HomeMy WebLinkAbout1982-0311.Stelzer.83-02-10” .
. . .
;i:
i
. .,
.;.
: 7;.
311/82
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE'SETTLEMENT BOARD
Between: OPSEU (Mrs. M. StelZer)
Grievor
- And -
The Crown in Right of Ontario
(Ministry of Transportation and
Communications)
Employer
Before: R. We. Ian&, Q.C. Vice Chairman
S. Schachter Member
P. D. Camp Member
For the Grievor: J. Miko
Grievance Officer
Ontario Public 'Service Employees Union
For the Employer: H. J. Laing
Counsel
Crown Law Office Civil
Ministry of the Attorney General
Hearing: October 25, 1982
.,- ’
? I -2 -
I The griever. in,= grievance dated March 26,.1982,alleged that "I have
been dismissed without just cause" and asks that she be "reinstated.to
my position without loss of wages or benefits."
The griever was first hired witi the employ& on March~l6, 1981 with the
classification of Data Entry Operator 2 with the Vehicle Licensing Control Branch.
It Is the position of the employer that the griever, a probationary
employee, was released for failure to meet'the requirements of her position,
in accordance vith section 22(S) of the Public Services Act, R.S.O. 1950,
C. 418. Accordingly, the position of the employer is that the griever was not
dismissed for cause. Furtbenaore,it was their contention that she was not
.entitled to a meeting under the provisions of the grievance procedure
contained in the collective agreement with respect to working conditions
and employee benefits.
However, the employer was prepared to conduct a meeting, without
prejudice, in order to enable the grieeor and her representative to obtain
a clear view of why the termination of'her services was a "release" rather
thsn a "dismissal for ~a&.". To this end, Mr. J. L. Forster, Executive
1..
Director of Transportation Regulation Operations Division, was requested
to hold a meeting with the.grievor.
The provisions 0% section 22(S) of the Public Services Act, R.S.O.
1980, c. 418 stipulate as follows:
Section 22(S)
2 ., .: ..:
(5) A deputy minister may release from employment my
public servant during the first year of his employment
for failure to meet the 'requirements of his position.
-3 -
The aforementioned meeting took place on May 28, 1982 with Mr. J. L.
Forster, Executive Director, Ministry of Transportation and Comnnnications,
and the griever represented by Ms. V. Chapman, Staff Representative,
O.P.S.E.U. Also in attendance were Mr. Godfrey, Manager, Vehicle Licensing
2
and Control and Ms. Margwardt, the griever’s immediate supervisor.
A cdmprehensive.acconnt of the matters that were discussed at the
May 28th meeting is recorded in a letter signed by Mr. J. L. Forster,
Executive Director of the Ministry un+ir date June 4, 1982 addressed to
Ms. V. Chaptin, Staff Representative, O.P.S.E.U. Indeed, the position of
the employer as set out in the letter of June 4 corresponds directly with
the position taken by the employer at the hearing.
Given the importance of the account of the meeting and the position
it represents, I am setting out here in full the relevant parts of the
letter commencing with page 2. I note in passing that page 1 of the letter
merely set out the fact that the ameting took place, those in attendance.
and item 1. of the letter deals with the jurisdiction of the Director of
Licensing and Control Branch to sign the letter of dismissal. The matter
appears to have been settled by the response tbat..the Director of..the
Branch had been formally delegated in writing by the Minister and the
Deputy Minister, the necessary authority to sign such letters. The contents
of the relevant parts of the letter are as follows:
2. Had Mrs Stelzer’s probationary~period actually expired at the time of her,release?
As I understand it Mrs Stelter was employed by
an agency and had been assigned on temporary employment with the Ministry from January 28, 1980 to March ~15, 1981. On March 16, 1981 she was appointed to the probationary staff. On
March 11, 1982 ,Mr Xivi, wrote to her advising
._ .
- 4 -
that effective Monday, March 15, she.was released. from the probationary staff. You suggest that since she was paid beyond March 15, that in fact she Was still technically on the staff and since her probationary period had elapsed presumably, the ability of the Ministry to release her-for failure to meet the.requirements of her position, .had also, lapsed. {The response by MrGodfrey was that the ; pay she received in.a cheque dated April 19th and which-included a week's pay was in fact payment in
lieu of notice. The copy of the information slip which you tabled at the meeting indicated that this
cheque included vacaticn pay and overtime as well.
_It.is my view that' regardless of the date of'the '. .'
.. cheque or payment for a week in lieu of 'notice,. '. Mrs Stelzerwas clearly released effective March 15 as a result of Mr Kivi's letter. Therefore, at the
'time of her release, she was still a probationary employee and Ur Kivi acted within his rights as Branch Director to release her. I do not see that
the final payment'due Mrs Stelzer by way of pay in lieu of notice; remaining overtime and vacation pay altered this fact at all: .
3. If Mrs Stelzer was released for failure to meet the ,~ requirements of the position, why was this inadequacy not made clear in the 9-month.appraisal?
You provided me with a copy of the 3-month appraisal
and the g-month appraisal (dated January 18) and' - Mr Godfrey's subsequent memo of February 9 referring to job performance. From what Mrs Margwardt indicated, tis Stelzer was turning out~work at the rate which was acceptable and met the requirements of the job-,in
April 81 when she was keying better than 7 boxes.of
information per day.' 'Presumably, this performance con- tinued on into July of 1981 since her "3-month" appraisal
indicates that she was doing a competent job and that her production was very good. It is also noted on that form that her production'is "sometimes lower due to absenteeism", but that her "attendance is improving". There was no evidence produced by! 'Mrs Margwardt or Mr Godfrey to indicate that this was not a'positive and supportive sort of appraisal. However, Mrs Margwardt indicated that between that time and December, her productivity had slipped badly to the point that in the months prior to her being released, she was producing little better than two boxes per day. It would seem evident given that Mrs Stelzer did not dispute these figures, that they
- 5 -
are accurate and that her performance had slipped t0 the level indicated.
You m'ade the point that MrsMargwardt's g-month appraisal, done in memo form, outlined a number of inadequacies which did not relate to her productivity. You said that
in fact only one of these, namely the one relating to'
the carelessless in re-bundling packets in fact related to job performance. You stated the view that the remainderof the ex,amples quoted refer to krs Stelzer's conduct on the. job and not her performance.
You also indicated that the follow-up memo of February 9th to Pzs Stelzer from 1~~: Godfrey referred to a monthly;
review.of Mrs Stelzer's job'performance and yet her
anniversary date, that is the date when her probationary period would end, was a little more than a month away.
From the'above,. your concluded that this in fact was a disciplinary dismissal and not a dismissal for lack of performance. You indicated your view that the employee r~ was dismissed, not released, and dismissed without $lSt:
cause.
In response Mr Godfrey declined.to agree with your con- clusion and, pointed out that although ~Xrs Stelzer had indicated general competence and good performance at the start of her probationary period, she had allowed this' to slip. As indicated in his memo of February 9, if
her performance did not significantly improve she would be released from the probationary service. .e-
As.1 understand the arguments, you,are basing your . conclusions on the facts of Mrs Stelzer's shortcomings as outlined in the g-month evaluation and concluding that _ as a disciplinary measure as ~a result'of her short- comings,Mrs Stelzer was in fact dismissed. On the other hand, I would see Hr Godfrey's memo' of : February'gth as clearly linking these shortcomings
to l&S Stelzer's performance. In fact, his first paragraph does just that. The job in question obviously requires an incumbent who can perform to a given standard of work output, since it is a production job and lack of ability to perform would, it"‘S'eemS to me, clearly indicate inability to meet .the-requireinents of the job. Since Us Stelzer did not refute the~figures quoted at the meeting by Mi?S Margwardt on her performance in terms of a number of boxes keyed per day, I can only ccnclude that while
7 boxes per day was perfectly acceptable performance,
2 to 3 boxes per day was not. During the fall of 1981
,
.Y
y:;
,. .-.
/
.,./
I
.
,,
.i ,:
., il
,.;:
-6-
from the performance figures, it would seem clear that Mrs Stelzer did not in fact perform as reguired and hence clearly did not meet the requirements.of the position.
It seems clear to me thatthe reasons for Mrs Stelzer's lack of performance were concluded by Mrs Margwardt to be:the various shortcomings which, were listed as examples in the g-month evaluation and had been .
verbally'discussed with her.on "different occasions"‘ prior, to,the time of the evaluation. It seems obvious that .if a person is habitually late'in arriving to~work, is off frequently and does not remain at her desk, she is not going to perform to the level in this type of job that is required. .'
Mr Godfrey's memo of March 9 clearly establishes that Mrs Stelzer's~ performance was unacceptable and gives her the opportunity.to.,improve. He too links the "short-
comings" with the question of performance and states that Mrs Stelzer's performtince will be reviewed monthly. I do not feel that your comment in respect to the fact that there,.was only one month left before the.completion of Mrs Stelzer's probationary period has any-bearing on
the situation. In fact, if Hr Godfrey had not stated. that Mrs Stelzer's performance would be reviewed monthly, it~would have been an indication that he had already made a deci'sion to release her at the end of her probationary period. On the other hand, he is clearly.stating that
he expects both immediate and continuous improvement in performance. I see it entirely reasonable that if Mrs Stelz'er had been'anxious to continue to work in this
‘job she would have heeded this warning and improved her
performance to the extent to which she had previously shown herself capable. Since she did not chose tb do this I find that it is completely reasonable that Mr Godfrey would recommend to his Branch Director tha~t a month later and no improvement in sight the appropriate thing to do would be to release Mrs Stelzer since she was still a probationary employee.
I have not referred to the comments which MIX, Stelzer made subsequent to your presentation since they dealt- with her disagreement with some of the details regarding the examples of her shortcomings as outlined-in the g-month evaluation. I did not find that.these were. pertinent to -the case which you were putting forward on Urs Stelzer's behalf.
As you can see from the above, it is my conclusion that MrsMargwardt and Mr Godfrey acted properly as Managers in
- 7 -
their handling of this situation ,and that kir Kivi's formal letter of March 11 releasing 14rs Stelzer from employment was both formally authorized and within the time limits of. Mrs Stelzer's probationary period. It is also clear that
hLrs Stelzer did not.meet the requirements of the job because
she failed to perform to the level required of all the other : employees.
I'~have gone to some length to explain my reasoning and my
conclusion in this matter since, as I indicated at the outset, this meeting was conducted to allow you and Yus Stelzer to
have a clear view of why her termination was a. "release" rather than "dismissal for a cause". I hope that I have succeeded in accomplishing this.
Yours truiy,
J. /L. Forster
Executive Director. .: . . . . _*-.
Reference has been made to a three-month appraisal and a nine-month
appraisal of the griever's performance:,The three-month appraisal completed
on the Employee Performance,Report by Ms. Margwardt, the griever's
supervisor, indicated that the then performance rating of the griever
wee competent. lhis is on a 7-point scale including the following ..
categories: learner, marginal, fair, inproving satisfactorily, c.onpetent.
excellent and outstanding. The basis for the rating was set out on the
Report as follows:
Position consists of keying alpha and numeric information
from Vehicle Application for reproduction on microfiche.
- Margit's productivity Is very good, but is sometimes lower
due to absenteeism, however her production does not fall
below average unit level.
- Punctuality is good, and attendance is improving. ..<
- Margit requires minimal management support.
This Employee Performance Report covered the period of March 16, 1981 to
‘June 15. 1981.
The nine-month appraisal, once again signed by M. Margwardt; the
griever’s immediate supervisor, and dated January 18, 1982, was set out
in general memo form and addressed to D. Godfrey, Manager, Vehicle
Licensing office. The contents of the memo are as follows:
Margit Stelzer - Nine-Month Evaluation
Miss Stelzer’s attitude toward the functibn she performs
and general office procedures have not improved since
the 3 month evaluation; she is showing total disregard
for usual office routine.
Examples
- Habitually iete arriving to work,
- Fails to sign correct time of arrival,
- Signs attendance sheet the time she should have
arrived, and adjusts tire to match attendance
record,
- Falls to schedule vacation days,
- Calls in anytime between 7a.m. - 4p.m. asking if 1
she can have vacation,
- Fails to call in sick until late in the day,
- Fails to follow schedule of flexi-days, calls in
asking to take flexi-day when another person in
her unit is on sick leave or on flex&day,
- Decides Athout consulting Group Leader that
she is going to work regular hours, but uses
f leti-hours ,
- Leaves the office for lengthy periods (from 10
minutes to 1 hour) numerous times a day without
authorization (see attached),
- Extends all breaks and lunch periods (see attached),
- Is careless when rebundling packets, mixing packets
and/or bundling them together,
- On one occasion she brought an intoxicated person
to the office at 4:45 p.m. She was severely ‘.
reprimanded for this and there has been no further
incident.
Miss Stelzer has been verbally reprimanded on different
occasions for all the above.
H. Margwardt.
Attached to the memorandum was an appendix setting out a detailed
schedule of the total time that was spent away from her machine an4 out
of the office on the day of January 15, 1982. The total time away amounted
/ to 2 hours and 15 minutes.
As a result of this evaluation, Mr. Godfrey, the Manager, Vehicle
Licensing and Control, sent a memorandum to Kiss Steizer regarding job
performance dated February 9, 1982.
RX: JOB PERFORMANCE
I have reviewed with your supervisor your performance
over the past several months as an employee of this
office. On my instructions, Ms. Margvardt has pro-
vided a Summary of your short-comings, a copy of which
Is attached for your information.
I find yourperformance unacceptable and wish to ad-
vise you that, should you not demonstrate a significant
improvement. you till be released from the Mlnistly’s
probationary service.
Specifically, you will exercise proper care and
completion of work assignments including the handling
~of file packets; you will adhere to the pre-dete+ned
and approved hours of work laid dcwn In' your unit; you
will obtain approval for the use of vacation or flex- time credits in advance of the day in question and will
advise of absence due to illness promptly on the day;
and you will not absent yourself from your work statloU
other than for regularly approved breaks without prior
supervisory approval.
Your future performance will be reviewed monthly and
will be the basis of my decision as to your continuation
as a member of staff.
D. S. Godfrey
Then on March 11, 1982 the grieve? was sent a letter signed by Mr. 8.
F. Kivi, Director, Licensing and Control Office. setting out the following:
- lo,-
Dear Ms. Stelrer:
This will advise that, further to Mr. Godfrey's
memorandum to you dated February 9th and numerous
performance reviews with your supervisor, you are
released from the.probationary staff of the Ministry
effective Monday, March 15th. 1982, as a result of.
your failure to,meet the requirements of your position.
Yours truly,
H. P. Kivi
: I
I
. . :
.!
‘).i
During the relevant time, there is another incident of note in that
!
on February 17th, 1982 the griever was self-admitted to 'the Emergency
Deparisnent of Toronto General Hospital at 12:15 p.m.
Apparently, the griewr caught her finger on a staple in a box
containing files upon.which she was working. The hospital report indicates
.that the condition is such that absence from work is likely to be for
"remainder of the day". Other possibilities that could be checked by
the hospital were that absence from work could be likely for nil, uncertain,
ongoing, with both of the latter indicating that the employee should discuss
this matter with the employer at the earliest opportunity. The injury
\
did result in an abrasion to the fifth finger.
The class standard for the Data Entry operator series sets out the
I KIND OF WORK COVERED
This series covers positons of employees in all Ministries of
Government who are'operating data entry equipment which is equigped
with keyboards, such as Keytape, Keypunch, Keydisk, and "on line"
Key machines, and/or rho are instructing in the use of such
equipment. l%e.operation of Keytape controllers is also included.
II EXCLUSION
Excluded from this series are positions In which the operation of
Data Entry Equipment is not the primary function.
- 11 -
III STRUCTURE OF THE SERIES
Level 1 - the training level.
Level 2 - the fully qualified working level.
Level3 - the group leader or' "lead hand" level.
IV .BASIC FUNCTIONS AND GENEWLL DUTIES
The.basic functions are to:
(a) Transcribe a volume of source material conposed of alphabetic
and/or numeric data to magnetic tape, paper cards, magnetic
disks, or similar recording form by entering the information
into a Key-operated machine.
(b) %rify the correctness of data that has already been
transcribed within the unit by Keying 'the data into a machine
in its verifying mode.
:
The general duties include:
(a) Selecting and entering a machine programme that is the
appropriate one for the data being entered.
v
(bl Deciding whether source material and/or the prograrons contain
errors, and, if so, taking corrective action.
(cl Maintaining, where required, a log of.work processed.
(d) Assisting with i&training of less experianced operators.
MINIMUti KNQNLEUGE ANU SKILLS RSQIJIRSD FOR ALL CLPSSES IN THE SERIES
KnOwledge of the general skills and practices of operating Data
Entry aquipent at a level comparable to that achieved through
completion of a course in Data Entry operating et a recognized
school, or, et the training level only, demonstration of
appropriate typewriting skills. ~
Ability to quickly and accurately enter source data into the
machine's keyboard; ability to cope with large volumes of
repetitive date; ability to adapt frequently to variety id type
and/or complexity of source date and their related programmes;
ability to understand and follow detailed instructions;
good vision.
- 12 -
31530 / DATA ENTRY OPRRATOR 1;
This is a training icvcl for operators of data entry
machines who have had~ little ok no preyious data entry working
experience. They initially work under close supervision and
guidance.
As their proficiency and kno~ledgi of work procedures of
the data entry unit increase, these employees may be given more
complex and varied assignments, +oth entering and verifying data./'
KNOWL.EDGEJU?DSKCI.lS P.EQUIRSD:
See P&amble;
:
: DATA ENTRY O?RRATOR 21
31532
This level covers the positionspf employees who axe-fully
pmficient operators of data entry eguipment,.and who have a good
knewledge of the work orocedures, the various source documents,
and the related prograrm~s, either of which may be.varied and/or
COllpleX,
They work under gene;+ stipervision. This position
requires the operators to originate machine programas following
written and/or verbal instructions. They &deputize for ,the
group leader or supervisor in his/her absence.
FXOWEDGEAND #ILLS REQUIFSD:
Familiarity with the functions, skills and duties of the
position& gained through sufficient experience as a Data F&x-y
Operator 1, or the equivalent. . .
./
There was an updated perfo-ce appraisal for Mrs, Stelzet signed
by Ms. Margwardt dated March~l, 1982 addressed to Mr. Godfrey. HaJever, this
appraisal was never sent to the grievor. lhe updated performance appraisal
indicated the follco@ng:
- Production is very good - 4 - 6 flats of work a
day.
- 13 -
- Absent from work station was minimal from February
15 - 26.
- Has been absent on sick leave a total of five days,
February 10, 17, 18, 24 and March 1.
- Employee attendance record made up by employee read '
9:30 - 6:00 for February lst, attendance register
for.February lst was signed 9:M - 5:00, when questioned,
Miss Stelzer said she made a mistake +gning out.
H. Margwardt.
The final job performance evaluation took place on March 11, 1982 by
Ms. Margwardt and was addressed Xr. Godfrey. It stated as follows:
Re: Margit Stelzer - Job Performance
March 1 - 10. 1982
Margit's ~attitude toward general office behaviour is
unaticeptable, and I find that after a 2 week impr&ement
following the meeting of February 9th. she is falling
back to some of her original habits.
- Production has fallen to three flats of
work per day.
- Five to ten minutes late, signs in the time
she should have arrived,
- Leaves her work station mmerous times a day
for periods ranging from 5 - 20 minutes.
- 5 informed me that she is taking her
vacation at the same time the other Data
Entry operator starts her maternity leave,
when I said, "no, because that leaws the
unit with no keypunchers", she informed ae
she had arranged for a data enmy operator
from another section to work for her, and
she has' already talked to the&group leader
of that unit. I have spoken to the group
leader, he has no knowledge of such an
arrangement and certainly would not agree
to such a thing, as he has a heavy backlog
and would not agree to any arrangement
,without first speaking to the unit supervisor.
On the basis of the 9 month evaluation, dated January
18, 1982, update memo dated March 1, 1982 end this memo,
I recommend that Miss Stelzer. be terminated.
M. M. Margwardt
The general position of counsel for the employee consistent with the
position taken at the meeting of May 28th is that the actions of the
employer were not, in fact, the bona fide release in accordance with --
section 22(5) of the Public Service Act, R.S.O. 1980, c. 418, tha,t is
a release for failure to meet the requirements of his position, but was
in effect a dismissal.of tlwgrievor without just causes.
It was agreed that under section 16(2)(c) of the Crown Employees
Collective Bargaining Act, R.S.O. 1980, C. 108 that an employee claiming
that he had been,disciplinsd or dismissed or suspended from.his employment
without just cause, may process such matter in-accordance with the
grievance procedure provided in the collective agreement. In effect,
this gives the right to the employee to grieve under the Crown Employees
Act.
In the testimony of Mr. Godfrey, Vehicle Licensing and Control
Manager, the situation was one in which an employee, approaching the end
of her probationary year, was identified as having production levels which
had fallen off And which were substantially below acceptable levels.
The.employee, in this case the griever, was frequently absent from her
workplace during the day and problems had arisen with regard to the
handling of the packets and the grouping of materials. Data information
cards had to be grouped in packets and it was important that they.be
grouped in the appropyiate~manner. It had been discovered that the griever
- 15 -
had sloppily grouped these materials and made retrieval much more difficult.
This, and the question of production levels, had been the subject of
conversations between the griever and her direct supervisor but there had
been no resolution. It was at this point and after conversations with
KS. Margwardt that Mr. Godfrey drafted the memo to the griever of February 9th
regarding job performance. It is to be noted. that in this memo hr. Godfrey
indicated that the future performance of the griever was to be reviewed
monthly and that that review was to be the basis of his decision regarding
the continuation of the griever as a member of staff. Mention has been
made above as well of the background memo which had been sent by Ms. Margwardt
to Mr. Godfrey regarding the performance of the griever dated January 18,
1982. Mr. Godfrey testified as well’ that he asked for a meeting with
the grievor and Ms. Margwardt on February 9th for the purposes of
discussing his memo and explaining his concerns asp set out in his, February .Yth
memo.
He testified that at the meeting the griever read the memo and had
indicated that she understood its .contents.
Mr. Godfrey further testified that the performance of the griever
improved immediately after the meeting, however this improvement was not
of long duration. Indeed; some time immediately after March 1, 1982
Ms. Margwardt reported that the griever’s work had fallen off again.
Mr. Godfrey contemplated at this point the possibility of extending the
probationary period of the griever beyond the twelve month period but
vas advised by his superiors,that that was not acceptable. It was at
this point that Mr. Godfrey decided to prepare the memo of March 11. 1982,
directed to hr. Kivi for his signature, recommending the release of the
griever . Mr. Kivi. signed the memo that same day, March 11, 19~82
- 16 -
testified that to the best of his recollection the day following the
drafting of the release memo of March 11, 1982 he vent to the grfevor's
work area and informed her personally that she was going to be released as
the hoped for improvement had not materialized. Accordingly,'it had been
decided to release her from the staff effective the next Monday and there
would be pay in lieu of a week's notice.
On cross-examination, Mr. Godfrey acknowledged that there was nothing
in the job specifications which indicated production levels. He did
indicate however that the supervisor in each area set the production
levels and in this case they would have been set by Ms. Margvardt.
Mr. Godfrey,reiterated as well under cross-examination that he had asked
the griever, on at least three occasions during the meeting of February 9,
1982, whether she understood the contents of his memo of that date.
Be indicated that the griever replied “yes", Gnce again, on cross-
examination, he also specifically confirmed that the question of accuracy
Was discussed at the meeting. In his omn words, "It was a question of acFuracy
not in the keying of the information, but in the.handling of the documents. It was
important that batches be kept in tact and the integrity of the batches
was of utmost importance. If the information was misfiled or wrongly
grouped it would be extremely difficult to retrieve that information."
In her detailed and comprehensive.testimony, hs. Margwardt, the
griever's supervisor, described the work that was to be done.
by the griever end confirmed that her job description, as set'out in
the Position Specification and Class~Allocation form, conformed to the
work that was to be done.
. .
- 17 -
The Summary of Duties and Responsibilities for the,grievor as Receipt
Verification Operator - Data Entry Operator 2 was set out as follows:
(1) Transcribes Alphabetical and Numerical data from
applications to tabulating cards by performing
such tasks as:-
95%
- Operating Decision Data 8010 (Key Punch - Verifier)
- Receive pre-edited packets from logging section
- Initial and enter time started on IL9
- Key all header information
- Key plate number,contained on applications. N.B.
Plate number is often'hand written (75%) and may
include more than one plate number; operator must
select the correct plate number.
- Enter finish time on IL9
- Send IL9 to'Record Control Group
- Duplicate all cards.
- Send originals to Data Entry Section
- Retain duplicated cards until verification of receipt
Is obtained
- Key a data control card from'document control'log,
to show, ~office number, from-to-date, report numhqr
and control number.
- Send control card to Record Control Group.
(2) Other duties:
5% - As assigned.
~Skills .and'Knowledge Reouired',to Perform the Work
Grade 10 preferably grade 12 education, ability to operate
data entry equipment Decision Data 8010 etc. with proficiency.
Ability to work with limited supervision.. Good knowledge of
the work procedures.
In determining the class allocation, the evaluater indicated that he
classified the position as Data Entry dperator 2 for the folloving
reasons:
A. Transcribes a volume of alphabetical and numerical
data from applications to tabulating cards by
operating Decision Data 8010 (Key punch Verifier)
machine.
-1
- 18 -
B. Required to select correct plate number from source
documents.
C. Requires a good knowledge of the work procedures
and ability to work with limited supervision.
Ms. Margwardt indicated that there were three people working on the
same tasks as the griever which included the filing of some 2500 documents in
a box approximately 10" x 9%".
Ms. Margwardt testified that she decided that the completion
of four to five boxes per day was a good level of production.
She indicated that the griever was capable of doing between ten and
twelve boxes per day. One of her colleagues did less than 4 boxes per day
while the third colleague did more than four. At a meeting of those
workers concerned, it was decided that the low person would have to
improve somewhat to get production up to beween four and five boxes per
day, which was agreed upon as being a satisfactory production level.
In her own words,.Ms. Margwardt indicated "I felt four boxes per day was
very satisfactory".
Ms. Margvardt also indicated that when the griever was hired in
March of 1981, she could key between eight to twelve ~boxes in an eight
hour day.
The griever was on loan to another department which had a backlog
to clear up for the period from August until early November, 1981. She
returned to Ms. Margwardt's supervision on November 9, 1981. At this
time, Ms. Margwardt indicated that her performance was not nearly,as
good and she was completing two and a half to three boxes per day. She
left her work station a number of times during the day and at one period
she was gone for'approximately 55 minutes. Ms. Margwardt, in testimony
- 19 -
which could best be des&bed as compelling, indicated without equivocation r
that she had, on a number of occasions, spoke to the griever about her
performance level, and stated that if she was able to do four boxes
per day that was all that was being asked for by the employer. Hs.
Margwardt indicated that after the interview with Mr. Godfrey, production
went up to between four and six boxes per day. However, this did not last
and her performance lapsed to below satisfactory level thereafter.
In Ms. Margwardt’s testimony there was considerable reference to the
question of signing in late, badly arranging the flex hours and giving
insufficient MtiCe for sick days. Ms. Margwardt also testified that on at
lesst.two occasfons,the griever’s performance with regard to the
organization of packets was unsatisfac&xy. It appeared as though,
after this matter was first brought to her attention; the griever
indicated that she would improve. nonetheless some two or three days.after
,. the first occurrence, once again two packets were mixed together and it
took considerable time and effort.to rearrange these properly. Once
again, in the words of Ms. Margwardt. “I spoke so many times to the
gtiebor on so many things, I had problems vith her so I went to Godfrey
for advice. I was trying to get her to .stay at her work station and get
work done otherwise I would have to send work to Downsview where the
overload was done.”
For a period of Wo weeks after the mting with or. Godfrey,
Ms. Margwardt indicated that the griever’s work improved.. Thereafter she went back
to her old work habits, was absent from her work station and productiof!
slipped below four boxes per day. It was. therefore, on March 11, that
Ms. Margwardt wrote the final memo to Mr. Godfrey regarding the griever.
i
- 20 -
When asked about her recommendation to release the griever, Ms. Margwardt
stated: “I talked, pleaded, to get the griever to do what she was capable
of - I had serious clerks talk to her - some people I knew as her friends
talked to her and nothing worked. When she did four to six boxes per
day. She slipped below that.”
. Ms. Margwardt confirmed that the griever was away for a period of
five days in February as a result of an on the job injury on February 17.
Efowever, the injury did not appear to ‘have adversely affected her
performance during that period as Ms. Margwardt’s updated performance
appraisal on March 1, 1982 indicated that production was good and that
from four to six flats of work had been completed per day. This, as has
been noted, was only~a temporary improvement as indicated by the negative
job performance of March 11 which was the basis for the decision to release
the grievor. Ms. Margwardt presented her testimony in a straightforward
and sensitive way, indicating ti a number of occasions concern for the
griever’s position. I have no doubt that her testimony accurately reflects
the conversations that took place between her and~the griever and that her
aicount of produceion levels accurately reflects that which had taken place.
There can be no doubt that written performance reviews were ma&
on July 29, 1982, June 18, 1982, March 1, 1982 and March 11, 1982.
,With the exception of the memo of March 1, 1982 which was an updated
performance appraisal, all of the other performance appraisals had been
given to the griever. Furthermore, there can be little doubt that” the
memo of February 9 to the griever was explicit regarding the handling of
file packets and while production levels were not specifically set out
in that memo, it was certainly indicated that the griever’s performance
- 21 -
was unacceptable and in the meeting of the same date with the griever,
the matter of production levels was certainly .discussed. It is to be
noted that the griever was specifically informed that her performance would
be reviewed monthly as a result of the unsatisfactory job performance
evaluation of February 9th.
The griever, in her testimony, indicated that after her return from
the loan assignment for the period of August through November of 1981
she returned to her work in early.November, 1981, .&en asked if there was
any complaints about her work during the period of November and December,
she indicated that she did not think so. ~However, she did recall seeing
Ms. Margwardt’s memo of January 18, 1982 and recalls the meeting of
._Pebruary 9th. She admitted that when the evaluation was raised, she
‘could not believe it. When questioned further about being verbally
reprimanded or if she remembered other occasions about work l.evels, she
said “No, I don’t think so . . . all came out in the one meeting with
Godfrey. Godfrey’s meeting was three to five minutes at the most.” when
cross-examined as to whether or not Mr. Godfrey asked if she understood
the memo, she replied “no, he said just read it . . . I denied it, it’s
just kindergarten stuff . At that meeting I asked Ms. Margwardt if I
could work straight time, 8:00 to 4:00 . . . sign the little sheet . . . I
was i&e oace.”
As evidenced by her general testimony, there was no doubt that the
griever was concerned about the possible relocation of workers toKingston.
At several points in her testimony, she referred to the relocation issue
and indicated that fom had been sent around to the employees asking
about their willingness to relocate.
‘.
- 22 -
Under cross-examination, the griever was informed that Ms. Margwardt
and Mr. Godfrey had testified under oath that they had spoken to her about
the sloppy filing of packets when packets ver= mixed
together, as well as the question of work levels. She resfionded, “I can’t
recall . . . they must have meant somebody else on the wrong machine. They
got us mixed up. ” When confronted with the fact that Ms. Margwardt had
testified that she had spoken to the griever many times, the griever
testified “I can’t remember. I like the job in the other place. I
didn’t like the other Group Leader, I like Ms. Margwardt.” When asked
why Ms. Margwardt would say things about her if they were .not, in fact,
true, the griever testified that ‘berhaps it was the secretary who wrote
the memo; and that it was put together by everyone else” ($I$. Ihe &avor
did indicate:thatvhen she started her position~she did six, seven or
eight boxes of .work per day. When asked how many boxes she did’in March
of 1982, she replied two to three boxes per day. When asked directly
whether or uot Xs. Margvardt spoke to her about her production level,
she replied “Margwardt never told me my production was low ,.. she was
thinking of the sat&or clerk maybe, she was confused.” &en reminded that
Ms. Marguardt had indicated her production level was muchhigher. she
responded “I didn’t get anything mre either, eleven boxes a day or three
boxes, same pay, therefore not worth it to do.”
When asked once again whether or not Ms. Margwardt spoke’ to her about
production when it went dmm to three boxes per day, the grievor,with some
degree of emotion. stated “It doesn’t matter . ..~ I don’t know, I can’t
remember, skip it . . . I never made any changes, never ever, I never
changed it .” When asked whether or not Ms. Margwardt was lying. the
. .
- 23 -
griever responded “It’s just bullshit. They should not have written that
evaluation ;. It is stupid, too many people on the payroll . . . I did
enough, never got fired from any bloody place before, I had au injury
on my finger and couldn’t do more than two to three boxes a day.”
At this point it would also be appropriate to comment on the testimony
of the griever. It is obvious that the griever was deeply disturbed by
the action of the employer in releasing her. hit was obvious that she
was not able, at this point. to fully.accept that particular decision.
Bowever, her testimony with regard to ths discussions between herself
and Ms. Margwardt and what transpired at the meeting of February 9th with
Mr. Godfrey are obviously in direct conflict with the earlier testimony.
Even in making the nenessary allowance for the griever’s emotional state,
it is difficult to accept her version of the events, especially in view
of the fact that whkn questioned closely, she repeatedly indicated that
it did not matter and she could not remember.
It is now a settled jurisprudence that with regard to the relationship
of the provisions of the Crown Employees Collec,tive Bargaining Act and
the Public Service Act, that the bona fide release of an employee from --
employment made in good faith during the first year of his employment for
failure to meet the requirements of the position, cannot be considered
to be a dismissal and this Board accordingly would not have jurisdiction
to review the merits.
It would be useful to cite from the award of Chairman Adams in the
Leslie and Ministry of ‘Community & Social Services SO/77 at page 12 where
he states:
- 24 -
"IO restate our understanding of the relationship between
these two statutes (Crown Employees Collective Bargaining
Act and Public Service. Act), we are of the opinion that
the bona fide 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'CrowuEmployees
'Collective Bargaining Act. If this were not the case,
there would have been no reason for the legislative
draftsman to insert section 'X(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 bean made inthe Public Service:Act, it must
be concluded that the distinction was appreciated by
the draftsman of the.Qawn~E@oyees Collective
~Bargaining'Act. The two statutes are closely related
and, indeed, the'crown Employees Collective Bargaining
: Act makes a number of explicit references to the
~PubIic'Servici'Act. Accordingly, the absence of the
term vrelease" in section 17(2)(c) must be construed
and interpreted to be a signf,ficant and intentional
omission. Thus, it follows that the bona fides release
of a probationary employee 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 s. 17(2)(c). We observe that
this result is not contrary to any policy either
expressed in legislation or understood in the industrial
relations community. Indeed, the purpose of drafting
the statute in this way is~likely found in the reasoning
of Be Dnited Electrical Workers ~S'Square D Co. Ltd.;
(1956) 6 L.A.C. 289 at page 292, a viewpoint given the
explicit approval of the Supreme Court of Canada in
'Jacmain."
The chairman then goes on to note a'few qualifications.
II . . . the employer cannot camouflage'either discipline
&the terrdnation’hf an employee for a reason other than
employeets failure to meet the 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(5) of the'Public 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
adjudication of such a grievance, this Board is without
,.
:
..,. i:
-. i
I
; ‘L?,’
.
;,,i
I !
-:Z!
.” /
.I
~;I
1
‘..j
I
: : ; . .
/i
..I
- 25~ -
jurisdiction to evaluate and weigh the reasons 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 ss the Board can be satisfied that the employer has
made an evaluation of that kind, it has no jurisdiction
to review the fairness or correctness of that determination
under Section 17(2)(c) .‘I
On the facts there is no doubt that the griever was in the first year of
employment. It is also apparent that the employer purported to release
her from employment in accordance with section 22(S) of the public
Service Act. The issue, then, is whether the griever was in fact released
for failure to meet the requirements of her position or whether her employment
was terminated for some other reason, or ss sn act of discipline allowlng
her to grieve under section 17(2)(c) of the Crown Employees Collective
Bargaining Act.
4 summary of the griever’s job as set out in h,er
position specification and job allocation form .indicstes the nature-df her
job. 011 the basis of the evidence brought before the Board we are satisfied
that Mr. Godfrey, Manager, Vehicle snd.Licensing’Control, when apprised
of the difficulties of the griever’s performance in January and February
of 1982, snd with the report he had received from the griever’s immediate
supervisor, Ms. Msrgwardt. decided to confront the griever on February 9
with his evaluation of her job performance. There can be no doubt that \
at this time snd ss well 89 at the later dates of March 11. 1982 and
certainly in the meeting of February 9, the Manager hsd addressed his
mind to the question of the requirements of the griever’s position. Indeed,
Mr. Godfrey expressly states that he concludes that -the griever had failed
to meet the requirements of her position during the period of probation.
- 26 -
In keeping~with the now settled and well established jurisprudence, in
light of the above we have uo jurisdiction to go behind that decision
sod determine whether he was right or wrong. Boweirer, should we come to
the conclusion that the basis of his decision was disciplinary rather
than failure to meet the requirements of the position, we would then have
jurisdiction to determine whether or not there was cause in the circm-
s tsnces .
The evidence smply.establishes that the grievqr had difficulty in
sustaining the levelof production required in her position. There can
be little doubt that she had the potential to meet the requirements,
however in actual practice, her performance was below what was required. Further-
more, there csabe little. doubt that this matter was brought~to her attention by
her imnediste supervisor; Ms. Msrgwsrdt, on at least two or three occssious.
The griever experienced substantial difficulty in comprehending the
seriousness of the performance evaluations and the cements of her
supervlsor. Indeed, testimony indicates that the griever felt thst
her level of production mattered little and that “it was not worth
doing mre". Nor, ou the evidence before us, are we able to find that
the level of production that was established was not a reasonable one
or was set in an arbitrary fashioa. The griever's problems were compounded
by the fact tha& she founds a great deal of difffculty in remaining at
her work station. The Board csnuot be unmindful of the attitude which
has been displayed by the grlevor. She has shown herself incapable of
being guided or directed by her immediate supervisor and furthermore
characterized her performance evaluation as "bullshit". On the evidence
we find that the griever wse directed to the relevant requirements and
the level of production expected.
- 27 -
i_/
1,;.
_’ : e
/
.>,.I1
..’
,‘. :
It would be appropriate st this point to make some co+nt ou the
nature of additional facts which were raised in the course of this hearing.
Questions of the griever's punctuality, lack of proper notice regarding
sick lesve,'snd confusion over the flexi-time schedule were all rsieed
in the performance evaluations. Indeed, the question of the improper
documentation of srrivsl and departure times was also rsised in passing.,
In addition to .the verbal reprimsnds that hsve.been made by the immediate
supervisor, had the employer so choeen.othe? disciplinsty actions could
have been initisted. This was not the case and the inclusion of soma
of these issues with the overall performance evaluations could lead to.
confusion vith~regsrd to the focus of the msnsgement's actions. However,
the Board is satisfied that the'major focus of attention was the inability
of the griever to sustain the level of production whichwss expected and
agreed upon sad an obvious attitude which indicated that she was unlikely
.
to accept the kind of direction and guidance that had been offered in ,order
to ensure a proper level of performance.. On so exsminstion of the evidence,
it is clear that the griever's supervisors Vere not happy vith her performance,
certainly with regard to level of,output and care and precision in filing
of infomstion. This was a significaut problem. and was aggravated i&part
by her attitude. In the end result; in spite of her potential the griever
failed to sustsluthe level of performance required by her, position.
In this respect we adopt the'ressouing of Professor Roberts in his
award in the Bsrtello and Kin&try of Trsnsportstion and Comunicstious,~
61/82 where he states at pp. 13 and 14:
The~evidence indicstes that the only psrt played by the
griever's minor abuses in these areas was to indicate
that the griever's unsstisfsctory performance in
.’
- 28 -
becoming proficient . . . might have s$rung from an
attitudinal problem rather than from lack of natural
ability....
There is no doubt that the +ght to review a management decision of
this type is certainly severely curtsiledr Nonetheless, we are satisfied
with the reasonableness of the standards imposed by msimgement~?gsinst’
which the employee's,conduct Is to be measured. (Issbelle Leblam and
the Ministry of Consumer and Commercial Relations, 630/81 (Verity)).
Tlie'PubIic Service Act, however, does not restrict
relesse.to involuntary malfeasance such ss incompetence.
As was ssid.in Keam'supra. 'We emphasize the words
used in Leslie, 'attitude and cspscity', in coujuuction
with the' failure of the griever to meet the requirements
[of] her position. .., ~The word.!fsilure' ss used in
s:22(5) of the'Public'Service'Act encompasses both
voluntary and~involuntsry deficiencies such as attitude
and capacity. If the legislature had desired to exclude
acts of voluntary malfeasance from forming the basis of
a 'release' it surely would have used a word like 'loability
or 'incapacity' rather than the word 'failure'. It seems
to us that failure to meet in an acceptable way the job
requirements for s particular position can form the basis
for release whether or not the griever might have been
able to correct his or her attitude or behsviour.
We would certainly not quarrel with the couclusiou that "the conduct complained
'of reasonably suppor.ts the coaclusion that the probationary employee is
likely to p;ove uusuitsble.
We find that the griever was released from her employment for failure
to meet the requirements of her position. Accordingly for all of the foregoing
reasons we would dismiss this grievanc
DATED AT Windsor, Ontario
this 10th day of February,
1983.
2: 1100 "I dissent" (see.attachedY
s. schschter, nemkr
DISSENT
I have read the decision of the Chairperson and I feel obliged to
dissent from the award. The majority decision sets out the facts of the case in
great detail and in which 1 have no significant disagreement. It should be clear
that the reason she was let go was that her production was below the standard
established by the employer. That standard was not in dispute. The crucial
question is why the standard was not met.
’
The majority ‘award on page 26 states that the level of production
was aggravated in part by the griever’s attitude. Respectfully, this is a major
understatement. The evidence clearly indicated that the grievor was capable of
producing more than twice the standard. The grievor testified she deliberately
‘reduced her production because of her attitude towards the employer. Thus her
attitude was the.full “problem” and not just a~ partial aggravation.
The Chairperson concludes that the griever’s deliberate conduct’
constitutk a failure to meet the requirements of the position for which the
Deputy Minister legitimately released her. Surely section 22(5) of The Public
Service Act does not require the employee to be perfect and without failures
during the entire probationary period. Otherwise the right of the employee on
probation to challenge a disciplinary discharge under section 18(2)(c) of The
Crown Employees Collective Bargaining Act becomes meaningless.
i ’
,
i
-2-
Contrary to the Chairperson, I conclude that from management’s
own testimony the grievor met the requirements of the position by producing
more than four flats a day when she chose to. I conclilde there is no requirement
on the grievor to fulfill all the requirements of her position everyday in order to
avoid the sanction under section 22(5) of The Public Service Act. Furthermore
while I agree that the ‘griever had substantial difficulty comprehending the
serioushess of her performance evaluations I disagree with the Board’s finding
that the grievor was incapable of being directed by her supervisor. Her earlier
three months positive appraisal and the lack of evidence about any problems with
the griever’s work while she was on special assignment disprove this contention.
The Board concedes that certain issues of concern to the Employer
could be considered disciplinable in nature. The Board accepts that verbal
reprimands were issued and that the employer could have chosen to engage in
follow up disciplinary action. I must emphasize that disciplinary sanctions would
only have been justified if they are issued in relation to misconduct. By
recognizing that the employer could have legitimately responded with discipline
the Board is conceding that the griever’s actions were properly categorized as
misconduct. Therefore I would have found that section 18(2)(c) of The Crown
Employees Collective Bargaining Act was applicable and that the employer had
to show just cause for termination. Even if there is some doubt on the issue of
the disciplinary nature of the employer’s action and therefore the applicability of
section 18(2)(c) of The Crown Employees Collective Bargaining Act that doubt
must be resolved in favour of the employee. Certainly the mere categorization
by the employer of its actions are not conclusive and where the employer has an
-3-
apparent choice of routes to follow, it should not be able”to choose the route
that defeats the procedural and substantive rights of the employee.
Having found that the employee was disciplined and’placed the onus
on the employer to establish just cause I would have concluded that the employer
did not meet. that onus. While the grievor engaged in clear insubordination ~that
conduct was provoked by representatives of the .employer in not sufficiently
explaining to the grievor the circumstances of the planned move to Kingston and
its effects on the grievor. Furthermore while being aware of the griever’s lack
of appreciation of the rigidity of the pay’ rate in relation to superior productivity
the employer s~tood by and did nothing thus permitting the grievor to engage in
insubordination. The, employer’s representatives could have arranged a meeting
between the grievor and her union representative so that this matter could have
been clarified without insubordination.
My decision therefore would have been to modify the penalty by
reinstating the grievor with compensation.
/lb