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HomeMy WebLinkAbout1983-0295.Lebert.83-12-27IN THE IlATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINIIqG ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: .OPSEU (Kirk Lebert) Griever - And - The Crown in Right of Ontario (Ministry of Correctional Services) Employer R.J. Roberts M., Gandall H. Roberts Vice Chairman Member Member For the Griever: E.J. Shilton Lennon, Counsel Cavalluzzo: Hayes 8: Lennon For the Employer: J.F. Benedict Manager, Staff Relations Ministry of Correctional Services Hearings: July 8, 1983 September 20, 1963 November 22, 1983 ! ! :2 - 2 - ‘i , DECISION -- This is another one of those "release" versus "dismissal" cases which have bedevilled this Board for so long. In each, the ;Jnion takes the basic position that a termination is a reviewable "dismissal" when based upon acts of voluntary malfeasance, because that is the"hallmark"ofdiscipline. The employer virtually always takes the position that the !I termination is a non-reviewable "release" because there was a bona fide intent to release and not to discipline. __-- Tn our view, a termination qualifies asa "release"when the evidence discloses that the employer based the termination : upon a general view that the griever's attitude and/or capacity fell short of the level required for satisfactory performance of his or her duties and responsibilities. For reasons which follow, we conclude that what occurred in this case was a "release" of the grievor, and hence we must decline jurisdiction of the merits. Prior to his termination the grievor was a probationary Correctional Officer at the Windsor Jail. The Windsor Jail is a maximum security facility housing'three types of prisoners: remand prisoners returning daily to court; prisoners who have been sentenced and are awaiting transfer to the appropriate institution; and, prisoners with jail terms of 90 days or less. The population of the jail includes Persons who have committed the full range of i ‘,. ^ >.:. i;. ,.t : -3- il criminal offences from murder, rape, robbery, etc., down to minor breaches of the criminal law. At .the outset of his employment the grievor performed his duties and responsibilities well; however, the picture began to change in November, 1982, which was about six months into his probationary period. On November.24, 1982, his then supervisor, Mr. R. Neufeld, wrote the following memorandum to the,Deputy Superintendent of the Jail, Mr. J. Ross: Sir, I have a growing concern with Mr. Lebert. He is not panning out to be a good correctional officer. He seems to have no interest in his work and he is just putting in time. He has been with us for only 9~ months and already has used 9 sick days. The only tine he really seems happy in here is when he is a spare. Other sergeants have said that he constantly complains when he is placed somewhere where he doesn't want to be. His log books are never properly completed.* He also has problems dealing with inmates. His cooperation with fellow officers is barely satisfactory at times. My personal feeling is that we may have a problem with this officer if he gets his probationary period in. unless his attitude and performance drastically changes. (EXHIDIT 10) Respectfully, R. Neufeld OM14 Mr. Neufeld testified that he wrote this memorandum when the grievor failed to improve after receiving a poor performance appraisal in mid-November. *At the hearing, Mr. Neufeld testified that the words "are never properly completed" more accurately should have been "seldom are properly completed." -4- Mr. Ross essentially testified that when he received this .emorandun he was not surprised. He stated that it appeared to confirm some of his own personal observations of the deterioration in the performance of the gricvor. On Iiovember~ 30, Mr. Ross met with the grievor and discussed the memorandum in detail. Re said, "We discussed [the grievorLsl sick time, interest and initiative in his work. He had 9 days sick at th,is time. !ie discussed the fact that [the griever] seemed unhappy in the institution. . . . We discussed adverse statements that other sergeants had made about him. He said he felt that he was being placed on the first floor more than other officers, got the 'shit' jobs, and was being dumped on. I told him that he would have to be his own person and do the jobs that were delegated to him, that he had to improve," In the following months, the grievor did not demonstrate to his supervisors any signs of improvement. His appraisals continued to be poor. On February 17, 1983, Mr. Ross made out an annual appraisal report for the grievor which recommended that he not be appointed to regular staff. This report read, in pertinent part, as follows: 1 . Sick days used March 2! 1982 to February 9th, 1983 9 mu. - - Mr. Lebert began his employment in the Ministry on a : positive note, After he was here a few months he decided that he would like to pick and choose the areas of the institution where ho would like to work. -5- He 'began ,to complain verbally to staff, shift supervisors, and myself about things he had no control over or did not know anything about, i.e. He 'felt that certain inmates were receiving preferential treatment. He developed an attitude whereby he would pick on certain inmates unnecessarily. He felt that mis- ccnducts. were not being adjudicated properly. His lc,g book'entries have been poor with no improve- ment being shown, He does not know what to do when an inmate is given an order and does not comply. He ishesitant in taking action against inmates and cannot handle confrontation. He becomes very excited and loses his sense of judgment. On November 3~0th, 1982 I brought these areas to light during an interview with Mr. Lebert (report on personal file)~. No improvement in these areas mentioned has beennoted. Mr. Lebert's attendance has not been up to standard. He has used a total of 9~ days since b~eginning employment. He was disciplined and received a 5 day suspension without pay for taking part in an illegal work stoppage last September. In my opinion he is not conducive to a Correctional setting and does not meet the requirements of the Correctional Officer position. Not recommended for appointment to regular staff. (EXHIBIT 4) Report made by ."~Janes~ Ross" Position' ~"Deputy~ 'Superintendent" In consultation.. with IShift Sup'ervisors" Date IFebruary', 1'7'/19'83 This report went to the Superintendent of the jail, Mr. V. Villeneuve. -6- , On February 21, Mr. Villencuve called the grievor into his office. He testified that he did so because he had drafted a letter releasing the gricvor and wanted to discuss the reasons with him. The letter reads as follows: PKIVATE b CONFIDENTIAI. Mr. K. Lebert, Correctional Officer 1. Windsor Jail. February 21, 1983. Dear Mr. Lebert: I have just completed a comprehensive review of your em?loyment history with this ;.linistry which commenced on March 2nd, 1982. I note that your apprilisals from October 1982 indicate that you are lacking initiative in the performance of your duties as well ao experiencing difficulty in dealing directly with inmates and completing log books p’rOperly. Your attendance reflects J. total of nine days sickness which I consider excessive for a probationary employee in a maximum security environment. The matters of your deficient job performance have been brought to your attention on several occilsions and in fact you Here personally counselled on November 30th, 1982 by Mr. J. Ross, Deputy Superintendent, Windsor Jail. A satisfactory improvement in these areas has not been made. After much deliberation and dialogue with your immediate supervisor, I feel that you are not satisfactorily fulfilling the requirements of your position at this Institution. I have as a result decided to release you from employment in accordance with Section 22(5) of the Public Service Act. Your release is effective immediately and you will receive two weeks salary in lieu of notice. YOU are also~ reminded that on com7lencing employment you were issued cectain articles Which are the property of the Ministry of Correctional Services and should be returned to Nr. R. Camphorst, Security Officer. Yours truly, MVV/kh (EXHIBIT 6) M.V.Vil~lcncuvc, Superintendent, Windsor Jail. -7- This letter never was officially given to the qrievor. a It seems that at themeeting he decided that he would resign. Later; however, the griever notified Mr. Villeneuve that he Was rescinding his resignation. Mr. Villeneuve thereupon issued the following letters of release: P&ATEANDaNPID&TAL February 24, 1983. Nr' Kirks Iebert, ,111O Marentette Ave., Windsor, Ontario. N94 2A5 Dear Mr. I.ebqt: I am in receipt of your letter dated February 22nd, 1983, serving notice that you rescind your letter of resignation dated February 21st, 1983. You state in your letter that you were forced to resign under duress. I wish to advise.you.thatatno time during our meeting was forceable restraint or cunpulsions by threat made against you and your resignation was of voluntary nature. YOU sutmitted your resignation sothat you would not be released from employment within-your probationary year, an action which you were advised by myself was going to cccuK. As a result of being informed of my intended actions you felt that it would be inyoUr best interest for future employment references that you would resign frcxn employment. In keeping with your request I agree to allow you to,withdraw your resignation, I have recently completed a canprehensive review of youremploymenthisto~ with this ministrywhichccsmrenced on March 2nd, 1982, whichwas discussed with you in detail at our meetinq on February 21st, 1983. '~ I note thatyour appraisals frcm October 1982 indicate that you are lacki& initiative in the performance of your duties as well as experiencing difficulty in dealing directly ~wit.k Inmates and completing log !xoks properly. Your attendance reflects a total of nine days sickness which I consider excessive for a probationary employee in a maxti security environment. I - 8 - The matters of your deficient job porformsnce have been broqhttoyour attention on several occasions and in fact you ware personally counselled on No&r 3Oth, 1982 by Mr. J. Ross, Deputy Superintendent, Windsor Jail. A satisfactory iqrovement in these areas has not been made. After much deliberation and dialogue with your immxliate sqervisors I feel that you are not satisfactorily fulfilling the requirenrnts of your position at this institution, I have as a result decided to release you fron employment in accordance with Section 22(5) of the Public Service Act. Your release is effective imnediately and you receive one weeks salary in lieu of notice. YOUZS truly, WJV/kh cc. T. McCarron E. Anthony File M.V. Villenewe, Sqxrintendent, 'Windsor Jail, (I;XifICI?' 3) Upon receipt of this letter the grievor filed the grievance leading to the present proceeding. At the hearing, the Union focused upon the discipline of the grievor that was mentioned in the annual appraisal report which had been prepared hy Mr. ROSS and which was quoted earlier in this Award. The report stated, "[The gri,svor,l was disciplined and received a five day suspension without pay for taking part in an illegal work stoppage last September.!' It seems that on September 21, 1982, there was a demonstration ! in Toronto which was organized by the Union. On the same day, the Jail suffered a severe attack of "blue flu". Accordinq to the evidence of Mr. Neufeld, not one Correctional ,‘,. -9- Officerwhowas scheduledtoworkthat day reported for duty. The grievor was among them. On January 10, 1983; Mr. Villeneuve imposed upon the grievorand the others a five day suspension for participating in a concerted withdrawal of services, Then grievor served this five day suspension in February, 1983, shortly before he was released. It was the position of the Union that because the decision to terminate was made within a few,days of the.grievor's return after serving the suspension, it was discipline and not release which must have beqn uppermost in the minds of Messrs. Villeneuve and Ross. We are not able to accept this position. The evidence tends to indicate that Mr. Villeneuve could not have been in a vindictive frame of mind when he decided to terminate the griever. He testified on cross-examination that he granted the grievor five days of vacation leave to take r‘n addition to his five day suspension so that he could go on a trip with. his wife~. Further, Mr. Villeneuve testified, he granted these vacation days to the griever even though the latter was not entitled to vacation prior to the expiration of his one year term of probation. These hardly seem to be then actions of ,a manager bent upon imposing some further form of discipline, This, of course, does not end the matter. If it did, it would be tantamount to accepting the traditional position . . . . . I :. - 10 - of the Employer that a termination qualifies as a release so long as no disciplinary intent was involved. It is our understanding that this never has been the position of the Grievance Settlement Board. Our position was best summarized in Re Leslie~ and Ministry of Community and Services /August 15, 1978), G.S.B. 80/77 (Adams), when the majority concluded that "the bona fide 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 . . . . The Board must only be satisfied.that the Employer, in good faith, released the employee for failure to meet the requirements of his position. As long as 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 S.17(2) (cl [of the Crown EmplOyeeS Collective Bargaining Act]." Id. at 13. - There is little doubt that this test is more easy to state than apply. We are left to determine for ourselves what evidence demonstrates that the Employer, in good faith, terminated a probationary emplcyee "for failure to meet the requirements of his position." Our best assessment is that it is evidence showing that the Employer based the termination, upon a general view that the griever's attitude and/or capacity fell short of the level required for satisfactory performance of his duties and responsibilites. And we ! I’ - 11 - emphasize the words, "general.view". It seems to us that a much stronger inference of discipline might arise where there is a definite cause-and-effect relationship between a specific incident and the decision to terminate. 2, e.g., ,~. ~~ Re Keane and Min'istry of, Consumer 'a,nd Commercial Relations (March 18, 19821, at 19. It must be added, however, that such an inference would not be cohclusive. In the present case, there appears to be no doubt that the Employer based the termination of the qrievor upon a general view that his,attitude fell short of the level required~for satisfactory performance of the duties and res~ponsibilities of a Correctional Officer. Over a considerable period of time the qrievor's supervisors observed a progressive deterioration in the griever's attitude. Despite efforts to counsel the grievbr to improve, the deterioration was neither arrested nor reversed. The qrievor's -attitude continued to fall short of the level required for satisfactory performance of his duties. It was upon these general observations that the Employer acted to terminate the grievor. In these circumstances; the termination constituted a bona fide release. -- It is not reviewable by this Board. The grievance is dismissed. Dpted at London, . Ontario - 12 this 27th day December,. 1983. H.J. Roberts Vice Chalrmall II “I disscr:r” , fluj;hot~t written reation) --- ---- A;. Gandall hlenb e r H. Roberts Member