Supervisor set secretary up to fail, but board refuses to order a penalty

Network North v. O.P.S.E.U., 2004 CarswellOnt 5932, 132 L.A.C. (4th) 93 (Ont. Arb. Bd.)

An Ontario Arbitration Board has found that a supervisor set up a receptionist to fail in one aspect of her duties, but no redress is required other than the board’s declaration of finding.

Carole Anderson was removed from her temporary position as a full-time receptionist for Positive Steps and returned to her permanent position as a receptionist in a different section of the community mental health facility. She was removed because of an inability to adequately transcribe clinical notes and patient reports dictated by physicians and sent to her location.

The union representing Anderson acknowledged she had difficulties with this aspect of her job, and that the employer had devoted considerable resources to improving her performance. Nonetheless the union filed a grievance on Anderson’s behalf, claiming her supervisor had made derogatory comments about her before her arrival.

The board heard from six employees that after Anderson was awarded the position, but before she started, the supervisor portrayed her as someone who was disruptive and could not be trusted. A registered nurse and former union representative heard about these comments and spoke to the supervisor about them. She said the supervisor told her she didn’t want Anderson at Positive Steps, that her weak area was dicta-typing and this was a way to get rid of her.

None of the union’s evidence was challenged even though the supervisor was outside the hearing room throughout the proceedings.

As a result, even though the board was satisfied there were legitimate issues with Anderson’s performance of her transcribing duties — the board noted the union had been able to establish she was not as bad as the employer maintained — it found that on a balance of probabilities the supervisor had succeeded in her stated objective of bringing about Anderson’s failure on the job.

The board upheld the grievance, but held its declaration was all the remedy that was required. It was a temporary position, and when Anderson was returned to her permanent position she suffered no loss of wages or benefits. The experience was upsetting to her, but the finding will provide adequate redress and help bring about closure, ruled the board.

There was a dissenting opinion on the overall finding of the board.

A board member said the employer had gone to great lengths to improve Anderson’s transcribing abilities; that it made no sense for the supervisor to seek Anderson’s return to her previous duties as she would still be her supervisor regardless; that it wasn’t the supervisor but the director of clinical records who had found Anderson’s work unsatisfactory; and that the collective agreement between the union and the employer contained very strong “management rights” language as it applies to work performance.

Another board member agreed with the overall finding but didn’t agree the remedy was adequate. In view of the gravity of the supervisor’s conduct a more strident remedy would have been appropriate, the member contended.

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