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HomeMy WebLinkAbout1977-0150.D'Mello.78-02-16150/77 _~ CROWN EMPLOYEES @RIEVANCESETTLE~-IE~I BOARLJ 416/598 0688 Suite 2100~~ T 186 Llundas street west TORONTO, Ontario M5G lid IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Mrs. Beatrice D'Mello And (Grieior) The Crown in Right of Ontario Workmen's Compensation Board (Employer) Before: Mr. P. John Brunner .Mr. G. K. Griffin Ms. Pamela Sigurdson For the Grievor Mr. Grenville Jones For the Employer Mr. C. G. Riggs, Hearing February 14th, 1978 Suite 405, 77 Bloor St. W. Toronto, Ontario. I ;;;ke;hairman - Member . . This is a grievance by Beatrice D'Mello,~ a former employee of The Workmen's Compensation Board, alleging that she was dismissed from her employment without just cause. She seeks reinstatement and compensation for all benefits lost. It is common ground between the parties that the grievor was employed by The Workmen's Compensation Board on August 22, 1977 as a Mail Room Clerk If a~nd that her dismissal * occurred on October 28, 1977. The terms of the,grievor's employment are governed by the provisions of the Collective Agreement entered into between the Canadian Union of Public Employees, Local 1750 and The Workmen's Compensation Board. Article 4c.2) of the said agreement reads as follows: "A newly hired employee shall be on probation for a period of six (61 months from the date of hiring." It is agreed accordingly, that the grievor was at all material times a probationary employee. At the outset of the hearing, Counsel for The Workmen's Compensation Board submitted that the Grievance Settlement Board was without jurisdiction to entertain the within grievance. He based his submission on Article 2(~9) (a) of the Collective Agreement which states "that a probationary employee who is dismissed or released shall not be entitled to file a grievance!'. -2- He also relied on the submissionsmade on behalf of the respective employers in the fbllowing three decisions of this Board. , 1. W.D. Gordon and The Ministry of Transportation and Communications, File NO. 13/76. 2. Asnes Joyce and The Ministry of the Attorney General File No. 21/76, and 3. ,P. Eriksen and The Ministry of Correctional Services, File No. 12/75. In all three of the above-noted decisions of this Board, these submissions of the employer were rejected. It .was held that the Grievance Settlement Board had jurisdiction to hear a grievance filed by a probationary employee under the provisions of Section.,l7(2) of The Crown Collective Bargaining Act, 1972. Counsel for The Workmen's Compensation Board however ,submitted that these decisions were wrong in law and required reconsideration in view of the decision of the Supreme Court of Canada in Jacmain vs. The Attorney General of Canada and Public Service Staff Relations Board, (1977) 78 C.L.L.C. 14,i17. It is not necessary for the purposes of this .Arbitration to determine, and we do not determine, whether the aforesaid decisions of this Board should now be reconsidered in light of the judgment of the Supreme Court of Canada in the Jacmain case. We are all of the opinion, on the assumption that we have jurisdiction to hear this grievance by reason P :: -: 7 4- of Section 17(2) of The Crown Employees Collective Bargaining Act, 1972, that the grievance fails on its merits and must accordingly be dismissed. Our reasons, briefly given at the conclusion of the hearing are as follows; Two senior employees of The Workmen's Compensation Board, J,ean Guest and Scott Wilson, gave evidence at length as to the grievor's inability to carry out her duties at a satisfactory rate of speed. They arrived at their con- clusions as a result of their observations of the grievor during her period of employment. On three separate occasions they made it clear to her that she was too slow and that her speed in sorting mail was in need of improvement: Matters however remained more or less the same until October 28, 1977 when she was dismissed by Wilson. No evidence was lead before us which seriously challenged the conclusions of Guest and ~Wilson. There is no suggestion that the views of these senior employees were arrived at either in bad faith or asp a result of any ill will or bias towards the grievor. In our opinion, their decision was arrived at fairly and on reasonable grounds. For the purpose of this decision, we accept that. the applicable test, in cases such as this, is that set forth by this Board in Eriksen and The Ministry of Correctional Services (File No. 12/75). - -5- Applying those principles to the facts herein, it is our opinion.that it cannot be said on a reasonable view of the evidence that the decision of the employer to dismiss the grievorwas arrived at in circumstances which would call for interferrence by this Board. In our view the grievor was dismissed for just cause and the grievance accordingly fails. We do not wish to leave this matter without expressing our regret that the employer did not see fit to reassign the grievor to some other position where her undoubted intelligence and long experience in the educational field could have been utilized in a positive way. The grievance is dismissed. DATED at .Toronto this 16th day of February, 1978 c ~~- A LP. JOHN BRUNNER, VICE<FU+IRMAN I Concur J. K. GRIFFIN, MEMBER I Concur (See Addendum). ~. ,MISS PAMELA SIGURDSON, MEMBER ADDENDUM Although I reluctantly agreed with the decision of the Chairman in. this matter, I feel that the griever has been treated shabbily and that some comments relating to the procedures adopted by the employer are in order. It is apparent from the evidence of both parties that the grievor was given the clear impression that the employer valued accuracy above all else. In addition to accuracy knowledge of the operation of the Board and of the methods in the Mail Room and speed were important. Although there was concern about her speed,which concern was mentioned on at least three or four occasions by her Group Leader, she was never given any formal instructions as to how her speed could be improved. She was given'verbal "don'ts" but no actual demonstrations. In the last month of her employment she was merely "watched". by the Group Leader and the supervisor. At no time was it explained to her what the purpose of the probationary period is or that her job was in jeopardy if her speed did not improve. It is clear that the initial "waiting" that the supervisor had indicated was in fact not accurate but this change in approach was never.communicated to the grievor. In my opinion there was some falling down by the employer in its obligations as set out in Re Erikson [12/76). The collective agreement provides for a probationary period of six months and yet a decision-was taken before half .of her probationary period was over. Surely when an employee is valuated as being satisfactory in two out'of the three aspects of her job she should have~been given a longer period of time to improve her speed with adequate instruction. I would also like to note that the supervisor was a relatively inexperienced young man who did not have his own standards which he communicated to the Group'Leader but rather the Group Leader set the standards for her group and these were simply adopted by the supervisor without any independent valuation. I would certainly hope that the Problems I have pointed out above will be corrected_so that probationers at the Board will have a full and adequate opportunity to meet enunciated standards with adequate instruction prior to any definitive appraisal being made. e The other concerni's that a decision was made to terminate the grievor without consulting with the Personnel Department. 3urely there ought to have been some consultations in order to assess whether she could have been placed in another department of the Board prior to any decision being made to terminate her from the Board as the employer. It may have been that an opening could have been available f?r her in another area where her obvious intelligence and skills could have been better utilized. I am sorry that this Board cannot make an Order that the Board find an alternative position for her but I would . -3- earnestly hope that the Board will place the grievor on an active list for future re-hiring by the Board should the occasion arise. (Signed) P.A. SIGURDSON .