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HomeMy WebLinkAbout1999-1511.Teske.00-10-02 Decision o NTARW EMPU) YES DE LA COURONNE CROW"! EMPLOYEES DE L '()NTARW GRIEVANCE COMMISSION DE . . SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE, (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILElTELECOPIE. (416) 326-1396 GSB #1511/99 OPSEU #99D 195 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Teske) Grievor - and - The Crown m RIght of Ontano (Mimsm of EnvIronment) Employer BEFORE Damel Hams Vice Chair FOR THE Don MartIn GRIEVOR Gnevance Officer Ontano PublIc ServIce Employees Umon FOR THE Mr Robert Younger EMPLOYER Staff RelatIons AdVISor Mimsm of EnVIronment HEARING September 28, 2000 DECISION The gnevor m thIS matter, Tom Teske, IS an E04 workmg for the MmIstry of the EnvIronment out of the BarrIe, OntarIO office HIS gnevance, dated June 7, 1999, IS agamst hIS performance reVIew (hereafter PMR), dated Apnl 9, 1999 The employer has rmse a prelImmary objectIon that the gnevance IS not arbItrable because It was filed after the tIme lImIt for filmg the gnevance had expIred. THE FACTS. Much of the factual cIrcumstances are undIsputed. The gnevor met wIth hIS supervIsor MIchael Laengner on February 24, 1999 to dISCUSS the gnevor's PMR. Suffice It to say that the gnevor took Issue WIth aspects of the PMR as bemg unfmrly cntIcal He sought clanficatIon from Mr Laenguer as to the basIs upon whIch certam opmIOns had been founded. He requested that mformatIOn m an emml to Mr Laengner that same day The gnevor specIfically requested that the reply be by memo or email, he dId not want to meet WIth Mr Laengner Mr Laengner replIed by emml on February 25, 199 He mdIcated to the gnevor that It was hIS VIew that they had fully dIscussed the PMR. That email reads m part as follows 2 As prevIOush stated I will forward the PMR VIa thIS email. You have the optIOn of sIgnmg the PMR With or Without comment. I encourage you to make an, comments, ou feel appropnate You also requested dUrIng our meetIng that I dela, m, request to return comments to me b, Wednesda, March 3/99 until Fnda, March 5/99 I agreed to that request. You are welcome to dISCUSS the PMR With Ian m m, absence next week. He IS familIar With the Issues. Should, ou not return the form to Ian b, Fnda, he Will assume 'no comment and SIgn It off. The gnevor dId take up the matter of hIS PMR WIth Ian Gray, Mr Laengner's supervIsor, by means of em ail on March 3, a conversatIOn on March 5 and a further em ail on March 8, 1999 The latter em ail confirmed the understandIng between the gnevor and Mr Gray that Mr Gray would dISCUSS WIth hIS supervIsor, Mr J anse, the "possibIlIty of not finalIZIng the PMR (leavIng as draft) untIl Mike [Laengner] returns" Mr Gray confirmed the status of the matter In an em ail to the gnevor on March 11, 1999, whIch reads as follows Tom, I dIscussed the attached E-mail With Jim Janse on March 10 1999 and we agreed that there IS apparenth no cop, of your PMR sIgned b, Mike Laengner and therefor the matter will be set aSIde until ills return. On or about Apnl 9, 1999, Mr Laengner asked the gnevor to SIgn hIS PMR. The gnevor understood that the document he was beIng asked to SIgn was the unchanged draft of hIS PMR, a copy of whIch he had been gIven on February 24, 1999 when he revIewed It WIth Mr Laengner The gnevor refused to SIgn It and asked Mr Laengner for a sIgned copy of the document. The gnevor's uncontested eVIdence was that he receIved a sIgned copy In hIS mailbox on April 19, 1999 3 It should be noted that along wIth the Issue of the PMR, the gnevor was purSUIng a ment Increase The gnevor testIfied before the Board that he dId not know at the trrne that the two were lInked. He also said that he began the process of seekIng hIS ment Increase wIth an emaII to Susan Anstett on February 8, 1999 as follows Just a rermnder that as of Februan 1 1999 I should be payed [SIC] at the top of the E04 categone [SIC] ($986.27) Also as of December 1998, I have eIght years of servIce With the rmmsm I belIeve I should get 4 weeks of holIdays thIS year She replIed to the gnevor as follows You will have, our ment processed upon m, receIpt of, our performance reVieW - Toronto payroll Will not process Without It attached to the ESF I have wrItten to Ian regardmg tills. You are correct about, our vacatIon entItlements - 4 weeks after 8 years of servIce I do not have, our CSD - thIS IS With, our corporate records m Toronto - so I cannot confirm the date With you. You can contact Elaine Mahone, at 416-314-9239 to ven/\ for you. An exchange of emaIls between the gnevor and Ian Gary on Apnl 29, 1999, further develops the matter of the ment Increase As IS the nature of emaII, the entrIes should be read from bottom to top From. Tom Teske To GRA YIA Date 4/29/991221pm SubJect: Ment Increment -Reph -Reph Susan Anstett adVIsed that on Februan 8 1999 she sent, ou an ESF to complete and a rermnder that a PMR was reqUIred. Since you signed the PMR that Mike Laengner prepared without my input, I trust that the ESF can now be SIgned so that I ma, receIve m, ment mcrease. Please proVIde me With the ESF If, ou are unable to SIgn the form before, ou retIre and I Will pursue that Issue wIth, our replacement. (emphasis added) >>> Ian Gra, 04/29/9911 50am >>> As I have mmcated prevIOush when Mike was awa, on vacatIOn an ESF could not be processed m the absence of, our PMR. 4 Thus, I have not completed one and do not know the status >>> Tom Teske 04/29/99 11 32am >>> Further to our conversatIon thIS mOrnIng regardmg an ESF for m, ment mcrease as a result ofm, anmversan (Februan 1999), Susan Anstett cannot locate the aforementIOned ESF Please adVIse If you completed an ESF With respect to m, ment mcrease m relatIOn to m, Februan 1999 annIversan date CC LON985ADELAIDE. ENE3N65 (LAENGNMI), The next step taken by the gnevor to pursue the Issue of the objectIonable PMR was an em ail to Mr Laengner on May 17, 1999, askIng for a meetIng to dISCUSS the PMR. That em ail reads as follows As mdIcated m prevIOUS E-mails, I would like, ou to proVIde admtIOnal mformatIon m support of the comments that you made m the PMR that, ou prepared for me. I spoke to Laune ManOlm about m, PMR and she suggested that I deal With, ou mrecth I Wish to meet With you and Craig m order to resolve thIS Issue. I am assurmng that Craig would most lIkeh be the person who would prepare m, next PMR. I would like to resolve tills Issue b, the end of the month and I am available to meet an, day With the exceptIOn of the mommg of the 18th and the afternoon of the 19th and the 20th Please adVIse when, ou are available to meet. The gnevor receIved no response to that em ail message Ten days later, beIng May 27, 1999, he asked Craig Seaforth to accompany hrrn to see Mr Laengner In order to schedule a meetIng regardIng the PMR. He candIdly admItted In hIS eVIdence that he also wanted a thIrd party WItness to be part of the conversatIOn SInce he and Mr Laengner were not on good terms Mr Laengner suggested that they meet then, and they dId. He testIfied that he expected to dISCUSS the employer development plan meant to help overcome the defiCIencIes found as a result of the 5 PMR process He was surpnsed when the meetmg turned out to be about the Items that had been mcluded m the PMR. The gnevor said they went through the PMR and he made It clear to Mr Laengner that he was not happy wIth the PMR. On June ih the gnevor became aware that hIS ment mcrease was bemg deferred. He also receIved wntten confirmatIOn that no changes would be made to hIS PMR. He then filed hIS gnevance THE SUBMISSIONS OF THE PARTIES. The employer submItted that the tIme lImIts under the collectIve agreement are mandatory It was the employer's submIssIOn that the gnevor knew of the dIsagreement over the PMR on February 24, 1999 when he revIewed It WIth hIS supervIsor The gnevor dId nothmg about filmg a gnevance untIl June 7, 1999, whIch was well past the trrne wIthm whIch he was reqUIred to act. The employer relIed on Re OPSEU (Parr) and Ministry of Education, 317/82 (Swan) and Re OPSEU (Goheen) and Ministry of Education, 321/82 (Venty) The Umon submItted that thIS matter dIffers from the sItuatIOns relIed on by the employer It said that the gnevor was engaged m the reVIew process set out m the GUIdelmes and DIrectIves relatmg to the Performance Management Operatmg 6 PolIcy (Corporate Management DIrectIves, Staffing and Development Branch, Management Board SecretarIat, June 1, 2000) That IS, the gnevor was engaged m a proper and recognIzed PMR reVIew process He was allowed to exhaust that process before the tIme could begm to run wIthm whIch he must file a gnevance The gnevor was said to have known of the refusal to change the PMR no earlIer than Apnl 19, 1999 He then sought to meet wIth hIS supervIsor wIthm 30 days, by way of hIS memo of May 17, 1999 They actually met on May 27 He receIved the supervIsor's unsatIsfactory answer and filed hIS gnevance by June 7, 1999 The gnevor was said to have dIlIgently pursued the permItted revIew, and he acted on hIS gnevance m a tImely manner REASONS FOR DECISION The collectIve agreement reqUIres that complamts, or dIfferences, be resolved between the partIes m a tImely manner An employee who has a complamt IS reqUIred to bnng that complamt to the attentIOn of hIS supervIsor FaIlmg a satIsfactory response, the employee may lodge a gnevance In thIS matter, there can be no doubt that the gnevor had a complamt agamst the statements made m hIS PMR. Those complamts eXIsted from the trrne that he receIved hIS PMR m February 1999 He promptly brought those complamts to the attentIon of hIS ImmedIate supervIsor, and, m turn, to hIS supervIsor's supervIsor Mr Laengner 7 made It clear m hIS email of February 25, 1999 that hIS decIsIOn wIth respect to the contents of the PMR was final None the less, Ian Gray advIsed the gnevor that the draft would not be finalIzed untIl Mr Laengner returned from holIdays The gnevor testIfied that he belIeved a hIgh level meetmg of Mr Laengner, Mr Gray, Mr Janse and he would be convened to resolve hIS complamts about the contents of the PMR. There IS nothmg m the eVIdence to support such a conclusIOn. All that Mr Gray's em ail mdIcates IS that he had dIscussed the matter wIth Mr Janse m order to confirm that the matter would be put over to Mr Laengner's return. There IS no credible eVIdence that Mr Janse, the regIOnal manager, would be mvolved m revIewmg the gnevor's complamts, nor do the gUIdelmes hold out any such process On or about Apnl 9, 1999, the gnevor receIved hIS supervIsor's final response to hIS complamt. That response was that Mr Laengner would not be changmg the contents of the PMR. Certamly the gnevor knew by Apnl 29, 1999 that hIS complamt had been rejected when he said m hIS emaII to Mr Gray" you sIgned the PMR that Mike Laengner prepared wIthout my mput." The reVIew process under the gUIdelmes was also exhausted wIth Mr Gray's concurrence m the PMR. Accordmgly, the gnevor complamed about hIS PMR m February 1999 and knew no later than Apnl 29, 1999 that hIS complamts had been rejected. He filed hIS gnevance on June 7, 1999, well past the tIme wIthm whIch a gnevance was to be 8 lodged. The tIme lImIts m the collectIve agreement are mandatory The grIevance must be dIsmIssed. THE DECISION The employer's prelImmary ObjectIOn the grIevance IS untImely IS allowed. The grIevance IS dIsmIssed. Dated at Toronto thIS 2nd day of October, 2000 DanIel A HarrIs, V Ice-Chair 9