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HomeMy WebLinkAbout1985-1364.Roy.87-01-14IN THE MATTER OF AN ARBITRATION Under THE CROWN JD4PLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN: OPSEU (Basanti Roy) - And - Griever The Crown in Right of Ontario (Ministry of Consumer & Commercial Relations) Employer BEFORE: R. L. Verity Vice-Chairman I. J. Thomson Member W. A. Lobraico Member FOR THE GRIEVOR: N. A. Luczay Grievance Officer Ontario Public Service Employees Union FOR THE EMPLOYER: K. Waisglass Staff Relations Officer Ministry of Consumer & Commercial Relations HEARING DATES: April 28, 1986 September, 17, ta, 19, 1986 November 17, 27, 28, 1986 -2- DECISION Mrs. Basanti Roy, a probationary employee, commenced work as a Clerk-Typist in the Ministry's Support Services Division, Finance and Administrative Services Branch on January 21, 1985. On December 5, 1985, pursuant to her delegated authority under Section 22(S) of the Public Service Act, Branch Manager D. S. Nagel purported to release Mrs. Roy for,"inability to meet the requirements of the job". A grievance was filed alleging termination without just cause. Following the Leslie Decision, 80/77 of Vice-Chairman Adams, the Board's jurisdiction has been limited in part to a factual determination - whether the Employer, in good faith, exercised its authority under Section 22(5) of the Public Service Act to release the employee on probation for failure to meet the requirements of the position, and did not seek to cloak a disciplinary discharge under the guise of a release. The Leslie case stands for the proposition that the Board has no jurisdiction to review the merits of a bona fide release under Section 18(2)(c) of the Crown Employees Collective Bargaining Act. However, the Board's jurisprudence has been placed in llowing the Decision of V 'ice-Chairman Delisle (dated some doubt fo -3- September 12, 1985) in OPSEU (M. Balderson) and Ministry of Colleges and Universities, 1589/84. In a majority decision, Vice-Chairman Delisle held that a probationary employee could not be released under the authority of s. 22(S) of the Public Service Act. The Board found that the release was discriminatory and violates s. 15(l) of the Canadian Charter of Rights and Freedoms. The appropriate standard of review still remains in doubt despite the Ontario Divisional Court having quashed the Balderson Decision, 'in a Judgment dated December 19, 1986. The Divisional Court found that the Board improperly applied the Charter retrospectively. The Co_urt determined no other issue other than the issue of retrospective application. Regardless of the Grievance Settlement Board's jurisdiction as to the appropriate standard of review, this panel of the Board is satisfied that the instant grievance must fail. The Grievor, a graduate of the University of Calcutta, came to Canada in 1982. In November of that year, she commenced employment with the Ontario Government as a Clerk-Typist with "GO-Temp". She worked on numerous assignments as a typist until her appointment to the classified staff as a probationary employee in January of 1985. In the classified position, the Grievor was required to provide typing, clerical, reception and central telephone answering services for the Administrative Services Branch. The telephone-reception duties involved some 20 branch employees and -4- was the single most important facet of the job. The relevant Position Specification and Class Allocation Form described reception duties as follows: "Determining need and re-directing public inquiries to the appropriate office of the Ministry and/or Ontario Government. - receiving visitors to the branch and re-directing them to the proper branch personnel. The telephone answering duties were summarized in the same Position Specification Form as follows: "- providing t_he initial contact on telephone calls to the branch - establishing the nature of the call and transferring or re-directing the caller to the appropriate Branch personnel or external office - accurately recording and distributing information and messages for return calls to the appropriate party" Simply stated, the nature of the position required that telephone-reception duties be performed simultaneously with typing responsibilities. The Board does not intend to set out the evidence in this lengthy proceeding, except in some salient respects. Mrs. Sharon King, the Grievor's direct Supervisor, was the Employer's principal witness. She is Supervisor - Purchasing Unit of the Ministry's Supply and Allied Services Branch. Mrs. King gave detailed evidence of the Grievor's extensive on-the-job training and performance monitoring. In particular, the Grievor i -5- obtained the benefit of no fewer than four written appraisals (referred to as performance development and review). Each appraisal was reviewed with the Grievor and areas of unsatisfactory performance and suggested corrective measures were detailed. In sum, the evidence discloses that the Grievor was unable to learn the telephone-reception duties in any minimal fashion, and experienced certain difficulties in performing typ and clerical duties simultaneously with reception duties. ing Admittedly, the Grievor's performance did improve initially after she attended a two day seminar entitled "dealing with the public". However, the improvement was not sustained. According to Mrs. King's testimony, on July 12 the Grievor admitted that she was reluctant to perform telephone and reception duties and requested a transfer to a straight typing position. Unfortunately, no typing position was then available. The Grievor was denied a merit increase on August 1, primarily because of repetitive mistakes and failure to adequately perform telephone-reception duties. Thomas Boyle, formerly Purchasing Manager of the Ministry's Supply and Allied Services, testified regarding the difficulties experienced by the Grievor and the various methods employed for assistance. -6- , The thrust of the Griever's testimony was that she was improperly trained for the position and that mistakes were reviewed with her only on an occasional basis. The Grievor denied being uncomfortable in the reception duties and further denied that she had requested a typing assignment in July as alleged by Mrs. King. Mrs. Roy testified that many of the allegations of unsatisfactory performance were "lies". Further, she testified that Mrs. King didn't like her personally. 'Mrs. Linda Fischer, Records and Information Manager, testified on behalf of the Grievor. Mrs. Fischer's evidence was that the Grievor was "an-excellent typist" and that there had been a 100% improvement in the Griever's message taking. However, Mrs. Fischer acknowledged that she had no knowledge of the Griever's receptionist skills. The Employer argues that the termination was by way of a bona fide release under Section 22(5) of the Public Service Act for failure to meet the requirements of the position. Alternatively, /.. Ms. Waisglass contended that the release was proper when viewed on the merits following the Balderson rationale. As a further alternative, the Employer argued that there was cause for a non-disciplinary dismissal, if so characterized. For the Union, Mr. Luczay argued that the Grievor was dismissed as opposed to released. It was his contention that the -7- c Grievor was unfairly treated and was given no real assistance from July onward. Mr. Luczay contended that a Deputy Minister had no authority to release a civil servant as opposed to a public servant under Section 22(5) of the Public Service Act, relying primarily on the authority of the Balderson decision. Credibility is a factor in this matter. The Board is satisfied that Mrs. King was objective and forthright in the presentation of her evidence over four days - indeed she was a most credible tiitness. In assessing the Grievor's testimony, the Board ignores the Griever's rather incoherent testimony presented on September 19, 1986. Apparently Mrs. Roy had taken two - 222's prior to giving evidence on that occasion, and accordingly it would be unfair to consider that testimony. However, in assessing her evidence presented at a later date, the Board is satisfied that she was less than objective and not particularly credible. The, allegation that much of Mrs. King's testimony was baseless and "all lies" is simply not credible. Similarly, the Grievor's allegations that she had been improperly trained and unfairly treated is not credible. In our opinion, the evidence of Mrs. King, supported at least in part by the testimony of Mr. Boyle, is the more probable account of the relevant facts. i” k On all the evidence, the Board is satisfied that the Grievor was validly released by the Employer, in good faith, under the authority of Article 22(5) of the Public Service Act for failure to meet the requirements of the position. Mr. Luczay's -8- contention that a Deputy Minister has no authority to release a civil servant in the probationary year flies in the face of numerous Grievance Settlement Board decisions, except perhaps Balderson. In particular the Ontario Divisional Court Judgment dated June 16, 1983 settled that issue in the judicial review of two Grievance Settlement Board Decisions, Dorothy Johnston and Richard Blundell. If the Grievance Settlement Board has the authority to review the merits of a release as suggested by Vice-Chairman Delisle in Balderson, this Panel would have no hesitation in finding that the Employer had indeed valid reasons for the release. There is no evidence of unfairness in the assessment procedures followed by the Employer. Clearly, the Grievor simply did not possess the skills required to perform the various tasks simultaneously. In our opinion, the Grievor appears to be a competent typist. In all probability, typing errors stemmed from the fact that she was unable to type accurately and up to speed while performing' telephone-reception duties. There was general agreement that the prime responsibility was in the performance of telephone-reception services. Simply stated, the Grievor was unable to achieve a minimum level of performance in the telephone-reception component. Mrs. King candidly admitted that the Grievor was well liked by the staff and she acknowledged that the Grievor was "a -9- lovely person". In our opinion, the Employer made every reasonable effort to train and encourage the Grievor to succeed during her probationary period. In fact, Mrs. Roy obtained the position in the first place on the recommendation of Administrative Services Senior Manager, Romeo Fernandez. Every reasonable effort was made by Employer representatives to assist the Grievor. A three month, a six month, a nine month appraisal and a special one month appraisal were designed to alert the Grievor to the, specific requirements of the job. Mrs. Roy's performance was assessed on relevant criteria. Problems in the performa_nce of the job were identified and corrective actions were discussed in considerable detail. The evidence establishes that the Grievor's errors were repetitive in nature and that she was unable to adjust to the requirements of the position. The Employer quite properly, we think, advised the Grievor during the six month P.D.R. in July 1983 that if her performance failed to improve, consideration would be given' to a release. The Board is satisfied, on the evidence presented, that there was no significant improvement in the Grievor's performance subsequent to that appraisal. A.D., - lo- In the result, this Grievance is dismissed. DATED at Brantford, Ontario, this 14thday of January, 1987. - /a- - J- -- R. L. Verity, Q.C. - Vice-Chairman I. J;~ Thomson - Member i ,' /4%!2& gt W. A. Lobraico - Member ‘i..