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HomeMy WebLinkAbout1992-1329.Syed.94-10-14 ~~ : f, , -= -- ~ ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO ~ _II GRIEVANCE COMMISSION DE 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 2100, TORONTO (ONTARIO) M5G lZ8 FACSIMILE/TELECOPIE (416) 326-1396 1329/92 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT \ Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Syed) ( Grievor - and ... The Crown in Right of Ontario (Ministry of Community & Social services) Employer BEFORE: B. Fisher Vice-Chairperson W. Rannachan Member J. Miles Member FOR THE K. Whitaker UNION Counsel Ryder Whitaker Wright J FOR THE M. Gottesman EMPLOYER Counsel Legal Services Branch Ministry of Community & Social Services BEARING June 14, 17, 22, 1993 July 15, 23, 1993 August 27, 1993 September 8,1993 " " -J: .J - 2 - This case involves the release of a probationary employee The Grievor was employed from March 1991 to May 19, 1992 in the Ministry of Community and Social Services as a Systems Officer 3 in the Technical Support Branch The Ministry's position was that this was a valid release under Section 22(5) of the Public Services Act. "A deputy mmister may release from employment any public servant during the fIrst year of hIS employment for failing to meet the requirements of hIS position." ) The Ministry has the onus of proof in this case In Agboka 729/90, this Vice-chair stated as follows "It is the Mimstry which must prove the defence of Section 22(5) of the Public Services Act, which includes proving that the grievor was given a fair assessment, that it was done in good faith, and that there was a rational connection between the facts and the decision (Sheppard 2492/86 Sloane)" The parties led extensive evidence on the various duties undertaken by the Grievor during his employment. However, we do not intend to review all that evidence Rather, we will focus on those parts of the case which the Grievor claims amounts to evidence that he was not given a fair assessment. i The Grievor's job specification is attached to this award I It is useful to first set out a chronology of relevant events -. 1.. ''''i - 3 - ChronoloQV of Relevant Events March 4, 1991 After winning a competition, the Grievor was put on a reduced 6 month probationary period because of his unclassified experience at the Ministry of Labour in a similar position Mr Lee became the Grievor's supervisor July 31, 1991 First performance review for period up to July 31, 1991 This review was quite negative and critical The Grievor was warned that unless his performance improved, a recommendation for release would follow In the section for ~mployee comments, the Grievor wrote "I will add my comments at a later time" I n fact, the Grievor never did provide any written comments on this review Sept 3, 1991 Second performance appraisal for the period of August 1st to 31st, 1991 This review was also quite critical. Mr Lee iddicated that he will now recommend release Again, the Grievor wrote that "Comment will be addcrd at later time" but failed to ever do so Sept 4, 1991 Grievor was released for failure to meet job requirements. Grievor filed grievance I OPSEU and the Ministry settled Grievor's grievance by reinstating Nov 21, 1991 him to his previous position and ,still under the supervision of Mr Lee His probation period was not to exceed 6 more months \ Nov 25, 1991 Pursuant to the settlement, the Grievor returned to work. The Grievor was given a document outlining his overall objectives, job I related objectives, expectations, standards of evaluation, and schedules of evaluation The Grievor acknowledged that he was "in total agreement" with the plan January 13, 1992 Third performance review for the period from November 25, 1991 to January 10, 1992. This review was positive in tone and content. The Grievor signed off with no comments .' .1. ,,' - 4 - March 11, 1992 Fourth performance review for t le period January 11, 1992 to March 9, 1992 This revieW was negative and i.;ritical The Grievor refused to sign the appraisal. March 24, 1992 Grievor presented a "Preliminary Response" to his performance review of January 11 to March 9, 1992 He made mention that a detailed response would be forthcoming, but no further response was ever sent regarding this p~rformance review May 1, 1992 Fifth and last performance revi ~w for the period March 10 to April 30, 1992 This review was very negative in tone It contained a warning that unless there is an "immediate land fast improvement", his release will be recommended '\ Grievor claimed that he handed into management a preliminary May 4, 1992 written response to his perform~nce review of March 10 to April 30, 1992 The Ministry claimed t~at they never got it. The Grievor never submitted a more detailed response as he said he would in the preliminary response J May 19, 1992 Grievor was released The Union argument for an unfair assess~nent can be discussed under the following headings (A) The Grievor Prior Work Experience and Trailling The Union contended that the fact that t le Grievor had extensive related /" experience, including a position at the Ministry of Labour which had a similar computer system as this Ministry, is evidence that he was qualified to do the job We have two ~ comments on this submission ( .oj. v~ - 5 - .../ I First of all, there were significant differences between his position at this Ministry and his previous position at the Ministry of Labour, as the software program and computer system was more extensive at this Ministry At the Ministry of Labour, the Grievor worked fairly independently, while at this Ministry, he was part of a team And at the Ministry of Labour, there was no User Acceptance Testing, as there was at this Ministry Second of all, there is no doubt that he appeared to have the qualifications to , perform the job, otherwise, he would not have been hired in the first place However, the _ Public Service Act imposes a probationary period on all new civil servants, regardless of their past experience The mere fact that someone performed satisfactorily in one job does not insure that they will perform well in another. similar position The purpose of probationary terms is not only to test technical competence, it is also a time to see if the person's work habits ar~ appropriate and if they can work effectively with their co-workers and supervisors. If the Union's position w~re to be accepted, then there would be no reason to even have a probationary period for jobs other than ones which have a significant amount of training In reality, the main purpose of the probationary term is to see if the correct hiring decision has been made It re90gnizes the fact that no matter how rigorous the hiring process is, there is nothing like observing an employee actually doing the job to determine if they can truly l11eet the requirements of the position \ \ . -- , ~ _._~- \-:;. . ~~ - 6 - We therefore do not find that the Grievor's prior qualifications in any way whatsoever bring into question the good faith of the Ministry's assessment. S Neaativitv of Grievor's Performance Reviews I The Union pointed to the fact th~t most of the Grievor's performance reviews were entirely negative in character and fail to set out any of the Grievor's good points This is seen as evidence by" the Union that Mr Lee purposefully went about structuring the performance appraisals so as to be able to justify his later recommendation that the Grievor was not able to meet the requirements of his position \ There is no dqubt that the performance appraisals for the periods of January 11, 1992 to March 9, 1992 and March 10, 1992 to April 30, 1992 are almost completely negative However, the performance appraisal for the period of November 25, 1991 to January 10, 1992 is quite positive and complimentary This in itself would tend to show that Mr Lee had a fair and balanced view when he performed his appraisals of the \ Grievor However, what is even more relevant is the timing of this positive appraisal "This was the first appraisal done by Mr Lee after the Grievor's reinstatement pursuant to the settlement. The Union has tried to paint Mr Lee as a vindictive, revenge-seeking manager who felt cheated because his first attempt to fire the Grievor in September 1991 failed \ This is the same Mr Lee who, according to the Grievor, greeted the Grievor / .~ f ~: .' - 7 - back to work after the reinstatement in November with the words "we will see how long you last" If Mr Lee was truly the mean spirited person the Grievor believes him to be, it I \ would make no sense at all for him not to take a shot at the Grievor at his first real opportunity The imagined ill will and revenge must have been strongest right after the Grievor's reinstatement, so why would he miss that golden opportunity to come down hard on the Grievor at the first available opportunity? / We find therefore, that the negativity in the last two appraisals is not in itself evidence as bad faith It should also be noted that the Griever never grieved any of these performance appraisals, as was his right to do under the Crown Employees Collective Bargaining Act. 0 Personal Animositv bv Mr. Lee towards the Grievor The Grievor testified that all was well between he and Mr Lee until the spring of 1991 when the Grievor and Mr Mustafa Cicekci, a co-worker, had a heated argument. The Grievor said that he thought Mr Cicekci was concerned that the Grievor was taking over some of his job, thus Mr Cicekci became concerned about his own job security '" r \ 'I'" - 8 - -' The Grievor testified that he felt that Mr Lee's attitude to him changed for the worst at that point. This may have been so, but it is certainly legitimate for a manager to consider a probationary employee's ability to get along with his co-workers as a valid \ factor of performance It would therefore be quite proper for Mr Lee to be concerned about the Grievor's behaviour in that he got involved in a heated argument after only a short time on the job This is not evidence of a personal animosity by Mr Lee towards the Grievor The Union's main contention on this ground is that Mr Lee must have developed a personal animosity towards the Grievor when he was forced to take him back after the settlement. The fact that Mr Lee testified that he had no problem accepting the decision to reinstate the Grievor is put forth by the Union as "simply 'incredible" Generally spea~ing, we found Mr Lee to be somewhat too emphatic and rigid in his testimony He seemed at times to want to "gild the lily" and stick to, his version, even when .:.the evidence was overwhelmingly against him He seemed reluctant to admit doubt, poor memory or the existence of gray areas He undoubtedly felt that to do so would weaken the Ministry's case He fell into the commo'n witness trap of worrying more about what \ effect his testimony may have on the case's outcome rather than simply telling the truth , We believe this testimony about his complete willingness to accept the Grievor back is one of those times that Mr Lee could have been more forthcoming We are ~ 1 ~j / - 9 - prepared to find that in all lik~lihood there was some resentment on behalf of Mr Lee when he was obligated to take the Grievor back as this would be a natural human emotion Similarly, we are prepared to believe that the Grievor, on .being reinstated so quickly, may have felt to some degree that he was invincibl~, having got the Employer to reverse itself so quickly However, that does not get us anywhere as the law does not \ require that employees and supervisors love each other (in fact sexual harassment laws limit such expressions of emotion in the workplace), rather, it only requires that they get along inaprofessional working manner As long as a supervisor does not manifest his innermost feelings towards an employee in his work, it matters nqt what he thinks of that 1 I employee So even if Mr Lee did to some degree resent having the Grievor back, we only care if he showed that ill will in his actions In the same vein is the Grievor's contention that, after January 11, 1992, Mr Lee gave him the "cold shoulder" treatment in that he Would not make any eye contact with him and avoided him These matters are, by their very nature, very subjective It may well be that the Grievor sincerely believed that Mr Lee was deliberately acting in that fashion, while Mr Lee was completely unaware that his actions were being interpreted in that fashion In any event, the evidence on this point is not sufficient to show bad faith ~ I ~.J, f ( <? - 10 - D Denial of Trainino .Opportunity The evidence of the Grievor and Mr Lee on this point is directly contradictory The Grievor claims that on a number of occasions, he orally asked to be sent on training course but was refused Mr Lee said that the Grievor never made such oral requests I because if they were made, he would have gladly sent the Grievor on these courses In fact, Mr Lee indicated'that he had budgeted for the Grievor's training I On one point however, there is no dispute In the performance appraisal for the period January 11 'to March 9, 1992, Mr Lee wrote the following "I had also offered to send you to the JCL and System 2000 database courses to refresh as well as to upgrade your knowledge, out you did not see the need or benefit and declined my offers." On March 24, 1992, in his "Preliminary Response" to this performance appraisal, \ ) the Grievor wrote to Mr Lee as follows "I don't recall being asked about a refresher course in JCL and System 2000 databases to upgrade my knowledge. But since they are bemg offered, I would like to take them." Mr Lee did not respond by offering the courses as requested When asked why he had not provided this training, Mr Lee said that he did not consider the Grievor's request as being made in good faith By this time, Mr Lee had grown to mistrust the Grievor (a feeling the Grievor undoubtedly felt towards Mr Lee also at that time) Mr \. Lee just felt that the Grievor was "just telling me what he thought I wanted to hear" , f I ''>j 01 ~"" ,~ - 11 - -'\ From this exchange of correspondence, we can infer a number of things (a) In his response of March 24, the Grievor did not deny that he was ever offered courses, as he did when he testified Rather at that time, he said "he didn't recall being asked", which leads one to conclude that Mr Lee's version is more accurate (b) Mr Lee's reason for refusing the training as of March 24, 1992 was not I appropriate, whether the Grievor sincerely wanted to take the course or whether he was asking for it only to please his boss is irrelevant. Mr Lee obviously thought that the I Grievor needed the courses, or he would not have suggested them in the first place We suspect that Mr Lee felt that there was no point in' giving the Grievor these courses by this late time, as his probationary period was over in 6-7 weeks However, his somewhat cavalier attitude to the Grievor's belated training request shows some small degree of bad faith on his part. E. Failure to discuss issues .durina informal meetings I The Grievor's evidence was that during the months of January, February, March I I and April of 1992, Mr Lee made no serious attempt to discuss with the Grievor any I concerns he had about the Grievor's performance when they had their scheduled informal meetings The Grievor was therefore only faced with the critical comments once ---- -- ----- --- --~- '" r y - 12 - " he received the formal performance review, instead of having a chance to remedy the situation 'beforehand ~ We are satisfied that the Grievor was well aware of Mr Lee's concerns about the . Grievors performance as a result of the formal performance reviews, his meeting with I Mr Enright (who was Mr Lee's manager), the informal meetings and the extensive correspondence circulating at this time The obligation to conduct a good faith review of an employee's performance must, by necessity, give considerable leeway to management to determine the process without minute scrutiny by the Board If the Union's argument is carried further, it would have managers conducting daily or hourly - informal reviews of probationary employees, so that the employee would have the opportunity to correct his behaviour before a formal appraisal was made This would not likely result in good labour relations. ! ' I The purpose of the three performance reviews was to give the Grievor an opportunity to be aware of his deficiencies and correct them We feel that the opportunities given to the Grievor were quite' adequate In any event, the Grievor made it quite clear from his testimony that h~ believed almost all of the criticism of him was I unwarranted As such, it is unlikely that had he been given even more counselling sessions, that he would have changed his behaviour "- , '3:' - 13 - F Conspiracy of Mr. McComb and Mr. Woodhall The Union alleged that Mr Lee "conspired with Messrs McComb and Woodhall to obtain only negative information about the Mr Syeds' participation in projects headed by Messrs Woodhall and McComb" Mr Woodhall and Mr McComb were fellow employees of the Ministry with whom 1 , the Grievor worked Mr Woodhall was the project leader on various User Testing Acceptance teams to which the Grievor supplied technical support. Mr McComb held a similar position Both of these individuals worked extensively with the Grievor and both complained about similar deficiencies in the Grievor's performance, namely poor technical support, lack of timeliness, and an inability to explain technical issues in non-technical language Although both of these people did in fact supply Mr Lee with negative feedback regarding the Grievor, that does not create a "conspiracy" It is perfectly proper for a manager to seek out information from co-workers who have dealt with a probationary ( ) \ employee for their feedback. The fact that this information IS critical of the Grievor is irrelevant. Moreover, we found that both Mr Woodhall and Mr McComb gave their evidence in a honest and straightforward manner ! ,;, . ./ ~ - 14 - Conclusion We have found that of the six general allegations of bad faith, only one "Denial of Training Opportunity", shows any degree of bad faith However, we find that this breach of bad faith was a small one, and standing by itself, is not sufficient to make a finding that the process was so defective so as to constitute an improper release The grievance is therefore dismissed I j ) A note should be made as to why it has apparently taken so long to issue an award after the last hearing date The evidence was heard on the hearing dates listed on the title page of this award, however, there was not sufficient time to orally argue the case as Ministry counsel was due to giye birth to a child a short time later Therefore, the parties agreed to provide written argument, which was not completed until July 14, 1994 '\ I "" ) ~ r"-- ~ ,~ - 15 - Dated at Toronto this 14th da~ of October, 1994. .1 I I /~~0.~ W Rannachan - Union M~mber / r C)~~ J Mites - Employee Member