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HomeMy WebLinkAbout1985-0777.Williams.86-03-10IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (S. Williams) - and - Before: For the Grievor: For the Employer: Hearings: The Crown in Right of Ontario (Ministry of Health) J. W. Samuels - Vice-Chairman J. McManus - Member A. M. McCuaig - Member I. McGilp Counsel Gowling & Henderson Barristers & Solicitors D. W. Brown, Q.C. Crown Law Office Civil Ministry o,f the'Attorney General December 17, 1985 February 11, 1986 Grievor Employer r .-, : : -‘... ._ z DECISION 2 On August 2, 1985, the grievor was released from her employment with’the Ministry, before reaching the end of her probationaryperiod, puusuant to section 22 of the PublicService Act. She argues that this violated her rights under the collective agreement. Until recently, this Board had long held that if the termination of employment was ‘truly a ‘release’. and not a diSCiPlinaiy action, then the Board had no jurisdiction to overturn the employer’s action (the early leading case was Leslie, 80/77). Then several months‘ago, in B~/LXYSUIJ /589/84, the Board held that it was contrary to the Canadian ChHer of R@?tsandFreedm?s to deny a probationer the right to have a termination of employment revlewed, because this viol,ated the right to f!QUallty fsectlon 15). This decision is on its way to judicial review. In our own case, the Ministry referred to the possibility of relying on the traditional rule in &s//e but was content to go onto argue that, in any event, there was ample reason for the grievor’s release. While we have some concern about the decision in &/derson, it would be best not to comment on it and to await the result of the judicial.review. We agree with the Ministry, that there was good reason to terminate the grievor’s employment. In our view, whatever is our jurisdiction, and whatever is the standard of review we are to use in looking at the Ministry’s action, this grievance must fail. In Nay 1984; the grievor became a DSP Clerk, dealing with direct subscriber processing. Each DSP Clerk is assigned a particular portion of the alphabet (an “alpha’) and handles all matters relating to direct subscribers to the Ontario Health Insurance ~Plan with last names which start with that part of the alphabet. The Clerk processes applications and other transactlons relating to subscrlber accounts. This includes the assessment of entitlement, to permanent or temporary premium assistance. These transactions are recorded on various forms. Transactions are either sent on in hard~copy to ‘key source’ for entry into the computer System, or n -- i. , ” 3 are Coded on SAS sheets (Subscriber Administrative System) and then Sent to keypunch. After the data is put into the system, the DSP CJerk receives back a Daily Computer Report (DCR), which is to be checked immediately to ensure that the entries were done properly.. The DSP Clerk is to keep track of the number of documents processed and,this is-charted on a weekly basis to ensure that the Clerk is meeting the expected standard (225 pieces per week). At the end of each week, there is a count of what ‘is left on the desk at the time, so that the back-log can.be monitored. We heard a great deal of evidence over two days about the griever’s work and the efforts of her supervisors to hemher to fuoction effectively. We have reviewed this evidence, and It wlll be necessary here only to comment on it in a much-edited form. In January 1985, the grievor’s performance was assessed by her supervisor, Mrs. R. IlcKie. This assessment was not’discussed with the grievor until March, by which time Mrs. McKie had had an opportunity to go over the assessment with her supervisor, Mr. 5. Barnes. While it was acknowledged that the grievor could handle the various documents, in summary it was felt that she was unable to,function as a DSP Clerk because she was unable to keep up in her daily checking of the DCR’s, and was not sending material to ‘key source’ and ‘data’ on a regular basis. This had been brought to her attent’ion regularly from and prior to September 1984. Not only did the grievor have a huge back-log, but work for which’she was responsible was found by Mrs. McKie stashed away in cabinets, some of this work was over six months old. Subscribers may have been waiting for OHIP numbers for four to six months, while their,applications were hidden away by the grievor. However, there had been a considerable improvement between the time that Mrs. McKie did the assessment fn January and the ,, discussion in March, and the two supervisors were encouraged and looked to continuing improvement. _.- 4 But they were’sorely disappointed. In May 1985, the appraisal was up-dated. Once again, Mrs. McKie had experienced a terrible back-lqg in the grievor’s work. And the grievor was not.turning in her perfo&ance figures as required. There is no doubt whatsoever that the grieVOr was simply unable to keep up with her work. And she was almost totally disorganized. If it were not for the heroic efforts of Mrs. McKie to monitor the grievor’s work, and to see that a good part of it was passed out to other.employees, the subscribers in the grievor’s ‘alpha’ might still be waiting for service. We heard considerable evidence COnCerning the efforts of Mrs. MCKie and Mr. Barnes to help the grievor get on track. The grievor was fully aware of her deficiencies. Counsel for the Union suggested that, because Mrs. McKie and the griever were very good friends, Mrs. McKie failed to be firm enough with the grievor and did not make it clear enough how the grievor was to improve her performance. We simply do not~accept ttiis. We find no fault whatsoever in the efforts of the two supervisors to turn the grievor into an effective employee. They counselled, monitored, discussed, offered constructive help, assured the grievor that it could be done--all to no avail. By July 1985, matters were in a deplorable state and the grievor’s performance was a source of considerable discontent within the unit. Indeed, one fellow employee, MS. E. Phieffer, a.Correspondence Clerk, was moved to write to Mrs. McKie concerning her terrible difficulties with the grievor. In particular, Ms. Phieffer had to speak to and correspond with subscribers who were getting dreadful service and their problems were the grievor’s fault. Files were lost, buried in cupboards or “missing’ on the grlevor’s desk. On July 18, Mr. Barnes wrote to the griever concerning her totally unsatisfactory performance. He gave her two weeks to meet the standards or she would be released immediately. On July ?4 and 25, Mrs. McKie discovered another cabinet-full. The situation was hopeless! I- ., . r 5 On July 30, the gri&or‘s personnel file was taken to Mr. D. PI. ‘Buchanan, Director of the Ministry’s Operations Branch. He reviewed it and wrote out the notice of release. It was delivered to the grieGo1 on August 2. And it is unchallengeable. The grievance is dismissed. Done at London, Ontario, this 10th day of Makch, 1986.