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HomeMy WebLinkAbout1982-0443.Clarke.83-03-07Between: OPSEU (Peter Clarke) Before: 443182 A.. IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD and Crievor The Crown in Right of Ontario (Ministry of Correctional Services) Employer K.P. Swan F.D. Collom P. camp Vice. Chairman Member Member For the Griever: A. Ryder, Q.C., Counsel Cameron, Brewin EC Scott For the Employer: J.F. Benedict, Manager Staff Relations, Human Resources Management Ministry of Correctional Services Hearing: Novernber~ 4, 1982 -2- This hearing, which involves the release of a probationary employee on July 16, 1982, raises once again the question of the jurisdiction of thls Board in a case involving a release which the Employer alleges was for unsuitability and general incapacit‘y’ to perform eat a sufficiently high level the functions of the job, and the Union alleges was instead disciplinary in nature. No issue of the standard of arbitral review of the discipline..of probationary employees arises in this case, as it has in some others, because the Employer does not seek to justify the release on the alternative grounds that it resulted from conduct which could support a disciplinary discharge. The Board’s jurisdiction has been developed in a number of cases, including Leslie, 80/77, Haladay, 94/78, Tucker, 206/78, Pecoskie, 95/80, Atkin, 323/80,Turcotte, 344/80, Keane, 596/81, and Walton, 612/81 and 613181. While the test has been differently expressed from Casey. to case, we think that in essence the question before, us is whether the Employer reasonably and in good faith exercised the authority in Section 22(5) of the Public Service Act to release the employee on probation, and did.not.%eek merely to cloak a disciplinary discharge behind the release procedure. In essence, this is a question of fact, and therefore depends upon all of the circumstances of the case. We turn, therefore, to the evidence and exhibits presented to us to assess whether the Employer’s actions meet the test which we have just set out. The Griever, Peter Clarke, originally came from Napanee, Ontario, where he began working -3- for the Ministry of Correctional Services as an unclassified casual Correctional Officer I on October 15, 1980. On April 27, 1981, at least partly based upon a good recommendation from his supervisors, he embarked on a 16-week period of full time employment under t,he Ontario. _;. Career Action Program at Quinte Detention Centre in conjunction with Loyalist College of Applied Arts and Technology. During this period he successfully applied for a vacancy on the classified staff at Metro Toronto East Detention Centre. ~. He moved to Toronto and began his employment at Metro Toronto East on August 10, 1981. Appraisals ,were completed on his performance monthly, and until the end of 1981 they indicated that he was above average and progressing well in this probation. On the appraisal completed for January, 1982, the first one to be completed by Mr. R.J. Meloche who became the Griever’s supervisor at about that time, criticisms began to appear of his performance. On the January appraisal it was suggested that he sometimes found it difficult to communicate with inmates and that he required to review his ,standing ; orders and procedures. On the February appraisal, he wasdescribed as “just getting by” with the inmates, inattentive to security matters and .’ apparently losing interest in his work (Exhibit 4). On the other hand, during the same period he was undergoing training at the Staff Training and Development Centre in Brampton, and his progress was indicated to be satisfactory atab times (Exhibit 6). -lb- On March 15, 1982, the Superintendent of the institution, Mr. A.J. Dunbar and his Senior Assistant Superintendent, Mr. McKerrell,.who had known the Crievor at Quinte Detention Centre and had some interest in him, met with the Griever to discuss his progress. On that occasion, certain incidents of less than adequate performance were raised and discussed with the Griever, and concern was exp&sed that it seemid something was bothering him and this was having some effect on his performance. At that time, the Griever indicated that he found life in Toronto lonely and unsettling, and that he found the pressures of a metropolitan detention centre, with its more demandi,ng inmate population, not what he had expected. He indicated the desire to return to Napanee where he would be close to his famiiy. and friends. Later in the day, apparently on the advice of Mr. McKerrell, the Griever actually applied in writing for a transfer to Quinte Detention Centre, but it appears that nothing came of this application (Exhibit 5). The following day, Mr. Dunbar wrote to the Griever (Exhibit 3) and indicated his. concern about the Grievpr’s attitude and his doubts ~that the Griever would survive his probationary year. At the end of that month, the Griever’s appraisal indicated some improvement in areas of inmate control, but once again suggested that the Griever’s unhappiness and lack of interest were affecting his motivation, security consciousness, and general job performance. . -5- The appraisal for April, 1982 is very much to the same point, and indicates that there had been no apparent improvement 3n his work performance to that date. The conclusion on that appraisal is “This officer has the ability but not the desire or interest. Recommend a new profession:’ The appraisal for May, 1982 reiterates similar criticisms and comes once again to a similar conclusion (Exhibit 4). On June 29, 1982 along with the representative of the Union, _.. the Griever met once again with LMr. Dunbar to discuss his progress. Based on the appraisals and the apparent lack of any real improvement since the IMarch 15 meeting, and following discussion among those present, Mr. Dunbar ~‘came to the conclusion that the Grievor should be released from employm~ent. That release’was to be effective July 16, 1982. It is .‘L.. from that action that the Griever now seeks redress. The Union’s case is based on the evidence of the Griever, and on certain admissions extracted on cross-examination from Mr. Dunbar and Mr. Meloche. The admissions were largely to the effect that the Griever had been involved in particular incidents on a number of occasions which might, had they involved an officer who had completed his or her probationary period, have resulted in some disciplinary~action being taken, possibly in the nature of the administration of a caution or a counselling. There is no real need to go into the details of these incidents; each of them involved some momentary departure from the accepted procedures, and caused some risks to security, to the Griever himself or to fellow -6- Correctional Officers for a brief period of time. None of them produced any disastrous results, nor did any of them represent anything more than forgetfulness or a momentary inadvertence on the Griever’s part. The Crievor’s evidence ‘corroborates the Employer’s position that he did not enjoys life in the big city or work at Metro Toronto East, but he denied that this in any way affected his performance or that he lost any of his drive or ambition to pursue a career as a Correctional Officer. He described the incidents on which his conduct was alleged to have created difficulties differently from the way in which the Employer’s witnesses described them, and indicated that he was at worst a victim of difficult circumstances on those occasions. He also suggested that his request to leave Toronto and to transfer to the Quinte Detention Centre again was not based on his having received -poor appraisals from Mr. Meloche, nor even on his interview with Mr. Dunbar. He says, and Exhibit 4 confirms, that he did not even see Mr. Meloche’s appraisals for January, February and March until April 16, 1982, and that he therefore had no warning at the time of his interview with Mr. Dunbar that his conduct was considered to be worthy of concern. On this state of the evidence, the Unibn argues that the Employer’s action in releasing the Griever must have been based upon a series of incidents which could only be described as disciplinary. Upon considering all the evidence, we think that we must disagree with that characterization of what occurred. Based on all the material before us, -7- we would be surprised that any of the events described could really be called disciplinary in nature. In all of ,the cases, it appears that the Grievor simply attracted his Employer’s attention to the fact that something which he had done could have been attended with dangerous- consequences, and could have been done differently and more safely. None of the events in which he was involved could be called “culpable”; there were simply occasions on which, in the view of his supervisors, he required to be advised of the proper or a better way of carrying out his duties. Having made ..Ithat finding, we have effectively precluded . ourselves from having any jurisdiction to deal with this matter whatsoever. There were factors which caused us some concern, in particular the fact that Mr. Meloche appeared to take a considerably different view of the Griever from his previous supervisor and from .‘those persons who instructed the Griever at the Staff Training and Development Centre. Nevertheless, it was Mr. Meloche’s evidence that he based his appraisals not only on his own observations but also on those of the Griever’s other supervisors, since Mr. Meloche was not in contact withy the Griever at work on a regular basis. Similarly, it was a matter of some concern to us that the Griever did not see his appraisals for January, February and March, 1982 until April 16, 1982; Mr. Meloche explains this time lapse on the basis of his lack’of direct contact with the Griever at work. Nevertheless, these matters are not before us, and there is no requirement for the Employer to convince us that our concerns were -8- exaggerated. The Employer’s only responsibility is to satisfy us that it acted reasonably and in good faith in releasing the Griever on the basis of his performance of his job and his attitude to his work. As we have already indicated, given that there is simply no evidence on which to conclude that the Griever was dealt with in a disciplinary fashion, we do not have any jurisdiction to pursue this matter further. The grievance is therefore denied. DATED at Toronto, Ontario this 7th day of March, i983. K.P. Swan Vice Chairman P. Camp Member