HomeMy WebLinkAboutMills 91-11-29IN THE MATTER OF AN ARBITRATION
BETWEEN:
NIAGARA COLLEGE
(The Employer)
- and -
ONTARIO PUBLIC SERVICE EMPLOYEES' UNION
(The Union)
AND IN THE MATTER OF THE GRIEVANCE oF~M. MILLS - #87'P55
BOARD OF ARBITRATION: Kenneth P. Swan, Chairman
R.J. Gallivan, Employer Nominee
Jon McManus, Union Nominee
APPEARANCES:
For the Employer: C.C. White, Counsel
GoR. Pevere, Director. of Personnel
J. Balasak, Personnel Officer
For the Union: Cindy Wilkey, Counsel
Joan Hastings, Local President
Joe Brandy, Steward
Sheri Rosen
Marie Mills, Griev°r
AWARD
This arbitration involves the grievance of Marie.Mills,
a Teaching Master at Niagara College, dated May 12, 1987. At the
outset of the hearing, while the parties were agreed that the board
of arbitration had been properly appointed and that we had
jurisdiction to hear and determine this matter, a number of
preliminary issues were raised by counsel for the College to the
effect that the grievance does not, in its own terms, raise an
arbitrable issue.
The grievance is as follows:
The performance evaluation prepared for me for the period
November 1, 1986 - March 26, 1987 is neither representa-
tive of my positive contributions for the success of the
O.B.S. program nor reflective of my conscientious efforts
for meeting the requirements of my teaching and comple-
mentary functions.
The following remedies were requested in the grievance:
1. I request that the March 26, 1987 evaluation be
removed from all my personnel files.
2. I request that I be given another evaluation and
that such evaluation will provide due recognition
of (a) the working environment which was one of
planning and .development and (b) the positive
contributions made by me for the success of the
O.B.S. program and (c) my conscientious efforts for
meeting the requirements of my teaching and
complementary functions.
The following provisions of the collective agreement are
of concern in this arbitration:
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Article 7
MANAGEMENT FUNCTIONS
7.02 It is the exclusive function of the Colleges
to:
(a) maintain order, discipline and efficiency;
(b) hire, discharge, transfer, classify, assign,
appoint, promote, demote, lay-off, recall and
suspend or otherwise discipline employees
subject to the right to lodge a grievance in
i the manner and to the extent provided in this
Agreement.
(c) to manage the College and, without restricting
the generality of the foregoing, the right to
plan, direct and control operations, facil-
ities, programs, courses, systems and pro-
cedures, direct its personnel, determine
complement, organization, methods and the
number, location and classification of
personnel required from time to time, the
number and location of campuses and facilities,
services to be performed, the scheduling of
assignments and work, the extension, limita-
tion, curtailment, or cessation of operations
and all other rights and responsibilities not
specifically modified elsewhere in this
Agreement.
7.02 The Colleges agree that these functions will
be exercised in a manner consistent with the provisions
of this Agreement.
Article 11
GRIEVANCE PROCEDURES
11.04 (d) The Arbitration Board shall not be
authorized to alter, modify or amend any part of the
terms of this Agreement nor to make any decision
inconsistent therewith nor to deal with any matter that
is not a proper matter for grievance under this Agree-
ment;
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Article 26
PERSONNEL RECORDS
26.01 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 the
employee's views to such appraisal before it is filed.
It is understood that such appraisals do not in them-
selves constitute disciplinary action by the College
against the employee.
26.02 Each employee shall receive a copy of any
disciplinary notice to be placed in the employee's file.
Where the College or a Board of Arbitration determines
that any suspension or written disciplinary notations
were indeed without cause, such suspension or written
disciplinary notation and grievances arising thereunder
shall be removed from the employee record.
26.03 An employee shall be given access to the
employee's record and shall~ upon request, be given a
copy of any documents contained in the employee record.
Article 27
NO DISCRIMINATION
27o01 (a) The parties agree that, in accordance with
the provisions of the Ontario Human Rights Code, there
shall be no discrimination against any employee by the
Union or the Colleges, by reason of race, creed, colour,
age, sex, marital status, nationality, ancestry or place
of origin.
(b) It is understood that nothing contained
in (a) above limits the right of an employee to grieve
in accordance with the grievance procedure as set forth
in Article 11 hereof.
Put simply, the Employer's main preliminary objection is
that the content of a performance appraisal (an expression which
both parties treated as identical in meaning with the expression
"performance evaluation" used in the grievance), as opposed to the
process of evaluation, is not arbitrable. The purport of clause
26.01, in the College's submission, is that the performance
appraisal does not of itself constitute discipline, and that the
remedy for a performance appraisal with which the employee does not
agree is the right set out in clause 26.01 to add the employee's
own views to the appraisal before it is filed.
The College also observes that the grievor had resigned
by the time of the hearing in this matter, and that the issue was
therefore moot. At the hearing, the College offered to stipulate
that the performance appraisal in question was not in any way
disciplinary, and that the College would undertake not to disclose
the contents of the appraisal to any third party. These stipula-
tions did not satisfy the grievor, however, and so it becomes
necessary to deal here with the preliminary issues raised in
argument.
To begin with, we observe that the proposition advanced
by the College, that the rights of employees in relation to
performance appraisals are entirely set out in clause 26.01, and
that ~here can be no grievance relating to performance appraisals
which is not grounded in a breach of that provision, has become
virtually a commonplace in arbitration awards between these
parties. In Re Georgian College of ADDlied Arts and Technology and
Ontario Public Service Employees' Union (Simpson), unreported, 1983
(Brown), the board of arbitration considered a number of earlier
cases, all of which were to the same effect, and concluded:
There is no provision in the collective agreement which
could be applied by the Board, to deal with the issue
raised in the grievance. Consequently, we conclude the
subject of the grievance falls within the exclusive
function of the College as set out in Article 7.01(c)
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application of which is beyond the Board's jurisdiction,
for the reasons set out above. This situation is
distinguishable from the Board of Education for
Scarborouqh case where there was a specific evaluation
requirement, which could then be viewed by the Board,
where here the right is only that the employee must be
informed of his progress. A challenge to the nature and
content of that information as filed on the employee's
record, is not specifically made a right under the
collective agreement, but rather only those conditions
set out in Article 26 apply. Those factors having been
.met, which we find occurred in this case, there is no
further right to the employee to complain about the
evaluation made by the College. Once he is told of his
progress, required in Article 8.01(c) and has had an
opportunity to be shown that progress report and to add
his views, there is nothing further in the collective
agreement on which he can rely to challenge that
information. The grievor obviously seeks to upset or
change a progress report made during his probationary
period, but that is a claim not referable to any
provisions in the collective agreement. The Board by
Article li.04(d) is precluded from amending the agreement
or making any decision inconsistent with its terms. As
there is no provision contained in the collective
agreement to permit an employee to challenge the context
of a progress report and as the Board cannot imply such
a term in either Articles 8o01(c) or Article 26, the
Board must find that the College acted within its rights
under Article 7.01. As the requirements of those
articles have been met by the College and those rights
accorded to the grievor, there is no issue to be
determined by this Board.
Similarly, in Re Seneca Colleqe of Applied Arts and
Technology and Ontario Public Service Employees' Union (O'Neill),.
unreported, February 28, 1984 (Brent), the board of arbitration
made the following observations which, although not central to its
decision, give the flavour of the generally accepted interpretation
of Article 26:
The evidence before us does not show that there has been
a breach of Article 26.01. That ~rticle simply provides
for certain documents be shown to the employee before
they are placed on his file, and for the employee to have
the right to respond to those documents so that both the
documents and the replies can be placed on his file. In
the case before us the grievor was given a copy of the
performance appraisal before it was placed on his
personnel file. Mr. Tait's evidence makes it clear that
the Personnel Department never places the appraisals on
the employee's file until it has received all rebuttals
or additional information and that that procedure was
followed in this case. There is no requirement on the
College in Article 26.01 to do anything but to follow
certain procedures in relation to the filing of docu-
._.'ments. The Article does not address itself to the uses
which the College must or must not make of those
documents.
Based on this jurisprudence,.it would appear that the
grievance in this case, which is on its face related only to the
correctness of the appraisal complained of, would not be arbi-
trable. The Union, however, raises two grounds on which, in its
submission, we ought to take jurisdiction over the substance of
this appraisal.
The first of these is the argument that the.appraisal is
discipline in disguise, and therefore ought to be arbitrable as a
disciplinary notice, arbitration of the substance of which is
contemplated under clause 26.02. The Union argues that the
appraisal was clearly designed to lay the groundwork of future
discipline, and that its negativity, lack of balance and lack of
care concerning the sources of information upon which it relies is
at odds with the proposition that this is a mere performance
appraisal and not a disciplinary notice. The Union therefore
argues that we should hear all of the evidence on the merits in
order to decide whether this really does constitute an evaluation,
or whether it is rather so incorrect as to constitute a disciplin-
ary notice in disguise.
The single element which, as we read the performance
evaluation, might possibly convey a disciplinary intent is the
provision at the end of the appraisal that a re-evaluation meeting
was to be held one month after the meeting at which the appraisal
was presented to the grievor to review five particular facets of
the gri~or's performance. The precise words in relation to this
re-evaluation meeting specified that it would be held "to look for
improvement to meet the objectives outlined below". We observe
that no disciplinary consequences are specified for a failure to
meet tho~e objectives, nor is there any particular reason to infer
such a threat.' On its face, what seemed to have been planned was
to specify goals for the grievor to aim at, and to reassess the
extent to which she was progressing toward achievement of those
goals. This seems to constitute merely a supervisory approach to
an employee whose performance is considered wanting. It may be,.
of cQurse, that a continued failure to make progress toward
attaining the goal specified might ultimately lead to a disciplin-
ary notice being placed on the grievor's file. If that occurred,
of course, then other provisions of the collective agreement would
immediately come into play, and the grievor's right to present a
grievance and pursue it to arbitration would be guaranteed by those
other provisions of the collective agreement.
What the parties appear to have provided in Article 26
is a procedure for dealing with'performance appraisals, which are
clearly stated not to be disciplinary "in themselves", and' a
further procedure to deal with disciplinary notices, which are
subject to grievance and arbitration. There may well be, of
course, an arbitrable issue between the parties as to whether a
particular document fits under clause 26.01 as a performance
appraisal, or whether it fits under Clause 26.02 as a disciplinary
notice. To a large extent, the College has a certain degree of
control~6ver this issue. The clear implication of characterizing
a particular document as a performance appraisal, from the
College's point of view, is that it may not use that performance
appraisal at any time in a disciplinary way. If it attempts to do
so, it Will be met with the argument that a document specifically
identified as having no disciplinary implications does not form a
part of the grievor's record for disciplinary purposes.
Here, the College has stipulated the document is not
disciplinary in nature, and will never be used for disciplinary
purposes. By making such a stipulation, the College at the same
time ~protects the contents of the evaluation from arbitral
scrutiny, and precludes itself from ever relying upon the contents
of the performance appraisal for disciplinary purposes in the
future. In our view, absent special circumstances which do not
arise from any of the evidence put before us in this case, such a
stipulation by the Employer ought to be regarded as conclusive,
binding upon the grievor, the College itself, and also the
arbitration board°
As a number of the cases point out, however, performance
appraisals have other purposes under the collective agreement which
can have a deleterioUs impact on an employee although they are not
disciplinary in nature. For example, appraisals may be used in
dealing with such matters as promotions, merit increases and the
like, as well as in assessment of progress during a probationary
period, the situation from Which most of the cases arise. In our
view, when the Employer attempts to rely upon performance apprai-
sals in.~elation to any matter under the collective agreement which
is otherwise grievable, the correctness of those appraisals is
automatically thrown into question as part and parcel of the issue
between the parties on the substantive right which is the subject
of a grievance. Until that time, however, the sUbstance of
appraisals is not arbitrable.
The Union's second point is that the contents of this
appraisal may be arbitrated on the basis that it was formulated in
bad faith. This argument relies upon certain comments in a
decision of the present chairperson, Re Seneca College and Ontario
Public Service Employees' Union (Hacker), unreported, September 17,
1986 (Swan). That case, among other issues, reviewed the jurispru-
dence relating to the implication into collective agreements of a
requirement that a management discretion be exercised in good
faith, and in particular the decision of the Ontario Court of
Appeal in Re Council of Printing Industries of Canada and Toronto
Printing Pressmen and Assistants' Union, No. 10 et al. (1983), 42
O.Ro (2d) 104, as well as the decision of the Divisional Court in
Re Metropolitan Toronto Board of Commissioners of Police and
Metropolitan Toronto Police Association et al. (1981), 33 O.R. (2d)
' ~ 10 -
476. At pp. 21-23 of the arbitration award, the following
observations are made:
In our view, that is an incorrect reading of both
of these cases. The Metropolitan Toronto Police case
simply says, as we read it, that there, is no doctrine
that management rights clauses must be administered
fairly, while the Council of Printing Industries case
says that where, as a matter of contractual interpreta-
tion, it is a reasonable interpretation of a collective
agreement provision that it requires fair administration,
the Courts will not interfere. It is the function and
obligation of boards of arbitration to inquire, where the
issue is raised, whether a particular set of facts
establishing bad 'faith, or the absence of good faith,
constitute a breach of a particular clause in the
collectiVe agreement. As it happens, it is not here the
management rights clause that is asserted to connote a
requirement not to act in bad faith, but a provision
setting out affirmative obligations upon the Employer in
respect of its conduct in relation to probationary
employees, clause 8.01(c). While matters of this nature
ought not to be decided in the abstract, in the absence
of the facts, we think it is a reasonable interpretation
of this provision that conduct in bad faith intended to
subvert the protections given to probationary employees
by this clause, or to avoid the obvious obligations of
the Employer under this clause, could be a breach.of the
clause. Since the grievor has.alleged, in her grievance,
bad faith in respect of her release on probation, and her
counsel has identified, in the course of argument, that
the bad faith was in relation to the Employer's obliga-
tions under clause 8.01(c), we think that the grievor is
entitled to offer her proof of this allegation so that
we can assess, in light of all the evidence and in light
· of the clear words of that clause, whether or not there
has been a breach of that clause. In this respect,
counsel for the Union also admitted that the onus would
lie upon the grievor, and undertook to discharge that
onus in the course of a continued hearing.
As a matter of contractual interpretation, there-
fore, we have found that the grievor is entitled to
pursue her grievance to the extent that it alleges
discrimination.
We observe, as a matter of taking notice of facts within
the knowledge of the present chairperson, that the Seneca Colleqe
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case did not proceed on the issue of bad faith but was settled, and
that the board of arbitration in that case did not ever have the
opportunity to elaborate what it meant by bad faith in the context
of the articles there at issue, namely the discretion given to the
College to release employees on probation. In a more recent
arbitration, however, Re St. Lawrence College and Ontario Public
Service ~mDlovees' Union, (McDermott), unreported, December 21,
1987 (Brent), the board of arbitration reviewed the award in the
Seneca College (Hacker) case, as well as a number of the earlier
decisions and awards on which that case was based. In particular,
the award in the St. Lawrence Colleqe, case traces the concept of
bad faith back to a decision in Re Municipality of Metropolitan
Toronto and Canadian Union of Public EmploYees, Local 43, unre-
ported, July 3, 1981 (Ont. Div. Ct.), where the following observa-
tion, which is quoted at page 19 of the Seneca College CHacker)
case is found:
A probationary employee would be entitled to succeed on
a grievance in relation to discharge only if he were able
to affirmatively establish that the action of the
employer was taken in bad faith in the sense that the
decision was motivated by unlawful considerations or
resulted from management actions which precluded the
probationary employee from doing hi~ best.
With respect, we think that the decision of arbitrator
Brent has correctly captured the.sense of the concept of bad faith
as used in the award of the present Chairperson in the Seneca
College (Hacker) case.
In our view, the Union's assertion that the contents of
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this appraisal are arbitrable on the basis of bad faith fails on
three separate grounds. First, we observe that there is nothing
in the material before us, including the grievance, the replies
thereto, and other documents prepared by the grievor in the course
of the grievance procedure, to suggest that the grievor has alleged
bad faith in the sense in which the expression is used in the
Seneca C~llege (Hacker~ case. Second, there is nothing on the face
of the appraisal itself on which any such inference can properly
be founded, nor is there even an assertion of improper motivation,
discriminatory animus, obstructive conduct, or any allegation of
an attempt to subvert the appraisal process anywhere in the record
upon which we might ground a right to the grievor to have such an
assertion arbitrated.
Finally, however, we observe that, as the award in the
Seneca ColleGe CHacker) case makes clear, it is in every case a
question of interpretation of specific provisions of the collective
agreement whether the parties have conferred upon the Employer an
absolute discretion, or something less than an absolute discretion
fettered by certain implied limitations on t~at discre%ion, such
as a limitation of reasonableness, fairness or good faith.
We observe that in this case the management rights
clause, Article 7, does not specifically deal with the appraisal
process, but that the entirety of the specific content of the
cOllective agreement in relation to appraisal is found in Article
26. That Article makes a complete distinction between disciplinary
notices, which are grievable and arbitral, and performance evalu-
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ations, which are subject to a right of the employee to reply. In
our view, based on the provisions of Article 26 read in the context
of the collective agreement as a whole, there are no grounds for
implying into that provision a possibility of arbitral scrutiny of
the appraisal document itself on any grounds, even if bad faith
were clearly alleged and consistently asserted.. Bad faith may very
well be an element of an arbitration of one of substantive rights
dependent upon an appraisal, such as release on probation, or
denial of promotion, but the concept ought not to be employed as
a right of entry into arbitration proceedings that the language of
the collective agreement does not contemplate.
In the result, the grievance is not arbitrable, and must
therefore be dismissed.
DATED AT TORONTO, this 29th day of November, 1991.
I concur "R.J. Gallivan"
R.J. Gallivan, Employer Nominee
I concur "Jon McManus"
Jon McManus, Union Nominee