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HomeMy WebLinkAbout1989-0143.Lau.90-06-12 ONTA~O EMBOSS DE ~ COURONNE CROWN EMPLOYEE$ DE L'ONTA~O GRIEVANCE CQMMISSION DE SETFLEMENT REGLEMENT BOARD DES GRIEFS t80 DUNDAS S~T WES~ TORONT~ ON~Rt~ M5G 1~ - S~ 21~ TELEPHONE/TEL~HONE t84 RUE DUNDAS OUES~ TORONTO, (ON~ M5G 1~- BUR~U 2100 ~1~ 598-0~8 143/8~ IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLENENT BOARD BETWEEN: OPSEU (Lau) Grievor - and - The Crown in Right of Ontario (Ministry of Municigal Affairs) Employer BEFORE: G.J. Brandt Vice-Chairperson M. Vorster , Member A. Merritt Member FOR THE N. Roland GRIEVOR: Counsel Cornish & Associates Barristers & Solicitors FOR THE I. Werker EMPLOYER: Counsel Fraser & Beatty Barristers & Solicitors HEARINGS: August 2, 3, 1989 October 13, 20, 1989 November 1, 24, 1.989 AWARD The grievor is a probationary employee who was "released" from employment on January 20, 1989 following an unsatisfactory performance appraisal. Both the performance appraisal and the "release" are before the board in this proceeding. The grievance characterizes the "release" as a "dismissal" which has been effected without cause. At the outset the Ministry argued that the Board lacked jurisdiction to hear the complaint against the termination of tke grievor's employment since, as a "release" under the Public Service Act, it was not arbitrable. Consequently, the Board heard evidence concerning the grievor's employment for the purpose of determining whether or not the .action of the Ministry could be characterized as a "release" or as a "dismissal". That evidence also serves to permit the Board to deal with the performance appraisal grievance as well. The grievor was hired as a Financial Analyst in the Financial Management Branch of the Ministry of Municipal Affairs following a competition wherein she was judged by the selection panel to be the best candidate among the 4 candidates who had been interviewed. Although the selection committee had been seekin~ someone for an entry level position and did not require that candidates possess any formal qualifications,, the grievor, who has both a Bachelor of Commerce (Concordia) and is a Certified Management Accountant, 3 had qualifications far superior to those of any of the other candidates and she was awarded the job. The Financial Management Branch provides a service to municipal treasurers and auditors with respect to financial reporting obligations arising under the Municipal Act. Financial Advisors, (all of whom have some accounting designation, viz, CGA, CMA or CA) review financial statements submitted by the municipalities with a view to determinin~ whether or not they are- in compliance with ~he requirements of the Act and with the provisions of the .Municipal Financial Reporting Handbogk (hereinafter referred to as the handbook). The handbook sets out various accounting principles which are uniquely applicable to municipalities, establishes the standards for what should'be included in a financial statement of a municipality, and prescribes the format of those s~a~ements. The handbook is used by municipal treasurers and auditors ak a guide to assist them in the preparation of the financial ssa%emends which are to be returned to the Ministry. The job of Financial Analyst involved essentially three functions: review of financial statements for compliance with the handbook; the Preparation of letters, to be sent to treasurers and municipal auditors, identifying omissions or errors 'in financial statements; and maintenance of a data base of errors (which data might be used for such purposes as clarifying provisions of the handbook). 4 The review of the financial statements (estimated to comprise approximately 80~ of the duties) and the consequential identification of errors found therein is accomplished through the use of a checklist. The Financial Analyst goes through the .financial statements and checks off on the checklist whether or not the statement complies substance and in. form with the requirements of the handbook. In many instances all that is required is a "yes" or "no" answer. However, in some instances~ some element of judgment is required. For the first three weeks (approximately) of her training the Grievor was Given the opportunity to review the contents of the handbook and checklist and to familiarize herself with the Municipal Act. At the completion of this period she began training on the job of reviewing a financial statement. It was intended initially that each of the Financial Advisors (of whom there were 5 in the Branch) would select ten financial statements fcr the Grievor to review and that she would discuss her work with each of them individually. This had been the practice that the 'Branch had followed with respect to summer students who had done this work in earlier years. However, this practice was changed with respect to the Grievor. Mr. Murray Lawson, the 'manager of the Branch, testified that it had been decided that, it would be better to co- Ordinate the Grievor's training in order to minimize the risk that she might receive inconsistent or confusing training from different advisors. 5 Such inconsistency apDeared~ to have arisen with resDec~ to certain reviews which the ~rievor did for one of her advisors, Mr. Kimura. Apparently Mr. Kimura had given the grievor different instructions than she was getting from others. Consequently, it was decided around the end of July that, while the grievor would continue to receive her assignments from all of the advisors, she would be trained primarily by one of them selected by Mr. Lawson. That person was Ms. Mare Brown. The grievor stated that she understood that Hs. Brown was to be making all of the decisions concerning her review of the statements; that she was to take all of her directions from Ms. Brown. Consequently,. she minimized the contact which she had with the other advisors for whom she was conducting checklist reviews. Ministry evidence conflicted with this understanding. It was the evidence of Mr. Lawson that each of the advisors was to have some responsibility for the training of the grievor. Furtker, the grievor had~been told that she .should speak to the other advisors or with Mr. Lawson himself if she had questions concerning the particular financial statements that she had been assigned to do by them. Ms. Brown confirmed that the grievor believed that she was working for all of the advisors and asked for some confirmation from Mr. Lawson when she was told that Ms. Brown would have some specific authority over her. The grievor offered another exDlanation for her general reluctance tO discuss her work with the other advisors. Shortly after she arrived in the office she learned of various problems and conflicts within the branch. In particular she learned that Mr. Kimura (a 20 year employee) was upset ~hat Ms. Brown (a 2-3 year employee) had received a promotion. Rather than involve herself in "office politics" she decided to keep to herself, thereby reinforcing what she described as her natural tendency not to be very "outgoing". In cross examination she denied the suggestion that any subsequent difficulties which she had with Ms. Brown were a result of her feelings concerning.this conflict. Although Mr. Lawson and Ms. Brown were available generally to deal with problems which the grievor may have had each of them was engaged in other pursuits in the early period of her training. Mr. Lawson was seconded from the branch from July 5 to August 22 and, 4 days after his return from this secondment, he took a vacation from which he returned on August 22. Ms. Brown was working on a pilot project which took her out of the office for two days a week (Monday and Friday) during the months of July and August. Moreover, when she was in the office she was involved for part of her time~ working on the project although, in Mr. Lawson's estimation, not to such a.n extent that she was not sufficiently available to provide supervisioa and training for the grievor It was the grievor's evidence that, during this early period of her training, Ms. Brown was neither very available nor very helpful. When in the office she was frequently on the telephone' or working at her computer and, according to the grievor, had indicated that she was too busy and did not want to be disturbed. 7 ~o regular schedule of formal training sessions was established; generally the grievor was expected to approach Ms. Brown with any questions that she may have had concerning the review of financial statements. According to Ms. Brown the grievor, who began to review some statements in the month of July, did not approach ~er or any of the other advisors with any . questions. Such contact as there was, according to MS. Brown, consisted of arguments over how she was completing the checklists. The grievor disputed that evidence. She stated that she had gone to see Ms. Brown several times but that she was either on the phone or working at the computer and had indicated that, she did not wish to be disturbed. In late July Ms. Brown, who remained concerned abou~ the absence of any questions from the grievor, verbally.asked her To provide her with a list of the financial s~atements she had reviewed to date, along with a description of the errors and the types of errors found, to be accompanied by the financial statements reviewed and the 1987 review checklist. This was tc give Ms. Brown an opportunity to assess the grievor's work in reviewing financial statements. When Ms. Brown repeated this request in writing on August 16, and asked that the material be made available by August 18. the. grievor inquired as to why Ms. Brown had put such an early deadline on the completion of the work. It then became evident that the grievor had misunderstood Ms. Brown's request and had thought that she was expected to complete the review of all the financial $ statements that she had been assigned to date. As she had been told by Mr. Lawson that the assignments did not have to be completed until the end of August she was confused over the August 18 deadline established by Ms. Brown. Ms. Brown, after checking some of the statements found what she regarded to be a large number of errors in the grievor's work. Rather than check all of the statements, she prepared a list of her comments on the statements that she had checked and,., at a meeting on September 22, gave those comments to the grievor wi~h a request that she prepare a redly (as a basis for discussioni, Further she instructed the grievor to re-do the other statements "with more care" and repeated the invitation to ask questions if she was not sure whether or not something was an error. At the September 22 meeting Ms. Brown discussed some of h~r concerns with the grievor. She pointed out that in earlier years summer students had been able to perform the work without difficulty and that the grievor's attendance record was Door. The grievor stated that she found the financial reviews "boring", that she preferred to be in the library reading rather than work in her office; and that she thought that she and Ms. Brown had a personality conflict, a conclusion with which Ms. Brown disagreed. Subsequently, Ms. Brown met with Mr. Lawson and told him that, in view of the difficulties she was having with the grievor, she should no longer be involved in supervising her. Mr. Lawson requested her to put her concerns in writing and Ms. Brown gave him a draft. That draft included a description of the grievor as "dishonest", based on Ms. Brown having observed the grievor filling a bag with extra cream,and sugar at a restaurant. Mr. Lawson asked Ms. Brown to prepare a second draft and to delete the reference to dishonest which he found to be irrelevant. The revised draft, {to which was attached Ms. Brown's comments on the grievor's checklist review), contained a number of comments respecting the grievor's performance. It described her Overall Performance as "Unsatisfactory", and her Attitude as "Argumentative, stubborn, uncooperative, refuses to take constructive criticism, reactive, rude, refuses to accept verbal instructions - insists on everything being in writing." Her Technical Competence was described as "unsatisfactory" in that she was unable to follow written instructions and that she showed lack -of due care in financial statemen% review. In general it was Ms. Brown's view that the grievor had "antagonized everyone in the department to the point where most people .will not speak to her directly" No recommendation for release of the grievor was made at this point. Ms. Brown was cross examined at length on her comments in the September 22 memorandum. With respect to the claim that the grievor "insisted on having everything' in writing" Ms. Brown conceded that a request, in an August 24 memorandum from the grievor~ to Ms. Brown, asking that any "significant changes or additions to her responsibilities" be put in writing was a reasonable request. 10 The August 24 memorandum also "welcomed" comments from Ms. Brown. However, Ms. Brown persisted in her claim that the Griever always reacted defensively to criticism and that, generally, she had a poor attitude. As evidence oX an inability to follow written instructions, which Ms. Brown saw as "unsatisfactory" technical competence, reference was made in the memorandum to an incident in which the Griever f~iled to correctly read a memorandum concerning {he arrangements for a staff meeting which was to be held at Ms. Brown's farm in Stratford on August 10. Members of the Branch were expected to have lunch, attend the theatre and have a barbecue following which the meeting was to be held in the evening. Ms. Brown stated that the order and times of events was clearly set out in the memorandum. However she claimed that the griever was under the impression that the barbecue would be held at mid-day and that the meeting would be held immediately after, that ~s, in the afternoon. When the griever learned that the meeting was not until the·evening she. returned to Toronto as she had made no arrangements for anyone to look after her child. [It was the griever's evidence that she arrived at Stratford in the morning, that when it appeared that a number of people would be late for the meeting Mr. Isaac (the Branch Director) said the meeting would have to be held back at the office. Consequently, after having had lunch the griever said that she was returning-to Toronto. No one said anything to her at that time about missing the meeting.] ii Ms. Brown conceded in evidence ~hat missing the meeting was "not a big point" but maintained that it was evidence of 'how the grievor was careless in reading instructions. [The memorandum announcing the meeting was not Produced in evidence.] Nor did Mr. Lawson regard the incident as very serious at the time. Apparently there were no minutes taken of the meeting although Ms. Brown denied that it was merely a social occasion. She stated that the purpose of the meeting was to discuss" where the Branch was-.going as a Branch". However, in this regard it should be noted that a number of other people, including Mr. Lawson {who was at that time on vacation), did not attend the meesing. In her evidence the grievor denied many of the allegations contained in the memorandum of September 22 from Ms. Brown to Mr. Lawson, viz, that she insisted that everything be in writing; that she "refused" to take direction, that she refused to accept verbal instructions. Generally Ms. Brown denied the Suggestion, put to her in cross examination, that she "disliked" the grievor. She stated that she always tried to maintain her objectivity but that she'was "frustrated" by her inability to "get through" to the grievor. Mr. Lawson, whose September 28th performance appraisal was based on Ms. Brown's September 22 memorandum, did however concede that in various respects Ms. Brown had exaggerated the failings, of the grievor. For example, the claim that the grievor "insists on everything b~ing in writing" was admitted to be an exaggeration. 12 However, while this concerned Mr. Lawson, he did not think 5hat it indicated any Dersonal dislike of the grievor by Ms. Brown. Ms. Brown had also suggested that the grievor was uncooperative in that she had "refused" to take directions from Ms. Brown unless told to do so sDecifically by him [Lawson], a reference to the misinterDreted assignment. ~supra). Mr. Lawson conceded that in the circumstances the grievor's conduct did not constitute a "refusal" to carry out instructions as Ms. Brown had claimed. As for the claim that the grievor lacked Technical Competence, .as evidenced by her alleged failure to .read correctly the memorandum respecting the~ barbecue cum staff meeting, Mr. Lawson readily conceded that this example had little to do with .the ability of the grievor as a~ accountant. He also conceded that the selection of this incident, one involving a failure to attend at an event which was hosted by Ms. Brown, as the first example relied upon by her as indicating a lack of technical competence, suggested that Ms. Brown'was not entirely objective in her assessment of ~he grievor. However, notwithstanding the fact that Mr. Lawson had certain concerns about Ms. Brown's objectivity, he nevertheless steadfastly held to the belief that she had remained "fair and reasonable" in her assessment of the grievor. As indicated, on September 28 Mr. Lawson met with the grievor to conduct a formal performance appraisal for the quarterly Deriod June 13 to SeDtember 13. In preparation for that meeting he 13 prepared a written performance evaluation which was based on The memorandum of September 22 from Ms. Brown and on discussions wi~h other advisors who had contact with the grievor. He also familiarized himself with ~he criti'cisms that Ms. Brown had made of the grievor's review of financial statements thus far. In that regard he conducted his own independent review of those, statements and satisfied himself that the comments made were relevant and appropriate. The performance evaluation only evaluated the grievor on h~r work in connection with the reviewing of financial statements since. she had not been in the branch long.enough to permit an evaluation of other aspects of her duties, viz, writing letters, etc. I ~ ' ,addition the grievor was also evaluated on various personal factors, viz, dependability, attitude, co-operation in the work place, motivation and attendance. The evaluation stated that the griever had "failed to identify a number of errors or failed to provide more information on certain errors which were identified. Monica needs to ask more questions of senior advisors when reviewing statements in order to ensure that the reviews are thorough and correct." The grievor was upset about Mr Lawson's comments and felt they were unjustified in that they relied too heavily on the opinion of Ms. Brown. Mr. Lawson replied that he had done his own independent, review and that he agreed with Ms. Brown's comments. The grievor was criticized for not seeking advice from other advisors. Although Mr. Lawson admitted that primary responsibility 14 for the early portion of the grievor's training, when she was learning how to review financial statements, rested with Ms. Brown, he maintained that the grievor was not restricted from speaking to other 'advisors or to himself. Mr. Lawson proceeded to a discussion of the factors of Dependability, Attitude and Attendance but generally was faced with disagreement from the grievor over most of his observations. Eventually the meeting ended with the Grievor refusing to sign the performance appraisal. Mr. Lawson testified that the grievor "walked out" of the meeting, a claim which the grievor denied. In evidence the grievo~ stated that she was very upset at the tone of the performance appraisal and surprised at much of the phrasing which she regarded as questioning her ability. She was particularly upset about the inclusion in the performance appraisal of references to certain criticisms of Beth Harlow concerning the grievor's lateness for and performance in two computer courses which she had attended. She did not believe that matters of that kind should be the subject oX a performance appraisal particularly when they were based on what she regarded as false hearsay from Ms. Har 1 ow. Ms. Brown continued to act as the ~rievor's supervisor until October 28 when she advised Mr. Lawson that she could no longer supervise the ~rievor and recommended that she be released. From this point Mr. Lawson became her direct supervisor although the Grievor claims that she was never told of this change. 15 In early November a meeting was held to discuss the performance appraisal, of September 28. In attendance a~ 5hat meeting were the grievor, Mr. Lawson and ~r. Isaac. The grievor expressed her concern over the performance appraisal and what it mean to her job prospects if she applied elsewhere. She was assured that there was nothing in it that could not be overcome if she set her mind to correcting her Droblems. The grievor said that she felt that Ms. 'Brown had not been fair in her review o.f the grievor's work. It was suggested by Mr. Isaac that the grievor and Mr. Lawson get together to review the financial statements that had been the. subject of Ms. Brown's critical comments and which had formed, in part, the basis for Mr. Lawson's appraisal of the grievor's work performance. To that end a meeting was held on November 7 at which time the grievor and Mr. Lawson went through each of the financial statements and the accompanying checklists point by point with Mr. Lawson explaining to the grievor why Ms. Brown had made the comments that she had. Apparently this proceeded without difficulty until they came to consider the financial statement for the Village of Grande Valley and, in particular began to discuss an error that neither the grievor nor Ms. Brown had picked up in ~heir respective reviews. An argument broke out over the proper way to complete the checklist where discrepancies existed between the opening.and closing balances in successive years. It is unnecessary to recite the details of the dispute. It is sufficient to state that the 16 handbook indicated that a discrepancy should have an accompanying policy note and the checklist required that where no note was present the discrepancy should be recorded. There ~as no note on this statement but the grievor declined to check this off as she had been able to reconcile the discrepancy. Mr. Lawson tried to explain to her that it did not matter that she was able to reconcile the figures; that a checkmark was still required indicating that the balances did not agree. However she remained adamant in her opinion and would not accept Mr. Lawson's advice. The meeting degenerated into a shouting match and was terminated by Mr. Lawson. On the following day, November 8, Mr. Lawson wrote a memorandum reviewing the events of.the previous day and commenting again on the failure or reluctance of the grievor to seek advice from other advisors, and on her reluctance to take any criticism of her work. The memorandum concluded by stating tha~ if her tendency to adopt a defensive and/or argumentative mode was not corrected, her training would be seriously impeded and she may no5 be able to assume the. full responsibilities of the position. On November !0 the gr~vor presented Mr. Lawson with a memorandum setting out her views concerning the performance· evaluation of September 22 and the memorandum of November S. She blamed much of her difficulty on the fact that almost all of her contact, was with Ms. Brown with whom she had a difficult relationship. She regarded Ms. Brown as "over zealous" in her role as supervisor, as Drone to take a "predominant role" in their 17 discussions and to "dominate" in her opinions. As for the observations tha5 she failed' to consult with other advisors the grievor stated that in her time in the branch she had done only financial statement reviews and ~hat at no time had she had other assignments with brought her into contact with other advisors. Such contact as she had with the advisors was, in he~ opinion, "mutually agreeable" With respect to the argument which developed between her and Mr. Lawson a~ the November 7 meeting over the review of the Village of Grande Valley statement she stated that her reaction was ~o the attitude that Mr. Lawson took, that is, that~this particular error supported his evaluation of her. She claimed that his criSicism was unfounded because he had not examined a revised financial statement from the Village.which statement apparently contained the appropriate policy no~e. Mr. Lawson testified that the financial statemen~ which the grievor had brought ~o the November 7 meeting and which had been discussed by them was an unrevised statement. It was also his evidence that during the discussion she made no men~ion of ~any revised statement. He admitted that if the grievor had reviewed a revised statemen~ there would have been ne error in her work. He also admitted that, on the assumption ~hat she had worked oa a ~evised statement, his insistence that she had made an error mi~kt reasonably lead her to be "defensive" and "argumentative" over his attribution of errors to her. However, he persisted in his claim that he' was not aware that she had worked on any revised statement i$ and stated that if he had been aware of that there would have been no ar~umenu. No evidence was produced which would indicate that the grievor had in fact ~orked on a revised statement. The next dispute between the grievor and Mr. Lawson was over her work in connection with the review of all of the financial statements prepared by a particular audit firm. When Mr. Lawson examined her work he discovered what he considered to be a. number of errors and sent his comments to the grievor in a memorandum of November 24. The grievor responded by memorandum of December 2 in which she argued that of the 25 "errors" which Mr. Lawson discovered only 3 could be considered as errors. As for the rest she suggested either that Mr. Lawson had "failed to identify additional information" or "did not extend the depth of his analysis" or that there was insufficient i'nformation in the statements to warrant a conclusion that there was an error or that'the "error" was subject to a difference of opinion in the interpretation of the handbook. She questioned the "intent" and "credibility" of "the reviewer's" remarks and suggested that his remarks reflect a "lack of appreciation of the efforts made [by her] to carry out the job" and a "personal insult to her ability" Attached to her memorandum was an outline of her position with respect to each of+the statements that had been reviewed, a position which she maintained at the hearing. After this memorandum was received by Mr. Lawson he met with the grievor on December 5 to discuss their disagreements. While 19 they agreed on one or two matters it became apparent that each had a radically different approach to what c~nstituted an error. On each point they argued extensively over their respective positions and, with rare exceptions, could agree on none of them. When they came to discuss the statement for the Town of Paris they disagreed over the same issue that had divided them concerning the Village of Grande Valley, viz, whether or not it was appropriate for the griever to omit making a mark on the checklist where she was able to "reconcile" discrepancies in the opening and closing~fund balances. Mr. Lawson testified that, contrary to his instructions, the grievor insisted that she would continue to ignore these errors if she could reconcile the balances. When Mr. Lawson told her that he. was Giving her an "order" to do it and she persisted in her refusal, he teYminated the meeting. No evidence was called by the grievor to refute this incident. Later, on December 12, Mr. Lawson wrote a memorandum to the grievor confirming' the December 5 meeting and commenting on the events that transpired at the meeting. He observed that it was apparent to him that "your only intent was to attemp2 to prove tha5 I was wrong and that you were right." The grievor testified that this was an unfair characterization of the events. She stated ~haz she merely w~nted 5o clarify things as there was ~ conflic% between what Mr. Lawson had been telling her and a previous checklist. Shortly after the conclusion of the December 5 meeting Mr. Lawson came to the decision that the Grievor should be released. Consequently he went to Mr. Isaac and requested him to have the 2O Personnel Branch prepare a letter of termination on the basis that the grievor could not be trained to fulfil the responsibilities of her position. In due course a letter, originally dated December 9, addressed to the grievor was prepared by Mr. Vidan for Mr. Isaac's signature. That letter concluded that the grievor's training had not been successful and informed her that she .was being released from employment "for failure to meet the requirements of the position". It was apparently intended to deliver this letter to her on December 9. However, owing to a family emergency it became necessary for the grieuor to seek permission to take her vacation. That permission was granted by Mr. Lawson and the grievor was absent on vacation from December 15 to December 30 and was scheduled to return to the office on January 3, 1989. The decision to grant her a leave of absence postponed the time when the Ministry could release the grievor. Moreover, it was' believed that it would still be ~necessary to monitor her assignments and to continue to evaluate her performance until such time as she was released. In that regard Mr. Lawson prepared a memorandum (December 12) for the grievor reciting the events of the December 5 meeting, informing her that her continued employment depended on her ability to be trained successfully, and telling her that upon her return she wou~d be given further assignments. No mention was made of any decision to release her from employment. At some point, [it is not clear when] Mr. Lawson received an assignment which he had given the grievor to do on November 22, 21 viz, review of some statements and preparation of sample letters. He reviewed that work ~nd, on December 15, wrote a memorandum to the griever in which, he identified some errors in her completion of the checklist and informed her that she'had neglected to do some of the letters that he had asked her to do and also that those which she had done were not in acceptable either in form or in content. Mr. Lawson asked her to re-do the original letters and prepare the ones that had been missed initially and to submit her work to the acting Manager by January 4, 1989. [He planned to be absent on vacation from December 22 to January 15.] As she had already left for her vacation this memorandum was left on her desk. .The acting Manager .who was-responsible 'for supervising the grievor upon' her return from her vacation was Ms. Brown. On January 4 she gave the grievor an assignment, due on January 6, to answer certain questions with respect to all of the data points on the REVIEW CHECKLIST of 1987 0- GENERAL MUNICIPAL CONSOLIDATED FINANCIAL STATEMENTS, viz, why it is a checklist point, what is the effect of non-compliance, what is the suggested action. She testified that the reason for giving This assignment was that she was having difficulty understanding why the grievor couldn't do a simple checklist and she wanted to know whether or not the grievor understood what was involved in completing the checklist. The following day the grievor requested, by memorandum, a copy of the REVIEW CHECKLIST referred to in Ms. Brown's request in order that she coqld attend to the job. The grievor had understood the 22 assignment to involve a particular completed checklist and not a blank one as Ms. Brown had intended. Ms. Brown conceded that it was possible that the grievor could have been confused on this issue. Once this confusion was cleared up the assignment was completed and handed in on January 9. What'she handed in was 7 legal size pages of handwritten material. The grievor testified that, independent of research time, it took her approximately .20 hours to complete the assignment, some of which time was spent working at home on the weekend. Ms. Brown had requested that 'it be done on her computer. However, the grievor was having difficulty with creating columns 'on her computer and she wrote out the assignment instead. She stated that she found it easier to concentrate when she was. writing than when working at the computer. In addition to her concerns about the fact that the assignment was not done on the computer as requested Ms. Brown was also of the opinion that the work showed a basic lack of comprehension of municipal accounting principles. On January 5, Ms. Brown wrote to the grievor concerning 5he assignment which Mr. Lawson had left with her, viz, the writin~ o~ sample letters, which assignment had been due on January 4 but which had not yet been handed in. lit may be recalled thai the grievor had done some of these for Mr. Lawson but that some had not been done and that he had requested her both to re-do the ones already completed and to do the ones that had been omitted.[ 23 In her memorandum Ms. Brown stated ~hat there was no excus'e for hot completing this work in that it was a "small job" and she. had "no other work as. signments" She regarded this level of performance as "totally unacceptable" and ask for an explanation in writing for her failure to complete the job within the deadline set. The grievor responded by noting that the assignment was not a "small job", that'the work did not involve simple retyping but required her to analyze whether or not additional comments should or should not be in the letters. She maintained that view in her evidence stating that the job had taken her longer than a day, that she did not simply want to copy the precedent word for word but wanted to do some research using the handbook and Che statute so that s.he could.~o a good job. Ms. Brown, in her evidence, persisted in maintaining that the job was neither a lsngthy nor difficult one. She ~hought that all that was required as a revision of Mr. Lawson's response and the incorporation of that response in the letter, a job which ought to take her no more than 2 hours. However, Ms. Brown did concede in cross examination that it was not accurate to state, as she had, that the grievor had no other assignments. In fact she had been given a quite substantial assignment, viz, .the review of the reasons etc. for the 120 data points in the checklist, on January 4, the very day that the Lawson assignment was due. On January 9 one of the letters, prepared in handwriting (owing to problems Which the grievor claimed she was having with her word processor) was handed in. Ms. Brown regarded it as 24 showing a lack of comprehension of basic accounting principles and as containing paragraphs which did not reflect Branch policy. The concerns which Ms. Brown had with the grievor concerning these letters were never discussed with her as the grievor was released on January 20, 1989. It is appropriate at the outset to review generally the positions taken by'the parties with respect to the two grievances which are before us. The Ministry submits that, having regard to principles established by the Board with respect to grievances against a performance appraisal, the grievance should fail on the merits. It is further submitted that the Board lacks jurisdiction to entertain the "dismissal" grievance as it is properly characterized as a "release" under the Public Service Act~ The Union submits that the performance appraisal was flawed in that it was based on irrelevant and pejorative informauion obtained from a supervisor who had a strong personal dislike of the grievor. It is further submitted that insofar as the appraisal was inextricably linked to the "release", the "release" should be considered as actuated by bad faith such ~hat the Board has jurisdiction to review it within ~he principles set d6wn in the cases. Finally, it is submitted that, insofar as the purported release of the grievor was "vindictive" and "retaliatory", it should be characterized as a disciplinary dismissal for which, given the "vindictive" and "retaliatory" m°tivati~n behind the action, there is no just cause. 25 We deal first with the question of arbitrabiiity. The resolution of the question of the arbirability of the termination of employment of an employee within the first year of service turns upon the proper characterization of the "termination". Section 22(5) of the Public Service Act provides that a "deputy minister may "release" from employment any public servant during the first year of his employment for failure to meet the requirements of the position." The extent to which the Board may review the exercise of a decision to "release" a probationary employee first arose in Leslie (80/77). The Board conducted an extensive review of the relationship between the Crown Employees Collective Bargaining Act and the Public Service Act and concluded as follows: ..... we are of the opinion that the bona fides release of an employee from employment.made in good faith during the first year of his employment for failure to meet the requirements of his position cannot be considered a dismissal as that term is used in both the Public Service Act and the Crown Employees Collective Bargaining Act .... ...... 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 requirements of the position .... by the guise of 'a "release" under section 22(5) of the Public Service Act. This Board, therefore, has jurisdiction to review a contested release to insure that it is~what'it purports to be. But in the adjudication of such a grievance, this. Board is without 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 me~t the requirement~s of the 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 ~7(2) (c)." (Now 15(2) (c) of the Crown Employees Collective Bargainin~ Act.) No useful purpose would be served by reviewing the jurisprudence of the Board following Leslie. it suffices to note that the Board has continually reaffirmed Leslie as establishing the basic principle upon which tke issue of the arbitrability of a' "release" is to be determined. (See Tucker 206/78; Walton, 612/81, 613/81; Ferraro 373/84; kbdull~ 1103/85; Clarke 443/82; Turcotte 344/80; Haladay 94/78.) Thus the fundamental issue before us is whether or not on the facts it can be said that the employer has acted bona ~ide and in good faith in "releasing" the grievor or whether, as the Union maintains, the "release" is really a disguised dismissal. It is submitted by the Union that the memorandum of September 22 from Ms. Brown to Mr. Lawson~ upon which the performance appraisal was substantially based, was motivated by a negative "social judgment" which Ms. Brown formed about the grievor, which carried over into her evaluation of the grievor's performance. It is submitted that the grievor's fate was sealed when she chose not to attend the barbecue organized by Ms. Brown at her farm. It was sugges~ted that Ms. Brown took great personal pride in this event and that she re~arded it as an important meeting which went far beyond a mere social occasion. It was noted by counsel that this was essentially the first ~pportunity that Ms. Brown had to make any kind of evaluation of the grievor. Prior to the barbecue there had been little 27 opportunity for her to make any professional assessment of the grievor since she, Ms. Brown, was either absen5 from the office working on her St. Mary's project (on Mondays and Fridays) or, while in the office, was busy on the telephone or her computer. Consequently, her first formal evaluation of the grievor's performance was made following the barbecue and, in counsel's submission, she permitted her own feelings of dislike of the grievor, generated as a result of what she regarded as a social snub, to influence her evaluation~ Thus, in her memorandum she cites, as 5he firs5 example of Technical Incompetence, the failure of the grievor to read the memorandum setting out the schedule of events for the barbecue/meeting, an example, which Mr. Lawson readily, conceded had very little to do with proficiency in accounting. Moreoverr she used language, eg. "insists on everything being .in writing", "refuses" to accept criticism, which Mr. Lawson also conceded ~o be an overstatement. This evaluation, it was submitted, was accepted uncritically by Mr. Lawson and formed the primary basis for his performance appraisal. Moreover, given that the performance appraisal was based on an evaluation made in bad faith and actuated by personal dislike for'the grievor'it ought to be removed from the grievor's record. With respect to the release i~ is submitted that, insofar as it flowed naturally from the unsatisfactory performance appraisal (which in itself is tainted by bad faith), it ought to 28 characterized as a disguised dismissal which is both susceptible of review by the'Board and which ought to be struck down as being w~tkout just cause. In further support of this position it was noted by counsel that the person whose recommendation for release was ultimately. acted upon was none other than Ms. Brown, the supervisor with whom the grievor had had a bad relationship and from whom. she had received very Door evaluation, and who was now serving as Acting Manager of the Branch. We do not believe that the evidence, taken as a whole, permits us to reach the conclusion urged.upon us by counsel for the Union and the grievor. In essence it is claimed that all of the grievor's problems originated from a single social snub, viz, the failure to attend at the barbecue/staff meeting organized by Ms. Brown. While it is true that the first significant evaluation of the grievor's work did not occur until after this event the evidence does not support the claim advanced that Ms. Brown was offended at the failure of the grievor to attend. Both Mr. Lawson and Ms. Brown conceded that missing it was not "such a big thing". And from the evidence it must be concluded that it was not: it was generally a social event; no minutes were taken; even the Branch Manager, Mr. Lawson, was not in attendance. Union counsel puts a good deal of emphasis on two pieces of evidence: the initial characterization by Ms. Br~wn of the meeting as one which was to discuss "where the Branch was going", i.e. a 29 characterization which would suggest that the meeting was important when it really was not; and secondly, the use of the grievor's failure to properly read the instructions for this event as the first example of her Technical Incompetence. We do not regard this evidence standing alone as sufficient to support a conclusion that from the time of the meeting on the Ministry, through Ms. Brown, was acting in bad faith in its treatment of the grievor. On the contrary, there is considerable evidence in support of the conclusion that the Ministry made repeated efforts to train the grievor but frequently found itself faced with an employee who was very reluctant to admit to making errors and to taking criticism and instruction. It is true that Ms. Brown's evaluation of the grievor in her September 22 memorandum to Mr. Lawson was exceptionally .negative in tone; that it exaggerated the grievor's failings ("insists on everything being in writing, refuses to accept instruction); and that it chose, as examples of the grievor's defects, incidents which had little to do with accounting skills. It is fair to say that it does not contain a single comment or observation of a positive nature. We are, however, reluctant to conclude from that that Ms. Brow~ was acting in "bad faith" Clearly, there was a personality conflict; but that is not sufficient to support a finding of bad faith. It is no doubt the case that the grievor may have found Ms. Brown to be unhelpful and overzealous; equally there is little doubt that Ms. Brown found the grievor to be defensive and 3O argumentative. There is evidence which would support the conclusion that each of them had some justification for feeling the way they did about the other. In any event a full and complete assessment of the grievor's treatment by the Ministry goes further than a consideration of how she was treated by Ms. Brown. In order to assess the claim of the Union that the grievor's termination was not a bona fide release, it is necessary to consider her relationship with Mr. Lawson. Was he motivated by improper considerations in his treatment of the grievor? The evidence does not support such a conclusion. On the contrary it confirms, in certain respects, that Ms. Brown's earlier evaluation of the grievor's attitude, was not entirely without' basis in fact. What emerges from a review of that evidence is a picture of the grievor as a person who found it exceptionally difficult to accept criticism of her work and who preferred to treat such criticism as stemming from some failure on the part of her evaluator to assess her fairly or accurately. A brief summary of the relevant evidence will suffice. In his September 2$th performance appraisal Mr. Lawson did not, as the Union claims, "accept uncritically" Ms. Brown's evaluation of the grievor. He did his own independent review of the work which the grievor had done for Ms. Brown and confirmed that, in fact, her comments thereon were appropriate. He also consulted with other advisors to obtain their views of the.griever. 31 On October 28 Ms. Brown asked to be relieved of any further responsibility for supervising the grievor .and recommended ~hat ¢ she be released. Mr. Lawson did not act on that recommendation,~ instead he chose to take over responsibility for the supervision of the grievor in order that she.have an opportunity to be trained in some of the duties of the position in which she had not yet been trained, viz, letter writing, etc. in early November Mr. Lawson assured the grievor that she could overcome her poor performance appraisal if she corrected her problems. At that meeting the grievor insisted that Ms. Brown's assessment of her abilities was unfair and wanted a further opportunity to establish that with Mr. Lawson. That opportunity was given. At a meeting on November 7 Mr. Lawson met with the grievor in an effort to explain the errors which had been identified by Ms. Brown and which he, Lawson, had confirmed as errors. This meeting resulted in an argumen~ over the proper way to fill out the checklist where there are discrepancies in the opening and closing balances. On the following day Mr. Lawson sent the grievor a memorandum warning her that unless she corrected her tendency to adopt a defensive/argumentative mode, her training would be seriously impeded and she might not be able to meet the full responsibilities of the position. Two days later the grievor responded with a memorandum which continued ~o blame Ms. Brown for the poor evaluation and which' accepted little personal responsibility for the errors. Moreover, 32 she suggested that Mr. Lawson himself had improperly attributed an error to .her as a result of his having examined a differen~ financial statement than the one which she had examined. In'short, the error was not hers - but his. On November 24 Mr. Lawson sent the grievor a memorandum pointing out some errors in another assignment which he had given her. On December 2 she disputed 22 of his 25 claims of error and claimed generally that the "intent" and "credibility" of the remarks made by Mr, Lawson was "questionable" and reflected a "lack of appreciation o~ the efforts made to carry out the job End a personal insult to [the grievor's] ability." Again, the grievor appeared unwilling to accept that she may have made errors. Instead she impugned Mr. Lawson's motives - not unlike her characterization of Ms. Brown's evaluations of her. Notwithstanding the somewhat insulting tone of her December 2 letter to him Mr. Lawson met with the grievor on December 5 to discuss their disagreements. Although some agreement was reached on some issues they remained apart on many and the meeting ended in a bitter argument, again, over the question of the proper way of completing the checklist where closing and opening balances do not match. Mr. Lawson insisted that sh~ complete the checklist in future as instructed; the grievor persisted in her view that an error should not be recorded where it was possible to reconcile the balances. It was' at this point that Mr. Lawson decided to release the grievor; yet, even then he responded favourably to a request from 33 the grievor for a leave of absence to permit her to attend to an' urgent family matter. This had the effect of.postponing the time when the grievor could be released and obliged Mr. Lawson to continue with her supervision. We find it difficult to conclude from this evidence that Hr.. Brown, in his dealings with the grievor, was acting in bad faith. The Board has stated that the "suitability of a probationary employee must be examined by th~ Employer on the broades~ of grounds which would include inter alia, character, attitude, , compatibility, absenteeism, quality of work as well as the ability of the Employee to meet the present requirements demanded by 5he Employer" (Blundell 685/81). It has also been stated that "failure" under section 22(5) of the Public Service Act can include both voluntary and involuntary deficiencies such as attitude and capacity and that such~ deficiencies can for the basis of a release ~ven though the grievor might have been able to improve her attitude or behaviour. (Bartello 61/$2) We have litt'le doubt in concluding in this case that the grievor was "released" from her employment for failure to meet the requirements of the position. She was Given work on duties which would have comprised approximately 80% of the duties and made numerous err6rs in her work. When thos.e errors were drawn to her attention she repeatedly disputed the judgments of those responsible for her supervision and training and appeared quite unwilling to accept instruction. 34 One incident in particuiar serves to describe the attitude \ towards the process of training that she was~engaged in. We refer to her disagreement with Mr. Lawson concerning the proper way to complete the checklist where there is a discrepancy between opening and closing balances. She held the steadfast view that.if she could reconcile the discrepancy there was n0 need to record that there had been a discrepancy; she held this view even over the express direction of Mr. Lawson to the contrary. Whether she was correct or not is beside the point. Her supervisor, who had written the manual and the checklist 'and who had extensive experience in municipal accounting, was attempting to instruct her in the proper way of' conducting the review of a financial statement. She was simply not prepared to cooperate wi%h him. Thus, the grievor emerges as an employee who, although highly qualified f~r the position, was found both unable to perform the major tasks of the job and unwilling to accept any instruction as to how to perform the job correctly. In these circumstances the response of the Ministry to terminate the ~rievor's employment must be characterized as a release and not as a disguised dismissal. In ~he result we have no jurisdiction over the ~ismissal grievance. This brings us to the appraisal grievance. There is no question that w~ have jurisdiction to deal with this grievance under section t8(2)'(b) of the Crown Employees' Collective Bargaining Act. The Union submitted that the performance appraisal was vitiated because of the existence of bad 35 faith of Ms. Brown on whose memorandum of 'September 22 the performance appraisal was .based. We have earlier declined to conclude that Ms. Brown was acting in bad faith. Moreover, in any event, the performance appraisal was not solely the' product of Ms. Brown's September 22 memorandum. Mr. Lawson did an independent review of the work that the grievor had done for Ms. Brown and had spoken to other advisors. Furthermore, while it contains a number of critical comments, it is not, unlike the September 22 memorandum, uniformly negative in its appraisal of the grievor. It notes that she has completed her reviews "within the 'time parameters set by her manager", that she has "carried out the assignments given to her", that she has made a good effort to learn the job, and that her attendance has been good. Finally, in a number of respects, the comments made, viz, that she has "challenged the advice, explanations and assistance offered", and that she "has become very defensive and has been unwilling to accept any responsibility for the problem" are well documented in the evidence which we have reviewed above. Consequently, the performance appraisal grievance is dismissed. In summary: 1) The Board finds that, insofar as the grievor was '"released" from employment, the Board lacks jurisdiction to hear her grievance ~rotesting that action. 2} The Board dismisses the performance appraisal grievance. 36 Dated at LONDON, Ont. this 12~h day of ,T]]n~ , 1990. G. J. Brandt, Vi ce-C.~hai rperson "I DISSENT" (Dissent attached) M. Vorster, Member A. Merrttt, Member DISSENT FROM UNION NOMINEE - MENNO VORSTER RE: OPSEU (MONICA LAU) AND THE MINISTRY OF MUNICIPAL AFFAIRS GSB 143/89 The Board had two grievances to consider from Ms. Monica Lau, a probationary Financial Analyst with the Financial Management Branch of the Ministry of Municipal Affairs. One dealt with a performance appraisal and the other concerned the allegation that her dismissal from the position was without just cause. The majority found that the grievance on the termination of her employment was inarbitrable and dismissed the performance appraisal grievance. I disagree with the majority in both decisions. The first problem encountered by Ms. Lau, I would submit, came from an inadequate training process. The work for which Ms. Lau was hired was, in the evidence of her Supervisor, Mare Brown, "different from other types of accounting". Ms. Brown further testified that municipal accounting of this type was only to be learned on the job. After the grievor began the job on June 13, 1988, Mr. Lawson assigned Mare Brown to act as the grievor's immediate supervisor. While summer students had performed some parts of Ms. Lau's duties in the past, Ms. Brown had never been involved with either their training or with monitoring their work. 2 During the first three weeks of her employment, Ms. Lau was expected to review the Branch's procedures and the relevant legislation. On July 5, Mr. Lawson began a special-assignment while being seconded by the Deputy Minister's Office until August 2. A few days after his return to regular duties, Mr. Lawson went on vacation and did not return until August 22. While Mr. Lawson spent time in the office during this period, he had very little to do with office operation and spent-no time with the grievor. He also testified that he did not inform Ms. Lau of his special duties. Mare Brown, in the meantime, assumed a special project in St. Mary's, Ontario which she herself had ~nitiated. By her own evidence, Ms. Brown spent at least two :days a week out of the office during July and August and more frequently in September. The requirements of the special project were in addition to her regular duties as Senior Financial Advisor. Supervisory arrangements concerning her new position were not confirmed with Ms. Lau until at least two weeks after her starting date, according to Mare Brown. Ms. Lau was expected to seek advice and counsel from other Advisors bdt she was not informed of this expectation during the initial part of her training. Mare Brown was not aware of this expectation either. In cross examination, Mare Brown reversed her earlier assertion that the requirements of Ms. Lau position ~eq~ired no judgement and she admitted that there was indeed judgement to be exercised and that differences of opinion could arise in the normal course of the job. In early July, Ms~ Brown went to the grievor to begin training on the checklists. Evidence showed that since Ms. Lau had been'lad to believe that her instructions would also come from other Advisors, she wanted the arrangement confirmed by Murray Lawson. Mare Brown informed her fellow Advisors at a Section meeting that, henceforth, Ms. Lau wo~ld check her work with the Advisor involved and that Ms. Brown would be responsible for co- ordinating responses created by Ms. Lau. No schedule for meeting with Ms. Lau was arranged by Brown for training or supervision purBoses: Rather, according to Ms. Brown, they would "just talk when necessary". Ms. Lau testified that each time she tried to see Ms. Brown, she was busy with other duties and Ms. Lau did not interrupt. With this confusing training program as the background, the stage was set for more substantive difficulties. Mare Brown admits her contact with the grievor had been 'very little until mid-August. On August 16, Brown wrote a memo to Lau asking her for the financial statements she had reviewed along with other detail. 4 The information was to be "available by August 18, 9:00 a.m." Previously, however, Mr. Lawson had told the grievor that these same statements need not be prepared until the end of August. No explanation was provided to Ms. Lau regarding this move which she took to be an abrupt change in training schedule. Mare Brown testified that her reasons for requesting the statements was to assist Ms, Lau before she had completed the review. Criticism of the review later appeared on a September 22 memo from Brown to Lawson in which Ms~ Brown refers to Lau's refusal to accept verbal instructions. Ms. Lau responded to the memo on August 24, 1988, by supplying Mare Brown with a iisi of financial statements she had reviewed to date. Of some note was the comment that, "I would like to have any significant changes or additions to the list in writing, so that I can maintain a list for future reference". This was interpreted by Mare Brown as being the first indication that Lau wanted everything in writing. Furthermore, Brown testified that it was not intended that Lau complete the review of all the statements, but rather submit those which she had done. In the September 22 memo, however, Brown criticizes the grievor for only providing half of the information requested. 5 In the backdrop of this growing antagonism came the "barbecue incident". Ms. Brown had what she referred to as a Branch Meeting at her weekend home near Stratford. Ms. Lau. left the event before the evening meeting. In the September 22 memo to Mr. Lawson, Ms. Brown criticized the grievor by stating that Ms. Lau would not recognize her mistake, Ms. Brown further criticized Lau for not reading the memo regarding the event accurately. Ms. Lau testified that she ~had not seen the memo and Murray Lawson admitted that he had not either. .The evidence from both Mr. Lawson .and Ms. Brown makes it clear that the was no written agenda for the meeting, it was intended to include only social events during the working day, that no minutes were kept at the meeting and that Murray Lawson and several others also missed the meeting. Mr. Lawson candidly admitted that he knew that the issues discussed at the evening meeting weren't very important. I would submit that commencing in August, Mare Brown became more aggressive and the grievor became more defensive. 6 A major reason was the confusion stemming from the lack of any structured training process for Ms. Lau. And the confusion did not end there. At the same time as her September 22 memo,.Mare Brown stated she declined to supervise Monica Lau further. Murray Lawson took over direct supervision in late October but Ms.Lau was not informed. When Murray Lawson left in the new year for another assignme~'t, Mare Brown was made Acting Manager. This was most unfortunate for the grievor since, as she testified, Ms. Brown had already reached the decision in late October that Monica Lau should be dismissed. I must respectfully submit that this type of training and supervision could not afford the grievor the opportunity to succeed, and that the employer did indeed act improperly. I believe this view is reinforced by the actions surrounding the one and only performance review of the grievor dated October 3, 1988. Murray Lawson requested a report from' Ms. 'Brown on the performance of Monica Lau on September 15 to complete the necessary performance appraisal. By his own admission, Mr. 7 Lawson had very little contact with the grievor. Ms. Brown prepared an initial report which Mr. Lawson described as "overly critical" and had her delete several references. The final memo, completed on September 22, was not too much kinder to Ms. Lau. Under cross examination, Mr. Lawson admitted that the memo was exaggerated in .a number of areas and that one was indeed "shocking" (in reference to amendments Ms. Lau had entered to the citator). Under cross examination Mr. Lawson further admitted that these exaggerations gave him concern about the entire document. Yet Lawson conceded that he based his performance appraisal on this report. Mr. Lawson was further asked if he had any reason to doubt that Ms. Lau gave up after receiving nothing positive out of the appraisal. His answer was to the effect that it was probably ~not. Additional performance appraisals may have had further bearing on this case but, although Mr. Lawson was required to and had indicated to the grievor that he would, no later appraisals were forthcoming. I believe the performance appraisal process was so seriously flawed that a fair judgement of Ms. Lau's performance could not be made. Her performange was no doubt influenced by an inadequate training program. Criticism of her work for which she 8 had not been trained was exaggerated and tainted by personal antagonism on the part of her supervisor. Her performance appraisal simply reflected the biases of that supervisor as accepted by the Branch Director. It is not surprising that events after the initial flawed appraisal, which occurred in a context of suspicion and accusation, led shortly afterwards to the decision to dismissed the grievor and her actual termination a few months later. I submit the employer did not meet the onus of proving that the termination of the grievor's employment constituted a release. The Board should have retained jurisdiction with regards to-the dismissal grievance. I further would have allowed the grievance on the performance review. Respectfully, Menno Vorster