HomeMy WebLinkAbout1988-1272.Walker.90-01-03~ ONTARIO EMP£OY~$DELA COURONNE
CROWN EMPLOYEES DE L'ONTARIO
GRIEVANCE C,OMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
t80 D~NDAS STREET WEST, TORONTO, ONTARIO. MSG 1Z8. SUITE 2100 TE£EPHONE/T~L~PHON£
180. RUE DUNDAS OUEST. TORONTO, (ONTARIO) MSG 1~Z8 - BUREAU 2100 ~ (415)
1272/88
IN THE KATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between:
OPSEU (Walke~)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of Correctional Services)
Employer
Before:
B.B, Fisher Vice-Chairperson
J. McManus Member
G. Milley Member
For the Griegor: N. Coleman
Counsel
Gowling, Strathy & Henderson
Barristers & Solicitors
For the Employ.er: G. Lee
Senior Staff Relations Officer
Ministry of Correctional Services
Hearing: May ]2, 1989 .
DECISION
This case raises the issue as to whether or not a probationary employee, can
be released pursuant to Section 22(5) of the Public Service Act C'P.S.A.") on the sole
ground that the employer was unable to assess the employee's performan,ce due to the
employee being absent for 50% of the probationary period as a result of a compensable
accident.
The parties agreed on a statement of facts as attached as Append£,{ "A". In
addition, the following facts were considered.
1. The grievor's performance was incapable of assessment du, e to the short period
of time she attended at work and that is the ·sole reason, why she was
released.
2. The grievor was not able to perform her job fo{ approximately 50% of her
- probat/onary per/od.
3. The griever was not able to perform her duties after her injury and prior to
the end of the one-year probationary period.
The employer relied on its authority ~nder 22(5) of the P.S,A. which reads as
follows:
A deputy. Minister may release from employment anypubli~
servant during the first year of his employment for failure to
meet the requirements of his position.
The operative word here is "failure". This makes it clear that the employee
must have been given the oppoi'tunity to meet the requirements and failed to' do so
because of something that is attributable to him.
In Ferraro (373/84), Vice-Chairperson Delisle states, at page 10:
We conclude that the grievor was not released for failure to
'meet the requirements of the job since he wax never given an
opportunity to meet the requirements as he was never advised
t. hi~t he was,failing to meet any nor counselled on how to
~mprove.
'Z
In a number of the cases referred to us in the hearing, Ferraro (373/8,~
Delisle), Crooks (1562/87, Draper), Sheppard (2492/86 Sloane), O'Connor (1173, Swan), the
issue revolved aroundwhether or not the employer could release a probationary employee
for attendance problems, that is, for innocent, absenteeism. That is not the case before
us as the employer rests ,their case solely on the proposition that they were unable to
assess the grievor, and therefore she has failed to meet the requirements of the
proposition. They are not relying on the doctrine of innocent absenteeism.
The employer's position can be stated succinctly as follows:
1. Given that the employee was only at work approximately 50% of the. timel
there was not si.tfficient time to determine if she could fulfill the
requirements o'f the position.
2. They do not have the power to extend the probationary period beyond one year
by virtue of SectiOn 6(2) of the P.S.A. and by virtue of 25.1 of the Coilective
Agreement. These sections are as follows:
6 (2) The Commission shall .appoint the person nominated under l
subsection (1) to a posit:on on the probationary staff of the
classified service for not more than one year at a time. ..
25.1 An bmPloyee's length of continuous service will
accumulate upon completion of_a probationary period of not
more than one (1) year and shall commence:
a) ft'.om 'the date of appointment to the Clas_sifiefl Service for
those'iemploy.ees with no prior service in the Ontario Public
Service; 'or
b) from :the date on which an employee commences a pedod qf"
unbroken, full-time service in the public service, immediatetj~
prior to appointment to the Classified Service; or '
c) f_or a re_gular part-time civil servant, from January 1, 1984 or'
-from the date on which he commenced a pet~gd qf unbroken,
pan-time service in the public service, immediatel) prior to
appointment to a ~gg. lar part-time position in the civil
service, whichever ii later.
"Unbroken service" is that which is n,o,,t interrupted by
separation from the public service; "~ll-time" is continuou, s
employment as set out in the hours of work,, schedules for tae
appropriate classifications; and 'part-time is cdntinuous
e.rnp, toYment in accordance with ?he hours of work specified in
Article 61. I. ' -
3. They could not shorten the probation period as it properly takes one year to
assess this position, as it involves both a period of training, at the Ontario
Police College and a period of on-site work.
These could be quite.compelling arguments if the grievor was in fact on
probation for a Correctional Officer CC.O.'') Il position. This Board ii 'satisfied that to
become a C.O. II, it is certainly reasonable for the employer to require the employee to
complete the entire traini~., g course and an employee should not be able to, in effect,
increase Iris chances of achieving the position by becoming ill during the training period..
However, she was not a C,O, II o.n. Probation, she was a C,O. I on probation.
The confusion arises because C.O. I is itself a training position for the C.O. II position.
The normal rule is that.successful completion of the C.O.i. prob,atiofia~ period
automatically leads.to reclassification as a C.O. 1.
The employer wrongly thought that it could not separate the probation
question from the reclassification question. There is no reason, one cannot do ~o and in
fact both her appointment letter (Appendix "A' to the Agreed Statement of Facts) and a
later letter regarding her revised seniority date (Appendix "B") talk of probation and
reclassification as separate terms.
Moreover, although the employer may not have the power to unilaterally
extend the probationary period beyond the one year limit, this must be seen in the
context of the purpose behind the probationary period. The purpose is for the employer
to have a proper opportunity fo observe the probationer in order to make the ultimate
assessment of whether Or riot that pe~:son is suitable for the permanent position
(Sheppard p. i8 and 19~supra). One cannot assess someone's performance while they are
not performing the job due to a compensable injury, therefore, in.order for the employer
to have a proper one year. period to assess the employer, it could have treated the time
in which the grievor was off sick as'not counting a~ part of the probationary period.
The one year restriction in Section 6(2) of the P.S.A. and Article 25.1 of the Collective
Agreement should be ~iewed as referring to "working time" not "calendar time".· This
means that the employer 'could not extend the probationary period of an employee beyond
one year simply because they did not feel twelve months of working time was sufficient
to judge the person but it:does allow them to insist that they have a full twelve months
of working time in which i~o assess the employee and the~y should not be forced to make
an assessment on the basis of less than twelve months of working time.
Therefore the employer in this case could have arid should have not counted
the time in which the grievor was off on Workers" Compensation Board ("WlC.B.") as part
of her probationary perio:d. Once she was sufficiently recovered to return to work, the
"probationary time cloCk'l would start up again and she would then complete the balance
of her probationary per/Od.
Of course they Would not have to reclassify her until she had completed the
requisite training and sui:;ject to satisfactory service, in other Words, not until she
completed her probationary term. "
Having said that. the employer could have taken this action, does it make the
action which the employer actually did take a dismissal and not a release.'?
Section 22(5) of the P.S.A. requires a finding that the employ, ge failed to meet
the requirements of the position, which in this case is a C.O.. I. position. The employer
presented no evidence to si~ow that the grievor failed to meet those requi~'ements, in fact
they admitted they did not even assess her suitability ~.a C.O.,I, rather, it seems they
thought their task was to assess her suitability as a C.O. II. ·
It is not necessary therefore in this case to examine the bo.na fideg,
reasonableness or rational· connection between the facts an.d the release as was done by
Vice chairperson Sloane in Sheppard (s.upra) as the employer admit.s they did not assess
her suitability, If it was necessary to do so, this Board would find thatit is not bona
fide nor reasonable to determine that someone is unsuitable for a position when you have
not a proper opportunity to. assess them.- ~.
It therefore is not possible for the.employer to saY that the term]nation was
in accordance with Section 22(5) of the P.S.,A.
But, having come to that conclusion,.does it automatically .mean that this
Board has the jurisdiction to review the decision under 18(2)(c) qf C,E.C.B.A.?
In order for this Board to have. jurisdiction.under that Section it must'be that
the termination of employment constitutes a dismissal without just cause.
Gibson (634/84 Swan)is author/ty for the proposition that dismissal without
just cause in the context of Section 18(2)(c) of C.E.C.B.A. need not be disciplinary in
nature and therefore it covers non-disciplinary dismissaIs (like innocent,absenteeism) as
-6-
It is clear that in one way or another the grie¥or's employment was
terminated. A termination of employment in the Ontario public service must be
characterized as one o'f the following:
a) resignation (P.S.A. Section 19);
.b) abandonment (P.~.A. Section 20);
c) disrn/ssa/for just cause (P.S.A. Section 22(3));
d) layoff (P.S.A. Section 22(4));
e) release during first year of employment for failing to meet
requirements of job (P.S.A. Section 22(5));
f) death (no specific'section);
This is clearly not a resignation, abandonment, layoff or death situation. We
have already decided that it is not a release as no 'assessment was even made of her
,,,
suitability as a C.O.I.'Therefore, the only thing it can be characterized as is a
dismissal for just cause. '
,This clearly gives flue ,Grievance Settlement Board the authority to review the
decision pursuant to Section I8(2)(c) of C.E.C.B.A. -,
As the employer is not even saying that they had just cause for dismissal, this
Board finds that the termination was a dismissal without just cause and thel appropri'ate
remedy must be fashioned, t ..
The appropriate remedy in this case is to do now what the employer should
have done when the grievor suffered the injury. In previous cases; notably 'Sheppard
(supra) and Nicholson (}1294/88 Ratushny), the Board saw fit to reinstate the employee
with an order that he:was to be credited with a'specific amount of probation and be
required to work out i'the balance of his probation period.
-7-
The .Board therefore orders as follows:
i. The grievor is to be reinstated immediately with the status of a probationary
employee having completed six months of a one.year probationary period.
2. She is to be reclassified to a C.O. II position only upon the successful
completion of the requisite training courses and upon satisfactory service.
3, She is to be compensated for all lost salary and benefits, taking into account
that for a substantial period she was on W.C.B.
4. She is to be awarded interest on alt amounts owing as they became due at the
rate of 10% per annum.
5. This panel of the Board is to remain seized of any problems regarding
implementation of this award.
Dated at Toronto this 3~'d - day of ,~anuar~,, 1990.
~ Vice Cl~airperson
Ml~vlanus, Memoer ,
OPSEU File No. 89A189
GSB File No. 1272/88
OPSEU
( SUSAN WALKER)
-and-'
'MINISTRY OF CORRECTIONAL SERVICES
AGREED STATEMENT ~OF FACTS
1. MS. Susan 'Walker began her employment with the Ministry of
Correctional Services ("Ministry') at the Vanier Centre for Women
on October 20,. 1986 as a Correctional Officer 1 in the
unclassified service. As the result of a competition., Ms. Walker
was hired tO the classified service as a Correctional Officer !
effective April' 18, 1988. A copy of the offer letter of
employment dated,April 21, 1988 is attached as Appendix A. .,
2. In view of Ms. Walker' s prior full-time unclassified
service, her probationary period was reduced pursuant to Article
3. 13. 1 of the.': collective agreement. She was a~vised that her
appointment to the regular staff would take effect on December
28, 1988, subject to satisfactory' service. Ms. Walker was also
advised that s.he would be reclassified to Correctional Officer 2
on December :'28, 1988, subject to satisfactory service and
completion of the staff training courses. A cody of the letter of
.:
notification dated April 20, 1988 is attached as Appendix B.
3. On July 7, 1988, while a%ten~ing a training co'urse at the
Aylmer' Police 'College, Ms. Walker was injured in an extra-
curriculum Volleyball game. She was. seen by a physician, Dr.
Doherty, on July 7, 1988 and he advised the .College that Ms.
Walker had fractured her left ring finger and was-to be on light
duties only for up to six weeks. A copy of the memorandum of Dr.
Doherty's verbal order dated July 8, 1988 is attached as Appendix
C.
4. Ms. Walker completed the training course on July 22, 1958,
except for 'the sel'f-defence component .which was to be added to
her future tr~ininq courses.
5. Ms. Walker reported for her regular shift at the Van~er
Centre for Women 'on July. 25, 1988.. Because of 'her injury and Dr.
Doherty's recommendation for light duties, she' was assigned to
work in the control office of .Invic%us Cottage. Ms. Walker
completed' the shift but was granted time off the following day to
see her family doctor.' Ms. Walker supplied a medical certifzcate
dated July 27, 1988 which indicated that she would be off work
for 6-8 weeks due to the fracture of her finger. A copy of the
medical certificate dated July 27., 1'988 is attached as Append;x
6. An application for workers' compensation benefits for Ms.
Walker was completed at Aylmer Police College at the time of the
injury. Ms. wal.ker was advised by the Workers' Compensation Board
on August 16, 1988 that her claim had been approved. A copy of
the Board's letter dated August 16, 1988 is attached as Appendix
E.
7. The Ministry is a Schedule 2 employer under .,the Wo~e~s'.
CQmDp~s~tion Act and as such 'is liable individually under section
5 of the Act to pay compensation and health 'care with respect to
a claim under the Act. Ms. Walker was paid her full salary by
the Ministry Pursuant to Article 54. 2 of the collective
agreement for the' three months following her absence due to the
injury.
?
8. On September 8, 1988, MS. Walker advised ~Vanier Centre that
she had been r~ferred to a specialist and her appointment was
s~heduled fok'O'~tober 7, 1988. Mr. Doug rOliver, Senior Assistant
Superintendent (A), contacted Ms. Walker on October 4, 1988 to
request further medical documentation..
9. Ms. walker supplied a medical certificate, which Vanier
Centre received on October 13, 19,88,. indicating that she required
surgery to her finger and approximately 8-12 weeks off work for
post-surgical recovery. Ms. Walker also provided a personal
letter tO Mr. Oliver outlining her situation. Copies of Dr.
,.
Beatty' s medical certificate dated October 6, 1988 ' and Ms.
Walker'S letter, undated, are attached as Appendices F and G.
t0. On October 19, 1988, Ms. Walker was notified by letter that
she was immediately being released from her employment ~or
failure to meet the requirements of the position, further. to
'section 22(5) of .the Public ServsQe ~c=. She was also advised
that "since you have not been available for work from-July 25,
19'88, we have been unable to assess your ability %o perform, th~
'~.equired job functions. Additionally, the medical you have
submitted indicates that you.will be unable' to attend t° your
position for a minimum of two to three months further." MsJ
Walker was informea that a reapPl~cation~"for a .-Position at the
vanier Centre at a future data would be given favourable
consideration. A copy of the · letter of 'Ms. R. Picketing,
Superintendent, dated October 19, 1988 is attached as Appendix H.
11. At no time prior to October 19, 1988 was Ms. walker advised
that her attendance record was unsatisfactory or that she might
be released for failing to meet the requirements of her position.
Ms. Walker's attendance record between October 1986 and July 1988
was excellent. She missed no more than three days, and no days at
a!~ after her appointment to the classified- service in April
-5-
1988, prior to her injury.
12. Ms. Walker continued to receive workers' compensation
benefits paid directly to her from the Workers' .Compensation
Board after her termination.
13. The parti..esl, agree to the above-noted facts and agree to
place those facts before the Grievance Settlement Board at the
hearing into this matter. This agreement does not preclude the
parties from adducing evidence with respect to facts not set out
in the Agreed Statement of Facts.
FOR TH~ MINIsTRy':. FOR THE UNION:
Correctional Centre for
L6V 2M$
Services Women
Ontario '
April 21. 1958
Ms. Susan Walker,
Correctional Officer,
Vanier Centre for Women,
P.O.Box IlSO,
Brampton, Ontario.
LbV 2M5
Dear Ms. Walker:
I am ,pleased to advise that you were a successful
candidate in. the re'cent competition {'or a
Correctional Officer I position at the Vanier
Centre, effective April 18, 1988. · ·
Your salary will be S13.Z$ per. hour an~ vpu will be
on the probationary_ st~ff for a one-year period,
durtd~ which time your performance will be subiect
to resular review and assessment,
Since the position 'you occup~ ts classified -as
Correctional O'fftc~r 1, ~our-appoi. ntme'nt is regarded
as a'n underflll. You will be eligible for 're-
classification to~_CorrecttOnal Of~jcer 2 after one
year's service, provided-that you have a) completed-
successfully the prescribed S~aff Tratnin$ Course.
and b) exhibited satisfactor~ performance durins
your probationary period.
· Please note th&t ?o~ are tn the barsaining unit, the
' A~ent bein~ the Ontario Public Service Eznployees
Union, 190! Yonge Street, Toronto,. Ontario. Your.
local union representative ts Ms. ~011een Wtlson~_-
Dick, Yanier Centre,
I would like to personaIl? congratulate you and.
welcome you to the classified staff of the Vanier
Centre. I hope that you ~tll find your position
both challenging and rewarding,
Yours truly,
Superintendent
Correctional Region
Se~ices
Ontario
Ms. Susan Walker
Correctional Officer
c/o Superintendent :
Vanier Centre for women.
Dear Ms. Walker:
Reference is made to Mr. Leithead.'s let=er to you regarding
your ~robationary appointment.
Your full-time unclassified continuous service since
December 28, i987 has the following effects on your appoin~znent:
-seniority date and benefit credi= date backdated =o
December 28, 1987;
-group insurance and dental benefits will become effective
May l, 1988;
-regular staff appointment may ~ake effect on December
28, 1988 subject to ~sat£sfactory service;
-reclassification to Correctional Officer 2 level_ may
take effect on December
service and competition of staff training courses
.- If you have any questions on
please con=act this office through your Superintendent.
Yours truly
'W.~. Thomas
Regional Personnel Ad, inks=fa=or
Cen=rat Region
WBT:DA:da
cc: Super~n=enden~ '
personnel records
competition file
employee file
memorandum
CERTIFICATE
FOR RETURN TO WORK OR SCHOOL
Medical vi{~il Only · ~ Continuing care
' ;, A~r Newmarket, O~lar~ t3Y
Wo~' Cewn~%tm~lon 2 Bloor Street East Telephone: (416) g27-1840
C. eml~m~atlm 4em earl f:-nte Toronto, Ontario For toll free calling,
Bea~'~l da tmltl M4W 3C3 telephone 1-8(X)-~87-0025
WALKER SU~'- D ~a~e: 16AUG88
RR #3
TOTTENHAM 4¢ct~en~ oa~,: 07JULS8
ONT LOG 1WO
Dear Sir or Madam:
Claim No: 16666136-5
Your claim has.been approved 'and a payment of compensation
is being processed. Any enquiries can be directed to the
telephone number listed below.
For toll free service, refer to the telephone numbers listed
in your local telephone directory.
Yours very truly,
CLIENT SERVICES DIVISION
Telephone: (416) 927-1840
When writing the Board be sure to quote Claim .No, 16666136-5
2127A {08/87) N1ALWD'
Ministry of~ Vanier Centre . t~c~hr~ ..o. ao~ ~so'. ~'
" ~ramplo~. Ontario
Correctional ~ ~ '
L6V 2M5
Ontario
O~ober 19,,1988
Ms.Sue Walker,'.
R.R.#3,
Tottenham, Ontario.
LOG iWO
Dear Ms .Wal~e~:
Further to Section 22 (5) of the Public Service Act, you are
immediatelyI being released from your employment .wi:h the
Vanier Can:re for Women for failure to meet the requirements
of the posi:ion.
Since you have not been available foe work from July 25, 1988,
we have been unable to assess your ability to perfo~m the
required job .£unctions. Additionally, the medical you have
submitted indicates that you will be unable to attend to your
position for a minimum of two to three months further.
If at a future date you wish :o re-appl~ for a position at the
Vanier Centre, your application will be ~iven favourable
consideration.
Yours truly;
R. Picketing,
Superintendent
RP:pa