HomeMy WebLinkAbout1984-0373.Ferraro.84-10-30TE‘EP”O”E’ rrs/aoe- cl*89
313/04
IN THE MATTER OF AN ARBITRATION.
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between:
Before:
For the Grievor:
For the Employer:
Hearinq: August 8, 1984
OPSEU Wince Ferraro)
- and -
Grievor .
The Crown in Right of Ontario
(Ministry of Correctional Services)
Employer
R. Delisle Vice Chairman
R. Russell Member
L. Turtle Member
B. ~Herlich
Grievance Officer Ontario Public Service Employees Union
J.F. Benedict
Manager Staff Relations
Personnel Branch
Ministry of Correctional Services
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The grievor began work with the Ministry as a
casual employee on 4 May, 1982. On 3 October, 1983, he was
appointed to probationary status to WOKk in the Reception
Unit in the Adult Training Centre. His employment was
terminated by letter dated 6 January, 1984, effective 20
January, 1984.
Section 22(S) of the Public Service Act
provides:
A deputy minister may release from
employment any public servant
during the first year of his employment for failure to meet the requiremerrts of his position.
The letter of termination written by
Superintendent A.J. mberts gave the following KeaSOnS:
I have carefully reviewed your work
performance since you were
appointed to probationary status in October of 1983, and have liaised
with Mr. Ferguson and other
supervisors. There have been concerns, discussed with you by
.MK. Wood, Mr. Harrison, Mr. McTrach,, and Mr. Ferguson on issues ranging from punctuality to your
relationship with inmates, your
interest level, your low motivation, and your apparent
inability to accept constructive
criticism.
It would appear that there has been
little significant improvement in
these very important areas and
therefore I must inform you that
you are being released from employment for failing to meet the
required standard.
The Ministry takes the position that this Board
lacks jurisdiction to entertain the grievance as the Crown
Employees- only empowers the Board
to review the 'dismissal" of an employee and not-'a
"release". On this issue the jurisprudence of the Board iS
founded in the decision of Leslie (Adams), 80/77 which
states:
. . . the bona fides release of an
employee from employment made in
good faith duting the first year of
his employment for failure to meet the requirements of his position
cannot be considered to be a
dismissal . . . and cannot be contested before this Board under
s. 17(2)(c) (now 18(2)(c)
C.E.C.B.A.). . . . (However) the
\ employer cannot camouflage either
,discipline or the termination of an
employee for a reason other than employee;s failure to meet the
requirements of his position. This
Board, therefore, has jurisdiction to review a contested release to
insure that it is what it purports
to be. But in the adjudication oft such a grievance, this Board is
without jurisdiction to evaluate
and weigh the reasons of the employer unless the collective
agreement provides Otherwise. The
Board must only be satisfied that
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the employer, in good faith,
released the employee for a 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 OK correctness of that
determination under s. 17(2)(c).
(pp. 12-13).
' In Insanally, (Jolliffe), 7/83 this Board noted that one of
~the questions left open after Eeslie and its progeny was:
. . . whether the Board has any,-power
to act if satisfied that the
"release" was not bona fide, i.e.
was not made for any valid reason whatever. . . . To say that the
Board has no jurisdiction when the
release has been made in good faith
is clear enough, but it ~fails to
tell us what, if anything, can be
done about a release notmade in good faith or not madeor valid
reasons or made for no.reason at
all, OK made by mistake.
With the greatest respect the learned arbitrator has
mis-stated the question. The clear implication from Leslie
is that the good faith of an employer can be looked to for
the purpose of determining whether the termination is a
“release”. This Board can examine the process used by the
employer and determine whether what it has chosen to
characterize as a release truly is such; if the termination.
is not a release it is a dismissal and hence arbitrable
under s. 18(2)(c). To adopt the
94/78:
language of Haladay (Swan) -a
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There is a difference here, of
course, between a review of a
grievance on its facts and a review on the merits. A review on the
facts may well reveal that, no
matter how clearly the merits favour the grievor, the Board is simply unable to award any remedy.
So too, though the Board refrain from examining the merits,
a review of the grievance on its facts may entitle the
grievor to a remedy.
On 31 October, 1983, an incident occurred on
griever's shift. The grievor'was the Control~and Log Entry
Officer and entered itr the log that Officer Bertoli did
rounds at 0400 hrs. This entry did not jibe with the punch
clock disc and a memo from the 'griever's supervisor, Harrison,%
requested a report to explain the discrepancy. The
' discrepancy was later explained to reside in t~he delinquency
of Officer Bertoli. The griever's response to his
supervisor's memos unfortunately closed with the statement:
.I deeply resent having my ability
as an officer and a person
questioned in this manner. (Exhibit 3).
Assistant Superintendent Ferguson interviewed the grievor
concerning his response. Ferguson testified that he was not
concerned about the actual punch clock incident but rather
with the griever's closing statement which indicated a
reluctance to accept criticism. Eerguson testified that "I
can accept mistakes as long as the employee learns from
it". Se admitted that the grievor may have apologized
during the interview but he was unable to recall. The
grievor testified, was not cross-examined on any of his -
evidence, and we accept that he did apologize and evidently
did learn from his mistake.
The Standing Orders for Maplehurst Correctional
Centre provide:
The new Correctional Officer will
be appraised monthly during his or'
her first year of service. These appraisals have a twofold purpose.
Firstly, they are obviously an on-going record of the individual's
performance and secondly;.perh-aE
more.importantfyi-they.provide-a
traxnrng,tool-for-management-and tne.orrlcer;.wnereay-posltlve
. traits-can-be.seen*and.recognized;
and.negatrve.trasts-or,areas - neearng-rmprovement.alscussed*with
ZXZ+i.to*improvem&t;
These Standing Orders are consistent with the sound
philosophy found in the .oft quoted decision of Eriksen,
(Beattie), 12/75:
Although the employer is
entitled and indeed has a legitimate interest in assessing the overall suitability of persons
who seek to join its permanent
staff, the probationary employee is entitled to a fair and proper
assessment. Such an assessment
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necessarily assumes the probationer
will be given a sufficient period
of time to demonstrate his proficiency and capability, that
his duties and responsibilities
have been clearly articulated to
him, that reasonable standards of
behaviour and performance are
expected of him, that his progress is systematically reviewed and not
insignificantly, that the employer
has made reasotiable efforts to coach, instruct and inform the
employee throughout the
probationary period. Such principles, fundamental to a
probationary period in any sector
of employment, are even more fundamental in the public service,
where the probationary period is usually of a longer and more prolonged duration.
NO appraisal was done with respect to the grievor for the
month of October, his first month on the job. Detailed,
appraisals were done for the months of November and
December. (Ex. 8 and 6). Neither were shared nor discussed
with the grievor. His supervisor, Harrison, filed a lengthy
report on 8 November, 1983 concerning the grievor. (Ex.
8). This was not shared with the grievor. Indeed none of
these documents were seen by the grievor until the date of
this hearing. The appraisal forms naturally have a space
marked "Appraisal Read and Discussed" with spaces for
signatures by employee and appraisor, date of interview and
notation of whether a copy was given to the employee: in
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greater level of interest, and
motivation in his pOSitiOn, and tKy
to overcome his resentment for advice and direction, if he is to
be considered further as a
Correctional Officer.
There is irony in the extreme in written expressions of
great Concern and of needs for improvement when there is
absolutely no communication of the same to the probationer. __
The letter of termination recites that there were concerns
since his appointment to probationary status "ranging from
punctuality t0 your relationship with inmates, yOUr kItereSt
level, your low motivation and your apparent inability to
accept constructive criticism". The Superintendent states
that these- were discussed with the grievor butt by the
uncontradicted evidence of~the grievor, this was not so.
The griever's supervisor, Harrison, testified that griever's
over-all attitude and stand-offishness was the primary
concern. He testified however that he never discussued the
same with him. Harrison testified that he recommended
against appointment to permanent status. When asked where
such recommendation OCCUKKed he pointed to the above
excerpted extract from the December appraisal. On any
reading of the closing sentence there noted we cannot find
such a recommendation; clearly it was'an expression of
concern that if the grievor did not effect change then
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consideration would have to be given to his status. This
last appraisal does not bear the hallmarks of an appraisal
leading to release.
.We conclude that the grievor was not released
for failure to meet the requirements of the job since he was
never given an opportunity to meet the requirements as he -
was never advised that he was failing to meet any nor.,
counselled on how to improve. Good faith on the part of the
employer demands that it live Up to its own Standing Orders
which bespeak counselling , coaching and fairness of notice -
of what is required of the probationer. Having regard to
normal requirements of pKOCedUKa1 fairness we cannot
characterize the griever's termination as a release. The
,teKmination was a dismissal. Counsel for the employer took
the position throughout that there were no grounds for
dismissal and we agree. Accordingly, the grievance is
allowed, the grievor is ordered reinstated and ccanpensated
for all lost wages and benefits and credits. This Board
will remain seized pending the implementation of its award.
DATED at Kingston, Ontario, this 30th day of
October, 1984.
)’ //’ -: (I: ~c-.;. ,.~l :.:. ; ,, ? :II. cc _. <. ,. ~: .._ ( ,,
'K‘il; DeliSTe, 'K‘il; DelisTe, Vice Chairman Vice Chairman
R. Russell - Member
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(see attached Addendum)
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ADDENDUM
I cannot disagree with the board's findings
and award. However, I am concerned that underlying
this case is the possi bility that the grievor
,demonstrated that he i s basically not suitable for
this type of wor_k,(as management contended) and that
management failed to identify .the situation to the
grievor in a proper and reasonable manner following
their own laid down procedure.
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