HomeMy WebLinkAbout1976-0023.Scott.77-02-09._ -. _.~-_-- .-- ..-,.~---_-------------- -_-.- -.,_ -
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CROWN EMPLOYEES
GRIEVANCE SETTLEMENT
EOARO
Suite 405
77 Bloor, Street VE
;'OROzVTO, C'vtorio
M5.5 1M2
IN THE MATTER OF AN ARBITRATION
Under The
CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT EOARD
Eetween Mr. E.J. Scott
And
Ministry of Transporta
(The Griever)
Lion and Corrvnunications
(The Employer)
Before: Mr. K.P. Swan - Chairman
1 Mrs. M. Gibb - Member
Mr. H. Simon - Member
For the Grievor
Mr. George Richards - Representative
Ontario Public Service
Employees Union‘
For the Employer
Mr. N.H. Pettifor - Staff Relations Supervisor
Minis try of Transportation
and-Communications
Hearing December 20, 1976
January 4, 1977
Suite 405, 77 Bloor Street West, Toronto, Ontario.
2.
The present qricvarlce, we'arn infr,rmcd, is the first Lo C.IM~
before this Boatd'untler s. 17(2)(h) of thr, Crown Tmjlloyecs Collc~rt.
Cargaining Act, S.O. 1972, c. 67, as amcnc!ed by 5.0. 1974, c. 1:S
That section provides:
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In addition to any bther rights of.grievance under a
collective agreement, an employee claiming,
(bl that he has been appraised contrary to the
governing principles and standards; .;;i .
may process such matter in accordance with the grievance
procedure provided in the collective agreement, and
failing final determination under such procedure, the
matter may be processed in accordance with the procedure
for final determination applicable under section 18.
We have not been referred to, nor have we been able to find,
any reported decision on the factors to be considered by an arbitral
body when confronted with a complaint that an appraisal has been
carrjed out "contrary to the governing principles and standards".
Indeed, the only reported case on the arbitration of appraisals,
Re: Notre Dame University of Nelson and Faculty Association of Notre
Dame University (1976),12 L.A.C. (2d) 17 (Williams) makes no attempt
to expound general principles.~ This is therefore a matter of first
jmpression, and we shall accordingly set out,.at some length, some
of the principles which we consider appropriate to a proceeding of
i VC:
this sort. ,.
Robert J. Scott is presently employed, as he was at all material
times, as a Physical Laboratory Technician 2 in the Laboratory
Services Office, Bituminous Section of the Deiign Division of the
Engineering Services Branch, Ministry of Transportation and
Comnunications. His work is va,ried, hut generally involves the
physical testing of various samples of materials to assist, in the
design of asphalt roadway.
3.
By an "Employee Performance Report" dated January 7, 1976,
Mr. Scott was "appraised" by the Head of the Cituminous Section,
Mr. F. Field. We note, in passing, that the parties were hoth
prepared to treat that document as an appraisal for the purposes
of s. 17(2)(b) of the Act, although the scope of that section is
nowhere defined. The report form permits four ratings for each of
three criteria. The ratings are "0utstanding Performance", "Standard
Performance", "Improvement Needed" and "Unacceptable Performance".
The criteria are "Quality of Work", "Quantity of Work" and
"Co-operation and Attitude". (A fourth; and clearly subordinate 1'
criterion, is "Punctuality and Attendance", for which only "Satisfactory"
and "Unsatisfactory" ratings~are provided):
Mr. Field rated Mr. Scott at "Standard Performance" for the
first two criteria. For "Co-operation and Attitude", however, he
assigned an "Improvement Needed" rating. (Mr. Scott's "Punctuality
and Attendance" were rated "Satisfactory").
In the section of the form headed "General Comments and
Recommendations" the following statement appears:
The quality of his work is well above average; the
quantity of his work is above average; job interest is
well above average. His attitude has changed during
the past year and improvement in that respect is
certainly needed. See attached report.
The "attached report" is a memorandum to the Manager of the ._ .
Laboratory Services Office, Mr. T.J. Konich, from Mr. Field, which
states:
Prior to January, 1975, Mr. Scott's attitude was rated
as "Fully Satisfactory". During 1975 his attitude changed
to the extent that improvement in this respect is
definitely needed. He has a domineering attitude towards
his fellow technicians. He has been persistent in
.,
4.
discrediting the ;:olicjc.T, rules and regulations of
the Ministry in the pr~szncc of other technicians, his
foreman and supcnisor thus provjdiny for a disruptive
influence bn the attiti,dcs and ~rformance of his
working associates. HF, does not accept as fact the
formal replies to his grievances and continues to
pursue these grievances through various channels; he
has no faith in OUT replies to his grievances or dis-
ayreemen ts.
In the cou~rse of the grievance procedure, the "General
Conments and Recommendations" were amended at the instance of the
Chairman of the grievance hearing. As a consequence, Mr. Pettifor
submitted that we should not have reference at all to the original
appraisal, but.should restrict ourselves to a consideration of
the amended appraisal only. Although it is usual in arbitral
proceedings to ignore any proposals of either side for settlement
of the dispute between the parties, and to concentrate on the
original difference only, it seems appropriate in this case to adopt
Mr. Pettifor's submission and to consider the present matter on the
basis of the revised appraisal. That is the appraisal which now
appears on the grievor's file and, although it really represents an
attempt at compromise of the present dispute, it also accurately
represents the present state of the differences between the grievor
and his supervisors.
The amended appraisal includes the following "General Comments
and Recommendations":
The quality of his work is well above average; the
quantity of work is above average; job interest is
well above average. His co-operatitin and attitude,
however, require improvement.
There have been many occasions,during 1975 when
this employee argued irrationally and in a bad-tempered
manner with his foreman and supervisor about matters
concerning Ministry rules, regulations and work
requirements. He must learn to control his ternper when
discussingsuch matters with his supervisors and to have
more faith in their replies to his disagreements.
This
change in attitude will eliminate unnecessary, prolonged
discussions and will provide for more harranious relations
5.
From the outset, neither oarty was able or willing to identify
any "governing principles or standards" by which we might judge
the appraisal of Mr. Scott and in the absence of evidence to the
contrary, it appears that for our purposes no such general guidelines
have been formulated. There are some instructions appended to the
Employee Performance Report Form, but these were mostly of a
technical nature, and we would inflate their importance by calling
them "governing principles and standards". In these circumstances,
Mr. Pettifor quite properly raised the question of the extent of
our jurisdiction under s. 17(2)(b) and s. 18, and suggested that,
where no "governing principles and standards" exist, we might find
it difficult to assess the propriety of the appraisal made by the
employer of the present grievor.
However difficult such an assessment may be, we consider that
our jurisdiction under s. 17(2)(b) and s. 18 not only authorizes us
to consider the present application on its merits, but requires us
so to do. The effect of s. 17(l) is to make appra.isal a management
function, subject only to consultation with the Union as to the
"governing principles and standards". The relevant parts of the
section read:
Functions of 17.-.(l) Every collective agreement Xhall be deemed
employer ,to provide that it is the exclusive function of the
employer to manage, which function, without limiting
the generality of the foregoing, includes the right ..~ to determine,
. . .
(b) .;. appraisal ..:, the governing principles
of which are subject to review by the
employer with the bargaining agent,
and such matters will not be the subject of collective
bargaining nor come within the jurisdiction of a board.
E.
In providing in s. 17(2) what this Board has previously
called, in Re: Eriksen and Ministry of Correctional Services, 12/75,
"a sweeping and broad right of access to the Grievance Settlement
P,oard", the Legislature could hardly have intended that the
employer could remove this access by simply declining or omitting to
exercise one of its statutory functions. In the absence of any
promulgated standards, we propose to judge the employer's appraisal
against the most fundamental standard. If'the employer has not
chosen to fetter itself with an elaborate code for conducting
appraisals, against which its conduct may be tested in any given case,
then the question which remains to be answered is simply whether or
not an appraisal complained of is in accordance with a general
standard of reasonableness.
In applying this test, we hasten to point out that the Board
can hardly substitute its judgment for that of the employer in
respect of every single employee who wishes to contest an appraisal.
The employer, through its supervisors, has,the opportunity of day-to-day
contact and observation of the employee on the job, and we would
clearly be wrong to substitute our opinions, gleaned second-hand from
the evidence of witnesses and first-hand only from a few hours' contact,
for those reached fairly and honestly by those who are charged with
carrying out the appraisal process. We would, of course, certainly
interfere with any appraisals which were discriminatory, or dishonest,
or otherwise in bad faith, although we doubt that there are likely
to be many instances of such conduct,.
On the other hand, a standard of-review which approved all
honest management appraisals, no matter how misguided, would not
7.
provide enough protection for a grieving eriployee. As one
arbitration board has said, in the context of a seniority arbitration
{Re: Canadian Protherhood of Railway, Transport and General Workers
and St. Lawrence Seawav Authority (1?69),23 L.A.C. 156 (Weiler), at ~..-
pp 15&-9):.
It is sometimes argued that manaqement judgments
s.kuld be reviewed to see if management's decisions
iiere ‘honest , or in good faith, or non-discriminatory,
and that this eliminates the evil of total management
discretion. There is no doubt that this would
eliminate gross abuse but such would be rare in any
eVErIt.
.Y~nagement decisions may be bona fide but
t!?cy may also be wrong. In fact, it is rare that an
arbitsatlon board could find ang basis for a finding
of bad faith except evidence that the decision is
very 'WJrony. There appears to be no yreater reason for
giving management total freedom to act in good faith
in the seniority field than in the area of discipline.
In addition to a requirement of good faith, then, we consider
it appropriate also to require of management that its appraisals not
be manifestly wrong. Although we would be unlikely to~interfere
k:ith an appraisal merely because we doubt that it coincides with our
opinion of the grievor, or because it is not the appraisal we would .
have made, we have a responsibility under s. 17(2)(b) to overturn an
appraisal which appears, on the basis of the evidence before us, to
be,wrong. The onus of proof of that.proposition, of course, lies on
the arievor.
In the present case, the only aspect of the appraisal complained'
of is the rating of "Improvement Needed" under "Co-operation and
Attitude", and the accompanying general comments and recommendations.
The relief requested is that the comments be deleted and that.a rating
of "Standard Performance" be substituted. In the absence of any
promulgated governing principles or standards, we have no real yardstick
against which to measure "Standard Performance". We must proceed,
therefore, to determine what is reasonable.
a.
'Ye would be prepared to accept the rating "Improvement
Needed" as based on a reasonable view of "Standard Performance" if
the statements made in the general comments and recommendations were
correct. kle do not consider that an employer'~is asking too much of
an employee to require that he not'& irrational and bad-tempered
with his foreman and supervisor, that he control his temper, and that
he avoid unnecessary prolonged discussions. Having thus estab!ished.
that an appropriate standard for appraisal in the absence of
promulgated general. principles i<*'onc of reasonableness, we consider
that the standard set here was not an improper one.
I,!e also stress that there was no evidence that the appraisal
was in any way motivated by bad faith or ill-will, or that the
grievor was the victim of any form of discrimination. Indeed, the
grievance does not allege bad faith, and we wish to make it clear
that there is simply no such issue in this case.
The final question material,to the disposition of this
grievance is whether, on the evidence before.us, the app'raisal is
clearly wrong. The grievor gave personal evidence of a number of
incidents which he considered might have created friction between him
and ,his supervisor, and the employer called evidence from his foreman,
and from Mr. Field, to support the appraisal actually made. On an
examination of all the evidence, we are satisfied that the.statement . :
made in the "General Coennents and Recommendations" cannot be supported.
First, 'there is simply no evidence to justify the use of the
expressions "argued irrationally and in a bad-tempered manner." and
"he must learn to control his temper". The grievor's own evidence was
that he did not lose his temper in any of his deali.ngs with his
superiors, Andy that ihis relationships with them were always polite
9
and moderate. :!either Mr. tlurphy, his foreman, nor Mr. Field would
directly contradict his evidence. Mr. Uurphy gave evidence that he
got on pleasantly enough with the grievor, but that he found the
grievor "persistent" in that his constant approaches to him on
various subjects were distracting. Eir. Field had apparently gleaned
his impression of bad temper from the lower level supervisory people,
since he described his own relationship with the grievor as a
reasonable one. On the evidence before us, therefore, we conclude
that the description of the griever as a bad-tempered employee was
wrong, and to that extent the General Comments and Recommendations are
faulty.
The suggestions that the grievor engaged in "unnecessary,
prolonged discussions" and had too little I'faith" in the responses
of his supervisors seem to us to be rather more statements of perception
than statements of fact. We accept that, in respect of the incidents
noted by the grievoras possibly productive of friction (and we note
that the employer did not advance any>other specific incidents), the
grievor acted from proper motives and believed that he was either
making an affirmative contribution or defending a v,alid personal
right or interest. His supervisors, on the other hand, took his
approaches as "persistence", quite possibly because such incidents
at least partly involved a questioning of a long-standing practice, or _
of one of their own decisions. We shall
rehearsal of all the evidence; we have,
evidence that the grievor was very possi
not attempt here a detailed
however, concluded from that
bly pursuing legitimate
objectives at the time. The resolution of each of the differences
of opinion which he had with his supervisors is no part of our present
jurisdiction, and we do not wish to be understood as finding that the
,
10.
grievor was either right or wrong in these discussions. We do,
however, conclude that the fact,s do not support such expressions as
"unnecessary, prolonged discussions", nor do they support any
inference that the grievor displayed a lack of "faith" in his
supervisors that amounted to.anything more than a reasonable
insistence on his own side of'each discussion.
In our view, therefore, the appraisal complainedof isbased
on statements set out in the General Comments and Recommendations
which do not accord with the evidence, and we are therefore satisfied
that the appraisal is wrong. To some extent, we consider that this
is a result of the circumstances under which the present appraisal
tias made, and we therefore propose to direct some comments to that
process.
It was Mr. field's evidence that there was no regular appraisal
system in operation, but that all employees in a section would sometimes
be appraised when a long time had elapsed since the last appraisal; we
understand the interval to be a matter of years. On the other hand, an
individual might be appraised for specific purposes; such as a proposed
accelerated merit increase, a transfer, a promotion, or where there
are disciplinary problems. The present appraisal was oft the second
kind, and the specific purpose was clearly disciplinary; the appraisal
was used for a purpose very much like that of a formal warning.
.:' ., I.
It is a reasonable inference from the evidence that the
purpose of the appraisal shaped its final form, and contributed to the
overstatements in it which have led us to find it to be wrong. The
grievor's supervisors were attempting to bring to his attention certain
matters which they considered serious, and they wished the form of their
communication to have considerable impact. They thus very.~possibly
11
chose words which had considerable force, but which lacked in
objective applicability to the grievor's actual conduct. In our
view, this is a danger' inherent in special-purpose appraisals of a
single employee. They are &signed to support a decision, whether
i
favourable as in promotion or unfavourable as in discipline, and
I
are likely to be influenced, and exaggerated, by that motivation. P.S
!
a consequence, they are much less likely to be objective than are
appraisals produced as a part of a regularly scheduled program. SKii
I appraisals show progress, or the lack of it, by comparison from period
to period. They are likely to be produced onthe basis of a t/hole
period's contributions rather than merely on the incident which
provoked their generation. Clearly, special-purpose appraisals w ill
sometimes be necessary for their identification value in c!ioosing
among employees, or for some similar purposes. The developmental
value of regular appraisals, however, is likely to be far greater,
since they will show an employee where he stands and what is expected
of him with far more objectivity. Finally, we simply note that
appraisals on such matters as co-operation and attitude are likely to
be a constant source of difficulty, since they involve so many.:
impondeiables of personality and human relationships, and are so
difficult to administer in an objective way. Informal discussions
and performance appraisals may very well be appropriate for some
persons more than others, \/here it would contribute to the employee's
development, but in our opinion, this should not be part of the
official documentation.
12.
b/c turn finally to the question of remedy. The grievor asl:s
us to substitute a "Standard Performance" appraisal for the appraisal
we have found to be wrong. .As a matter of principle, we would be
unwilling in most cases to take such acti~on. We have been able to
conclude that the words used by the employer do not accord with the
evidence.; that is not the same thing as asserting our ability to
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appraise the gt-ievor more accurately than those who deal \gith him
on a day-to-day basis. Me would therefore.be more likely to remit
an appraisal to the employer. for revision than to substitute our own
views
In the present case, however, we do not consider that to be
a necessary or a desirable course of action. The appraisal is not
part of a scheduled program of appraisal, and so nothing really turns -
on its exis'tence except the warning .to the grievor implicit in it.
We therefore consider that an appropriate remedy is simply to order
that the appraisal be expunged from the grievor's file, and that is
accordingly our disposition. of this matter.
Ile have spoken earlier of the developmental value of
appraisals, and we consider it appropriate to make one final comment
so that whatever,developnentaT fllnction might have been served by
the present appraisal will not be totally lost by our present decision.
In finding the appraisal l~n-ong, we have not‘necessarily found the
griever to be right. The inter-personality friction and conflicts
r;hich prompted the present appraisal were not simply invented by his
supervisors, and the exasperation which caused them to use words which we
13.
have found not to be objectively reasonable should be a strong
indication to the grievor that his relationship with them is in need of
careful attention. Thezz;prievor shculd recall that even correct
opinions lose much of their persuasive ,value if they are not
presen:ed.with tact, dipJomacy and thought for the interests of others.
!Jhatever the outcome of this arbitration, there are important l'essons
for the grievor's development as anemplcyee contained in the
appraisal and in our disposition of it.
t Toronto this 9th day of February, 1977. Dated a
K.P. Swan
Chairman
Il. Gibb
Nember
I Cmx7lI
H. Simon
.'. Member