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HomeMy WebLinkAbout1985-1358.Von Buchstab.87-06-17IN THE MATTER OF AN ARBITRATION UNDER TBE CROWN EEIPLOYEES COLLECTIVE BARGAINING ACT BEFORE THE GRIEVANCE SETTLEMENT BOARD BETWEEN: BEFORR: OPSEU (Mary Von Buchstab) Griever -and- THE CROWN IN RIGHT OF ONTARIO (Ministry of the Attorney General) Employer H. R. Gorsky Vice-Chairman I. Freedman Member A. FL McCauig Member FOR THE UNION: A. Ryder COUllSl?l Govling and Henderson FOR THE EMPLOYER: D. W. Brown, Q. C. Counsel Ministry of the Attorney General HEARINGS: April 4, Hay 8 and June 26, 1986. DECISION The Grievor was appointed to.the probationary staff of the Ministry of the Attorney General.as a Clerical Steno 2 effective June 10, 1985. In a letter dated December 4, 1985 (Exhibit 21, she was advised by A. J. McComiskey, the Public 'Trustee, that she was being released. No issue was taken with respect to the validity of the notice based on an absence of proper deligation under s.23(2) of the Public Service Act, R.S.O. 1980 c.418. 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 requirements of his position." The grievance which was filed on December 10, 1985, is based on an allegation that the Grievor was: '*Dismissed without just cause." . The position of the Ministry was that this Board did not have jurisdiction to deal with the matter as the Grievor had been released during her probationary period as not suitable to the tasks assigned her and that she had not been discharged for culpable behaviour. The Collective Agreement provides: "Article 27.6.1: Any probationary employee who is dismissed or released shall not be entitled to file a grievance." The. Crown Emplovees Collective Bargaining Act, R.S.O. 1980 c.108, s.l8(2)(c), provides: 2 "In addition to any other rights of grievance under a Collective Agreement, an employee claiming, that he has been disciplined or dismissed or suspended from his employment without just cause, may'process such matter in accordance with the grievance procedure provided in the Collective Agreement, and failing final determination under such procedure, the matter may be processed in accordance with the procedure for final determination applicable under s.19." Section 19 provides for reference to arbitration to this Board. In M. Balderson and Ministry of Colleges and Universities 1589/84 (Delisle) the Board reviewed the jurisprudence in this area at pp.2-3: "This aoard in Leslie, 80/77, considered the Supreme Court of Canada's decision in Jacmain v A.G. Canada and Public Service Staff Relations Board [1978] 2 S.C.R. 15, and pursuant thereto changed its practice with respect to the release of 'probationary employees" in their first year of employment. The Board there noted that s. 22(3) of the Public Service Act provides: A deputy minister may for cause dismiss from employment in accordance with the regulations any public servant in his ministry. The Board therefore reasoned: We are of the opinion that the bona fides release of an employee from employment made in good faith during the first year of his employment for failure to meet the requirements of his position cannot be considered to be a dismissal as that term is used in both the Public Service Act and the Crown Employees Coi&e_c_rive BarqaininAAct. If this were not the case, there - vould have bxn no reason for the legislative 3 draftsman to insert section 22(S) into section 22 because by section 22(3) the deputy minister had already been granted the power to dismiss any public servant in his ministry for cause. The distinction between a release (for failure to meet the requirements of a position in the first year of employment) and a dismissal having therefore been made in the Public Service Act, it must be concluded that the distinction was appreciated by the draftsmen of the Crown Employees Collect~!e_8_a_r:qa_inl~q.,A_ct. The two statutes are closely rel,ated and, indeed, the Crown Employees Collective Bargaining Act makes a number of explicit references to the Public Service -- As. Accordingly, the absence of the term “release” in section 17(2)(c) (now 18(2)(c)) must be construed and interpreted to be a significant and intentional omission. Thus, it follows that the bona fides release of a probationary employee in the first year Of his employment, made in good faith and for failure to meet the requirements of his position cannot be contested before this hard under s. 17(2)(c). We observe that this result is not contrary to any polic~y either expressed in legislation or understood in the industrial relations community. 11 In this case, there is no dispute that the Grievor was in the first year of her employment and I find, on the basis of Exhibit 2, that the Employer purported to release her from employment in accordance with s.22(5) of the Public Service Act. I find, after having reviewed the evidence, that the Grievor was released for an alleged failure to meet the requirements of her position and was not terminated for some other reason or as 4 an act of discipline, allowing her to grieve under s.18 of the Crown Employees Collective Bargaining Act. (See Leslie.case at p.16). In accordance with the Leslie case, once it is found that the Employer has not camouflaged either discipline or the termination of an employee for a reason other than the employee's failure to meet the requirements of his/her position, as that phrase is explained in the case of Re United Electrical Workers and Square D Co. Ltd. 1956, L.A.C. 289 at 292, by the guise of "release" under s.22(5) of the Public Service Act, then the grievance must fail. The Board is limited in its jurisdiction to reviewing a contested release to ensure thatit is what it purports to be. The Board is, in such a grievance, without jurisdiction to evaluate and weigh the reasons of the Employer unless the Collective Agreement provides otherwise. Once the Board has established that the Employer has acted in good faith in releasing the employee for failure to meet the requirements of the position, the Board has no jurisdiction to review the fairness or correctness of that determination under s.22(5). . In the Balderson case:' the arbitrator noted, at p.5, that Union counsel "accepted that if the jurisprudence of thus Board, set out in Leslie . . . continued in full force then the Board had no jurisdiction to deal with the matter and the grievance should be dismissed. He argued,however,that the Leslie interpretation of the applicable legislation, and the provision in the Collective Agreement which denies to a probationer who has been dismissed or released the right to grieve, are inconsistent with 5 s.15 of the Candian Charter of Rights and Freedoms, which provides: "15.(l) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or.ethnic origin, colour, religion, sex, age or mental OCR physical disability." The Board, in Balderson, concluded that there was a breach of s.15 of the Charter and that the Grievor~, there, was an individual who .had been denied equal treatment under the law because she was a probationer and not a seniority rated employee who was not entitled to the Board's review. (Balderson case P.9). The Board, in Balderson, concluded that there was no valid reason why it was necessary to completely foreclose the . reviewability of the justness of a probationer's release. (p.10). The Board further concluded that it was necessary to depart from the Leslie interpretation of s.l8(2)(c) of the B Employees Collective Bargaininq Act and held that, interpreting the provisions consistently with the Charter, “dismissal” includes "release" and a probationary employee is entitled to have the justness of his termination reviewed. In the Balderson case, counsel for the Union did not argue that a probationer.was entitled to all the rights of a senority- rated employee. The Board stated,at p.9: “He [Union Counsel1 recognizes that the probationer deserves to be evaluated differently. In dealing with the review of a discharge of a 6 probationary employee, Mr.. Beattie (sic) in Re Porcupine Area.. wulance Service and C.U.P.E. (19741, 7 L.A.C. (2d) 182, wrote: #it appears accurate to say that an emerging tcrnd of awards is to the e.ffect that although an onus does 1 ie on management to prove there is cause for the discharge of a probationary employee, that cause need not be .of the same form or weight which would be required to justify the discharge of a seniority-rated employee. . . . Specifically, it appears this school holds to the view that an employer is entitled “to - examine the suitability of probationary employees on the broadest of grounds. . . . Suitability would appear to encompass such. notions as the character and compatibility of the probationary employee . . . as well as a determination that such an employee is not’likely to meet either the present or future standards and requirements demanded by the company . . . ” (citations omitted). Arbitrators recogni,ze the employer’s need of a trial period ,of employment to evaluate the employee and accord’ingly show ‘substantial deference to the judgment of the employer in the decision to terminate or continue a probationary employee”; see Rep Board of Education for Scarborough and C.S.S.T.F., ( 1380) 26 L.A.C. (2d) 160 (Richer). . .” In the Leslie case, reference was made to the Joyce case at p.2-3: "In me JOYCO at page 33 the Board sumarized its jUriS- diction to review grievances of this kind in the following way: . . . . .f t is our view that Ms. Joyce’s grievance is, ds any pmbetion~ employee’s gricvence would be properly before this Board by virtue of s.17(2) of the Act end there is nothing the Legislation has done or the parties 0IT.a board of arbitration any do which CM derogate from that right. We are, fn short, prepared to take jurisdfcefon of her griev?mce on that basis alone. 7 Haever, and as arbitrators in the private sector and as this Board itself has recognized, wo must again caution the pdrfdes tbt in seizing jurfsdfction owr tie tcrmfnaeion - be f t release or a dismissal - of a probdtionary ‘wployee’, we do mt and will not exercise the full appellate review that would ordinarily be exarcised in the case of an employee who has completed tbelr probationary period. To put the matter in the language of s.17(21 of the Act, the standKd of ‘just cause’ that is imposed by Statute, must, if the probationary period is to hw any meaning, be different in the cdse of a ‘probationary employee than it is ‘jn. the case of a ‘tegular’ wployee . .The Board then went on to describe thfs lesser standard of when it would intervene In tens of a "palpably unreasonable employer's assessment."' The position of the Employer is that we ought to find that the Grievor was released not as a disciplinary measure but because she was unable to perform the tasks associated with her position up to the reasonable standards established by the Employer. It was the Employer's further position that the termination of the Grievor was not a disguised attempt to disch~arge the Grievor (a disciplinary response). That being the case, ,this Board ought to follow Leslie and find that it was without jurisdiction to deal with the grievance. The Employer submitted that we should not follow Balderson. In the alternative, should Balderson.be followed, it was submitted that 8 the Joyce test, applicable to a applied, and that, on the facts, The position of the Union, this was a case of release, as Employer had not met the test applicable to the release of a probationary employee which still applied. An attempt to characterize the release as a disciplinary termination was also attempted by Counsel for tne Union and it was submitted that just cause for termination had not been demonstrated. On the evidence, I find that the representatives of the Employer concluded, after a review of the Grie or's progress, and prior to her achieving permanent status, that she could not, for unascertainable reasons, meet the reasonable typing quantity expectations of the Employer. That is, she co Id not meet the daily average of Union's ability to rely on the Joyce test ass an acceptance of the Balderson Award. Assuming the Balderson case to be'rightly applying the Joyce test, I would find: 4. 5. 1. 2. 3. The Grievor knew from the commencement of the Employer's requirement that she compl average of one and one-half tapes a day. That the Grievor was, on a. regular basis, requirement and except for a brief period maintain this standard in her work. That the standard was a reasonable one. some.evidence that some other employees, classified, failed to meet the standard, not find that the Grievor was being sing1 ? treatment. That the Griever, notwithstanding that sh have known, that her situation was precar organize her time so as to insure that sh standard established. That the time spent by the Grievor workin related staff project may have contribute meet the typing ,standard. However, no bl to the Employer for failure to restrict t related activities of the Grievor during knew, or ought to have known, of her Supe and they cannot be blamed for the fact th activities may have contributed to her fa standard expected of her. In any event, 9 decided and ler employment of :e transcribing an :eminded of this ras never able to .though there was milarly 1 occasion, I do 1 out for unfair knew, or ought to IUS, was unable to would meet the on a non-work to her failure to Ie can be ascribed ! non- work jrking hours. She risers' concerns : the outside work .ure to meet the am not satisfied ! 10 that the non-work related project was the bole basis for the Griever's deficient performance. 6. I cannot blame either the Grievor or members of Supervision for the numerous disagreements which occurred while she was employed by the Ministry. There appeared to be a real personality conflict between the Grievor and her Supervisor, Ms. J. Peck and with Ms. Peck's Supervisor, Mr. Russell Carrington. Nevertheless, I find that the Grievor, except for a brief period after her three month evaluation, knew, or ought to have known, that her position zemained at risk because of.her inability to meet the typing transciption standards. 7. The Grievor should have been able to maintain the typing and clerical standards of her position. I could not find that any special burden had been placed on her that could be viewed as being unfair. a. The Grievor concluded that she was being fairly assessed by Ms. Peck and Mr. Carrington. part, Ms. peck and Mr. Carrington could find no reasonabl explanation for the Grievor being unable to meet standards. The manner in wh~ich dealt with the Grievor's problem respects, in that they sometimes manifeste frustration with the Griever's b unprofessional, did not demonstr the Grievor unfairly. . 9. 10. 11. 12. 11 concern was related to the Griever's failure to meet the standards established and they did not know how to deal with the Griever's attempts to deflect their ,criticisms. That the Employer has established the failure of the Grievor to maintain the typing standard of one and one-half tapes a day transcribed on average. That the Employer's assessment took place over a reasonable period of time so as to enable it to conclude that the Grievor would likely prove unsuitable as a permanent employee. That neither the Employer's assessment of the Grievor nor the standards established by it were "palpably unreasonable." The above analysis is predicated on our acceptance of the statements in the Joyce case, (at p.36) (quoting from the Porcupine Area Ambulance Service case), that in cases involving termination of a probationary employee " . . . the proper basis . . . may be somewhat broader than that justifying termination of a seniority rated employee and . . . . the standards of review by boards of arbitration will be somewhat less rigorous." In so stating, we also were satisfied that the release of the Grievor was reasonable in the circumstances. In the light of the evidence available to the Employer, the response was one that a reasonable employer might have chosen. We are not required to find that it was the only decision that might have been made. This accounts for the fragility of the position of a probationer and underlies the requirement that for the Grievor to succeed, the Employer's assessment would have.to be "palpably unreasonable." For all of the above reasons, the grievance is denied. Because of our finding, it was unnecessary to deal further with the Balderson case. DATED AT Lcindon, Ontario this 17th day of June 1987. w. R. Gorsky Vice chairman iZ?L I..Preedman uember A. U. UcCuaig lmaber