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HomeMy WebLinkAbout1985-1103.Abdulla.86-11-03IN THE MATTER OF AN ARBITRATION - Under - THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Before: For the Griever: For the Employer: Hearing: OPSEU (Gulshan Abdulla) - and - The Crown in Right of Ontario (The Ministry of Municipal Affairs) ;R.Li Verity, Q.C., Vice-Chairman S. Dunkley, Member D. Wallace, Member :P.J.J. Cavulluzzo, Counsel 'Cavalluzzo, Hayes and Lennon Barristers and Solicitors J. Snedden ,Staff Relations Officer Staff Relations Sec~tion April 21, 1986 July 25, 1986 Griever Employer -2 - DECISION Mrs. Gulshan Abdulla, a probationary employee, commenced employment as a Clerk Typist with the Ministry’s Plans Administration Branch,~North and East on July 8, 1985. Some four months later, the Ministry released Mrs. Abdulla under Section 22 of the Public Service Act for failure to meet the requirement of job and for excessive “tardiness” in reporting for work. (5) the On November 8, 1985, Plans Administration Branch Director, Pauline Morris, gave the following written reasons for termination: “It has come to my attention that you are unable to meet the requirements of the Clerk Typist 3 position within the Plans Administration Branch, North. and East. Your shortcomings were brought to your attention on a number of occasions and were confirmed in a letter dated September 16, 1985.. Since then there has been no.significant improvement. In addition to the above, a review of your record of attendance reveals a rate of tardfness that far exceeds an acceptable level for employees of this branch.. .II Mrs. Abdulla alleged that she had been dismissed without just cause and requested full redress. The Grievance Settlement Board has jurisdiction to review the dismissal of an employee under Section 18(2)(c) of the Crown -3 - Employees Collective Bargaining Act, but not a release. Vice-Chairman Swan summarized the Board’s jurisdiction in matters of this nature in OPSEU (Peter Clarke) and Ministry of Correctional Services 443182 at p. 2: “The Board’s jurisdiction has been developed in a number of cases, 94/78, Tucker, including Leslie, 80177, Haladay, 206178,. Pecoskie, 95180, Atkin, 323180, Turcotte, 344180, Ueane, 596181, and Walton, 612181 and 613181. While the test has been differently expressed from case to case, we think that in essence the questi.on. before us is whether the Employer reasonably and in good faith exercised the authority in Section 22(51 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.” icable ‘We turn now to assess the evidence on the appl arbitral authority. The Grievor graduated from Grade 12 in Tanzania and subsequently acquired secretarial and commercial training in Tanzania in 1967 and 1968. Her resume reveals that from 1977 to 1984 she worked with a Scarborough management firm performing clerical, accounting and secretarial services. For a short period in 1984, Mr.s. Abdulla worked as a~secretary with Go-Temp prior to winn1ng.a job competition for the Clerical Typist 3 with the Plans Administration Branch. -4 - In this position, the Grievor was required to provide skilled typing and clerical services for six people - a senior planner, three planners, a summer student and a technician. The function of the Branch is to process applications under the Planning Act, i.e. consents for land severances., plans of subdivision, and amendments to offic Init ially, ial plans. the Grievor received two to three hours of training for a three day period by a Clerk Typist. She also received brief instructions from her Supervisor, Senior Planner, Brian Hi’ll. The Griever experienced difficulties in processing the work and on July 23 reported to Mr. Hill that the planners were too demanding and expected too much of her. Mr. Hill advised the Grievor that he would establish a formal training program at a later date. The Griever then left on vacation on 3uly 29 and returned on August 12. During that period a Go-Temp secretary replac.ed the Grievor. Apparently, the replacement secretary was quite successful although, according to the Griever’s testimony, she left a backlog of unfinished work. The Crievor continued to experience difficulties on her return to .work in August. Mr, Hill testified that he was advised by Human Resources Personnel to review the 3ob Specification with the Grievor, set performance standards and provide feed-back. -5 - On August 15 and 22, Mr. Hill met with the Griever for the purpose of reviewing the components of the job, rev iewing, her job performance to date, and establishing goals and priorities. On August 15, Mr. Hill specified areas requiring improvement which included typing speed, typing accuracy, routine correspondence and filing, and punctuality. On August 22, a one month formal training plan was established in which the Griever was required to meet with a Senior Clerk Typist, Ian McCrea for 30 minutes each day “to discuss work procedures; rays of organizing work and setting priorities”. On August 22, to assist the Griever, goals were developed for both the Crievor and the Employer. These goals were reduced to writing and signed by the Griever in mid-September. This comprehensive goal setting plan specified: (Al “Branch Goals”, (B) “Your Responsibilities”, (Cl “Your Goals”, (01 “Actions to Achieve Your Goals” and (El “Supervisors Support”. The last three categories bear repetition: “C. YOUR GOALS What specific goals have you and your supervisor set for carrying out these responsibilities? Identify the standards that will be used to measure results or achievements (i.e., what will be achieved, how well, and when?). Short Terms Goals (to be achieved by October 15, 19a51 1. Completed one month training program with another clerk typist in branch and fulfilled responsibilities as outlined on the attached training program. . / -6 - 2. Maintained the following work performance standards between September 15, 1985 and October 15, 1985: (i) . routine typing completed within i days; (ii) special typing assignment identified by senior planner to be completed within time set by senior planner; (iii) typing done accurately and proofread to ensure no more than two mistakes per page with no mistakes on corrected copy. (iv) photocopying work, circulation of applications and notification letters completed within 2 days. Medium Term Goals: (to be-cb?npleted by Sanuary 15, 1986) 1. Maintained all of performance standards set under item ‘2’ af short term goals. 2. Demonstrated ability to correctly sort mail, retrieve related files and pass on to group technician for computer logging. 3. Demonst,rated ability to accurately identify necessary computer logging required and perform same. Longer Term Goals: (to be completed by July 8, 1986) 1. All of the medium term goals will continue to be achieved with an emphasis on an increased ability to perform mail sorting and computer entries independent of the group technician. 2. With advisory assistance from other technicians in the branch, filed in for group technician at computer during technician’s February 1986 vacation. D. ACTIONS TO ACHIEVE YOUR GOALS List actions you will take to meet each of your goals and identify points at which progress . . -7 - reviews should take .place. 1. Completed one-month initial training program. 2. Adopted appropriate suggestions from trainer in daily work routines to improve organizational ability and effectiveness. 3. Met with Senior planner weekly during initial training period, then monthly to review progress towardsachieving goals. 4. Meet with group technician beginning November 4, 1985 for 30 minutes per day two days per week, to learn mail sorting and computer system. E. SUPERVISOR’S SUPPORT What support has your supervisor agreed to provide to help you achieve your goals (e.g., training, obstacle removal, resources)? 1. Identify work priorities instead of entire group doing this. 2. Provide working time for training periods and arrange for other branch staff to, act as trainers. 3. Meet regularly to review training progress and identify improvements and adjustments to training as necessary .‘I The formalized training session began the last week of August but was of short duration. According to the Griever’s testimony, she met with Ian McCrea on only four or five occasions. Mr; McCrea testified “I met Gulshan maybe 10 times”. It was his evidence that the Griever did not appear to be interested in the training and that on several occa.sions at the appointed time the Griever was away from her desk and unavailable for training. -8 - The Griever met with Supervisor Hill on September 13 to discuss a draft Performance Appraisal which was subsequently reduced to writing in a Memorandum to the Griever dated September 16. The Employer’s concerns were fully documented in that Memorandum. The concerns included failure to type the goal setting plan in a timely fashion, six documented incidents of late arrivals for work, failure to meet with Ian McCrea and numerous documented examples of errors in typing and clerical procedures. On September 16, Mr. Hill and Manager 3im Malcolm met with the Griever to review the Performance Appraisal. Mr. Hill testified that he met with the Griever briefly on September 24 concerning attendance problems, but had no further communication with her by way of feedback. On behalf of the Employer, Mr. Sneddon argued that the Griever was properly released for failure to meet the requirements of the position, primarily for reasons of slowness in typing and excessive typing errors. He contended that the Griever’s punctuality problem was not the primary cause of her release. Mr. Cavalluzzo argued that the Griever was effectively discharged under the guise of a release. The thrust of the Union’s’ argument was that the Griever was never afforded a reasonable opportunity to meet the requirements of the job because of the Employer’s failure to establish and follow through with a meaningful I -9 - training program that systematically reviewed her progress. For the Employer to succeed, it must satisfy the Board that it acted reasonably and in good faith in releasing the Griever based on her overall job performance. On the evidence; the Board is not satisfied that the Employer has met that test. T6-ere can be no doubt that the Griever encountered difficulties from the outset of .her employment. During her initial period of employment f rom July 8 to 3uly 29, she received, at best, only minimal instruction. The Employer quite properly, we think, acknowledged the Griever’s difficulties and established a formal training program which was implemented by late August. It is irrelevant to assess the conflicting testimony regarding the number of times that the Griever met with Ian McCrea. What is relevant is that the formal training program ended abruptly in its early stages and was never completed. The Griever advised Supervisor Hill of that fact as did Mr. McCrea. Armed with that knowledge, Mr. Hill took no action whatsoever to resurrect the program. Mr. McCrea made no formal report on the Griever’s progress, nor was he asked to do so. From the Employer’s standpoint, perhaps the most damaging evidence was the Employer’s apparent lack of interest in the Griever’s progress subsequent to a brief meeting on-September 24. - 10 - For whatever the reason, after establishing short-term goals for the period September 15 to October 15; Mr. Hill chose not to involve himself in the Griever’s progre'ss. In sum, he failed to carry out the terms of the goal setting plan. Once the plan was 'established it was incumbent upon the Employer to follow through with its .c-itmeets and evaluate the Griever's progress, or lack thereof, on a regular basis. Failure to do so does not establish "good faith”. or “reasonableness” on the part of the Employer. In the instant g,rievance, the Employer is under no obligation to complete the short, medium and long term goals in the event the employee fails to respond in a positive fashion. What is required meet, at punctual 1 Mr. Hill A disturbing feature of the Griever’s performance was a ty problem in reporting for work. As indicated previously, s written performance appraisal of September 16 did work between document six separate incidents of late arrivals for August 15 and September 13. However at the Hearing, failed to document an alleged continuing punctuality mid-September until the date of termination. In any Sneddon advised the Board that the Crievor’s punctua not the primary cause for the release. is .some re,asonable effort on the part of the Employer to least in part, its training commitment. the Employer problem from event, Mr. lity problem was - 11 - In our opinion, the Employer's failure to adduce meaningful evidence of the Griever’s performance from September 13 onwards, was indeed damaging to its position and totally inadequate to satisfy the ,Board of the bona fides of the proported release. For the above reasons, we cannot characterize the Griever’s termination as a release. The Board agrees with the Union's position t,hat the facts can only be characterized as a dismissal without just cause. In the result, -this grievance must succeed and the Griever shall be forthwith reinstated and compensated with interest for all lost wages and benefits. The Grievor’s- reinstatement' shall be to the status of a probationary employee with 8 months remaining in the probationary term. The Board shall remain seized in the event of any difficulty in calculating the appropriate compensation. DATED at Brantford, Ontario, this 3rd day of November, A.D., 1986. R. L. Verity, Q.C. - Vice-Chairman /x$&L&/ S. DTnkIey - Meiber D. Wallace - Member