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HomeMy WebLinkAbout1981-0685.Blundell.82-04-15. , ‘, r 1, ONTAAIO CROWN EMP‘O”EES : c GRIEVANCE .SbS;bEMENT Between: Before: IN THE MATTER OF AN A-WITRATIOfj Unher THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (Mr. Richard Blundell) Grievor - And - The Crown in Right of Ontario (Ministry of Consuiner and Commercial Relations) Employer Mr. R.L. Verity, Q.C. Vice Chairma.-, Mr . S.J. Dunkley Member Mr. H. Roberts Me,nber For the Grievor: llr . M. Pratt Grievance/Classification Oificer Ontarlo Public Service Employees Enion For the Employer: Mr. L. i)orff, Xanxer Personnel Ser:-ices liearincs: yinistry of Coilsurer and Czicercia!. Relations - 2- AWARD The Grievor alleges unjust dismissal from his position .as "Search Counter Clerk 2 General" on September 30th, 1981. The settlement requested was reinstatement to that position with compensation for all lost wages and benefits. The letter of termination dated September 25th, 1981, purports to release the Grievor from his position as a probationary Employee in accordance with Section 22(5) of the Public Service Act, R.S.O. 1970, c. 386, "fez failure to meet the standards of ~the position". The date of the release was September 30th, 1981, and the Grievor was given two weeks pay in lieu of notice. .The Parties agreed on the following relevant facts: 1) 2) 3) 4) Richard Blundell was first employed on contract as "Clerk 2 Filing" from May 20, 1980 to June 30, 1980, during which period he was a Public Servant designated as unclassified staff. From July, 1980 to October 31, 1980 he was again employed on contract for the same position. On October 20, 1980, the Grievor was appointed to the probationary staff of the Ministry in the position of "Clerk 2 Filing". At this point in time, he was designated as classified staff. On November 10, 1980, the Grievor was reclassified to the position of "Clerk 2 General", which classification he maintained until the date of his termination on September 30, 1981. 1 - 3 - 5) The Griever's change in status from the position "Clerk 2 Filing" to "Clerk 2 General" (on November 10, 1980) was,in effect, a promotion. On behalf of the Grievor, Mr. Pratt developed his argument in five respects as follows: 1) As of the date of the purported "release", the Grievor was no longer in the first year of employment in the public service and could not be "released" pursuant to Section 22(S) of the :. Public Service Act. 2) As ~of the date of the purported "release", the Grievor was no longer in the position to which he had been appointed by the Commission and therefore could not be "released" pursuant to Section 22(5) of the Public Service Act. 3) In the event that the Board rejected the first and second arguments set forth above, the Board should find on the evidence presented, that the Grievor's termination was a "dismissal" camouflaged as a "release". 4) In the event that the Board found that the Grievor's termination was a dismissal, the dismissal was void ab initio, as there was no delegation of Ministerial authority under Section 23 of the Public Service Act. 5) In the event the Board characterized the fact situation as a "dismissal", the dismissal was defective in the absence of just cause. At the outset, it should be stated that both Mr. Pratt and Mr. Dorff agreed that in the instant case there was no delegatlcn of authority from the Minister to “dismiss” the Grievor pursuant to Section 23 of the Public Service Act. .?ccordingly, if the Soard -4- were to characterize this fact situation as a "dismissal" rather than a "release" then the dismissal would in fact be void ab initio. The first argument of the Union has been dealt with previously on numerous occasions in Grievance Settlement Board Awards. Chairman J. F. N. Weatherill addressed the issue in Dorothy Johnston and the Ministry of Consumer and Commercial Relations, 292/79. In that Award, Chairman Weatherill considered the merits of the Union's argument in some detail and rejected that argument. The issue was considered in subsequent Awards, Brenda Del Giallo and the Ministry of Correctional Services, 484/80 (Jolliffe) and Jean Pecoskie and the Ministry of Correctional Services, 95/80 (Barton). Both of these Awards follow the rationale of the Dorothy Johnston precedent. This Board finds that the Grievor, Richard Blundell, was at all material times in the first year of his employment within the meaning of Section 22(5) of the Public Service Act. In arriving at this conclusion, we adopt the rationale of Chairman Weatherill in the Dorothy Johnston Award. The second Union argument has not been raised previously before a Grievance Settlement Board. That argument is primarily an argument of equity alleging that it would be patently unfair tc i . - 5- appoint an Employee to one job in the public service within the probationary period, then promote him to a second job, and then terminate his employment on the allegation of failure to satis- factorily perform the second job. In considering this argument, the Board sets out the wording of Section 22(S) of the Public Service Act. That Section reads as follows: - "22(S) 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." Although the Union's argument is imaginative, we can find no provision in the wording of Section 22(S) of the Public Service Act to justify the implementation of the Union's argument. The wording of that Section is broad in scope, and there is obviously no limitation contained in the present wording of that Section to support the Union's contention. Accordingly, that argument must fail. The third argument advanced bye Mr. Pratt is the key issue in this Grievance -- was the Grievor, Richard Blundell, dismissed cr released? Article 27.6.1 of the Parties' Collective Agreement, under the heading of "Dismissal" reads: i c : .I I -6- "any zrobationary employee who is dismissed or rE3eased shall not be entitled to file a grie-.-iance. " SectkJn lB(2) (c) of the Crown Employees Collective Barga5nimg Act provides aS follows: .*lIn addition to any other rights of grievance under a collective agreement, an employee claim3g,...... Cc) 3at he has been disciplined or dismissed '. r_x suspended from his employment without j.2st cause, may process such manner in zccordance with the grievance procedure _=rovided in the collective agreement, and lailing final determination under such G=rocedure, the matter may be processed in zccordance with the Procedure for final Iztermination applicable under section 19." Section 22(S) of the public Service Act quoted above, gives authority t.o a Deputy Minister to release a public servant during the EmPlo? -eels first year of employment for failure to meet th;e requirements of his position. Arbitral authority of the Grievance Se-element Board is legion in the proposition that the Board has no jurisdiction to review the merits Of a release of a probationary Employee. A Board of Arbitration does have jur’isdicti0Z Pursuant to Section lB(2) (c) of the Crown Smployees Collective Bargain ing Act to review the merits of a dismissal of a probationary Emplo;ree, and also jurisdiction to review the merits of what purports to Abe a release if in fact it was a dismissal. c - 7- In the instant case, the Employer's evidence consisted of oral testimony from two very credible witnesses -- Arvind Damley, Deputy Land Registrar - Abstract Index Section Toronto-Boroughs Registry Office, and Thomas Blacklock, Land Registrar of the Toronto-Boroughs office. ( Mr. Damley testified that on or about November lOth, 1980, he instructed the Griever in the responsibilities of his position as a Clerk 2 General, and indeed the Grievor had been familiar with most of those duties from previous work experiences prior to assuming the new classification. Numerous examples were cited by Nr. Damley (mostly insignificant incidents when viewed individually) to demonstrate that Mr. Blundell was not able or was unwilling to follow instructions. Several incidents demonstrating the Grievor's attitudinal problems were illustrated, the most significant of which was the Grievor's tendancy to throw "abstract books" on the public search tables. ( Other examples were presented by Mr. Damley to illustrate the Grievor's "abruptness" with members of the legal profession and the general public. One instance of disagreement between the Grievor and his Employer was cited concern'ing vacation entitlement and the eventual resolution of that issue. A significant area of concern was the Employee's attendance record. Xc. Damley testified that in a busy Land Registry Office, absenteeism for whatever the reason, causes “enormous upheaval and inconvenience" in scheduling and manning the of'ice / , and this fact had been brought to the Griever's atten:icr: The Land Registrar, Mr. Thomas Blacklock, testified that from his experience eight days absence from work by an individual Employee was an "acceptable" level for a nine month period, but Mr. Rlacklock went on to say that the Grievor's absence from work had reached 14% days during that period. In Mr. i Blacklock's opinion, that history of absence from work was "totally unacceptable". Also, Mr. Blacklock was concerned about a developing pattern of absence from work by the Grievor, namely Mondays and Fridays, also absences during mid-months and the end of the month - all of those periods of time when the Registry Office was particularly busy. As of the date of termination, the Grievor's absences totalled 184 days. A total of five appraisal reports were submitted relating to the Grievor. The first "unsatisfactory" rating with regard to the Grievor was recorded under the heading of "Quality of Work" in ( the three month appraisal. The six month appraisal rated the Grievor "fair" under each of the factors -- Attendance Record, Punctuality, Demonstrated Job Interest, Quality of Work, Potential and Relationship with Co-Workers. The ninth month appraisal'rated the Grievor "unsatisfactory" in Attendance Record and border-line "fair" to "unsatisfactory" in Quality of Work and Relationship with Co-Workers. That report recommended that the Griever be released. In addition there was an eleven month appraisal where Quality of Work and Relationship with Co-VJorkers was rated border-line between "fair" and "unsatisfactory". -9- The main thrust of the Union's argument was that the facts of the instant case demonstrated that the Grievor's termination was a dismissal camouflaged as a release. The Union submitted a number of arbitral precedents illustrating the differences between a release as a termination for non-disciplinary reasons and a dismissal as a termination for disciplinary reasons. Having considered the evidence of Messrs. Damley and 'Blacklock (in the absence of any evidence to the contrary), the Board is satisfied that the Grievor was released as opposed to dismissed, and accordingly it is unnecessary to consider the Union's fourth and fifth arguments. Mr. Pratt on behalf of the Union made the tactical decision to call no evidence and accordingly the only evidence before the Board is the evidence of the Employer. As stated previously, the wording of Section 22(5) of the Public Service Act is very general in nature. That Section speaks of an Employee's "release from employment....during the first year of his employment for failure to meet the requirements of his position". 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 employment. The . - lo- Board is of the view that the suitability of a probationary Employee must be examined by then 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. On the e‘jidence presented, the Board is of the view that none of the incidents involving the Grievor's employment history ~during the probationary period (whether these incidents were attitudinal, absence from work, relationship with co-employees or' quality of work) warranted the imposition of disciplinary action by the Employer. The Zmployer's position was that the Grievor was given every opportunity to understand the requirements of the job, and further that adequate opportunity had been provided to him to demonstrate compliance with the requirements of the position. There were numerous appraisals which clearly demonstrated the Employee's shortcomings in the eyes of Management. These shortcomings were discussed in considerable detail with the Grievor, who in turn was afforded every opportunity to take the necessary corrective measures. In the instant case, the~Employer's evidence indicates that "absenteeism" was the most significant reason for the Grievor's failure to achieve seniority status. The evidence is clear that the Employer treated . r) t’ 11 - .I’ the Grievor's 18% days absence from work as innocent absenteeism as opposed to blameworthy or willful absenteeism. There is no doubt that the Employer has the right to forego the discipline of an Employee for blameworthy absenteeism (including lateness) as well as innocent absenteeism and accordingly treat all absenteeism in a non-disciplinary sense. Therefore, in a non-disciplinary sense, the Employer c-- must determine whether the Grievor's absenteeism is so excessive as to effectively deny the Employer the level of performance that the Employer has a right to expect. The end result of this proposition is in effect a breach of contract which justifies termination of the Employer's contractual obligation to provide employment. Mr. Blacklock's evidence exemplifies this approach. Therefore, having established that the instant case is a release as opposed to a discharge, this Board does not have juris- t diction to review the merits of the release. Accordingly, this Grievance is dismissed. - 12 - DATED at Brantford, Ontario this 15th day of April, Mr. R.L. Verity, Q.C. Vice Chairman w I ~‘~-&l it, Mr. H. Roberts Member