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HomeMy WebLinkAbout1983-0557.Blackshaw.83-12-20Between: Before: IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD For the Grievor: For the Employer: Hearing: OPSEU (Duncan Blackshaw) Grievor - And - The Crown in Right of Ontario (Ministry of Government Services) Employer R.L. Verity, Q.C. Vice Chairman I. Thomson Member D.B. Middleton Member A. Ryder, Counsel Gowling S: Henderson P. Van Horne Manager, Staff Relations Ministry of Government Services November 8, 1903 - 2 - DECISION In a Grievance dated July 29th, 1983, Duncan Blackshaw alleges "unjust dismissal". The Grievor was a probationary employee hired September 7, 1982. His employment was terminated during the probationary period in July, 1983. In a letter to the Grievor dated July 26, 1983, Deputy Minister Allan Gordon purported to release the Grievor "for failure to meet to Section 22(5) of the Pub1 In essence, the M nistry argued that the Board lacked the requirements of his position" pursuant c Serv'ice Act of Ontario. jurisdiction to determine the matter on the basis of the "release". The Union contended that the Grievor did meet the performance require- ments of the position and that the Grievor's termination was disciplinary in nature. No useful purpose can be served to repeat the very able arguments of the Parties. The Grievor is 52 years of age and received his training in Scotland as a Marine Plumber. He was hired by the Ministry on probation- ary status as a Maintenance Mechanic 3 in September, 1982. The position involved mechanic's work on shift basis at the Queen's Park complex in Toronto. The position entailed attending to all necessary maintenance repair work to the heating, air conditioning, hydro and sewage facilities lding, the north and south Frost . Joseph's College, Surrey Place. iew (a three month appraisal) was in the main Ontario Legislative Bui Buildings, Whitney Building, and St The Grievor's first oerformance rev dated January 6, 1983 (Exhibit 5). performance by the Gr ,ievor. This review demonstrated satisfactory - 3 - The first problem in the Grievor's performance occurred on January 18, 1983 following a boiler emergency at the Whitney Building. Operations Supervisor, Walter Langkamm testified that the Grievor was asked to perform overtime on that occasion and agreed to do so. The Grievor was then assigned a relatively minor task, but left work shortly thereafter during the course of the emergency. In his testimony, the Grievor admitted that he had made a mistake by leaving the job, but explained that he had been frustrated by the trivial nature of ~the assignment. On February 18, t he Grievor was requested to report for work for the midnight shift for an overtime assignment. The Grievor was then on a scheduled day off, refused the assignment alleging that he had made other arrangements. Mr. Langkamm admitted in cross-examination that the Grievor did agree to report for work in the event that no other employee was available. Mr. Langkamm did not report that fact to the Building Manager, Desmond Achonwa,and accordingly Mr. Langkamm conveyed a false impression to Mr. Achonwa concerning the Grievor's refusal to work. An incident occurred at approximately 11:05 p.m. on March 15, 1983 when the Grievor verbally attacked fellow employee Budd Persaud. The Grievor's language was profane, abusive and the inciden t was unpro- voked by Mr. Persaud. Mr. Persaud was so upset by the incident that he filed a written report (Exhibit 8), as did Deputy Technician Mike Mackakis (Exhibit 7). - 4 - In his evidence, the Grievor admitted that his actions were inappropriate and attributed his conduct to the consumption earlier that evening of three beers prior to the commencement of his shift. He did apologize to Mr. Persaud shortly after the incident. As a result of these incidents, the Gr formance review (at the end of six months service unsatisfactory". ievor's second per- ) showed "performance That performance appraisal dated March 28, 1983 (Exhibit 6) read in Dart: "General Comments Mr. Duncan Blackshaw showed some good technical ability, but had some real problems relating to some of his fellow employees, one serious incident. He also showed some lack of communication with his supervisor. Areas requiring improvement Mr. Duncan Blackshaw has to improve his working relationship and attitude in dealing with colleagues and other members of the staff. This specific improvement must be displayed by him, so as to be significantly observed by management within the next two months." Surprisingly enough, the Grievor was given a salary merit increase in conjunction with that unsatisfactory appraisal allegedly for incentive purposes. Mr. Langkamm wrote to the Grievor on March 28, 1983 concerning the merit increase and the Grievor's performance as follows: - 5 - "I do agree to a salary merit increase for you with some reluctance. You showed some good technical ability in the past six months, but had some real problems relating to some of your fellow employees, one serious incident. You also showed some lack of communication with your supervisor. It has been pointed out to you in a meeting dated March 24, '83 that you have to improve your working relationship and attitude with colleagues and other members of the staff. This specific improvement must be displayed by you so as to be signific.antly observed by management within the next two months." In the early hours of May 21, 1981, Mr. Langkamm was advi that the Grievor had called central control on three separate occasion sed ns: once to call in sick for the Saturday shift, a second time advising that he would come in, and a third time to report that he would be off sick for the next two days. The evidence is clear that the Grievor was off sick on Saturday, May 21 but returned to work the following day as scheduled. On June 7 a meeting was held involving the Grievor in the presence of a Union Steward and Messrs. Langkamm and Archonwa. A letter was sent to the Grievor on June 8 referring to the purpose of the meeting - unsatisfactory job performance (Exhibit 13). That letter stated that "attendance record plays an important part in the overall job performance". It was also noted that confidential employee counselling services had been recommended by management but rejected by the Grievor. At the Hearing, evidence was presented with regard to the Grievor's attendance record. That evidence demonstrated that the Grievor - 6 - was absent from work on Wednesday, November 24, 1982, Friday, January 28, 1983, Thursday, March 10, 1983, Saturday, May 21, 1983 and Friday, June 3, 1983. Mr. Achonwa testified that the Grievor's attendance during his probationary period was "below average". Mr. Achonwa prepared the final performance appraisal which recommended the Grievor's "release". The arbitral jurisprudence of the Grievance Settlement Board in probationary employee grievances was succinctly stated by Vice-Chairman Swan' in OPSEU (Peter Clarke) and Ministry of Correctional Services, 443182 at page 2 of his Award: "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, 496/81 and Walton 612/81 and 613/81. While the test has been differently expressed from case to case, we think that in essence the question before us is whether the Employer reason- ably 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 seek 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." Having considered the evidence carefully, we are of the opinion that it demonstrates that the Employer did in fact "release" the Grievor and accordingly we are without jurisdiction to review the merits of the release. We accept the Em the allegations against the Grievor were not with the one exception of the January 18 inc i memorandum to Mr. Achonwa of March 18 he sta t loyer's evidence that discipl inary in nature dent. In Mr. Langkamm's ed that the Grievor was - 7 - verbally reprimanded for the incident. In each of the other incidents of unsatisfactory performance no discipline was administered. Although the Grievor was able to perform the technical requirements of his job (there being no meaningful evidence to the contrary),there are several examples of attitudinal deficiencies on the part of the Grievor. The Employer's concerns were brought to the Grievor's attention by way of performance appraisals, memo- randums to the Grievor, and extensive counselling:from his supervisors. Every effort was made by the Employer to assist the Grievor in addressing those concerns. We are satisfied that Mr. Langkamm's memorandum to Dennis Achonw permanent emp result occurr Att i release. See empl fore, of March 18 (Exhibit 10) which recommended against oyment for the Grievor did not preclude the opposite ng if the circumstances warranted. tudinal deficiencies can form the basis of a valid Bartello, 61/82 (Roberts) and Eisnor, 37/83 (Roberts) On the evidence, we are of the view that the Grievor's oyment was not terminated for disciplinary considerations. There- ,having found that theinstant Grievance is a bona fide release, - 8 - we have no jurisdiction in the matter. Accordingly, this Grievance is dismissed. we have no jurisdiction in the matter. Accordingly, this Grievance is dismissed. DATED at Brantford, Ontario, this2Qth day of December, DATED at Brantford, Ontario, this2Qth day of December, A.D., 1983. A.D., 1983. R.L. Verity, Q.C. Vice Chairman 1. Thomson Member D.B. hliddleton Member