CMHA worker terminated after lone hearsay allegation of misdeed

Management ‘blatantly disregarded’ agreement: arbitrator

CMHA worker terminated after lone hearsay allegation of misdeed
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After a group was set up on Facebook of disgruntled former employees of the Canadian Mental Health Association (CMHA) disparaging the employer, its executive director was advised that a current employee was an active member of the group.

Leslie Ferraro worked as a transition-house worker for the CMHA for more than 17 years at Kootenay Haven Transition House in Cranbrook, B.C. but she was abruptly fired on April 25, 2018 for belonging to the group.

The letter of dismissal listed multiple reasons for the firing: “insolence, insubordination, breach of the respectful workplace charter, breach of the code of ethics, breach of the oath of confidentiality and breach of trust,” and was written by Carey Fraser, executive director.

On April 24, Ferraro began her regular night shift at 10:15 p.m. At 8 a.m. the following day, Ferraro met with supervisor Lori Stolson who asked her if she belonged to the negative Facebook group.

Ferraro said that about a week previous, she was added to a Facebook chat or Messenger page without her consent. The page was up only for one day, she testified, before it disappeared.

Ferraro was asked to show Stolson her cellphone to prove that she was no longer part of the group. After Ferraro refused, Stolson phoned Fraser and placed her on speaker phone inside the meeting room.

Fraser and Stolson both repeated the request and Ferraro again refused. Her request to have a union steward present was denied.

“She is a member, she has participated in contacting funders, she had an active participation,” testified Fraser.

(A number of employees are currently being sued by the association, claiming defamation. Ferraro was named in the suit.)

Ferraro did not ask for union representation according to Fraser but when asked why she didn’t allow a union member to attend the meeting, she said, “I don’t recall.”

After the brief meeting ended, Fraser typed a termination letter from a template and emailed it directly to the union, the B.C. Government and Service Employees’ Union (BCGEU). The note said that, “effective immediately,” which was 8:15 a.m., Ferraro was dismissed.

Ferraro wasn’t notified about the letter and she went home after her shift ended. Later that day, Ferraro arrived back for her evening shift and she was advised about the termination by Fraser and Stolson.

Arbitrator Marguerite Jackson upheld the grievance and ordered CMHA to pay $20,000 in punitive damages to Ferraro and for her to be paid wages, lost overtime and potential overtime statutory holiday pay between April 25, 2018 and April 18, 2019.

“While the employer argued there were no collective agreement breaches, in my view, there could not be a clearer case. These two management representatives blatantly disregarded the collective agreement again and again and again. Fraser’s flagrant contempt for (Ferraro’s) rights to advance notice and to have a steward present for both interviews cannot be justified in any way. Her conduct was high-handed and reprehensible as well as contrary to an employer’s obligation to act in good faith when misconduct is alleged,” said Jackson.

As well, CMHA was ordered to repay “Service Canada for the applicable amount of El income received by (Ferraro) during the period of her claim.”

The conduct of the executive director was particularly egregious, according to the arbitrator.

“Even after Fraser acknowledged that she had no direct knowledge of (Ferraro) being involved with A Community United [the title of the Facebook chat group] except for the inclusion of her diary entries in the package, she claimed in her testimony that (Ferraro) ‘is a member’ who ‘had an active participation. Fraser continued to maintain unfounded allegations even at the hearing.”

Reference: Canadian Mental Health Association and B.C. Government and Service Employees’ Union. Marguerite Jackson — arbitrator. Jamie Lalonde for the employer. Ken Mooney for the employee. July 30, 2019. 2019 CarswellBC 2433

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