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HomeMy WebLinkAbout1986-2165.Arora.88-03-10Between Before IN THE MATTER OF AN ARBITRATION Under THE CROWN EMNPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (S. Arora) For the Grievor For the Employer - Hearings Grievor And The Crown in Right of Ontario (Ministry of Environment) Employer R.L. Verity, Q.C. Vice-Chairaan I.J. Thomson Member I. Cowan Member M. Cherney Counsel Gowling & genderson Barristers & Solicitors K. Adams Staff Relations Officer Ministry of the Environment December 10, 1987 February 10, 1988 ; -2 - DECISION Surjit Kumar Arora is a Maintenance Electrician (Classification - Electrical Maintenance Technician) employed at the Ministry's Lakeview Sewage Plant in Mississauga, Ontario. On January 26, 1987, Mr. Arora filed a grievance which alleged that his July appraisal was carried out "contrary to the governing principles and standards". The remedy requested was a new appraisal. At the hearing, the Employer raised the preliminary objection that the grievance was filed in an untimely manner and therefore was inarbitrable. The Board dismissed that objection and proceeded to hear the merits. Clearly, 5. 18(2)(b) of the Crown Employees Collective BargainingsAct guarantees a right to grieve an appraisal which cannot be derogated from by the terms of a Collective Agreement. Accordingly, the obvious failure to observe the time limits does not prevent the filing and the subsequent determination of an appraisal grievance. See, Re Attorney-General for Ontario and Keeling et al. (198(l), 30 O.R. (2d) 662 (Ontario Divisional Court). The. grievor's probationary status in the classified service began July 8, 1986. One year later, he did attain permanent status. -3 - The first performance appraisal dated January 8, 1986 was favourable and contained no criticisms. Iiowever, the second appraisal dated July 2 1 I 1986 included numerous negative comments. In the later appraisal, under Section II. entitled "What factors contributed most to the overall performance evaluation, both positive and negative - please describe providing supporting information", the following comments appear: objecti "Since his last review in January of 1986, his application has somewhat decreased and on occasions he will wait to be given work rather than seek,it. At times he will take too long to complete allocated tasks. Mr. Arora should increase control over the availability of his tools. On occasions, he has complained that he could not work with the tools provided and needed better and different tools to do the job. Although we often realize thatwe have to up-date ourselves, the incidents of his requests is becoming too high. Report backs are not as prompt previous as they were during the period of his assessment." Similarly, Section III under the head b ing "Expectations and ves" read, in part, as follows: "A return to his original diligent and conscientious application to his work would be welcomed...." The. grievor attained an overall performance score of 4 - the minimal rating to meet the requirements of the job. AS indicated previously, prior to this appraisal, the grievor did attain permanent -4- status in the classified service. Both appraisals were prepared by the grievor's Supervisor, Rudolf Radics. Mr. Radics has some 14 years experience with the Ministry and currently holds the position of Electrical/Instruments Maintenance Supervisor at the Lakeview facility. Electrical Maintenance Technicians at Lakeview work in pairs on most occasions. At all relevant times, the grievor worked with Bill Sherman, an employee with some four years seniority. The grievor's tasks included installation of equipment, preventive maintenance and repair of equipment, and building maintenance, as assigned. Although the grievor commenced work in July 1985, essentially he had to use his own tools until a set of tools was issued by the Ministry on December 10, 1985. The grievor did acknowledges the loss of two Ministry tools. He also acknowledged that he requested numerous replacement tools deemed to be more convenient for his use. However, the grievor maintained that negative comments in the appraisal were untrue. In particular, he alleged that none of the criticisms outlined in the appraisal had been brought to his attention. Bill Sherman testified on the grievor's behalf. In his opinion, Mr. Radics July appraisal was inaccurate. He did, however, -5- acknowledge that he had no experience in the preparation of appraisals. Mr. Radics' appraisals in his pos evidence was that he had prepared some 15 to 20 ,ition as Supervisor. He testified that the grievor's July appraisal accurately reflected his own feelings. In his opinion, the appraisal was both fair and accurate. The Supervisor gave detailed evidence to support his criticisms: five or six lost tools, and the supply of some eleven replacement tools, 'taking too long to complete allocated assignments (Exhibits 10, and ll), occasional loitering in the shop, failure to begin one assignment in a timely fashion, and failure to report back promptly. The Ontario'Covernment in its Ontario Manual of Administration has established a policy and guidelines regarding performance appraisals.(Exhibit 2). PERFORMANCE APPRAISAL Performance Performance appraisal is a three-step process APpraisal whereby a manager and an employee: Process: 1) define the performance that is expected of the employee during the next review period: 2) discuss performance on an ongoing basis during the review period; and 3) evaluate job performance at the end of the review period. Definitions: "Employee" In the context of this policy, the term "employee" refers to management, other excluded, and bargaining unit civil servants. -6 - "Manager" In the context of this policy, the term "manager" refers to any employee responsible for guiding the performance of other employee(s). Need for The Ontario Government is committed to a policy of Performance effective management of its employees. In support Appraisal: of this commitment, managers are responsible for guiding the performance of employees under their supervision. Performance appraisal is an essential element of this management process and it is therefore the policy of the Ontario Government that the performance of every employee is appraised regularly. Frequency of Performance Appraisals: Employees are responsible for their own performance and are entitled,to know on a regular basis: . the performance expected of them; . how they are performing; and . the resources available to them to attain the expected performance. The frequency of performance appr'aisal may vary from job to job, but in no case shall there be more than twelve months between appraisals. For probationary employees, a performance appraisal ought to be conducted within the first six months of service. Primary The primary purpose of performance appraisal is to: Purpose of . improve performance; and/or Performance . maintain high performance levels. Appraisal: Other organizational requirements such as merit pay and promotion decisions, manpower planning and the identification of staff development needs are facilitated by performance appraisal. Objectives of Performance Appraisal: The objectives of performance appraisal are: . to attain high performance levels by ensuring that employees know and are committed to achieving what is expected of them: . to assist employees to develop in their jobs through coaching, counselling and training; . to improve communications and work relationships between employees and managers; and . to provide for a better underttanding of organizational objectives. Ministry Responsibil- The deputy minister of each ministry is responsible for: ities: . developing and implementing.:performance appraisal processes designed to meet the ministry's particular needs; and . providing managers with the opportunity to obtain the skills needed to implement performance appraisal in their organisation. Civil Service The Civil Service Commission is responsible for: Commission : providing, upon request, consultative -assistance Re.s;;;;tbil- to ministries in initiating and refining their performance appraisal processes; . making available to ministries the facilities of the Performance Appraisal Resource Centre located at the Commission's Staff Development Branch; . . providing, upon request, assistance to ministries in training managers in performance appraisals processes: and . developing and maintaining service-wide performance. appraisal guidelines. Performance The following performance appraisal guidelines are iiF%&%,: presented to assist in the development and implementation of effective performance appraisal programs: 1. Define performance expectations which dare: set by a manager and employee at the ' beginning of each review period; . re-examined during the review period and revised where appropriate: . specific to each job; . consistent with the position description: . results oriented: . measurable. 2. Discuss actual performance with the employee on a day-to-day basis throughout the review period. 3. Base the evaluation at the end of the review period on the employee's work performance and accomplishments. 4.. Discuss the performance evaluation at the end of the review period with the employee and where the appraisal is written, provide the employee with a copy. -8 - Include in the performance evaluation at the end of the review period a summary rating of the employee's performance so that the employee has a clear understanding of whether overall performance has exceeded, met or not met the expectations of the job. Indicate, where performance expectations have not been met, what is required to meet these expectations and whether improvement has been demonstrated during the review period. -. Include in the appraisals of managers, their operation of the performance appraisal program. 5. 6. 7. On the evidence adduced, the Board is satisfied that the policy and guidelines set out above were not followed in the grievor's July 1985 appraisal. There was no evidence before us to suggest whether or not Mr. Radics was familiar with the Government's Policy and Rad i his Guidelines. However, in general, the Board is satisfied that Mr. cs was a'credible witness. The difficulty, we think, is that Mr. Radics failed to share concerns with the grievor prior to preparing the disputed appraisal. It may well be, as Mr. Radics suggests, that the grievor was not prepared to accept any form of criticism. However, the Government Policy and Guidelines .require that, on a regular basis, an employee must be made aware of performance expectations measured against his actual performance. Obviously,. this is of particular importance where an employee's performance is being assessed during his probationary period. In sum, in order to support an appraisal, deficient i' es in employee performance must be brought to the attention of that employee on a regular basis , prior to being recorded in a written appraisal. A performance appraisal should contain, where appropriate, both negative and positive comments. Simply stated, Mr. Radics' at least in Section II, contain no positive observations. ', because the grievor and Bill Sherman worked together as a comments, Similarly team, it appraisal is surprising and indeed inappropriate that Sherman's dated May 8, 1986, contained no similar criticisms. On the evidence presented, Mr. Radics' comments regarding the number of lost tools appears to be based on assumption rather than fact. In Re The Crown in Right of Ontario (Ministry of Transportation and Communications and Ontario Public Service Employees Union (Taraschuk) (1985), 19 L.A.C. (3d) 161, Vice-Chairman Delisle made the following relevant comments at p. 164: "It may possibly be that the appraisal done by Mr. LaVictoire is an accurate description of his perception of the grievor's strengths and weaknesses. The problem is that it appears that the grievor was not properly advised of his criticisms. He believed, and had reasonable grounds for be1 ieving, that he was performing quite well. If the objective of performance appraisals is future improvement, and the career development review report is to avoid surprises, the process adopted certainly failed~the grievor in this instance. He had no opportunity to effect change. We declare that the grievor has been appraised contrary to the governing principles and standards and that he deserved to have the offending passage expunged and all correspondence relating to the same removed from his personnel file." Vice-Chairman DeliSle'S rationale in the Taraschuk Decision applies with equal force to the instant grievance. In the result, this grievance must succeed on the finding that the grievor has been assessed contrary to the governing principles and standards of the Ontario Government. With the passage of time, the only appropriate remedy is to make an order that the July 21 I 1986 appraisal, and all references thereto, be expunged from the grievor's file. No useful purpose can be served by the preparation of a new appraisal at this late date. Accordingly, we so order. DATED at TORONTO Ontario, this 10th day of -MARCH, 1988. > &i -.- I( L&4&'- -. _.. 7. R. L. VERITY, Q.C. - VICE-CHAIRMAN 1-J. THOMSON, MEMBER I. COWAN, MEMBER