be a failure to follow procedure, it was unsure of what the alleged infraction was.

After the meeting, the Union reviewed the relevant exchange of e-mails. Mr. Wilson advised management that in February 2002, 411111111=110. had sent e- mails to her managers advising them that her abstract had been accepted for presentation at the conference and that she would fill in the prescribed form to request leave to attend the conference scheduled for September 29 to October 2, 2002. She added, "I need not stay at the whole conference." Ms. Foulds' response in February 2002 was to say, "Go ahead and confirm" the presentation, but the attendance would depend on the teaching schedule for the Fall and they would "work out the details" then. .111111111111111116 did submit the prescribed leave request form on May 2, 2002, asking for PD leave on September 29 — October 1 with the note, "Two days if possible, otherwise one." Ms. Foulds' comment on the form was, "We will attempt to work this request, however I cannot grant the request until the fall timetable is available." 11111111111•111 followed her request up with a reminder to Ms. Foulds on July 29th , asking for permission to attend the conference from September 29 —October 2 nd . Ms. Foulds replied, "Look at the teaching assignments and consider how to provide coverage." A further reminder on August 26th prompted Ms. Foulds to indicate via e-mail that Ms. 111111111111 could attend the conference provided that she could arrange coverage with the Coordinator that would not necessitate the hiring of a part- time teacher. 111111111111111111111 replied to this on August 28 th with an e-mail to Ms. Foulds beginning, "Thank you for allowing me to go to the conference." The College was reminded of this correspondence in a memo from Mr. Wilson on September 12th.

However, as of the meeting on August 29 th , there was clearly a disconnect between 411111111111/111 and Ms. Foulds. This was summed up with the latter's testimony when she said; "She [the grievor] thought she had approval and she did not — we were trying to work it out — at least for two days." On the other hand, the grievor had assumed from the e-mail the day before that permission had been granted, conditional only on the ability to make the appropriate arrangements with the Coordinator. As a result, the Union and the grievor were very surprised and disappointed to be confronted with criticisms of the grievor's actions with regard to this matter, one day after a direct and positive sounding e-mail on this very subject.

What the correspondence does not highlight is that the July 29 th e-mail requesting the leave until October 2 nd actually amounted to a request for a third day of leave. This additional day was being requested because when the abstract was first accepted, the conference invitation had been for to make a short presentation on September 30th . The request for the third day of leave came after the conference organizers changed the invitation by asking her to make a one-hour formal presentation on October 2 nd . This meant that her

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original request to attend the conference from September 30 — October 1 would have to be amended to provide a further day of leave. That is why the July 29th e-mail included October 2 nd . What is clear is that did not amend the original formal leave request form. She considered the correspondence exchanged with Ms. Foulds as notice and permission for the full attendance. In fact, following this exchange, the arrangements for class coverage for the three days were put in place.

Despite the specific criticisms raised in the August 29 th meeting, Ms. Foulds and PIMUMMII followed it up with an exchange of e-mails where they both express that they "enjoyed the meeting". added that it had given her "the opportunity to provide some clarification". However, Mr. Wilson's follow-up memo to the College characterized the meeting as "troubling", in that it called upon to "change behaviour", even though she had done "nothing inappropriate". He wrote;

I despaired that a well-motivated, well-beloved teacher who has taught in three departments and moved her office three times in the course of a single year, who thought she was off to a good start with her department and her manager was left thoroughly hurt. The fact that resolved matters of a non-academic nature should be elevated as serious issues I found embarrassing and insulting for all parties concerned.

It should be noted here that despite the criticisms of regarding her request for PD leave, her timetable was rearranged to the Chair's satisfaction and leave was granted for te to attend the conference. She attended the conference from September 30 — October 2nd.

It must also be pointed out that the evidence ultimately shows that Ms. UMW never did fill in the official request form for seeking leave to attend the conference on October 2, only for the two days before. The request form is important to the College in order to keep track of information regarding PD leaves, SWFs and attendance. However, the evidence also shows that the College has another form and method of tracking that information, and that Ms. 11111111011's attendance at this conference was ultimately recorded properly for accounting and attendance purposes.

LETTER OF WARNING - NOVEMBER 12, 2002

As the Fall term progressed, Ms. Foulds determined the need to write a formal letter dated November 12 th , outlining "ongoing concerns" regarding the grievor's performance. 11111111111111.4's response to this letter was "total shock"

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because she believed that all the stated concerns had already been "clarified, resolved and explained". The listed concerns were:

a) "Resisting or refusing" meetings with Ms. Foulds:

Ms. Foulds explained that this criticism related to several instances when she invited 1111111111111111111111 to meet, either for the delivery of the Performance Appraisals or to discuss ongoing issues. In some instances, particularly surrounding the delivery of a Performance Appraisal, where there were some issues between them about who could/would attend the meetings, and there were also some legitimate difficulties in arranging mutually convenient times. There is other correspondence where Ms. Foulds requests a meeting, Ms. UMW suggests convenient times and Ms. Foulds agrees. But the one instance that remained a concern for the College in these proceedings was 1111111111111•111's

alleged "refusal" to meet on October 25, 2002. Ms. Foulds cited this as a failure to live up to the commitment to "improve communication". This problem evolved from a request from Ms. Foulds earlier in October for 11111111111111111111111 to identify times that they could get together for their regular "touch base" meetings. Ms. Sumitro responded by writing that she would not be available until the weeks of November 8 and 15. Ms. Foulds was not pleased with the response. Then, on October 24th , Ms. Foulds wrote to the grievor asking to meet the following day to discuss specific students' concerns that had been raised in a "program council" meeting, and 1111.1111111111111,s plans to address them. responded, saying, "I am really busy with the course today and I am not able to meet you. However, I am continuing facilitating the students' learning." Ms. Foulds replied immediately, asking to "chat briefly" the next day [October 25] when she knew that the grievor was not scheduled to teach. response was, "I will be unable to see you today [October 251. I need your support by giving me time concentrate [sic] on my work please. . ." Ms. Foulds testified that she was very concerned and frustrated about what she perceived as the grievor's "refusal" to meet to discuss students' concerns when requested. Ms. Foulds had only wanted a "quick up-date" and had been willing to wait for a non-teaching day for the meeting. She explained, "As a manager, I was really quite concerned about that. The information was important to me. I didn't want to wait until a week after or the next. I needed to ensure that the students' concerns were resolved."

11111111111.11111 testified that she was not "refusing" to meet her Chair. Instead, she says she was overwhelmed with the demands of hundreds of students and that her teaching load was something that she "wasn't prepared for". That was why she suggested meeting on the alternative dates later on in the term.

b) "The failure to meet [the] agreed commitments to the team" by "refusing" to attend a curriculum development meeting on October 4, 2002:

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Curriculum development is a recognized and important full-time faculty responsibility. Time is allotted in the SWF for this purpose. Ms. Foulds testified that she considers attendance at these meetings particularly important for new teachers because they provide an opportunity to learn about new programs and gain from the experience of the faculty with longer service. There was a curriculum development meeting slated for October 4 th . Ms. Foulds testified that this was a "pivotal" meeting concerning a new program at a critical point in the semester. 1111111111111.1111k chose not to attend the meeting. October 4 th was the day after return from the conference and her PD Leave. She testified that although she recognizes that curriculum development is an important aspect of a full-time faculty member's responsibilities, she was "too swamped" with preparation for her next day's classes upon her return from the conference and could not take the time for what might amount to an all-day discussion. She testified that she was working day and night to prepare classes for her students and did not think she could afford the time to sit through the meeting.

attempted to alert Ms. Foulds about the desire to miss this meeting via an e-mail, writing, "I just want to clarify in terms of my time for curriculum dev [sic] because as far as I know from my SWF I do not have the time. I had attended previous meetings on my own and now that my course work is increasing I feel that I will not have the time to attend as often as I would like to. I just want to make sure that you are not expecting me to attend each time." Ms. Foulds responded with, "I guess . . . you can reflect on how you devote your time; this week you had three days professional development; it is your decision how to proportion your schedule. The curriculum work for the next semester is a cornerstone to your teaching."

testified that she interpreted this response as consent to miss the meeting. Further, she was confident that she could complete her required curriculum development commitment by the end of the term even if she missed that meeting. 2 Accordingly, 111111101111111111 testified that she was "shocked" by the criticism in the letter of reprimand faulting her for the decision to miss the meeting. F explained, "I had asked her [Ms. Foulds] for direction. I thought she had said to devote time according to how I decide. When she subsequently said I should attend meetings, I did attend meetings irregardless [sic] of how much work I had to do that night."

This was not satisfactory to Ms. Foulds. She considered the grievor's decision to miss the meeting as an indication of poor judgment. Ms. Foulds felt that the grievor had given priority to the conference instead of making time for "in-house" activities. Ms. Foulds also said that ii1/1/1111/111/1/'s response to the invitation to decide how to "proportion" her scheduled duties reflected a lack of understanding of the priority that should be given to curriculum development.

2 The evidence subsequently established that did complete the number of hours allotted on the SWF for curriculum development in that term.

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Ms. Foulds expected4111111101111111111111to attend the meeting and felt that there was no need to "clarify" this expectation beyond saying that "curriculum work for next semester is a cornerstone to your teaching". Ms. Foulds testified that she felt she had sent "a clear enough message" for the grievor to understand that the correct choice would be in favour of attendance. Ms. Foulds conceded that attendance at conferences is contemplated within the terms of employment, and that it provides a benefit to the faculty. However, she stressed, "the commitment to the programs comes first". She also conceded that hours are accorded to curriculum development on the SWF, and that 1111111111111111111111 did fulfill her allotment for that term. However, Ms. Foulds' continuing concern was that this meeting had been planned long before, it came at an early and critical time of the term, and it involved members of the team that could enhance ms's understanding of the program. The decision to miss the meeting in favour of class preparation time after the PD leave was said to reflect poor judgment and a failure to live up to the commitment expected of a full-time faculty member to the teaching team.

The evidence from the Union presented on this subject through Ms. Hunka, an experienced former Coordinator and faculty member, was that it was not uncommon for faculty to miss one of these meetings, either because of personal or other commitments. Her view was that missing one meeting was "okay". Another experienced faculty member, Ms. Finnegan, said that she had missed more than one of these meetings without incurring any consequences. She also spoke of offering, at her own expense, to drive 11111.11111111111 to a curriculum development meeting for the PN program in Pembroke that Ms. IMO had wanted to attend, only to be told that Ms. Foulds had not been pleased that the grievor had been told about the meeting, and that there was no need for her to attend. However, ultimately Ms. Foulds did allow for the grievor's attendance.

The Union also introduced evidence to show that the grievor was not the only probationary teacher who missed curriculum development meetings during this period. In fact, other probationary teachers missed more than one meeting without incurring any negative consequences. However, this Board of Arbitration has no evidence regarding the reasons or circumstances surrounding those meetings or the other probationers' absences. Nor is there evidence that this came to the attention of Ms. Foulds or Dean Cormier.

c) Failing to inform the Chair of "changes/revisions" to the submitted leave request form:

Specifically, the letter complains about the fact that 11.11=11Ni's leave request form "asked for Sept 30 and October 1, 2002 as professional development days [but] did not include October 2, 2002 when [she was] away from the College." This relates again to the presentation of the abstract at the Fall conference. The complaint in the letter focuses on the fact that 111111111.11111

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had not amended or resubmitted her leave request form to include attendance on the third day of the conference, October 2nd . M1.1111111 did not understand why the issue was being raised because she felt that she had requested and been granted the leave for that day in the e-mail from Ms. Foulds. But from the Chair's perspective, this was a different problem than the one raised at the August 29th meeting. This concern related to the fact that the leave request form had only included September 30 and October 1st.

However, the testimony regarding this area became quite confusing as Ms. Foulds tried to explain why the issue was being raised in this letter. While the letter referred to a problem with the form, the evidence at times suggested that the October 2 nd day had been taken without notice and/or approval from the Chair. Ms. Foulds testified that she raised this issue because, "I was not aware of the October 2nd date until after it occurred." She also testified that the grievor was being reprimanded for the fact that she had been absent October 2nd

"without having been granted leave". This is consistent with the College's position in opening remarks, alleging that the October 2nd day had been taken without approval. However, it is not consistent with the e-mail exchanges, including the exchange on October 3 rd when Ms. Foulds mentions that Ms. BMW had just returned from three days of PD leave. Nor is it consistent with other testimony where Ms. Foulds said that she first learned in late September that was planning to remain at the conference until October 2nd

through an e-mail exchange when Ms. Foulds has requested a meeting with the grievor on October 2nd and 1111111.11111 responded on September 25 th saying that she would still be at the conference that day. Further, as stated above, Ms.

had asked for leave from September 30 — October 2nd in her e-mail to Ms. Foulds on July 2991 . Ms. Foulds was given an opportunity to explain these discrepancies in cross-examination, and said that she had "forgotten" that Ms. IMMI had made the earlier requests to extend the leave for the third day.

In the end, Ms. Foulds' complaint was that had failed to complete the proper form, and that the e-mail exchanges were not approvals or substitutes for the proper forms. She stressed that the forms were important for the proper tracking of PD leaves for attendance and SWF purposes. Further, she pointed out that the grievor knew about the forms, as evidenced by her initial request for leave. However, it must also be pointed out that the necessary arrangements for coverage ofaillINIIIIIks classes for the three days were put in place and nothing was said to her to stop her from attending the conference for the full duration.

d) The failure to make an on-site visit or communicate directly with a preceptor from June 5 — 24, 2002:

"Preceptorship" is a program whereby the College's nursing students are placed in health care facilities in the community, with the stated purpose of the students gaining the opportunity to function more independently, actively

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participate in a health care team, and develop leadership and practical skills within their chosen professional role. role in June 2002 was to be the faculty liaison between the students and the professional contact within the health care facility, known as , the 'preceptor'. The preceptor is a type of professional mentor. The role of the faculty liaison is set out in the College's Preceptorship Manual. The relevant portions for purposes of this matter are:

2. Organizes orientation conferences for the preceptors at time convenient to both preceptor and faculty liaison.

3. Is available by pager at all times for consultation when necessary.

4. Plans regular meeting with the preceptor to discuss student progress.

5. Assists the preceptor to:

a. Plan learning experiences for individual students b. Identify learning problems c. Develop a plan to overcome problems d. Evaluate the student e. Develop teaching strategies f. Keep the lines of communication open

6. Supports the preceptor's efforts and provides positive feedback for appropriate decisions.

7. Assumes responsibility for recommending the final grade to the student.

The Manual also sets out corresponding duties for students and preceptors to communicate with the faculty liaison "on a regular basis". The Manual indicates "the faculty liaison acts as a consultant and communicates directly with the preceptor and only indirectly with the student". The Manual also sets out an outline for faculty liaison — preceptor communication:

Faculty Liaison — Preceptor Communication

The Faculty liaison wants to know:

a) How things are going in general, even if there are no problems, e.g. 'have the two of you developed the rapport necessary for an effective working relationship'?

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b) Is the student progressing toward meeting the program objectives?

c) Have there been schedule changes, student absences, etc.?

Meeting times with the faculty liaison will generally be more frequent during the first half of the clinical experience than the latter half.

The College's complaint in this area arises out of the fact that 411111110.1. did not meet with one preceptor for over two weeks. Ms. Foulds testified that her instructions to the new faculty liaisons, including the grievor, were that their role included the requirement to meet regularly, at least once a week, particularly in the first couple of weeks, with the students and preceptors. 11111=111111111. did not interpret this to mean that she had to attend to each placement every week. riamm testified, "I honestly don't recall that — specifically to meet once a week? If she [the Chair] had said that — my gosh — I would not have gone to bed. She [the Chair] did say 'frequently.' . . . The 'ideal' was weekly, but that wasn't feasible. . . . But I did visit some more than once a week. . . . If you know a student is doing well and others are not, you devote time to the ones who are not doing good." [sic]

Ms. Joan Gale, a faculty Coordinator, was present at the same orientation meeting given to the faculty liaisons that 11111111.1110 attended. Ms. Gale recalled that their instructor, Marnie Connelly, had said that the faculty liaisons should "ideally" meet with the preceptors once or twice in the first week of the placement, and after that on a weekly basis.

The grievor admits that she did not contact one preceptor for over two weeks during the initial stages of a placement. The letter of reprimand states, "Monitoring of student progress during preceptorship includes both the student and the preceptor and failure to include one member of the triad hinders the ability to effectively evaluate student learning." [sic] The concern expressed at the hearing was also that 111111111111111.1111 failed to have any direct meetings with this student over the same period. All this came to light after a student sustained a work-related injury two weeks into the preceptorship. When the student approached the College in the summer to arrange a transfer to another College out of province, Ms. Foulds asked to provide an overview and evaluation of the student to forward to the new institution. Ms. Foulds was then distressed to discover that the grievor had not met with the preceptor from June 5 -24th , and there was no evaluation available. An evaluation and information was critical to enable this College to assist the student in securing a position in a new school and credit for work done at Algonquin. The preceptor had to prepare this after the fact, in the summer following the preceptorship program. The preceptor involved with this issue recalled meeting with at the beginning of the placement and being given her "pager" number, but having no contact with her

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thereafter. The preceptor said that there were some problems with the student, but that these were problems that the preceptor would have dealt with directly before feeling a need to involve the faculty liaison. However, due to the lack of contact with 1111111•11111111 before the workplace injury, the preceptor and Ms. NNW never did discuss this student.

MM. admits that she did not meet with that student or the preceptor after the initial placement. She and the Union offered a number of justifications and explanations for this. First, the Union called several other faculty members as witnesses who had been faculty liaisons in the past. One of these witnesses, Paulette Parker, had helped write the Preceptorship Manual. All the Union witnesses called on this point said that they were unaware of any "rule" or policy requiring weekly meetings with students and/or the preceptors. They also said that it was common to keep in contact with students and preceptors over the phone. Jenny Brooks, a retired faculty member with extensive experience in the preceptorship program before the events of this case, described the number of students and placements assigned to 11111.1111114 as "horrendous". Other faculty spoke of maintaining telephone contact with their students and preceptors and of giving priority to the students with problems. All spoke of having more frequent meetings at the beginning of the program. While Marlaine Finnegan says that she went three weeks without meeting a student during a preceptorship, she also conceded that this occurred with the knowledge of her manager and not during her probationary period.

As for the grievor, she repeatedly said that she tried "her best" to meet "frequently" with the students and preceptors, but that she had too many students in too many locations to provide that coverage. She said that she devoted time to students who appeared to be having problems and remained available to everyone through a pager 24 hours a day. She describes herself as "running around" all over town, day and night, trying to keep up with the demands of the job. She also said that she maintained contact with students through e-mail, and devoted her attention to placements where problems had arisen. When asked if she filed a workload grievance or complained about the demands of time, she replied, "No. I was trying to be innovative, to meet the challenge. I thought I was successful."

She also explained that she spent time during this period meeting with Hospital Administrators and their Directors of Nursing to establish "good networking" and promote "good communications between [the] students and the institution". To counter the suggestion that she took time to meet with these people at the expense of her students or preceptors, MINIM claimed these meetings enabled her to inquire about the progress of a student if s/he was not on site because of shift work.

11111■11. says she was "shocked" to receive the criticism in the letter of reprimand about her work with the preceptor program because she felt that she

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had worked "so hard" and her students had achieved "positive outcomes". Addressing the specific situation of lack contact with the preceptor of the student who had been injured, testified that she met with the preceptor at the beginning of the placement, discussed how to keep in touch if she had any problems with the student, and kept in "constant" contact with the student via e-mail. 18111111111111111111 says that there were never any indications of any problems. She said, "I had to prioritize. My student was happy with her preceptor and I relied on the preceptor to contact me if she had difficulties." Accordingly, Ms. IMES concentrated her attentions on situations with other students where problems had become evident. However, when the student was injured, Ms. AIM attended on the scene, took the student for medical treatment and thereafter arranged for her return to the placement with modified duties.

Ms. Foulds and the College were clearly not satisfied with the notion that the faculty liaison function could be fulfilled over the phone or e-mail with contact with just the student. She explained, "The students' perception of how they are doing is one piece of the puzzle, but the preceptor's perceptions are equally important. This was the piece we didn't have." Further, while she acknowledged the positive aspect of a preceptor being made aware of how to contact the faculty liaison, Ms. Foulds stressed, "It's not the preceptor's responsibility to contact the faculty liaison; it's the other way around."

also stressed that she had no indication of problems with this student's preceptorship placement. There is no suggestion that the injury is the fault of anyone connected to this case. However, when 111111111111111111116 was asked to comment on the preceptor's report that mentioned some difficulties, Ms. IMO said that she assumed the negative comments in the report had been written to make the student "look bad . . . after the fact". The preceptor denied this, explaining that the report had been solicited in the summer to provide an evaluative basis in support of the student's application to transfer schools. Even though the student had been unable to complete the preceptorship with this College, insisted that the student had had a positive experience during the time that she had been the faculty liaison.

Ms. Foulds testified that performance as a faculty liaison revealed a lack of ability to prioritize, and poor judgment or decision-making. Further, the College was concerned that the grievor did not acknowledge any of these concerns when she was spoken to about her role in the program.

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e) Conclusion and warning:

Ms. Foulds concluded the November 12, 2002 letter with the warning, "These concerns compel the College to advise you that your progress to date is not meeting our expectations of a faculty member . . . . If there is not marked improvement in your performance in the next six weeks, the College will have to reassess your future employment at the College." Ms. Foulds explained, "This was an opportunity to share management's concerns that there was a pattern emerging from the time of reinstatement to November. . . There was no acknowledgement that these were my concerns. I was concerned about these issues. . . . If this was happening on an ongoing basis with a probationary employee, what was going to happen in a permanent capacity?"

The E-mail to the College President — December 2002

In December 2002, 111111111111111111111a wrote an e-mail to the College President containing an "urgent request" for a transfer to the Continuing Education Department under another manager. She wrote, "Please sir, can you look into this request. Please sir have mercy on me, I am giving my utmost to the college. Please consider this most urgent request." She says she wrote to the president because she felt desperate about the situation with Ms. Foulds. 1111111111111111111b testified, "I couldn't seem to do anything good that would make my manager happy about my work. Yet I was doing my best." 11•11•111111111 admits that she did not first ask her Chair or her Dean for this transfer. Instead, she turned to the President because he had publicly expressed a "willingness to listen to staff' and had indicated that he had an "open door policy", inviting faculty to approach him directly with issues. She did not see appealing to the president as an act of disrespect for the College hierarchy; instead, she saw this as "looking for someone to help me". The President acknowledged receipt of her e-mail, but replied that it would be "in her best interests" to "work with the present management team to resolve any difficulties and establish a standard of performance which is acceptable to all."

Ms. Foulds testified that she reacted with "surprise and frustration" when she was made aware of the grievor's appeal to the President. Ms. Foulds explained, "We had set out our channels of communication and I was really surprised that she had not gone to the Dean first with her concerns. . . . This was another 'red flag' to me." Another concern or source of frustration with Ms. MINE was that Dean Cormier had made several attempts to set up a meeting with 1111111M., but the arrangements had broken down when indicated that she wanted a colleague who was also a Union representative present. Dean Cormier had responded, indicating she would then want a person from H.R. to also be present. As a result this meeting did not happen and the grievor made her appeal to the President.

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PERFORMANCE APPRAISAL — FEBRUARY 2003

(i) Positive Feedback

It was noted thate11111•111111011 completed teaching assignments in the Practical Nursing and Continuing Education programs in the first semester. In the second semester, she joined the Practical Nursing team, and worked on the development of a new curriculum for the Fall of 2002. She also attended curriculum development days and supervised practical nursing students in clinical placements in June of 2002. In the Fall of 2002, she taught theory, lab and clinical courses in the Practical Nursing program, as well as two days in the RN refresher program. It was noted that she attended most of the curriculum development days with her colleagues.

(ii) Negative Feedback

was criticized for three examples of "communication difficulties". The examples that were cited were:

(a) Preceptorship — June 2002

This is the preceptorship issue raised in the November 12, 2002, Letter of Warning cited above.

(b) Taking a PD Leave without authorization: Fall 2002

The appraisal notes, "a breach of communication and approval protocol occurred in the fall 2002 when stook an additional professional development day without written authorization". It further alleges, "Despite clear directions, [she] continued to be absent without written authorization or approval". This relates again to the Professional Development leave request for attendance at the conference from September 30 — October 2, 2002 as discussed in detail above.

(c) "Despite clear communication from the PN team, gm chose to modify objectives and teaching tools without consulting or reviewing with the coordinator or team."

It is agreed by everyone that evaluation methods and criteria are decided upon by the teaching teams. This is necessary to ensure consistency and fairness within a faculty. There had been complaints from students in the past about a lack of consistency in the PN program, so Dean Cormier was particularly sensitive to the need for consistency here. There is no evidence that Ms.

41111111111111111 altered any "objectives". However, Ms. Foulds and the College do allege that the grievor altered a "lab tool" and some theoretical objectives. The evidence filed to support this was an attendance form developed by the teaching

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team. The concern was that it appeared that in addition to attendance in class, the grievor had also noted whether students brought their lab coats and/or took on the role of "leader" in her class. She testified that she did make these additional notations, along with recording attendance, because they helped her determine the students' entitlement to their class participation marks because having proper equipment for the lab (i.e. the lab coat) was a component of the attendance mark. She also says that the "leadership" notation did not factor into their final mark and that there was therefore no "alteration" of evaluation tools.

However, Ms. Foulds became concerned about these notations when the course Coordinator, June Gale, brought them to the Chair's attention. Ms. Foulds said that her "main concern" was that the notations were sending "conflicting messages" about evaluation criteria to the students in different sections, and also that the grievor "had made a decision on how to use the [attendance] tool". The Department's expectation was that all faculty would use the tool consistently. In cross-examination, Ms. Foulds conceded that she had no information to suggest that the students had ever seen this document, had any knowledge of it or that "inconsistent messages" had been sent.

(d) was also criticized for failing to meet the March 27, 2002 objectives. The examples cited were:

• "The submitted list of goal offered no strategies listed on how she was to achieve these goals particularly communication goals." [sic]

• "She has, despite clear direction, continued to be absent without written authorization or approval."

The first comment relates to Ms. Foulds' dissatisfaction with the grievor's initial attempt to outline a strategy for improved communication in March 2002. Since there were no further allegations concerning leaves after the Fall of 2002, the second comment must relate to the PD leave for the September 30 — October 2, 2002 conference.

(e) Conclusion:

It was noted that there was "no marked improvement" in performance with regard to previously-stated objectives, and it was said that "there continues to be issues of team work and communication with her supervisor and colleagues that need to be addressed."

MARCH 24, 2003 — MEMORANDUM FROM THE COORDINATOR

A Coordinator is a member of the bargaining unit that acts as a liaison between management, employees and students. The Coordinator's responsibilities include ensuring coverage for classes and generally overseeing the smooth running of specified courses. In the Winter term of 2003, Ms.

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81111111110's Coordinator for the Health Assessment course was Mary Jane Burrows. In March, Ms. Burrows wrote a four paged, single spaced memorandum to Ms. Tosh, the Chair of the School of Health and Community Studies, outlining numerous "concerns" arising out of the Health Assessment course and 1110/1/NON's involvement. The "concerns" can be summarized as Ms. Burrows' lament that she had to spend an inordinate amount of time dealing with issues that she felt, as a full-time faculty member, should have handled. This memo and its comments on 111.1111.11101s performance in that course were considered by the College in 6111111111111111111b's termination. Accordingly, Ms. Burrows was subpoenaed by the Employer. However, Ms. Burrows made it clear that she was a reluctant witness. She stressed several times that she had written the memo to document her own workload complaint, not to criticize 11111111111111111111111111. Ms. Burrows acknowledged in her testimony that Ms. MEM was a "good teacher" and had received positive evaluations from the students in the course. Ms. Burrows expressed and displayed considerable distress over the notion that this memo had played any role in 1111111111111111111s termination. Nonetheless, the memo contains negative comments about Ms. IIMININs performance. Therefore, these issues must be analyzed.

Ms. Burrows explained the genesis of the memo. She said that she had been so stressed by the duties she was undertaking for this course that she had been considering asking the Union to lodge a workload grievance. However, she first spoke about these complaints to Ms. Tosh, who had suggested that the concerns should be put in writing. Ms. Burrows testified that she had only intended this memo as a message to management that too much was being demanded of a Coordinator in this course. Ms. Burrows testified that if she had intended this memo as a criticism of it would have been copied to her. Instead, the memo was only sent to Ms. Tosh. However, Ms. Burrows testified that she discussed most of the issues raised in the memo with Ms.

, some of them "many times", and some of which the grievor acknowledged as valid, others not.

Ms. Tosh passed the memo on to Ms. Foulds. Ms. Foulds testified that she was "astounded" and "taken aback" by the contents of this memo because it raised performance issues with a course that shad taught before on several occasions. Ms. Foulds clearly read the memo as a list of performance concerns that were being raised by a colleague. This is understandable given that the subject of the memo is entitled, "IIMINIMNI, Professor . . ." with the course reference. The memo begins, "I am writing you re my concerns with the full-time faculty, . ." The memo ends with the comment, "If this situation had happened with a part-time faculty, I would be cautious about bring [sic] this faculty onto my team again."

Ms. Foulds discussed the memo with HR, and it was then revealed to Ms. 111111111111in April. A meeting was convened on Amy 12th to allow her to respond to the memo, with Union representation present. testified that she

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too was "shocked" by the memo and its allegations. She felt that the course had gone well and the student "outcomes" had been positive. MIMOSIMINIS admits that she had spoken to Ms. Burrows about many of these issues. The issues themselves did not come as a surprise to 111111111111.11111 because she said that as soon as they were raised with her, she would understand and comply. Thereafter, she assumed that the issue was resolved. What shocked Ms. UMW was the fact that these issues were later documented and sent to management to be used against her.

The memo was a major focus of the case. Therefore, regardless of its author's intentions, its contents and its impact must be analyzed. However, because the memo is very detailed, only the themes or major items shall be summarized.

• Problems arising from the timetable conflict

January 8, 2003, in response to an inquiry from Ms. Burrows about the delivery of the course outline for the Health Assessment course listed on Ms. ms's SWF, r replied that she would not be able to teach it because she was timetabled to teach another course at the same time. From Ms. Burrows' perspective, this meant that she had only seven working days to find an alternate teacher for the course. Ms. Burrows expected that a full-time faculty member would have advised her of a workload problem earlier, and certainly not only mention it in a response to a request for a course outline. Ms. Burrows had assumed that 1111111■1111 had received her timetable weeks earlier in accordance with the Collective Agreement. However, this had not been the case. In December of 2002,11111111111110 had not received her timetable for the Winter 2003 classes before she left for the Winter break. This should have occurred according to the Collective Agreement. However, upon her return in January 2003, she discovered that she had been double-booked for one time slot.

The parties agree that scheduling is not within the faculty members' control. It is a function handled by the Registrar's Office. Timetable conflicts are never intended, but it is not unheard of for them to occur. Ti1111•111M116 testified that as soon as she became aware of the conflict, she informed Ms. Foulds and the Coordinator about the problem and awaited a resolution and direction from Ms. Foulds. The situation was resolved and the conflict was eliminated when the Coordinator was able to "move people around" to allow for the delivery of all the courses. But this did not occur without causing considerable distress and inconvenience to Ms. Burrows.

Further, Ms. Burrows felt that a full-time faculty member should have prepared the course outline and course resources for the assigned course. This was the expectation in this department. The late notice of the problem for Ms. Burrows meant that she had to spend a great deal of time, on short notice,

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looking for another teacher, preparing the course materials, making all the necessary arrangements for the classes, all of which should have been done by the course teacher. Then, three days before the class was scheduled to begin, Ms. Burrows was told that the timetable conflict was resolved and that Ms. 411111101111Dwould be teaching that class after all. Ms. Burrows complained in the memo and in her testimony that the time she spent on this issue took "time away" from her other duties as a Coordinator.

IIIIM111011. had several responses for the College with respect to this aspect of Ms. Burrows' memo. First, 1.1•1111111,reminded the College that she had been requesting scheduling information from her Manager as late as January 8th and only became aware of the timetable conflict later that day when she received the communication from Ms. Burrows. 11.111111.1111 then explained that she had immediately notified Ms. Burrows and the Manager of the problem. 11111111111111111 did not understand that it was within her power or that it was her responsibility to resolve the problem; instead, she believed that it would be dealt with by the Chair and the Registrar's office.

Ms. Burrows' evidence made it clear that she had assumed that Ms. 111111111111 had received the timetable much earlier in accordance with the Collective Agreement. That was the basis for the criticism against for what appeared to be a delayed notice about the conflict. Upon being told of the late delivery of the timetable, Ms. Burrows conceded that would have had to await direction from her manager to resolve the conflict situation.

With regard to the course outline, 111111111111111. conceded that she did not prepare it, but she explained that when she had taught this course as a part-time teacher, the Coordinator had always presented a prepared course outline to her. She had not realized that there was a different expectation for full-time faculty. However, she stressed that once the scheduling issue was resolved and the expectation regarding the delivery of the outline made known to her, she did submit a course outline in time for it to be distributed to the students. Ms. Burrows testified that she had expected to know that they were required to prepare their own course outlines.

• The memo listed items that Ms. Burrows said required her to "put aside coordinator duties" to review "course process" issues such as scheduling, ordering of lab supplies and discussing "prep" time issues. Ms. Burrows wrote that she had assumed that would not require so much "direction" because she had taught this course in the past. Ms. Burrows also felt that a teacher in Continuing Education should not require so much direction, and that /1/MININI was seeking an inordinate amount of assistance. As a result, Ms. Burrows redirected her to another member of faculty for assistance.

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A 11111111111111i explained that she had only taught portions of this course in the past and needed "some direction in terms of the completeness of the course". She also mentioned that there was a different focus in this course from what she had taught in the past. She says she thought that the Coordinator was the proper person to go to for pedagogical and practical assistance.

• The memo mentions that support staff had notified the Coordinator that had failed on two specific occasions to return the class

register to the designated spot, and that the support staff were "having to track it down after every class". The memo also mentions that it is the responsibility of faculty to return the register.

N111111111.11.11 agreed that the class register had to be picked up and returned to the appropriate office. However, she responded to this allegation by explaining that she thought she had made a satisfactory arrangement with a member of the support staff about the return of the directory on "Friday after class or the following week, Monday". 11111111•1111111 testified that no one had complained to her about this arrangement or mentioned any problem to her until she received this memo. She also denied the allegation/suggestion that the support staff would have had to "track down" the register after "every class".

• Ms. Burrows complained that she had received a request from Ms. 111111111to put a textbook on reserve in the library when it is the responsibility of full-time faculty to do this themselves. The memo mentions that Ms. Burrows then advised 1111.0.0* of faculty expectations regarding reserve texts when this issue arose.

says that she was only asking if the Coordinator thought it would be a good idea to have the books put on reserve, not that a request was being made for Ms. Burrows to do the work herself. In her testimony, I admitted that she had not advised about the department procedure before this incident, but simply assumed that she would have known this.

• Ms. Burrows wrote of her "frustration" over the fact that 1111111111.1111 had failed to submit a quiz for formatting and printing on a timely basis. The memo states, "All faculty know that any quiz/exam must be in a week before for formatting and printing." The memo also reports that Ms. NEM had improperly offered to take the quiz out for printing herself. Ms. Burrows explained that this is not permitted because of security concerns. The memo also reports that had failed to have the quiz itself validated by the Coordinator or the faculty. The memo states, mg had been given previous quizzes to use but choose [sic] to use questions that had not been validated by the Emergency RN faculty. My frustration was that did not communicate any of this to me as the coordinator of the course. She just acted independently."

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111111111•01111 testified that her previous experiences had never included a requirement to submit quizzes a week before their delivery for formatting and printing. As a part-timer, she had always had her quizzes printed by the support staff upon receipt or she took them to a commercial copier for printing if necessary. 1111111Nam stressed that she was willing to do this at her own expense and that she had simply understood that she was acting within the practice of some of her colleagues.

11111111111111111116 also testified that she had been unaware of the expectation that all quizzes had to be validated by the Coordinator or other faculty. She says she had prepared tests "for years" with other Coordinators without having to submit the questions for validation. Ms. Finnegan supported this evidence with the testimony that she had never been required to submit quizzes to her Coordinator prior to their printing or presentation. 111111111111011. ■ also stressed that she had spent a great deal of time adapting a previous quiz to make it more compatible to the specific course content that she had taught. In her own rebuttal memo, 1111111111111111 wrote, I believe that professors have to be autonomous, creative and up-to-date. Are these not expectations of what profs should be?"

Ms. Burrows' evidence revealed that the requirement of submitting quizzes a week before delivery and of having them vetted by the Coordinator was the practice in the Continuing Education Department. However, Ms. Burrows could not recall if this had been explained to 1111111111111111111111. Ms. Burrows also said that she had never counseled 1111111111111111111 against having the quizzes printed off campus before these events, explaining, "I'd never think of saying something like that. I didn't know it was happening." She says she simply "assumed" that 111111111111.11 was aware of the department practices.

Ms. Burrows stated "concerns" over the "theoretical slant" of the questions on this quiz. The memo also states: "I had discussed less theory and more practical with gm in the Queensway Carlton contract, and she failed to follow my instruction once again in this matter." However, the memo also notes that the next quizzes submitted by Ms. SWIM did meet expectations.

IMMO countered this remark, by saying, "I'm the one who taught the course. I wanted my students to know the significance of the content, theories and practicality of what they were doing and the results." She also defended her presentation of the course with the assertion of academic freedom and the assurance that she had taught the course so that students would be able to "use their knowledge to make critical judgments".

The "Queensway Carlton contract" was also mentioned by Ms. Foulds as a factor in the decision to terminate. When asked to explain her concerns, she admitted that she had minimal direct contact with this issue, but she did say that

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she "understood" that there had been concerns from the students about Ms. MIMI placing too much emphasis on theoretical, rather than practical, issues. That is consistent with the words in the Burrows memo. However, Ms. Foulds was unable to recall details, and she admitted that she had made no inquiries about the alleged concerns, nor did she attempt to determine whether the allegation accurately reflected the client's concerns, or to verify if the concerns were legitimate.

The Union called Janice Bissonnette as a witness. She was a nurse specialist at the Queensway Carlton involved in contract with the College for the Health Assessment course taught by the grievor. Ms. Bissonnette was responsible for ensuring that the contract was fulfilled, and as such was aware of the students' evaluations of the course. She said that the evaluations of Ms. OMR were positive and included requests for additional courses. These had been forwarded to the College. Ms. Bissonnette testified that when she became aware that there were "rumours" about 11111111111Mis mishandling of the course, she contacted Ms. Tosh to say that any complaints about111■1111111's teaching had not originated from her hospital and should be put to a stop. Ms. Bissonnette accepted Ms. Tosh's assurance that the matter "would be dealt with". It must also be pointed out that Ms. Burrows admitted that she had heard no complaints regarding 's handling of the Queensway Carlton contract, and confirmed that positive assessments had been achieved.

• Ms. Burrows noted her "concern" about "the amount of time that was being spent in class on theory and not physical assessment techniques" in Ms. if/Ms class. The memo states that this concern arose after Ms. Burrows taught six hours of the course towards the end of the term during a "non-contact week" in the grievor's schedule. Ms. Burrows reported that the students stated that 11111111111.1"never demonstrated any skills". The memo also suggests failings in developing the students' "physical assessment techniques". However, the next paragraph of the memo notes that the students "tested well" on their practical exams at the end of the course.

took grave exception to the critical comments about her teaching. She felt it was "unethical" for her colleague to solicit information from students that would be used against her, and she denied that she had failed to demonstrate skills. She also pointed out that she got "excellent" feedback from the students, the students were "motivated", and that they had good examination results. This is not disputed by the College.

The memo concluded with Ms. Burrows' lament that she had to spend "a lot of time" with this course, which took time away from her "coordination duties". She added, "I would only expect to give this much direction and orientation to a first time professor." She testified that she did not anticipate the need for this much attention to because she had taught the course as a part-time

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teacher in the past, and the course materials were in place because the course had been run for many years. However, while giving evidence, Ms. Burrows admitted that she had made many assumptions about what 1111111111100. should or would have known, i.e., the fact of the timetable conflict, that quizzes in Continuing Education were always vetted before release, that the faculty were expected to prepare the course outlines, that quizzes could not be taken outside for copying, and/or that they had to be submitted for printing one week in advance.

The Union called evidence through other Coordinators who spoke of very different approaches they take or have taken to the role in relation to other faculty. They said that they would not have attended another's classes, spoken against another's approach to a subject and/or do not share the stated concerns about the printing and preparation of quizzes. They spoke about taking quizzes to outside printers and about never having to have their quizzes vetted. None of these witnesses would have dealt with 111111111111111111111 or her class in the same way as Ms. Burrows. However, none of them were coordinating the course the grievor was teaching as a full-time teacher or at the times relevant to‘this grievance.

The Burrows memo was first given to Ms. Tosh, who forwarded it to Ms. Foulds. Dean Cormier was then made aware of it, and she recalls discussing the memo with Ms. Tosh in order to address Ms. Burrows' workload concerns, her fatigue and her ensuing illness. Dean Cormier described her perception of the memo as a document being "intended to deal with frustrations that needed to be addressed". She said, "I didn't take it as a criticism of Me I took it as, these are things that Mary Jane expected IS to do and that weren't being done."

Ms. Foulds met with 111111=1.11111 and a Union representative to discuss the contents of the Burrows memo on May 12th. Neither Dean Cormier nor Ms. Foulds had discussed the contents of the memo or the issues with Ms. Burrows. However, 1111.111111111was given an opportunity to respond to the comments and concerns in the memo. She did this in detail, setting out the explanations and denials outlined above. Ms. Foulds testified that the College considered the grievor's detailed responses. However, Ms. Foulds' reaction to the responses was critical. She said, "Once again, I did not see any acknowledgement of anything in the memo that she should take responsibility for or that she could have done things differently."

The Decision to Terminate

The letter of termination is dated two days after the meeting with Ms. iNII'and the Union representative about the Burrows memo. Ms. Foulds testified that that she met and discussed the situation with the Dean and the College's Director of HR after the meeting. She describes this as a "pivotal" time in the academic year when workloads have to be assigned for the Fall programs.

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According to Ms. Foulds' evidence, the decision to terminate was made by them at this time. However, Ms. Foulds resisted the suggestion that the Burrows memo was a critical factor in the decision. She explained, "We reflected upon one and a half years of ongoing issues, concerns with a probationary employee, and that by providing her with a full workload for Fall 2003 we might be saying that her performance was acceptable, but it was not. So rather than give her the workload, a decision was made to terminate her employment at that time." In explaining the impact of the memo on the decision to terminate, Ms. Foulds said it was simply "another red flag along the way. We put it all together - no acknowledgement of things she should or could have done differently, or how communication could/should have improved. At this point it was a collection of all things put together. . . There wasn't a collective sense that things were getting better. . . There really was no indication that.. was ready or able to make changes to work as a full-time faculty member at Algonquin. . . . It was the one and a half years - the consistent flags going up. We thought we were doing well until the next incident. It was truly everything all together."

Ms. Foulds was very concerned that 1110111M11 had consistently failed to take responsibility for her errors and had refused to acknowledge that any concerns of the College were legitimate. Although it was acknowledged that Ms. 11111111111 always offered explanations and "clarifications" regarding any concerns that were raised with her, Ms. Foulds was unsatisfied with 11111111111111111111 s refusal to acknowledge the validity of any of management's concerns, especially given her probationary status. The preceptorship and leave issues were highlighted as prime examples. Ms. Foulds said she was looking for to acknowledge that she could or should have done something differently, but she never did. Ms. Foulds' obvious and recurring frustrations were caused by her perception that II never seemed to acknowledge that the College was raising legitimate grounds of concern about her performance. 111.111■11

always acted on the defensive, explained her conduct and/or denied allegations, whereas Ms. Foulds was looking for some acknowledgement that the grievor understood the College's concerns. This is why Ms. Foulds said that she kept raising the same concerns with the grievor and why, in turn, 11111111.1111 became so frustrated about having to deal with the same issues so many times. This theme was pivotal to the College's justification for the termination and was explored in depth with I during her cross-examination. She was asked repeatedly whether the College's concerns were "legitimate." Ms.

14111111111 was prepared to agree that virtually all the areas of concern were legitimate, but never admitted that there was any factual basis for the allegations that were being made against her.

The intense cross-examination of ■ on this subject lead up to the following exchange:

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Q. Would you agree that the College has the right to assess a probationary teacher's suitability for full time employment at the College?

A. Yes, I agree. Q. Would you agree that when the College raises a concern, they

have a right to a satisfactory response? A. Yes. Q. Is it your position that if the College isn't satisfied that

you've acknowledged their concerns, they can only talk about it once?

A. No, provided that a full explanation had been given. I don't know what more they want from me. I'm trying to give my best. What is it? I've changed. I'm doing what you want. What more sir?

Q. Is it your position that all of your responses to the College were satisfactory or should have been satisfactory to them?

A. Should have been satisfactory, yes. I've tried my best. Q. Is it your position that you acknowledged and took responsibility for

every legitimate concern brought to your attention by the College? A. Yes.

The cross examination then focused on what meant when she said that she had answered all the College's "legitimate" concerns. Counsel for the College asked her to list what she considered to be the legitimate concerns of the College. This question was then clarified by asking her to explain what she had felt had been "legitimate things for the College to be concerned about." She then listed the following:

• Not visiting the preceptor for a two week period • Communicating with the Coordinator about going to the RNAO meeting • Having taken the one day PD [leave] "without permission" for the

conference • Changing the [evaluation and/or teaching] tools • Having no strategies in regards to communication and no commitment to

communicate with her manager • Failing or "refusing" to attend the October 25th meeting with her manager • Refusing to attend the October 4 th curriculum development meeting

Refusing to follow hierarchy • Concerns about team work

■1111iMit described these as legitimate concerns, but kept repeating that she had responded to all of them. In re-examination, counsel for the Union asked INIM1111.1114 what "impact" her responses appeared to have on the College. She replied, "Nothing." These exchanges regarding the "legitimacy" of the College's concerns and the grievor's responses epitomize the polar differences between the grievor and the College with respect to the issues that lead to the termination.

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Dean Cormier takes the responsibility for making the effective recommendation for termination. She agrees with Ms. Foulds that the decision to terminate was made in May 2003 at a time when the Fall assignments had to be made. However, the Dean did not agree about being at the meeting with the Chair and the Director of HR following the presentation of the Burrows memo to the grievor. The Dean says that the decision to terminate was made in a different meeting. Nothing ultimately turns on this curious discrepancy in the testimony, so there is no need to resolve it. What is important is that, Dean Cormier listed a number of "problems" that she felt warranted against the continuance of employment or the conferral of regular status, despite the fact that the grievor was acknowledged by all to be a "good teacher". Dean Cormier listed the reasons for termination as being:

"Despite being told to meet with her manager for proper authorization, she still took a PD day without proper authorization."

"Using poor judgment in choosing not to attend the curriculum meeting."

"Having a great deal of trouble meeting and discussing academic matters with her manager."

"Failing to follow College procedures."

"Failing to show an understanding of the importance of team work."

"Failing to show a better understanding of the critical elements of full-time requirements."

Cross-examination shed some light on the basis of the Dean's understandings that gave rise to these reasons. First, Dean Cormier had not been told about the e-mail correspondence concerning the three days' leave for the conference, and that Ms. Foulds had agreed to the attendance provided suitable arrangements for coverage could be put in place and that this had been done. Ms. Cormier had been left with the impression that the absence on October 2 nd was without Ms. Foulds' knowledge and/or consent. Further, Dean Cormier testified that in making the recommendation for termination, she relied on the information she had received from Ms. Foulds in their ongoing meetings and discussions, as well as the copious copies of e-mails and documents pertaining to41.11■11) over the previous one and one half years. However, Dean Cormier admits that although she "may" have seen the Burrows memo and skimmed over its contents, the termination of the grievor's employment was made without her seeing or hearing detailed responses to the Burrows memo.

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The Union's Assertions of Bad Faith

As the basis of the grievance is the allegation of "bad faith", 11111111111111111111 was cross-examined vigorously in an attempt to pin-point the focus of her complaint. She ascribed the bad faith directly to Ms. Foulds and was unwilling to ascribe bad faith to any other person. Ms. Foulds directly denied any elements of the accusation, asserting that she worked hard to assist and was "saddened" that the situation had come to the point of the need to terminate. Ms. Foulds also stressed that she bore no animosity towards the grievor.

It should also be pointed out that all the allegations of bad faith from the Union witnesses were not relied upon in legal argument. They are set forth here because part of the College's case included a complaint that the allegations were frivolous and actually amount to bad faith by the Union. The specific items of "bad faith" raised in testimony from the Union's witnesses are listed in the following categories, many of which have already been canvassed in the paragraphs above. In the areas where additional evidence is relevant to these issues, it is discussed according to category.

Failing to hold the monthly meetings promised in the Memorandum of Agreement

However, 1111111111111.6 credits the initial meetings as being positive and useful. She also accepted that some meetings did not occur because of legitimate scheduling problems. She expressed more concern over the fact that the College did not use the meetings as an opportunity to raise concerns in a timely fashion. It must also be mentioned that there were several occasions where Ms. Foulds invited to set aside time and/or to meet to discuss issues. At times, 1111.1.01, complied and at others she declined, citing class-room preparation demands as her imperative.

Mr. Wilson also ultimately conceded that the Union had agreed that the April 2002 meeting was postponed on consent for a number of legitimate reasons and the next agreed upon meeting time was August 29 th . After that discussion, Mr. Wilson admitted, "I wasn't going to go out of my way to insist on another meeting, given what Mr had to endure." Thereafter the Union did not insist on any of these meetings. Indeed, Mr. Wilson testified that he "really didn't see the benefit of the meetings".

Failing to provide performance appraisals every four months as prescribed in the Collective Agreement for probationary teachers. Further, failing to amend the appraisals by taking into account or giving any credence to any of the explanations given by the grievor.

However, both Mr. Wilson and11.1111111111•1111 acknowledged that the "every four month" requirement was relaxed with the advent of the summer holidays,

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and that there were scheduling issues around the delivery of some appraisals. Further, the meeting scheduled for November 2002 was delayed over a conflict regarding who would be allowed to attend, and was ultimately delivered in February 2003.

Ms. Foulds' "willingness to arrive at conclusions about [the grievor'sJ performance before gathering all the facts"

Examples given included Ms. Foulds coming to a conclusion about the "trust" issue after the conversation with the carpenter, her assumption that the grievor was "unhappy" about the transfer to the RPN program, and the assumption that the grievor had committed to going to the conference and/or attempted to arrange PD leave without first getting permission from her manager. The complaint about not being believed or listened to was perhapsIMIIIINININI's most recurrent and poignant refrain. She repeatedly summarized her feelings about this issue by lamenting, "I believed that no explanation I could give would make her [Ms. Foulds] change her point of view." This was echoed by Mr. Wilson's frustration when he said, "Nothing had said had any effect on the College."

The College's response to this was frustration over 1011111111•11116 appearing to assume that every explanation she gave should satisfy the College and put an end to the issue. The College was looking for acknowledgement from Ms. 1111111111111that her behaviour could have improved or been more appropriate. Her failure to do this was partly why the items remained in contention. On the other hand, Ms. Foulds had admitted that nothing IMMO could have said would have dispelled the conclusion that the carpenter was telling the truth or that she would have believed the carpenter over the grievor in any event.

"Resurrecting" and keeping issues alive after they had been resolved

The examples that were cited again included the issue with the carpenter, the attendance at the conference and the integration into the department.

The College's response was to explain that performance appraisals are always drafted as an overview of the preceding period and therefore have to reflect any performance issues that arose during that time. Therefore, it was said that the recounting of past events in the appraisals was part of the legitimate function of the document. The College also explained that it kept dealing with issues and writing formal letters to the grievor so that its expectations could be made very clear to her.

Ms. Foulds' failure to give "a clear indication of her expectations"

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Examples included the issue of the request for the PD leave, the delivery of the list of communication strategies and the attendance at the October 4th curriculum development meeting, all of which are discussed in detail above.

Dean Cormier testified that she gave explicit instructions to Ms. Foulds to make all expectations very clear to and to specify the consequences of failure. It was said that this was important to help succeed and for the College to live up to the intent of the reinstatement settlement. Therefore, the parties agreed upon the importance of clear communication of expectations. However, the Union's evidence repeatedly focused on issues of communication problems.

The Union called evidence to try to show that more than alwilmille had difficulty communicating with Ms. Foulds. Ms. Hunka taught at the College for many years. She testified about "not being able to get anywhere" in her discussions of concerns with Ms. Foulds. Ms. Hunka said that this led her to file two successful workload grievances over the time allotted to team meetings. However, she also admits that the communication problems were not entirely Ms. Foulds' fault "because any communication interaction is a two-way street". She also later admitted that the workload issue was not a communication issue; instead, it was a matter of the two of them disagreeing over the position being taken by management.

However, it must be said that there were other instances in the hearing where Ms. Foulds' ability or willingness to communicate effectively was put in question. Counsel for the Union had great difficulty getting Ms. Foulds to answer questions directly. While it is common (and sometimes understandable or legitimate) for a witness to try to avoid answering cross-examination questions directly, there were countless occasions when questions had to be repeated several times before Ms. Foulds would address the focus of the question. In addition, her ability or difficulties to communicate clearly with .L was exemplified in an exchange during cross-examination concerning the memo Ms. Foulds had sent regarding the attendance at the curriculum development meeting on October 4 th . It must be recalled that 10111111111•11116 had written, asking for "clarification" regarding the attendance and the demands of her preparation time. Ms. Foulds had responded, "You can reflect on how you devote your time; this week you had three days professional development; it is your decision how you apportion your schedule. The curriculum work for next semester is a cornerstone to your teaching." Ms. Foulds was then cross-examined about telling Ms. Sumitro it was her decision to make about attendance and then reprimanding her for that decision. Ms. Foulds' answer was, "My words were that it [the meeting] was important." When asked again about saying "it's your decision how you proportion your schedule", she responded, "That's not what I'm saying. I'm saying it [the meeting] is important, it's essential. You've got the time on your SWF and you're not teaching that day. . . . My belief is that it was very clear that these were important meetings to attend."

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However, Ms. Foulds did acknowledge in her testimony in chief that she realizes that she did not handle everything regarding employment "perfectly". Ms. Foulds explained, "I was a new manager; there were communication strategies I'd do differently now."

The nature and variety of the teaching assignments given to the grievor and "inappropriate manner" in which her workload complaints were handled

Upon the grievor's reinstatement in January 2002, she was given an assignment of classes that would take effect five days later and in an area that was different than what she had taught before. There is a great deal to do to get ready to teach, and five days is a short period, especially given that the Collective Agreement requires that the SWF is to be issued six weeks before the start of classes, and the timetable is to be delivered long before classes commence.

Even though the assignment was in an area of the grievor's competence and expertise, and the Collective Agreement allows extra time on the SWF for preparation for new courses, this assignment was clearly difficult for the grievor. She described herself as being "overwhelmed" by the teaching demands. However, Mr. Wilson had to concede in cross-examination that this "short notice" was the result of the decision to reinstate aumionata in the first week of January of 2002. The alternative would have been to await the next semester for her to resume her teaching. Further, 1111111111111111111. acknowledged that Ms. Foulds did respond to some workload concerns at the time, and that no grievance was filed regarding the late delivery of the SWF or the timetable. 1111111111111111111111111 added, "It was not very career enhancing to be complaining all the time." Further, she admits that any concerns she had in the winter of 2002 were "discussed and dealt with". Finally, the evidence of Dean Cormier made it clear that at the time of the reinstatement and assignment of classes to ur in January 2002, all full- time teachers had already been assigned in the areas of the grievor's previous subject area. It was pointed out that her new assignments were discussed with her upon her reinstatement and had been accepted.

However, the Union's more serious complaint focused on the number of different assignments given to the grievor. The history of her assignments was: Fall 2001 — RN Program; Winter 2002 — Continuing Education and Health Sciences; Fall 2002 — PN Program; Winter 2003 — Continuing Education. Jack Wilson, the Secretary of the Union for the past ten years, and a full-time Faculty member since 1983, considered these changing assignments as strong indicia of bad faith. He says that he knows of no other probationary teacher who was reassigned to three different programs or physical locations. He claimed that this added to the grievor's workload in a measure beyond what would be expected for

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a probationary. However, he conceded that no grievance was filed about these concerns at the time.

Ms. Foulds responded to the Union's allegation in this area by asserting that the changing assignments were initially an inevitable consequence of the timing of the reinstatement and thereafter represented a "wonderful opportunity" for the grievor to work with a "wonderful team" in the new RPN program, and to see how a new program is put together and delivered. Further, it was said to be consistent with the new direction in the department to have faculty who could teach in more than one program.

Despite Mr. Wilson and Ms. Foulds' differences about the impact of the differing assignments, and despite 0111101111MINs constant lament that she found her teaching responsibilities to be all-consuming, she also repeatedly testified that she did not mind teaching in new areas and was always "ready to meet the challenge". This was also reflected in her e-mails to Ms. Foulds at the time.

A different aspect of the bad faith allegation concerning assignments arises out of Winter 2003 workload as set out in the November 2002 SWF. With the Union's assistance, 1111•16111M6 exercised her Collective Agreement right to refer what she felt to be an excessive assignment to the Workload Monitoring Group that has the mandate to try to resolve workload issues. When that process did not yield a resolution, the matter was referred to the Workload Monitoring Arbitration. This resulted in an award dated January 29th that made some adjustments to 1111111111111111111111rs assignments in her favour and denying some of her requests for recognition for additional preparation time. Mr. Wilson complained about her having to go to the Workload Arbitrator in order to achieve resolution of her complaint. However, Ms. Foulds responded by pointing out that aspect of the grievance that had not been allowed by the arbitrator had involved a request for additional preparation time for a new program, beyond the allowance contained in the workload provisions of the Collective Agreement. Further, the evidence of other witnesses confirmed the reality that workload grievances, referrals to the WMG and arbitrations are not uncommon in this system or in this Department.

A final and important aspect of 1111111111111111110's complaint is that she was always trying to maintain excellence in her teaching, yet found the workload and expectations daunting. Countless times in her testimony she would say the following phrases: "I was so busy", "I tried to do my best", "I worked so hard" and "I was overwhelmed". She made it clear that classroom teaching was her main focus, and that she found the workload extremely difficult to handle.

The College's response to the Coordinator's Memo

The Union feels that the Coordinator should have first addressed these concerns directly with IIIIIIIIIIIIIIIIIIIIIIII rather than referring them to management.

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Thereafter, while it is acknowledged that 111111•1111111116 was eventually given an opportunity to respond to the items and did so, the Union complains that none of her explanations were taken into account or given credence despite the fact that there were valid explanations for some of the concerns and a lack of substance to other allegations. The grievor's termination took place days after this Memo was presented to her and so it appeared to the Union that the grievor's responses and explanations had not been given proper consideration.

The College's failure to allow allIMINNI. to be reassigned to another Manager despite what was alleged to be "open hostility" from Ms. Foulds.

As mentioned above, Ms. Foulds adamantly denied that there was any hostility on her part. Dean Cormier says she saw no evidence of this in the many meetings she attended with them both. In fact, Ms. Cormier described Ms. 1111111111.Pas "glaring" at Ms. Foulds and acting "angry" in response to any critical comments. As for the matter of reassignment, the College raised concerns about 11111111111111111111116 taking the request for the transfer directly to the President, rather than accepting the Dean's invitation to meet personally with her.

The failure to include teaching performance as reason for her termination

This allegation ties directly in with the following item and relates to the Union's view that the grievor's teaching was not given proper consideration in the decision to terminate her employment.

The failure to take into account the grievor's teaching excellence and other "positive contributions to the College" as a full- time teacher

From the outset of this case, the College has acknowledged that the grievor was a "good teacher" but asserted that other legitimate non-teaching aspects of her performance were what compelled the decision to terminate. Ms. Foulds asserts that while teaching is an important aspect of a full-time faculty member's job, it is not the "most important" element. She and the College took the position that adherence to academic policies and procedures, staff directives, team teaching and working with other faculty are "equally important". The parties do agree that full-time Faculty have multiple responsibilities, both inside and outside the classroom. Indeed, this is recognized in their Collective Agreement and the standard workload forms (SWFs) which designate teaching, professional evaluation, curriculum development and complementary functions as some of the aspects of workload. These hours reflect that faculty have multiple responsibilities outside of the classroom that could be considered administrative, including departmental meetings, making themselves available to students' curriculum development. This is, in part, what sets full-time faculty apart from the part-time teachers. The Union does not object to the College demanding

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adequate performance with regard to the non-teaching aspects of the job. The Union's allegation of bad faith is based on the weight the College gave to these matters in contrast to its consideration of the grievor's achievements as a teacher.

Ms. Foulds testified that in order for a probationary teacher to succeed to regular status, the teacher must do more than "show up and teach the classes". The teacher must also engage successfully in the organizational structure, understand and appreciate the structures behind the delivery of classes and creation of timetables, adhere to the academic and institutional policies and procedures, work within a "team environment" and become a part of curriculum development. Ms. Foulds described teaching as an "important", but only "part", of a whole series of expectations that must be fulfilled to attain regular status.

In contrast, part-time teachers in the Nursing programs are clinical teachers, not expected to do any classroom teaching. They are typically hired for a specific course and for a finite duration. They have little or no responsibilities regarding the preparation or distribution of course outlines, texts or evaluation tools. The practical aspects are arranged for them by the Coordinator responsible for the course. Full-time faculty do have responsibility in these areas, including the preparation of course outlines, ordering texts and preparing evaluation materials, as well as with regard to curriculum development, departmental meetings, student accessibility and professional development.

The Union presented extensive evidence to demonstrate 's value as a teacher. A professor from the University of Ottawa School of Nursing spoke of 11111111111111111111116's previous competence as a teacher in a clinical setting, praising her for "following all expectations" and being a "good teacher". Several of is former students from this College came to testify in her support, describing her as "an excellent teacher", "always prepared", "one of the best", and as caring, compassionate and "bringing a cohesiveness" to their studies. Further, students organized a petition containing over 60 names at the end of the term when they discovered that 1111.1111111111111 had been dismissed. The petition describes MmiIL iNINIS as "an excellent teacher", and asked that she be returned to the Nursing program.

The Union also brought forward a series of faculty members, most of whom are retired, who had taught with or been the grievor's Coordinator, either when she was part-time or during her full-time appointment. All of these witnesses praised her dedication to teaching, her cooperative participation as a "team player" and her "respect" for the College hierarchy. Their credibility was never challenged by the College, however, cross-examination always pointed out that none of them had ever had supervisory authority over 11111111•111116 or had any occasion to enforce College policies with regard to her work.

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In the Winter of 2003, INISION111111b was nominated by several of her colleagues for a teaching award. The nomination includes testimonials to her work in the specified categories of team work, service to the College community, recognition by colleagues of excellence and support of colleagues. The letter cites several examples of achievement in each of these categories.

As a member of the part-time faculty before her full-time appointment, there is no dispute that the grievor was an effective and good teacher. Maureen Hunka, a former faculty member and "integration course leader" in the Nursing program, testified that she valued "professionalism, accountability, responsibility and interest". She also said that 11.111.11.14111 was cooperative and respectful of others' experience even when her suggestions were not adopted. Marlaine Finnegan is another faculty member who taught with tipilmIlle and described her as "an excellent teacher, extremely competent ... and the kind of teacher many of us would like to be". Ms. Finnegan also credited 1.111111111111111111) as being a valuable team player who was very supportive of other teachers and their ideas. However, Ms. Hunka admits that she never worked with 4111/1111/111111 after November 2001.

The College's decision to termination rather than exercising the "ample opportunity to discipline" if it felt that performance was not meeting expectation

Since this is more of a legal argument than a factual allegation, it need not be explored in detail at this point, other than to say the allegation reflects the different perspectives of the parties; the College thought it had given the grievor numerous chances to improve her performance, whereas the grievor and the Union felt that she was never given a fair chance to succeed.

The allocation of office space

While liNNIM•11111 said that initially she "welcomed" the new office because it brought her closer to her PN colleagues, she and the Union allege that the particular space allocated stands as indicia of bad faith. It was stressed that the room was not an actual office, nor was it a private space. It was a room containing a fridge, a microwave, a copier, printer, filing cabinet and a table often used for students to take tests. Other faculty members had constant access to it and to its equipment and facilities. Mr. Wilson described the room as "not conducive to the privacy that most faculty enjoy", even those who have shared office space. He said that no other member of faculty in the area had to endure that kind of environment. 4.11110111111111111 says that she "tried not to complain", but she did point out the memos she sent to Ms. Foulds asking to be moved to a more appropriate office space when one became available, or alternatively that the communal microwave and kitchen facilities be moved out of her space. However, no changes were made. She also testified that she had concerns about "radiation" from the microwave oven, although this is not mentioned in her

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e-mails to Ms. Foulds. No changes were made, although alwfsWila believed that a more preferable space had become available when a part-timer moved out. 11111111111111.1111111 testified, "I just waited and waited." Ms. Finnegan testified that another room that was being used as a meeting room at the time could have been made available to 111111•111111111 as it has since been set up as an office for two full-time teachers.

Ms. Foulds responded to this complaint with the explanation that the Department had tried to accommodate 1.1111110/11111///s request to be moved closer to the PN group, that office space was "tight" at the College and that space usually only opens up in the Spring. Ms. Foulds believed that the Dean had shown 11111111111111. what space was available, and that the request for the move had been made after that. However, Dean Cormier's evidence does not confirm this; she simply testified that the move was facilitated at a time when any other available spaces were permanently assigned, and that she directed a member of staff to deal with the "logistics" of the move. There were no questions or answers during falalaiffis testimony that suggested that she had seen the office prior to the move, only those that confirmed that she had requested the move and had been grateful to hear that the request had been accommodated.

Ms. Foulds also responded to the complaints about the microwave and the facilities saying that 1111111111111111116 had known that the room was a shared space before she had accepted it and that if needed privacy to meet with her students she could use one of the faculty meeting rooms for that purpose.

SUBMISSIONS OF THE PARTIES

The submissions of counsel were detailed and took two full days of hearing. It is impossible and unnecessary to reproduce them completely. Only the outline of the argument follows.

Submissions of the Union

The Union concedes that it has a limited right to challenge the termination of a probationary employee under this Collective Agreement. It recognizes that in order to succeed with this grievance, it bears the onus of proving that the College acted arbitrarily, discriminatorily or in bad faith. The Union argues that if the College was held to the standard of just cause, the reasons the College has put forward to justify the termination of ISMISOMISS would fall "woefully short" of establishing just cause. The Union characterizes the College's stated reasons as "picayune, petty, insignificant and/or trivial". By juxtaposing these reasons beside the fact that the grievor was recognized as being a good teacher, the Union alleges that the College has acted in bad faith in this situation. Further, it is alleged that it treated the grievor differently than others, and acted arbitrarily with respect to her employment. It was also asserted that it was bad faith for this employer to act in a way that prevented this probationary employee from doing

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her best, and then terminating her for not meeting the standards that had been set. Further, it was said it was bad faith to make conclusions about her failures without making expectations clear and/or properly investigations its suspicions. The Union relies on the following cases as establishing the test for bad faith in this sector: The Board of Governors of Loyalist College of Applied Arts and Technology v. Ontario Public Service Employees Union (2003) 63 O.R. (3d) 641 (C.A.); Toronto (Metropolitan) v. Cahadian Union of Public Employees [1981] O.J. No. 672 (Ont. S.C.); Jeanne Sauve Family Services and Ontario Public Service Employees Union, unreported decision of Joseph W. Samuels dated January 6, 2004; Centennial College of Applied Arts and Technology v. OPSEU, Local 558 (Robertson Grievance) [2003] 0.L.A.A. No. 156 (Knopf); and St. Clair College and Ontario Public Service Employees Union, unreported decision of Kenneth P. Swan dated June 17, 1996.

The Union alleges that this Employer has acted in bad faith with regard to lismismillis because it did not evaluate her fairly, assist her, listen to her, it jumped to negative conclusions before listening to her explanations, and repeatedly advanced the same criticisms while "turning a blind eye to her obvious strengths". The Union also asserts that the Employer is required to conduct a reasonable investigation into concerns about performance, refrain from making arbitrary conclusions, and not act without taking steps to ascertain the truth. The Union asserts that the Employer has failed in its obligations towards 11111111111111111b,

and particularly that it failed to properly supervise her or take steps to ensure that its concerns about performance were based on facts.

In analyzing the evidence, the Union asked the Board of Arbitration to look at the College's "ostensible" reasons for the termination in order to determine whether there was or is a reasonable basis for the decision. The position of the Union is evidence does not support the reasons that the College is relying upon. For example, the Union referred to Ms. Foulds' evidence where she said there was concern about the Queensway Carlton contract, and that this was a factor relied upon in the termination. However, no witness called by the College could identify what the concern was, and the evidence also established that no one from the College took any steps to contact anyone at Queensway Carlton to determine whether there was any substance for the concerns. The Union also stressed the evidence of Ms. Bissonnette when she indicated that when she heard that there were rumors about performance concerns at her hospital, she called Ms. Tosh to say that there "was no truth to the rumors". Ms. Bissonnette said the rumors ought to be stopped. Accordingly, it was said that the College was acting in bad faith when it considered an unsubstantiated concern as one factor in the decision to terminate.

Further, the Union pointed to the letter of termination and the evidence of Ms. Foulds, which indicated that one of the reasons for the termination was "concerns raised by colleagues" about ms's performance. However, it was stressed that there was no evidence of concerns from "colleagues", other

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than from Ms. Burrows. Addressing those concerns, counsel for the Union emphasized that Ms. Burrows' testimony made it clear that her memorandum was not intended to be read as a "criticism" of Further, the Union argued that the evidence supports a conclusion that 111111111811111111.1's faculty colleagues were supportive of her, as illustrated in her nomination for a teaching award and the witnesses who spoke glowingly of her as a teacher and as a good member of "the team".

The Union also says that it was bad faith for the College to say in the letter of termination that the grievor had failed to make the acknowledgements required from the Memorandum of Settlement as a condition of reinstatement, when the requirement of the public acknowledgements mentioned in that document were waived by the College within weeks of the reinstatement. Therefore, it was said that it was bad faith to suggest that the grievor had failed to do something that she had been told was no longer expected.

Further, the Union alleges that the Employer acted in bad faith by alleging, and failing to establish, that the grievor failed to abide by the rules and standards of the College. The Union turned to the two examples. The Union first points out that the College has alleged that the grievor failed to fulfill the requirement of meeting with students and preceptors at least once a week. The Union asserts that the evidence does not support a finding that such a rule exists and that, in any event, the College failed to bring this rule to the grievor's attention. It was pointed out that the "once a week rule" is not contained in the Preceptorship Manual, and that the College's own witness on this point said that the "notion" of meeting once a week was the "ideal". Therefore, it was said that the evidence did not establish that the expectation of weekly meetings was a College rule. It was submitted that it cannot be misconduct to fail to attain an ideal, especially with so many students, locations, preceptors and different shifts. The Union placed great emphasis on the evidence of Jenny Brooks, who had been a faculty liaison for years, who called 1111111611111111111ts workload "horrendous". The Union also relied on the evidence of other faculty liaisons who said that they had not met that standard of contact with preceptors. Accordingly, it was argued that the College has failed to establish that it was judging the grievor by a reasonable standard or that she was being treated the same as other staff.

The Union next addressed the issue of whether the grievor had been properly treated with respect to the request for a professional development day. It was stressed that the Collective Agreement entitles employees to ten professional leave days a year. Further, the evidence shows that did fill out the correct form, and asking for two days' leave in the Fall of 2002. The grievor then amended her request in an e-mail, giving the Chair a reminder about the request two months in advance of the date. Although that reminder did not bring attention to the fact that the desired leave now included a third day off, the e-mail did set out the three days. It was stressed that Ms. Foulds' response was not to tell to amend her initial form, but instead to make

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arrangements for coverage for her teaching responsibilities. The Union argues that if filling out the correct form is the real cause of the College's concern, there was an obligation on Ms. Foulds to tell the grievor that she ought to have filled in the amended form. Further, it was argued that if the College's real concern turns out to be the failure to use the proper form, that should not be accepted as a serious issue affecting the grievor's employment. It was stressed that the College was made aware of 1111110111ONOMO's plans at all times and that she never acted without authorization.

With regard to the attendance at the RNAO Conference, it was stressed that the grievor was well acquainted with the expectation that she seek leave directly from the Chair of her department. It was submitted that the evidence shows that the grievor did not dishonor this obligation. Instead it was said that the evidence shows that she simply asked the Coordinator what alternatives would be available to arrange coverage for the class so that those alternatives could be presented to the manager who would then decide upon the leave. The Union expressed strong criticism of Ms. Foulds for what was said to be her failure to listen to MI11.11010's explanation, and instead drawing an adverse conclusion without any reason for doing so. Further, it was stressed that the Employer did not call the Coordinator to say that the grievor did seek her permission. Instead, it was said that the only evidence in this protracted hearing is to the contrary, in that the grievor sought information, not permission, from the Coordinator. The Union also faults the College for raising this issue over and over again in the performance appraisals when it ought to have been resolved in the discussions between Ms. Foulds and the grievor as early as January 2002.

The Union also alleges that it is unfair for the College to have criticized 111111111111.111111111111 for expressing a preference about her area of teaching. It was stressed that there is no evidence that she ever refused any assignments outside of her preference, or that she believed she was hired only to teach in one area. Further, the evidence shows that only expressed her preference when she and all the other faculty were invited to state their preferences and in a social context. Further, the Union pointed out that Ms. Foulds agreed that Ms. NNW remained flexible about accepting "new challenges" and assignments. Accordingly, the fact that the statement of preference was used as the basis of a criticism in the performance appraisal was said to be an indication of bad faith.

The Union also asserts that it is unfair for the College to have criticized 11111111111111111111rfor appealing to the President for assistance in obtaining a reassignment. The Union argues that this appeal was, in fact, a logical and "common-sense" plea for help to a President who had indicated that he had an open-door policy, and could be approached by faculty. Therefore, it was argued that this appeal was not an indication of "disrespect for hierarchy".

The Union also faulted Ms. Foulds for her criticism of 11111111111111010 with regard to the drafting of the plan to improve communication. It was pointed out

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that when Ms. Sumitro's submission did not meet with Ms. Foulds' approval and asked for guidance, Ms. Foulds did not give any guidance to the

grievor. The Union asserts that this is a failure to properly supervise and properly assist the probationary employee.

The Union was very critical of Ms. Foulds with regard to the incident with the carpenter. It was argued that Ms. Foulds should never have concluded, on the basis of something "apparently said by a College carpenter", thatdOMISMM had indicated that she was afraid of Ms. Foulds. Ms. Foulds was criticized for failing to make any inquiries before reaching a conclusion and then for admittedly disbelieving the grievor, no matter what she said. Thereafter, Ms. Foulds told Ms. 11•111111 to change her behavior, which was said to be completely unfair when the event being complained about had never happened. The Union suggests that an adverse inference should be drawn against the College for its failure to call the carpenter as a witness, and that this incident should be seen as an example of bad faith.

Turning again to the question of whether permission had been granted for the third day of professional leave, the Union points out that the documentary evidence shows that Ms. Foulds had indicated to MIMMt that the additional day could be taken so long as coverage could be arranged. When rionimilm had been accused of taking the day without permission and had been able to show the e-mail from Ms. Foulds granting permission on the condition that coverage could be arranged, it was said that Ms. Foulds should have "gracefully apologized" for her failure to recall that permission had previously been granted. Instead, it was suggested that the College then tried to convert the allegation of misconduct into a criticism for failure to fill out the proper forms. It was said that this was a trivial concern given that the leave was properly documented through a different set of forms.

The Union also argued that the Employer unfairly criticized IINNOMMila for being unwilling to meet with Ms. Foulds. It was submitted that the evidence shows that rather than being unwilling to meet, MOMNIIIS had never refused to meet and had only offered alternative times that would have enabled her to fulfill her teaching responsibilities first. With regard to the failure to attend the specified curriculum development meeting, it was submitted that the grievor fulfilled her SWFs' allotment of hours designated for curriculum development meetings throughout her employment. It was submitted that there is no requirement that she need attend these meetings beyond the amount set out in the SWF. Further, the Union pointed to the evidence showing that other probationary employees missed some of these meetings and were not censured for it. But primarily, the Union relies on the memo from Ms. Foulds with regard to the one specified meeting that r missed, wherein Ms. Foulds said, "it's up to you" to decide about attendance. It was argued that this gave permission to choose to spend her time on class preparation, rather than attending that one

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particular meeting. The Union argues that it is now bad faith to use this choice as a factor against the grievor.

The Union also argues that the grievor was severely disadvantaged by being given assignments in the Winter of 2003 that required a workload arbitration in order to bring it within the norms of the Collective Agreement. Further, it was said that the grievor was additionally disadvantaged by the fact that she did not receive her timetable until the first week of January. It was said that the College should have been "bending over backwards" to assist this probationary employee, rather than giving her a problematic workload and setting up a situation where she was "double booked" and put in conflict with the Coordinator. It was argued that this timetabling conflict put unnecessary and unwarranted stresses on the Coordinator that were not the fault of the grievor, and yet prompted the Coordinator to see her frustration as being caused by the grievor.

The Union also argues that while the Employer criticized the grievor for the alleged "modification of objectives and teaching tools", the only evidence in support of this allegation was the document showing that 111111111•111111111 made her own notes on a pre-existing form. The Union argues that there is no evidence that the grievor marked her students differently, that her notations came to the students' attention, or that they caused any perceptions of inconsistent marking. Further, it was said that the notes had nothing to do with the objectives or teaching tools themselves.

The Union then addressed the memorandum issued by the Coordinator, Ms. Burrows. While Dean Cormier had testified that this document played a "limited" role in the decision to discharge, the Union's submissions address the fact that the College's case seemed to rely upon the allegation that this "colleague" within the bargaining unit had expressed concern about Ms. 1111111111b's performance. However, it was stressed that the evidence of Ms. Burrows herself made it clear that she had written the document on the basis of a number of assumptions, including that the expectations of a full-time faculty member had been clearly explained to L 1. The Union submitted that the evidence revealed that many of those expectations had not been made clear to Ms. Sumitro.

Another aspect of bad faith being alleged against the College is that Ms. 11=11. was placed in a more onerous position than other probationary teachers. The Union relies upon the evidence of Mr. Wilson, when he said that except for Ms. 11111111111k, no other probationary had ever been given more than one area of assigned teaching duties within the probationary period. In diffigbAI's case, she was given three different assignments during her probationary period, assigned new students, new colleagues, a new office and new subject-matter. It was said that all of this would lead to additional workload and stresses.

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The College was also accused of bad faith for placing her in the multi-purpose room or "cubicle" in the Fall of 2002. It was said that the evidence supports that no other Faculty member had to endure such conditions. Further, since the evidence suggested that other space could have been made available, the assignment of this particular space should be seen as the imposition of unnecessary strain upon a probationary teacher. This was also said to have prevented her from performing at her best because she was not given an environment that was conducive to a positive work situation.

The Union also cites the Burrows memo as an example of "unusual" or different treatment meted out to 16•11112.11111. First, it was said that the normal practice is that a Coordinator would speak with the Faculty member before writing a formal complaint or criticism to management. However, in this case Ms. Tosh counseled Ms. Burrows to "put her thoughts in writing", and then brought the memo to the attention of ISOIMIIIN's manager. Further, the Union questions the propriety of the College relying on allegations that the grievor had breached department protocols by failing to have quizzes checked before printing, when the evidence of Union witnesses was that other programs within this Department do not insist on the pre-validation of quiz questions.

The final example of differential treatment that the Union emphasized was the fact that the grievor was given the "horrendous" assignment of so many teachers and preceptors in the Spring of 2002.

The Union then suggested that an element of bad faith in this case is the College's failure to acknowledge the grievor's strengths as a teacher. The Union stressed the testimonials to 11•00•11111's teaching abilities from colleagues and students, and argued that these establish that the grievor was an "extraordinary teacher". It was argued that it is simply bad faith to not place significant weight on her teaching excellence in the consideration of the continuance of her employment.

For all these reasons, it was submitted that the Board of Arbitration should conclude that the grievor was terminated in bad faith. The remedy requested is reinstatement to . a full-time Faculty position that does not require her to report to Ms. Foulds, plus full compensation. It was conceded that the reinstatement would put the grievor back with probationary status, but it was said that once she passes probation, she should be credited with full seniority for all the time that she taught on a full-time basis. The Board of Arbitration was asked to remain seized with regard to the implementation of the Award.

Submissions of the Employer

Counsel for the Employer began his submissions by stressing that the allegation of bad faith is a very serious one, with serious consequences for both the complainant and the accused. It was stressed that there are at least 11

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specific accusations of bad faith in this case, and that they amount to an attack on the integrity and professional reputation of at least five people involved in this case, including the Dean, the Chair and the Coordinator. The Employer relies on the following authorities that highlight the nature and seriousness of the allegation of bad faith and the importance of having sufficient evidence to fulfill the onus of proof: Hamilton Street Railway Co. v. Amalgamated Transit Union, Local 107 (Davidson Grievance) [2000] O.L.A.A. No. 921 (Knopf); and Centennial College of Applied Arts and Technology v. OPSEU, Local 558 (Robertson Grievance), supra. It was submitted that the evidence in this case does not support a finding that the College relied on unlawful considerations and/or hindered the grievor's ability to succeed. Instead, it was argued that the evidence shows an employer that was "unusually patient" with Ms. Sumitro, but that she was "resistant" to their efforts on her behalf.

Counsel for the College stressed that while the grievor withstood three days of testimony, maintaining that the Union's allegations of bad faith all had merit, she also identified nine out of the 11 areas as "legitimate" causes of concern for the Employer. It was said that this admission "wiped away" nine of the 11 allegations against the College. The College argued that there should be "serious consequences" for the Union still maintaining so many "baseless accusations" against the College.

On the other hand, counsel for the College conceded that the College "did not do everything perfectly", and credits the College's witnesses for admitting this. In contrast, the grievor was faulted for being unprepared to accept responsibility for any of her actions. Counsel said that if the grievor had only acknowledged the College's concerns as legitimate or accepted any responsibility for the problems, the College would not have been forced to repeatedly bring up issues with her. Accordingly, it was suggested that because the grievor only belatedly gave any credence to any of the College's concerns, it was the Union that was acting in bad faith, not the College.

It was argued that the "filter" through which all the evidence should be viewed is the fact that the grievor had already been terminated during the first semester of her appointment as a full-time teacher. The Memorandum of Agreement that led to her reinstatement was then the document that set out the conditions that the grievor agreed to in exchange for "another chance" at employment. The Board of Arbitration was asked to infer from the document that the grievor had not satisfied the expectations of the Employer during the first term of her employment, but that she had been given a "second chance" to succeed. It was said that a reading of the document as a whole should lead to the conclusion that the grievor was acknowledging that she had more than teaching duties to fulfill, that the College's previous concerns were legitimate, and that the grievor had committed an earlier error of judgment that had led to her initial termination. Further, it was said that the regular meetings contemplated in the document were set up for the grievor's benefit, and that she had agreed to

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abide by the College's rules, including the expectation to contact the Chair directly about matters pertaining to her employment. It was said that it was significant that the Memorandum also "reset probation" back to the beginning of the probationary period, making her serve another two full years before she could gain regular status. It was said that this Agreement should make it clear that there were problems with the grievor's performance with respect to communication, judgment, adherence to rules and administrative responsibilities from the outset, but that she was being given another chance to establish permanent status. Counsel argued "any probationary teacher who 'truly gets it' would have gone out of her way to see that this didn't happen again" by following all the rules. However, it was said that the grievor failed to do this.

It was stressed that the probationary period gives the Employer the chance to decide who has the best chance of succeeding within the Department. It was said that the College showed incredible patience with the grievor despite the need to repeatedly refer to some of its concerns, because the grievor never acknowledged that there were any legitimate concerns while she was employed. Therefore, it was said that the College should not be faulted for repeating problems to the grievor; instead, it should be acknowledged that the College was going out of its way to assist the grievor.

The Union was criticized for describing the College's concerns as picayune, petty or insignificant, when the concerns related to the areas identified in the original reinstatement and which relate to important aspects of a faculty member's employment.

It was argued that the evidence shows that the College's experience with the grievor was that she was never willing to take responsibility for her own actions and never willing to admit any fault on her part. It was said that the fact she was a good teacher "misses the point" that she needed to be more than a good teacher. It was pointed out that only 15 of the 44 hours on a SWF are attributed to work in the classroom. The College relies on the evidence of Dean Cormier when she explained that the College needs teachers who also fulfill their administrative, curriculum development and departmental needs. It was said that the grievor was given numerous chances to show that she could comply with the College's expectations, but that no improvement could be expected when she failed to acknowledge that there was ever a problem in the first place. The College acknowledges that the grievor was a good teacher. It was said that she was hired because she was a good teacher. But it was also said that being a good teacher is simply a "minimum expectation" or a "base line expectancy". It was argued that the grievor's own evidence and demeanor demonstrates that she could not or would not comply with the College's expectations. It was stressed that the grievor kept saying that she was doing her best, yet she fails to see that this was not enough to pass probation.

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The Employer pointed to the RNAO Conference as an example of evidence that the grievor did not understand or intentionally ignored what she had been told to do. It was said that she had been told to speak to her manager first about any issue of leave, and to follow the proper lines of communication. Instead, within weeks of the meetings about this very issue, the grievor spoke first to a coordinator, rather than the manager, about obtaining a leave. While it was acknowledged that the grievor said she was only seeking information, the point the College was trying to make was that the manager had told the grievor to speak to the manager first, and the grievor should have simply complied. It was said that if the grievor had acknowledged the legitimacy of Ms. Foulds' concern, then the issue would not have been brought up repeatedly. Further, or in the alternative, it was said that it was appropriate to bring the issue up again in the following performance appraisal because that is the document that covers a period of time.

The grievor's failure to provide an adequate response to Ms. Foulds' request for communication strategies was said to be another example of the grievor's failure to meet the College's expectations. It was said that the document that the grievor did submit contained no strategy, no plan, and was simply a one- line statement of an objective. Accordingly, the College argued that the manager's request to the grievor was legitimate, and the direction to submit an improved plan was an appropriate form of supervision. It was said that the Union was unfair to fault Ms. Foulds for a lack of guidance when the initial assignment had been so clear.

Counsel for the Employer argues that the incident regarding the preceptorship in the third month following the reinstatement was "enough on its own to merit termination". It was said that the grievor failed to perform the duties of a faculty liaison adequately. Further, it was argued that she has no basis upon which to complain about the amount of her workload, given that no workload grievance was filed, and that she never approached her manager about workload concerns. The College argued that the evidence shows that she was instructed to meet with the students and preceptors once or twice a week at first, and then once a week thereafter. Despite this, the grievor never met with the preceptor or the student after the first visit. The fact that the grievor was in communication with the student by e-mail was said to be completely inadequate because this would not enable her to determine if the program objectives were being met. Counsel for the Union invited the Board of Arbitration to make a finding against the grievor's credibility with regard to the claim that she was not told to meet weekly. In the alternative, it was said that her own evidence establishes that she failed to have adequate meetings with the student or preceptor. Further, the Employer emphasized that the Union did not put forward contemporaneous evidence that the grievor's workload was inordinate or that there was any legitimate reason for her failure to comply with the College's expectation. It was said that the Dean and the Department Chair properly determined that the grievor's conduct with regard to the preceptorship demonstrated a lack of

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judgment and an inability to handle the necessary workload. The Board of Arbitration was asked to conclude that the grievor was more concerned about meeting with hospital directors and networking than paying attention to the needs of the preceptors and the students. The grievor was also criticized for casting aspersions on the preceptor when there was no basis for such an accusation. It was said that the grievor's attempt to cast blame for the situation on the preceptor and others is an example of her inability to accept responsibility for her own inadequacies and her errors of judgment. It was said that this situation is a "microcosm of the whole case", in that her allegations are designed to conceal her own inability to fulfill the requirements of a faculty member. Further, it was said that this incident is the "best evidence of the fact that there was no bad faith" because the grievor was not terminated immediately after her inadequacies came to light; instead, she was warned, had the incident included in her performance appraisal, and given another opportunity to establish confidence in her abilities.

The College took great umbrage to the Union's accusation that bad faith was evidenced by the fact that all the meetings contemplated in the Memorandum of Settlement did not occur, even though this had not been pursued by Union counsel. The College points out the evidence that shows that many meetings were held, for the grievor's benefit, and that other meetings were cancelled, either at the Union's request or because the parties conceded that they were not as necessary as originally contemplated. Counsel for the Employer argued that the inconsistency between the Union witnesses' assertions and the position taken by their counsel calls into question the bona fides of the allegations that were being made against the College.

Counsel for the College addressed the issue of the carpenter, and the conclusions that were drawn against the grievor. It was suggested that a negative inference should be drawn against the Union for failing to call the carpenter as a witness, given that the Union bears the onus of proof in this case. However, it was admitted that Ms. Foulds had conceded that she had said that she had not questioned the grievor about the comments because she would have believed the carpenter over the grievor in any event. It was argued that Ms. Foulds' doubts about any denials the grievor might make were well-founded and reasonable given Ms. Foulds' experience with the grievor and that Ms. Foulds' concern over the reported conversation was consistent with the pattern of the grievor's lack of respect and failure to communicate. Counsel for the College concedes that "it would have been preferable" for Ms. Foulds to have gone to the grievor and asked her about the comment before drawing any conclusions. But it was said that Ms. Foulds was in the best position to determine whether such a conversation would have been of any value, and the failure to confront her is not fatal to the case. Reliance was placed on the decisions in Centennial College of Applied Arts and Technology v. OPSEU, Local 558 (Robertson Grievance), supra; and Re Canusa CPS and I.W.A.-Canada, Local 1000, 1999 C.L.A.S.J. Lexis 6822 (Petryshen).

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Counsel for the Union also dealt with the fact that the grievor had stated a preference for teaching in the RN, rather than the PN, courses. It was said that this must be seen in the context of the new direction the department was taking to break down the boundaries between the programs and encourage teamwork. It was said that the assignments to the grievor were given in order to broaden her teaching experiences and give her greater exposure and opportunities for growth. Her repeated statements concerning her desire to return to the RN program were seen to be resistance to the direction that the Department was taking.

Counsel for the Employer also argued that the concern about the grievor's failure to attend the curriculum development meeting was legitimate. The grievor was criticized for claiming to be too busy with class preparations when she had just returned from three days of professional development leave. It was conceded while there may have been evidence of other probationary teachers missing similar meetings, the Union failed to establish why they missed the meetings or call any evidence to prove that Ms. Foulds had even been aware of their absence. It was also submitted that Ms. Foulds had the right to be dissatisfied with this probationary teacher's decision to miss an important meeting on the pretext that she was too busy with other work. It was said that the concern was not that the grievor did not attend the meeting; instead, it was that she "blew off a meeting" that she was scheduled to attend and for which time had been allotted. It was said that Ms. Foulds had a right to be concerned about the fact that the grievor was more interested in attending a conference outside of the school than attending a curriculum development meeting. This was said to reflect poorly upon her judgment and to demonstrate her unwillingness to participate as a member of the "team". The College emphasized that the probationary term is designed to allow management to assess whether a person performs properly and has the necessary judgment. It was said that Ms. Foulds exercised the management right to be dissatisfied with the judgment that the grievor displayed. In support of these submissions, the Employer relies upon the decisions in Re Hamilton Community Care Access Centre and 0.P.S.E.U., Local 274, 2004 C.L.A.S.J. Lexis 556 (Brent); Loyalist College and OPSEU, 1994 C.L.A.S.J. Lexis 11420 (Bendel).

Counsel for the Employer then pointed to an exchange of e-mails between the grievor and Ms. Foulds concerning the request that the grievor meet to discuss student concerns in October of 2002. The grievor had responded to the request by indicating that she was too busy to meet at the requested time because she needed to concentrate on class preparation. But the College emphasized that part of the grievor's work is to meet with the manager about student concerns, and the grievor's reluctance to meet at the time requested was indicative of what the manager had to go through "in order to communicate and meet with the grievor". It was submitted, "If a manager has to go through this much to get a probationary employee to come to a brief meeting to discuss

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student concerns, this creates legitimate concern about the grievor's suitability." Reference was made to IKO Industries Ltd. v. U.S.W.A., Local 8580 (2000), 88 L.A.C. (4th ) 348 (Starkman).

Counsel then addressed the fact that the grievor failed to amend the necessary form to allow for the additional PD day off. It was stressed that the grievor knew about the requirement to fill out the form because she had done so in the past. This was said to be an issue of failing to follow procedures. It was said that this was not a trivial matter because it deals with the administrative responsibilities of a member of full-time faculty. The College denies that Ms. Foulds allowed the grievor to "get into trouble" by not reminding her of the necessity to amend the form because the grievor admits that she was well aware of the requirement to file the forms. It was said that the grievor should have demonstrated that she was willing to comply with College procedures, and that she should not need to be reminded about everything. The grievor is faulted for never acknowledging that the College's concern had any merit until the last day of her evidence when she admitted that there was legitimacy to the College's concern about filling of forms.

It was acknowledged that the College raised concerns over and over again with the grievor. But it was asked rhetorically, why did the College have to do this? The answer given was that this would not have been necessary if the grievor had simply acknowledged an error and said, "Okay, I'll make sure I do it that way the next time." However, it was said that the grievor never did this.

It was also argued that the grievor demonstrated poor judgment in going directly to the President for help, and bypassing both her Chair and her Dean. It was stressed that the evidence demonstrated that the College made extensive efforts to impress upon the grievor the importance of respecting the College hierarchy. The College suggests that the e-mail to the President should not be considered as a desperate appeal for help, but instead as another problem that the grievor created herself by failing to live up to the College's legitimate expectations. It was argued that there is no evidence that the grievor could not have met with her Dean or her manager to ask for a transfer to a different department. If that request had been denied, it was said that her decision to go elsewhere might have been "more understandable". The proof of the grievor's inappropriateness was said to be the fact that the President referred her request back to the Manager in order to have the problem resolved.

The College challenges the allegation that the assignment of the grievor's workload is evidence of bad faith. First, it was argued that the grievor had the benefit of the workload arbitration process and that her claim was only allowed in part. Secondly, it was argued that there are many workload arbitrations in the College system, and that each one should not, and indeed is not, considered to be evidence of bad faith.

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Turning to the issue of the alteration of teaching tools, it was stressed that the grievor admitted that this is an item of legitimate concern for the College. However, the grievor repeatedly denied doing anything wrong, even though she had tracked "leadership" on the attendance form when this was not an agreed- upon evaluation criterion. Even if the grievor had not used this as a component of the mark, it was said that the recording of the "leadership" concept was problematical because it created a perception for students that there was an inconsistency in the way teachers were marking. The Union voiced strong objection to this submission, arguing that there is no evidence that students were aware of the fact that the grievor had tracked the "leadership" component. However, it was argued that the evidence simply reveals that the Employer had a legitimate concern over what the grievor was doing, and that this concern is not evidence of bad faith.

Counsel for the College then addressed the Mary Jane Burrows memorandum. It was stressed that the memorandum did not play any "significant role" in the decision to terminate. It was argued that the memorandum should simply be considered as evidence of a colleague's frustration in dealing with the grievor, and that it raised themes similar to what was being experienced by Ms. Foulds and Ms. Cormier. Counsel also argued that the Burrows memo casts doubt on the grievor's credibility. Mr. Wilson's evidence at this hearing, and the grievor's written response to the College when she received the memo, indicated that the grievor was "shocked" by the concerns set out in the memo because there had been "no attempt to discuss these things in person" before the memo was released. However, in both her testimony in chief and in cross-examination, she had also said she had been shocked by the memo because she had discussed many of the issues with Ms. Burrows and thought they had been resolved. Therefore, she was surprised to see them resurface in the memo. Ms. Burrows' evidence had been that she had discussed these issues "many times" with the grievor, and that incidents in the memo had been discussed. This was not challenged in cross-examination. Accordingly, it was said that there was an inconsistency about this matter that ought to be resolved in favour of the Employer. Finally, it was said that the worst that can be said about Ms. Burrows' memo and the grievor's response is that the College did not fully investigate all the allegations. However, this was said to be insignificant in light of the fact that the memo was not significantly relied upon to justify the termination. The Board of Arbitration was referred to the following case: Canusa CPS and I.WA.- Canada, Local 1000, supra.

The College submitted that the cases cited by the Union in support of its positions were distinguishable factually from the case at hand.

It was stressed that the College took into consideration many factors in the decision to terminate, not just one. It was argued that even if some of the College's considerations turn out to be lacking in foundation or that some of its investigations were not properly conducted, other legitimate employment

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concerns remain. Therefore, in determining whether bad faith exists, the Board of Arbitration was asked to look at all the factors considered by the Employer, and to conclude that if any of the considerations were legitimate, the termination should be upheld. Further, it was stressed that this Employer went to great lengths to make its concerns known to the grievor, through the series of extra meetings, the performance appraisals, and the personal efforts of Dean Cormier and Ms. Foulds. Again, the Union was faulted for being inconsistent in alleging that there is bad faith for failing to provide performance appraisals every four months, and at the same time faulting the College for raising too many performance issues against the grievor. The College argued that the complaint about the grievor's office is an example of "throwing out allegations of bad faith loosely". It was stressed that the grievor did not complain about the office at the time, and that the move came about because the grievor had asked to be closer to the PN group. It was suggested that the grievor had been shown the office before the move, and yet still maintained the request to be moved. Therefore, it was said to be unfair to assert bad faith in the arbitration.

Further, it was argued that Ms. Foulds' evidence established that many aspects of the grievor's performance were taken into consideration, including her teaching abilities, but also her inadequacies with regard to administrative work, teamwork, following rules, decision making and setting priorities. In addition, the College stressed the evidence of Dean Cormier when she explained that a full- time faculty member needs to not only be able to teach, but also be able to handle workload, set priorities, follow protocols, and work within the team. It was stressed that being a good teacher is simply not enough to warrant a permanent position on the faculty because classroom teaching is only one component of the SWF hours.

The College countered the Union's suggestion that the grievor had been given differential treatment by saying that the difference is attributable to the fact that she was the only probationary teacher that had been terminated, reinstated and working under the conditions set forth in the Memorandum of Agreement.

It was stressed that the College presented five witnesses who had direct dealings with the grievor. It was stressed that given any credence to the allegations of bad faith would mean that the five witnesses would have had to have conspired against the grievor. It was stressed that despite the Union bearing the onus in this case, there was no evidence that Ms. Foulds or Ms. Cormier, nor any other witness, bore any malice against the grievor. On the contrary, it was said that Ms. Cormier's evidence established that it was the grievor who appeared to bear some hostility against Ms. Foulds. It was submitted that the evidence establishes that the College came to the right decision to terminate the grievor based on her performance outside the classroom. It was stressed that the College has the right to be wrong about the decision it made, as long as it made that decision in good faith. While it was acknowledged that the College might have done some things differently or better, it was stressed that

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there is no evidence of bad faith. It was said that the thing that most seriously impacted the grievor's performance was her inability or refusal to acknowledge the legitimacies of the Employer's concerns despite the fact that none of the College concerns were ever hidden from the grievor. Counsel argued that the College made a serious attempt to inform the grievor of its concerns so that she could take them into account and improve. It was acknowledged that the grievor was a good teacher, and had been a good part-time teacher for many years. However, it was said that the responsibilities of a part-time teacher are much less onerous than those of a full-time teacher, and the grievor did not appear to be able to fulfill the full-time responsibilities. It was acknowledged that while some of the administrative duties may seem minor in isolation, they combine to form a significant part of what can be expected of a full-time faculty member. Because the probationary period is the College's opportunity to ensure that the employee will be a "good fit", the College asserts that it is entitled to make a good faith assessment of whether the employment relationship should be continued. It was argued that the grievor was given a "fair chance" within the meaning of the arbitral case law, and had the proper benefit of over ten chances to improve, even after she had been reinstated. It was stressed that there is no evidence of bad faith in this case, and that the Union has not presented sufficient evidence from which an inference could be drawn.

Counsel for the College argued that the appropriate conclusion to this case would be a dismissal of the grievance and an exoneration of the College employees who had been "unfairly attacked" by the allegations in this case.

In support of its submissions, the College also relied on the following cases: DeHavilland Inc. and C.A.W., Local 112, 1998 C.L.A.S.J. Lexis 9019 (Palmer); Re Edmundston (Ville) and S.C.F.P., Local 60, 1992 C.L.A.S.J. Lexis 12345 (Robichaud); OPSEU Local 416 and Algonquin College, unreported, January 17, 2006 (O'Neil); The Ontario Public Service Employees Union and Ontario Property Assessment Corporation, unreported, December 20, 2000 (MacDowell); OPSEU (Fox) and The Crown in Right of Ontario (Ministry of Correctional Services), unreported, November 19, 1992 (Dissanayake); Boyce v. Treasury Board (Department of National Defence), [2004] C.P.S.S.R.B. No. 34 (Mackenzie); St. Clair College and Ontario Public Service Employees Union, supra; Complex Services Inc. and O.P.S.E.U. Local 278, 2005 C.L.A.S.J. Lexis 148 (Gray); and Re Reena Foundation and O.P.S.E.U., 1993 C.L.A.S.J. Lexis 9447 (Mikus).

The Union's Reply Submissions

Counsel for the Union took issue with much of the College's characterization of the evidence. In particular, the Union asserted that the grievor had never admitted that the College had legitimate concerns about her performance. Instead, it was said that the grievor simply admitted that the subject-matter of concerns raised by the College fell within the legitimate scope

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of an employer's attention. But it was emphasized that the grievor never acknowledged that the College's concerns about her performance were legitimate.

Further, the Union pointed out that the College's assessment of the proportion of hours spent for non-teaching duties was slightly misleading. It was pointed out that there are 42 SWF hours over a three-week period, only seven of which are for non-teaching-related matters. It was also pointed out that the classroom hours are not all that can be attributed to teaching, because preparation, evaluation and meetings with students are all directly related to teaching.

Counsel for the Union argued that it was to the grievor's credit that she never filed a workload grievance about the number of students and preceptors she was expected to meet. It was suggested that this should not be considered as evidence that the workload was appropriate. Further, it was stressed that the uncontradicted evidence is that the grievor was never told that there was a requirement to meet the preceptors and students once a week, only that it would be "the ideal".

Turning to the issue of the carpenter, it was argued that the College had taken an "astounding" position in arguing that it was legitimate for Ms. Foulds to automatically believe the carpenter over the grievor in any event, and that therefore there was no reason to listen to the grievor's side of the story. It was said that this incident stands as a "hallmark of bad faith".

Counsel for the Union argued that the College's assertion that the Burrows memo had not been relied upon in the termination was contrary to Ms. Foulds' evidence. The Union also asserted that there is no evidence to support the assertion that the grievor was shown her new office and accepted it. It was conceded that she did ask for a move to be closer to the PN group, but it was said that she never asked or agreed to be put in a "supply cupboard" instead of an office.

Counsel for the Union submitted that if bad faith can be found in any aspect of the Employer's decision to terminate, this taints the decision as a whole. It was said that the grievor is entitled to a good faith assessment of her probationary period.

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THE DECISION

A) The Case law

Since this case concerns the termination of a probationary employee, the question is not whether there was just cause for the termination. The only way the grievance can succeed is if the Union has established that the decision was made arbitrarily, discriminatorily, in bad faith, or on the basis of illegal or invalid considerations. The onus of proof is on the Union to prove these difficult concepts. Therefore there are only limited circumstances in which a board of arbitration can or should reverse an employer's decision to terminate a probationary employee. This was made clear by the Court of Appeal in the case of Loyalist College v. OPSEU, supra, in the following passage:

The question of the Board's jurisdiction to hear the grievance brings into play two competing principles. The first principle is that, generally, arbitrators cannot review the merits of an employer's decision to dismiss a probationary employee. The second principle, a qualification on the first, is that arbitrators may be entitled to review an employer's decision to dismiss a probationary employee if the decision is made in bad faith or is based on an illegal or invalid consideration. Both principles are reflected in this collective agreement and the governing statute, the Colleges Collective Bargaining Act. . . . [para. 57]

Probationary employees are typically thought of as serving a period of apprenticeship. During this period employers expect wider latitude in their decisions to dismiss new employees judged not suitable for continued employment. Thus, ordinarily probationary employees cannot expect the protection of the just cause provision enjoyed by those employees who have completed their probationary period. See Nordair Inc. v. International Association of Machinists and Aerospace Workers Local 2309 (1985) 22 L.A.C. (3d) 177 (Can.); Canadian Broadcasting Corp. v. Canadian Union of Public Employees, [1995] C.L.A.D. No. 57. [para. 58]

Nonetheless, the College did not have an unfettered right to dismiss probationary employees. Although the collective agreement did not give probationary employees the right to just cause for dismissal, it did give them other limited rights. An alleged breach of any of these rights may give rise to a difference in the interpretation, application or

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administration of the collective agreement, and failing resolution, would then be arbitrable. See Ontario Hydro v. Ontario Hydro Employees' Union, Local 1000 (1983), 41 O.R. (2d) 669, 147 D.L.R. (3d) 210 (C.A.). [para. 60]

So, for example, one right of a probationary employee was the right not to be discriminated against on the various grounds prescribed in Article 4.01. . . . Another right was the right not to be dismissed in bad faith. For many years arbitrators and courts have held that this right is an implied term of every collective agreement and extends to all employees, including probationary employees. See Brampton Hydro Electric Commission v. C.A.W., Local 1285 (1993), 15 O.R. (3d) 773, 108 D.L.R. (4 th ) 168 (Div. Ct.) and Metropolitan Toronto (Municipality) v. Canadian Union of Public Employees, Local 43, unreported, July 3, 1981 (Div. Ct.). [para. 61]

The rights of both probationary employees and employers were also set out in Toronto (Metropolitan) v. Canadian Union of Public Employees, supra, at para. 10, wherein it was stated:

The Municipality is not required to justify the dismissal by affirmatively establishing reasonable or any cause. A probationary employee would be entitled to succeed on a grievance in relation to discharge only if he were able to affirmatively establish that the action of the employer was taken in bad faith in the sense that the decision was motivated by unlawful considerations or resulted from management actions which precluded the probationary employee from doing his best.

These cases reflect the notion that the probationary period is designed to allow the employer to decide whether it wants to continue the employment relationship. During that period, an employee can be "let go" for reasons that would never withstand review if s/he was entitled to the protection of a "just cause" provision. At the same time, the probationary employee is entitled to the opportunity to prove his/her worth. However, their only real protection for continuing employment status is the requirement that the employer act lawfully, in good faith and make its judgment on the basis of the probationer's actual performance.

Bad faith can involve malice and/or evil intent. But deliberation or intent is not a necessary ingredient in the concept. A lack of a rational connection between the circumstances and the outcome can also signal bad faith when it reveals antipathy or unfair treatment for non-rational reasons. Alternatively, if there is no rational basis for the decision, this can imply that irrelevant, invalid or

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illegal factors were considered. If that occurs, a decision may be both arbitrary and made in bad faith. In that sense, the concepts of arbitrariness and bad faith can be overlapping. On the other hand, bad faith implies more than simply not being able to substantiate all the problems that an employer may raise about an employee's performance. A Board of Arbitration that is asked to review the termination of a probationary employee does not undertake a weighing of the employer's decision to determine its correctness; the review is restricted to a consideration of whether the decision was arbitrary, discriminatory or in bad faith.

The thrust of the Union's argument in this case is that the College relied on invalid considerations in terminating aiNNIMMIS and/or that she was deprived of a "fair trial" period in the sense. The Union has asserted that the employer's conduct was tainted by bad faith and that the decision was arbitrary, resulting in a situation that should be governed by the principles set out in Jeanne Sauve Family Services and Ontario Public Service Employees Union, supra. That case established that a probationary employee is entitled to a bona fide probationary opportunity that includes:

. . . judging the employee after a reasonable effort to ascertain the real facts. Even though the decision is left 'at the sole discretion' of the employer, the employer must exercise this discretion properly. It has been held to be arbitrary to simply accept incidents or reported conduct as critical facts without given proper consideration to the matter. The employer must base its decision on the facts it finds after a reasonable investigation. (at p. 20)

This citation reflects the basic principle that a person should not loose their employment unless there has been a rational inquiry that leads to a decision based on employment related reasons.

It cannot be forgotten that bad faith is a very serious allegation. A finding of bad faith affects the professional reputation of the named individuals and the institution. The Employer relies on the quotation from Hamilton Street Railway Co. v. Amalgamated Transit Union, Local 107 (Davidson Grievance), supra, where it was said, "Making an assertion of bad faith is a very serious matter. Arbitrators are not reluctant to find bad faith if the evidence exists. However, the seriousness of the allegation demands that there be clear evidence of bad faith." (para. 72) That quotation simply states the obvious; unless there is clear evidence to support such a serious allegation, the grievance will fail. The existence of mistakes, misguided judgments or even oversights by an employer does not necessarily signal bad faith. Incompetence, inexperience and poor judgment do not equate to bad faith. Similarly, discharging a probationary employee for reasons that are unjust does not equate to bad faith because the "just cause" protection is not applicable to probationary employees under this Collective Agreement. The seriousness of the allegation of bad faith demands

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that the evidence supports a conclusion that the decision was more than wrong; it must also have been made without valid considerations or from some improper motivation.

The concept of bad faith is very difficult to establish and apply in a general sense. However, it is even more difficult to apply in the context of a probationary termination where employers are given wide latitude concerning the decision to continue or end the employment relationship of a probationary employee. The nature of probation must also be kept in mind. It is a period that should allow the employee to learn the job and adjust to the workplace, yet also allow the employer to determine whether it wants this person to continue in the workplace on a long-term basis. This is why employers have been given very wide latitude in determining whether a probationary employee should advance to long-term status. An employer is allowed to assess a probationary employee's "suitability" for the position. To that end, employers are given deference with regard to their establishment of the standards of performance. As long as the standards relate to employment, there is little, if any scope of arbitral interference. Arbitration Boards have long recognized that there are important policy considerations that support the employers' legitimate interest in deciding whether they want to embark on a long-term employment relationship with someone. Accordingly, there is only limited scope to interfere with the employer's judgment. Therefore, employers' decisions to terminate probationary employees have been upheld when they have shown failures to accept direction, exhibit a professional attitude towards work or get along with fellow employees, even when the performance of principle duties was satisfactory. See Re Canusa CPS and I.W.A.-Canada, Local 1000, supra; and IKO Industries Ltd. v. U.S. WA., Local 8580, supra. Further, some of the more subtle qualities that were raised in this case have been recognized in the case law as valid considerations regarding the continued employment of a probationer. "Good judgment" has been held to be a legitimate expectation of a teacher in this sector. Where the evidence established that a probationary teacher could not function effectively in a particular environment because of a "lack of judgment", that was considered to be a legitimate reason for termination: see Loyalist College and OPSEU, supra. Similarly, even in another sector, an "inappropriate attitude" was upheld as a valid consideration in the decision to terminate a probationary employee: see Re Edmundston (Vile) and S.C.F.P., Local 60, supra. Other factors that have been taken into consideration are a probationary employee's ability to benefit from direction, appreciate the potential consequences of their actions or acknowledge the employer's concerns. These concerns were raised in a case where there was a finding that "repeated attempts to make [the grievor] aware of her shortcomings were ignored or dismissed" and there was a "lack of appreciation of the potential consequences of her actions and the refusal or inability ... to acknowledge the [employer's] concerns." The employer's decision to terminate on those grounds was upheld in Re Reena Foundation and OPSEU, supra. The College particularly relied upon paragraph 91 of that case, wherein it was stated:

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The grievor seemed, even at the hearing, to be either unable or unwilling to understand that she was being criticized for her work performance. She seemed to believe that once she had offered an explanation for her actions, the matter was closed. She never heard her supervisor's rejection of her explanations. Because of her attitude, she did not seem to have learned anything from her mistakes. Unlike the Crown in the Right of Ontario case (supra) the nexus between the actions of the grievor and the reasons for the termination is clear. Based on her actions, it was reasonable for the Foundation to conclude that she had not and could not meet the reasonable expectations of the Foundation. (para. 91)

These cases illustrate arbitral recognition and respect for the broad discretion afforded to an employer to decide whether the probationary employee can meet the "intangible requirements for long-term employment" that would are difficult or unfair to prove once regular status is achieved and there is a heavy onus on the employer to prove just cause for dismissal. See DeHavilland Inc. and C.A.W., Local 112, supra.

The Employer also has the right to set the standards for success in probation. Each work environment may place different legitimate demands upon employees. In an industrial setting, production standards may be easy to define and assess. As a result, probationary periods are often relatively short. In the College sector, the expectations placed on faculty members may be more difficult to define, and the adjustment to the demands of teaching may require more time for adaptation. It is also probably difficult to assess the qualities or attributes that should be desirable in a long-term teacher. This may be why there is a two-year probationary period in this contract. This length of time allows for probationary teachers to adapt and prove themselves and allows the College adequate time to assess their performance and potential.

Therefore, in reviewing the termination of a probationary employee, a board of arbitration does not ask itself whether the employer was correct about its assessment. Even if there is a finding that the College was wrong about its assessment of the grievor's performance or long-term suitability as a faculty member, this would not be enough to support a finding of arbitrariness or bad faith. We could only reach that conclusion if the evidence supported a finding that the College drew its conclusions about the grievor as a result of an improper motive or based its decision on totally unreliable or unsupportable evidence, considerations or factors. The seminal case in this sector is St. Clair College and OPSEU, supra, wherein it was held, "A probationary employee would be entitled to succeed on a grievance in relation to discharge only if he were able to affirmatively establish that the action of the employer was taken in bad faith in the sense that the decision was motivated by unlawful considerations or resulted

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from management actions which precluded the probationary employee from doing his best." Further, it has been recognized:

Bad faith is a term of art and connotes much more than an imperfect practice. In this context, bad faith connotes a failure to abide by the positive obligations on the employer with respect to the treatment of probationary employees under the collective agreement. [Centennial College of Applied Arts and Technology v. OPSEU, Local 558, supra.]

As shown above, the cases do not hold employers to a standard of perfection. Even where an employer has been faulted for failures in process, the termination has been upheld, as was the case in Centennial College and OPSEU, Local 558, supra. In that case, there were failures of process, but there were also valid employment related concerns that justified the termination. Further, even where there have been indications that an arbitrator may have reached a different conclusion about an employee, the decision to terminate has been upheld where there was no indication of improper motive or impediments prohibiting the fair assessment of the probationary employee: The Ontario Public Service Employees Union and Ontario Property Assessment Corporation, supra. The concept of the employers' "right to be wrong," but to do so in good faith, is well summed up in Ministry of Correctional Services and OPSEU (Fox), supra, wherein it was said that:

The role of the Board in a grievance challenging the release of a probationary employee is not to scrutinize the employer's conduct to see whether there were deficiencies in the way the employee was trained, supervised, and directed. It will be a rare case indeed where such deficiencies cannot be pointed out. For management deficiencies to be relevant, it must be clear that those seriously impeded the grievor's performance and ability to meet the job requirements.

Therefore, a finding of flaws or deficiencies in an employers' investigation or processes will not necessarily result in a finding of bad faith unless those problems significantly affect the probationer's ability to perform his/her job or the employer's ability to adequately judge their actual performance. The test is much higher than a test of just cause. Admittedly, it is often hard to recognize the line between just cause and bad faith. But the line is clearly crossed where the evidence shows that there is no regard to the factual circumstances, where the decision is premised on a complete misapprehension of the facts or where there is no employment related reason for the decision to terminate.

The relevant arbitral case law therefore instructs us that the employer must give a probationary employee a good faith opportunity to succeed during

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the probationary period, and judge that person only on their performance and in accordance with the law. If that is done, the employer then has a broad discretion over whether the employment should be continued. The employer can take into consideration elusive concepts such as whether the person is a "good fit" within the workplace or displays the desired "attitude," so long as the consideration of "fit" does not violate Human Rights or other applicable laws. The employer can also set the standards of performance that the probationary employee must achieve. A board of arbitration can and should only overturn an employer's decision where the evidence establishes that the employer failed to provide a good faith opportunity to succeed or where the decision to terminate is devoid of valid, legal and/or employment related considerations.

These principles must now be applied to the facts of this case.

B) Conclusions regarding the evidence

At the outset of this decision it should be plainly stated that there is no evidence of discrimination, malice or ill will. There was absolutely no evidence that anyone had any improper motivations in their dealings with the grievor. While the Dean and the Chair were certainly candid about their frustrations in dealing with 1111101•101, they never exhibited any animosity towards her. The time, energy and attention that the grievor's situation demanded was certainly a strain on their patience and took a great deal of time away from their other professional responsibilities. However, there is absolutely no evidence that these frustrations included or escalated into antipathy or Therefore, this is not a case where there can be a finding of "bad faith" in the sense of malice or ill-will. But that leaves open whether the Union has met the onus of showing that the grievor was deprived of a proper probationary evaluation as a result of her being terminated on the basis of conclusions that bear no regard to the actual circumstances, or where the decision was premised on a such a misapprehension of the facts that there was no legitimate reason for the decision to terminate.

A consideration of all the evidence leads, ironically, to two significant and seemingly contradictory conclusions. First, the evidence reveals that many of the accusations that Ms. Foulds leveled against the grievor were based on fundamental misapprehensions or a complete disregard of the available facts. This demonstrated bad faith. On the other hand, the evidence also shows that there were other, independent and legitimate performance issues that Dean Cormier relied upon in making a good faith decision to terminate of the grievor during her probationary period. These matters were of enough significance that they well surpass what would be considered to be legitimate grounds for termination of a probationer. The consequences of these two finding can only be determined by examining what they are based upon and their significance in the context of the whole situation.

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C) The fundamental misapprehensions or complete disregard of the available facts by the grievor's supervisor;

We shall first explain why it has been concluded that Ms. Foulds disregarded relevant information or operated on the basis of misapprehensions. This analysis is lengthy because the parties are entitled to understand the reasoning behind this serious finding. However, this portion of the award should not be read without keeping in mind that it deals with only one aspect of this case.

Ms. Foulds accused the grievor of "inappropriately approaching a coordinator to negotiate professional development leave before discussing the situation with her supervisor." The evidence did show that the Chair made it perfectly clear to the grievor that all issues of professional leave had to be discussed directly with Ms. Foulds first. The grievor understood this and nevertheless did "approach" the coordinator before speaking to the Chair about the leave for the RNAO Conference. However, this approach was simply to gather information about options. There is no evidence that this discussion was an attempt to "negotiate" the leave, as alleged. Ms. Foulds admitted that that she had never been told that IINNedialei had asked the Coordinator for a reassignment of workload, for permission to attend the conference or even to "negotiate" the leave. Therefore there was no basis for the serious allegation that the grievor had tried by-pass the hierarchy or established protocols for obtaining leave.

Ms. Foulds also criticized the grievor twice for expressing her preference to teach in the degree Nursing program. The College was trying to develop a faculty that could teach in a variety of program areas. The direction of the program and the consequent demands of faculty members are legitimate prerogatives of management and a probationary employee should certainly fit within those plans. However, there is no legitimate reason to criticize the grievor in this situation because she stated her preference in direct response to the Chair's request to all faculty to state their preferred teaching areas before the semester assignments were arranged. The College has also alleged that she had "difficulty fitting in" to the PN department as a result of telling her Coordinator that her "first love" was the RN program. The Coordinator of the other program may have felt slighted by the comment. However, the comment was made in a social setting and there is a big difference between stating a preference and implying an unwillingness to participate within a team. The words attributed to the grievor fall far short of supporting the allegation against her. The grievor's comments cannot be considered as an employment offence or even as a cause for managerial concern. This is particularly the case in light of the fact that the Chair assigned the grievor to several different programs and the grievor responded by saying that she was willing to take on new assignments and challenges.

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Ms. Foulds was very critical of the grievor after a carpenter stated that she had said that she was "afraid" of her manager. The grievor denies that she made the comment. What is important about issue is not the comment itself but what Ms. Foulds reaction to it reveals about her treatment of the grievor. Ms. Foulds took the comment at face value and concluded that it was evidence of the grievor's lack of "professionalism, judgment or respect for authority." She criticized the Grievor for this and relayed this conclusion onto the Dean. The fundamental problem with this is that Ms. Foulds admits that she reached her conclusions simply upon hearing from the carpenter and that "nothing" Ms. 111.11111 could have said would have mattered. Ms. Foulds never bothered trying to determine whether the comment had actually been made or its context before she passing judgment upon the grievor on this issue. The Chair had decided to believe the carpenter over the grievor in any event. Ms. Fould's admitted unwillingness to consider anything the grievor could have said before coming to a conclusion is completely inappropriate. We commend Ms. Foulds' candor in admitting that she would not have given the grievor a chance about this issue; rarely does a witness admit to such an obvious short-coming. Her admission illustrates either naivety and/or a complete ignorance of her managerial responsibilities. Management cannot simply act on a presumption of guilt to support a serious conclusion about perceived deficiencies. The problem in this case is not that management did not prove the allegation. The problem is that management closed itself to consideration of anything the grievor might have to say.

This is finding is particularly problematic in this case where one of the themes of the Union's case was that management never seemed to listen to what the grievor said in response to management's stated concerns. It is even more problematic given that it occurred in the summer of 2002, early on in the probationary period. Unfortunately, the evidence shows that this attitude persisted.

Several allegations were then leveled against IIROMMill concerning her invitation to attend and present an abstract at a professional conference in the Fall of 2002. The criticisms took several different forms. The grievor was first accused of "making a commitment" to attend a conference without first getting approval from her manager. This would be a serious breach of the protocol that had been established for the grievor. However, there was no basis for assuming that she had "committed" to attending the conference before approval was granted. She made the Dean and the Chair aware that she had submitted an abstract for presentation at the conference. Indeed, the Dean encouraged her to do so. Further, when Ms. Foulds was told that the abstract had been accepted, she told the Grievor to "confirm" the presentation, that approval for her attendance would depend on the teaching schedule for the Fall and that they would "work out the details" in the Fall. The Chair made it clear to the grievor that she would still need formal approval for her to attend and that the permission

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would depend on her being able to arrange for someone else to take over her classes without any cost to the College. The evidence then shows that in the months leading up to the conference the grievor made a concerted effort to get the requisite final approval from the Chair to attend. The grievor submitted a Request for Leave Form and then sent reminders to the Chair throughout the summer. These are all evidence that the grievor was still seeking permission to attend. These memos and her evident desire to attend may well have given the impression that she assumed that permission would be forthcoming. Further, she clearly saw her invitation to make a presentation as being an opportunity to enhance the College's reputation. Professional development is a recognized component of the SWF and attendance at conferences is common for faculty members. So it may have been quite likely that the grievor was confident that permission would not be withheld. But the evidence is inconsistent with the notion that she had committed to attend before approval had been granted. When faced with the evidence showing the steps the grievor went through in order to obtain permission, Ms. Foulds stepped back from the allegation that the commitment to attend had been made prematurely and said that she had merely "assumed" that the grievor had made a premature commitment. However, the evidence shows that there was no basis for this assumption or for maintaining this issue as a subsequent and continuing allegation.

The College then alleged that the grievor took a third day of Professional Development Leave and/or was absent from her duties without permission because of this same Fall 20002 conference. This was an extremely serious allegation. It echoes the earlier allegation contained in the settlement agreement reinstating her in January 2002. This particular allegation also was maintained well into this hearing. Indeed it was a critical factor mentioned in the opening , statement. However, the evidence shows that not only did the grievor seek and obtain permission to attend the conference for three days, but also that her Chair was aware of this and was reminded of it as soon an as the issue came to light. In fairness to the College and Ms. Foulds, the evidence does show that the grievor initially asked for two days of leave on the requisite form. Then, when her abstract was accepted for a more formal presentation on a day not covered by the leave request, the grievor wrote an email to Ms. Foulds asking for permission to attend from September 29 — October 2. We are prepared to assume that perhaps Ms. Foulds did not initially realize that these dates amounted to the additional third day because nothing in the request flagged the issue of a third day. But the fact remains that Ms. Foulds did give permission to attend the conference from September 29 — October 2 in the email on August 26 th with the sole caveat that coverage would have to be arranged for the grievor's classes without cost to the College. Subsequent events corroborate that this permission was given because was allowed to make arrangements to have her classed covered and emails show that the Chair was aware of the dates Ms. Sumitro would be away even before the conference commenced. We are able to accept that Ms. Foulds could have been confused about the number of days of leave being requested at some point before the conference began. However, the

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serious allegation that took a leave or was away without permission is simply without foundation. This is all very disconcerting, given that the issue of permission was first raised with the grievor in the meeting of August 29 th , almost within hours of Ms. Foulds saying that the grievor could attend the conference. On July 28th had written to Ms Foulds, saying; "Thank you for allowing me to go to the conference." The College was reminded of this correspondence in a memo from Mr. Wilson on September 12 th . Further, the grievor was allowed to make the arrangements for class coverage, attend the conference and received an email from Ms. Foulds the day after her return that referred specifically to the three days of attendance. So there was no basis for Ms. Foulds to allege that the grievor had taken an extra day of leave without permission or authorization and it is very troubling that she did not amend the record once she was reminded of the facts. Yet this allegation persisted throughout her employment, was a factor in the performance evaluations and the termination and it was pursued by the College well into this hearing.

As an alternative, the College then faulted the grievor for "failing to inform the Chair of changes or revisions to the submitted leave request form." The College uses a specific form to track and document requests for professional development leave. It is clear that the Grievor did not amend the original official leave request form that she had submitted. She knew about the forms, had submitted a request for two days of leave and did not amend the form itself because she felt that the direct communication with the Chair was sufficient. The Chair raised this issue as an indication that the grievor was not following College protocol and procedures. It was initially raised by the College as an additional, rather than alternate allegation concerning this leave request. In the hearing, it ultimately became more of an alternate justification for concern. Part of the allegation is fair in that the grievor should have amended the form when she was asked to stay an additional day at the conference to make the more formal presentation than had been initially contemplated. However, as set out above, the Chair was informed of the extended request. It is true that the grievor never spelled out to the Chair that the request for September 30 — October 2 amounts to three days instead of the two that had been set out in the original form. But it is not fair to allege that the Grievor did not advise the Chair of what was being requested. The Chair is a very intelligent and sophisticated professional who could be expected to have appreciated how many days were involved in the request. Nothing in the evidence suggests that the grievor was trying to slip in an extra day of leave. This would not even have been possible given the elaborate arrangements that had to put on place to ensure coverage for her classes. So there is nothing to support the allegation that she failed to inform the Chair about the additional third day. Further, the evidence shows that the College was given the proper information to track the leave because, at the end of the day, the leave was properly recorded in the College's accounting system and her classes were covered without any cost to the College.

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The College concluded that despite clear communication from the PN team, the Grievor chose to "modify objectives and teaching tools without consulting or reviewing with the coordinator or team." Again, this is a serious allegation because the College has a legitimate interest in ensuring that evaluations are done consistently within a program. However, there was no evidence before the College or this Board of Arbitration that the Grievor modified "teaching tools." She did add a category of "leadership" to a departmental attendance form and she did make notations about whether students brought proper attire to their labs. The Grievor may have factored these concepts into the class participation mark which was an approved element of evaluation. That may or may not have been considered as relevant to other faculty in assessing the class participation grade, but that was not the College's concern. The Chair's stated concern was that the notations on the attendance sheet may have fueled students' existing concerns about inconsistent grading practices within the department. That would be a legitimate concern for the College, however there is no evidence that these notations caused any student concern. Further, Ms.

uncontradicted evidence was that she did not factor anything into the grades that was not consistent with the department's established method of evaluation. Accordingly, while the Chair may have had some reason to investigate the situation, there was no evidence before her to support her allegation that the Grievor modified teaching tools or objectives.

Finally, the Chair's response to the Burrows Memo is very problematic. Again, in fairness, the wording of the memo contained a number of complaints about fall110111 and her performance that were concerns for the College and the Chair ultimately invited the Grievor to respond. This was all despite Ms. Burrows' unrelated intention in authoring the memo to document her own workload complaint. She stressed that she never intended the contents as a criticism of 1111111111111111111111. However, the document was certainly perceived and received as a litany of problems created by 1111=11111111's performance. However, when the memo is analyzed item by item, it must be concluded that the complaints are based on Ms. Burrow's misapprehensions of fact or 11111111111111111.1's misunderstanding of her responsibilities and/or issues that could have been set straight by the Chair. In a nutshell, most of the stated concerns seemed to have no foundation and this could have been realized had the Chair considered all the facts. For example, Ms. Burrows complained about the problems that resulted from the late notice of .11118111111111111's timetabling conflict. However, the conflict and the notice were not even within 411111111•11111111's control. pammini cannot be faulted for the conflict or the fact that she received her timetable later than the Collective Agreement contemplates. Timetable conflicts are rare, but they occur and can only be corrected by the Registrar's office. The Chair was aware of all of this at the time and yet did not reveal this to the Dean or take this into consideration.

Ms. Burrows' principle complaint was about the amount of time she had to spend supporting 1111111111=1 in terms of making sure she prepared course

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outlines, giving her assistance regarding the course, dealing with the late delivery of class quizzes, and ensuring compliance with department practices. When all the evidence is boiled down, it leads to the conclusion that Ms. Burrows assumed that alln1111111111116 was aware of the department's expectations and practices, although she was not. Ms. Burrows revealed that once MINMEM. was apprised of the expectations, she complied. If, as this evidence suggests, a Coordinator is saying that a new faculty member was not fully oriented about the expectations of a new department, it is incumbent on a Chair to take this into consideration rather than assuming that the fault lies with the probationary teacher.

The memo raises concerns over the Grievor giving a more "theoretical" than "practical" approach to the quiz and the course materials. It is clear that Ms. Burrows and had different approaches to the emphasis that should be placed on theory and practice in this course. However, the College has raised no concerns overt teaching of this course and she was credited as being a good teacher. The evidence shows that the students performed well in the course, including the practical testing. They also gave 111111111111111111 positive evaluations. It is clear from the evidence that the College did not rely on this item in its decision to terminate and so it is not a factor in the finding of bad faith.

The memo also mentions concern over 1111111111111111111116 performance of the "Queensway-Carlton contract." Ms. Foulds reported this and Dean Cormier relied upon this when determining 11111111111111111111111 future with the College. It would be legitimate for the College to be concerned about a faculty member's performance when teaching in an outside facility that had a contract with the College. However, there was never any evidence before the College or this Board of Arbitration to support any cause for concern. On the contrary, the evidence disclosed that the Queensway Carlton liaison's with the College's liaison heard about this as a rumor and immediately tried to dispel it. She was assured by the College that the "rumours" would be addressed, but there is no evidence that the Dean was told of this. Further, the evidence shows that the evaluations of the Grievor's delivery of the program were positive and Ms. Foulds could not articulate any specific reason for the concern she relayed to the Chair. According, while the Dean is certainly entitled to rely on the information received from the Chair, it must be concluded that there was no factual or rational basis for the Chair to have allowed this allegation to be considered in any assessment of the Grievor's performance.

It is very unclear from the evidence of Ms. Foulds or Dean Cormier just how much impact Ms. Burrows' memo had on the decision to terminate. Both witnesses tried to suggest that the Memo was just another factor or "red flag" that was taken into consideration. However, the evidence also shows that the delivery of this memo and their reliance upon its contents was the triggering event that led to the decision to discharge. The decision was made almost immediately after the memo had been presented to the Grievor and there was no

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other precipitating event. The contents of the memo were taken very seriously by Ms. Foulds and were seen as evidence of continuing problems by Dean Cormier. Dean Cormier admitted that she had not read or considered responses to this memo when it was decided to recommend termination. Dean Cormier relied entirely on the memo itself and upon Ms. Foulds' account of the issues. The evidence shows that none of the explanations that the Grievor and the Union presented were given any credence or weight. It appears that Ms. Foulds was following her pattern of assuming that any allegation against the Grievor had substance and that any explanation she offered would have no credence. This left Dean Cormier in a situation where she was relying on the bald allegations in this memo, which, on their face, do suggest legitimate performance problems. However, a consideration of all the facts and their proper context has cast an entirely different light on much of the situation.

The preceding paragraphs contain numerous examples of where the Chair and consequently the College claimed that the Grievor acted improperly or failed to meet expectations whereas the evidence reveals that there was no basis for those claims. Some of these examples are serious allegations, some are less so. Most were legitimate subject matters of concern, but none of these preceding items have been sustained by the evidence. Taking the College's case at its best, we can appreciate the College's initial concerns about some of the items listed in the Burrows memo, or the allegation about the change of teaching tools. But any basic and fair-minded inquiry into the allegations could or should have allayed these concerns.

However, there was and is absolutely no factual basis for other items that were alleged to be performance concerns. The Queensway-Carlton contract is a prime example of this. Even more seriously, the allegation that that Grievor had been absent without permission, and/or that she had "negotiated" or had "committed" herself to a professional development leave were maintained despite evidence to the contrary. Further, it was completely disingenuous for the Chair to use the Grievor's response to a departmental questionnaire about areas of teaching preference as "evidence" that she was failing to fit within another department's "team." In addition, the admission of the Chair that nothing the Grievor could have said with regard to the carpenter incident reveals an unfairness of approach and willful blindness to important evidence. This is a very significant finding given that any employee, even a probationary employee, is entitled to be evaluated on the basis of truth, reality and rationality. It is arbitrary to simply accept incidents or reported conduct as critical facts without engaging in a rational consideration to the matter. The College must not be able to make conclusions without a reasonable consideration of the available evidence. See Jeanne Sauve Family Services and Ontario Public Service Employees Union, supra. Part of the responsibility towards a probationary employee is that their performance be judged fully and fairly on the basis of the facts and circumstances. Management cannot blind or shield itself from any consideration of facts or explanations that may be in the probationary employee's favour. The scientist/philosopher Jean Rostand wrote; "Stupidity, outrage, vanity, cruelty,

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iniquity, bad faith, falsehood - we fail to see the whole array when it is facing in the same direction as we." That is the danger of a bad faith approach to a person or an employee; it blinds one to the whole that deserves complete consideration.

C) Issues that were considered by the Dean in the decision to terminate that were based on rational considerations

Despite the failings of the Chair's approach and treatment of the Grievor, the evidence also reveals that the College's had bona fide and legitimate concerns about the Grievor's performance and suitability. Again, some are more serious than others, but they should all be addressed.

There was concern about the Grievor's failure to articulate an adequate strategy to improve communications. She was asked to do this as part of her back to work initiation and to demonstrate that she understood the College's expectations. Her first draft contained a list of her accomplishments, but only a single sentence about communications that was devoid of any strategy. Ms. MUM did ask the Chair for further direction to identify the inadequacy, but the Chair felt that it was important for the Grievor to be able to show some insight into the issue. It would have been helpful for the Chair to indicate what was wrong with the first draft. But it must also be remembered that the Grievor is a highly educated professional. She holds a Master's degree, had just received the benefit of extensive individualized meetings with her Chair and her Dean, and should be capable of drafting a strategic plan to deal with the communication issues that had been discussed. Her inability to do so after being given so much coaching was a legitimate item of concern.

The College has also established that the Grievor failed to fill out and/or amend the proper form for three days Professional development leave. This is a technical breach of protocol that did no actual harm to the College because the leave day was taken with permission and the College records have properly documented the relevant days. While this criticism of the Grievor was proven, it can only be characterized as a trivial concern within the grand scale of things.

Nevertheless, it is within the prerogative of an employer to raise such concerns when evaluating the long term prospects of a probationary employee. Our task is not to weigh the importance of this item.

Of much more significance to the College was the allegation that the Grievor "failed to meet [the] agreed commitments to the team" by "refusing" to attend a curriculum development meeting on October 4, 2002. 11111111111115.111 did not attend this meeting. According to the Chair, this was an important meeting and there was an expectation that faculty involved with the program would attend. Ms. Foulds also felt that it was particularly important for 11111111111111111111111to

attend this meeting because she was new to the department, could gain valuable experience from the meeting and it was occurring at a critical time of the year. Ms. Sumitro decided not to attend because she felt she needed the time for

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classroom preparation. She also felt that she had been given permission to make this choice after she had asked about the attendance and the Chair had written; "You can reflect on how you devote your time; this week you had three days professional development; it is your decision how to proportion your schedule. The curriculum work for the next semester is a cornerstone to your teaching." 11111111111•11111111focused on the words "it is your decision" and interpreted them as an invitation to exercise her professional judgment by choosing not to attend. However, the Chair felt that her words had clearly conveyed the importance of attendance and that the decision to not attend was an indication of the Grievor's poor judgment and inability to prioritize her responsibilities. In another setting, it might be fair to conclude that Ms. Foulds' email was ambiguous or unclear. But this is a College setting where the players all hold post-graduate degrees. MEM should be expected to have understood that the Chair's considered the attendance to be important. w was a probationary teacher who was being told that her Chair expected her to attend. It may be open to honest disagreement over whether it was appropriate to criticize

her for her absence given the fact that other full time and probationary teachers missed one or more curriculum meetings without incurring censure from management and ANIN111101 did fulfill her requirement of SWF'd curriculum development hours during all her terms at the College. But it must be remembered that 11/11///Ms reason for not attending was that she wanted to prepare for classes after her return from a professional development leave. The Chair had the right to expect the Grievor to be able to manage the leave, the meeting and the classes. Therefore, whether we agree with the Chair's assessment or not, there was a rational and reasonable basis for the criticism.

The College has cited the Grievor's direct appeal to the President for a transfer as a failure to respect hierarchy. 111111111■ did write directly to the President of the College seeking a transfer without taking this request first to the Chair or the Dean. It is certainly understandable that a probationary teacher would not want to confront her Chair with a request for a transfer when the reason for the request was the Chair herself. But there was no need to bypass the Dean. Dean Cormier had agreed to meet with MM. around this same time. The meeting arrangements got fouled up over their failure to agree on who else would or could be in attendance. The Dean had clearly indicated that she was willing to meet with 111111111111111111111 but simply wanted a representative from Human Resources to be present after 1.11111111111111i indicated that she wanted a Union representative to be there. .11111111111■ and the Union have never alleged any animosity from the Dean and they offered no reason why 11111111111111. did not go ahead with this meeting. This was unfortunate, because had taken her request directly to Dean Cormier, this would have been in compliance with the communication protocols and may have alleviated some of the problems that ultimately led to this hearing. We are very mindful of the fact that the Grievor was relying of the College President's announcement that he had an "open door" policy. But this could not be viewed as an invitation to ignore proper protocol. Given the amount of time that the Dean had spent earlier with the Grievor about

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College hierarchy and Dean Cormier's continuing willingness to meet with Ms. IMO, it was legitimate to expect her to have made her request for the transfer to Dean Cormier first. We do not mean to suggest that the Grievor's conduct amounts to an employment offence. We have simply concluded that the College was entitled to take this into consideration.

Wise people may disagree about whether the failure to amend the form, the decision to miss the meeting or the approach to the President were actually valid performance concerns. It may be more appropriate to declare that these are simply items where this board of arbitration should defer to management because there was some rational basis for the conclusion.

D) Independent and determinative performance issues that were considered by the Dean in the decision to terminate

There are three remaining perform concerns that are clearly significant and that were conclusively proven through evidence that was not affected by any element of bad faith or arbitrary treatment.

The first relates to the Grievor's "resistance or refusal" to meet with Ms. Foulds about a specific student related issue. After the initial successes of the "monthly" meetings mandated by the reinstatement protocol, there were often difficulties in arranging meetings and there were some disagreements about who would attend these meetings. 111111•111111111 then became reluctant to meet with the Chair after the repeated and sometimes unwarranted criticisms started to mount from Ms. Foulds. To a great extent we sympathize with the Grievor over this. However, Ms. Foulds asked to meet with the Grievor "briefly" around October 25, 2002 to discuss some specific student concerns that had been discussed at an earlier department meeting. The meeting was not about Ms WM and her performance. The meeting was about a course related issue and the Chair made that clear. Further, the Chair offered to accommodate the Grievor's teaching schedule. However, initially tried to avoid the meeting by rejecting any of the suggested times, citing her need for time for classroom preparation. The Dean then clarified that her request was for brief meeting over a specific and important issue. The Grievor still did not agree to meet when requested, suggesting a time weeks later. The College and the Chair had a legitimate right to expect the Grievor to respond to the request for this meeting and to expect the Grievor to both attend the meeting and have time for classroom preparation. Her excuse for not attending was not linked to her concern about Ms. Fould's unfair treatment. Her excuse was based on her inability to attend to all her duties. Even if this is true, at best it signals an inability to manage her workload. However, this evidence is also consistent with an employee who did not respond appropriately to a supervisor's legitimate request for a meeting about student concerns. Accordingly, this evidence

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established that the Grievor failed to act in accordance with the legitimate and objectively sustainable expectations of the Chair.

There is absolutely no doubt that the College was also justified in its concern over the Grievor's failure to make an on-site visit or communicate directly with a preceptor from June 5 — 24, 2002. The Union presented a great deal of evidence about whether had been told to meet "at least once a week," "frequently" or on a "regular basis" with preceptors. However, it ultimately does not matter what her exact instructions were because even if we accept her evidence, she failed to meet or even contact a preceptor for two full weeks after the beginning of the placement. Even by her own understanding of the expectations, this was unacceptable. This is particularly problematic because the evidence of both parties is that the faculty liaisons were told to meet with more frequency at the beginning of the placement and the Grievor's failure to meet the preceptor at all occurred during that period. The Grievor's excuse is that she had too many other students, locations and preceptors to deal with so that she devoted her time to the problematic situations. This excuse cannot be accepted. There is a workload complaint procedure available to faculty if the workload is excessive. By choosing not to grieve, she cannot now use workload as an excuse. Further, while other faculty testified that they thought her assignment was "horrendous" or that they had never had to deal with similar situations in the past, there was no evidence that assignment was different from other faculty member's assignments during the same time frame. In addition, the Grievor revealed that she had taken time at the beginning of the preceptorship program "networking" with hospital administrators in order enhance the program. If she was as overworked as she claims, she certainly did not have time for these meetings which fell outside of her assigned duties. Her failure to attend to her assigned duties demonstrates legitimacy for the College's concerns that she could not properly prioritize her responsibilities or exercise good judgment. The Grievor's failure with regard to the preceptorship was very serious. While her inadequate performance cannot be connected to the student's injury, it did contribute to the College's difficulty in facilitating the student's subsequent transfer to another teaching facility. Accordingly, the College was justified considering her performance in this area as unacceptable. It must also be noted that the Grievor has never accepted any responsibility for her failure in this area. Instead, she cast blame on her workload, the training she had been given and even the preceptor. All of this was completely inappropriate. It also reveals a singular lack of insight into her own misconduct. Further, the Grievor's lack of acceptance of responsibility in this regard exemplifies one of the College's recurring concerns about her being ungovernable.

This leads to the College's final generalized criticism of the Grievor over her failure to accept responsibility, admit her errors and her failure to exercise good judgment with respect to faculty priorities. In many instances we can understand why the Grievor would refuse to admit wrongdoing or agree to "change her behaviour" as the College kept asking her to do. As shown above,

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many of the criticisms leveled against the Grievor were unjustified. She cannot be faulted for refusing to shoulder blame for those incidents that were not of her making or for groundless accusations. However, when ailirgas was or is clearly in the wrong, she completely denies any fault on her part. This is demonstrated with the October meeting and the proctorship issue, in particular. In the latter instance, her attempt to deflect blame speaks very poorly for her. Further, throughout her time at the College and even during her testimony, she continually claimed that her workload and her concentration on classroom teaching took priority over everything else. Teaching is indeed the prime responsibility of a professor. But it is not the only responsibility. The distribution and assignment of workload in the College sector is a finely-tuned calculation that has been developed mutually between the parties. It is designed to allow for sufficient time for a teacher to devote to all their duties. It also makes allowances for new teachers and new courses. Therefore, a workload that complies with the Collective Agreement cannot be used as an excuse for any shortcomings. The Grievor clearly had a great deal of difficulty managing her workload. She repeatedly reduced herself to tears during her testimony, lamenting about how hard she had worked and saying that she had no time to deal with all the expectations thrust upon her. She repeatedly cried, "I was so busy", "I tried to do my best", "I worked so hard" and "I was overwhelmed". This demonstrates that she found the workload extremely difficult to handle and she often used this as her excuse for avoiding meetings or to explain any suggestion of shortcomings. Her difficulties in managing her workload and/or prioritize her responsibilities, translated into the College's concerns about her professional judgment or her ability to maintain the duties of regular status. This is a legitimate cause of concern to the College when considering the long-term prospects of a successful career as a teacher. If she was "overwhelmed" by the work-load at that stage when allowances are made for new courses, her future prospects were certainly a legitimate cause for concern for the College.

Therefore, the evidence establishes that while some of the College may have been arbitrary in some of its judgments or assessments of the Grievor, it also had legitimate performance related concerns about her that would be valid cause to terminate a probationary employee.

E) Unsubstantiated or unproven allegations of bad faith and arbitrary conduct

The onus is on the Union to demonstrate that the College acted arbitrarily or in bad faith in deciding to terminate the Grievor. I must be concluded that many of the Union's allegations of bad faith have no substance or could not be sustained by the evidence.

The Union first alleged bad faith as a result of the College's "failure to hold the monthly meetings promised in the Memorandum of Agreement." There is absolutely no substance to this allegation. The Memorandum of Settlement did contemplate "monthly meetings" between IIIIMIIIIM and the Chair. This was a

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laudable objective, designed to help them both understand each other, facilitate success and avoid difficulties. In the beginning, this was achieved. However, as time progressed, the aim of the monthly meeting monthly first became difficult to arrange because of many other demands and vacation schedules. Thereafter, as criticisms were leveled against the Grievor and situation became even more strained, the Union itself began to question the utility or advisability of the meetings and stopped asking for them. There is no evidence to indicate that the College ever refused to hold one of these meetings. Therefore, the failure to abide by the strict terms of the Memorandum seems to be more a matter of consensual default, rather than an act of bad faith.

The Union alleged that College acted in bad faith by failing to provide performance appraisals every four months as prescribed in the Collective Agreement for probationary teachers. Failure to abide by this provision has, in other cases, been considered as evidence of a failure to allow a probationary to "do their best" when it was shown that they were given no adequate feedback about performance concerns. However, the Union and the Grievor both acknowledge that the Collective Agreement's four month rule for the delivery of performance appraisals to probationary teachers was relaxed in this case by mutual consent or at the request of the Union itself. Indeed, the College's attempt to deliver one appraisal was delayed for several months by the Grievor and the Union. Further, the evidence shows that some of the delays in delivery of the appraisals were the result of the Grievor choosing not to meet with Ms. Foulds at the requested times. Finally, it is painfully obvious that the Grievor was continually being put of notice about the College's concerns about her performance. If the purpose of the performance appraisal is to advise the employee of the College's concerns or expectations, that was achieved in this case without the formal appraisal. Ms. Foulds admitted that she could have improved her communication skills with the Grievor, but the Grievor was well advised throughout about the College's concerns. Therefore she was not prejudiced in any way by failure to deliver the appraisals according to the strict terms of the Collective Agreement. Accordingly, this issue does not support a finding of bad faith.

The Union also asserted that it was bad faith to keep "resurrecting" issues after they had been resolved. It is true that many issues kept being repeated in the College's performance appraisals and letters to IMMO. However, performance appraisals are, by definition, a documentation or summary of the previous periods' achievements and problems. It is certainly within management's prerogative to raise issues in the appraisals even if they were discussed and/or resolved in the relevant periods. Similarly, letters of reprimand are designed to bring home to an employee that specific conduct is jeopardizing their continued employment. It is actually fair and advisable for an employer to record past and present concerns in such letters. Therefore, the repetitious allegations cannot be said to be untoward or inappropriate.

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The Union has asserted that the nature and variety of the teaching assignments given to the Grievor and the "inappropriate manner" in which her workload complaints were handled constitute bad faith. This is a very difficult issue because the uncontradicted evidence was that the Grievor was the only probationary teacher to have had so many different program assignments. There is no question that the hardest term for a teacher is when one first delivers a course. The substance of the Union's complaint is that the differing programs and the quantum of work assigned to her made it too difficult for her to "do her best." However, for several reasons, we cannot conclude that this issue reveals bad faith. First, the Grievor reiterated that while her "first love" was the RN program, she welcomed the challenge of other assignments. It must also be recognized that the Grievor's reinstatement in January 2002 necessitated an immediate assignment of classes when all other full time faculty had been SWF'd for that term. Therefore, it was inevitable and understandable that the Grievor would or could not be returned to her first choice of courses at that time. The next reassignment the following term is more difficult to understand and may well have added to the Grievor's stress levels. However, it was also established that the department had chosen to promote flexibility and cross-disciplinary skill sets. Other faculty members were being given new assignments and voicing similar distress. It may be that other probationary teachers were not moved as much as the Grievor. However, it has not been suggested that any other probationers had to be accommodated with new assignments after a reinstatement at the beginning of the Winter term. Perhaps another manager would have found assignments for someone like the Grievor that would not have caused so much stress. Perhaps that would not have been possible. But given the basic management right to assign work and the fact that her ultimate workload complied with the Collective Agreement, it cannot be concluded that bad faith has not been proven on this issue.

The quantum of work itself must be addressed. 10111•111•1111111 said repeatedly that she found the work-load "overwhelming" and the Union alleged that this indicated the College's bad faith. However, as outline above, it is clear that she had enormous difficulty coping with the demands of full-time teaching. The Collective Agreement has a detailed and sophisticated scheme for allocating and determining workload as well as a system to challenge excessive or unfair assignments. The Union was in close contact with the Grievor throughout this period, always offering her protection and support. Indeed, the evidence shows that it did raise some work-load concerns that were resolved with Ms. Fould's directly and quickly. On another occasion, the Union had to file a work-load grievance on behalf of limiesitra• and met with partial success at arbitration. The fact that the grievance had to be filed and taken to arbitration cannot itself indicate bad faith because this would mean any work-load complaint is evidence of bad faith. Indeed, Union witnesses revealed that workload grievance was not unique in this department. Other faculty, including those with regular status felt compelled to file similar grievances workload complaints, without alleging bad faith. Further, the fact that the Grievor's grievance met with

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only partial success means that we cannot conclude that only the Employer was maintaining an unsustainable position. At the end of the day, it must be recognized that the Grievor had a workload that complied with the Collective Agreement. She cannot now use that workload as the basis of a bad faith complaint. The appropriate forum to challenge work-load complaints is through the grievance procedure, not obliquely in a subsequent termination arbitration. The grievance procedure is designed to address problems as they arise and before they can fester into the kind of recurring lament that the Grievor expressed throughout this case. Accordingly, while the work-load issues certainly contributed to EMINIIIMMdifficulties, there is no evidence to support the conclusion that her ultimate work-load violated the collective agreement or that the College acted in bad faith by defending the work-load grievance at arbitration.

The Union also alleges that the College acted in bad faith by failing to allow MINHIMA,to be reassigned to another manager despite what was alleged to be "open hostility" from Ms. Foulds. There was absolutely no evidence of "open hostility" from Ms. Foulds. No Union witness offered any evidence to support this allegation. The only evidence of anything that comes close to "hostility" actually came from Dean Cormier's recollection of IIM111.1. "glaring" at Ms. Foulds, but even that fails to establish hostility. The nature of the relationship betweenIIIMMO and Ms. Foulds was obviously strained and became more and more difficult as time progressed, but it cannot be said that Ms. Fould's exhibited any hostility towards the Grievor. Therefore, we conclude that there was no "open hostility" as alleged. However, that leaves the question of whether the College should have responded to the Grievor's plea to be transferred away from Ms. Foulds? Perhaps this would have been a good idea. We were never told if this had been given any serious consideration after the request was put to the President. We were not told about any operational reasons for resisting her obvious desire for a transfer. However, there is no requirement to grant a transfer request. The President advised the Grievor to deal with her concerns within her own department and there is no evidence that she advanced the request any further or what, if any, consideration was given to the notion by the Chair. Therefore, we do not find that this allegation has been proven.

The Union alleges that it was bad faith to fail to take the Grievor's teaching excellence and other "positive contributions to the College" as a full- time teacher into consideration in assessing her performance. The College recognized that F - was a "good teacher." Colleagues have described her as "exceptional." The largest proportion of SWF'd hours relate to classroom teaching, preparation and student contact. Yet Ms. Foulds asserted that teaching is not the most important factor. This is more than a little surprising, but it is clear that the College did not consider the Grievor's success as a teacher as something that would outweigh its other concerns. The College did not also take into the consideration the positive testimonials from other faculty contained in the

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nomination for a teaching award that listed her contributions to the College and the faculty. This is particularly disturbing given that the College was alleging that the Grievor had not fulfilled expectations as a "team player" and alleging that complaints had been received from other "colleagues." However, non-teaching performance concerns are valid considerations when making a decision about a probationer faculty member's status. Non-teaching duties are requirements of full-time faculty and are recognized in the Collective Agreement and the SWF. Nothing prevents the College from taking other factors into consideration. If the task of the Board of Arbitration was to determine whether just cause existed for the termination, the inattention to or questionable weighting of teaching success may have been an important factor in the Union's case. However, our authority does not include a measuring or an assessment of the merits of the employer's considerations. We could disagree with its weighting of the teaching component and still uphold the termination. The College has shown here that it did factor in the Grievor's success as a teacher and simply felt that this was insufficient in light of the other factors. This was done rationally and with some regard to what the Grievor had achieved as a teacher. Therefore, there is no basis to consider the College's failure to give this factor more weight as evidence of bad faith.

The Union has alleged that the College acted in bad faith by electing to terminate the Grievor instead of exercising its "ample opportunity to discipline" when it felt that the Grievor's performance was not meeting expectations. In essence, the Union is claiming that the College could or should have implemented progressive discipline to bring home the seriousness of it's concerns. In response, the College points to the absence of discipline as a sign of its patience and good faith attempt to facilitate the Grievor's success. In particular, the College points to the fact that it did not take action against the Grievor after the preceptorship problem came to light. The only instance of "discipline" that could be said to have been imposed in this case would be the letter of reprimand. The rest of the time, management made its displeasure known through performance appraisals and counseling. The Grievor was never under any allusion that her employment was secure and she was well aware that she was fighting hard to remain employed. If the purpose of discipline is to advise an employee of management's concerns and to bring home to him/her the seriousness of inadequate performance, all that was accomplished in this case. Formal discipline would not have assisted the Grievor or the situation. The fact that discipline was not imposed speaks in the College's favour. It shows a restraint by electing to try counseling rather than impose sanctions. This is a legitimate approach to a probationary employee where it is in no one's interest to invoke discipline, grievance and arbitration when the whole point of the probationary period is to create a healthy foundation for long-term employment.

The Union also asserted that the allocation of the office space to the Grievor is a certain signal of bad faith. There is no question that the Grievor was assigned to a room that cannot be described as an "office." Instead it

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appears to have been a multi-utility space, housing everything from communal filing cabinets, to a microwave and a printer. The space was not conducive to study, work or student interviews. While the Grievor did request a move to that general area, there is no evidence that she saw or agreed to that space particular space before the move. The evidence also suggests that more appropriate alternative space was or became available, but she was not relocated despite her repeated requests. However, the College's evidence also made it clear that office space is a continual problem for the department. It is not clear why the Grievor was not moved, if there was in fact better alternate space available. However, we are very cautious about declaring that an unfavourable space allocation is an indication of bad faith. This is a sector where space, resources and facilities are often stretched to the limit and where competition for desirable space can invoke internal battles of epic proportions. Not all undesirable space allocations denote bad faith. They usually denote that someone is at the bottom of the pecking order within the department. That is, by definition, the plight of a probationary employee. Therefore, while we are troubled by the evidence regarding the Grievor's room assignment and we sympathize with her unhappiness about the working conditions, we cannot conclude that her assignment demonstrates evidence of bad faith.

Therefore there are nine allegations of bad faith have not been met the Union's onus of proof. We recognize that individual matters in and of themselves may not indicate bad faith, but when taken cumulatively can paint a far different picture. However, where there is no substance or no legal basis for the individual complaints, the volume of complaints similarly cannot build a case where no foundation exists.

F) Conclusions

Where does all the forgoing analysis lead? There are several conclusively proven factors that militate against consideration of the Grievor as a long term employee. The Grievor's neglect of her proctorship duties, her refusal to meet with the Chair to discuss a specific student concerns and her unwillingness to accept any criticism in these areas are valid reasons for concern. Further, and perhaps most importantly, the Grievor herself repeatedly testified that she was overwhelmed with the workload. She found it almost impossible to prepare for classes and keep up with the other faculty responsibilities. She required a lot of support to deal with the basic issues of course administration and delivery. This is not an employment offence and she could not be disciplined or even faulted for seeking or needing so much assistance. However, an employer need not show that there was a strong or even fair reason to decline to continue a probationary employee's probation. The employer only has to show a rational reason for its decision. In this situation, despite the improper considerations that were components of the decision, we are left with an employee who had difficulties managing her workload in a system where the quantum of work is limited by the collective agreement. We also have this same employee neglecting professional

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responsibilities, refusing to meet with her Chair and continuing to take no responsibility for these errors. These factors alone would amply justify the termination of a probationary employee because they send strong signals that the long term prospect of a successful employment relationship is probably impossible.

When all is said and done, if the College's decision is sustainable on the basis of its own rational, it is difficult to find that its conclusion was arbitrary or in bad faith. We accept Dean Cormier as a credible witness. She was the effective decision maker and recommended the termination. She did not claim that there was a triggering incident or that there was one definitive factor. She simply relied on the information she had received from the Chair, correspondence and her own meetings with the Grievor. Then, at a point that a decision had to be made about assigning classes for a new semester, she concluded that the situation should not be continued. The ultimate reasons she gave for deciding upon letting the Grievor go were:

"Despite being told to meet with her manager for proper authorization, she still took a PD day without proper authorization."

"Using poor judgment in choosing not to attend the curriculum meeting." "Having a great deal of trouble meeting and discussing academic matters with

her manager." "Failing to follow College procedures." "Failing to show an understanding of the importance of team work." "Failing to show a better understanding of the critical elements of full-time

requirements."

Only the first of these conclusion has been discredited. The remaining conclusions can be said to have a rational basis. We may or may not agree with her conclusions or the College's weighing of the importance of teaching vs. non- teaching duties. But non-teaching responsibilities remain as valid considerations in the assessment of long-term status.

Whether the Burrows memo was the unintended trigger for the decision to terminate or whether it innocently prompted the realization that there was no improvement in the situation is of no great import. Only a regular status employee is entitled to the protections of just cause where the employer would have to establish a culminating or serious incident to justify a discharge. However, as the cases cited above establish, the College only has to have a rational basis for concluding that it did not want to confer regular status on this probationary employee. The College did not need to show that a new problem had surfaced or that new misconduct had occurred. A lack of improvement over a problematic probationary period is sufficient to sustain a termination.

There is very little that an employer has to establish to justify the termination of a probationary employee. It certainly does not have to prove

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every employment concern that it raised with the employee or alleged at the hearing. It only has to establish that there was a rational basis for the termination. There was sufficient evidence of problematic conduct in this case to support a finding that it was reasonable for the College to conclude that she had not and could not meet its reasonable expectations. That is sufficient to justify an employer's decision to terminate a probationary employee. See Reena Foundation and OPSEU, supra.

What makes this case interesting and difficult is that we have a mix of rational reasons and unsupportable assumptions. Those unsupportable assumptions certainly caused the Grievor and the Union a great deal of anxiety and difficulty. They also clouded this hearing with confusion. But it cannot be said that any of those issues had a causal effect on the performance problems that were ultimately proven. If a nexus between the College's failure to consider any of the Grievor's explanations and the Grievor's performance difficulties had been proven, this would mean that the Grievor was not given the opportunity to "do her best" within the probationary period. But the connection does not exist in this case between the nature of the College's arbitrary or bad faith conduct and the Grievor's failings. This does not mean that an employer can treat a probationary employee arbitrarily or with bad faith and still have a termination upheld. It simply means that where there are valid employment reasons to terminate a probationary employee, arbitrary or bad faith conduct that is not linked to those reasons will not void an otherwise rational decision.

On the other hand, there has to be a consequence to the arbitrary and bad faith treatment. The evidence makes it clear that the groundless assumptions and arbitrary conclusions resulted in a great deal of stress to the Grievor. She and the Union spent a great deal of futile effort trying to remove the unfair allegations from her documentation. She is entitled to be treated and judged in a non-arbitrary way and the resulting stress to her must be considered to be completely foreseeable. This stress did not preclude her from performing well as a teacher, nor did it impact on the areas where her performance was problematic. However, the evidence demonstrated that she endured distress, stress and worry as a result of having to respond to or deal with the allegations and treatment that we found to have been affected by bad faith or arbitrary considerations. These injuries were foreseeable and are compensable. They arise directly from the breach of her contractual right to be free of arbitrary and bad faith treatment. Accordingly, we award her $7500.00 by way of compensation. This award is not punitive damages; it is designed to compensate the Grievor for the breach of her contractual rights. It should be recognized as a signal that there are financial consequences for an employer's failure to abide by its contractual obligations.

In the end, we must conclude that the decision to terminate should be upheld because there were valid performance related concerns behind the College's decision. This should not be read as a victory for the College. It has

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lost a person who some considered to be an excellent teacher. Based on the evidence presented, the Chair acted arbitrarily and in bad faith by leveling accusations without foundation, turning a blind eye to evidence before her and operating on the basis of unsupportable assumptions. These unfortunate conclusions reflect poorly on the College and have prompted the compensation award. Accordingly, although the Grievor will not be reinstated, no one has "won" this case.

We remain seized with regard to the implementation of this Award should the parties require further assistance.

DATED at TORONTO this 24 day of July, 2006.

"Paula Knopf" Paula Knopf, Chair

"D.A. Pearlman" I concur Employer Nominee

"Pamela Munt-Madill" I concur Union Nominee

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