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HomeMy WebLinkAbout1991-1854.Kubiak.92-11-17't ONTARIO EMPLOYeeS DE LA COURONNE CROWN EMPLOYEES DE L'ONTA RIO GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS ~80 DUt~DAS STREET WEST, SUITE 2;00, TOIqONTO, ONTARIO. M~G IZ8 TELEPHONE~TELE,'°HO~E' [-' ~6~ 325- ;355 ~EO, RUE DUNDAS OUEST, FI.L,ZREAt. J 210~, TORONTO (ONTARtO)~ MSG ~ZE FACSft'.4ILE,'TEL,~COF'IE · (4~51 32.5- :~,3 1854/91 iN THE MATTER OF ;tN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN 6PSEU (Kubiak) Grievor - and - The Crown in Right of Ontario (Ministry of Community & social Services) Employer BEFORE B. Kirkwood Vice-Chairperson I. Thomson Member R. Scott Member FOR THE J. Paul GRIEVOR Grievance Officer Ontario Public Service Employees Union FOR THE S. Mason EMPLOYER Counsel Legal Services Branch Ministry of Community & Social Services HEARING May 11, 1992 Page 2 '~ DECISION There was no dispute over the facts. The Ministry withdrew its objection over the timeliness of the grievance. The parties asked the panel to make its decision based upon the facts and submissions presented on May 11, 1992. They are as follows: (1) On July 19, 1990, the grievor met with his supervisor to review his performance appraisal dated July 18, 1990. (2) On July 20, 1990, the Unit Director, Mr. Irvine, reviewed the appraisal and added Reviewer's Comments. The Employer did not advise the grievor that comments were .added to the appraisal. (3) On April 2, 1991, a memorandum was sent by Fred Loach, Manager Human Resources, to all managers advising them that employees should see their performance appraisals after Reviewer's Comments have been completed, so he or she is knowledgeable of all the contents of the appraisals. (4) On June 12, 1991, the parties attended for the hearing of a grievance filed by Mr. Kubiak. The issue was to consider whether the addition of comments to an appraisal governing the period from April 1, 188 to March 31, 1981), after the appraisal meeting and without the employee's knowledge, was contrary to governing standards, as set out in the Ontario Manual of Administration. (5) At the hearing on June 12, 1991, the Union tried to introduce evidence of the appraisal procedure that is now before us. As the Ministry objected to the introduction of evidence of the July 19, 1990, appraisal with the April 1, 1988, to March 31, Page 3 1989 appraisal, the grievor filed a grievance on June 20, 1991, and contested the propriety of the July 18, 1990 appraisal. (6). On July 29, 1991, the Grievance Settiement Board issued its decision on the issue presented on June 12, 1991. The earlier panel which included two members of this panel, foUnd and declared that the grievor was appraised contrary to governing principals and standards as set out in the Ontario Manual of Ministration and ordered that all comments added subsequent to the meeting between the reviewer and the grievor, be deleted from the grievor's written appraisal. OPSEU (Kubiac) and The Crown in Right of' Ontario (Ministry of Correctional Services G.S.B. #2961/90 (Kirkwood). (6) The Stage Two meeting was held on September 6, 1991. On September 26, 1991, the Employer informed the grievor that the Reviewer's Comments. would be deleted from the July 18, 1990 appraisal. (7) On December 4, 1991, the Employer informed the grievor that the comments had been removed. The union was seeking a declaration that the reviewer, Mr. Irvine cease his practice of adding comments to the performance appraisal after the interview with the grievor and without his knowledge. The unio~ also sought to examine all evaluations where comments may have been added. The union's representative submitted that the union was asking that any employee, who has had comments added to their evaluation be notified by registered mail. Employer's counsel conceded that the comments added after the review were improper, and accordingly, the grievor was appraised contrary tO governing standards. Employer's counsel argued that as the Board has already made a finding that the practice of adding Reviewer's Comments after an interview with an Page 4 employee and without the employee's knowledge is contrary to governing standards, the issue is moot. There is now, no. important point of law to be decided. The employer's counsel further argued that as the comments were deleted on December 4, 1991, this Board had no jurisdiction to hear the matter. The union was only seeking to embarrass the reviewer, as the error had been rectified. He argued that the purpose of this Board is to remedy the Collective Agreement and not to punish management. The costs of the hearing outweighed the merits of a decision. The union's representative submitted that it is important that the proper procedure be followed. The purpose of the grievance was not to punish the employer, but to stop the practice from reoccurring. It was important to name the reviewer in order that the practice stop. The union's representative argued that the board had jurisdiction to hear this matter and to make a declaration, as the Board had not decided the issue in dispute in this case, namely, whether or not the grievor was appraised contrary to governing standards by Mr. Irvine. The union's representative conceded at the hearing that the grievance was an individual grievance processed on behalf of Mr. Kubiak and was not a union or policy grievance. As J.t is an individual grievance, we have not'jurisdiction to consider any allegations other than those affecting Mr. Kubiak. The basis of the employer's position is that the matter has been resolved and therefore the sole purpose of the union's actions is to embarrass the reviewer. The jurisdiction of boards to make declarations, where settlement has been proposed, or the remedy has been given, has been considered in many decisions. The decisions are quite analagous to the case before us. Page 5 OPSEU(Storey) and Ministry of Conununity and Social Services G.S.B. 1250/89 (T. Wilson) emphasized that a grievance may include findings and a declaration and the parties are entitled to an adjudication on all the issues. The Ministry submitted that the Board lost jurisdiction to hear the matter when the Ministry agreed to the remedy requested by the union. The Board dismissed the preliminary objection.on the basis that the remedy that the employer conceded did not settle all the issues outstanding between the parties. The board states at page 22: Furthermore, the grievance states that management is in violation of Article 18 of the Collective Agreement. The Union contests that Mr. Reynolds conduct in the subject incident violated Article 18: it is my position that the Union is entitled to have that adjudicated by this Board. The Ministry has not conceded that it is in violation in that regard; it only conceded the difference between the parties and it cannot unilaterally force the Union and Grievor or to accept less than the total panoply of differences and remedies claimed including a finding and' declaration that the Ministry violated the Collective Agreement in its handling of the incident. It is of course for the Union and the Grievor to decide what would satisfied them as a settlement; that is a labour relations judgment on their part. This Board cannot impose a settlement and indeed is not privy to all the reasons behind the decision to push forward with the grievance. O.L.B.E.U. (Pelletier) and The Crown in Right of Ontario (Liquor Control Board of Ontario) G.S.B. 76/82 (Prichard) is similar to our case, in that there are also two aspects to the issues, the specific remedy sought and the declaration on a principle. The grievor filed a grievance claiming he was unjustly disciplined for wearing jeans to work, when he received a warning that if he were to wear jeans again he would be suspended. The employer withdrew the warning at the outset of the hearing. Vice-chair Prichard dealt with the arbitrability of the grievance and stated at page 15: In summary, the cases appear to uphold the.arbitrability of grievances in circumstances like this on two bases. first, where the underlying issue which was raised in Page 6 the grievance remains, the arbitration board will be prepared to issue a declaration, even if specific relief is no longer appropriate. Secondly, the more narrowly, if the relief granted by the employer does not exhaust the relief asked for or available in a particular case, then the fact that the employer has granted some relief will not deprive an arbitration board of jurisdiction to hear the merits of the case. Both of these grounds independently support the arbitrability of the case before us although, in light of Sullivan (578/81), the second one is the more appropriate one to rely on. The case continues and finds that the principles that have developed under the Labour Relations Act are as applicable under the Crown Employees Collective Bargaining Act. Vice- chair Prichard continues: A consideration of the collective agreement and the Crown Employees Collective Bargaining Ac t similarly supports the proposition that the employer's withdrawal of the warning does not deprive us of jurisdiction to continue to adjudicate the remaining issues before us. Article 21.5(e) of the collective agreement provides that in failing settlement of an employee's grievance, the grievance may be submitted to this Board, and that a determination by this Board shall be final and binding. Article 21.1(2) defines a grievance as "a difference arising from the interpretation, application, administration, or alleged contravention of the provisions of the agreement." Therefore, the grievor's complaint was a grievance and remains a grievance despite the employer's withdrawal of the warning as the grievor alleges that the employer's warning was a contravention of the collective agreement. By withdrawing the warning the employer has not conceded that allegation and thus the "difference", thus the "grievance" remains, and thus our jurisdiction remains.. The correlation between a practical remedy and a declaration of outstanding issues is seen in Re Government of Nova Scotia and Nova Scotia Government Employees Association 11L.A.C. (3d) 181 (Christie). The board held that it had the jurisdiction to make a declaration where there 'were no damages outstanding at the date of the hearing. The grievor had alleged that she had been improperly denied leave of absence for union business. The employer had given her part of the leave Page 7 requested. The emploYgr' ~laimed that as the grievor 'had taken the partial leave, the grievor'accepted the compromise, and since the time had passed for further leave to be taken for this purpose, there were no damages. The board held. that: The grievor was adversely affected as an individual by the employer's application or interpretation of the collective agreement. The specific remedy sought can no longer be granted but that should not deprive the grievor of her right to "adjudication of the nature of the contract breach." Finally, in Re United Steelworkers and International Nickel Co. of Canada Ltd. 24 L.A.C. 51 (P.C. Weiler), the board considered whether the board was deprived of its jurisdiction after the employer submitted a settlement, and the board had heard some evidence. The issue was whether the grievor and the union had to accept the offer as sufficient satisfaction of the grievance or whether they had the right to ah arbitration decision on the underlying merits of their arguments. Arbitrator Weiler gave an example, which is similar to. the situation before us, when considering ~he issue. He considered whether an employee may grieve the voluntariness of overtime, after he has performed the overtime. The grievor would have been paid at the premium rate and therefore would have no monetary claim. He could not be forced to work the overtime, as he would have already done it. Arbitrator Weiler concluded that the matter would be arbitrable, as a declaration that the instruction to the grievor to perform overtime was improper, and would be significant in future cases. Arbitrator weiler stated at p. 57: Our conclusion, then, is that there is no rule of law or of this contract which bars an individual grievance for a declaration that company conduct affecting him was illegal. Moreover, there are good reasons why an individual may have a real interest in grieving for such a declaration and arbitration boards should not develop an "implied" rule excluding such claims. These cases adopt a common premise, that unless all issues are settled to the parties' mutual agreement, the adjudicative board has the jurisdiction to make findings on both facts and arbitral law, which will include the jurisdiction to make a declaration. Therefore, in order for the board to decline jurisdiction, a settlement must have been reached on all issues. That was the case in OPSEU (Humeniuk) and The Crown in Right of Ontario (Ministry of Natural Resources) G.S. B. # 449/89; 450/89 (Kirkwood) which was reviewed by Vice-chair Wilson in the Storey decision (supra). The employer's counsel argued that the cost of the hearing-outweighed the benefits of the decision. He relied on OPSEU(Grant) and The Crown in Right of Ontario (Ministry of Correctional Services) G.S.B. 3097/90 (Emrich). However, we did not find that this decision is applicable. In the Grant decision, the Board found that the issues raised by the grievor were moot and therefore declined to exercise its jurisdiction. Vice-chair Emrich held that to order the declaration sought the issue, which was more of academic interest, than practical significance, required a lengthy hearing of at least five days, and required findings on complex issues of law. Our case is quite different. Ail the evidence and the submissions have been presented and there are no further costs to be incurred. The concrete'aspect of remedy, the removal of the comments from the appraisal has occured, but the outstanding issue, as characterized by the union, whether Mr. Irvine wrongly appraised the grievor by adding his comments after the interview and without the grievor's knowledge, remains. Although the employer's counsel submitted on behalf of the employer that the practice is against governing standards and principles, there was no concession that Mr. Irvine acted contrary to those principles. As there was an outstanding Page 9 issue which was not resolved by the parties, we hereby dismiss the employer's preliminary ~bjection. The principle conceded is the principle against which the facts are tested. On the merits, both parties agreed that Mr. Irvine was the reviewer and was the unit director in the appraisal meetings that were subject to the first and this'grievance. All managers were sent a memorandum in April 1991 that the employee is to be given the appraisal after Reviewer Comments were added so that the employee can be knowledgeable of its contents. Mr. Irvine did not remove the comments. The first Kubiac decision was issued in July 1991 and still Mr. Irvine did not remove the . comments. After the second stage meeting the Administrative Director advised the grievor that he had directed human resources to remove the comments added without the grievor's knowledge. Yet, notWithstanding the memorandum by the Administrative Director, the comments were not removed until December 4 1991. The purpose of the decision is to resolve the issues outstanding between the parties. The purpose is not to embarrass a party. The issue of the Reviewer's Comments is a private matter between the employer and the grievor and is not a matter where the grievor had been publicly embarrassed as in OPSEU(McKinnon) and Ministry of Correc%ional Services G.S.B. 1496/89 (S. Stewart). We make the declaration that Mr. Irvine appraised the grievor contrary to the governing standards as set out in the Ontario Manual of Administration by adding Reviewer Comments after the interview with the grievor and without his knowledge, thereby depriving the grievor of his right to respond, but we do not grant the union's request to post the'declaration. As these actions have occurred on tWO occasions, and it is agreed by the employer's counsel on behalf of the employer.that this practice is contrary to governing standards, we order that Mr. Irvine cease this practice and not add comments to the grievor's appraisal after an Page i0 interview with him and without his knowledge. Dated at Toronto, this 17th day of November, 1992. 'B.A. Kirkwood, Vice-Chairperson I on Member J. R , Employer Member