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HomeMy WebLinkAbout1986-0290.Lee.87-06-05290186 IN THE MATTER OF AN ARBITRATION under THE CROWN EWLOYEES COLLECTIVE BARGAINING ACT B&+.X-e THE GRIEVANCE SETTLEMENT BOARD Between: Before: Ms. A. Barrett Mr. I. J. Thomson Mr. A. G. Stapleton Vice-Chairman Member Member For the Grievor: B. Herlich Counsel Cavalluzzo, Hayes 6'Lennon For the Employer: v. aster Staff Relations Co-Ordinator Ministry of the Attorney General Hearing Date: OPSEU (Claire Lee) -and- Grievor The Crown inRight of Ontario (Hinistiy of Attorney General) Rmploye~ March 23, 1987 DECISION The grievor was hired on a fixed term employment contract as a Relief Clerk 3 General (Courtroom Clerk) on January 9th, 1986. Her initial dontract had an expiry date of March 31st, 1986, the fiscal year end for the Ministry. Before the expiry of this contract, on February lOth, 1986, the grievor entered into another similar contract with an effective date of April lst, 1986, and an expiry. date of March 31st, 1987. Again, this contract was framed to encom- pass the fiscal year of the Ministry. Pursuant to this contract the grievor became a member of the unclassified staff pursuant to Section 8 of the Public Service Act. - She was to work no more than twenty-four hours per week Andy her contracts"stipulated: "This ~contract of,employment may be ', terminated by either party upon giving one week's notice of such intention...' Thus the grievor is .a public servant in the unclassi- fied service and therefore subject to 'Article 3.12 of the Collective Agreement which has a stipulation similar to the quoted phrase in her contract, allowing the Ministry to terminate her on one week's notice,~ or pay in iieu thereof. Article 27.8.2 of the Collective Agreement applies to an unclassified employee and gives her the right to grieve a "dismissal In addition, the Crown Employees Collective Bargaininq Act, which governs these parties and this Collective Agreement, gives an employees the right to grieve a dismissal as being unjust under Section 18(2) (c) and to take the matter to arbitrati, Board pursuant to section 19. I on before this I i.. f, - 2 - The grievor was "terminated" or "dismissed" on March 19th, 1986, for reasons set out in a letter from the Assistant Crown Admin- istrator, Mr. T. Pasch, dated March 20th, 1986, as follows: "Claire Lee P.O. Box 246 Wakefield, Quebec JOX 3G0 Dear Claire: As per our discussion of March 19, 1986 your contract will be terminated effective March 21, 1986. Unfortunately, your work (re: paper work and computer update) did not improve to the standard required to effec- tively carry out your duties. You will be receiving one weeks pay in lieu of a week"s notice. Yours truly, Mr. T. Pasch Assistant Court Administrator and Justice of the Peace," The:Employer says that the grievor was terminated.due to demonstrated deficiencies in her work performance,pursuant to the terms of her contract and Article 3 of the Collective Agreement which allow either party to terminate the contract upon one week's notice or pay in lieu thereof. The Employer says this was not a disciplinary termination or dismissal and therefore the grievor is limited to the remedy of.one week'.s pay. The Employer argues in. the alternative that if we find the grievor was dismissed for cause, rather than terminated pursuant to the terms of her contract - 3 - we should find that the Employer's cause was just in that the grievor': inability to perform the job satisfactorily was grounds for her dis- missal. The Union urges upon us the view of differently constituted members of this Board expressed in Ambrey 429/84 and approved in principle in Gibson 634184 and No&h, 767185: It appears now to be settled by this Board that "dismissal" for the purposes of the Act and the Collective Agreement, may be defined as an act or - decision of the employer, having as its basis some conduct or condi- tion of the.employee which severs the employment relationship. The differentiation was stated in Ambrey as follows: "Thus where an Employer tries to bring an end to.the employment by reason of a desire to react to conduct on the part of the employee, this must be viewed as a dismissal, rather than a mere termination. Further, conduct can be non-culpable and legitimately warrant a dismissal in situations such. as inno- cent absenteeism or inability to perform the job. Further where no inappropriate or unsuitable conduct is alleged and the employment is ended, the onus is on the employer to establish that there has been a bona fide termination. A termination can then be viewed as the.ending of an employment relationship for reasons that are other than those resulting from the conduct of the employee." We find, on the facts of this case, that the grievor was dismissed for cause, and we now must determine whether or not it was just cause. The position of the Courtroom Clerk is a responsible one as set out in the job description filed as Exhibit 5 at the Hearing: _ .~ _. - 4 - " 3 . SUMMARY OF DUTIES AND RESPONSIBILITIES 1. Acts as Courtroom Clerk by: - collecting the current days docket and informations; - checking to ensure that the files for the daily docket are in order and all necessary papers and reports are present on the file prior to Court: - assisting regular staff clerk in high volume Criminal Courts; - acting as backup clerk in Criminal Courts in an emer- gency or as required, i.e., ensuring Courtroom is prepared for Judge, escorting Judge into Court and opening same, ensuring the Judge has all the files for the day's cases before him in proper order; - speaking to defendants before Court, arranging for appearance in bilingual Court if required; - advising Justice of the Peace presiding or Court Office of any problem with case loading, documentation, etc.: - ensuring the Court is ready to receive the Justice of the Peace; - opening, recessing, and adjourning Court: - calling cases, arraigning the accused, administering oaths and cautions, asking~pleas, ensuring witnesses are present and swearing same, setting trial dates: - maintaining order and discipline in the Courtroom; - recording the disposition of each case on the Courtroom docket and information, and keying disposition into the ~computer; - ensuring that all informations are returned to Court Office; -'performing related duties.as required or as assigned." 4. Skills and knowledge required to perform the work: Related clerical experience with a knowledge of the Regulations, procedures and practices governing the operation of the Provincial Court (Criminal Div.). Ability to deal tactfully and effectively with the general public,. members of the legal profession and judiciary. Good communiration skills."... 6. Class Allocation Relief Clerk 3 General 7, Performing routine Courtroom Clerk duties of some complexity requiring a background knowledge of' local practices and Court procedures. -5 - Judgment is required in ensuring that all files'for the dail} docket are in order and present prior tog Court, in ensuring that order and discipline are maintained in the Court and in ensuring that the Court is ready to receive the Justice of the Peace. Supervisors are notified of problems regarding case loading, documentation etc. and of any doubtful matters." Essentially a Courtroom Clerk spends 75 to 80 percent of I her time in the Provincial Court (Criminal Division) and the remaining 1 time assembling her documents and dockets before Court and entering the case dispositions into the computer after Court. It was known to the Employer prior to hiring the grievor that she had no knowledge of the Regulations, procedures and practices governing the operation of the Provincial Court (Criminal Division) as set out in the job description, but it was expected she would learn all of these matters on the job. Hoer training consisted of being assigned to a regular Courtroom Clerk for two-and-a--half weeks of part-time employment and thereafter, being assigned to work on her I own. There is no training manual for Courtroom Clerks, but various aids are available in the office such as a binder of forms that must be completed by the clerk depending on the disposition of the case by the Judge, a blotter outlining some of the key provisions of the Criminal Code, the Provincial Offences Act and the Youns Offenders ACt. Basically, new clerks are expected to ask questions of_~the other clerks or the supervisors in the office as the need arises. The pro- blem in this situation, as outlined by the grievor, was that generally everyone was too busy to answer her questions and gave her only~partia ~ I -6- or expedient answers, but did not explain to her the overall principles involved. By February lOth, 1986, when the grievor entered into her second contract of employment, Mr. Pasch had no concerns about her abilities. He says that by the middle of February certain errors she had made had been brought to his attention, but he wasn't overly concerned, because he expects neti clerks to make mistakes. He says he spoke with the grievor very briefly at her desk about some computer errors she had made. Mr. Pasch also thought, although he wasn't positive, that he had had a meeting with the grievor in his office at the end of February, where he drew to her attention some more errors After this grievance was launched, Mr. Pasch went over the grievor's old Court dockets and found certain errors which he brought to the attention of this Board at the Hearing. However, he was unable to ‘. say whlch,,of these errors he had'pointed out to the .grievor exkept .' for one regarding the improper transcription of the amount of a fine. Mr. Pasch had no record of these meetings and he thought they were quite brief. Mr. Pasch did not suggest further training for the grievor and expected that other people in the office were there 8 and available to help her out with problems in that area. Apparently the grievor had some problems keying the infor- , mation regarding dispositions into the computer at the end of~~the day. For security reasons a clerk feeding information into the computer cannot correct or amend the information if she makes a , I -7- mistake. Her only recourse is to report the mistake the following morning to the bookkeeper who does a check on the information, and have her correct the errors. The grievor says she left several notes for the bookkeeper regarding errors she knew she had made and these errors were subsequently corrected by the bookkeeper. On reviewing the Court dockets presented in Court by Mr. Pasch the grievor felt that she had reported approximately fifty percent of the errors to the bookkeeper. Mr. Pasch had no personal knowledge of this and the bookkeeper was not called to give evidence. Apparently the grievor did not press for further training and further help, even though she felt she needed it. Everyone she turned to for help seemed to be too busy to give her much time and could only answer the immediate question or problem, but did not take the time to explain to herthe context of the jobs she was required to do. For instacne, she-says that she was only told which buttons to press on the computer and not told about the overall operation of the compute'r. She was faulted for describing.a dispo- sition as a probation order, but failing to include the fact that a suspended sentence was a precondition to the probation order. She did not know this. Finally, on March 14th, 1986, the grievor had what she described as "a very bad day". She was dealing with a complex Court schedule; had to correct some errors made by a previous Clerk; and neglected to include in a Committal Order an important condition of - 8 - that Order. The presiding Judge in her Court was upset about her errors that day and he spoke to the grievor about it, as well as a senior clerk, and Mr. Pasch. On her next regularly scheduled work day, which was March 19th, 1986, the grievor was dismissed by Mr. Pasch. He reviewed with her the events of March 14th and some computer errors-he had disco- vered in the records for the first two weeks of March. The grievor expected to be reprimanded about her performance on March. 14th when Mr. Pasch called her in to his office, but she was totally taken aback by the termination, which in her view came without warning or preparation. The grievor had assumed all along that although she was having problems learning the procedures and the termino.logy; that it would become clear to her through time.and experience. She says that Mr. Pas,ch only pointed..out errors to her' on two occasions: one relating~to the fine that Mr. Pasch recalled and on another occasion relating to a situation where the grievor was proved to be right about the disposition she had recorded. She did not see these corrections as warnings or reprimands, and they were certainly not documented as such in any way. The Employer stressed the importance of a clerk being accurate and complete in her records at all times, because of the possible adverse effects on the accused persons. We were very sur- prised in view of this, that the grievor was essentially left to . . . -- - 9 - train herself on the job. The grievor had no background knowledge of the regulations, procedures and practices governing the operation of the Provincial Court (Criminal Division) and' it was unrealistic of management to expect her to be able to grasp all of the refine- ments of her duties after two-and-a-half weeks of part-time on-the- job training. The pointing out of errors by Mr. Pasch and by the Judge on March 14th was sufficient to alert the grievor to .the fact tilat she was not fully competent in all aspects of the job, but no viable alternatives were offered to her in order that she could more fully understand her duties. The grievor was never counselled on how to improve her work performance, she was not sufficiently trained, and she was not given notice that failure to improve would lead to termination. I .In all of the circumstances we have determined that the grievor was dismissed without just cause. We must now turn to the issue of remedy and this causes some concern. The Ontario Divisional Court has made it clear in its judicial review of the Miller and MacPhail case (530/82 and 521/82) that we are not limited in our remedy to one week's pay or one week's notice by Article 3.12 of the Collective Agreement when we find that this was a dismissal without just cause. The Court found that the Crown Employees Collective Bargaining Act, provides us with discretion to fashion a remedy for the grievor in her particular circumstances. :. . - 10 - The usual remedy in cases of unjust dismissal is reinstate- ment. However, the grievor was only a contract employee and her second contract expired on March 31st, 1987. We have no juris- diction to require the Employer to grant her a new contract which would be tantamount to making an appointment to the Public Service. In our view damages is the appropriate remedy here and we order that the grievor shall be compensated.by way of damages in the amount of her salary for the full term of her contracts, minus any income received by her during that period. In addition, Employer records shall be amended to reflect. the fact that her dismissal was found to be without just cause and that damages were awarded to her. The Board shall retain jurisdiction in the event' the parties experience any difficulty in implementi.ng thisde&sion. DATED at Toronto this, &h day of June: 1987. Anne Barrett - Vice-Chairman ,:‘, xS55~~...~.~.ccLJ . 3LJy--Thomson t/- - Union Member &Ii&&, J&&L A.G. Stapleton - Employer Member . ._