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HomeMy WebLinkAbout1981-0361.Stoyles.82-03-18IN THE MATTER OF AN ARBITRATICN Unde; THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Anna Stoyles) and Griever The Crown in Right of Onrario (Ministry of the Attorney Generai) Mployer Before: K. Swinton - Vice-Chairman L. Rohinson - Member A. G. Stapleton - Member For the Griever: J. Miko Grievance/Classification Officer Ontario Public Service Employees Union For the Employer: D. Brown, Q.C., Counsel Ministry of the Attorney General Hearings: August 27, 1981 October 30, 1951 January 15, 1952 -2- This is a case in which the Griever, who was released from her employment with the‘rMinistry of the Attorney General under the authority of s. 22 of The Public Service Act, R.S.O. 1980, c. 108, claims that she was unjustly discharged and asks that slie be reinstated. It is well-established in this Board that our jurisdiction is limited in reviewing the release of an Employee in the first year of employment. Section 22(5) of The Public Service Act sets out a broad authority for a Deputy &Minister - A deputy minister may release from employment any public servant during the first year of his employment for failure to meet the requirements of his position.’ I The Grievance Settlement Board has had to interpret that provision in conjunction with s. 18(2) of The Crown Employees Collective Bargaining Act, R.S.O. 1980, c. 108, which states: In addition to any other rights of grievance under a collective agreement, an employee daiming . . . . . . . (c) that he has been disciplined or dismissed or suspended from employment without just cause, 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 accokiance with the procedure for final deter- mination applicable under Section 19. Probationary employees are barred from filing a grievance under Article 27.6.1 of the collective agreement. , .- --_ -3- Nevertheless, in a series of cases, this Board has held that it has a limited jurisdiction to review the release of an Employee in the first year or probationary year of employment. Although the Board cannot review a bona fide release for failure to meet the requirements of the job, it can review a release motivated by disciplinary reasons pursuant to s. 18(2) of The Crown Employees Collective Bargaining Act. Therefore, it will scrutinize the release of any probationary employee to determine whether the release is colourable, masking disciplinary action (Re Leslie, ‘80/77 (Adams); Re Haladay, 94/78 @Ku-d). In this case, Counsel for the Ministry asserted that the Griever had been properly released, while the Union argued that her release was disciplinary, motivated by her refusal to work voluntary overtime. We have ‘jurisdiction to review the release only if the Union’s position is correct. The Griever was hired on tMay 1, 1980 to act as a Clerk 3 in the Newmarket Sheriff’s Office. That office was a new one, set up to handle the York County work formerly carried out by the Toronto Sheriff’s Office. All the staff were new to the office, although the Sheriff, George Taggart, his Deputy and the Office Manager had worked in other Sheriff’s Offices. The Office was to come into full operation on October 14. Prior to that date, the Office was in partial operation, and the staff made an effort to establish acceptable and workable procedures. The Grievor was to act as the Fi Fa Clerk, while Ann Tidman, another Clerk 3, would be primarily responsible for Process: The Griever’s responsibilities included accepting writs of execution filed in the Sheriff!s -4- Office, typing up an executions card and a flex strip to put in the Exe=utions Register used for searches, and searching for various periods in the day. She estimated the searching time to have been one-half day to start, declining to one to one and one-half hours per day in January, 1981. She was responsible for levies, which are instructions from lawyers usually given at the time a writ of execution is filed, to seize assets to satisfy a judgment. At one time, she was also responsible for bank seiiures, but these were subsequently assigned to the Office ,Manager- in October. She also answered questions at the counter frequently. The Grievor’s training consisted of five days at the Barrie Sheriff’s Office observing and learning procedures. From this, she prepared a iManual of Procedures. The Sheriff also testified that he and the Deputy aided her in establishing procedures. The Grievor was unable to keep up with the work flow in her job, both before and after October 14, 1980 when the Newmarket Office became fully operative. There was some dispute as to the number of writs of Fi Fa which she was required to process, which she feLt was unduly large. The following numbers were calculated by Paul Nowak, the Deputy Sheriff: May, 1980 0 November 150 June 18 December 187 July 127 January, 1981 233 August 128 February 231 September 157 ,March 245 October 174 April 226 -5- Mr. Taggart testified that iroblems began before the critical October 14 date. He recalled a <meeting of the staff held October 7 at -which discussion was directed to delays in processing lawyers’ letters of instrudons with regard to levies. This was part of the Crievor’s job. Tne Griever complained that she was faced with an unreasonably high volume of ,xork. Tne Sheriff felt that her problem was one of organization, and it was suggested inat she organize her work station better. He testified that he helped her process documents, although she testified, that she had no recollection of this. A further meeting was held on November 24. Again, there were lawyers’ complaints, and again the Griever asserted that her workload was too heavy. The Sheriff again felt that the problem was organization, and he suggested that the, Griever work voluntary overtime to complete her tasks. - On December 10, the Griever received her six-month appraisal. “Improvement Needed” was noted under quality of work, operation and attitude, organizing ability and initiative. The Sheriff added a memo to the effect that the Griever was faced with “an exceptionally high volume of work”, but that she could be more effective if she took time to organize and if she worked more voluntary overtime. Despite this appraisal, a follow-up dated February 17, 1981 was more positive, and Mr. Taggart recommended that the. Crievor be appointed to permanent staff. There is some confusion as to the significance of this recommendation. The Crievor believed hat she was then appointed to -6- permanent status and that her probationary period had ended while -Mr. Taggarr said that she knew the recommendation was conditional on further improvement. Even if the Griever’s view was correct, it was not within ilr. Taggart’s authority to appoint to permanent staff, and his recommendation cannot be taken as an interference with the authority of the Deputy .Minister to release an employee during the first year of employment. In iMarch, there were further complaints from lawyers about delays and failure to comply with instructions to levy. A meeting was held on [March 12, and the Grievor W’as told to organize her work. Throughout ,March, the Sheriff was more and more concerned about delays, as two lawsuits for failure to proceed with a levy or seizure had commenced. On .&larch 23, the Sheriff reviewed about 25 of her files, some with up to 30-day delays in levies. The Sheriff “took over” the files, in .Ms. Stoyles’ words, and she was warned that she had one last chance. / The work was still not being done to ,Mr. Taggart’s satisfaction in April, and he felt that others in the office were doing the Griever’s work, even on an overtime basis, and this was not fair. This led him to recommend release, which occurred on April 22. \ Subsequently, more errors were discovered - in withdrawals of writs of execution, in the information recorded on file cards, and .in the information in the flex system used for searches. These were attributed to the Griever, either personally or by people to whom she had delegated her work. The Sheriff ” , , -7- admitted that some errors ,are inevitable, but the magnitude of those discovered was unacceptable. The Grievor believes that the volume of work was too great for one person to do, particularly if the Employee refused or resisted working overtime, ‘_ as she did. She admitted that she made errors, al.though not to the extent alleged by Mr. Taggart,. and ‘that she’couid be two to three days behind in withdrawing writs on lawyers’ instructions and up to a week behind in preparing the files for writs of Fi Fa. This delay in filing writs meant that action on instructions to levy could be delayed up to a \?eek as well. I As stated at the outset of this award, the Board has jurisdiction over ‘this grievance only if the release masks disciplinary action. Other panels of this Board have mentioned the difficulty of drawing the line between a release for failure to meet the requirements of a position and disciplinary action (Haladay, 94/78, p. 19). In this case, however, .ge have concluded that the Grievor was released for failing to meet the requirements of her position. It was the Union’s Tosition that the Grievor was discharged for refusing to work overtime. The evidence was clear that the Grievor had a demanding position, particularly once the Newmarket Office became fuily operative. By early 1981, she was faced with approximately II to 12 writs of Fi Fa each day. Ann Tidman said that each writ took her about 45 minutes to process when she filled in for the Griever. If the Griever took that long, she would be faced with nine-hours work each day on writs plus one to one and . .._ -8- one-half on searching. The Griever was not asked how long she took for each writ. One suspects, however, that it would be less than for Ms. Tidman, as this was her full-time job and experience with the writs should have increased her speed. The task was a routine one, with the Grievor required to process certain designated pieces of information from the writs, rather than to exercise a great deal of discretion. Nevertheless, the Grievor was faced with a heavy workload, and one that required her to work overtime periodically. Did her reluctance to .work overtime lead to punitive action disguised as a release? We have concluded that the Griever was released because she failed to meet the requirements of her job. She did, in’fact, work overtime during the year: 89.5 hours compared to LMs. Tidman’s 83 hours. However, her work performance was far from adequate. This is particularly clear if one considers the evidence of her inability to set priorities and to process levies as they came in. A failure to act promptly on an instruction to levy could easily result in the sale of the property to be seized or its movement out of the jurisdiction, leaving the Sheriff vulnerable to a lawsuit. Immediate action in filing or withdrawing writs is extremely important to the efficient operation of a Sheriff’s Office, and .Mr. Taggart appears to have emphasized this fact to the Griever. In addition, the Grievor showed.an unwillingness to -work sufficient overtime to allow her to catch up with a serious backlog as the months wore on. This was a new office and, according to Ms. Tidman, Sheriff Taggart had warned her that overtime would be necessary in the first few months while routine was established. Overtime is not stated to be voluntary under the Collective Agreement (Article 13), leading to the conclusion that the Employer -Y- could have insisted on overtime (Brown and Beatty, Canadian tabour Arbitration, 5:3210). The Sheriff did not, however, insist on overtime - he advised ,Ms. Stoyles to work overtime so as to catch up with and organize her work. This was not an unreasonable suggestion in the circumstances. We would be concerned if an Employer placed totally unreasonable demands for job performance on an individual and then released the Employee for~failure to meet such requirements. It was suggested in Haladay (supra) that such action might be characterized as contrary to s. 18(2)(b) of The Crown Employees CoUective Bargaining Act, appraisal contrary to the governing principles and standards. That was not argued in this case, and has been doubted by other panels of this Board (Tucker, 206/78 (Weatherill) at 5); (Pecoskie, 95/80 (Barton) it 9). In any event, the Union seemed to stress that release resulting from unreasonable demands for work performance, which an Employee cannot meet, constitutes constructive dismissal without just cause. While Sheriff Taggart is clearly a zealous worker, understandably very committed to making the Newmarket Office function successfully, we do not conclude that he placed unreasonable demands on the Grievor. She showed serious errors in judgement in delaying action on the levies. Other errors in accurate recording of information from writs came to light after her release, which also showed a failure to meet the requirements of her job. Undoubtedly, the workload was a heavy one, requiring periodic overtime to keep up. However, we do not feel that she was disciplined for failure to work overtime. Rather, she was released pursuant to s. 22(5) of The Public Service Act. For these reasons, the grievance is dismissed. - 10 - DATED at Toronto this 18th day of (March, 1982. K. SwiFXon ‘@-Chairman (See Dissent attach&) 1. Robinson Member i’ ,f ! .’ ,,,‘^ ; ., S.‘. ,,<..’ :.~. A. G. Stapleton Member /lb DISSENT The employer claims that the griever, who was within the first year of her employment, was released under Section 22(5) of The Public Service Act. There is a very narrow line in this case between a disciplinary discharge without just cause under the guise of a release, and a release not for failure to meet the reasonable requirements of her job, but the requirements which the evidence showed to have been unreasonable. During ten months of her employment, the griever worked a total of 90 hours overtime. Ann Tidman, a fellow employee, worked 83 hours overtime, and Nancy Barber, who as a Clerk 4 was Office .Manager, worked a scarcely credible 423 hours. It may readily be concluded: i) that the requirements of the job. were in excess of what would be found in a normal and adequately staffed office, and ii) that had the grievor been willing to work even more overtime than she did, she would not have fallen behind in her work. Under less pressure than she was, she would also no doubt not have made a good many of the errors attributed to her. Hence, if the release is regarded as a disciplinary discharge in disguise, the evidence suggests that the reason was Mr. Taggart’s annoyance at the griever’s reluctance (refusal is too strong a word) to work additional overtime. This would not be just cause, and the grievance should accordingly be upheld. -2- Alternatively, if the only way the grievor could have kept up with her work was to work even more overtime, then the requirements of the job should be regarded as unreasonable. In a memorandum attached to the griever’s Six month Appraisal Report, Mr. Taggart stated: To our knowledge, in surrounding Sheriff’s offices there are three employees performing the responsibilities and maintain- ing the volume of work assigned to this one employee. . . . Because of her diversified responsibilities, ever-changing priorities and an exceptionally high volume of work to be processed according to strict time limits, Miss Stoyles has little or no time available to organize her major respons- ibilities. It is also suggested that this employee work more voluntary overtime on a regular basis in order to maintain the basic levels of acceptability in her work area. With reference to first of these three paragraphs, Mr. Taggart in his evidence told the Board that iMinistry officials “jumped me on it”. However, the reported opinions of employees in other offices, in particular in Barrie where the grievor and others went for five’days of orientation before the York Region office opened, were to the effect that the York office wasvery much understaffed. The second and third paragraphs were not disputed and speak for themselves. The griever’s Nine month Appraisal Report was much better than the Sixth month one. Three of the four headings which had been marked “Improvement Needed” were now deemed to be “Satisfactory”, and the griever was recommended for appointment to the regular staff. Although the griever felt that this was tantamount to actual appointment, I accept the view that the final decision remained open until the full year of her probationary period was - 3- up. Nor was ,Mr. Taggart overridden by his superiors in this matter; between February and April 1981, he changed his mind, and the recommendation that the griever be released came from him. Both the griever and Ann Tidman gave estimates of the number of writs having to be processed each day. Counsel for the employer felt that these estimates were too high, and ~submitted figures calculated by the Deputy Sheriff; these however turned out to be higher than he apparently expected. From January through April, a total of 935 Fi Fa wits were received, making an average of Ilh per working day. Ann Tidman stated that, with interruptions to answer the phone and speak to people coming to the office counter, it took her an average of’ 45 minutes to process and file each writ. This evidence was uncontradicted. Even if the grievor, after some experience, was able to do it in somewhat less time, this work would still have taken her at least six hours a day, leaving only one hour for her other duties, which was clearly insufficient. Hence, the unrelenting need and pressure on the griever for overtime, which was frequently reiterated to her. As noted, this pressure can reasonably be considered to have been the cause of many of the errors attributed to her. In Re Leslie (94/78), the Board found 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 position cannot be considered’to be a dismissal as that term is used in both The Public Service Act and The Crown Employees CoUective Bar@ining Act. -4- The employer must however act properly and fairly. If the release results from failure to meet unreasonable requirement of the job, then, although the release may not perhaps be considered a dismissal in the strict sense of the word, it can nevertheless be concluded that it was improper and unfair. This seems to me on the evidence to be the appropriate conclusion in this case. Accordingly, I would have upheld the gkevance. ” - 7 H. L. Robinson Member