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HomeMy WebLinkAboutKamal 92-01-30 91D562 IN THE MATTER OF AN ARBITRATION BETWEEN ONTARIO PUBLIC SERVICE EMPLOYEES UNION - and - CENTENNIAL COLLEGE Grievance of Syed Kamal OPSEU File No. 91-D-562 Before: M.G. Mitchnick - Chairman Sherril Murray - Union Nominee J. N. Tascona - Employer Nominee Appearances: For the Union: Michael McFadden, Counsel Carol Graham Rob Sinclair Syed Kamal For the Employer: Neal B. Sommer, Counsel Joan White Larry Simpson Hearing held in Toronto on November 25, 1991 AWARD The grievor, Syed Kamal, in May of 1990 was in receipt of what could be characterized as a "negative" performance evaluation, and grieves as follows: I grieve that my rights have been violated specifically but not exclusively under Article 16.1 and Article 16.2 of the collective agreement. SETTLEMENT DESIRED A fair and proper performance, appraisal be conducted. Further, that any documents directly or indirectly relating to this issue be removed and destroyed from record. Articles 16.1 and .2 of the Collective agreement'provide: 16.1 Performance Appraisal The copy of an employee's performance appraisal which is to be filed on the employee's record shall be given to the employee in advance. The employee shall initial such appraisal as having been read within seven (7) days of receipt of a copy of such appraisal. If the employee wishes, he/she may add his/her views to such appraisal within such seven (7) day period. A notice shall be printed on .the performance appraisal stating that the employee's rights concerning performance appraisals shall be found under Article 16.1 of the Collective Agreement. 16.2 Disciplinary Notice Each employee shall receive a copy of any formal disciplinary notice that is to be placed in his/her personnel file. With the consent of the employee concerned, notification shall be given to the Local Union that a disciplinary notice is being served on the employee. There is in fact no allegation made before the board that the evaluation in question has been made "disciplinary". The Union notes, however, that such a "negative" evaluation on the grievor's record could well become an important factor in subsequent promotions, transfers or salary-increase considerations. The specific grounds upon which the Union seeks to challenge the evaluation in question are three-fold. Firstly, the grievor received what essentially was a "good" evaluation in only the prior November. Secondly,'the grievor received no notice whatsoever in the ensuing term that management was in any way dissatisfied with his performance. Taking those two factors together, the Union submits,~ might well lead one to the conclusion that "bad faith" has been involved. And beyond that, the Union notes that the employer failed to set out anywhere on the evaluation form the reference to the grievor's rights under Article 16.1 that that Article calls, for. The College, for its part, concedes the omission with respect to the lattermost point, but notes that the grievor has not as a result failed to act to protect any rights he may have- had in a timely way, and indeed, that he filed the instant grievance almost immediately upon receipt of the evaluation. The College adds, and the Union does not dispute, that it' has since acted to implement the requirement set out in the last sentence of Article 16.1, and that all of its evaluation forms now contain the information that is to be stipulated. BeYond that, however, - 3 - the College takes the position that the grievance is inarbitrable, and relies in its submissions on a number of similar cases decided under the provisions of the collective agreements which have from time to time been i~ effect for the Academic staff. The board has concluded that the College was correct in its submission, for reasons given orally at the hearing. In the initial case decided under the Academic agreement, and involving an attempt by the Union to have a board of arbitration in-effect review the methods used by the College in carrying out its performance evaluations ( being a decision at Seneca ColleGe by Mr. Howard Brown issued November 11, 1977), the arbitrator at page 9 wrote: ... The Union in this case cannot establish,' as it does not exist in the contract, that there has been or Could be any violation by the College of the agreement ... Based on the Court's decision, however, it is not available to the Union or the employees to maintain a complaint under the management's rights clause to force the Employer to account for its actions which do not fall under any specific term of the collective agreement. The subject of evaluation is a matter which comes directly within the exclusive rights of management under Article 7.01, and failing that subject being dealt with in the collective agreement, the Union cannot enforce the remedy sought in this grievance. Much of the discussion in that case, it may be observed, concerned the application of the then-recent decision of the Divisional Court in MuniciPality of Metropolitan Toronto (1976), 10 O.R. (2d) 37. In a case again involving arbitrator Brown and - 4 - the same College some three years later (award dated June 27, 1980) the Union raised much the same issue but on that occasion attempted as well to characterize the evaluation as "disciplinary". By that point at least the collective agreement contained a specific provision dealing with the subject of performance evaluations, which read: 22.01 Performance appraisals, including written progress reports referred to in Section 8.01 which are to be filed on the employee's record, shall be shown to the employee in advance. The employee may add his views to such appraisal before it is filed. Each employee shall receive a copy of any disciplinary notice to be placed in his personnel file. Access of an employee to his file containing performance appraisals, records of educational achievement and disciplinary notices shall be subject of discussion under Section 12.02 if requested. There was no suggestion that the specific terms of that provision had in any way been breached, and the arbitrator rejected the claim of the Union that the document ultimately left with the grievor by the College was disciplinary. The arbitrator thus wrote: ... Having brought, then, the whole matter within the framework of a faculty evaluation, there is no other right to the employee than that which is contained in Article 22 concerning an evaluation under the agreement. Therefore, the grievor could not establish that there has been a violation of any of the terms of the collective agreement by the College in this regard. The Union in the present case submitted that there has, since the MuniciDalit¥ of MetroDolitan Toronto case (as well as the later MetroDolitan Board of Police Commissioners case (1981), 33 O.R. (2d) 476 (C.A.)), been an evolution in the Court's jurisprudence, in Council of Printing Industries (1983), 42 O.R. (2d). 404, and more particularly in the St. Lawrence ColleGe case, a decision of the Divisional Court dated February 17, 1989; leave to appeal denied June 19, 1989. As was pointed out at the hearing, however, the issue would not really appear to be whether an employer who has been guilty of, for example "bad faith" in its treatment of one of its employees, is forever shielded in that regard from any form of arbitral review. 'The question in matters of this nature, rather, as the College has fairly pointed out, is when is it appropriate for such review to take place: at the point where an employee is the recipient of a performance evaluation that is not entirely to his or her liking; or only when the employer actually relies on that evaluation in taking some other form of action detrimental to the employee. Arbitrator Brown himself, for example, essentially noted this in both of the cases referred to above, and after deciding that the matter of an evaluation itself was not arbitrable under the parties' collective agreement, went on to say, again at page 9 of the first award: That is not to say that in an individual case, where there is a challenge to the incremental merit step applications, that an employee may not have the right to grieve a complaint concerning his merit increase and that might involve consideration of his evaluation. In that regard, factors such as bad faith, discrimination, and unreasonableness may be material in reviewing the decision made. And at page 11' of the second award: His concern fo~ the future use of the evaluation wi~n regard to other matters such as merit pay could possibly give rise to a complaint under the collective agreement, but it does not arise at the time of this grievance, and would, if it arose in the future, form the subject of a complaint at that time concerning a specific issue. As can be seen, however, Arbitrator Brown concluded on the language of the parties' collective agreement for the Academic bargaining that the only "rights" an employee had to enforce with respect to a pure "performance evaluation" were those specifically enunciated by the parties in Article 22.01 of that agreement. Such a conclusion would appear to be only reinforced by the last sentence found in the pertinent Article in the Support Staff collective'agreement. Article 16.1 once again reads: 16.1 Performance Appraisal The copy of an employee's performance appraisal which is to be filed on the employee's record shall be given to the employee in advance. The employee shall initial such appraisal as having been read within seven (7) days of receipt of a copy of such appraisal. If the employee wishes, he/she may add his/her views to such appraisal within such seven (7) day period. A notice shall be printed on the performance appraisal stating that the employee's rights concerning performance appraisals shall be found under Article 16.1 of. the Collective Agreement· There appears to be no obvious reason to read that sentence as meaning anything different from what it on its face appears to say; and that is that the rights which the parties considered to arise for an employee in connection with ~the matter purely of a "performance evaluation" are simply.and solely the ones set out in the foregoing provisions of Article 16.1 itself. That Article, we note, specifically allows an employee to note his or her non-acceptance of the views expressed by the employer in the evaluation form, and we take the grievor to have done the.same thing here by the immediate filing of his grievance. The College itself has conceded that it was in violation of the "notice" requirement of the last sentence of Article 16.1 at the time that the evaluation in question was transmitted, but it has since acted on its own to cure that defect in its practice, and the Union, when asked, has been able to assert no prejudice to the grievor in the instant case. For the foreg%ing reasons, therefore, the grievance was dismissed at the hearing. Dated at Toronto this 30th day January, 1992. CHAIRMAN "S. Murray" I CONCUR: UNION NOMINEE "J. Tascona" I CONCUR: EMPLOYER NOMINEE