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HomeMy WebLinkAbout1986-0914.Shiralian.87-11-10~EWLCREES ’ GRIEVANCE miEMENT Between: 0914186 Before: For the Grievor: For the Employer: IN TRE MATTER OF AN ARBITRATION , Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Hearings: l OPSEU (Manon Shiralian) and The Crown in Right of Ontario (Ministry of Government Services) R.J. Roberts Vice Chairman T. Traves Member A.G. Stapleton Member Sherril Murray Grievance Officer Ontario Public Service Employees Union R. Little Counsel Hicks Morley Hamilton Stewart & Storie Barristers and Solicitors January 30 1987 May 26, 1987 Grievor Employer DECISION In the grievance leading to this arbitration, the grievor-- who was a Probationer -- claimed that she had bean dismissed without just cause. The Employer responded that the termination of the grievor was a release rather than a dismissal, and accordingly the Board lacked jurisdiction to entertain the merits of the case. For reasons which follow, we have concluded that the termination was a dismissal and not a release. The grievance is allowed. 3 The events leading up to this proceeding took place at the Central Switchboard maintained by the Ministry at Queen's Park. This Switchboard is staffed by 13 to 14 Operators during the day and 4 to 5 Operators in the off-hours. On the day shift, the start times are staggered throughout the interval from 7:15 a.m. to 9~00 a.m. By 9~00 a.m., the staff of Operators reaches its full complement. According to Ms. J. Blundall, the Supervisor of the Central Switchboard, the grievor was recruited through an employment agency to act as the bilingual Operator. In this capacity, she was expected to perform the same duties as any other Operator and, in addition, provide French language service to Francaphonas whose calls ware transferred to her. The grievor commenced 2 employment on October 15, 1985. She was the only bilingual Operator on staff. Early on in her probationary period, the grievor developed some problems with absenteeism and punctuality. In the period October 15 to January 7, 1986, she was absent for a period of 4 3/4 days and late on 4 occasions. Us. Blundall testified that she felt these difficultias ware due to adjustment problems that the grievor was experiencing. This, apparently, was the first time that the grievor had performed the dutia's~ of a Switchboard Operator. Previously, she had bean a Receptionist. By January 7. Ms. Blundall decided to intervene. She called the grievor into her office to discuss her attendance and any other problems that the grievor was experiencing. In the course of this discussion, MS. Blundall drew the grievor's absenteeism record to her attention and advised her that she had to improve. According to MS. Blundell, the average rata of absenteeism for the Ministry was 11 to 12 days par yaar,which was significantly lass than the rate experienced by the grievor. The grievor's absences, she stated, placed an undue burden upon the other Operators because they ware sporadic in nature. It, apparently, was virtually impossible to replace Operators on a sporadic basis.’ 1 It does not seam from the evidence that this hardship was increased to any great degree by virtue of the fact that the grievor was the only bilingual Operator on staff. It seams that 3 In the course of this meeting, Ms. Blundell gave the grievor the following latter: - January 7, 1986 Ms Manon Shiralian 225 Markham Road, Apt. 1505, Scarborough, Ontario MlJ 3C6 Dear Manon: This will confirm the discussion'wa had yesterday regarding your attendance. As I mentioned to you, I am concerned about your absenteeism. Since your starting data oft October 15, 1985 at the Central Switchboard you have bean absent for a period of 4-3/4 days. This rata of absence is higher than the Ministry average and has an adverse effect on the service levels at the switchboard. In view of the fact that you are on a one year probation period it is expected that you maintain satisfactory attendance (i.e., a rata of absence due to illness not greater than the Ministry average). Failure to do so will result in dismissal. I will continua to monitor your attendance and an immediate improvement is both required and expected. Yours truly, Judy Blundall, Supervisor Central Switchboard As can be seen, this latter related solely to absenteeism. It did not mention punctuality. there ware not a great many calls per day which required service in French and there was an alternative, although imperfect, service to, which Francaphona callers could be referred when the grievor was not availabPe. 4 Following her receipt of this latter, the grievor dramatically improved her attendance. In the 7-month period from January to.August, 1986, the grievor was absent for only 5 days. .This was below the Ministry average. In fact, according to evidence lad by the Union only 2 people of the 27 to 28 employees in the office had a batter attendance record than the grievor. On the other side of the coin, however, the grievor's punctuality did not improve and she began to log a significant amount of time . away from her console for visits to the Employee Health Centre and medical or dental appointments. According to records compiled by Ms. Blundall between January end August, 1986, the grievor made 11 visits to the Health Centre which required her to be away from her console for over 9 hours in total. In the same period, the grievor was absent for medical or dental appointments on 8 occasions, for a total.of about 13 hours. On March 27, 1986, the grievor received hark first official performance appraisal. Ms. Blundall testified that she and the grievor went through this appraisal together. She stated that she told the grievor that she was doing wall as an Operator. It was noted that the grievor's attendance was still not acceptable but was improving and that her punctuality was "vary satisfactory". Ms. Blundall explained in her testimony that she made this comment to motivate and encourage the grievor to feel comfortable with being an Operator. In fact, she added, in the , : 5 few weeks preceding the evaluation meeting, the grievor's punctuality had improved. The meeting, she added, was positive in tone and the grievor seamed positive about the review. On cross examination, Ms. Bluqdall added that the grievor functioned wall as an Operator and there ware no real complaints about her work. Toward the and of April, however, Ms. Blundell seamed to adopt a harsher approach towards the grievor. On April 23, she ', sent to the grievor the following memorandum: April 23, 1986 MEMORANDUM TO: Manon Shiralian RE: Deferral of Merit A review of your performance including absenteeism (7.5 days since Oct. 15, 1986, has indicated that you are not meeting the raguiramants of your position. I am not prepared to recommend your merit increment and it will be deferred three months. Your attendance will be monitored and you are required to maintain satisfactory attendance (i.e. a rata of absence due to illness not greater than the Ministry's average.) Failure to do so will result in a recommendation to release you from employment. Judy Blundall Supervisor This latter hinted at concerns which ware broader in scope than absenteeism and notified the grievor that her merit increment would be deferred 3 months. Undoubtedly, the main concern of MS. Blundall remained attendance. She testified that when she gave the grievor the foregoing memorandum she -told her that her merit increase was being deferred because of attendance. This seams to be confirmed in a written recommendation which Ms. Blundall made to her Branch Manager, Ms. Gray, on May 15, 1986. In this document, MS. Blundall recommended that the grievor be retained as an employee but added, "I am still concerned about Manon's rata of t absenteeism." While there was no official record of her concerns regarding other aspects of the grievor's availability for work, Ms. Blundall testified that she also was concerned about the increase end frequency of the grievor's visits to the Health Centre and her punctuality. Regarding the latter, she stated that they had a number of informal discussions in which she informed the grievor that her poor punctuality should improve and that she was vary concerned to make the grievor a good and acceptable amployaa. MS. Gray, the Branch Manager, testified that she first discussed the grievor's record of attendance with Ms. Blundall at the time the decision was made to defer the grievor's merit increase. Later, ,in mid-May, when Ms. Blundell made her written recommendation to retain the grievor, Ms. Blundall advised Ms. 7 Gray that while absenteeism was still a problem she hoped that the grievor was going to turn around. Her next involvement-with the grievor, MS. Gray testified, did not come until early July, 1986. By this time, the grievor had received assistance from the Union. and was in the process of filing a grievance claiming reinstatement of her merit pay retroactively to April. Because Ms. Blundall was away on vacation, Ms. Gray took her place. There was a meeting which was attended by Ms. Gray, Ms.,% Youdan,, the unioh~steward; and Ms. B. McCormick, a representative from the Personnel Department. MS. Gray testified that when the grievor requested retroactive reinstatement of her merit, she countered by referring to the grievor's attendance and punctuality. She- recalled,. she stated, the grievor saying that it did not matter whether she was late because she either made up the time or had it deducted from her pay. Ms. Gray testified that she attempted to stress that this did not have any bearing upon her main concern, which was to provide an efficient high volume operation. She said that when the grievor was away from her console, the service level was adversely affected and moral? problems developed. According to Ms. Gray, she stressed to the grievor the importance of being in the office for her full scheduled shift and that as an employee was not meeting the requirements of n ? 8 her position if she was not available for scheduled work. On cross examination, Ms. Gray conceded that after this meeting, the grievor was only late on one day, August 0, when she was unavailable fcr an extended period of time at lunch due to an emergency. Shortly after this meeting, Ms. Gray sent to ,tha grievor the following latter: July 14, 1986 3 Mrs. Manon Shiralian 1111 Steele8 Avenue West, ADt. #604 Willowdale, Ontario M2R 3M9 Dear Mrs. Shiralian: Further to our recent meeting, this will confirm that your merit increase which was originally deferred to August 1, 1986 has now bean deferred for a further 3 months. Your improvement in attendance over the past two months is encouraging, however your punctuality has bean completely unacceptable. As you are aware, assessment of probationary staff for appointment to regular staff depends on performance and the ability to mast the requirements of your position. Regular attendance and punctuality are critical aspects in the assessment of performance. Your attendance and punctuality will continua to be monitored on a regular basis and will be taken into consideration when a decision is made regarding your appointment to the regular staff. Yours.truly Sharon Llewallin, Manager, Inquiry Services The letter advised the grievor that her merit increase was being deferred for a further 3 months and her attendance and 9 punctuality would be monitored and taken into account in deciding whether to appoint to the regular staff. Ms. Gray tastifiad that at the time, she did not consider disciplining the grievor for her perceived deficiancies in attendance and punctuality. She stated that she did not believe that the grievor was deliberately lata.or away from her console. Rather, Ms. Grey said, she felt that the grievor was not suited to the job. She felt that because of this, the grievor found it 3 difficult to get in on time in the morning. In her view, Ms. Grey stated, the grievor was one of those people who found it difficult to adjust to sitting for a full shift attached to a console. Because of the stress it put on her, Ms. Gray opined, the grievor had innumerable Doctors' appointments, visits to the Health Centre and incidents of lateness. Finally, when it cams time in mid-August, 1986, to give the grievor her ten-month performance review, Ms. Gray and Ms. Blundall reviewed with a member of the Personnel Branch the grievor's entire record of attendance, punctuality, Doctors' appointments, leaves of absence and visits to the Health Centre. Ms. Gray testified, "What we found was that the grievor started out with an attendance problem. Then her attendance improved and her punctuality fall off. Than, between July 14 -- when I wrote to her -- and her release, she began to visit the Health Centre frequently -- for an hour, 4.5 minutes, an hour and a half, etc. 10 From the time of the latter of July 14 to the time of her release on September 3, the grievor made 7 visits to the Health Centre. During the same time frame, Ms. Gray added, the grievor had bean to sea her Doctor on 3 occasions. It was concluded that the grievor was not meeting the raquiramants of her position and on August 19, Ms. Gray recommended release. In her testimony, the grievor flatly denied that her perceived difficulties with 'absenteeism, punctuality, etc., were .related to stress induced by being attached t'o a console for a full shift on every working day. She stated that during the period of her employment 8h.e encountered persistent dental problems and difficultias with an apparent hiatus. hernia in her digestive system. She candidly conceded that aver since she was small, she occasionally got severe sinus headaches and such headaches had caused some of her absences. But these headaches, the grievor stated, were not induced by the stress of being attached to a console. Rather, she said; some of the headaches might have been brought on by worry flowing from management's letters regarding the pracariousnass of her position. As to punctuality, the grievor testified that the first time that she heard that punctuality was a problem was in the meeting that she had with Sharon Gray in early July. Previously, the emphasis always had been placad.upon her rata of absenteeism in the first few months of her employment. As to the 4S-minute 3 t ? 11 period of lateness at lunchtime on August 0, the grievor stated that on that day, her husband's father flew in to visit from Iran and the immigration people at the airport had refused him a visa. When the grievor called, immigration put her on hold and kept her on hold for the entire 45 minutes. When she let her Group Leader know that she was tied up in this way, the grievor stated, Ms. Slundell advised the grievor that she would have to sign the late sheet for that period of time and make it up. As to the 6 to 7 visits to the Health Centre in August, the grievor testified that she suffered a severe~laceration of her finger at home. The next day, she went to the Health Centre and was advised that the cut was so deep it should have had stitches; They dressed the wound and told.the grievor to return to have the dressing changed on every other day. The grievor added that it was necessary to obtain permission from the Group Leader to visit the Health Centre and that on each occasion, she would wait until the switchboard was not busy before requesting and receiving permission to leave. As to her adjustment to performing the work of a Switchboard Operator, the grievor said that she enjoyed the work, and particularly enjoyed handling the French calls. She had no difficulties sitting for an entire shift, she stressed, and the job itself did not cause any of her medical difficulties. 12 We do not intend to review in detail the submissions which were made at the hearing by counsel. It suffices to say that our attention was directed to a sufficient number of the legion of release vs. dismissal cases which have passed through this Board to remind us of the principles to be applied in this area. Basically, the termination of a Probationer must be reviewed to determine "whether the Employer reasonably and in good faith exercised the authority in Section 22 (5) qf the Public Service Act to release [the probationer1 - . . ..and did not seek merely to * cloak a disciplinary discharge behind the release procedure." g Clarke and Ministry of Correctional Services, GSB NO. &i/82 (Swan), at p. 2. See also, Re Abdulla and Ministry of Municipal Affairs (1986), GSB No. 1103/85 (Verity), where the board reinstated an employee after finding that her purported release was not based upon a reasonable and good faith assessment of her performance. We find that the same result must be reached in the present case. For a reasonable and good faith exercise of authority to have occurred, there must have been a rational relationship between the observations made by management and the conclusion that was reached. It is not appropriate for management to leap to a conclusion that an employee has fai led to meet the requirements of his or her position. 13 There seems to be little doubt that the release of the grievor in this case was based upon the conclusion of management that the grievor was one of those people who were incapable of handling the stress of being attached to a switchboard console day after day. According to the evidence, this conclusion was derived virtually entirely from the attendance, punctuality, etc., record of the grievor. As far as this Board is aware, no effort was made to substantiate this hypothesis. The grievor was not even asked about it. There was no medical evidence to establish such a link. As far as the record iidicates, no effort was made to establish medical confirmation. -The grievor denied that any of her perceived problems was related to this kind of stress. Ms. Blundell indicated that there was no problem with the grievor's work, that she was capable of handling the job. And if we accept, as we do, the evidence of the grievor regarding the reasons for her visits to the Medical Centre and lateness in August, it must be concluded that management had no reasonable basis upon which to reach a different conclusion. The evidence simply did not establish any reasonable relationship between the grievor's difficulties and inability to handle the stress of being attached to a switchboard console. We were impressed by the evidence that when a perceived difficulty with attendance or punctuality was brought to the grievor's attention, there was a marked improvement. After being warned about her rate of absenteeism in January, the grievor , / , - 14 turned in a record of attendance which was better than all but 2 other staff members'. After being warned in July that punctuality was a problem, the grievor recorded only one technical incident of lateness. Her time away from her console for medical and dental appointments and visits to the Health Centre was adequately explained. Clearly, the grievor was a Probationer with the attitude and capacity to handle the job. Her release was not based upon a reasonable and good faith exercise of the authority of management under Section 22 (5) of the Public Service Act. . This leads us to the conclusion that the termination of the grievor was a dismissal without just cause. As was said in Re - Ferraro Andy Ministrv of Correctional Services (1984). GSB No. 373/84 (Delisle), "This Board can examine the process used by the employer and determine whether what it has chosen to characterixe as a release truly is such: if the termination is not a release it is a.dismissal and hence arbitral under s. 18 (2)(c) [of the Crown Employees Collective Bargaining Act]” a. at p. 4. See also Re Abdulla, supra, st p. 11. Accordingly, the grievor must be reinstated forthwith and compensated with interest for all lost wages and benefits. Her reinstatement shall be to the status of a Probationary employee with two months remaining in her probationary term. We ~11.1 remained seized pending implementation of the terms of this award. J, . ’ . - Y . . 15 DATED at London, Ontario, this 10th day of November, F&r- T. Traves, &mber L ‘$&&4 A. G. Stapleton, Member