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HomeMy WebLinkAbout1978-0080.Leung.81-01-1680178 IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Ms. Winnie Leung (Grievor) .And Before: Ministry of Industry & Tourism (Employerj ,Y. Mrs. M. K. Saltman - Vice-Chairman Mr. G. K. Griffin - Member Mr. G. Beaulieu - Member For the Grievor: Mr. M. Pratt, Grievance Officer Ontario Public Service Employees Union For the Employer: Mr.~ W. Rooke, Personnel Director Ministry of Industry & Tourism Hearing: June 10, 1980 Suite 2100, lB0 Dundas Street.West Toronto, Ontario c The grievor in this case, Winnie Leung, was hired by the employer. as a Clerk/Stenographer 3 in the Ministry of Industry and Tourism on May 30, 1979. Her employment was subject to a probationary period of twelve months. axon April 10, 1978, the grievor received notice of the intention to release her during her probationary period, effective April 21, 1978, pursuant to Subsection 22(5) of the Public service ACT. On receipt of this notice, the grievor filed a grievance alleging that she was dismissed without just cause. As the matter was not resolved during the grievance procedure, it was referred to this Board for determination. At the outset of the hearing, the employer objected to the arbitr- ability of this grievance. In particular, the employer submitted that since the grievor was released during her- probationary period, the Board does not have jurisdiction to deal with the grievance. According to the employer, the Board has.jurisdiction only with respect to the dismissal of an employee and cannot review the release of an employee under Subsection 22(5) of The Public service Act. The Union, on the other hand, submitted that the grievance is arbitrable under Paragraph 17(2)( ) f h c c 0 T e rown Employees Cdlective Bargaining Act, S.O. 1972, c.67, as amended, Since the grieVOr was not validly released for failing to meet the requirements of her position. According to the Union, since the grievor was not validly released, she must have been dismissed, which is not necessarily restricted to a dis- ciplinary termination. In the alternative, the Union submitted that the grievor was not validly released, since the employer failed to prove that the Deputy Minister had delegated the authority to release the grievor pursuant to Subsection 23(2) of The Public service Act. In the further alternative, the Union submitted that the matter is arbitrable under - 3 - Paragraph 17(,2)(b) of !rbe crown mployees collective Bargaining Acts, sincethe grievor was "appraised contrary to the governing principles and standards“. The issue to be determined is whether a probationary employee is entitled to grieve the employee's release during the probationary period. In other words, does a release under Section 22(5) of The Public service Act come within the matters which may be grieved under Paragraph 17(2)(b) of The Crown Employees Collective Bargaining Act? If not, Can the decision to release an employee be challenged under Paragraph 17(2)(c) of The C~OWII Employees Collective Bargaining Act as an appraisal "contrary to the governing principles and standards. 7 There was no dispute in this case that the grievor was still a probationary employee. The following provisions are relevant to the determination of this matter: THE PUBLIC SERVICE ACT 22(3) A deputy minister may for cause dismiss from employment in accordance with the regulations any public servant in his ministry. 22(S) A deputy minister may release from employment any public servant during the first year of his employ- xent for failure to meet the requirements of his position. THE CROWh' EMPLOYEES COLLECTIVE BARGAINING ACT 17(2/ In addition to any other rights of qrievance under a collective agreement, an employee claiming, (a) that his position has been improperly classified; (bl that he has been appraised contrary to the qover- ning principles and standards; or (c) that be has been disciplined or sus- pended from his employment without just calse, my process such matter in accord: ante with the grievance procedure provided in the collective agreement, and failing final determination under such procedure, the matter may be processed in accordance with Me procedure for final determination applicable under section 18. Article 27.6.; of the collective agreement which also bears upon the matter, reads as follows: Any probationary employee who is dismissed shall not be entitled to file a gri&ance. In order to be arbitrable, this grievance must come within the ambit of Subsection 17(2) of The Crown Employees Collective Bargaining dct which sets out the matters which may be subject to a grievance. - Paragraph 17(2)(a) is obviously not relevant to this matter. Paragraph 17(2)(b) provides for the claim that an employee has been appraised "contrary to the governing principles and standards". We would agree with Chairman Weatherill in the Tucker case (X8/78) that the appraisal referred to in this Paragraph is an "appraisal of work performance according to a formal procedure" and.does not refer to the detennina- tion made by the employer to terminate the services of an employee. In this respect, we, too, must disagree with the dissenting opinion in the Leslie case (80/77)~. The final Paragraph 17(2)(c) provides for the grievance of an employee claiming that he/she has been "disciplined or dismissed or suspended from his employment without just cause". In our view, this is the head, if any, under which the grievor's claim must be assessed. - 5 - Inaddition to the rights granted under Subsection 17(2) of The Down Employees Collective Bargaining Act, the parties t0 the collective agreementare empowered to extend the right to grieve against other matters as well (Ss. 17(2)), It is apparent, however, that they have not chosen to do so. To the contrary, the parties have attempted in Article 27.6.1 of the collective agreement to limit access to arbitration for probationary employees. To the extent that Article 27.6.1 can be interpreted as restricting the right of employees to arbitration under:, it is beyond the powers of the parties (sucker 208/78). Accordingly; before deciding the effect of Article 27.6.1, it is necessary to determine what rights of grievance have been granted to probationary employees under The - Crown Employees Collective Bargaining Act. Under The crown Employees Collective Bargaining Act, the right to grieve, and even to refer a grievance to arbitration, is given to the individual employee (Ss. 17(2)). The word "employee" in Subsection 17(2) does not exclude probationary employees. Accordingly, they are prima facie granted the rights in Subsection 17(2). However, Subsection 22(5) of The Public Service Act gives the Deputy Minister the right to release an employee "for failure to meet the requirements of his position" during the probationary period. The question which then arises is whether Subsection 17(2) gives a probationary employee the right to grieve against his release during the probationary period. More specifically, does a release during probation come within the term "dismissal" for which the right to grieve iS SpeCifiCally granted (Ss. 17(2), The C~OWII employees Collective Bargaining Act)? - - 6 - In our view, it does not, since release and dismissal are two separate Concepts, which are recognized in The Public Service Act. In particular, Subsection 22(3) of that Act gives the Deputy Minister - the power to~dismiss an employee for cause which is separate from the power under Subsection 22(5) to release an employee on probation. 0bviously;if ardease was a form of dismissal, it would be redundant to grant this latter power. It seems clear, therefore, that under The - Public service A& release and dismissal are two separate concepts. The tYfetWCe in The CXW-I ~mp10yee~ Collective Bargaining Act is to dismissal and not to release. It is clear that The Crown Employees Collective Bargaining Act must to construed in pari mteria with The - Public service Act, both of which form part of the legislative scheme dealing with terms and conditions of employment for persons ~employed in the service of the Crownin Right of Ontario. Accordingly, we find that the word "dismissal" has a common meaning under both Acts, which is separate and distinct from a release on probation. Eased on this dis- tinction, if the grievor was dismissed, she is entitled to grieve and to have the merits of her grievance assessed by this Board (Paragraph 17(~2)(b), The Crown Employees Collective Bargaining Act) notwithstanding Article 27.6.1 of the collective agreement which cannot effectively deny a proba- tionary employee the right to grieve against dismissal (Tucker 208/78): On the other hand, if the grievor was released, this Board has no authority to review the merits of the release, which must then be challenged in another forum. The Board's job, therefore, is to examine the facts to determine if what was in form a release was in substance a dismissal. A similar issue was dealt with by the Supreme Court of Canada in the case Of JaCmin and the Attorney General of Canada and the Public Service Staff Relations Board - ,- 7 - (19771, -7s C.L.L.C. 14,177; In that case, Mr. Jacmain, an employee of .:;.- the Federal.Government, grieved against his rejection for cause during the probationary period .pursuant to.Subsection Z(4) of- The Public service Employment Act. Although the grievance was entertained by the employer (since employees in the Federal public Service are given the specific right to grieve against a rejection on probation (section go, Public Service staff Relations Act)), when the employee tried to refer the grievance to adjudication, the employer objected to the Adjudicator's jurisdiction on the grounds that employees had the right to refer to .,. adjudication grievances against discharge, but not against rejections for cause. The Adjudicator reviewed the rejection, which.he found to be in substance a discharge, and concluded that it was unjustified. The Adjudicator's decision was reviewed by the Public Service Staff Relations Board and by the Federal Court of Appeal and finally appealed to the Supreme Court of Canada. The Supreme Court of Canada held that the rejection of the grievor because his supervisor was not satisfied with him did not constitute disciplinary action resulting 'in discharge. Since the cause for the rejection was not disciplinary, the Adjudicator had no juris- diction to weigh the cause of rejection. Further, Mr. Justice Pigeon speaking for himself and Mr. Justice Beetz, concluded that the Adjudi- cator was entitled to determine whether the rejection was in substance a discharge and, if so, whether there was just cause for discharge. The other four majority Judges did not express an opinion on whether the Adjudicator would have jurisdiction if it were determined that the rejection was in substance a discharge. - 8 - In our view, the analysis of the Supreme Court of Canada in .' :, Jacmain applies to the legislation governing this case. _In this regard, we concur in the decisiomof Leslie so/77 ahd sucker 206/78. Therefore, we conclude that the Grievance Settlement.Board only has jurisdiction to review the merits of a release if it was in reality a dismissal i.e. for disciplinary reasons. Otherwise, the Board has no jurisdiction to consider the.-sufficiency of the reasons for the release. We.do not accept the Union's submission that a "dismissal" referred to in Para- graph 17(2)(c) Of.The Crown Employees Collective Bargaining Act may be for other than disciplinary reasons. Paragraph 17(2)(c) refers to discipline and disciplinary sanctions which are tested against the standard of "just cause", which is the usual restriction on the employer's disciplinary powers.' In this case, the grievor was hired as as Secretary/Clerk for three Industrial Development Officers in the European Consulting Services Section of the Trade-Development Branch of the Ministry of Industry and Tourism. Her job was to provide clerical assistance to the Industrial Development Officers who accompany business persons from the private sector on trade missions to Europe organized to sell Ontario~ products. In particular, the grievorwas required to take dictation; type and prepare correspondence, as well as answer the telephone for the Officers for whom she worked. The grievor was formally reviewed after three months of employment and again after six months. Her three months' appraisal,. although generally satisfactory, indicated that her typing skills needed improvement and that in the opinion of her supervisor, Peter Wilson, Manager of the European . . ” * - 9 - Consulting Services Section of the Trade Development Branch, she.did not seem sufficiently challenged by the.work. The six months' revi~ew, which. also indicated satisfactory performance, referred to a personality conflict between the grievor and the other members of the staff. This review refer- red as well to the need for~the grievor to control her emotions in dealing with staff and with clients in the private sector. In testimony, Mr. Wilson described the grievor as "familiar" with the clients. However, there was little that Mr. Wilson could point to to back up these assess- ments, which were obviously his impressions of the grievor over the period of her employment. Although he mentioned complaints from clients, Mr. Wilson conceded that he personally had not received these complaints, which were brought to his attention by one of the Officers. Inthe circumstances, there is in our view very little reliable evidence in this regard. At eight months, Mr. Wilson wrote to the grievor, advising that improvement was expected before she could be recommended for appointment to the regular staff. Again, he referred to frequent typing errors and added that, when the grievor was given letters to type, she would often change paragraphs and sentences from,the dictation and would thereby change the sense of the correspondence. In April, 1979, since he.felt that the grievor had not improved in two key areas i.e. correspondence and relations with staff and clients, Mr. Wilson decided-to release her for failure to perform her duties satisfactorily. The grievor denied the allegations against her. In particular, she denied that she had had problems with the staff. To the contrary, her evidence was that she had a good working relationship with the three Industrial Development Officers, who in fact praised her work. Indeed, she testified that none-of the officers had ever spoken to her in a disciplinary manner. > - * - 10 - She said that when she received Mr. Wilson's letter advising her of the needy for improvement in April, 1979, she tried to find out who the Officers were who had complained about her, but Mr. Wilson could not name anyone. In fact, according to the grievor, one of the Officers had advised her that Mr. Wilson had never even solicited his opinion of.the grievor's work. Unfortunately, the Board did not have the oppor- tunity to hear from any of these Officers to support either the employer's or the grievor's advice as to their assessment of her work. We did, how- ever, see a reference provided the grievor by one of the Officers, a .:. Mr. LaPalme, who found the grievor to be "an effective Secretary" who "responds in a positive way to instructions and work assignments and has good telephone manners". The grievor further denied that she was familiar or impertinent with clients or that this had ever been brought to her attention. She also denied that she was emotional in the office. She did, however, candidly admit that she made typing errors, which she alleged is not uncommon in secretarial work. According to the grievor, at no time until February 3, 1978, when she received the eight-month informal assessment, was she given details about any problems withy her typing or her relations with other staff. In fact, the grie&r felt that she worked extremely hard at her job, particularly during the time when she was the only Secretary in the Branch and was acting in place of Mr. Wilson's Secretary. From the evidence, it seems that the grievor was released because of allegedly poor typing skills and poor working relations with other employees and clients and what seems to this Board to be a personality clash with her Supervisor, Mr. Wilson. The evidence on each of these points, except perhaps the last one;was somewhat lacking. There was 'evidence, how- ever that the Supervisor decided from early on that the 9rievor was overconfi- dent and overqualified for the job and that his assessment of her reflected 1 , .^ this. early determination. However, in our view the ,Board is outside its jurisdiction in weighing the sufficiency of this evidence because there is no indication that the-termination was motivated by an improper purpose or for disciplinary reasons (Tucker 208/78). There was no evidence of misconduct on the part of the grievor or of the ._ -:-. intention.to take disciplinary action on the partof-the employer. Accord- ingly, we find that this Board has no jurisdiction to determine the vali- dity of the grievor's termination, since it was not a dismissal for which the right to grieve is granted under Subsection 17(2)(c) of The crown Employees Collective Bargaining Act. If indeed the release was not for sufficient reasons, which is a matter we do not determine, the grievor must seek her remedy elsewhere. The Union also submitted that Mr. Wilson was not properly delegated the authority to,release the grievor-under Subsection 23(Z) of The Public Service Act. In fact, the employer failed to prove the delegation of authority to Mr. Wilson which might mean that the grievor was not properly released. However, since we do not navethe jurisdiction to inquire Pinto the validity of the release (beyond determining whether or not the, griever was dismissed), the matter of the delegation is not properly before us. We are supported in this view by the decision of the Federal Court of Appeal in the case of NOL?MR L. Wright V. Public Service Staff Relations Board <la731 F.C. 765 (C.A.). In that case the Federal Court of Appeal determined that the rejection of the grievor, a Child Careworker with the Federal Department of Indian Affairs and Northern Development, was in fact a nullity, since it was made after the expiry of the probationary period and.therefore that the grievor's employment had never been properly terminated. Nevertheless, the Court held that the Adjudicator had no jurisdiction to consider a grievance against the rejection, since the .r i - 12 - termination could in no way be considered a discharge which could be referred to adjudication under Subsection 91(l)(b) of the Public Service Staff Relations Act. By analogy, even if the authority to release the grievor was not properl~ydelegated, and therefore the grievor was not properly terminated, it is simply not within the power of this Board to provide a remedy. In summary, since there is~ no evidence to indicate that.Ms. Leung .~ was dismissed or appraised contrary to the governing principles and standards, this Board has no jurisdiction to deal with the grievance, which must therefore be dismissed. Dated at Toronto this 16th day of January ~1981. &y-g& Maureen K. Saltman Vice-Chairman I CONCUR "I dissent" - Dissent to follow Guy Beaulieu Member