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HomeMy WebLinkAbout1981-0612.Walton.82-05-11IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before: THE GRIEVANCE SETTLFMENT BOARD Between: For the Grievor: 1 For the Employer: .‘. Hearinqs: January 27 & February 9, 1992 Before OPSEU (Victor Walton) Grievor - And - The Crown in Right of Ontario (Ministry of Health) Employer R. L. Verity, Q.C. Vice Chairman J. McManus Member F. T. Collict ', Member G. A. Richards Grievance/Classification, Officer Ontario Public Service Employees'Union _ pi M. H, Campbell,'COtinsel Ministry of Health M: V. Quick, Counsel Ministry~of Health IN.THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGBINING~ ACT Before THE GRIEVANCE SETTLDIENT BOARD Between: OPSEU (Victor Walton) Grievor Before: For the Grievor: For the Employer: Hearinqs: -And - The Crown in Right of Ontario . (Ministry of Health) Smployer R. L. Verity, Q.C. Vice Chairman J. McManus Member F. T. Collict ..,., Member G. A. Richards Grievance/Classification officer Ontario Public Service Employees 'Union 44 M. H. Campbell,'Counsel ‘Ministry of Health M: V. Quick, COUnsel Ministry.of Health January 27 & February 9, 1932 AWARD This matter involves two separate, grievances filed by GarnetVictor Walton. The first griev'ance dated June lst, 1981 alleges inaccurate appraisal and the second grievance dated June 3rd, 1981 alleges that the Grievor was dismissed without just cause pursuant to Section 17(2)(c) of the Crown, Employees Collective Bargaining Act. In the appraisal grievance; the Griever reques,ts the remedy of a "fair evaluation and to be considered for the classification of Laundry Worker 2, or transfer ,. to another department within the Hospital". In the termination grievance the Grievor requests the remedy of reinstatement "to a Laundry Worker 1 or mother employment' in the Hospital". At the outset of the Hearing, the Union adopted the argument that there.were two separate and distinct matters which ought to have been treated separately and accordingly the appraisal grievance should proceed first. The Employer argued that the two matters should be dealt with simultaneously on the basis that the function of the Grievance Settlement Board is to resolve the real dispute between the Parties, and citing for that authority Re United Electrical Workers, Local 504,:and Canadian Westinghouse Company Ltd. (1964) 14 L.A.C. 279, an Award of the late Judge R. W. Reville at page 283: 4 II . . . . a board of arbitration should seek to entertain and determine the real, as opposed to the ostensible grievance between the parties , .because for a board to do otherwise would be a denial of natural justice to the parties." -2- The Employer argued that in the instant case, the real dispute concernsMr. Walton's "release" from probationary employment for failure to meet the requirements of the job pursuant to Section 22(5) of the Public Service Act. It was then argued that presentation of Mr. Walton's first grievance on appraisal, in isolation would not resolve the real issue or provide' the appropriate remedy. The Board rejected the Union's ~position at the. first day of Hearing and both grievances were heard simultaneously. This decision was made primarily on the rationale of Turcotte and the Ministry of Community & Social Services, 344/80 (Joliffe): “Nevertheless, unsatisfactory or unsound appraisals do not convert the release of a probationer into a 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 theory that he was to be disciplined.or terminated by reasons of some form of misconduct. On the contrary, the evidence suggests that the management believed him to be a misfit in an institution such as the Rideau Regional Centre...." In retrospect, the Board should have heard each grievance consecutively with the appraisal grievance being heard first. HOWever it is unlikely that the end result would have been any different. : -3- The Grievor~,,Viti'cor Walton, was hired on October 6th, 1980 in the classification of Laundry Worker 1 at the Kingston Psychiatric Hospital. The,employment agreement between the Parties states as follows (Exhibit 1): "You will be underfilling a Laundry Worker 2 position and will be classified at the level of Laundry Worker 1 for a maximum of twelve months pending your acquiring the necessary. experience' and skills. If for any reason you should fail to meet the Laundry Worker 2 requirements your department head may recommend termination of your services during the one year probationary period." From that Exhibit it can be seen that the Grievor was classified as a Laundry Worker I underfilling the position of a Laundry Worker 2. The Hospital required a Laundry Worker 2 and the Grievor clearly had no previous.laundry experience. He has had a varied career as a Nursing Assistant, Plaintenance Man and in various semi-skilled trades,with the major portion of his career in the Canadian Armed Forces from 1950 to 1963. In December of 1980 and again in early 1981 he sought re-clpssification as a Laundry Worker 2 and was not successful in either attempt. The Laundry Worker job is essentially in two separate and distinct areas at the Kingston Psychiatric Hospital. 0r.e area f ._ i I ..,’ - 4 - was to sort laundry downstairs, and the second aspect was to work in the washing and drying machine areas upstairs. In the washing area, there were five large washing machines and two smaller machines that had to be loaded and unloaded in sequence. For the first three months, the Grievor was mainly assigned to the sorting area downstairs. His first three months appraisal dated January~ 17th, ~1981 stated that the Grievor ."does a good job in the soiled area” but "needs more follow-up in the washfloor area". In February of 1981 management made the decision to commence a rotation system for laundry Employees to enable all Employees to circulate throughout the Department. This organizational change meant that each Employee spent three weeks in the sorting area and one week in the washfloor area. Without citing major portions',of the evidence, it is clear that Mr. Walton experienced difficulties in fulfilling management's expectations in the operation of the washing machines in sequence. Mr. James Pitts, the laundry manager testified that the Grievor had difficulty'retaining instru&ions as to proper 'I formulas depending on the washload, and that he couldn't control the "bank" of washers when operating in sequence and Yhat he was moving in many directions at once and getting nowhere". ,. <‘. -5- The evidence is clear that the Grievor was given more instructions in the laundry area than most Employees reguired, but again the Grievor was unable to cope without constant super- vision. Khen left alone, without the supervision of a Laundry Worker 3 (leadhand) during two 15 minute coffee breaks or during one-half hour lunch breaks -- the Grievor was unable to cope. Admittedly, the Grievor didn't receive a great deal of experience in the washfloor area until the rotation system commenced in February of 1981; however he was trained for various extended periods of time by Paul,McGonegal and by Gerald Clark. From mid-April to mid-Hay of 1981, the Grievor spent almost all of his time in the washfloor area to obtain additional experience. From the Grievor's evidence, it is -obvious that he respected Mr. XcGonegal, however he also developed a personal dislike for Mr. Clark. In spite of that fact, we aczept the evidence of both Messrs. XcGonegal and Clark as being credible and objective. Mr. iIcGonega1 described the Grievor's performance was a Laundry Helper in March of 1981 as being "poor". The final appraisal report (Exhibit 5) is dated ?lay 20'0, 4 1981 and was approximately one month late'in issuance. :.!r . Titts explained that the delay with this appraisal report was deliberate on his part and for the benefit of the Grievor. .Xr. Pitts stated "I really wanted the Grievor to succeed". !ie find that Mr. Pitts' explanation is credible and in accord with the evidence. -G- .- That final appraisal report contains the following information (Exhibit 5): I, ( 1) (2) (3) Mr. Walton has a problem retaining instructions. Cannot seem to cope with the operating of equipment. bias received more training than all other new employees.~ Not performing the duties of the position. Cannot grasp the fundamentals for the duties. Another type of job.would be desirable. Seems to have trouble retaining information given. Interest seems lacking. I feel that I cannot recommend this employee to positionof Laundry worker 2 due to performance on training prpgram. No recommendation as we have used every training possible for him to improve." The Grievor disagreed with the tenor of that appraisal stating that he "has indeed (on my own) grasped the fundamentals of the machines operations". That appraisal also contains the following comment: ” Mr . Walton has an excellent attendance record, also a willing worker but cannot function alone on washers. I cannot see any alternative but for Mr. Walton to try some other type of employment. Does not seem to have an aptitudeito be a Laundry Worker 2. I spoke to Mr. Waltonbefore last training program and his comment was that he needed a job, but interest is not there. Could be an asset to housekeeping where he seems to have some interest due to his past position as Superintendent of an apartment building." The positionspecification and class allocationform of Laundry Worker 2 reads as follows (Exhibit 3): "POSITION SPECIFICATION AND CLASS ALLOCATION FOR" Use only.where classification decisions are made ., under agreement between a Deputy Minister and the Chairman of the Civil Service Commission. Ontario Public Service FART 1 Position Title 05-9295-04 I I This position is 1 Laundry Helper. New X:X Revised / PREVIOUS Position Title Class Title Class Cod Position Code 1 Laundry Helper. Laundry Worker 2 41602 05-9295-04 I Immediate Supervisor's Title Position Code ! 'Assistant Laundry Manager. 05-9295-02 Ministry Division Health Direct Services. Branch I Section ( Location (Address) 1 Psychiatric Hospitals Kingston Psychia- Box 603, tric Hospital. -Ontario K7L 4X3 0. of ncumbents I Positions Supervised Incumbents Directly I Supervised Indirectly Directly I Indirectly i z-4- 1 Nil. Nil. I Nil. Nil. . PURPOSE OF POSITION (Why.does this position exist? State goals objectives etc.) ,, TO assist the Washman in the washing of soiled laundry. . SUMMARY OF DUTIES AND RESPONSIBILITIES (indicate percentaqe Of time I spent on each significant function. Indicate scope, equipment, working conditions unusual features etc.) / 4 1. Assists in the washing of hospital linen, uniforms, and clothing I I by: - 90% - sorting, classifying and tagging'soiled laundry; - loading and unloading washers; - loading, unloading and operating dryers: - assisting in finishing department: - cleaning work area and machines; - weighing, loading, recording and preparing loads of soiled laundry for washing machines - unloading, weighing and recording incoming laundry from all areas; - loading soiled laundry on and classifying from con\-eyor beIt -a- 2. Related duties as assigned. 10% Recommended Classification: Laundry Worker 2. r50304. S. Asselstine Personnel Officer. I HAVE READ AND UNDERSTAND THIS SPECIFICATION: 4. SKILLS AND KNOWLEDGE REQUIRED TO.PEPFOZ& THE WORK (State Education, training, experience etc.) Grade 8, preferably Grade 10. Ttio years' experience in a commercial or institutional laundry. Demonstrated skill in the more difficult laundering processes and good working knowledge of the treatment of materials and of equipment used in the washing process. 5. SIGNATURES Immediate Supervisor I Date 1 Ministry Official Date "R. Symes" / E 1:: 1 Ty "F. Brandeau" 1:: 1 i: / ‘i; (please type supervisor's name) (please type official's name 6 title) R. Symes, Assistant Laundry Manager. F. Brandeau, Laundry Manager 5. CLASS ALLOCATION :lass Title Class Code Occupational Group No. Laundry Worker 2 41602 GO-Olb iave classified this position under authority delegated to me by the )eputy Minister and in accordance with the CivilaSercice Commission Zassification standards for the following reasons: A. Performs relatively heavy manual work in an institutional laundry by loading and unloading washers, dryers: weiqhing laundry, etc. a. 'ignature of :valuator (please type evaluator's name) j / / .j I I ,/ I -9- Under class standards the preamble for Laundry.Worker Series states in part (E~xhibit 23): "Laundry Worker 1 covers functions or combinations of functions which are essentially simple and straightforward and which, therefore, permit an acceptable degree of operator proficiency to be attained with only a few hours of'on-the&job training. Laundry Worker 2 accommodates the majority of working level positions and covers functions or combinationsof functions which are more complex and which, therefore, require a longer period of on-the-job training to achieve .operator proficiency. Laundry Worker 3 covers group leaders and laundry workers performing the most complex duties associated with the operation of an institutional laundry." The class standards of Laundry Worker 1, Laundry Worker 2 and Laundry Worker 3, being Exhibits 24, 25 and 26 bear reTeating: "CLASSSTANDARD: LAUNDRY WORKER 1 This class covers the positions of employees performing a variety of the less onerous duties associated with the operation of an institutional laundry. These employees perform such characteristic duties as sorting clean laundry into a small number of classifications, folding and packaging clean laundry and operating equipment such as automatic folding machines. Employees at this level perform unskilled repetitive functions involving relatively light physical exertion or they operate straight- forward uncomplicated laundry equipment. Employee error would have little impact in terms of direct dollar losses and/or significant production delays." ,’ - 10 - , "CLASS STANDARD: LAUNDRY WORKER 2 This class covers the'position of employees performing the more involved or arduous duties associated with the operation of 'an institutional laundry. These,employees perform such characteristic duties as loading, weighing and transporting laundry; shaking out sheets for flat work ironing, sorting soiled laundry, keeping records of linen usage; filling requisitions according to' established quotas and operating equipment such as steam presses, specialized garmet finishers and commercial dryers. Employees at this level perform semi-skilled equipment operating functions, routine clerical tasks in .conjunction with other laundry related duties, or manual work that is physically demanding. Employee errors would involve some financial losses and perhaps some loss of employee time to correct, but they would not significantly affect the laundry facility's ongoing operation." --. "CLASS STANDARD: LAUNDRY WORKER 3 This class covers group leaders and laundry workers performing the most complex duties associated with the operation of an institutional laundry facility. Positions of group leaders are in charge of recognized sections of a laundry such as the soiled sorting, clean finishing and linen supply areas. Group leaders schedule and assignjwork 1oad;review work in progress and provide technrcal direction to employees in their work unit. Laundry worker positions at this level involve the simultaneous operation of more than one industrial washer where the significance of a number of operating variables must be thoroughly understood so that correct .decisions,regarding machIne usage can be made. - 11 - Employees at this level perform lead-hand or ' equipment operating functions requiring considerable job related skills. Physical exertion is a component of all equipment operation at this level and.may also be present in lead-hand positions. Significant direct dollar losses and disruption of production schedules would result as a consequence of employee error at this level." !k. Campbell and Mrs. Quick for the Employer, and George Richards for the Union submitted extensive and well dot-umented written briefs. In view of the length of those briefs, it is virtually impossible for this Chairman to set out each of the Parties' arguments. The Union based its case on the proposition that under Section 17(2)(b) of the Crown Employees Collective Bargaining Act, the Board has unfettered jurisdiction and a correiative right to decide the appraisal grievance in a meaningful way without regard to the fact that its jurisdiction to hear dismissal grievances is not broad enough to relieve against a bona fides release. Xr. Richards reviewed in commendable detail the Board's jurisdiction to deal with appraisal grievances in light of the Supreme Court of Canada Judgment in Jacmain vs. The Attorney-General of Canada et al (1977) 81 D.L.R. (3rd) 1. He then argued extensively that the appraisal is based on an unreasonable standard, the proper standard of arbitral review in an appraisal grievance, the effecg of the underfill appoint- ment, and finally the remedial authority of the Grievance Settlement Board. - 12 - The Employer's Counsel, Mr. Campbell argued that the Griever's argument if accepted,would necessarily involve a review of the merits of a release. Be argued further that in Ilaladay and the Ministry of Industry and Tourism, 94/78 (Swan), the Board ~disposed of the argument in the following terms at page 16 of that Award: "We should observe, however, that the Union's version of the Section 17(2)(b) argument would have us determine that the 'governing principles and standards' for the-appraisal of probationary employees are the criteria set-out in Re Joyce and the Ministry of The Attorney General, 21/76 and Re Eriksen and The Ministry of Correctional Services 12,'75. Such a conclusion would be an 'end run' on the, Leslie case, and it would also ignore the Board's jurisprudence ,on appraisals, which is based on the Scott case and requires that the Employer set standards or be subject‘ to a test of reasonableness. Horeover, we are in some doubt whether much remedial authority would accrue to the Board under section 17(2) (b). The only remedy the Board has ever granted for an improper appraisal is to strike out the appraisal itself. If an improper appraisal had resulted in the grievor's release, striking it would hardly entitle the grievor to her job back unless the Board was prepared to do yet another 'end run' on Leslie by expanding our perception of our remedial authority." In addition, Mr ,Campbell argued that in Turcotte and The Ministry of Community and Social Services,.344/80 (Jolliffe) the Board, after a consideration of the Union's argument that the grievor was appraised contrary to the governing standards and principles held: / ’ - 13 - "Nevertheless, unsatisfactory or unsound appraisals do not convert the release of a .probationer.into a dismissal....." Having considered all of the evidence and the Isarties' extensive representations, this Board has concerns about the fairness of the final appraisal dated May 20th, 1981. On the evidence, we cannot accept the Union's argument that Mr. Yalton was being assessed by the standards of a Laundry Worker 3. The Board is of the view that the Grievor was being assessed at the Laundry Worker 2 standard when in fact he was classified as a Laundry Worker 1. We are of the opinion that it is patently unfair to assess the .Grievor at the Laundry Worker 2 standard when he is paid and classified at the lower level. Apppraisals must be completed by management in accordance with an Em?loyee's present classification. This points out the difficulties in the concept of an "underfill position" as is evident in this case. We would agree with the Union that the route of the Employer's error in its appraisal of Mr. Walton stems from the application of its policy on what is referred to,as "underfill appointment". An extract from the Employer's Manual of Administration (Exhibit 2) defines an underfill appointment as followsi 1 1, . ..where a person, who lacks the full qualifications for the position to which he/she is appointed, and thus is not required to perform the full range and/or level of duties of the position, is paid at a classification level lower than that established for the position." / - 14 - Also, an extract from Pxhibit 2, the !4anual of Administration sets forth certain conditions which will apply to underfill appointments: I, . . . Within two weeks from the date of the appointment, the ministry will advise the person in writing of the: outline of development program assigned to enable the employee to perform at the working level of the position; and dates for review of progress." In the Walton fact situation, no development program was designed, and no dates for review of progress were established other than the two appraisal reports referred to. This Board is of the view that management's policy on underfill appointments presents certain inherent difficulties as being contrary to the classification scheme recognized by the Parties in their Collective Agreement. To us it appears unreasonable that anEmployee for pay purposes is categorized in one classification, and for evaluation purposes is considered in a separate and distinct classification. There is no doubt that managementcrequired a Laundry Worker 2 as is evidenced by the job posting [Exhibit 30). Cqualiy, there is no doubt that the Grievor lacked the experience to be classified as a Laundry Worker 2. In our view, Mr. Walton's final - 15 - appraisal is unreasonable for the reasons stated above, and accordingly that grievance must succeed. With regard to the remedial authority of the Grievance Settlement Board to grant relief for improper appraisals, there is a considerable amount of arbitral precedent. See Eriksen and The Ministry of Correctional Services, 12/75 (Beatty); Haladay I and The Ministry of Industry and Tourism, 94/78 (Swan); and Scott and the Ministry of Transportation and Communications, 23/76 (Swan). The traditional remedy is for some form of Declaratory Order striking out the appraisal and removing the matter from the Einployee’S record. In this instance the Board agrees that a Declaratory Order removing the improper appraisal is a partial remedy. However, the Grievance Settlement Board has a broad remedial authority, and since it is clear that the improper assessment led to the Grievor's termination, a Declaratory'Order is not totally adequate by way of remedy,. It is our award that the Grievor, having been assessed as a Laundry Worker 2 classification on May 20th, 1981, should be compensated and paid at the Laundry Worker 2 classification from February lst, 1981 to and including the date of his termination. With regard to the Grievor's term&nation, Mr . Richards candidly.admitted during the second day of Hearing that the Walton fact situation was a bona fides release as opposed to a discharge. :. - 16 - The Board has no hesitation in agreeing with the characterization ._. of the facts. As this Chairman stated in Blundell and The Xinistry of Consumer and Commercial Relations, 685/81 (Verity): II . . . . the suitability of a probationary employee must be examined by the Employer in the broadest of grounds which would include inter alia,, character, attitude, compatibility, absenteeism, quality of work as well as the ability of the Employee to meet the present requirements demanded by the Employer." Mr. Walton did not adequately fit into The Employer in this instance obviously concluded that the requirements of a busy lingness to adapt, he was unable Hospital laundry. In spite of' his wil to do so. The Board recognizes that we should avoid making recommendations to the Parties. However, we cannot resist the temptation to urge the Kingston Psychiatric Hospital to consider a future employment opportunity for the Grievor, particularly in the Housekeeping or Maintenance division. The Grievor is a willing worker, he is of good character, and he has displayed no attitudinal problems. 4 ,‘:, - 17 - In the result, the grievance dated June.lst, 1981 will be allowed..on the.te~rms herein stated, and this Board will retain jurisdiction in the event the Parties are.unable to agree on the quantum of compensation, or on the interpretation or implementation of that part.of this Award. The termination grievance dated June 3rd, 1981 shall be dismissed. DATED at Brantford, Ontario, this 11th day of May, A.D., 1982. R. L. VERITY, Q.C. -- VICE-CHAIRMAN ' '91@<ee Addendum attach ) . P. T. COLLICT, ESQ. -- M.~~‘MBER J. McMANUS, ESQ. -- VBMBER ADDENDUM The Employer Member is in accord with the decision reached -ins this Award. 4iowever, one further issue raised in this case warrants comment. Counsel for the Union has argued that the qrievor was not given a test or appraisal in accordance with )I..... governing principles and standards . ..." (S.17(2) (b) The Crown Employees Collective Bargaining Act). To support this position it was argued that the duties against which the qrievor was measured were not the duties for which - he was paid or for which he was hired. However, it must be recognized that specific duties are not "principles and standards". The unanimous opinion of arbitrators concerning the status and concept of probation is set out in Re United Electrical Workers and Square DCo., Ltd., (1955), 6 L.A.C. 289 at pp. 292-3, as follows: "An employee who has the status of.being "on ?rcbation" clearly has less job security than an employee who enjoys the status of a permanent employee. One is undergoing a period of testing, demonstration or $n- vestiqation of his qualifications and suitability for regular employment as a permanent employee, and the other has satisfactorily met'the test. The standards set by the company are not necessarily confined to i?-e2%? relating to quality and quantity. of pro- charactir they may embrace consideration of the employee's ability to work in harmony with others, potentiality for advancement and general suitability for retention in the company. Although it~is .aRparent that any employee covered by thqaqreement can be dis- charged for cause at any time;the employment of a probationer may be terminated if, in the judgment of the company prior to the completion of the probationary period, the probationer has failed to meet .wtandar& and is considered to be not satis- (underscoring added) Moreover, in R. Blundell and the Ministry of Consumer and Commercial Relations, 685/81 (Verity), at page 9, the breadth 2. oft review applic-able to the suitability of a prcbationary employee is set out succinctly, as follows: i "The evidence is clear in this instance that for a multiplicity of reasons, the Employer. has concluded that the Grievor would be unsuitable for permanent emsloyment. The Board is of the view that the suitability of a probationary employee mustbe examined by the Employer in the broadest of grounds which would include inter alia, character, attitude, compatibility; absenteeism, quality of work as well as the ability of the Employee to meet the present requirements demanded by the Employer." (underscoring added) Mr. G. W. Adams in 80/77 (Leslie) at page 13 relates the concept of probation to The Crown Employees Collective Bargain- ing Act, as follows: I, . . . It may be,' as was suggested in Joyce that the Board has jurisdiction under S.17(2) (b) in 'cases of this kind and unfortunately this issue was not fully argued before the Board as we would have liked. However, if this iurisdiction exists, the application of S.17(2) (b) must be in licht of the uroose of a nrobationarv period as that auroose % expressed in Sauare D Co. Ltd." (underscoring added) It is the above concepts,,therefore, which outline the "principles and standards" of performance that are referred to in S.17(2) (b) of The Crown Employees Collective Bargaining Act, as opposed to .specific job duties. The concepts, there- fore, apply to the general as opposed tie the specific and, in the consideration of probationary employees, they are necessarily broad of interpretation. It is the position of this Member, therefore, that the griever's performance throughout then probationary period was evaluated in accordance with the principles and standards required in the laundry operation as provided for under Section 17(2) (b) of The Crown Employees Collective Bargaining Act.