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HomeMy WebLinkAbout1979-0036.Watters.80-02-06Between: Before: For 'the Grievor: For the Employer: IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES GRIEVANCE SETTLEMENT BOARD Before THE GRIEVANCE SETTLEMENT BOARD Mrs. Sheila Watters And The Ministry of Housing Professor K. Swinton Vice-Chairman Mr. 'E. McLean Member Mr. R. Cochrane Member Mr. G. Jones Canadian IJnion of Public Employees Mr. H. Knight Personnel Branch Ministry of Housing Hearing: December 7, 1979 January 10, 1980 This is a grievance in which Mrs. Sheila Watters claims that she has been unjustly laid off since November 30, 1978. The employer, the Ministry of Housing, has argued that she has been laid off for good reason, namely her inability to perform the tasks assigned to her. Mrs. Watt&s was employed by The Hastings, Prince Edward and Belleville Housing Authority as a Clerk 4, General from August 5, 1975 until her layoff. She was hired to perform the task of Book- keeper, having answered a newspaper advertisement which called for a Bookkeeper (Ex. 9). The advertisement stated that a bookkeeper was required "to be responsible for all accounting and financial operations of the office. Your duties will include Rent Receivables and Accounts Payable as well as Budget preparation end Budgetary Control." NO formal job description, other than this advertisement, was ever made available for the grievor's job. The job of Bookkeeper, classified at a Clerk 4 level, was intended to be a senior administrative position in the office. Mrs. K. Kokesh, the Housing Manager for The Hastings, Prince Edward and Belleville Housing Authority, testified that she hired the grievor because she'felt Mrs. Watters to be suitably qualified for the position. The grievor had experience in the insurance business and in the federal government and had done payrolls for an office with two to three people. The job which Mrs. Watters first took up when she went to work,for the Authority~ and the job as it evolved over the next few years were very different. Mrs. Watters was hired in anticipation of a decentraliza- tion programne underway in'the Ministry. The plan was to decentralize the handling of accounts from Toronto, giving this accounting function to -3- local housing authorities. .The planned date of decentralization was September, 1975, but this was postponed until March, 1976 because of complications in establishing the local housing authority. During the period prior to decentralization, the grievor per- formed a.variety of routine clerical tasks, such as organizing files or assisting with tenant applications. She did not really start to assume the duties of the position for which she was hired until March, 1976 when the McBee accounting system was installed. At this point, Mrs. Watters took over responsibility' for the accounts. She was assisted by Miss Anne Bailey, who helped with debiting rents, taking rent payments from tenants,-and preparing bank deposits. In February, 1977 the Accounts Payable function was also decen- tralized. Miss Bailey took over responsiblity for this function, under Mrs. Watters' supervision. A few months after the McBee system was implemented, Mrs. Kokesh began to discover deficiencies in the grievor's work, largely in the form of balancing problems at month end. The grievor was responsible for month-end balancing of the Receivables, Payables, General Ledger and bank reconciliations. These problems continued and led to a series of unfavourable performance appraisals. The first written appraisal, dated August 5, 1977 (Ex. 5), pointed up several deficiencies on the grievor's part, including inadequate knowledge of accounting procedures, limited knowledge of banking procedures, and a need for improvement in supervisory skills. Mrs. Kokesh pointed out that the grievor was still not performing all the tasks for which she had been hired and that she was really doing the work of a Clerk 3. It was suggested that the grievor might want to apply for a Clerk 3 opening in' January, 1978 because of health problems which she was experiencing, . . -4- but she declined to do so. The difficulties continued, and were documented in a further performance appraisal dated March 31, 1978 (Ex. 6). The Accounts Receivable and the bank accounts had not been balanced since October, 1977, necessitating the assistance of the Branch Financial Officer from Ottawa. At the time of this appraisal, the'grievor agreed that her work was substandard. Further compljcations arose~in January, 1978 when the grievor was required to assume added responsibilities. Specifically, she was required to take over the payroll function for the 19 to 20 people in the office, which Mrs. Kokesh had performed for the last year. The office was tied into the Royal Bank's computerized payroll system. The grievor's training consisted of one half day's training by Mrs. Kokesh and 1% days with a service representative from the Royal Bank. Mrs. Kokesh said that she helped the grievor with the payroll for a couple of months, and a manual of instructions was available. The grievor testified that she found her training to be inadequate, for the bank service representative spent little time training her, while Mrs. Kokesh often refused to answer questions, referring her to.the policy manual instead. This manual was somewhat confusing to her, as it con- sisted of "updates" filed separately from the instructions. The grievor's performance with regard to the payroll was very unsatisfactory to Mrs. Kokesh. Mrs. Watters admitted that "payroll scared me silly." Her errors included both overpayments and under- payments, as well as programming errors. Mrs. Kokesh discussed these -5- problems with her and included her criticisms in a further Performance Appraisal dated August 7, 1978 (Ex. 7). She noted that there had been little change in the areas of performance which had required improvement in August, 1977. Subsequently, on September 1, 1978, Mrs. Kokesh wrote to the grievor, advising her that her level of performance would be reviewed over the next three months (Ex. 8). It continued: "The level of performance expected of you as a bookkeeper should be at a level such that I have enough confidence in your work that it is not neces- sary to always check and correct it. If this level of performance is not met within the next three months, then I will have no other choice than to proceed with termination of your employment with this Housing Authority." There was no improvement during the evaluation period, with further mechanical errors in retroactive pay. Therefore, on November 30, 1978, the grievor was laid off with two weeks pay in lieu of notice.. The letter (Ex. 3) stated, "You will be laid off in accordance with article 7.01 (e) Of the Collective Agreement until such time as a vacancy becomes available for which you possess the necessary skills and ability." Article 7.01 (e) deals with loss of seniority, and states: .an employee will lose all seniority and e@OYment shall be deemed to be terminated if he/she: (e) 1s laid off for a continuou.s period Of Six mCoth.s; provided however that seniority da11 not k lost for twelve months if at the end of six (6) co=e- cutive na7th.5 of layoff the employee notifies the Employer thet he wants his full seniority rights to continue for an additional six (6) consecutive mntti. The EmplOyer at the time of layoff k-ill notify the affected employees in writing of this provision. i 5 -6- Mrs. Kokesh testified that she decided to lay off the grievor, rather than move her to a position in a lower classification, because there was no other job available to which the grievor could be moved. There were two Clerk 3's in the office. The Clerk doing the Accounts Receivable function, for which Mrs. Watters was qualified, had the greater seniority. The Accounts Pay&le clerk had less'. : : seniority, but the grievor lacked the typing skills necessary for that position. It is the grievor's contention that she was unjustly laid off. Counsel argued that the grievor was asked to perform duties and responsibilities far greater than those normally expected of a Clerk 4. It was also argued that she was unjustly treated in that she was given inadequate training to prepare her for the new tasks assigned, specifically the payroll function. The first argument turns on the interpretation of the Class Standards .for the classification of Clerk 5 in The Ministry of Housing (Ex. 10). The Union has argued that the payroll and financial functions should be handled by a Clerk 5. Since the grievor was hired as a Clerk 4, the employer cannot discipline her for failure to meet the standards associated with the higher rated classification, for such expectations are unreasonable. The Clerk 5 standard says, in part, that "These employees will be the senior person in the unit responsible for the spekific function..." , whereas the Clerk 4 standard says that typical duties include, inter m, woperating of a portion of an accounting section, such as, accounts payable, under the direction of an office supervisor or financial officer" (emphasis added). Since the grievor was in charge of all financial functions (Accounts Payable - and Receivable, as well as payroll), it is argued that she was being asked to do Clerk 5 work. Two points were made by the employer to answer this argument. First, it was noted that the duties of a Clerk 5 were much more senior than those of a Clerk 4. The typical duties of the Clerk 4 standard are illustrative, not exhaustive. Furthermore, the administration of the payroll function is specifically mentioned as a typical duty of the Clerk 3 position. In considering the evidence and arguments, we have concluded that the grievor was not being asked to do tasks that fell outside the scope of the position for which she was hired. It is somewhat difficult to deal with this argument, based as it is on a conclusion that the grievor was, in effect, improperly classified. The grievor never objected to~her~ classification, although she did write to the'Personne1 Director, Mr. Frank Harrison in Toronto on August 24, 1978, asking for a desk audit (Ex.17 ). In reviewing the evidence, however, it would seem that she was hired to take a senior administrative position which encompassed all financial functions. That could well include payroll, often'a Clerk 3 duty, as well as balancing of accounts. The tasks set out in the Clerk 4 standard are only illustrative, but they seem to indicate that the employee is expected to assume a degree of responsibility and to exercise some independent judgment, as the grievor was expected to do here. Therefore, we would conclude that the grievor was.not being asked to do tasks ,beyond the scope of the position for which she was hired. The issue then becomes whether the employer acted properly in laying off the grievor. Arbitrators have distinguished the situation where the employer takes disciplinary action against an employee for - 8 - carelessness or poor work habits from the situation where an employer takes action against a blameless employee who is incapable of meeting the standards of the job for which he or shewas.hired. In the latter case, it has been held that the employer should not discipline the employee. Rather, the appropriate action is to try to transfer the employee to a less onerous position which he or she is capable of filling; to allow the employee to exercise seniority rights on another job for which he or she is qualified; or to lay off the employee until a suitable opening is available (~a United Automobile ,, ~. Workers and De Havilland Aircraft of Canada Ltd. (19641, 15 L.A.C. 284 (Las-kin) at 287; Re Atomic Energy Allied Council, Local 1601 and Atomic Energy of Canada Ltd. (1962). 13 L.A.C. 210 (Cross); Re United Automobile Workers, Local 35 and Libby, McNeil1 and Libby of Canada Ltd. (19721, 23 L.A.C. 287 (Palmer) at 289; Re Are Canada Ltd. and - Int'l Assoc. of Machinists, Lodge 1817 (1975), 10 L.A.C. (2d) 81 :(Beattyj at 85). It is arguable that the employer here has taken the proper course in 'laying off the grievor, rather than discharging her, provided that the employer had adequate reason to conclude that the grievor was not competent to perform the tasks expected of her at the time of layoff. In reviewing the question of competence of an employee, the employer cannot expect perfection in all facets of work. To quote Professor Beatty in the &case above (at 89) "The test that is adoptedby a majority of arbitrators to assess the qualifications and capabilities of an employee to perform a particular job is that of reasonable ability or‘ the ability of a reasonably able, skilful and e;ficient workman of the same classification." -9- It was argued by the Union that Mrs. Kokesh's standards were too high and that she expected perfection. From the evidence, it would appear, however, that Mrs. Watters failed to meet the standard of reasonable ability to do the work of the Clerk 4 position. Her own evidence, as well as that of her supervisor, Mrs. Kokesh, was to the effect that she had ongoing difficulty with the payroll. As well, she had continued problems in performing basic accounting, and book- keeping functions for which she was hired, pleading Mrs. Kokesh to feel that she must constantly check the grievor's work. Mrs. Watters did point out that some of the errors in the accounts were those of her subordinates, for which she was held responsible. Nevertheless, she did admit that she made errors of her own and ultimately, it was her responsibility to balance the accounts and to administer the payroll: Neither task was performed satisfactorily. Mrs. Watters‘ difficulties and her inability to understand the payroll system caused an increase in workload for her supervisor, who felt obliged to check the grievor's work. .Overall, it can be concluded that this was not the level of performance to be reasonably expected of an employee at the Clerk 4 level. Mrs. Watters expressed concern at the lack of training for the tasks which she was performing. It would indeed be unreasonable for the employer to impose new tasks on an employee without explaining those tasks and providing some period of familiarization. However, thece is a limit on the familiarization period that can be'expected. Mrs. Watters was given some formal training, plus repeated guidance by Mrs. Kokesh, according to her testimony and that of Mrs. Kokesh. She failed to use the procedural manual adequately and ,again had ongoing difficulty. While it was clear from Mrs. Watters' testimony - 10 - that she is a very honest and sincere person and very much committed to learning.her job, there is a limit to the employer's duty to provide training. Here, the grievor had approximately eleven months to come to terms with the payroll function, which must be regarded as adequate in the circumstances. Therefore, we would conclude that the employer had cause to be concerned about Mrs. Watters' performance. The Union has suggested that she should then have been offered a lower classi- fied position which she was capable of performing. There are major problems with this suggestion. First, there are no bumping rights under the Collective Agreement (Ex. l), so she was not entitled to demand another job. Secondly, even if there were such rights, there was no job available for which she was capable. The Accounts Payable clerk was less senior than the griever,. but Mrs. Watters' typing skills were inadequate for the job. Therefore, the employer acted properly in laying off the grievor until such time as a further job became available. It is unfortunate that no other job was available at the time of lay off, for the grievor is clearly a sincere and interested employee. While the employer was justified in laying her off in November, 1978, the Board is concerned that the effect of this layoff should not amount to "discharge" due to the lapse of time. irrdisposing of this grievance and,to the effect of the loss of seniority provisions in the Collective Agreement (Article 7.01 (e)). Discharge in these circumstances would be too severe a penalty for the grievor. Therefore, pursuant to our jurisdiction under s. 18 (3) Of The Crown Employees' Collective Bargaining Act, S.O. 1972, c. 67,aS am., - 11 - the Board would uphold the employer's decision to layoff, but give the grievor a further period of one year from the date of this award to exercise the seniority rights which she had accumulated at the time of the layoff and to seek employment in any position in the Hastings, Prince Edward and Belleville Housing Authority for which she is qualified. Dated at Toronto this 6th day of February 1980. let Prof. K. Swinton Vice-Chairman I concur Mr. E. McLean Member I concur Mr. R. Cochrane Member