HomeMy WebLinkAbout1992-1089.Dadula.93-09-03
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ONTARIO EMPLOYES DE LA COURONNE
~ , CROWN EMPLOYEES DEL'ONTARIO
- - GRIEVANCE COMMISSION DE
1111 SETTLEMENT REGLEMENT .
- BOARD DES GRIEFS
180 DUNDAS STREET WEST SUITE 2100 TORONTO ONTARIO, M5G lZ8 TELEPHONE/TELEPHONE (416) 326-1388
180, RUE DUNDAS OUEST BUREAU 2/00, TORONTO (ONTARIO) M5G /Z8 FACSIMILE ITELECOPIE (416) 326-1396
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1089/92
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IN THE MATTER OF AN ARBITRATION
Under
\ THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLE~ENT BOARD -/
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BETWEEN
OPSEU (Dadula)
Grievor
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The Crown in Right of Ontario
(Ministry of Transportation)
Employer
BEFORE :. W Kaplan vice-Chairperson
S Urbain Member
D. Montrose Member
FOR THE G. Leeb
UNION Grievance Officer
Ontario Public Service Employees Union
FOR THE P.Throup
EMPLOYER Counsel
Winkler, Filion & Wakely
Barristers & Solicitors
HEARING February 17, 1993
July 12, 22, 1993 \
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Introduction
By a grievance dated May 27, 1993, Danny Dadula, an Electronic TechniCian
employed by the Ministry of Transportation, grieves that he was dismissed
without just cause By way of remedy, the grievor seeks reinstatement,
compensation and removal of all records relating to his discharge from his
personnel file The case proceeded to a hearing In Toronto, at which time
evidence and argument were heard
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In brief, the employer took the position that the grievor, a probationary
employee, was properly released for failing to meet the requirements of his
position. The union took the position that the grievance should be upheld
because the employer has failed to meet itS own stated requirements for
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the orientation, training and assessment of probationary employees -
Moreover, it was the union's pOSition that the procedures followed to
discharge the grievor demonstrated that the employer has not acted in good
faith
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Before turning to the evidence, it is appropriate to set out a few background
facts. The grievor began his employment with the Ministry of
Transportation (hereafter "the Ministry") in October 1989 when he received
the first of a series of ~hort~term contracts These contracts continued
until September 17, "991, when the grievor began work as a full-time
probationary employee after winning a job competition The grievor was
released on May 1, 199,2 At the time of his release, the prob~tionary penod
provided for in the Collective Agreement was nine months in length At the
time of his hiring, the probationary period provided for in the Collective
Agreement was twelve months in length There was some di~cussion
between the parties as to which of these probationary periods applied to
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the grievor Given our result in this case, no answer to this question is
required. The evidence establishes that the grievor was released prior to
the termmation of the shorter probationary period
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The grievor worked in a laboratory, and -was responsible for the testing and
repair of electronic equipment used in traffic management. When he first
began work as a probationary employee, his supervisor was Mr Arun Kapur
In January, 1992, responsibility for the day-to-day supervision of the
grievor was assigned to Mr Lambert Philadelphia Mr Philadelphia held the
position of Field Support Coordinator, and he is a member of the bargaining
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unit. Mr Philadelphia repor~s to Ms Sui Wong,. who is the the head of the
Electronic Engineering Section The grievor worked alongside Mr Arthur
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Smith, who is the Senior Electronic Technologist
The Evidence
It is helpful to set out the evidence slightly out of turn
The Employer's Case
Testimony of Lambert Philadelphia
Lambert Philadelphia testified He has worked for the Ministry for a
number of years, and! on January 1, 1992, Mr Philadelphia assumed
responsibility from Arun Kapur for overseeing the grievor
Mr Philadelphia testified in some detail about the operations of the
laboratory and the work of the grievor The grievor was responsible, among
other things, for testing and repairing a certain piece of equipment referred
to as the 170 Controller This is an electronic microprocessor device that
controls a combination of traffic signals.
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Before assuming formal responsibility for the laboratory in January 1992,
Mr Philadelphia paid a number of visits to it, and 9uring the course of one
of those visits it was brought to his attention that there were problems
with the equipment not being tested and repaired within the required"
\ periods of time Mr Philadelphia then established a procedure for the
inventory, monitoring and repair of the equipment, and instructed the
grievor and Mr Smith in the reqLiirements of the Ontario Specifications
Manual, which det~ils the testing procedures to be followed
In mid-January 1992, Mr Philadelphia met with the grievor, Mr Smith and
one other employee to discuss .assigned duties and responsibilities Minutes
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of this meeting, which took place over the course of two days, were later
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issued, and they' set out in considerable detail what the grievor was
required to do, when he was required to do it, as well as his hours of work
and weekly reporting requirements. The grievor was advised that his mam
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duty was the repair of the 1 70 Controller Mr Philadelphia's office is not
located in the laboratory, so he is. not in that building all of the time.
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Mr Philadelphia testified about his working relationship with the grievor,
and he told the Board that he quickly became concerned by the grievor's
attitude and the fact that the grievor did not cooperate with him or with Mr
_ Smith For example, Mr Philadelphia testified that tl1e grievor agreed to
begin work each day at 7 00 a m., take thirty minutes for lunch, two
15-minute breaks, and leave work at 3 30 p.m. The grievor also agreed to
work a compressed work week, which meant that this schedule was over a
two-week period, and the grievor worked nine out of the ten working days
To make up all of the required hours, the grievor was required to tack on an
additional thirty minutes at the end of one of his working days
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Mr Philadelphia usually arrives at work before 7 00 a m.and he began to
'notice that the grievor was not keepmg to his schedule Around the end of
January 1992, Mr Philadelphia brought this to the gnevor's attention and
suggested that if he was having difficulty arriving at work on time, ~rhaps
he should consider arranging a later start time The grievor dedined' the
opportunity to adjust his schedule Mr Philadelphia testified that he had to
speak to the grievor again about his not arriving at work on time, and he
also told the Board that the gnevor failed to keep Cl number of commitments
to stay late when he arrived late According to Mr Philadelphia, the grievor
promised on several occasions to improve his punctuality, but these
promises were not kept.
Mr Philadelphia also testified that the grievor was a source of disharmony
in the laboratory He told the Board that the grievor would "put down" Mr
Smith in front of others, and described an incident in January 1992 when he
did so in front of a coop student and an engineer When Mr Smith
complained about this, Mr Philadelphia met with the grievor and told him
that behaviour of this kind was unacceptable Mr Philadelphia believed that
the grievor r~sented Mr Smith because the grievor had also applied for the
Senior ElectrOnic Technologist pOSition that Mr Smith had been awarded
Mr Philadelphia advised the grievor to accept the fact that Mr Smith was
the Senior Techno,logist, and that it was essential that he treat him
properly and show him appropriate respect. Several weeks later, in early
February 1992, the grievor advised Mr Philadelphia that he did not respect
him either Mr Philadelphia asked him why he would say something like
that, given that he, Mr Philadelphia, had been spending considerable time in
training thegrievot and in encouraging him to take courses to improve his
skills Apparently, the grievor did not have an answer to this question The
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grievor also made a number of further complaints about Mr Smith's
knowledge and abilities According to Mr Philadelphia, the grievor's
attitude and conduct negative'ly affected employee morale He noted that
Mr Smith did not engage in any of this misconduct. "
- Mr Philadelphia testified that Mr Smith was responsib.le for assigning the
grievor some of his work, but when he, Mr Philadelphia, went to check on
that work, the grievor advised him that he had never been assigned it. When
Mr Philadelphia raised this issue with Mr Smith., he insisted that he had in
fact assigned thegrievor the work. Mr Philadelphia testified that it was
extremely difficult to run the laboratory in these circumstances
Mr Philadelphia quickly became concerned that the grievor did not have the -
knowledge to perform his position Mr Philadelphia expected the grievor to
have' a thorough know.ledge of the 170 Controller, and in fact believed that
he did have a detailed familiarity with it. However, Mr Philadelphia \soon
learned that the grievor did not know as much about it as he had claimed,
and so Mr Philadelphia arranged for another employee to return to the
laboratory to provide thegrievor with an overview of the equipment.
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According to Mr Philadelphia, if the 1 70 Controller needs tope repaired: it
might have to be repaired right down to the component level Mr
Philadelphia formed the opinion that the grievor could not perform these
repairs, and that the only repairs he could perform involved the less
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demanding task of switching the boards rather than repairing the
components. After the grievor was released, Mr Philadelphia learned that
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he had never repaired the components, but instead had swapped boards, and
he learned this when he examined various standby controllers and /
determined that they had been stripped Of their boards
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Mr -Philadelphia was also concerned by the length of time it took the
grievor to perform repairs, and he testified that after the middle of January
he met with the grievor at least once per week, and sometimes as often as
every day, to discuss his work and his concerns with respect to it. Mf..
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Philadelphia gave a number of examples of the grievor failing to follow
established procedures, and others concerning unacceptable delays in the
processing ,and repair of certain equipment.
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Another incident\ that convinced Mr Philadelphia that the grievor did not
have the knowledge or skills to perform the position in question involved a
request that he perform a Cost Analysis Report on a new Prom Board for the
1 70 Controller The request was given to the grievor in writing in late
February 1992, and it sets out a number of specific questions the grievor -
was required to address The grievor was asked to complete his report by
March 31, 1992 That date came and went, and the grievor did not contact
Mr Philadelphia to explain the status of his report. On April 1, 199,2, Mr
Philadelphia met the grievor, and it was agreed that the grievor could have
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an additional three days to finish the report. On April 6, 1992, Mr
Philadelphia wrote the grievor and asked for the report. Later that day, the
grievor advised Mr Philadelphia that he had left the report at home, and he
offered to go and get it. Mr Philadelphia told him not to go home, but to
bring it to work the following day Instead of following this instruction,
the grievor ~ent home and got the report; and then arranged for it to be
printed, in contravention of another policy pertaining to ,printing Mr "
Philadelphia testified that he was surprised to learn that the grievor had
not followed his instructions, and he met with him to tell him as much
He also told the Board that when he reviewed the report, he 'found that it
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was virtually useless, and more importantly that the grievor had not
addressed the specific issues he had been requested to consider He had
instead delved into unrelated matters of little interest to the employer
This report was introduced into eVidence and it contains a number of '" ""-
diagrams and charts. Mr Philadelphia testified that he could n6t figure out
what they meant. On April 10, 1992, Mr Philadelphia wrote the grievor a
note expressing some concerns with his report, including the fact that he
had not followed his instructions about the subject matter to be covered
On April 12, 1992 the grievor wrote Mr Philadelphia, apologizing and
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indicating that he realized that he went "overboard"
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Mr Philadelphia also testified about an incident he felt demonstrated very
poor judgement on the part of the grievor The long and short of this -
incident is that the grievor was asked to attend at a manufacturing plant to
measure paint thickness on a certain cabinet. The grievor was instructed to
record his findings in a report containing the serial number of the cabinets
and the measurements of paint thickness. Instead of completing this
simple assignment, the grievor wrote a longer report setting out various
observations about the appropriate Ministry approach to cabinet
manufacturers and containing a number of photographs of the grievor
inspecting a cabinet at one manufacturer The grievor is Jdentified in these
photographs as an employee of the Ministry, and Mr Philadelphia was
concerned about that, as he did not wish competitor manufacturers to think
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that the Ministry was favouring one supplier over /another
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Mr Philade'lphia also related an incident in which the grievor forwarded to
him some correspondence and some resumes relating \ to the possibility of
the laboratory hiring a coop student in the spring or summer of 1992 The
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materials include a posting Jor the position, which identifies the grievor as-
the contact person at the Ministry M'r Philadelphia testified that there
was no such position in the laboratory as there was no funding for such a
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position Mr ~ Philadelphia did not ask the grievor to assume any ,,-
responsibilities with respect to the possible placement of coop students,
and he des,cribed a procedure for the hiring of these students that did not
involve the grievor in any respect.
Various other incidents occurred, all of which had the effect of convincing
Mr. Philadelphia that the grievor was not workmg out. He testified about
the grievor failing to keep two scheduled appointments for a Ministry
driving examination, and about the grievor repeatedly disobeying
instructions about following laboratory procedures The grievor did not -
return tools to their assigned spot, and he had difficulty in prioritizing his
work, and in working on more than one assigned task at a time Mr
Philadelphia r~ceived a complaint from one of the manufacturers about the
grievor, anq upon investigating it he learned that the grievor was not
pre-screening equipment before returning it to the manufacturer for repair,
contrary to established policy Mr Philadelphia wrote the gnevor a number
of notes confirming various discussions with him about these and other
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matters, and also, as indicated above, they met regularly to discuss the
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gr'ievor's progress and performance Mr Philadelphia testified that he found
the grievor unresponsive and difficult to deal with
Mr Philadelphia also testified about his activities in tutoring the grievor,
and about the grievor's participation In various Ministry courses Of
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relevance to this case is an .incident involving a course titled Supporting PC
Users. When the grievorfirst applied.Jor it, there was money available in
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the laboratory budget, so the course was approved The grievor was
advised, however, that approval was for that budget year only, and could not
be carried forward into the new fiscal year It was initially anticipated
that the grievor would! take the course in -March of 1992 ;I
However, because
of fiscal festraint, the grievor was told to cancel his attendance at that
course and was directed to retrieve his authorization form
Mr Philadelphia advised the grievor that because of fiscal constraints, -
funds would not necessarily be available for him to take the course during
the new fiscal year, which began on April 1, 1992 Mr Philadelphia advised
the grievor to keep his authorization form and await further information
On April 27, 1992, Mr Philadelphia learned that the grievor was taking the
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Supporting PC User Course. Mr Philadelphia was quite surprised to learn
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this, given that he had told the grievor that he could not take this course
until he received authorization to do so Mr Philadelphia asked the grievor
why he was taking the course given that he had been told not to, and the
grievor told him that it had earlier been authorized Mr Philadelphia
reminded the grievor of their earlier conversation Ultimately, the grievor
was allowed to attend the course since the Ministry would have been billed
for it in any event. Mr Phil~delphia also discussed this matter with Ms
Wong, and he obtained a copy of the authorization form, Upon reviewing
this form, which was introduced into evidence, it was apparent that the
earlier authorized dates had been Whited out. It was at this point that the
decision was made to release the grievor
Introduced into evidence was a performance evaluation dated March 24,
1992, signed by Mr Philadelphia and the grievor This document lists in
I some detail the various duties and responsibilities assigned to the grievor
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along with completion dates and reporting requirements Mr Philadelphia
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testified that he met with the grievorin late February or early March, and
the grievor was provided with a handwritten copy of this document. It was
later typed and signed, and Mr Philadelphia testified that he thorougl1Jy
reviewed the grievor's job performance, his attitude, including the need for
him to work on his communication skills with his co-workers and to
respect them, and his attendance with him during the early March meeting
It is noteworthy that the grievor referred to these meetings in a June 1992
.Ietter to the Deputy Minister' of Transportation This letter indicates that
he met twice with Mr Philadelphia in March 1992, and received
performance appraisals on, each occasion- This letter also indicates, In
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several places, that the grievor was made aware at these meetings that his
cOhduct was threatening his continued employment at the Ministry (see -
Exhibit 2, Tab 43, p 2 & P 3)
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Also invoduced into evidence was a more detailed list of thegrievor's
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deficiencies, which Mr Philadelphia prepared on Apnl 28, 1992 This
document, which was attached to the document dated March 24, 1992,
concludes that the grievor's work performance is not satisfactory and that
he has failed to meet the requirements of his pos.ition The last page of the
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document is signed bi Mr Phila-delphia, and it is the printed material found
at the end of most government Performance Planning and Review forms It
indicates that the grievor will not be recommended for a permanent
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Mr Philadelphia testified that an inspection of the gnevor's desk was
conducted following his release, and it revealed' that the grievor had made
numerous photocopies of different documents for no apparent reason, that
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he had failed to return tools to their assigned location, that he had not
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passed on all- of the materials he obtained with respect to the possibility of
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the laboratory hiring a coop student, and that he had what appeared to be
copies of letters intended for Ms -Wong .-
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One letter, providing course information, was addressed to the grievor and
was dated April 7, 1992 It advised him that he would be attending the
April 27, 1992 Supporting PC Users Course, and it gave details of the time
and location of that course At the very bottom, it says "cc S Wong" and
this is highlighted. The presence of this document In the grievor's desk
suggested to Mr Philadelphia that the grievor had been asked to deliver this
letter to Ms. Wong, but had not done so because he knew that he had been
told that he was not to take this course Mr Philadelphia testified that -
when he met with the -grievor he asked him about this letter The grievor
advised him that while he had been given it, he did not know that he was
supposed to deliver it to Ms. Wong and so he put it in his desk. Mr
Philadelphia found several copies of other letters intended for Ms Wong in
the grievor's desk.
Mr Philadelphia concluded his evidence in chief by stating that he had
nothing against -the grievor, and that he made every effort to assist him
over the course of his employment.
Cross-Examination of Mr. Philadelphia
Mr Philadelphia was asked numerous questions in cross-examination He
testified that Mr Kapur stopped being responsible for the laboratory around
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November 1 991 Mr Philadelphia agreed that things were somewhat chaotic
in the laboratory at this time, and that this was why he was asked to take
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over Before officially assuming responsibility for the laboratory, Mr
Philadelphia visited it and determined that equipment was not being
processed as scheduled He also determined that there was a
communication problem between the grievor and MrSmlth. ;
After learning that thegrievor did not have the necessary knowledge with
respect to repairing the 170 Controller, Mr Philadelphia arranged for
another employee to train the grievor, and he testified that this training
took place in the fall of 1991 over a period of approximately one week for
two hours per day Based on his subsequent investigation, Mr Philadelphia
formed the opinion that the grievor did not repair any 170 Controllers, but
) either returned them to the manufacturer or swapped boards~ Mr
Philadelphia agreed that he told the grievor that he could, in an emergency,-
swap boards, provided that he subsequently repaired the defective board
r Mr Philadelphia insisted that he never saw any evidence that the grievor
conducted any repairs, although the grievor would repeatedly promise to
perform the repairs.
Mr Philadelphia agreed that some days the grievor would arrive at work
early, but testified that if he did, he was only a minute or two early, and
that just about every other day he. would be five to fifteen minutes late He
always left, however,at his usual finishing time After a while Mr
Philadelphia stopped discussing the matter with the grievor, having told
him that it was his responsibility to ensure that he arrived at work on time
Mr Philadelphia agreed that the grievor expressed to him some difficulty in,
understanding his verbal instructions, and as a result, Mr Philadelphia
would put some of his instructions in writing In his opinion, however,
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when the grievor wished to understand he did, and when he wished not to
understand he did not. Sometimes the grievor would profess difficulty In
understanding instructions as simple as "do this"
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ML Philadelphia was asked why he did not put his concern about the grievor
swapping boards instead of repairing them uHo writing, and he testified
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that he was extremely busy and simply did not have the time or resources
to put everything into writing Mr Philadelphi~ also noted that 10 some
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conversations the grievor would indicate that he understood what was being
said, and in those cases there was really no pOlOt in following- the
conversation up with written minutes Most of the time, Mr Philadelphia
attempted to deal with concerns as they arose
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Mr Philadelphia was asked about a number of concerns he testified to in
chief, and he told the Board that he was upset about the grievor's visit to
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the cabinet manufacturer to test the paint thickness because the report
went beyond what was required, and because -the grievor appeared to have
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put himself in a position where the Ministry could be accused of
favouritism to one manufacturer Mr Philadelphia agreed that he did not
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- put these concerns in writing He was shown, however, an example of some
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concernS that were communicated to the grievor in written form, namely
the proper procedure to be followed for the printing of documents Mr
Philadelphia agreed that, in general, after he put a concern in wnting he did
not have to raise it with the grievor again
Mr Philadelphia was asked about the grievor's invol\tement in the pOSSible
hiring of a coop student in the'spring or summer of 1992, and he reiterated
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his evidence about the procedure to be followed as he understood it. Mr
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Philadelphia is of the view that upon being contacted by the community
college about this matter, the grievor should have referred all questions
and matters with respect to it to either him or Ms Wong Moreover, the
grievor was not asked to screen any resumes, but the inspection of hi~ desk
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later revealed that he had in fact done 50 Mr Philadelphia testified that he
_ received a call from the colle.ge in early May, and that the college was under
the impression that the laboratory would be taking a coop student when
that was not planned ,Mr Philadelphia agreed that the laboratory has hired
coop students in previous years, and that some of these students have
worked with the grievor
Mr Philadelphia was asked about the Prom Board report and about his
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been assigned He agreed th~t some of his questions had been answered, but
testified that the principal concerns that the grievor was to have addressed
were not dealt with Moreover, he pointed to a number of parts of the
report which contained factually incorrect information, and some of the
extraneous issues the grievor raised had the effect of changing the focus of
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the report. He also testified that he was not very appreciative of the
grievor writing him an apology letter after he was advised of the ,problems
with his report. Mr Philadelphia did not believe that the grievor used his
time efficiently, and writing a letter like this was another example on
point given that the grievor was always saying that he did not have enough
time to complete his assigned tasks
Mr Philadelphia was asked why no proper performance appraisal was done
on the grievor until the decision was made to terminate him, and he
testified that when he met with the grievor in mid-January 1992, he.
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effectively conducted such an appraisal, which was later put In writmg m
the minutes of the meetings, a copy of which was given to the grievor He
also testified that he was continually appraising the grievor and bringing
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concerns to his attention and instructing 'him on how to deal with those
concerns Mr Philadelphia repeated his evidence that he held ,weekly
meetings with the grievorand also met with him informally on a more
irregular oasis He testified th,at the grievor knew exactly how he was
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Mr Philadelphia was asked about the complaints he received from a
manufacturer about the grievor, and he testified that the substance of these
complaints was that the grievor was returning equipment without an
accompanying report, and that in many cases after testing the equipment
the manufacturer discovered that there was nothing wrong with it. Mr
Philadelphia received, these complaints at the end of March 1992, or early in
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April He advised the grievor of these complaints as soon ashe received
i them, and he reiterated an instruction he had given the grievor the previous
November not to return anything to that manufacturer without pretesting it
in the laboratory, as that was his job. After this incident, Mr Philadelphia
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did not experience any other problems of a similar nature, although he noted
that he told the grievor not to ship anything out until he, Mr Philadelphia,
had inspected it first.
Mr Philadelphia agreed that he approved thegrievor taking a Wordperfect
course on April 15, 1992, because the grievor had prior approval for it and
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because it did not cost very much. ~r Philadelphia insisted that the grievor
\ was instructed to withdraw from the Supporting PC Users course scheduled
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the training budget for the new fiscal year was established Mr
Philadelphia learned that the grievor was taking the course when he
attempted to arrange a meeting with him and was advised that the grievor
could not attend because he would be going on the course - ..
_/ Mr Philadelphia was asked about the document dated March 24, 1992, and he
agreed that it does not give the grievor any feedback about his performance
Mr Philadelphia testified that nevertheless the grievor was given feedback J
at the meeting earlier held to disc,uss the handwritten version of t~is
document, and from January forward until the date of his release Mr r'
Philadelphia agreed that the April 28, 1992 document was the first one to
state in writing that the grievor was not meeting the requirements of his
position, but testified that while this may be so, the grievor had been -
verbally informed of this fact on numerous occasions. While Mr
Philadelphia never specifically advised the grievor that hiS work was
unacceptable, he testified that he implied as much in a great many
conversations, and that he attempted to obtain acceptable work from the
grievor by instructing him in the proper repair of Controllers, as well as by
designing a special form so the grievor could chart the progress of his
repair work. Mr Philadelphia testified that even after he designed this
form, the grievor would not consistently fill it out, and so he, Mr
Philadelphia, was required to constantly check with him to monitor the
progress and substance of his work.
Mr Philadelphia was asked whether it was appropriate for him, as a
member of the bargaining unit, to engage in this type of supervisory
activity, and he testified that he did not consider it to be a question of
status. Rather, he w~s simply attempting to ensure that the work got done
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and thcitproper procedures were followed
Mr Philadelphia was directed to that part of the grievor's performance
appraisal which he completed on April 28, 1992, and in particular to i1
portion of it that he ticked off, which states. "PERFORMANCE IS NOT
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ACCEPT ABLE Rating for an employee whose performance results failed to
met job requirements This employee must improve within an agreed upon
time period or be considered for reassignment or termination" Mr
Philadelphia testified that in his view, the grievor had already been given
sufficient time in which to improve, and he recounted his efforts from
January on' to assist the. grievor .in meeting the requirements Of hls
position
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titled "Guidelines for Performance Planning and Review," which states that
"the responsibility for Performance Planning and Review rests with
management excluded staff Those management staff who are responsible
for supervising employees will be considered accountable for ensuring that
the performance of employees is planned, monitored and reviewed" The
Guidelines, which are printed directly on the performance appraisal, also
state th~t performance reviews for probationary staff "should be conducted
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I after three and nine months to provide a basis on which to determine
acceptability for permanent employment." Mr Philadelphia did riot provide
an explanation as to why he,1 rather than a member of management, was
called upon to fill out the form, but testified that he had been pr0vided it by
the office coordinator and instructed to fill it out.
Mr Philadelphia was asked a number of questions about some of the
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particulars of the concerns set out in the grievor's performance appraisal
r
Some of these concerns have already ,b~en reviewed in this 'a~ard Suffice
\.
it to say that others, such as a written concern about the content of one of
the grievor's reports containing a misrepresentationapout a Ministry'-
supplier, was somewhat overstated in that the report was never provided to
that supplier, nor, in the normal course of event$, would it have been
Mr Philadelphia testified that Ms. Wong made the decision to terminate the
grievor; all he did waS supply her with the relevant facts Mr Philadelphia
testified that in general he met with laboratory e~ployees every Monday to
discuss the forthcoming week, and then again on Friday to review progress.
In his view, the laboratory is organized in such a way so as to virtually run
\
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itself, and his constant on-site presence was not necessary or required He
could be easily contacted at any time to discuss problems
Mr Philadelphia was asked some questions about Arthur Smith. He
described Mr Smith as the lead hand, and. he agreed that there was at least
one instance in which Mr Smith misunderstood instructions, and that this
was brought to his attention. Mr Philadelphia told the Board that when he
topk charge of the I,aboratory he realized that there was a IQt of confusion
about the specific roles of Mr Smith and Mr Dadula, and so he as~igned each
individual specific' duties and responsibilities A list of these duties and
I
responsibilities, along with completion dates, was introduced into evidence
and, as already noted, reflects the substance of the meetings held in
mid-January 1 992 Mr Philadelphia agreed that he never raised with the
~
grievor his concerns that thegrievor was attending courses but not
advising him of the exact dates of those courses However, Mr Philadelphia
testified that he would have liked to know the dates of those courses even
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20 ';'3ll:"
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though they had been approved, and he pointed out that he found several
copies of course confirmation letters that should have been given to Ms.
Wong in the grieyor's desk after his employment was terminated Mr
Philadelphia agreed that, in general, it was more effective to send a oopy of
a letter to the intended recipient, or to give it to him or her, rather than to
give it to the original recipient and ask that person to pass the copy on Mr
Philadelphia also testified to finding several resumes in the grievor's desk
after his termination, and in his view, the grievor should have passed those
on to him or Ms Wong as well
Re-examination of Mr. Philadelphia' )
In re-examination, Mr Philadelphia was asked about the copies of the
letters he found in the grievor's desk after his termmation Mr -
Philadelphia could tell that they were intended for Ms Wong because they
stated "cc: S. Wong" and this was highlighted.
\
Testimony of Siu Wong
Ms. Wong testified She has been he head of the electrical engineering
section since, October 1 991, and' has been employed by the Ministry for a
number of years. There are approximately twenty-five employees in her
section, and most of them are technical or professional staff The
laboratory is part other section
Ms. Wong testified that she made the termination decision, and in doing so
she relied primarily on the information provided to her by Mr Philadelphia
However, Ms. Wong also had a number of encounters with the grievor, and
her views about the grievor's suitability for employment were influenced by
these encounters
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Ms. Wong was asked about the grievor's attendance at various courses, and
in particular, about his attendance ata Supporting PC Users course Ms
Wong was shown a copy of the completed authorization form, and she
,;
testified that she authorized the grievor to attend this cour.se during -the
fiscal year ending on March 31, 1 992 When Ms Wong authorized attendance
on this course, she attached a pink notice to her authorization stating that )
if the course was riot held prior to the end of the fiscal ye;arl. then the
employee ,could not attend Ms. Wong never told the grievor he cou.ld take
the course in the new fiscal year, and she only allowed him to continue
taking it after she found out he was taking it because her section would
,
have been billed for it in any event. Moreover, Ms. Wong remembered that
the Ministry had already had to absorb the cost for this course on a previous
occasion involving the grievor when he had signed up for it the previous -
year without prior approval~ and she was anxious that there be no repetition
of this event. In her view, the course was more useful for the gnevor's
personal development than for assisting him in performing his duties in the
laboratory MsWong concluded from these events that. the grievor was
manipulative
)
Ms~ Wong was also asked about the grievor's request to her that his
probationary period be reduced. She testified that the grievor approached
her in February 19~2 and said that he was entitled to a shorter probationary
period because of his previous employment with the Ministry Ms. Wong
advised him that she would look in~o this, and when she did she learned that
this was possible, but that it was up to her:... to decide if she wished to
reduce it. She testified that she advised the grievor that she would not be
I
reducing his probationary period, and one reaso.n was because she wa~ being
kept regularly informed about his lack of progress by Mr Philadelphia
---_.~-- _.._---~~--- -'- . _.~ --- .-. --- - . - -,- . . ~ --"....,.-""'-.,---~ ~- ~-_.__.- --- ~- -
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~ 22
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These reports led Ms. Wong to the view that the grievor's- performance was
I
not meeting the Ministry's expectations, or her own expectations, of the
expected work product of someone holding his position and classification
Ms. Wong reviewed some of the grievor's technical reports, and she noted
that the grievo~, on his own initiative, submitted copies of them to her Ms.
Wong testified to the same concerns about these reports earlier discussed
by Mr Philadelphia Ms Wong believes that the grievor's report on the new
prom board was useless, and she is also of the view that a proper report
would have taken a qualified Technician 3 approximately three days to
produce, not three weeks, followed by a one week-extension Ms. Wong
observed that the grievor was provided with dear written instructions
about what was required on his report, and that these instructions were not
followed
Ms. Wong also formed the view that the grievor was not a team player, and
\
she pointed to his inability to get along with Mr Sm,ithand Mr Philadelphia
She noted that team work is essential in a laboratory, and the fact that the
grievor could not or would not work as a member of the team made it
impossible for the laboratory to do its work
~ )
According to Ms. Wong, she learned that there were problems in the
laboratory between September and December 1 991 The Ministry was
receiving complaints that the testing was not being done, and so she made
the decision to put Mr Philadelphia in charge Ms Wong testified that Mr /
Philadelphia was knowledgeable about the laboratory, and also had
supervisory experience Depending on his particular assignment, Mr
Philadelphia has been responsible for supervising one to seven employees
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'for the past six years Ms Wong believes that Mr Philadelphia is not overly
demanding, and is, i'n fact, very easygoing She is of the opinion that Mr
Philadelphia trains his staff as required, and she noted that she has never
received any complaint~ about him She testified that she trusts his ..
judgement. I
/
Cross-Examination of Ms. Wong
In cross-examination, Ms Wong agreed that she was not completely
familiar with Human Resou.rces Guidelines concerning the performance
review of probationary employees. Ms Wong was referred to the printed
part of the grievor's performance appraisal, referred to above, and asked
why the grievor was not given a formal performance appraisal after three
months She was also asked why the grievor was not given a formal .
)
performance appraisal until sometime before he was fired Ms. Wong
answered these questions by testifying that prior to her arrival at the
laboratory in October 1991, it was in a state of confusion Ms Wong
responded to this confusion by putting Mr Philadelphia in charge, and after
I
dealing with these and other events,it was the holiday season In January
1992, Ms Wong instructed Mr Philadelphia to establish a work plan for all
the laboratory employees so that everyone was aware of their own
responsibilities and the responsibilities of others Ms Wong testified that
even though the grievor had not received a formal performance appraisal to
this point, he had still received feedback about his performance from Mr
Kapur and Mr Philadelphia Ms. Wong is aware of Mr Kapur's efforts in this
respect, because he advised her in writing of them \
Ms. Wong testified that she was aware of the Human Resources
Secretariat's directive that probationary employee be advised of their
)
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shortcomings and the .fact that they are not meeting the requirements of
/ their position Ms Wong testified that this directive was complied with,
and she noted that Mr Philadelphia met regularly with the grievor, and in
\
that way he was made fully aware of his shortcomings and his need to make
I
improvements Ms Wong testified that she eventually came to the
conclusion that the grievor had not worked out and would never work out,
and she believed that if she did not release him from employment he would
become a permanent employee She did not think that this was an
appropriate case for her to extend the probationary period, and she' formed
this opinion because of the laboratory's experience with the grlevor, and his
performance, in the previous months Ms. Wong testified that she decided to
release the grievor before talking to him, but testified that this decision
was only made after she carefully considered the events of previous -
months, all of which had been reported to her Ms Wong noted that she had
received some calls from district offices' complaining about the cost of
repairs, and these costs were being incurred because the grievor was not
repairing controllers, but was returning them to the manufacturer
Ms. Wong testified that she had worked with Mr Philadelphia and so was
) aware of his supervisory abilities Ms Wong was generally aware that
-
members of management were expected to prepare and conduct performance
appraisals, but testified that she has delegated this task in the past, and
she noted that doing so is a generally accepted practice She testified that
she was confident about the soundness of her decision, and that nothing the
grievor could have said to her on the day that he was releaseq could have
made her change her mind Ms. Wong testified that not only was her
decision based on the information provided to her by Mr Philadelphia, it
was also based on her review of the grievor's written work, and on feedback I
(i'" 25
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from the districts, as well as on her own observations of him Ms Wong
testified that she made the termination decision right after seeing the
- grievor's -performance review, and after being told of the grievor's
unauthorized attendance at the Supporting PC Users course She told the
Board that she wanted to discuss the review with the grievor, but he called
in sick. Ms Wong agreed that- one reason she moved so quickly to terminate
thegrievor was because- she believed his probationary penod would soon
expire Ms Wong did not know anything about a decision to ext~nd Arthur
Smith's probationary period by three months
Testimony of Mary Nardi
I
Mary Nardi testified $he is an Administrative Assistant in the Ministry's
Staff Development and Training Branch She has occupied that position for-
two years, and has been with the Ministry for four years Her-
responsibilities include the coordination of courses held at the Mintstry's
Downsview site, and she testified generally about the procedures followed
by an employee who wishes to sign up for a particular course Suffice it to
"-
say that the employee must obtain the written approval of his or her
supervisor, as most courses involve a charge being levied to the particular
department or branch within the Ministry
Ms. Nardi knows the grievor, and she testified that she met him in the fall
, I
of 1 991 whep he called to express interest in attending a course titled
\
Supporting PC Users Ms. Nardi asked the grievor to obtain an authorization
letter, and based on his representation that he would do so, she held open a
spot in the course Ms Nardi telephoned the grievor several times when the
authorization letter failed to appear, but she never received it. The course
took place as scheduled, but without the grievorin attendance Ms Nardi
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testified that her-office budget had to absorb the cost of the three-day
course, which ranQes from $450 to $650 per person, depending on the
number of participants
;.
After this incident, Ms. Nardi received a number of other calls from the
grievor requesting information about various courses, and he sent her a list
of five courses he was particularly interested In attending The grievor
continued to be interested in attending a Supporting PC Users course, and in
1992 Ms Nardi received a signed authorization form enabling him to do so
The original of this form, signed by Ms. Wong, was introduced Into evidence
Among the information to be filled out on the form is the date of the
\
course, and on the form introduced into evidence it IS clear that at some
point the form specified the exact dates of the course, but that most of this
-
information had been "whited out." Ms Nardi testified that when she
received the form the white-out had been applied Ms Nardi told the- Board
that the course began on April 27, 1992, and that the grievor attended it.
.
l
Cross-Examination of. Ms. Nardi
In cross-examination, Ms Nardi testified that, in her experience, it was
I -
very unusual for employees to ask her to hold open a space in a course and
then not follow through wIth authorization She also testified that the
Supporting PC Users course was, relative to the other courses offered,
___ extremely expensive because it cost $15,000 (US) to run, while, the other
courses cost approximately $500 to run Accordingly, when a student fails
to appear the cost of that student's spot cannot be easily absorbed. Ms
Nardi testified that she did not find anything unusual about the fact that
the dates had been whited out on the form authorizing the grievor to attend
the Supporting PC Users course She not'ed that the dates of courses change ~
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all of the time All that Ms. Nardi is concerned with is that the course has
been appropriately approved
The Union's Case "
Testimony of Peter Thomas
Peter Thomas testified He is a Senior Electronic Maintenance Officer in the
Electrical Engineering Section, and is c:oncerned with traffic control Mr
Thomas has worked for the Ministry for more than thirty years Mr Thomas
( first met the grievor in 1989 or the spring of 1990 The grievor was
engaged, at that time, in setting up a demonstration of the 170 Controllers
He was at work after hours, and Mr Thomas assisted him in his
presentation ofa seminar on this topic. Mr Thomas also tqld the Board that
\ -
he was aware of a device the grievor built to assist him in checking the
wiring on electrical harnesses. In Mr Thomas's opinion, this device was
quite useful and saved a lot of time
Mr Thomas did not work in the laboratory, but went there from time to
time On these visits, he would observe the grievor at the work bench, and
he appeared to be working on Controllers From what Mr Thomas could
observe, the grievor appeared to know what he was- doing Mr Thomas
testified that the grievor was likeable and friendly, and appeared
competent.
Cross-Examination of Mr. Thomas
In cross-examination, Mr Thomas agreed that he did not supervise the
grievor, and did not have day-to-day knowledge of his activities and
I
accomplishments He also testified that Mr Philadelphia is a very patient
and understanding man who knows his stuff
I . ( 28 ('. ,
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Testimony' of Danny Dadula
The grievor testified on his own behalf He became a probatfonary employee
on September 17, 199T, and was hired by Mr Kapur The grievor has
extensive background in the private sector, and first began work with;. the
Ministry as part of a Ministry of Community and Social Service~ vocational
rehabilitatior,l placement in 1989 He held a series of contracts until he
won a permanent position in the fall of 1 991 In general, the grievor has
-
been responsible for the repair of 1 70 Controllers, and has also been
responsible for teaching coop students .about these Controllers The grievor
/
testified that at no time, since first beginning to work for the Ministry In
1989, has his performance ever been reviewed with him by a member of
management. His performance has, however, been reviewed Introduced
into evidence was a copy of a "Consultants Performance Appraisal" that the
grievor received in February 1991 upon the completion of one of his term
contracts The grievor received many excellent ratings, and the lowest
rating he received was satisfactory The appraisal concludes "On the
?
whole, the Consultant provided a very valuable service to this office due to
his interest, conscientiousness and cooperation"
When the grievor first began work he was usually assigned work by Mr
Kapur The grievor was not provided with a job specification when. he was
hired, and testified that he was never given one Usually, Mr Kapur told him
what to do, but no one ever told him what his job was all about. The .grievor
was shown a copy of the minutes of the meeting, held on January 17 and 20,
1992, and he told the Board that this was the first time he ever received
any information setting out his duties and responsibilities in detail The
grievor also met regularly with Mr Philadelphia in January Sometimes
these meetings were general staff meetin~s, on other occasions, the
,
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grievor and Mr Philadelphia met alone.. The grievor testIfIed that whIle Mr /
Phiiadelphia would assign him work during these meetings, he never said
I
( anything to indicate that the grievor was not meeting the requirements of
his position iI
The grievor spent most of his time repairing 170 Controllers The grievor
was asked about Mr Philadelphia's evidence with respect to the
manufacturer returning 170 Controllers earlier sent to it by the grievor,
f
having found nothing wrong with them. He told the Board that each time
this occurred, he explained his testing process to Mr PhIladelphia, and that
Mr Philadelphia appeared to be satisfied wIth the explanation He also
testified that when Mr Kapur was in charge, he was under instructions from
him to send all Controllers back to the manufacturer for repair .
-'
The grievor was asked about his relationship with other employees, and in
particular, with Mr Smith He testified that they had some disagreements,
and that Mr Smith was .not familiar with the Controllers He also testified
that he never saip that he did not respect Mr SmIth What he did say was
that respect could be achieved by Mr Smith serving as a good example The
grievor testified that he had a discussion with Mr Philadelphia about this
incident, and that Mr Philadelphia was satisfied with his explanation He
also told the Board that after this dIscussion, Mr Philadelphia did not raise
l any other concerns with him about his relationship with Mr Smith
The grievor testified that he kept several tools at his desk that should have
been returned to the tool cabinets.- He also told the Board that he ,never
made contact with the community college to request coop students, but that
the college contacted him. This seemed natural to the grievor, because of
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his previous experience supervising, training and evaluating coop students,
and he suggested that the college send him whatever information it had
available, and he would pass It on. The grievor did not tell the 'college
whether there was a coop placement. He intended to pass the information
on to Mr Philadelphia or Ms. Wong, and as planned, he passed on the best
resumes to Mr Philadelphia The grievor testified that no one ever told him
that he was not to do this, and since he thought that he was in charge of the
I
coop students there was no reason why he should not dd some pre-screening
before passing the resumes on '-
The grievor was also asked about the Supporting PC Users course and the
fact that he had apparently whited out the dates on the approval form. He
\ I
told the Board that he did white out the dates, and he explained why The -
grievor received Ms Wong's approval to take the course scheduled to begin
on March 15, 1992 That course was postponed The grievor was advised
\
that another course would be held, but as he did not know the dates of that
I .
.
course, he whited out the dates on the course approval form so that the
dates for the new course could be inserted when the course was
rescheduled. While the grievor had been advised that he could not take any
new courses without prior approval, he was of the view that courses that
had already been approved, such as this one, were not subject to the
restriction, and he noted that he was allowed to take a Wordperfect course
in April 1992 The fact that he had been allowed to do so confirmed his
,
opinion that he was entitled to take the Supporting PC Users course,) which
was rescheduled for the end of April 1992 He also testified that he
indicated on a schedule, posted in the laboratory, that he would be attending
this course, and in that way made his supervisor aware of his plans
I,
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When the grievor was advised by letter dated Apri'l 7, 1992, from Ms Mary
Nardi, that the Supporting PC Users course had been rescheduled for the end
of April, he' also received a copy of the original letter This copy had "cc S
Wong" highlighted Th~ grievor testified that ,he did not know what the
,
pureose of the extra copy was so he put it in his desk He was later advised
by Mr Philadelphia that he should have delivered it to Ms Wong, but
testified that he did not know at the time that this is what he was expected
to do The grievor testified that he liked attending courses, but that all of
these courses were for the benefit of the Ministry, and he explained what
some of the benefits were
.J
The grievor was asked about his final days on the job He tes~ified that Mr
J
Philadelphia asked him to do a certain Job, and he advised him that he could
not as' he Was to be attending the Supporting PC Users course Mr
Philadelphia expressed surprise at this news The grievor explained to Mr
Philadelphia that he thought that th~ course had been approved for the new
budget. Mr Philadelphia left the room for about thirty mmutes to discuss
.,
the matter with Ms Wong, and when he returned he told the grievor that he
could attend the course The grievor attended the course on April 27 and
28, but on the 29th, Mr Philadelphia called him to a meeting and handed him
some papers. He advised the grievor that these papers were hiS appraisal
The grievor reviewed these papers, and the negative tomments found
therein, and was in shock. He thought that everything was going well; and
the only discussion about his job performance that he ever had with a
member of management was about regucing' his probationary period After
going over the dqcuments with Mr Philadelphia; the grievor felt sick and
depressed and went home He did not return to work for several days. When
c
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he returned to work he was advis~d by Mr Philadelphia that Ms Wong I
wished to see him. The two met, ,and the grievor was releas~d from
employment. Since losing his job, the grievor has been receiving-
unemployment insurance, and has also been looking fora new job He ;;
testified that the job market for electronic technicians is very poor He
\
has taken several computer courses to improve his skills He told the Board
that he enjoyed working at the Ministry and would like his old job back.
Cross-Examination of Mr. Dadula
In cross-examin~tion, the grievor agreed that he learned about the
Electronic Technician position from a posting, and a copy of that posting
was introduced into evidence The salient section of the posting states
The Ministtyof Transportation, Electrical Engmeering
Section, seeks a highly motivated individual to provide,
assistance in testing and repairing traffic signal control
equipment. You will perform electrical, environmental
testing and repair complex microprocessor fbased traffic
signal control equipment, assist in the evaluation of new
traffic signal devices, assist in the development and
assembly of electronics test equipment for automatic
testing, repair/modify traffic signal control equipment.
/
He agreed that not only did this posting tell him something about the job, he
also had an understanding of what the job entailed as a result of his prior
laboratory work experience He also told the Board that the nature of the
position was discussed at the job interview, and that when he began work,
the work he was assigned was the work he expected to be assigned based on
all of the information he had previously obtained
Upon being hired, the grievor was advised in writing that he had a
f
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, probationary period of one year He testified that he wrote to Mr Kapur in
I
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, September 1 991, soon after starting the job, about reducing that period to
I
I
I six months because of his previous laboratory experience Mr Kapur did not
/ respond t9 this request, and so he raised it with Ms Wong in December
1 991, and she told him that she would look into it and get back to him.
When she did not, the grievor raised the matter again the following month
with Mr Philadelphia He testified that Mr Philadelphia advised him
(
sometime in January 1992 that the period would be reduced to six months j
, Mr Philadelphia did not confirm this by letter,. however [There was some
I
!
I
question as to whether this claim was put to Mr Philadelphia in his
evidence, and a review of our notes indicates that it was not. It was i the
I
I employer's position that Mr Philadelphia neJer advised the grievor that his
!
probationary period would be reduced and, in fact, advised him that it would
not be reduced.]
i The grievor was asked about his evidence in chief and about the statement
i he made that he instructed coop students in the repair of Controllers The
I
I grievor agreed that this had been one of his tasks He was then asked about
I his evidence that he did not, on the instructions of Mr Kapur, repair
i
Controllers, but sent them all out for repair He testified that the truth of
the matter was that some were sent out for repair and others were not
The grievor also testified that prior to January 1992, Mr Kapur screened
the resumes of coop students.
The grievor became more involved in the coop student process when Mr
Smith referred' a telephone call from a community college to him The
college wanted to know if the laboratory was going to be taking any coop
,
students, as it had in the past, and the grievor agreed to look into it. He
\
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agreed that no one In management ever gave him any authontyor direction
to do this. He also testified that he made a mistake, for which he was
~
sorry, in screening the resumes Instead of simply passing on all of the i
materials that he had obtained The grievor felt that this was part of.. his I
job, and that he was doing his duty for the Ministry
The grievor agreed that he w~s very well aware, in the spring of 19.92, that
money was tight, and that one employee, Diane Harty, had been let go at the
end of her contract because of budgetary problems. The grievor was also
aware that training funds came out of an annual budget, but did not know
that the Ministry's budget year began on April 1 st, and ended on March 31 st
He did know, however, that there was a budget year, and that the Supporting
/ .
PC Users course had to be taken in the budget year However, the grievor -
also understood that if the course was approved for one budget year it could
also be approved for the next. When the grievor received notice that the
course would be held at the end of April he did not think -1that he had to ask
Ms Wong about it, although he knew that the person in- charge of schedulmg
the courses, Ms. Nardi, was not responsible for approving them. The grievor
knew that it was an expensive course
The grievor agreed that when a course was scheduled, Ms; Nardi would give /
him a letter to that effect, along with a copy of that letter with the "cc"
section highlighted The grievor agreed that he was very familiar with this
process, and first testified that he knew that the copy of the letter that he
received was Ms. Wong's copy He was then asked why he did not give her
\
her copy iff he knew that it was to go to her, and he then testified that he
did not know why Ms Nardi gave him two copies. He agreed that he could
conveniently drop off Ms. Wong's copy, and that it was reasonable for Ms
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Nardi to assume that he would. do so However, he testified that he did not
give her the cOpy of the scheduling letter because he believed Jhat there
was another copy that Ms. Nardi sent directly to Ms Wong When the grievor
was reminded that he previously testified that he knew that his copy was
Ms. Wong's copy, he testified that he thought that his copy was a duplication
of her copy
The grievor did not agree that he had weekly meetings with Mr
Philadelphia, and testified that, in general, they were. not this regular
Some of the meetings that did take place were alone, and others took place
with a group. The gri~vor testified that when he met alone with Mr
Philadelphip, the discussions were confined to general matters such as his
Mr Philadelphia did advise the grievor to try to work as part -
work duties.
"
of a team. He testified'that he had good relations with Mr Smith, and
produced a Christmas card that Mr Smith sent him' as evidence of that fact
The grievor testified that Mr Smith knows what .heis doing, in his job, but
as he is new to traffic control, there are many things he must learn One of
the things he must learn is to command respect. The grievor emphasized,
however, that he never told Mr Smith that he did not respect hlm~ A ~ this
point, the grievor was shown a copy of a letter he wrote to the Qeputy
Minister of Transportation on June 26, 1992 which indicates, among other \
things, that the grievor did not have the highest regard for Mr Smith's
qualifications, knowledge and ability \
The grievordid not agree that he did not follow the .instructions given to
\
him for the preparation of his Prom Board report. He testified that he met
at least weekly with Mr Philadelphia after being given this assignment in
January 1992, and this evidence, it should be noted, is somewhat at
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\i', 36
variance with his earlier testimony that he did noe meet all that regularly
with Mr Philadelphia The grievor testified that he believes that all of the
matters he covered in the report were necessary, and he did not agree with
the sUQgestion or with the employer's evidence that he went beyond h1s
mandate in the preparation of the report. He did agree that he wrote a
letter to Mr Philadelphia on Apnl 12, 1992, apologizmg for getting carried
away on his report, but explained that one reason he did so was to calm Mr
Philadelphia down It is noteworthy that the grievor, on this letter, clearly
demonstrates that he is aware of the significance of sending copies of
correspondence to others, as thi~ .Ietter is "cc'd" to Ms Wong and Mr Smith
The Igrievor testified that Mr Philadelphia was not telling the truth when he
said that he specifically instructed thegrievor not to return home to get
his report, but to bring it in the next day -
According to the grievor, he did not have any concerns about job security In
February, March and April 1992 He testified, however, that Mr
Philadelphia threatened him and told' him not to rock the boat. The grievor
also testified that he has been forced to sign certain reports and other
documents when he did not want to He believed, nevertheless, that he was
doing well, an<;t that he was cooperating fully with Mr Smith and Mr
Philadelphia
Re-examination of Mr. Dadula 1 .1 )
1
In re.;.examination, the grievor was referred to his letter to the Deputy
Minister, and he testified that he wrote this letter at a time of
considerable upset. The grievor was then asked to describe how he had been
threatened, and he referred to a memorandum from Mr Philadelphia, which
-..
had been introduced into evidence and which expresses considerable
~~':- r--
'i' 37 ;,::... J/;"
dissatisfaction with the griev6r's Prom Board report. It is useful to set out
the full text of this letter, dated April 15, 1992
-FACTS We have had numerous discussion on vanous ,!
subjects Your subsequent actions to our discussion
were in direct conflict with what I was trying to
achieve It only goes to prove to me that you understood
quite well our discussions, but always choose to do
something that is contrary We have discussed this
topic and more in very great detail and there is nothing
more I will add at this time it is time to get on with
OUR WORK! Thanks. Lambert. -
-
I did not ask for a letter of apology You did not have to
issue one. So please take these back, IIApology letters"
and once again, thanks for your consideration Lambert
-
After reviewing the letter on the witness- stand, the gnevor testified that
he must have misread it.
In re-examination, the grievor also clarified the instructions he had
received from Mr Kapur about sending out the Controllers. He testified that
Mr Kapur told him to send them out whenever there was a backlog, and as
there was a backlog, he sent them out for a considerable period of time,
which might "have been as long as six months. He also reiterated his earlier
evidence that he never told anyohe at the college that there was a position
in 'the laboratpry for a coop student.
\
Employer Argument
Employer counsel 'began his argument by reviewing some of the relevant
f
jurisprudence He pointed out that the Board does not sit as an appeal
f
tribunal reviewing the decision of the Deputy Minister to release a
I
-- - - -- --------
,- (
( 38
I \~.
.~
I probationary employee for failure to meet the requirements of his or her
I
I
position Counsel also observed that in case after case, the Board has set
out the limited scope of its review In Sheppard 2492/86 (Slone) the Board
held that it could only review certain aspects of a release '"
~ ,.
A. Lack of Good Faith
If the Employer lacked good faith in releasing the
probationary employee, then the ostensible "release" will
be considered actually to have been a dismissal, which
can be grieved under Section 18(2)(c) of the Crown
Employees Collective Bargaining Act. Clearly, the bad
faith, if found, must be relatively serious
I
B. Unreasonable
While this term is utilized in the earlier decisions we do
not take it to mean that we can review the merits of the
employee's job performance and reinstate him If we find -
that the assessment was "unreasonable" that the
employee had not met the job requirements
Reasonableness in this context is a species of good faith
Whereas the phrase "bad faith" could encompass a release
improperly motivated or maliciously intended,
"unreasonableness" speaks more to an objective
assessment that the release did not flow logically or
rationally from the facts. If, for example, there was
simply no evidence that a probationary employee had not
fulfilled or could not fulfill the job requirements, then
no matter how well meaning were the actions of his
superiors, the release would have been an unreasonable
exercise of authority
C. Rational Relationship Between the "Facts and the
Release
This factor is nearly synonymous with "reasonableness"
If the Employer's assessment that a certain set of facts
justifies release is "irrational" on any half-intelligent
view of the matter, then the release becomes a discharge \
and can be reviewed The "rational relationship" test
should not be placed too high. It is easy to brand as
"irrational" any thought process or decision with which
{",> -'
f~ ,.. "'C\,~"~
~~;;;,- 39
i'
r
one does not agree The Deputy Minister must be free to
make decisions, without being found to have -acted
irrationally merely because a Board of arbitration might
have c;ome to a Qifferent conclusion (at 1 5-1 6)
;..
In counsel's view, this case and others, including Balderson 1 589/84
}
(Delisle), Mitchell 161 0/89 (Emrich) ant:i McKnight 2022/90 (Kaplan) stood
for the proposition that once the Board determines that the employer has
acted in good faith, and that in deciding to release a probationary employee,
there was no unreasonableness and nothing irrational in the conclusions
that the employer reached, the Board should not interfere with the result
Counsel argued that when this standard was applied to the facts of the
instant case, the grievance could only be dismissed
-
In reviewing the evidence, counsel noted that the grievor was well aware of
the nature and demands of his job when he applied for it, and that he had, In
fact, prior laboratory experience This was not, accordingly, a case where
an -employee was put into a job he or she was clearly unqualified for and
unprepared to perform, and then was negatively assessed on his or her
failure to perform the position in question Counsel :conceded that in the
time period prior to Mr Philadelphia's assuming supervisory responsibility,
the laboratory was not well managed However, that situation changed
after Mr Philadelphia took charge, and counsel argued that the evidence was
clear that Mr Philadelphia regularly met with the grievor, provided
training, instruction and supervision to him, and kept him constantly
informed of his progress and his continuing failure to meet the position's
requirements
While Mr Philadelphia did not regularly document the grievor's deficiencies, "
counsel pointed out that there really was no doubt but that he brought them
.r
c., I
" 40
-, .
"
to the ~rievorls attention, and did. so on a regular basis through staff
meetings, one-on-one meetings, and memoranda In January 1992, the
grievor and Mr Philadelphia met over the course of several days, and
subsequently the grievor received along and detailed Itst of his dutie~ and I
responsibilities, / and in discussing that list Mr Philadelphia made it clear
to the grievor that a number of problems needed to be addressed. There
were other meetings after this one, and counsel argued that the same
message was communicated to the grievor In the circumstances, coun~el
argued, t_he grievor must have been aware that the employer had serious
concerns about his job performance and the fact that his job was on the
li.ne
Counsel also pointed out that the grievor was well aware of the nature of a
probationary period and, as a result, made a number of efforts to get his
probationary period reduced In counsel's submission, the employer's
~
concerns about the grievor's performance could have been better
documented, and the grievor could have received an earli~r written
performance appraisal However, counsel argued that the grievor was kept
well informed about his progress, and there was nothing palpably
unreasonable about the employer's decision in this case
Counsel also pointed out that the facts established a rational relC\tionship
between the facts and the decision to release Counsel referred to Mr
Philadelphia's evidence about the failure or unwillingness of the grievor to
follow instructions and take directions He noted the employer's concerns
about the grievor not appearing at work on time, and the employer's
ultimately unsuccessful efforts to take remedial action with respect to
this He also referred to thegrievor's inability to get along with both Mr
--.---
/o-
r
\:.~ ~}~; 41
.
Philadelphia and Mr Smith. And counsel referred to the problems
surrounding the Prom Board report as "another case in point.
Counsel noted that the grievor was provided with detailed Instruction's for
the preparation of a report that Ms. Wong estimated should have only taken
several days It took the grievor four weeks, and the report he submitted
was, on the evidence of Ms. Wong and Mr Philadelphia, of no use whatsoever
Moreover, here too, counsel pointed out, the grievor deliberately disobeyed
instructions and went home to get his copy when he had been explicitly
ordered not to do so It was noteworthy, counsel suggested, that in
evidence the grievor testif~ed that he continues to believe that his report
was useful
-
Counsel also referred to various other problems with the grievor, including
his conduct with respect to the Supporting PC Users Course This incident
clearly established, according to counsel, that the grievor was not an
honest employee, and that the Ministry could not trust him. Other incidents,
such as the grievor acting without authority as a representative of the
laboratory with respect to coop students, further confirmed the employer's
view that the grievor could not and would not act as a member of the
laboratory team, and did what he wanted when he wanted without regard to
instructions and the requirements of his position. While none of the
incidents considered alone might be sufficient to support a release, counsel
argued that they should be considered cumulatively, and when they were the
requirements established by the Board in reviewing cases of this kind had,
in counsel's view, been more than met.
\
Counsel also argued that this was an appropriate case for making some
~
(7
. ''',. ,
,; 42 ':.:l~j
findings about credibility, and that these findings also supported the
decision tq release Counsel suggested that where there was a conflict
I .' '
between the evidence of Mr Philadelphia and the grievor, Mr Philadelphia
should be believed Counsel pointed out that the evidence established"
several cases of dishonesty on the part of the grievor, and he suggested
that failing ~o give MsWong her copy of his course information letter was
one of a number of examples on point. Another example. was in the
proceedings before the Board when the grievor gave conflicting evidence
With respect to the same questions.
In conclusiOn,counsel argued that, as in 'most cases, there were things that
the employer could have done differently, and there were things that the
employer could have done better But there was, in hiS view, really no doubt
that the employer had brought its concerns to the grievor's attention, that
.J these concerns were significant, and notwithstanding t numerous
opportunities to, improve, the grievor's performance did not improve, and
that the decision to release was accordingly fully supported by all the facts
in this case Counsel urged that the grievance be dismissed
Union Argument -
Mr Leeb began his submissions by expressing general agreement with the
legal principles to be applied by the Board in its review of a probationary
release He too took the position that it was not the function of the Boa rd
to second-guess the employer's decision In hi~ view, the issue before the
Board was whether the release was a reasonable and rational decision
based on the facts. And in his view,' it was not.
Mr Leeb referred to the Human Resources Directives and Guidelines This IS
-. - ----- - --~-------~ - -~---_. - -_.~--- ~-~ ------ ~- - - -- --- --------------
____n__
i I.
\ 43
I .~
a Management Board document superseding the Manual of Administration
Among the issues dealt with is the release of probationary employees The
relevant Directive states
~
Employees must only be released during the first year of
employment in the OPS for failure to meet the
requirem~nts of a position [PSA, s. 22{S))] if
-periodic appraisals show that performance on the job
failed to improve to the level expected,
-they were kept informed of their shortcomings, and
provided with adequate assistance and opportunity to
overcome them.
-
The relevant Guideline states:
Failure to meet requirements of position
Releasing employees within their first year of
employment 'with the OPS for failure to meet the
requirements of a position should take place only after
all efforts at improving the performance of the
employees have failed This includes appropriate support
and assistance from management as well as adequate
accommodation as required by the Ontario Human Rights
Code.
-
Provide Assistance First
') Managers and supervisors of employees in this situation
should provide help and. encouragement, and where
I
appropriate, formal training in order that employees may
improve their work performance Open, frank discussions
should take place where all parties involved obtain a
clear understanding of performance objectives and
expectations, and what action will result if those are not
met. Schedule performance appraisals frequently, for
.,-.. - , -
CA 44
'~.i4.\.'
.j'
example every three to' four months
"-
Documentation Required
Where release for failure to meet Job requirements
within the first year of employment is being i
contemplated, a pattern of poor performance should be ..
-
documented The documentation should demonstrate ..,
-the e'mployee has been advised that he/she' is not
meeting the standards of the job and that release IS
being considered,
Mr Leeb argued that these Directives and Guidehnes were not followed, and
the failure of the employer to follow them in this case was fatal to ItS .
decision to release the grievor, and Mr Leeb cited Rupert 372/84 (Gorsky)
in support of this point. Very simply, in the union's view, the failure to
follow these Directives and Guidelines resulted In the grievor not being
provided with a real opportunity to meet the requirements of his position,
and indicated a lack of reasonableness and good faith on the employer's
part. In Mr Leeb's submission, the release decision should and could be set
aside on that ground alone
Mr Leeb also pointed out that when the gnevor finally did receive a written
performance appraisal it was on the eve of his discharge, and once again the
employer failed to comply with its own procedures when it had Mr
Philadelphia, a member of the bargaining unit, prepare the evaluation
instead of a member of management. Mr Leeb argued that at the very least,
the grievor should have' been given some warning that his job was on the
line, and there should have been a ~tated timetable within which he was
"' --~.
. ( 45 ~
.
expected to improve
Mr Leeb also argued that when the grievor was finally given a- performance
appraisal, it was not a proper performance appraisal since it was prepared
for one reason - to justify and support the employer's decision to release
In Mr Leeb's submission, this was completely contrary to the principles
governing performance appraisals and indicated considerable bad faith on
the part of the employer Moreover, turning to that release decision, Mr
Leeb pointed out that there was, at a minim-um, more than one month left in
the grievor's probationary period at the time when he was r~leased, and this
time could have been used_ to give the grievora real opportunity to meet the
I
requirements of his position Instead, Mr Leeb argued, the employer hastily
\ /
threw together a performance appraisal, and then immediately followed it.
with a release The performance appraisal, in the union's submission, was
"-
written in bad faith !
Mr Leeb also argued that the employer was relying on irrelevant criteria in
'\
its decision to release Mr Leeb noted that the position specification did
not state that strong interpersonal skills were required for the Job, and did
state that Mr' Smith was the grievor's supervisor, not Mr Philadelphia It
was significant, Mr Leeb suggested, that the employer had not called Mr
Smith to give evidence, and argued that given its failure to do so the Board
should and cOlJld infer that his evidence would have been unfavourable to
the employer's case (see Shaw 410/88 (Barrett) and Sopinka and Lederman,
The Law of Evidence at 535)
Mr Leeb also suggested that a number of the employer's. concerns were
exaggerated For example, Mr Leeb argued that It was the grievor's
~._- - ._ ,_.. "-'..A ' . ~ .;"",x.- '..1' :.. ........ - -- - - -_.._- -
;. CL 46
f-.""
evidence that the community college contacted thegrievor, and not the
reverse, and that in any event, the grievor realized his mistake and
apologized for it. This was not, Mr Leeb suggested, a suffiCient reason to ~
release the grievor from employment. Mr Leeb also suggested that it ~'was
not unreasonable for the grievor to submit a whited-out application form
for the Supporting PC Users course The grievor did not know when the next
course would beheld, and so he could not fill in the dates. While Mr Leeb
did not djspute the fact that the grievor was told that he required
i
reapproval to take courses in the new fiscal year, h,e noted that the grievor
took the Wordperfect course and nothing came of it. When the grievor
received notification of the Supporting PC Users course,it was not
unreasonable for him to assume, Mr Leeb suggested, that he had also been
approved for it. Mr Leeb pointed out that no one told the grievor that he -
I
was to deliver Ms Wong's copy of the confirmation letter to her, and that
the grievor proferred an explanation for his failure to do so, namely that he
had a received a copy of her copy It was, in Mr Leeb's submission, up to the
employer to deliver to Ms. Wong her copy, not the grievor Likewise, Mr
Leeb argued that the grievor thought that he was doing the right thing when
he went home to get his Prom Board Report, and he suggested that the
grievor's evidence on this point should be preferred to that of Mr
Philadelphia \
In Mr Leeb's view, when Ms. Wong received a copy of the grievor's Prom
Board report, and on various occasions when she was advised by Mr
Philadelphia of problems relating to the grievor, she should have taken
charge, met with the grievor and spelled out to him in no uncertain terms
that his job was on the line Mr Leeb argued that not only was this
obligation set out in case after case, it was also part of the employer's
(:.. 47
. ~ !~
;
t
'\
stated policy, and at a minimum, it was necessary as a matter of fairness
I
to the individual employee Mr teeb also argued that the grievor really did
not get/3 chance in this case because the laboratory was in a chaotic state
during his first four months on the job, and so that important training;. and
orientation period was effectively lost. "
Mr Leeb arg.u~d that the grievor
deserved a fair chance to do the job, and that the evaluation process the
employer followed in this case deprived him of that opportunity, and he
referred to Agboka 729/90 (Fisher) in support of this point. In Mr Leeb's
view, the only fair remedy in this case was to return thegrievor to work,
and to provide him with a real chance to demonstrate that he can meet the
requirements of his position Mr Leeb asked the Board to reinstate the
grievor with full compensation and interest, and to remam seized with
respect to the implementation of its award
Employer Reply
In reply, counsel again conceded that the process followed in thiS case was
far from perfect. However; counsel reiterated his earlier argument that~ the
grievor was repeatedly told about his shortcomings, that the employer made
numerous efforts to assist him, and that the grievor knew, as his efforts to
obtain a reduced prob~tionary period illustrate, that his job was on the line
Counsel also argued that_ the grievor, by his own conduct, made Impossible
the continuance of the employment relationship
~
In counsel's view, the evidence amply established that the grievor was
dishonest and manipulative, and not only had the Board heard evidence about
his dishonesty, it had witnessed it when the grievor himself testified in
these proceedings 'The employer could not trust this individual, and there
were more than ample grounds for it to conclude that he was not and would
'\
/
-- -. - - ~..-,; . -- ...( - +-~ --.. - --~'-!r''''''''''
- ~-- -- ------ -- -----
I . C' 48 C~.
~...:'i 't> .''10'
I
not ever be able to meet the requirements of his position
( \
I
In counsel's submission, the employer regularly evaluated th~ grievor's
performance and brought to his attention the resultS of that evaluation
Counsel argued that the grievor did not just have a .chance to do his Job, but
was given many chances, and he consistently failed to perform the
essential requirements of his position, and he consistently acted in a
manner contrary to the interests of the employer Counsel argued that one
of the purposes of performance appraisals is to ensure that employees are
"
made aware of their shortcomings, and he argued that the evidence In thiS
\
case established that the grievor was made aware of his shortcomings on
numerous occasions. Counsel also argued that the evidence did not
demonstrate any unfairness to the grievor, and the fact that Mr -
Philadelphia and not Ms. Wong completed the April performance appraisal
was, in counsel's view, of little significance It was the content of the
appraisal that mattered Counsel. also point~d out that the grievor testified
I
to feeling threatened, and when this was explored he admitted to feeling as
if his job was in jeopardy The release in this case ,could not, counsel
\
suggested, have come as a surprise
\
In counsel's submission, the employer in this case had not just established
that the grievor was properly released for failing to meet the requirements
(
of his position, but had also established what would constitute just cause
for the termination of a classified employee There was, in counsel's view,
no bad faith, and he noted that considerable bad faith is required by the
(
Board to set aside a release Counsel also argued that there was no
unreasonableness present in this case What there was, in his view, was a
~
rational relationship between the facts and the decision to release
(
,
- - ~ ..... _..~ .': -~-~ . - --" - - - - ."
. (;.,,' t.
49 V....i
..
Counsel urged the Board to dismiss the grievance
I
Decision
Having carefully considered the evidence and arguments of the partie~, we
have come to the conclusion that this grievance should be dismissed
Obviously, the employer's conduct must be measured against its own
Directives and Guidelines. That part of the Directive relating to the release
of probationary employees requires periodic appraisals demqnstrating the
employee's performance on the job failed to Improve to the level expected,
)
and also requires that employees be kept well informed of their
\
shortcomings and provided with adequate assistance and opportunity to
overcome them. In this case we find that this Directive has been complied .
with, although the manner in which this was done can hardly be described
as exemplary
\
There is no doubt, on the evidence, that the grievor was kept well informed
of his shortcomings. There is also no doubt that he was provided with more
than adequate assistance and opportunity to overcome them. It is clear
"- from the evidence of Mr Philadelphia that he personally worked with the
, grievor and provided him with considerable trainihg, support and assistance
in an ultimately unsuccessful effort to enable the grievor to meet the
\
requirements of his position He also arranged for the grievor to receive
training in the basic requirements of his position These efforts failed, but
through no fault of the Ministry Moreover, these efforts suggest
considerable good faith on the part of the employer
While it would have been preferable if the grievor had received periodic
- -- ---- ---- .--- ~---- -,-"- - --- - --. . ---- -. -.--
--- -.-. -----
------ --- --'------
. f",
so - <-~\ -..,;
fI
written appraisals clearly setting out the fact that his performance was
/
not improving, as well as the consequences,. including release, if
substantial improvements were not forthcoming, the evidence establishes
, l
that this information, beginning in January 1992, wa~ regularly and ,;
I repeatedly communicated to the grievor There was some evidence in this
case that the grievor responded better to written directives; and although
this evidence is equivocal given his failure to respond to the written
instructions provided to him in advance of his beginning work on the Prom
Board report, as a matter of practice, written appraisals, which clearly
state the consequences of a failure to improve within a specified time
period, should be given to employees in fulfillment of this part of the
Directive
-
The benefits of providing probationary and other employees with formal
written appraisals, in addition to inf0rmal verbal ~ppraisais, are
self-evident. Not only do they provide the parties with a record to refer to
if a release decision is subsequently challenged, more importantly, they
provide the employee and the employer with a written statement against
which improvement in performance can be evaluated Providing written
appraisals is a matter of fairness to the employee and, as the GUidelines l
indicate, they are the preferred manner in which the information should be
-
conveyed However, we cannot find that the Directive requires written
appraisals as a precondition to the release of a probati.onary employee, nor
can we find, in the circumstances of this case, that there was any question
but that the grievor was not meeting the requirements of the position, and
that the Directive was complied with insofar as this information was
regularly and consistently communicated- to him.
-,--- - - - ---~--_. ~- -- - - -~ ~ ... - - ~
- ----- ~ --.-- -
'& (. 51 C>
.....
"
Moreover, it should be noted that the grievor states in his JI,me 1992 letter
to the Deputy Minister to having received two performance appraisals in
(
\
March 1992 On the evidence before us, the second of these appraisals was
setout in writing, and the grievor, in late March 1992, signed a copy of it
I
The evidence also establishes that the grievor received a third performance
appraisal at the Emd of April 1992, and this appraisal was also In wnting
While its characterization was questioned by the union, Mr Philadelphia
testified that the grievor's performance wa$ also appraised in January
j 1992, when he met with the grievor and Mr 'Smith, to discuss the
assignment and progress of work in the laboratory The grievor )
subsequently received a written copy of the minutes of this meeting
Had) the grievor not received these performance appraisals, had the -
employer not kept 'him fully advised about the requirements of his position,
~
had the employer not made significant efforts to work with the grievor in
meeting those requirements, and had the evidence established that the
grievor was left unaware of the fact that his job was in jeopardy, we would
have upheld the grievance and reinstated the grievor It is worth noting
that while none of the individual incidents detailed in this award would
, f
likely support a release, it is appropriate, i1i this case, to cumulatively
consider them
Obviously, the first fewm0nths of the grievor's probationary period cannot
be considered in this case - on the evidence of the employer and the union,
the laboratory was in a chaotic state, and it is clear that the employer was
in no position to assess the gnevor in this penod While we might, in
another case, have been inclined to find that these conditions effectively
deprived the grievor of a significant part of his probationary penod, we
/
'.
~' 52
cannot so condude in the instant case The grievor was no stranger to
either the laboratory or to his position He knew exactly what he was
supposed to do, and, supposedly, how to go about doing it. Accordingly, this
is not, in our view, ~n appropriate case to find that the grievor was n6t
given a full opportunity to meet the requirements of his p6siti(~n As a
matter of fact, we find that the employer had, in the period beginning in
January and ending, in 'April sufficient time to assess the grievor, attempt
to assist him, and ultimately, to conclude that he was not meeting the
requirements of his position While it may have been better if the grievor
had been given a longer opportunity to attempt to meet the requirements of
his position, we cannot conclude that an extension of his probationary
period would have, in any way, affected the ultimate result.
.
\
We find that the grievor knew exactly what his job entailed We also find
that he was provided with assistance and support to assist him in
performing his position, and that he was made aware of the many
difficulties he was encountering on the job and the need for improvement,
particularly in the period beginning in January 1992 and endmg with his
release The evidence indicates that at no time did the grievor meet the
employer's legitimate job expectations, and that those expectations were
regularly and consistently communicated to him, as were the suggestions
that the grievor change his attitude and behaviour, as well as improve his
performance It is also worth mentioning that there is no evidence in this
case of the grievor making an honest effort to improve when his
shortcomings were brought to his attention
We cannot find that the fact that Mr Philadelphia prepared both of the
grievor's written performance appraisals instead of a member of
~ - _. -- ~ - - ---
I .. 53 C'"
'P'
I
management is a sufficient reason to set aside the release Obviously,
performance appraisals should be prepared by members of management -
-
the Guidelines and the performance appraisal form introduced into evidence
say as much In this case, Mr Philadelphia was acting in a managemeot
capacity and was, on the evidence, the grievor's only day-to-day supervisor
He was the only ,person in a position to properly assess the grievor
Moreover, even jf the appraisal had been formally prepared by someone else,
it would have been based on information provided by Mr Philadelphia
I
However, there clearly was a defect in this 'case in this particular respect,
but we cannot find that the defect is of such significance as to irreversibly
taint the final result.
Some additional observations are in order The grievor demonstrated an -
inability to work as part of a team, and his on-duty conduct, including his
failure to attend work on time, hl~ assuming responsibility for matters
beyond his purview, and most importantly of all, his dishonesty in taking a
course that he knew required Ms Wong's approval, demonstrate that the
I
grieVor was not meeting, and would not meet the requirements of his
position The grievor's misconduct in taking tl1is course is illustrated by
his concealing MsWong's copy of the course information form. The
explanation othegrievor provided for doing so simply makes no sense The
grievor knew that he was responsible for delivering this form, and the
various explanations that he provided for not doing so are simply not
believable On the issue of credibility, the Board was invited, on several
occasions, to prefer the grievor's evidence to that of Mr Philadelphia and
Ms W on9 This we cannot do In every case of conflict in the evidence, we
prefer the testimony of the employer's witnesses Not only is their I
evidence internally consistent, more importantly the evidence of the
.. ( 54
:i --
grievor when he was testifying was inconsistent on several occasions, and
j
also varied from his own written materials introduced into evidence The
grievor was aware, for example, prior to his release, that his employment
was in jeopardy We also find that the grievor was advised that his ;i.
probationary period would not be reduced
It is clear in this .case that while the grievor lTlet the requirements of a
,
junior and less demanding position with the Ministry, and d.id so over a
number of years pursuant to several limited term contracts, he was not
able to meet the requirements of his Technician position Accordingly, he
was properly released for his failure to do so That failure was made
inevitable, notwithstanding the assistance, support, and, it should be noted,
good faith of the employer, by the grievor's attitude and behaviour In -
short, this is not an appropriate case for the Board to set aside the
grievor's release in that we are satisfied that there was a rational
(
relationship between the observations made by management and the
conclusion which was reached We find no evidence of any bad faith or
unreasonableness in this case - all of the evidence is to the opposite effect.
Accordingly; and for the foregoing reasons, the grievance is dismissed
"
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it 55
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DATED at Toronto this I
20th day of September ,1993
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William Kaplan
Vice-Chairperson
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_Q.. ~__~_ Addendum Attached
S. Urbain
" Me~d
qD~t~~~--~
Member
I
I
Chairperson's Addendum
I !have readMr Urbain's addendum, and while I cannot agree with all of his
findings of fact, I wholly agree with the general concerns that he has -
expressed In this case, as in many others, the 'Board has found itself
satisfied, at the end of the day, with the propriety of the ultimate result
but very concerned about the process employed in reaching that result. The
majority, in this case, decided that while the management Directives were
effectively complied wit~, the relevant Guidelines were not. Had the
situation been the reverse, we would' have upheld the grievance and
reinstated the gri~vor Our finding in this case, however, should not be
taken as either condonation or approval of the manner in which management
went about discharging its responsibilities Both the Guidelines and
Directives are there for a reason, and absent exceptional circumstances
they should be followed It may be that the time has come for the Board to
\
consider what -other remedies, in like cases, might .be appropriate so as to
communicate this view to the members of management who are, after all,
responsible for managing, and in that way ensure greater attention and
fidelty to these established policies and procedures
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,;
1089/92 OPSEU (Dadula) and Ministry of Transportation'
Addendum
The~grievor started his probationary period on September 17,
1991, as a full-time -Electrontc Technician His immediate
supervisor according to the Position Specification is the Senior
Electronics Technician who at the time was Mr Arthur smith. B~th
in turn reported to Mr. Arun Kapur, the Field Support Co-ordinator
All three positions are in the bargaining unit. The Field Support
Co-ordinator reports to the Head of the Electrical Engineering
I Section, a management position that is' excluded from the bargaining
I unit /,
(
According to the Employer's Human Resources Directives and
Guidel ines performance appraisals for employees on probation should
be scheduled frequently for example every three or four months
Performance appraisals are to be completed by .management staff who
a~e excluded from the bargaining unit
Counsel for the employer conceded that prior to the
replacement of Mr Kapur by Mr. Philadelphia in January of 1992,
the laboratory was not well managed. The employer agreed that
conditions in the laboratory were somewhat chaotic. As a
consequence of this mis-management the grievor did not receive a -
written appraisal of his performance for at least the first four
months of his probationar~ period
After Mr. Philadelphia replaced Mr Kapur meetings were held'
with the laboratory staff including the grievor, in January 1992.
The minutes of two meetings January 17th, and 20th, were prepared
and given to the staff including the grievor. They describe in
detail what the grievor's responsibilities were, how much time he
was to devote to each anq how to report his progress . However
according to the Employer's own guidelines this does not qualify as
a performance appraisal. The document prepared in late March 1992
referred to as the second appraisal also fails to qualify as a
valid performance appraisal in that, as Mr. Philidelphia conceded,
it does not give the grievor any feedback about his performance. i
Mr. Philadelphia admitted that the April 28, 1992, performance
appraisal was the firf:it one to state in writing that the grievor
was not meeting the requirements of his position.
I must agree with the Union's argument that this was not a
proper performance appraisal since it was prepared solely to
justify the Employer's decision to release the grievor.
Ms. Sui Wong, became Head of the Electrical Engineering
Section in October 1992 some weeks after the grievor started his
probationary period. As a member of management excluded staff it
wasMs wong's responsibility to conduct a performance appraisal of
the grievor. When asked why the grievor did not receive a
performance appraisal after his first three months of probation Ms
Wong replied th~t Mr Kapur, the Field Support ~o-ordinator, was on
~
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b-.
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vacation and then the Christmas holidays ,intervened Ms. Wong went
on to testify that she felt comfortable delegating this task.
To delegate performance apprais~ls to a member of the
bargaining unit is simply abdication of managerial J
an
responsibility It is not surprising that Mr Philidelphia would
be reluctant to put something in writing ~hat might cost a fellow
Union member his job It was not his responsibility to inform~the
grievor in writing that his job was on the line if he dtd not make
significant improvemeDts' to his work performance.
Ms Wong received copies of the grievor's Field Testing Report
o~ Cabinets and then his Prom Board ~eport in April, 1992 When
Ms Wong concluded that these reports were technically deficient
she had a managerial Obligation to personally bring this to the
grievor's attention as soon as possible This was not done.
Eventually Ms Wong made the decision to release the grievor
without even talking to him
On the ipsue of credibility, I am in full agreement with the
other members of this Board and accordingly have concurred with
this decision
i
Dated at Don Mills, this 3rd day of September 1993. .
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