HomeMy WebLinkAbout1986-2492.Sheppard.88-03-10-
Between
Before
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLEC+iVE BAR+NING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
OPSEU (Don Sheppard)
2492106
The Crown in R,ight of Ontario
(Ministry of Gotiernment Services)
Employer
E.K. Slone irice-Chairman
F. Taylor Member
F. Collict Member
For the Grievor R. Stoykowych
COUnSel
d~VU!lUZZO, Hayes & Lennon
Barristers & SoliCitOr
For the Employer D. Brow?, Q.C.
Counsel
Crown Law Office
Ministry of Attorney General
Hearing January 21, 1988
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DECISION
The Grievor was a probationary employee who, on
February 12, 1987, was released by the Deputy Minister under
the authority of Section 22(S) of the Public Service Act, for
ostensibly having failed to meet the requirements of his
position. This Board is asked to find that the release
amounted to a dismissal without just I cause,: which we have
jurisdiction to remediate under Section 18(2)(c) of the Crown
Employees Collective Bargaining Act.
The central legal issue which we must explore is the
extent to which we may inqu~ire~into the circumstances that
have led up to the decision of a Deputy Minister to release a
probationary employee.
THE FACTS .l._
The Grievor is a carpenter by trade. In August, 1985
he. obtained a contract position with the Ministry of
Government Services, performing maintenance carpentry at the
Legislative Building at Queen's Park. In early 1986, the
Grievor entered a competition for a permanent position as
maintenance carpenter. He was.successful in the competition
and commenced his one year probationary period on April 14,
1986'. Very little changed for him in terms of his job or
reporting structure. His direct supervisor was one Gabriel
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Dunlop, to whom he had reported since August, 1985.
It so happened that in early 1986 the Grievor was in
the throes of a painful breakup with his girlfriend of some
six-years. The effects on the Grievor, both emotionally and
physically, were devastating. When he began vomiting up
-blood he.was sufficiently alarmed to check ihimself into the
hospital for tests. He was found to be suffering from
complete mental and physical exhaustion. This had reached a
crisis stage with,in a month of the Grievor commencing his
appointment to the probationary staff. Cm May 12, the
Grievor began an extended period~of absence which lasted some
seven weeks. He returned to work, apparently in good healthy, /
on Duly 2, 1986.
A seven-week absence after less than four weeks of
employment could hardly be said to have been an auspicious
beginning.
On May 26, 1986, which was about three weeks into the
extended absence, the Grievor was sent a letter by Roger
Muller, the Building Manager at Queens Park. The letter read
as follows:
!'It has become necessary for me to bring to
your attention my concern about your poor
attendance.
Since your appointment to,probationary staff on
April 14, 1986, you have been absent 12 days.
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This results in serious disruption to our
service level and places undue pressure on your
fellow.staff members. For this reason, we will
be monitoring your attendance. If there is no
significant improvement, further action will be
taken.
I would appreciate your cooperation in making _ : every effort to improve your attendance.",
One week later, on June 2, 1986, theiGrievor was sent
another memardndum identical in wording to 'the memorandum of
May 26, with the exception that it now referred to an absence
of 17 days.
During the month of June, the Employer was provided
with reports from the Grievor's physician to the effect that I
he was still suffering from mental and physical exhaustion
and had been advised to take time off work. The June 17
report (Exhibit "8") also advised that the Grievor had been
referred to a professional for stress counselling.
On June 16, 1986, the Grievor was asked to come in for
a meeting. That meeting took place, with Marilyn Jackson.
from the personnel department, Muller and Dunlop present.
According to the Grievor's evidence, the meeting came right
to the point. They wanted the Grievor to resign, and offered
him a month's salary as severance. The Grievorwas also told
-that if he did not resign, they would "get rid of
[him3 anyway".
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After this meeting the Grievor went to see his Union
representative and wrote a letter to Mr. Dunlop dated June
20, 1986 (Exhibit "9"). The letter reads as follows:
"Dear Gabe:
Further to our meeting on June 16, please be
advised that I do not wish to resign. I am a
good employee, 'excellent carpenter a[d do not
believe I have done anything to ]ust fy the
action that you plan to take.
You know that my absence has been beyond my
control and I am attaching a letter from my Doctor describing my present health situation.
I also intend to provide you with a letter from
Dr. Colaco, indicating that I am improving and
the prognosis is good and that I will be able
to return to.work very soon.
Gabe, you know my work is excellent and that I
can be counted on. I have worked for you since
August, 1985 and in April, 1986, you
recommended me to the permanent position.
I believe I deserve another chance."
As already mentioned, on July 2, 1986 the Grievor
returned to work.
In late July a three-month performance review was
held, with Mr. Muller, Mr. Dunlop. and the~Grievor present.
This meeting was followed up by a memorandum from Dunlop to
the Grievor dated July 29, .1986, which reads as follows:
“This will confirm our meeting of July 29, 1986
attended by you, Roger Muller, Manager-
Legislative Services and me. The meeting was
to review your performance for the first three
months of your probationary period. Your
performance when you were present during that
period. was satisfactory.
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However, your attendance has not been
satisfactory and has been in excess of the
average within them Ministry (approximately 11
days per year). Out of a total of 63 working
days, you were absent for 38 days. This
absence created delays in our service delivery
to our clients in the Legislative Building. We
were forced tog take interim measures during
your absence that were very costly.
Your performance and attendance are being
monitored and a significant improvement i's
expected. A further review will take place at
the end of the six-month probationary period.
Should your performance and attendance not be
satisfactory during the balance of your
probationary period, we twill have no option
except to withhold a recommendation for
appointment to regular staff."
Three months later, the Grievor came up for a six-
month review. Mr. Dunlop testified that at or about this
time he recommended to his superiors that the Grievor be
released as a result of his absenteeism: This recommendation
was obviously not accepted, and it was decided only to
withhold what might otherwise have been a merit pay increase.
On October 17, 1986, Mr. Dunlop wrote the followings
memorandum (Exhibit 13) to the Grievor:
"Since your appointment to probationary staff
on April 14, 1986 your performance, when you
were present, has always been satisfactory. We
also note that you seem to have achieved good
rapport with clients in the building.
In addition, your attendance has greatly
improved from the unsatisfactory performance of
the April 14 to July 14, 1986 performance
review, which we discussed at that time.
However, a merit increase that can be granted after six months of a probationary period is
based on six months continuous satisfactory
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performance. As your attendance during the
first three month period was unsatisfactory, we
feel that a further three months should
transpire before you are,considered for a merit
pay increase."
During the balance of 1986, the Grievor missed a total
of-eight more days of work. On September 19, 1986 he took a
day off to attend a funeral. On October 9 and 10 he went on
Workers' Compensation as the result of a minor injury that I
occurred when he fell off a ladder. On NoGember 3 through 7,
he contracted a bad flu which, according to'the Grievor, had
succeeded in decimating the ranks of the civil service at
Queen's Park. None of these absences was related in any way
to the seven-week absence earlier in the year, and it can
hardly be said that these later absences were extraordinary. '.."
Some two weeks after the Grievor's flu.~, he received
another memorandum from Mr. Dunlop. That memorandum (Exhibit
15) reads as follows:
"This will confirm our meeting on November 21
regarding your attendance. I suggested that
you might wish to have your Union
.representative in attendance.
A review of your attendance record indicates
that you have been absent‘due to illness for 46
days (44 sick, 2 Workers' ~Compensation) to date
since your appointment to probationary staff,
April 14, 1986. On July 29, 1986, I advised
you in writing that your attendance was being
monitored and that a significant improvement
was expected. Since that time, you have been
absent a further 8 days (6 sick, 2 Workers'
~Compensation).
Your absenteeism adversely affects~ service
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.delivery to our clients by yourwork unit and
places undue pressure on your co-workers. For
this reason, I will continue to monitor your
attendance. If you are not ableto establish
and maintain a satisfactory attendance level, I
will have no alternative but to recommend your
release from the Public Service."
It is important to mention that from this date
forward, until his release, the Grievor's attendance record
was perfect. Indeed, during the Christmas !period, he was
appointed by Mr. Dunlop to be acting Supervisor while Dunlop
was on vacation for two weeks.
Despite the clear improvement,in the Grievor's
attendance, and without any prior discussion with the
~Grievor, on January 14, 1987 Mr./ Dunlop wrote a memorandum to
Mr. Muller (Exhibit 17), which reads as follows:
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"Since Don's appointment,to probationary staff
on April 13, 1986, his performance when he was
present, has been satisfactory. He has also
achieved good rapport with clients in the
building.
However, in considering his po,ssible
appointment to permanent staff, I must take
into account his attendance record from April
14. 1986 to January 14, 1987. While there has
been a marked improvement,in his attendance
after several written warnings on the subject.
his record still stands that out of a total Of
189 working days, he was absent for 44 days through sickness plus 2 days on Workers'
Compensation, and 3 days vacation.
Excluding the 3 days vacation, the record is 46
(including Workers' Compensation) days off from
a total of 189 days or more than 24% of
absenteeism.
This has been a difficult decision for me,
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however, I feel that I would have no
credibility-as a front-line supervisor if I
recommended that a probationary employee with a
24% absenteeism record be appointed to
permanent staff."
Mr. Dunlop testified that he searched long and hard
through his conscience before coming to,this decision. He
testified that he consulted his superiors and spoke about it
at length with,his wife. Despite the factlthat the Grievor's
attendance had most recently been near perfect, Mr. Dunlop's
bottom line appeared to be that the absenteeism had created
difficulty and hardship for the Grievor's co-workers, and
that arate of absenteeism of 24%'is simply unacceptable.
Mr. Dunlop appeared to be genuinely concerned that his own
credibility would be damaged if,he did not recommend the
Grievor's release.
.It is significant that under cross-examination Mr.
Dunlop admitted that he had no idea whether there was any
relationship between the early period of absenteeism and the
flu episode in November, 1986. He stated categorically that
he did not feel it was any of his business to inquire into
the Grievor's personal medical history. He admitted that he :i
did not know or even consider whether the past absenteeism
affected the likelihood of the Grievor showing up for work in
the future.
On or about February 12, 1987 the Grievor was handed a
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letter signed by the Deputy Minister, which simply advised
him that he was being released under the authority of Section
22(5) of the Public Service Act for having failed to meet the
requirements of his position. No further specifics were
mentioned. According to the Grievor, he was completely and
utterly shocked to receive this letter and to be released at
that point in time. His reaction was consistent with the
i fact that on any reasonable view of the matter, he had been
led to expect on several occasions that he'could overcome the
effects of the lengthy,absence by showing a marked
improvement in his attendance. Having shown such
improvement, and being clearly an excellent worker, he had' :.
every reason to expect that his unfortunate absenteeism in
May and June of 1986 would be forgiven, if not forgotten.
THE LAW
As already stated, the authority for a Deputy Minister, .L
'. to release ,a probationary employee derives from Section 22(5)
of the Public Service Act, which reads as follows:
"22(5). A deputy minister may release from
employment any public servant during the first
year of his employment for failure to meet the
requirements of his position."
The extent to which this board may review the exercise
of this authority, was first considered in the,case of Re
Leslie and The Crown in Right of Ontario (Ministry of
Community and Social Services), (1978) 22 L.A.C. (2d) 126 _
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(Adams 1.. At page 134 of that decision, writing for the
majority Chairman Adams said as follows:
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this Board'is of.the opinion that the
employer cannot camouflage either discipline or
the termination of an employee for a reason
other than the employee's failure to meet the
reauirements of his Dosition, as that Dhrase is explained in the Square D Co. Ltd. case by the
auise of a 'release',under Section 22(5) of the
Public Service Act. This Board therjefore, has
jurisdiction to review a contested release to
insure that it is what it purports to be. But
in the ad~judication of such a grievance, this
.board is wi,thout jurisdiction to evaluate and
weigh the reasons of,the employer unless the
Collective Agreement provides otherwise. The
Board must only be satisfied that the employer;
in good faith, released the employee for a
failure to meet the requirements of his
position. As long as the Board can be
satisfied that the employer has made an
evaluation of that kind, it has no jurisdiction
to review the fairness or correctness of that termination under Section 17(2)(c)." (Now
18(2)(c) of the Crown Employees Collective
Bargaining Act).
The Leslie decision was considered some six years
later in the case of OPSEU (Vince Ferraro) and The Crown in
Right of Ontario (Ministry of Correctional Services), G.S.B.
373184. At Page 4 of the Ferraro decision, Vice-Chairman
Delisle writes as follows:
"In Insanally, (Jolliffe), 7/83 this Board
noted that one of the questions left open after
Leslie and its progeny was:
. . . . whether the Boar~d has any power to act if
satisfied that the 'release' was not bona fide,
i.e. was not made for any valid..reason
whatsoever. . . . To say that the Board has no
jurisdiction when the release has been made in
good faith is clear enough, but it fails to
tell us what, if anything, can be done about a
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release not made in good faith or not made for
valid re=ns or made for no reason at all, or
made by mistake.'
With the greatest respect the learned
arbitrator has mis-stated the question. The
clear implication from Leslie is that the good
faith of an employer can be looked to for the
purpose of determining whether the termination is a 'release'. This Board can examine the process used by the employer and determine
whether what. it has chosen to characterize as a
release truly is such; if the termination is
not a release it.is a dismissal andhence
arbitrable under S. 18(2)(c). To adopt the
language of Halady (Swan) 94/78: i
'There is a ,difference here, of course, between
a review of a grievance on its facts and a
review on the merits. A review on the facts
may well reveal that, no matter how clearly the
merits favour the.grievor, the Board is simply
unable to award any remedy.'
so too, though the Board refrain from examining
the merits, a review of the grievance on its
facts may entitle the grievor to a remedy."
In~the later case of OPSEU (Gulshan Abdulla) and the
Crown in Right of Ontario (The Ministry of Municipal
Affairs), G.S.B. 1103/85, a similar question arose. In
considering whether or not a release purportedly made under
the authority of Section 22(5) of,the Public Service Act
could be sustained, Vice-Chairman. Verity stated the test as
follows: (Page 9):
"For the Employer to succeed, it must satisfy
the Board that it acted reasonably and in good
faith in releasing the Grievor based on her
overall job performance. On the evidence, the
Board is not satisfied that the Employer has
met that test."
In the more recent case of OPSEU (Manon Schiralian)
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and The Crown in Right of Ontario (Ministry of Government
Services) G.S.B. 0914/86 (Roberts), the Board in that case
summarized the jurisprudence as follows (Page 12):
. . . 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 Sebtion 22(S)
of the Public Service Act to release [the
probationer] ;.., and ~did not seek merely to
cloak a disciplinary discharge behind the
release procedure.' Re Clarke and Ministry of
Correctional Services, GSB 443/82 (Swan) at p.
2. See also, Re Abdulla and Ministry of
Municipal Affam86), GSB 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 failed to meet
the requirements~ of his or her position.
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 w,ere 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 non
medical evidence to establish such a link. _ As far as the record indicates, no effort was made to establish medical confirmation."
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In disposing of the matter at Page 14, the Board in
'Shiralian found that the.Grievor's release was: .~
"not based upon a reasonable and good faith
exercise of the authority of management under
Section 22(S) o f the Public Service Act. This
that the termination leads us to the conclusion
of the Grievor was a dismissal without'just cause."
It can be argued with some logical force that this
Board does not sit as'.an appeal tribunal frcm the decision by
a Deputy Minister to release a probationary employee for
failure to meet the requirements of the position. We are not
entitled to substitute our assessment of the probationer's
job performance for.that of the Deputy Minister. However,
the jurisprudence of this Board entitles us-to review certain
aspects of the release. The considerations fall within three
somewhat overlapping categories:
A. Lack of Good Faith:
If the Employer lacked good faith in releasing the
probationary employee, then the ostensible "release" will be
considered actually to have been..a .dismissal, which can be
grieved under Section 18(2)(c) of the Crown Employees
Collective Bargaining Act. Clearly the bad faith, if found,
must be relatively serious.
B. Unreasonable:
While this term is utilized in the earlier decisions we do
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not take it to mean that.we can review the merits of the
employee's job performance and reinstate him if we find that
the assessment was "unreasonable" that the employee had not
met the job requirements. Reasonableness in this context is
a species of good faith. Whereas the phrase "bad faith"
could encompass a release improperly motivated or maliciously~
intended, "unreasonableness" speaks more to, an objective
assessment that the release did not flow logically or
rationally from the facts. If, for example, there was simply
no evidence that a probationary employee had not fulfilled or
could not fulfil1 the job requirements, then no matter how
well meaning were the actions of his superiors, the release
would have been an unreasonable exercise of authority.
C. Rational Relationship Between the Facts and the
Release:
This factor is nearly synonymous with
"reasonableness". If the Employer's assessment that a
certain set of facts justifies release is "irrational" on any
half-inte&ligent view of-the matter, then the release becomes
~a discharge and can be reviewed. ' The "rational relationship"
test should not be placed too high. It is easy to brand as
"irrational" any thought process or decision'with which one
does not agree. The Deputy Minister must be free to make
decisions, without being found to have acted irrationally
merely because a Board of arbitration might have come 'co a
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different conclusion.
.c, DISPOSITION
The only insight we have into the Employer's thought
process derives from Mr. Dunlop, who for all practical
purposes made the decision to release the Grievor. He did so
on the basis of one factor only: absenteeism. Obviously,
one of the requirements of any position is that the employee
can reasonably be expected to show up for'work. An employee
who misses too much work as a result of some chronic problem
may be unsuitable for a permanent job, no matter how
likeable, talented or hard working that person might be.
However, there was absolutely no basis for Mr. Dunlop to
conc1ud.e that the lengthy absenc,e in May and June of 1986
increased the likelihood of future absenteeism. All he knew
was that the Grievor had been absent 24% of the time.
With all due respect to Mr. Dunlop, who came across as
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a well-meaning individual, he allowed himself to be seduced
by a bare statistic. That statistic was of marginal '~
relevance in the context of an employee whose attendance
record for the immediately preceding six months had been
excellent. The question which he ought to have asked, either
..;&b, of himself or of the Grievor, was whether or not the Grievor
could be expected to be,reliable in terms of showing up at
work. The decision to release the Grievor displayed, in OUT
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view, little or no rational connection between the facts and
the conclusion. The Grievor had been ill, and no less so
because the illness had an emotional genesis. We take
arbitral notice of the fact that crises occur and~people get
sick from time to time. They cannot always choose an
auspicious or convenient time to do so.
If the Grievor had been hit by a truLk and spent seven
weeks in the hospital, his absenteeism record would have been
identical. If that had occurred, one suspects that no one
would have treated the 24% absenteeism as a meaningful
statistic. Likewise, we can see no reason to treat this
illness as anything other than an unfortunate chance event.
There was no evidence that the Grievor has any chronic
condition that will or could lead to future absenteeism.
Quite apart from the unreasonableness of the release
and the lack of any rational connection between the facts and ,
the decision t,o,%release, there is the element of bad faith.
This is not'to-say that we question Mr. Dunlop's motives.
However, the written record as reproduced at some length in
this award overwhelmingly points to an explicit promise, that
the Grievor could successfully complete his probation so long
as his level of absenteeism improved. If the Employer had '
chosen to release the Grievor in July 1986, it might have ..~
~been more difficult for him to question such release.
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However, he was led to believe that the s.even week absence in
and of itself was not fatal to his chances of being appointed
to the permanent staff. One can call it a contract, or a
promissory estoppel. Either way, the Grievor fulfilled his
part of the. bargain. For the Employer to resurrect the seven
week absence as a sufficient reason to release him, amounts
to a breach of promise. Such a breach of promise is in our
view a bad faith exercise of the authority to release. Under
such circumstances, the release is not immune to our
scrutiny. As a discharge it cannot on any other basis be
said to have been justified. The~grievance must therefore
succeed.
REMEDY
The--Grievor h~as asked .that he be reinstated in the
same position he would have been in as at February 12, 1987,
namely with ten months of probation completed. He also asks
to be compensated.fully for all pay and benefits lost during ;
the intervening period.
Under the unusual circumstances of this case, we would
not go quite this far.
The purpose of a probationary period is for the
Employer to have an ample opportunity to observe the
probationer, in order to make the ultimateassessment of
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whether or not that person is su itable for the permanent
position. In the unfortunate circumstances of this case, the
Employer's opportunity to observe the Grievor, including the
opportunity to assess his reliability, really only began on
July 2, 1986. The first two and one-half months were, to use
the vernacular, a washout. We hold the Grievor blameless for
this occurrence. We also hold the Employe 7 blameless. In a
contest between these two blameless parties we are inclined
to require the Grievor to bear the loss. We therefore order
that seven weeks be added to the Grievor's probationary
period. We also order that seven.weeks of salary and
benefits be denied to him out of the compensation that he
will receive as a result of this award. By this formula, we I
achieve a result that is equivalent to the Grievor having
asked for and been awarded a seven week unpaid leave of
absence.
In the result, therefore, we order the Grievor to be
reinstated with ten months minus seven weeks of time
completed during his probationary period. He is also to be
compensated for all lost salary and benefits, minus seven
weeks, dating from the expiry of-his severance pay to the
date when he returns back to work to continue his
probationary period as ordered by this Board.
As always, if there are any difficulties in
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implementing this award this panel of the .Board will remain
seized of the matter to assist the parties.
DATED at TORONTO this 10th day of MARCH, 1988
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E.K. SLONE -- VICE-CHAIRMAN
F. TAYLOR. MEMBE:!
F. "COLLICT, J4EMBZ:R
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