HomeMy WebLinkAbout1984-1383.Bhanji.86-01-23IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Between:
Before
THE GRIEVANCE SETTLEMENT BOARD
OPSEU (Firoz Bhanji)
and
The Crown in Right of Ontario
(Ministry of Consumer and Commercial Relations)
Before:
For the Grievor: N. A. Luczay
Grievance Officer
Ontario Public Service Employees Union
For the Employer: J. XO’Shea
Staff Relations Administrar
Personnel Services
Ministry of Consumer and Commercial Relations
Hear ine;r:
Grievor
Employer
P. Draper
I. J. Thomson
M. F. O’Toole
Vice-Chairman
Member
Member
July II, 1985
September 17, 1985
October 21, 1985
DECISION
The Griever, Firoz Bhanji, grieves that on November 26, 1984, he was
unjustly disciplined by being demoted from:;-the position of Abstract Clerk,
classified Clerk 3 General, to the position of Counter Clerk, classified Clerk 2
General.
-The Employer submits that the Griever was not demoted as a matter of
discipline but because,he did nbt meet the requirements of his position, and accepts
the burden of proving that the demotion was warranted for that reason.
It is argued for the Griever that the demotions was a disciplinary action
taken because of the Grievor’s activities as a union steward; and, in the
alternative, that if the demotion was non-disciplinary, the performance standard
‘set for Abstract Clerks is unreasonable and in its application to the Griever was
discriminatwy.
As a further part of &argument, IMr. Luczay contended that the
position to which the Griever was demoted should have been posted as required by
Article 4 of the collective agreement. In response, Mr. O’Shea informed the Board
that the Union had applied to the Board for a hearing of a policy grievance based
on an alleged violation by the Employer of Article 4. Following the hearing, the
Board ascertained from the Registrar that subsequent to the application for a
hearing of the present grievance, an application. was made by the Union for a
hearing of a grievance alleging “Violation of Article 4.1 relating to the position of
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‘Counter Clerk’, Registry Office 1163” and requesting “That the above position be
posted as per Article 4.1”. At the request of the patties it was not to be listed for
hearing until further notice. It had not been listed by the time the hearing of the
present grievance had concluded. The effect of Mr. Luczay’s submission is to
append to the present grievance a new and unrelated~~allegationthat the Employer
has breached Article 4. The grievance properly before the Board is that alleging an
unjust disciplinary demotion of the Crievor. The Union cannot now be permitted to
alter the substance of that grievance so as to encompass a separate and distinct
allegation of a violation of the collective agreement by the Employer.
Accordingly, the Board will limit itself to a consideration of the issue of the
Giievor’s demotion.
The Grievor ,has been employed at Land Registry Office #63, Toronto,
since 1976 and had held the position of Abstract Clerk since October, 1979. The
purpose of the position, as described in the Position Specification and Class
Allocation Form, is “To provide a complete record of Instruments registered in the
Land Registry Office, and to perform various office procedures”. Eighty percent’
of the work is receiving, examining and entering instruments, such as deeds, and
metes and.bounds descriptions, in an a&tract index book.. The remaining twenty
percent is performing the duties of absent employees as required and assisting.the ,?
public at a service counter.
Following the introduction by the Ministry of. a Performance
Development and Review (PDR) program under which job performance is to be
judged against “performance mea&es and targets”, the management of Office i/63
decided that some meam of measuring the .performance of Abstract Clerks was
required. After consultation with other registry offices and reference to the 1981
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output of its own Abstract Cler!6, management set a performance standard of an
average of thirty-five instruments abstracted per day over a period of one month
(twenty work days) to be effective as of January, 1982. AIIowance is made for
time spent on other duties so that the standard can be met even though employees
are not abstracting fulI time. The performance ,of individual employees is
develpped from daily work sheets completed by the employees themselves. The
performance standard measures productivity, not production.
-The Griever was strongly opposed to the performance standard from the L
outset. He questioned the Employer’s right to establish a standard and disagreed
with the standard set. At a later stage he believed it discriminated against him
because he was assigned to the abstracting room full time and because other
employees were leaving the more difficult iratruments for him to abstract.
In a performance review for the period January - March, 1982, it was
noted that the Griever was not meeting the standard. In a memorandum to the
Griever dated in April, 1982 his immediate superior, John England, Deputy Land
Registrar, Toronto, summarized the objectives of the PDR program and expressed
his dissatisfaction with the Griever’s performance, In furth.er memorandums dated
in June, July and August, 1982, and in meetings with the Crievor in July and August,
that dissatisfaction was reiterated. Following a complaint by the Griever to B. W.
Gibbs, Senior Depty Director, Real Property Registration, and on the instructions
of his immediate superior, John Haughey, Land Registrar, Toronto, England, in a
memorandum dated in JuIy,~ 1982, cautioned employees against selecting less
difficult instruments to abstract rather than taking them in turn. In October, 1983,
Gibbs wrote a memorandum to the Grievor the text of which reads:
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Re: Work Performance
Over the past 18 months you have been made aware on a number of
occasions that your work output was considerably below the level
expected by your supervisor.
I have reviewed the perfcrmance standards expected in your work unit
and find the standards reasonable. In addition, I believe you are aware
of your duties and work procedures and have received the training
necessary to complete your work in a productive manner. During the
pasts year you have met with supervisory staff ~to raise matters which
you felt contributed to your low level of work output and I have been
personnally involved in a number of those meetings. I believe that we
have addressed any legitimate concerns and that the work enviornment
and procedures are conducive to high levels of productivity as
evidenced by the work of the majority of your peers.
.-Your level of work output continues to be significantly below the
standards expected (35 documents per’ day).and has averaged about 15
documents per day over the last 6 months. \
As a result, I must advise you that an improvement in performance is
expected in the immediate future. Should you.not be able to meet the
standards within the next three (3) months, I will have no alternative
but to re-assign you to alternate duties in the office at a lower
classification level.
I truSt we will see a marked improvement in your performance over the
next three months, however, I hope you appreciate the seriousness of
the situation and the consequences of not achieving the performance
standards. The supervisory staff in the office are, of course, available
to assist you with legitimate problems or concerns.
! In February, 1984, Haughey wrote a memorandum to the Griever the text of which
reads:
Re: Work Performance
On October 15th, 1983 you received a memorandum from Mr. 8. W.
Gibbs, Senior Deputy Director, Real Property Registration Branch,
regarding your work performance. It indicated that your work
performance’ was below the level expected by your supervisor. YOU
were also advised that you would be reassigned to duties at a lower
classification level if there was not a.marked improvement within 3
months.
This matter has been referred to me for consideration and as a result
Mr. J. W. England, your immediate supervisor and I have reviewed your
performance over this period. We find there has been significant
improvement. Your daily average has risen from 15.documents to 28
and it has been decided to defer the action regarding your classification
at this time.
I-Iowever, while I am pleased with your improvement to date I must
bring to your attention the fact that deferring action at this time does
not indicated acceptance of your current work level. Your present
output still falls considerably below the expected’ minimum standard of
35 documents per day.
I trust that you are encouraged to continue your efforts to reach the
acceptable level of your work unit.
In Novembes, 1984, Haughey wrote a memorandum to the Crievor the text of which
reads:
On October 5, 1983 you received a memorandum from Mr. 8. W. Gibbs,
Senior Deputy Director, Real Property Registration Branch, advising you
that your work output was considerably below the standards expected
(35 documents per day) and had averaged 15 documents per day over the
previous 6 months. You were also informed that we considered that any
legitimate concerns had been addressed and that the work environment
and procedures were conducive to high. levels of productivity as
evidenced by the work of the majority of your peers. In that
memorandum you were also informed that if you .did not meet the
standard within 3 months you would be assi.gned to a lower classification
level.
The matter was referred to me for consideration and I reviewed your
performance with you immediate supervisor after 3 month and since
your average had risen~ to 28 documents per day I informed you by
memorandum of February 6, 1984, that action regarding your
classification would be deferred at that time. However, you were also
advised that we were not condoning your present work level.
We have monitored your performance since February 6, 1984 and you
have been consistently below the standard of 35 documents per day.
You have averaged 23 documents per day since February 1984.
You have indicated to me that you are unable to meet the requirements
of your abstract clerk position, in that you have never been able to
achieve the standard of 35 documents per day. Therefore, I have no
alternative but to assign you to the position of Counter Clerk at t,he
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Clerk 2 General level. Your salary will be ;ne maximum of this level
which is $320.73 per week.
We will continue monitoring your performance in your new position.
There was no active OPSEU unit at Office iI63 until late 1980. The
Grievor became the union steward for the unit in late 1981 and still holds that
position. The management of Office i/63 learned of his appointment about mid-
1982 and then only because he accompanied another employee to a grievance
meeting. The Griever felt that England’s attitude towards him changed when he
became the union steward. Victor Springer, who was an Abstract Clerk in Office
#63 from October, 1979, until April, 1985, when he left, and who joined the Griever
in protesting against the performance standard and a number of other working
conditions, felt that England was “against him” because of those activities.
Louis Rosen, the OPSEU Staff Representative who serviced the unit at Office #63
from March, 1981, to December, 1983, believes that “no supervisor likes a union
representative”. i He regarded the management of Office 663 as negative and
difficult to communicate with. Reacting to “reports” he warned them that he
“would not stand for discrimination against a union steward”. The subject was
apparently not pursued further. He told the Crievor to “grieve everything”. The
OPSEU Staff Representative who was in place at the time of the Griever’s demotion
was not called to testify.
We do not see the Griever’s demotion as a disciplinary reprisal for his
activities as a union steward. In our opinion no persuasive evidence has been
adduced that would establish a link between the two. There is no evidence that
management made any objection to the Griever’s union activities, much less that
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there was a management scheme to remove him from his position because of them.
Whatever may have been the Griever’s perception of anti-union bias by
the Employer, it clearly did not inhibit him from asserting his rights, as he saw
them, in a persistent and fcrceful way. Over the period 1982-1984 he initiated a
variety of complaints and grievances which included such subjects as overtime,
~,.
coffee breaks, asbestos, a leaky roof, the PDR program, the performance standard,
other employees leaving difficult instruments for him to abstract, being taken out
of the rotation fcr assignment to the service counter, and being refused permission
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to retrieve instruments from the files.
There seems to have been no reluctance on the part of the Employer to
work towards the resolution of the many issues raised by the Griever. At various
times, not only the then management at Office #63, but Gibbs and his superior, V.
McCutcheon, Director, Real Property Registration, became involved. Every issue
was settled either by the parties themselves or through mediation;-’ None reached
the arbitration stage.
Certainly, attitudes on both sides leave much to be desired, In
particular, the relationship between the Crievor and England has been an uneasy,
even hostile one. This, in our view, stems from differing personality traits,~and it
is not possible’to apportion blame for their frequent clashes. What can be said is
that in their dealings with one another they have showed a conspicuous lack of
maturity .
We do not b&eve that the Gr,ievor was singled out for prejudical
treatment because he was a union steward. We have concluded, on the balance of
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probabilities, that the demotion of the Griever was not a disciplinary demotion
.based upon his union activities.
Given the functions reserved to the Employer under Section 18 (1) of
the Crown Employees Collective Bargaining Act (the Act), it is clear that demotion
is available &the Employer in appropriate circumstances. It is to be noted as well
that Article 5.7 of the collective agreement implies the right of the Employer to
demote by providing for the salary rate to be paid in that event. The authority of
the Employer to demote encompasses both disciplinary and non-disciplinary
demotions. -The latter may be invoked where there is a failure by an employee, for
reasons not attributable, even in part, to culpable behaviour, to meet the
requirements of his position. The Employer has a presumptive right to determine
such requirements, which may logically include the ability to achieve and maintain
a specified level of output. In the present case there is no claim by the Employer,
and no evidence, of blameworthy conduct by the Griever contributing to his alleged
inability to meet the requirements of the position of Abstract Clerk. In the
circumstances our conclusion must be that the case is one of non-disciplinary
demotion.
The exercise by the Employer of its managerial functions is not subject
to the test of just cause as would be a disciplinary action amenable to a right of
grievance under Section 18 (2) (c) of the Act. Concomitantly, in cases of non-
disciplinary demotion, as in cases of promotion, the Board does not have the same
mandate to substitute its judgement for that of the Employer as it has in a case of
disciplinary action. The Employer must, however, establish that the employee is
unable to satisfy the normal requirements of his position: in the present case,,that
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the Crievor is unable to perform the work of an Abstract Clerk at the level
properly to be expected of employees in that position. As well, the Employer must
not have acted in an unreasonable, arbitrary or discriminatory way in making its
decision.
It is acknowledged by the Employer that the Griever’s work as an
Abstract Clerk was of good quality. The issue is his inability to work at a pace
acceptable to the Employer.
?he Grievor has no mental or physical disability and no personal
problems that might interfere with his ability to do the work of an Abstract Clerk.
He concedes that he received training for that psisition and that he understands its
requirements. He admits that his productivity was always below that of the other
Abstract Clerks. It does not appear that he received inadequate supervision or
guidance. He was repeatedly informed as to what was expected of him and warned
that continued low productivity would not be tolerated.
The Employer filed in evidence a graph showing the monthly
productivity level of each abstract room employee for the period September, 1981,
to November, 1984. The Griever’s productivity was the lowest of any of the
Abstract Clerks and, infact, never reached a monthly level of: thirty instruments
abstracted per day. There are wide swings in the productivity levels of all
Abstract Clerks from month to month and it is evident that the Employer does not
hold them to the thirty-five level month in month out. This is because of the
constant,‘sharp variances in the volume and complexity of instruments to be
abstracted and does not, in our opinion, invalidate the performance standard itself.
WhiIe it may be unusual to have a standard that can be only intermittently met, it
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does unquestionably establish a level of productivity within the competence of
employees to achieve and we are satisfied, given the inherent difficulties of
measuring the work, that it cannot be said to be unreasonable. We note that there
has been no policy grievance challenging the performance standard and, apart from
the Grievor, only Springer, who admitted that it is attainable, has complained of it.
There remains the question whether or not the performance standard
was discriminatoryin its application to the Crievor. Technically, it was not, since
its terms were no different fcr the Grievor than for other Abstract Clerks.
However, the Grievor argues that two conditions under which he worked made it
impossible to meet the standard.
One condition was that in late 1983, as a result of his consistent failure
to meet the standard, he was taken out of the rotation for assignment to the
service counter and was restricted to abstracting. The standard would be
meaningless if it did not relate the production of abstracted instruments to the
time actually spent abstracting. Yet the Grievor claims that this factor favours
employees who spend time on the service counter. There is no evidence that
employees who are not abstracting full time are credited with false productivity
figures. Further, there is no evidence that the productivity of the other Abstract
Clerks was higher than that of the Grievor because they spent time away from
abstracting or, conversely, that his productivity was lower than theirs because he
did not. Finally, as the graph shows, the Griever’s productivity was actually higher
from October, 1983 onward;,when he was abstracting full time, than at any earlier
period.
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The second condition was that some Abstract Clerks were avoiding
unr.sually difficult instruments and he therefore had more than a fair share of them
to abstract. But, although the practice did exist at some point, there is no evidence
that it was directed against and affected only the Grievor, or that he did, in fact,
abstract a greater number of unusually difficult imtruments than any other
Abstract Clerk did. In addition, the evidence is that unusually difficult instruments
appear, on average, two or three times per week. That is a small number relative
to normal productivity levels and even assuming that the Grievor always drew all
the unusually difficult instruments, it would hardly account for his low
productiviiy.
We find, on the balance of probabilities, that the Employer has
established that the Grievor is not capable of meeting the reasonable requirements
of the position of Abstract Clerk; that the Employer has not acted arbitrarily or
unreasonably, or discriminated against the Grievor; and that the non-disciplinary
demotion of the Griever should not be disturbed.
The grievance is dismissed.
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DATED at Toronto, Ontario this ,23rd day of January, 1986.
--- 1. J. Thomson, Member
M. F. O’Toole, M-ember