Loading...
HomeMy WebLinkAbout1982-0429.Nicholls.82-12-29Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOP.R3 Between: Before: For the Grievor: For the Employer: Hearing: November 1, 1982 OPSEU (Bradley J. Nicholls) Griever - And - The Crown in Right of Ontario (Ministry of Health) Employer J. F. W. Weatherill T. Traves E. R. O'Kelly Chairman Member Member G. Richards Grievance Officer Ontario Public Service Employees Union M. V. Quick Counsel Legal Branch Ministry of Health -2- DECISION In this grievance, dated September 8, 1982, the grievor alleges that he was unjustly dismissed. The employer's position is that the grievor was released pursuant to section 22 of The Public Service Act, during his period of probation. If the employer's position is correct, then this Board would have no jurisdiction in the matter. A probationary employee who is dismissed or released is not entitled to file a grievance: article 27.6.1 of the collective agreement. Three principal arguments were put forward on behalf of the grievor. First, it was contended that the grievor had in fact completed his probationary period. Second, it was sa,id that, if still on probation, he had not "failed to meet the requirements of his position" and so could notproperly be released. Third, it was argued that what occurred was a form of discipline for which 'there was not just cause, and that a lesser penalty should be substituted for that which was imposed. We shall deal with these arguments in turn-. The first point is, as will appear, the crucial one. Was the grievor a probationary employee at the time of the termination of his employment or not? There is no dispute as to the facts. The grievor was first hired by . . , -3- the employer for full time work on May 6, 1981. His appointment was to the Unclassified Service. His work .was that of Ambulance Driver. He was appointed to the Classified Service, as an Ambulance Officer 2, on November 30, 1981. There was no break in his service, but it is clear that a new employment status was entered when the grievor was appointed to the Classified Service (see, in this regard, Johnston, 292/79). It was then that the grievor became a civil servant, and entitled to benefits under the collective agreement beyond those set : out in article 3 thereof. (While article 27 - grievance procedure - is made applicable to employees who are not civil servants by article 3 itself, article 27 contains the above-noted prohibition on grievances by probationary employees). The grievor's appointment to the Classified Service was effective November 30, 1981. He was advised of that appointment by letter dated November 20 of that year. In that letter, the grievor was advised that his appointment was "probationary for a period of one year". This of course was consistent with section 22(5) of The Public Service Act, which provides that a deputy minister "may release from employment any public servant during the first year of his employment". It was not suggested that any objection was taken to the grievor's appointment being probationary~for one year. - 4- The union relies heavily on article 25.1 of the collective agreement, which provides as follows: 25.1 An employee's length of continuous service will accumulate upon completion of a pro- bationary period of not more than one (1) year and shall commence from: (a) the date of appointment to the Classi- fied Service for those employees with no prior service in the Ontario Public Service; or (b) the date on which an employee commences a period of unbroken, full-time service in the public service, immediately prior to appointment to the Classified Service. "Unbroken service" is that which is not interrupted by separation from the public service; and efull-time" is continuous employment as set out in the hours of work schedules for the appropriate classifications. The effect of that article in the instant case would be that on completion of his probationary period, the grievor's "continuous service" would be taken as having begun on May 6, 1981. For that effect to occur, however, the grievor would have had to have completed his probationary period. While article 25.1 puts a limit (one year) on the length of probationary periods, it does not otherwise define them. Article 3.12 does contemplate that, in setting a probationary period, con- tinuous service prior to appointment to the Classified Service may (up to a limit of six months), be taken into account. Thus: -5- 3.12 Where an employee is appointed to the Classi- fied Service and has worked more than twenty- four (24) hours per week on a continuous basis immediately prior to appointment to the Classi- fied Service, the time he actually worked within the previous year may be considered to be part of his probationary period to a maximum of six (6) months. While it may be that the time previously worked by the grievor could have been considered part of his probationary period, the fact is that it was not, and no timely objection appears to have been raised in that regard. It is not for this Board retroactively to alter that state of affairs, of which the grievor was aware. In the instant case, then, the griever's probationary period had not ended at the time of his release. The first argument therefore fails. The second argument is that, if he was still on probation (and we have found that he was), the grievor had not "failed to meet the requirements of his position". It is, with respect, for. the employer to make such determination, under The Public Service Act. It is not a question with respect to which this Board has juris- diction. While we would have to exercise a preliminary jurisdiction with respect to the characteriztion of the action taken, it is clear that what occurred in the instant case was a release on probation. The grievor's licence to operate a motor vehicle had been suspended, .:, -6- and the operation of a motor vehicle was an essential part of the duties of his position. In these circum- ~.'.stances , it would be our view that it was open to the employer to take the course it did. The, second argu- ment, therefore, must also fail. The third argument is', we think, contingent on the success of one or the other of the first two. As we have found, the grievor was released while still a probationary employee. In our view, what occurred was an exercise of the power to release, and not a disciplinary measure. In any event, the collective agreement does not alloti the filing of grievances in respect of the dismissal of probationary employees (article 27.6.1), and this Board has no jurisdiction to alter, change, amend or enlarge any provision of the collective agreement (article 27.12). Accordingly, the third argument must also fail. For all of the foregoing reasons, it is our conclusion that the grievance is not arbitrable, and that this Board has no jurisdiction in this matter. The grievance is accordingly dismissed. DATED AT TORONTO, this 29th day of December, 1982. 7: 3560 . 2: 1100 Ii1 “&issent,, (see attacheh) m m.--ryr,Tr M^".h,." . :. G. S. B. #429/82 ‘ - 7 - DISSENT Nicholls/Ministry of Health I must dissent from the majority view in this case. While I With respect, concur with the finding that Mr. Nicholls was still a probationary employee, I accept the Union argument that he was dismissed and not released, as the majority find. Mr. Nicholls was judged on two occasions prior to his dismissal to be a competent employee by the IYinistry. The first appraisal came, implicitly, when he was transferred from the unclassified service to the classified service on 30 November 1981 after working for nearly seven months as an ambulance driver. Subsequently, he received a positive appraisal of his performance on 29 January 1982. There is no evidence to suggest that he would have been released from his position but for the temporary suspension of his driver's license and the employer made no claim otherwise. The sole reason he was released was that he would not have a valid and subsisting drivers' license for three months and therefore he could no longer meet the requirements of his position, albeit only temporarily. The issue of whether 1Mr. Nicholls was released or dismissed turns on our understanding of whether he was able tq.meet the requirements of his position. The clearest presentation of this problem is to be found in Keane (596/81: Under La, the question whether a probationer was "released" or "dismissed", and hence whether the probationer can grieve his termi- nation, depends upon whether he or she was terminated for failure to meet the requirements of his or her position. The definition of what compromises "the requirements of the probationer's position" must, therefore, be treated as cruciai. Upon this definition rests the interest of the Employer in being able to weed out unsatisfactory probationers . without confronting the possibility of a full-blown and expensive process of grievance and arbitration. On the other side of the coin is the probationer's interest in being heard on a matter as important as the loss of his economic livelihood. When we balance these interests--as the drafters of the legislation must have when they drafted the relevant provision of the Public Service Act--we conclude that the drafters must have intended the expression "requirements of his /or hex? position" primarily to mean job requirements such as those which are set forth 'in the descriptions the government generates for positions in the.public service (which usually are referred to at great length in the context of classification grievances) g. lo-11 My difference Qith the majority in this grievance turns on the relative weight assigned to the temporary nature of Mr. Nicholls license suspension. My reasoning in this matter proceeds by analogy. If the griever had been sick for a week or _. two with a non-recurring illness he would not have been released. If he had been , . Nicholls/Ministry of Health December lSth, 1982 - 8 - ill for a longer period, doubtless the Ministry would have made inquiries after his long term prognosis, and if it was clear that his medical problems were non-recurring and that his absence was to be of a limited duration, previous findings by this Board (Richardson 517/81 and Temple 12/76) suggest that they would iiot have grounds for release due to a temporary inability to perform. In this'case Mr. Nicholls was not sick; he lost his license due to an alcohol related offense while he waS off duty. His inability to meet the requirements of his position was temporary. In the longer term his capacity to fulfill all of his job functions was in no way diminished and based on his previous performance appraisals there is evidence to suggest that he would be a competent employee. This after all is the point of the probaticzary period, to judge such matters, and this too is the employer's long-term interest in the matter. It should be pointed out that in other cases where permanent employees have had their licenses temporarily suspended they have not been dismissed. This practice demonstrates the employers true long-term interest in such caSes. Under these circumstances then I must conclude that the qrievor was not properly released but rather was dismissed. Although it is not central to their finding since the majority in this c&Se agree that the griever was properly,Yreleased, they also conclude that probationary employees cannot grieve dismissal in any event under Article 27.6.1. In my reasoning this point takes on greater significance and once again I must dissent from the majority. My position is founded on Section 18.2~ of the Crown Employees Collective Bargaining Act which gives all employees the right to grieve dismissal without just cause, a right which has been found to be in addition to any procedure found in the Collective Agreement, and which, of course, takes precedence over any limitations imposed by such an agreement. (Keeling, 45/78, upheld in Divisional Court 14 April 1980; and Barnard, 327/82). On these grounds then, I would find that Mr. Nicholls was dismissed and that he had the right to grieve against his dismissal as without just cause. On the main issue in my reasoning, dismissal without just cause, I would find that the qrievor was disciplined excessively given his positive performance appraisal and his clear work record. That is not to say, however, that the temporary suspension of his license for driving while off duty with a blood alcohol level above -08 is not a very serious matter. This Board did not hear extended arguments about alternative forms of discipline given the employer's contention that Mr. Nicholls was properly released, but it was mentioned that other options were available /9 . , i. - 9 - such as suspension, lay off if no other work was available, or leave of absence without pay. I would have favoured some such option, but given the majority award it is pointless now to disctiss the merits of these various possibilities. T. Traves, Member