Cause can't be removed from initial decision: Arbitrator

Worker fired after multiple incidents

A senior case manager has been reinstated after a termination despite four separate client complaints and two violent threats that were made against him , an arbitrator ruled.

Jocelyn Ouellette was a case manager with WorkSafe NB, the crown corporation that oversees rehabilitation and compensation for injured workers in New Brunswick. 

A violent incident report was filed in December 2014 after a client allegedly threatened Ouellette. Police were called, but no further action was taken. Later when Ouellette’s supervisor, Nancy Boutcher, spoke to that client, she was told that Ouellette had made fun of him.

The next month, two other clients complained of abusive language from Ouellette. One of those clients was also the subject of another violent incident report. 

When a fourth client complained about Ouelette,  Boutcher  decided to escalate the situation by contacting her supervisor. Boutcher’s management style was to coach workers regularly rather than document a discipline plan, but she felt the need to escalate at that time with WorkSafe’s director of human resources, identified as "SD" in the arbitration decision.

This was quickly followed by another incident. 

“On Feb. 9, 2015, Jocelyn Ouellette revealed that he had made an inappropriate remark to one of his clients. The comments, as indicated in his termination letter, were to the effect 'Do you think your employer is going to pay a little negro to follow you around?'“

Immediately after this statement, Ouellette apologized to his superior. A June 1, 2015, disciplinary letter from Boutcher detailed the various complaints received, with one saying, he “fait des menaces” or made threats, as well as mocked at or laughed at clients.

“Further, I have observed hostility in the way you speak about the claims you manage and I question your ability (to) make unbiased and fair case management decisions,” Boutcher wrote. 

Sensitivity training was discussed during a meeting and Ouellette agreed his demeanour had to change.

However, the matter was then raised with the WorkSafe CEO, identified as "GA," and a decision to terminate his employment was made. Oulette was terminated June 8 with cause, but cause was removed in November 2015 as the reason for dismissal. 

Ouellette grieved the matter (as a non-unionized public servant), 10 months' severance was then paid to him in November. The employer used this as evidence of“reasonable notice.”

When he met with the vice president identified as ShD, Ouellette said  he didn’t realize the situation was so dire, and that he could be terminated.

He said he should have been given a warning letter, but none was given.

Ouellette was also concerned that the racist comment incident was repeatedly referenced by Boutcher, and it was "blown out of proportion.”

The employer argued that the reason it removed the cause reason was so the four complainants, who were injured workers, would not have to testify and be put into an adversarial position. 

The cause letter stated, “It is clear to us that you are a continued risk to our business and reputation and you cannot provide our clients with fair and unbiased case management.”

Arbitrator Guy Couturier disagreed and ordered Ouellette reinstated. 

“I am satisfied based on the exhibits referred to above, as well as the testimony of the employer’s witnesses, that Jocelyn Ouellette’s discharge was grounded upon ‘cause.’ The evidence establishes a prima facie case of discharge for ‘cause’."

“In my view, once the grievor challenged the grounds for the employer’s dismissal, by presenting a grievance under section 100.1(2) of the Public Service Labour Relations Act (PSLRA), this gesture crystallized the issue,” said the arbitrator. 

“The evidence is that the employer did nothing concerning the comments, in the form of reprimand, discipline or corrective actions following Feb. 9, 2015. Nothing came of it until June 1, 2015. Ms. Boutcher had notified her superior, ShD, of the incident following Feb. 9. 

It was done however in a manner that the grievor was not personally identified. It would have been reasonable to direct the grievor to undergo sensitivity training at that time. It may have contributed and perhaps avoided his later communication problems with the other clients, who eventually raised concerns,” saidthe arbitrator.

In making his decision, cause was confirmed  as  the reason for termination. 

But Couturier attached conditions. “Jocelyn Ouellette is ordered reinstated to his former position as senior case manager with WorkSafe, effective June 8, 2015.

He is not however to assume active or unsupervised case management until he has been provided by WorkSafe at its costs, and has successfully completed, training focused on sensitivity of the public that WorkSafe does serve and has further successfully completed training, or coaching, on how to effectively communicate with assigned clients.”

References: WorkSafe NB and Jocelyn Ouellette. Arbitrator — Guy Couturier. André Richard for the employer, Daniel Leger and Dominic Caron for the employee. April 26, 2016. 


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