HomeMy WebLinkAbout1980-0344.Turcotta.81-05-13Between:
Before:
IN THE MATTER OF AN ARBITRATION
Undet-
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Mr. JohnV. Turcotte Grievor
- And -
The Crown in Right of Ontario
(Ministry of Community and Social
Services)
E. B.~ Jolliffe, Q.C. Vice-Chairman
K. W. Preston Member
G. Beaulieu Member
Employer
For the Grievor: M. Pratt, Grievance Officer
Ontario Public Service.Employees Union
For the Employer: S. White, Employee Relations~ Cfficer
Ministry of Community and Social Services
Hearing: December.5, 1980
January 6 and 7, 1981
In April, 1980, during the first year of his employment,
the grievor received notice that he was being released on the ground
that he had failed to meet the requirements of his position, that
of,a Cook 2 at the Rideau Regional., Centre, Smith's Falls,whereabout
1,000 "retarded" patients are in residence.
This case, like a number of others previously decided
by this Board, turns on the interpretation and application of
provisions in The AcbLic Service Act and The Crown Employees
Collective Barguining Act as well as clauses in the Collectives
agreement between the Ontario Public Service Employees Union and
the Crown in Right of Ontario represented by Management Board of.
Ontario, effective from January 1, 1980.
Subsection (2) of Section-17 in The Cram EmpZoyees
CoZZective Bargaini?q Act is as follows:
section I?. - (21 ~waddition to any other
rights of grievance under a coZtective
agreement, an employee claiming,
(ai that his position has been im-
properly classified;
(bl tkat he has been appraised con-
traq to the governing principkz
and standards; or
Ic) that he has been discip!hed or
dismissed or suspended from his
employment tiithout just cause,
may process such matter in accordance tith
the grievance procedure provided in the
coltective agreement, ad failing final
detemination under such procedure, the
~. matter my be processed in accorda7tce
with the procedure for final detemina-
tion applicable under section 18. 1974,
c. 135, s. 9, part.
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Section 18 of the same Act goes on to provide that a .
grievance arising' under Section 17(Z) may be referred to the
Grievance Settlement Board for arbitration.
It is contended on behalf of the grievor that this
Board has jurisdiction in his case by reason of the provisions
referred to above.
The Employer relies on Subsection (5) in Section 22
of The PubZic Service Act:
Section 22. - 151 A deputy minister may release
from employment any pubZic servant d&ng, the
first year of his employment for failti@.to
meet the requirements of his position. R.S.O.
1970, C. 386, s. 22; 1972, c. 1, s. 2.
The employer also relies on Articles 27.6.1 and 27.6.2
in the applicable collective agreement, which is as follows:
27.6.1. Any probationary employee who is dis-
missed OF released shall not be entitled.to
file a grievance.
27.6.2. ‘.’ Any empZoyee other than a probationary
employee l~ho is dismissed .shalZ be entitled to
file a grievance at the second stage of the
.,~grievance procedure provided he does so within
twenty 1201 days of the date of the dismissal.
The rights, if any, of a probationary,employee have
been the subject of much discussion by the Courts as well as by
arbitrators, most recently by the Supreme Court of Canada in
Leeminq and C.U.P.??. Local 380 v. New &unswick Treasuq Board.
In that case (as yet unreported) the judgment of Mr. Justice
Martland (concurred in by the other six sitting members of the
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Court) had the effect of overturning the decisions of both the
adjudicator who had arbitrated the grievance and the New Brunswick
Court of Appeal. The New Brunswick Public Service Labour Relations
Act (like the federal Public Service Staff Relations Act and also
somewhat similar to the Ontario Cram Employees ColZective Bm-
gaining Act) appeared to give any employee the right to grieve and
to refer to adjudication "disciplinary action resulting in dis-
charge...." In the Leeming case, however, the Union had agreed .;.
that probationary employees would be entitled to all rights and
privileges under the collective agreement "except with respect
to discharge", and further that "the employment of such employees
may be terminated at any time during the probationary period with-
out recourse to the Grievance Procedure." The Supreme Court
held .that.the grievor and the Union were bound by the provisions '
of the agreement, notwithstanding the provisions of the Act;
It was said that "the grievances submitted must be determined in
accordance with provisions of the collective agreement."
In the case before us, Leeming is more in point than
the oft-quoted judgments in Jac.~in (1977) 78 C.L.L.C. 14117,
where no clause in a collective agreement barred the grievor's
claim for redress, but the issues arising.under two different
statutes applicable only to federal public servants (the Public
Service Staff Relations Act and the Public Service Employment Act)
were so complex that the Supreme Court produced three different
judgments, one of which (representing the views of the Chief Just-
ice-and two other other judges) dissented sharply from the views
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of the majority and disagreed with the result reached by a ninth '
judge.
That the problem is not free from difficulty has also
been demonstrated in previous decisions of this Board. Earlier
views were expressed in Joyce 21/76, which were challenged by the
employer's counsel (as a result of Jacmairrl in LesZie 80/77.
Speaking for the majority in Leslie, the then Chairman, Mr. Adams,
reviewed the reasoning in &cmcrin at some length and al~so drew
attention to Article 27.6.1 and 27.6.2. in the O.P.S.E.U. agree-
ment (both quoted above) which had the same language then as now.
Referring to the two Ontario Statutes, he said at page 12:
We agree with the employer's counsel that
these two statutes should be interpreted to
give full effect to their respective provisions
and that this Board should not lightly conclude
that the Legislature intended, by the passage
of the Crown Employees ColZective Ba&zining
Act, to repeal by inference; provisions found
III the &GZic Service Act. Approaching the
respective provisions of these two statutes
from this viewpoint, we find that terms "dismiss"
and "release" found in Section 22 of the Pubiic
Service Act involve different concepts and that
Section 17(2)(c) of the Crown Employees Collective
Bargaainiq Act does not provide for the processing
of a release "in accordance with the procedure for
final determination applicable under Section 18."
However, we would quickly add that Section 17(2)(c)
simply provides an employee with rights;"in addi-
tion to any other rights ~of grievance,under a
collective.agreement" and we see nothing in this
statute or the PubZic Service Act precluding the
parties., in their collective agreement, from
giving this Board jurisdiction to review the re-
lease of an employee under Section 22(5) of the
Public Service Act. But the parties have explicitly
decided against this, as witnessed by Art. 27.6.2
of their collective agreement.
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To restate our understanding of the rela-
tionship between these two statutes, we are of
the opinion that the bona fides release of an
employee from employment made in good faith
during the first year of his employment for
failure to meet the requirements of his posi-
tion cannot be considered to a dismissal as
that term is used in both the FubZic Service
Act and Crown Employees Collective Bargaining - Act. If these were not the case, there would
Eve been no reason for the legiilative drafts-
man to-insert Section 22(5) into Section 22
because by Section 22(3) the deputy minister
had already been granted the power to dismiss
any public servant in his ministry for cause.
The distinction between a release (for failure'
to meet the requirements of a position in the
first year of employment) and a dismissal
having therefore been made in the Public
Service Act, it must be concluded that the
distinction was appreciated by the draftsmen
of the Crow Employees Collective Bargaining
Act. The two statutes are closely related and,
indeed, the Cram EmpZopes CoZZective Bargain-
iq Act makes a number of explicit references to
the E'ubZic Service Act. Accordingly, the
absence of the term "releaseYin Section 17(2)(c)
must be construed and interpreted to be a signi-
ficant and intentional omission. Thus, it follows
that the bona fides release of a probationary em-
ployee in the first year of his employment made in
good faith and for failure to meet the requirements
.of his position cannot be contested before this
Board under Section 17(2)(c). We observe that this
result is not contrary to any policy either expressed
in legislation or understood in the industrial rela-
tions community. Indeed, the purpose of drafting
the statute in this way is likely, found in the
reasoning of Re United~Electricai Workers & Square
D.Co. Ltd., (1956) 6 L.A.C. 289 at page 292, a
viewooint aiven'the exolicit aooroval of the.~
Sup&me Co&-t of Canada in Xachain.
There remains the question of whether this Board has
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jurisdiction to determine whether a "release" under Section 22(5) of
the Pub& Service Act was in reality what it purported to be. To
give an extreme example, can the employer, after detecticg a proba-
. . .
tioner in the act of embezzling large sums of money, avail itself
of Section 22(5) by declaring that the probationer is being released
"for failure to meet the requirements of his position"? In such an
extreme case the appropriate sanction applicable to all public serv-
ants is obviously to be found in Section 22(3):
Section 22. - 131 A deputy minister may for
cause dismiss from employment in accordrmce
with the regulations any public servant in
his mini&ry.,
The following view was expressed in LesZi+ at page 13:
A few qualifications should, however, be
noted. Until the Supreme Court of Canada has
said otherwise, this Board is of the opinion
that the employer cannot camouflage either
discipline or the termination of an employee
for a reason other than'employee's failure
to meet then requirements of his position, as
that phrase is explained in the Square D. Co.
Ltd. case, by the guise of a release under
Section 22(S) of the PubZic Service Act.
This Board, therefore, has jurisdiction to
review a contested release to insure that it
is what it purports to be. But in the adju-
dication of such a grievance, this Board is
without jurisdiction to evaluate and weigh the
reason of the employer unless the collective
agreement provides otherwise. The Board must
only be satisfied that the employer, in good
faith, released the employee for a failure to
meet the requirements of his position. As
long as the Board can be satisfied that the
employer has made an evaluation of that kind,
it has no jurisdiction tom review the fairness
or correctness of that determination under
Section 17(2)(c).
" Similar views were expressed by Pigeon J. and Dickson J.
in jacmain. In that case, however, the Court was not faced with a
clause in the collective agreement such as it appears in Article 27
of the O.P.S.E.U. agreement or the one considered recently in the
Leeminp case. Instead the matter was governed by Section 91 in the
-a-
Public Service Staff Relations Act and Section 28 in the Public
Service Employment Act.
In the instant case it was contended on behalf of
the grievor that the termination of his employment was in fact
-disciplinary, that there was no just~cause for discipline and that
appraisals of the grievor's performanceswere unfair, incorrect and
contrary to governing principles and standards. On the other hand,
the employer's case is that during the periods in which he was at
work the grievor demonstrated his inability to meet the require-
ments of a Cook 2, that he repeatedly failed to carry out specific
instructions, that his "attitude" was unacceptable, that he lacked
the necessary experience and that he failed to obtain a certificate
of qualification as a Cook until shortly before his release.
On the factual issues stated above, a wealth of
evidence was tendered throughout the course of a three-day hearing.
If this Board is to accept jurisdiction, the central problem is
whether the grievor's termination was in truth disciplinary. In
other words, was the employer's decision motivated by findings of
misconduct on the part of the grievor or simply by dissatisfaction
with the level of his performance?
The history of the grievor and his employmenf~may be
s'ummarized by reference to the following significant facts:
.,.
The grievor was about 32 years of age when he
commenced work as a probationary employee on May 7, 1979. He had
some knowledge of the Rideau Regional Centre, having been employed
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for some time previously (but not as a Cook) and because his wife-
was also employed there in a different capacity, At the age oft
13 he had done a little cooking in his father's restaurant at
Perth. His other experience as a Cook was for about 18 months at
camps in Northern Alberta and Northern British Columbia, feeding
an average of about 40 men. He did not hold a Cook's certificate
from the Ontario Ministry of Labour and was told, before starting
at the Rideau Regional Centre, that he would have to~get one within
a year, this being a requirement mentioned in the job specification,
Exhibit 3. After failing two tests he succeeded in passing the
final test in March or April, 198d (as the employer knew by April
14) although the certificate itself is dated May 15, 1980.
The next important point is that notwithstanding
his employment from May 7, 1979, to April 28, 1980, a period in
which there were 245 scheduled working days, the grievor actually
worked only 144. He was absent a day and a half.on sick leave.
The other absences of 99% days were due to three accidents, for
which he was compensated. Thus the employer had 144 days in which
to assess his performance, the equivalent of slightly more than
seven months of actual work.
Some accountmust now be given of the appraisals'made
by,the employer, which speak for themselves.
The first appraisal, Exhibit 4, (dated August 7,' ,..
1979, approved by the Food Service Administrator, Miss S. Smith,
on August 15 and acknowledged by the grievor on August 21) was
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made --- in the absence of the Chef, Mr. J. Muir --- by Mr. R. J.
Watson, Assistant Chef. Of 17 "performance factors", three were
placed under the heading of "Improvement Required". These were:
(1) "Consistently applies knowledge and skills", (2) "Completes
tasks satisfactorily", and (3) "Work-habits --- organization of
work". In 12factors (including the "over-all rating") the
grievor wasrated "good" and in two ("attitude, interest in work ---
demonstrates ,positive evidence by acceptance of assignments and
responsibilities" and "seeks to enhance knowledge and skills")
Mr. Turcotte was rated "very good". Mr. Watson appended the
following comments: "You have the ability and attitude to become
a good Cook. However, you must concentrate on learning and using
the proper cooking principles. You seem to be having a hard time
adjusting and-organizing your work, although you are improving.
Your skill and knowledge will improve with practical work exper-
iences and training so keep up the good effort:" This was written
exactly three months after the grievor started work.
The second appraisal (made by'the Chef, Mr. Muir)
was dated November 23, 1979, and received by the grievor on
December 7. Of 17 "performance factors", the grievor was rated
"good" in only four: (1) proper use of equipment and materials,
(2) punctuality, (3) "accepts suggestions for work improvement",
and (4) "seeks to enhance knowledge and skills". In respect of
13 other factors, it was said "Improvement Required".' These in-
cluded all factors in the category of "skill and knowledge", four Of
the factors involved in "Work Habits", two out of three involved
in "Attitude and Interest in Work, both factors under "Initiative",
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and one of two under "Training and Development". The over-all
rating was "Improvement Required".
With the second appraisal (made just after the
grievor had been away from work more than two months) Mr. Muir-
appended the following comments: "You have been off duty since
September 10, 1979 on W.C.B. It is difficult to evaluate someone
who,is not here, but I strongly recommend that you settle down in
your work habits and that you improve your cooking abilities as
soon as possible. You must be able to do your day's work effect-
ively. If you need any help or suggestions with your work we will
do our best to inform you. Your co-operation is expected
iannediately".
The third appraisal, Exhibit 11, dated February 14,
1980, was made by Assistant Chef Watson. In this one the grievor
was placed under the heading "improvement required" in respect of
all 17. factors. Attached to the appraisal was's memorandum from
Miss Smith, the Food Services Administrator. It reads as follows: Miss Smith, the Food Services Administrator. It reads as follows:
As can be seen from the attached As can be seen from the attached
Performance Evaluation Report improve- Performance Evaluation Report improve-
ment is required in all areas: ment is required in all areas:
1) Your skill and knowledge are not up
,~ ,~.. to the Standards~required by a Cook ,
#2'at this facility. You have been
.~ given an opportunity to accept-on the
job training and counselling and also
to take the exam for the Chef's
Certificate. It is my understanding
that you have not taken advantage of
these aids.
2) Your work habits are poor, there are
established policies, procedures, and
work schedules to be followed, these
have been explained to you and you
ignore them. Yours finished product
_ .
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is not up to the expected standard and
at timeshas resulted in waste of food
or someone else having to correct your
mistakes.
3) In the nine months since you have worked
in this Department, of -194 working days,
you worked only 99, having been sick on
1 day and on W.C.B. 94 days. This gives
us limited opportunity to assess your
capabilities. Any further protracted
absences may be considered as demon-
strated unsatisfactory performance and
will not be tolerated.
4) You show a lack of interest in your work
and your attitude to your fellow workers
is argumentative and to your supervisors
shows lack of respect.
5) You do not seek help when it is warranted.
As you can see this Evaluation is very
poor. failure to improve in both per-
formance and attendance~by April 8th,
1980 will result in a reconnnendation for
release from employment for failure to
meet the requirements of your position.
On April 8, 1980 (11 months after the grievor
started work) Mr. Muir ,addressed a memorandumto Miss Smith,
Exhibit 13; recommending that "he be released from employment for
failure to meet the requirements of his position". Mr. Muir
.began by stating that the griever's "skill and knowledge do not
meet the standards expected of a Cook #2". He cited four examples
of incompetence. These were the subject of much'conflicting
testimony'at the hearing held by this Board and need not be dis-
cussed for the purpose of deciding the central issues.
Mr. Muir further stated that "in spite of repeated
counselli,,ng, Mr. Turcotte's work habits continue to be poor".
-.
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Further statements by Mr. Muir were as follows:
On March 14th, Mr. Turcotte burned his
arm and was three days late reporting this
incident - this is the third time he has
been late reporting an incident. All Food
Service staff have been instructed that any
incident must be reported immediately in
accordance with Workmen's Compensation Board
Guidelines and facility Policy Directive
H.S. 21.
Mr. Turcotte does not demonstrate positive
evidence of interest in his work.
Mr. Turcotte does not rec0gniz.e and respect
the needs of others and has~a definite lack of
respect for his supervisors.
Mr. Turcotte claims to have had a great
deal of experience in the cooking field but
this does not show up in the results of his
work. He does not seek help from his super-
visors and seems'to resent any suggestions
to improve his work.
. MissSmith, Food Services Administrator, concurred
with the recommendation made by the Chef, Mr. Muir, and passed it
on to Dr. N. Lysander, Administrator of the Rideau Regional Centre,
Exhibit 15. Dr.'Lysander then informed Mr. Turcotte by letter
dated April 14, ~received on April 18, Exhibit 14, that he would
be' released as of April 28, citing Section 22(5) of the Fublic
Service Act and also the authority delegated to him by Personnel
directive No: 30.
Miss Smith, Mr. Muir, Mr. Watson, Assistant Chef,
and Mr. G. Catchpole (one of two Head Cooks) all testified in‘
support of'the unfavourable appraisals made of Mr. Turcotte's
performance and insisted that he had been given help in adapting
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to his new job and learning a trade for which he was really not
qualified.
Mr. Turcotte's version of the experience is very
different. He complains that he was shocked by the authoritarian
attitude~of his supervisors and in particular resentsbeing
addressed as "Hi You!" He believes he was blamed for matters
beyond his control, such as being absent due to accidents on
the job. He was criticized for missing an appointment to take
his. second~test for a certificate, but in fact he could not
attend because of a,back injury. He felt he had been "harassed"
and bullied by both Head Cooks, Messrs. Pask and Catchpole, and
says he actually filed a "charge" of harassment against the
latter, although it does not seem to have been in the form of a
grievance. In this connection the grievor says he studied the
collective agreement but did not read the Article relating to the
grievance procedure. '. .
The grievor agrees that Mr. Watson lent him a text-
book to help him pass the Ministry of Labour test, but states that
no supervisor gave him proper instruction or training; when he
.asked for advice he was referred to other Cooks. He was, however,
repeatedly rebuked for his mistakes (and sometimesfor whqt he
contends were not mistakes) and became so exasperated that on one
occasion he told Mr. Watson to "stick it" and on another told
Mr. Pask to "get off my back". He.was assigned duty in the staff
cafeteria for so many consecutive days that he protested strongly _.
when Mr. Catchpole ordered him to get busy serving in the cafeteria
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when he had been delayed in the kitchen by the need to help another
Cook. This incident and a fuss about it in the Cafeteria led to a
meeting in Mr. Muir's office, which was also attended'by Miss E.
Sammon, a local union officer. It is clear from the testimony
of the grievor as well as that of Messrs. Muir and Watson that he
had come to be regarded as a "trouble-maker' who did not respond to
orders willingly or promptly. Mr. Muir, forexample, admits that
he once told the grievor during an argument "I'll kick you in the
ass!", but says he apologized immediately.
According to the grievor, after his release some of
the other Cooks said he had been treated unfairly and volunteered
to testify. Two of them did testify. Mr. Richard MacRae had worked
with the grievor on 66% shifts (by Mr. Watson's calculation) and
confirmed that when the grievor asked for help in solving a problem
he was referred to other Cooks. Mr. MacRae said the griever's'
lunch period had ~been interrupted by orders to work in the Staff
Cafeteria; it had happened to both the grievor and himself on the day
of the grievor's release. He said also that supervisors did not
always agree among themselves and gave inconsistent instructions.
His impression of Mr. Turcotte's work was "not too bad".
Another Cook, Mr. Lindsay Lawlor, who had served with
the grievor on 61% shifts (according .t.o Mr. Watson) testified that
the grievor is "as qualified as some others; I don't believe he was
given a fair chance.~ He's not used to a large kitchen". Mr. Lawlor
had ZO.years of experience as a Cook in the Armed Forces, but said
"it took me two or three months to learn all the ropes". Like
Mr. MacRae he had often seen the grievor at meetings in the office
with Messrs. Muir and Watson. He thoughtthey found fault un-
reasonably with the grievor's work. He also described some of
Mr. Watson's orders as "rubbish".
All witnesses agreed on at least one point. From
July, 1979, the kitchen staff functioned in what had been the
bake-shop, while a reconstruction of the main k~itchen was being
carried out over a period of many months. The temporary quarters
were much smaller and all staff worked in difficult conditions
which were probably responsible for two and possibly all three of
the grievor's accidents. For example, the big cooking pots were
too close together (as Mr. Watson conceded) and the grievor as
well as others suffered troublesome burns as a result. The grievor
had another injury to his back on colliding with a cart. The other
accident occurred when he tripped over an electrical box which had
been left on the floor by workmen. (In December, the grievor had
to undergo surgery for his back trouble). Mr. Muir states that
the staff did a creditable job of coping with their overcrowded
facilities.
Another feature of the grievor's history at the
Rideau Regional Centre is that he attended frequent meetings in
the small office occupied by Messrs. Muir and Watson. These
meetings were noticed by other employees who could see but not
hear persons within the office. Some meetings were brief, others
much longer. According to the supervisors, they discussed
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Mr. Turcotte's complaints and gave him explanations, advice and
instructions. ~The grievor thinks he was often rebuked unfairly;
bullied and harassed, As Mr. Watson testified, "he thought we
were ganging up on him"; the griever's testimony is to the same
effect.
About the time of a lengthy meeting, in February
attended by a local union officer, Ms. Sammon, the grievor gave
her a lengthy hand-writtenbrief he had prepared in studying the
collective agreement. It is~not clear when, if ever, the~~~brief
reached management, although the grievor claims Dr. Lysander had
,it in April. The brief related principally to working conditions
which the grievor thought were in violation of the collective
agreement. It,made some valid points, e.g. he referred to the
opening words of the agreement which (in 1980) were as follows:
Shift schedules shall be posted not
less than fifteen (15) days in advance
and there shall be no change in the
schedule after it has been posted
.._u,nless notice is given to the employee
one hundred twenty (120) hours in
advance of the starting time of the
shift as originally scheduled..... y
In contrast to the above, Mr. Muir has testified
that for the past two years the posted schedules closed with the
words "subject to change due to sickness or vacations". The
grievor had complained that the words were "subject to change at -"
any time". He also complained that he was not always scheduled ~.'
with two consecutive days off, as required by Article 8.1 of the
agreement..
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The complaints specified by Mr. Turcotte in February
and later could have been presented as grievances. There is no
evidence, however, that this was ever done. It appears that until
after his release he had little or-no knowledge of the grievance
procedure and merely relied on defending himself in arguments with
his supervisors and complaints to Ms. Saamon. The result was that
his relations with the Chef and the Assistant Chef steadily became
more unpleasant. The very unfavourable appraisal in February and
the accompanying memorandum from Miss Smith gave clear notice that
Mr. Turcotte would be released unless performance improved. At
no time was there any suggestion in writing that he could be or
would be disciplined. He does not say he was penalized except by
way of "harassment" and what he thoughtwas unfair discrimination.
After careful consideration of the evidence (not all
of which can be discussed within the compass of this decision).we
have concluded that the termination of the grievor's employment
was not disciplinary.
Unfortunately for Mr. Turcotte, his limited exper-
ience and qualifications as well as his character did not enable
him to adjust happi1y.t.o the pattern of work required in an institu-
tional environment. ~For example, in his brief (Exhibit 16, prob-
ably written in February, 1980) he said:
We cook with management recipes and if they
they don't turn out then it's our respons-
ibility. Well if it is going to be our re-
sponsibility regardless of how it tastes
then I ask why can't we use our own cooking
techniques spices and ingredients for that ..
recipe. I then face the responsibil~ity of
the finish product more than half those
recipes need something anyway.
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The suggestion that he should be allowed to cook in
his own way --- and add spices --- was totally unacceptable in an
institution where menus.and recipes were highly structured by the
Food Services Administrator in accordance with certain principles
known to dietitians but not to Mr. Turcotte. In particular, Miss
Smith has testified that, acting on scientific advice, she was
withholding "spices" on the ground that they are thought to be
unduly~ stimulating and perhaps harmful to retarded patients.
Scheduling was another area in which the grievor
failed to recognize the special requirements of a large institu-
tion. At the,time of his appointment, he signed an "Induction
Report", Exhibit 8, in which he sa,id "I agree to all tours of duty".
In that document the tours were clearly specified to conunence at
6 a.m., 7 a.m., 8 a.m. and 10 a.m. Some months later, however,
when scheduled to start work at 6 a.m., the.grievor refused on
the ground that he shared a car with his wife (who also worked
at the institution) and thus could not come to work at 6 a.m.
He thought management's scheduling practices to be unfair.
True, the scheduling cycle was extremely complex.
The kitchen staff were responsible for providing 3,500 meals each
day, every day. Schedules had to assure that this could be done
while at the same time complying with the requirements of the
collective agreement in respect of days off, meal breaks, rest
periods, holidays, vacations, sick leaves, etc. Scheduling was
further complicated by the need for rotating and overlapping
shifts, so that meals could be prepared from early in the morning
until early in the evening. There were also the special needs of
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certain patients to be considered. The grievor does not seem to
have appreciated fully the many problems which inevitably arose
in connection with scheduling.
It is significant that other employees --- at least
two of whom were hired in 1978 and 1979 --- had previous exper-
ience .as Cooks with the Armed Forcesand that they seem to have
had little difficulty in adjusting to the rule-bound routines of
work in a large institution. Mr. Turcotte's experience was
entirely different and in our opinion he not only failed to
adjust.but actively~ resented what he thought was the "authoritarian
attitude" of his superiors.
In his closing argument on behalf of the grievor,
Mr. Pratt challenged the validity of the second and third appraisals.
He pointed out the difference between the first appraisal, moderately
favourable, and the second, very unfavourable, notwithstanding the
fact that the grievor had been away~ -Y- due to an accident --- most
of the time between the, two appraisals.
The third appraisal was uniformly unfavourable and
threatened release unless there was an improvement. Mr. Pratt
suggested that the employer's low opinion of the grievor's perform-
ance ias really based on exasperation with his long absences after
accidents, as shown by Miss Smith's comments (dated February 14)
with the third appraisal, particularly in paragraph 3:
Any further protracted absences may be
considered as demonstrating unsatisfactory
performance and will not be tolerated.
- 21 -
The only "protracted absences" were those in
connection with compensable accidents which had occurred on the
job. As contended by Mr. Pratt, the statement quoted above is
.indefensible and suggests rather confused thinking about the
nature of "unsatisfactory performance". Unless prepared to
prove that an accident has been deliberately or negligently
incurred, an employer has no right to find fault with an employee
for a "protracted absence" following a compensable accident. Un-
fortunately, statements in this connection by Miss Smith, Mr. Muir
and Mr. Wation cast some doubt on their ability to make a fair and
*~ objective appraisal. It appears that, whatever their competence
in other areas may be, some improvement is required in their
understanding of employer-employee relations.
Notwithstanding what has just been said, this Board
is of the opinion that the principal and effective reason for
Mr. Turcotte's release was his failure to adjust to the require-
ments of cooking in accordance with the peculiar standards of a
large institution such as the Rideau Regional Centre.
Mr. Pratt has argued that the grievor was appraised
"contrary to governing principles and standards". In some respects
'eat least the appraisals were unsound in that‘they'seem to have been
unduly influenced by the grievor's absences and were based on very
superficial observations. For example, Mr. Muir was away when Mr.
Watson made the first appraisal in August,'but when Mr. Muir wrote
the second appraisal and his critical comments on November 23,
the grievor had been off duty since September 10. Nevertheless,
- 22 -
unsatisfactory or unsound appraisals do not convert the release of
a probationer into a dismissal. .
Mr. Turcotte's grievance, dated April 28, 1980,
and referred to arbitration on June 32, was in two parts, as
follows:
Under the drown employees Collective
Ear(laini~ Act, Section 17.2(b) Mr.
Turcotte feels "that he has been ap-
praised contrary to the governing
principles and standards" and (c)
"that he has been disciplined or~dis-
missed . . . from his employment without
just cause". The section applies to an
employee without distinction as to
classification or status.
The 'Settlement Required" asked for "retraction of
.
dismissal" but made no mention of the appraisals.
It could be argued that the first, second and third
appraisals cannot now be adjudicated upon because the third was
in February and no grievance.was filed until April. However, in
fairness to the grievor, the. appraisals have been discussed at
some length in this decision because they are relevant to the
central issue: whether the termination was a release or a
disciplinary dismissal.
Whatever the defects in the appraisals,~there is
nothing in them (or in the rather unhappy relations between the
grievor and his supervisors) to support the thebry that he was
to be disciplined or terminated by reason of sdine form bf mis-~
conduct. On the contrary, the evidence suggests.that management
-. ..: .4i{. +.e
believed him to be a misfit in an institution such as the Rideau
- 23 -
. .
Regional Centre, which the grievor thougMwas being managed or
mismanaged in a quasi-military manner,
Certain passages in the decision rendered in
Tucker 206/78 seem applicable in this case. Writing for the
majority, Chairman Weatherill made the following statements:
The threshold issue --- that on which
jurisdiction depends --- is whether
there was in fact discipline, dismissal
or suspension. In the circumstances of
the instant case, the question is whether
or not the termination of the grievor's
employment effected while she was still
a'brobationar)r'employee, constituted a
dismissal . . . . . . .
Where the claim is made, as here, that a
person has been dismissed, and where the
employer, as here, answers that she has
not been dismissed but rather released,
then it will be the task of the Board.
to characterize the employer's action
as one or the other . . . . . . .
There is no real allegation,that the
grievor was disciplined, and certainly
no ground or motive for any disciplinary
action against the grievor is suggested
nor does it appear in any way from the
evidence . . . . . . .
We cannot, therefore, properly character-
ize the matter before us as ones involving
dismissal without iust cause within the
meaning of Section"l7(2) of the Crown
Employees Collective Barqaininp Act.
Certainly... the matter is not one with
respect to tihich the collective agree-
~ment gives~ us jurisdiction.
It follows that the grievance is not one
which this Board has jurisdiction to hear.
As previously explained, this Board has found it
has not been established that the release of the grievor, Mr. John
Turcotte,was really a dismissal for disciplinary reasons. This
- 24 -
Board lacks jurisdiction and the grievance, therefore, fails.
In conclusion, however, the Board has a recommendation
to make for the consideration of the Ministry. The grievor has
his roots in the area, his wife has been an employee at the
institution and he himself had previous experience there in a,,
different capacity. The fact tha,t his services as a Cook were
unacc.eptable from a management point of view does not mean he
would fail to perform satisfactorily in a different job. Further,
he has shown a certain zeal for work and received a favourable
appraisal after three months as a Cook -- before he had any
accidents. The Board recommends that the Ministry give serious
consideration to employing Mr. Turcotte at the same institution,
but in a different capacity.
DATED at Toronto this 13th days of May, 1981.
E.' 8. Jolliffe, Q.C. Vice Chaitin
_I.
K. W. Preston
/
Member
/lb