HomeMy WebLinkAbout2002-1551.Fernandes.04-01-02 Decision
Crown Employees Commission de ~~
Grievance Settlement reglement des griefs
Board des employes de la
Couronne
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Suite 600 Bureau 600 Ontario
180 Dundas Sl. West 180 rue Dundas Ouest
Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8
Tel. (416) 326-1388 Tel. (416) 326-1388
Fax (416) 326-1396 Telec. (416) 326-1396
GSB# 2002-1551
UNION# 2002-0542-0021
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontano PublIc ServIce Employees Umon
(Fernandes) Grievor
- and -
The Crown In RIght of Ontano
(Mimstry of TransportatIOn) Employer
BEFORE Nimal DIssanayake Vice-Chair
FOR THE UNION RobIn Gordon
Gnevance Officer
Ontano PublIc ServIce Employees Umon
FOR THE EMPLOYER Sunee1 Bahal
Counsel
Management Board Secretanat
HEARING By wntten submIssIOns
2
DECISION
The grlevor, Mr Jess Fernandes filed a grlevance on August
6, 2002 It states
I grleve that management lS abusing its power and
unfairly disciplining me by placing an unfair and
inaccurate performance appraisal on my corporate file
This lS contrary to article 2 (management rights) and
article 2 (disciplining and dismissal) of the collective
agreement
The employer has taken the position inter alia, that the
performance appraisal In question does not constitute discipline
and that therefore the Board lacks jurisdiction to reVlew it for
its fairness The unlon did not oppose the employer's motion
and, without prejudice to any other position the unlon may take
In any other matter, agreed that the instant grlevance does not
ralse an arbitrable lssue
No doubt the grlevor lS not happy with the contents of the
performance appraisal However, that does not make the
appraisal disciplinary There lS no suggestion that the grlevor
has suffered any sanction or penalty as a result of the contents
In the appraisal The employer lS entitled to glve guidance to
an employee on performance lssues without engaglng In
disciplinary action Every such action by the employer lS not
subject to review by the Board for fairness An appraisal will
3
only be disciplinary, if it lS used to build up a record against
the employee The employer has clearly taken the position here
that the appraisal lS not disciplinary The employer lS bound
by that Once the employer takes such a position, the grlevor
has the assurance that the appraisal will not, and cannot be
used as a disciplinary record In the future In other words,
once the employer clearly states that the appraisal lS not
disciplinary, then it lS not disciplinary See Re Bacchus,
911/88 (Watters)
Having regard to the submissions of the respective parties
and the foregoing reasons, the Board upholds the employer's
motion that it lacks jurisdiction and that the grlevance lS
inarbitrable Accordingly the grlevance is hereby dismissed
Dated at Toronto this 210 day of January 2004
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