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HomeMy WebLinkAbout1981-0480.Brown.85-03-11IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT . Before THE‘GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Ms. M. Brown) Grievor - and - -~ The Crown in Rights of Ontario. (Ministry of the Environment) - Employer Before: G. Brent Vice Chairman ___. ~~--__ _. J.~McManus.. _.~ Member-...---~ L. Foreman Member For the Grievor: M. I. Rotman Barrister & Solicitor For the Employer: R. Younger Staff Relations ~Advisor Human Resources and Personnel Development Branch Ministry of the Environment Hearing: January 16, 1985 i c: The grievance in this matter is dated October 3, 1979and alleges that the griever has ‘been appraised in an unreasonable manner, resulting in denial of a merit increase in the performance appraisal dated June 21, 1979’: At the hearing we were informed that the Emp1oye.r had a preliminary objection to the determination of the grievance on the merits. This objection was based on the delay involved in proceeding with the grievance to a hearing. We were informed that there might be an agreement between the parties concerning the delay; therefore it was agreea that the decision on the preliminary objection should be reserved until the question of the agreement was resolved and the merits of the case should be heard. We have since been informed ~trhat no such agreement exists and, as a consequence, we will deal with the preliminary objection and not, proceed to deal with the merits unless we conclude that we have the jurisdiction to do so. The preliminary objection does not deal with any delay in filing the grievance of with non-compliance with any time limits during the processing of the grievance up to the time that it was referred to the Board for a hearing. The matter is raised in the context of the delay which has occurred following the timly reference to the Board. The griever, who was at all material times employed in the Employer’s Accounts Branch, filed the grievance in 1979 and it NoUid appear that the matter was processed in a timely and acceptable fashion through the grievance procedure. On September 2, lY81 the grievance was filed with, the Board and a hearing was requested. The Employer had notice of this. On September 9, 1981 the Board notified the Employer that it had received the grievance and that the matter would be set down for a hearing of which the Employer would be notified in due course. It would appear from the file that the Employer heard no more of the matter after that until October, 1984 when it received a copy of a letter from the Union to this Board requesting the hearing date be set (Ex 4). We informed the parties that the Board’s file contains an undated handwritten note dealing wl th this and two other grievances. The body of that note is set out below: The Union tentatively withdraws the captioned grievances subject to the right of the griever to have the grievances re-instated at any time once she has recovered sufficiently to make a decision on these imtters. The note is signed by Ms. Lillian Stevens, ActingCo-ordinator of Grievances for the. Union. Although it is undated, it would appear from the notation added by the Board that it was received on or before November 25, 1983. The Employer appears never to have been notified of this note by the Board or the Union. On October 16, 1984 the Board and the Employer were inforntsd that the Union had received instructions from ~.__ the grievorrwho-now-wished- to proceed with the hearing.----------~---- The griever has not been actively at work since about November 16, lY7Y and we are told that it is unlikely that she will return to work. Since November 16, 1Y7Y the griever has been ill and has been hospf talized for periods of time. The Employer’s position is that there Is no right to tentatively withdraw a grievance and then let it remsin dorixant indefinftely. The Employer states that it has been prejudiced by the delay which was caused by the griever’s actions. The.lJoion’s assertion is that the Employer has not been prejudiced and that the ~mployer’s failure to object to the delay until two days before the hearing indicates that the Employer has waived any objections which it may have had concerning c delay. The Union submits that the matter was delayed for so long because the griever was ill and on sick leave, and could not proceed until she was well enough to give instructions to the Union to proceed. The Employer referred us to two cases, Parr (317/82) and Goheen (321/82), both of which deal with timeliness objections. With respect, both of those~ cases deal with delay in filing grievances. The collective agreement contains mandatory time limits which cannot be extended by this Board. It also provides that a grievance which is not processed in tioie will be deemed to.have been withdrawn. The collective agreement provides for time limits up to the referral of the grievance to this Board. We have been told that all of those time limits were met in this case. Therefore, the collective agreement does not deal with the matter before us because it provides for no mandatory, or other, time limits which must be m?t after the matter is properly referred to the Board. Iti view of this, if there is a.ny basis for refusing to hear this grievance it must be on the basis of lathes, which is the essence of the Employer’s argument. Without a doubt there has been considerable delay in bringing this matter to a hearing. If we were to consider lathes as an appropriate principle to apply in a case where there has been delay in bringing a matter to a heiring, we would not be disposed to do so in this case. The griever was at all material times ill and unable to instruct the Union until October, 1984. The nature and extent of her illness was known to the Eml>loyer because she was ahsent on sick leave and later on long term disab lity. During the period between IYtll, when the matter was originally filed with the Board, and October, 1984 the Employer has been silent. Its silence cannot be considered an uninformed silence since it was fully aware of the griever’s condition. That is, under these circumstances, it is reasonable to conclude that the Bmployer wasaware of the reasons for the delay in scheduling the hearing even though it may not have been aware of any specific instruction given to the Board not to schedule the matter for the hearing. Moreover, unlike the situation where no complaint has been filed in time, the Employer was always aware that there was an outstanding timely grievance which was unresolved and which had been submitted to be heard In a timely fashion. That is, it does not find itself in the position of an employer suddenly taken by surprise by the filing of a grievance concerning forgotten events which occurred years The reasons for the delay are understandable and reasonable. Had the Union attempted to proceed in 1981, it would have been unable to do S”, and there is nothing to indicate that it could have received instructions from the griever before October, 1934. In fact, the griever herself i-ndicated in testi.mony that she did not feel able to proceed unti 1 .then. We consider it regrettable and unfortunate that communications between the parties and between the Board and the parties were not better. Had there been better communication we would not have had the problem which confronts us toslay as a preliminary objection. Under all of the ci~rcumstances, however, we cannot agree that. the delay has been unreasonable and that this is a proper case for the application of the doctrine of Iachesto bar.tbe determination of the merits. We therefore dismiss the preliminary objection and will determine the merits. The immediate cause of the grievance is the griever’s employee performance appraisal (Ex. 6) dated June 21, lY79. At the time of the appraisal she was classified as a Clerk 3 General and was working as a Cashier in the Employer’s Financial and Administrative Services Branch, Accounting Records, Appropriation and Control Services Section. She had occupied the job since 1978. Without detailing all of the evidence, it is clear that the griever I became illafter she was transferred to that job. Before her illness she was performingall of the duties of the jobas set out in the job specification (Ex. 7). Her illness caused her to be away from work for two or three months. When she returned she was still on a course of medication prescribed by her doctor, and this medication affected her ability to perform the job. Accordingly, she was put on a reduced work load and was given three weeks to determine if she could perform all of her job functions while on the medication. At the end of the three week period she found that she was unable to performall of the job and she did not do so. The performance appraisal was performed during the period when the griever was performingapproximstely 60X of the duties as set xrt in the -_ -job specifi~cati~on- (Ex..m 7).~ ,It-was-perfor~med~ by her--supervisor,- Mr. Sfngh. There is no history of any bad relations between the griever and Mr. Singh, and the griever does not suggest that the appraisal was moti.vated by any personal ani mosl ty. The appraisal shows that the griever’s performance in all categories was rated as being ‘bon-acceptable ” in every category except ‘Co-operation 6 Attitude ” where it was rated as being in the lowest ‘at expected job level ” range. Comments were wr,itten in some of the categories and they are reproduced below:. 1. Task Performance Comments Since her return to work after her illness, incumbent is only performing about 602 of the t , functions assigned to the cashiering position, Wi th some help she does a relatiwly accurate and timely job. Other functions of the position have to be reassigned. to other members of staff: Incumbent is still under medication which seems to slow her up. 3. Co-operation 6 Attitude Comments Incumbent is evidently more cheerful with the pressure of the job alleviated by temporary redistribution of the assignments. 5. Organizing Ability Cornsrents Incumbent has not demonstrated the level of organizing ability that is demanded in this position in order to succeed. Appraiser Corncents The cashiering job is a very demanding posi ti on. Incumbents’s work so far has not shown much hope for the satisfactory perzormance of all the functions of the position. Any attempt to assign &he entire job on her may have adverse effect on her health. She is still desirous of being transfered to another job. - It would appear from Mr. Sin&$‘s testimony that his appraisal was influenced by the fact that the griever was not performingall of the job. He considered that he could not rate her performance as acceptable because she was not able to do all of the job, even though, by and large, he considered that what she was doingshe was doingreasonably we 11. Mr. Singh testified that the griever was made aware of his concerns about her work performance and that he had had several discussions .wi th her about difficulties in her performance. She had also been made aware of the fact that the Employer was considering deferring her ueri t increase. We accept that an appraisal must meet a ‘general standard of reasonableness”as set out in Scott (23176) and that the onus is on the griever to satisfy us that this standard has not been met. Without belabouring the point unduly, we do not consider it unreasonable to t tl appraise an employee’s actual performance against the background of the job specification for the position. That is, even if an employee is actually performing those duties which she can do at an acceptable level, we do not consider it unreasonable to consider the relationship which the proportion of duties which can be done bears to that of those’ duties which should be done but which cannot be done by the person being appraised. Therefore, when an employee is incapable of perfurming 40% of the duties of the job, it is not unreasonable for the Employer to take that into account when appraising performance and to reduce the assessment accordingly. In view of that conclusion, we cannot agree that the appraisal was unreasonable or manifestly wrong when the griever’s performance was rated at a low level even though she may have been (Ioing 60% ,,f the job at an acceptable level. We can see no evidence of bad faith or arbitrariness in the conduct of the Employer. Acccrdingly, for all of those reasons we see no basis for-interfering ri th the Employer’s decision and the grievance is dismissed. DATED AT LONDON, ONTARIO TDIS 11th DAY OF March , 1985. 'JL!i 22 --__-~----- -: -__ Gail Brent, Vice Chairnan .,.._. .- ._--- __._--._-.- J. McManus,>ember