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Home My WebLink About1987-1562.Crooks.88-10-11IN THE wATl'E&OP AN ARBITRATION Under THE CROWN EK@UDYEES COLLECPXW BARGAINING ACT Before petween: Befors: For ievor: OPSEU (G. Crooks) - and - Grievor The Crown in Right of Ontario (Ministry of Correctional Services) Employer For the mmlov r e : P. Draper vioe-chairperson T.J. Kearney nember L.R. Turtle nember P. J. Lukasiewicz Counsel Gowling & Henderson Barristers & Solicitors H. J. Laing '* Counsel Sanderson, Laing Barristers b Solicitors pearing- 5: May 3, 1988 June 13, 1988 August 25, 1988 August 26, 1988 . . I , ,: ’ DECISION The decision was made by the Employer to terminate the Grievor's employment by means of a.release under Section 22(5) of the public Services Act which reads: 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. It is submitted for the Grievor .first, that the person who effected the release was. not properly authorized to do so and second, that the release was, in fact, a dismissal without just cause. The Grievor was a Correctional Officer I at Maplehurst Correctional Centre and was in thli first year of his employment when purportedly released. Correctional Officer I is a training position and the first year of employment is a probationary period. The letter of release is dated June 1, 1987, and is signed. by Mr. Robert Cole, at the time Acting Superintendent of the Young Offenders Unit at Maplehurst to wliich the Grievor waq then assigned. The letter reads: As you are aware, your probationary status expires July 4/8? and I am required to make a recommendation concerning your appointment to regular staff. A review of your employment as a probationary employee has disclosed the following regarding your attendance: January 14/87 February 21/87 February 22/07 April 3187 April 25/67 May IO/87 May U/87 May 14/87 absent absent absent absent absent absent absent received Doctor's certificate stating you will not be returning to work until June 10, 1987.. It is therefore my decision that you are too frequently unavailable for duty and you are hereby released from employment for failure to meet the requirements of your position effective June 10, 1987. This action is taken under the authority of the public Service Act, Section 22(5). With reference to the first branch of the argument made on behalf of the Grievor, our view is that the jurisdiction conferred on the Board by the Crown Employees Collective Bargaining Act does not enable us to review the,exerciee of the power to release under Section 22(5) of the Public Service Act for administrative error. See &&&v. 0094/78 and TYcker. In a lengthy line of @'release vs. dismissal*' cases beginning with we. 0080/77, the Board has,consistently held that a termination of employment that may be properly characterised as .a hq~@ fide release is beyond its jurisdiction to disturb. If it may not be so characterised, it is a dismissal and Section 18(2)(c) of the Crown Employees Collective Bargaining Act is applicable. That section reads: In addition to any other rights of grievance under a collective agreement, an employee claiming, . . . (c) that he has be~en disciplined or dismissed or suepended 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 Section 19. The reason cited in the letter of re.lease for the decision to release the Grievor is that he was "too frequently unavailable for duty." But it is clear from his testimony that Mr. Cole’s concern was riot solely with the Grievor's absences from work but as well with what he assumed had to be a resulting adverse effect on the Grievor's training. In effect, the number of days of absence as listed in the letter of release was taken by Mr. Cole as proof that the Grievor had not acqufred.sufficient. on-the-job training. Mr. Cole also made reference in his testimony to the fact that because of the Grievor's lengthy absence towards the end of his probationary period it was not possible to enrol him in a prescribed training course away from Maplehurst before that period would have expired. . . There is no evide.nce that the subject of either the Grievor's absences 'or the presumed effect on his training was ever taken up with him. At Maplehurst, as at other like institutions, the job performance of Correctional Officers is to be appraised monthly during the first year of service. The appraisals are 4. 4 intended to be a training tool and to lead to discussions with the employee about his progress or lack thereof. In the Grievor's case only two relevant appraisals were conducted in his eleven months as a probationary employee, one for January and one for March, 1987. Both are complimentary, describing the Grievor as progressing favourably, developing skills and showing initiative. Neither makes criticism of absences or training. A third appraisal covering April, 1987, contains a warning about the use of sick credits. But it had not been completed and was not available to Mr. Cole when the letter of release was written. For obvious reasons it was never discussed with the Grievor. The Attendance Review Committee at Maplehurst evidently took no action with regard to the Grievor's absences. Mr. Cole was'frank to say that he was not interested in the reasons for the Grievor's absences, made no enquiries in that direction and was content to accept that they were legitimate. We do not see how, given these facts, the Grievor could have been found to have failed to meet the requirements of his position. The Employer, while officially emphasizing the importance of attendance and training for probationary .* employees, in practice neglected to monitor the Grievor's job performance and failed to make him aware that his sudcessful completion. of the probationary period and his appointment to the permanent staff were threatened. The Grievor's absences and presumed lack of training did not assume importance until they were relied upon to support the termination of his 5 employment by resort to the. power to release under Section Z(5) oft the Public Service Act. Perraro 0373/84, is a case similar in its essential elements to the case before us. There the Board found that there had been no communication to the Grievor of the Employer's concerns about his job performance and in upholding the grievance stated: We conclude that the Grievor was not released for failure to meet the requirements of the job since he was never given an opportunity to meet the requirements as he was never advised that he was failing to meet any nor counselled on how to improve. Good faith on the part of the employer demands that it live up to its 'own standing orders which bespeak counselling, coaching and fairness of notice of what is required of the probationer. Having regard to normal requirements of procedural fairness we cannot characterize the Grievor's termination as a release. The termination was a dismissal. . A comparable situation is found in SJ&&J&D. 0914/86, where the Board, i.n finding that the purported release was, in fact, a dismissal without just cause commented: For a reasonable and good faith exercise of authority to have occurred, there must have been a rational relationship between the observations made .by management and the conclusion that was reached. It is not appropriate for management to leap to a conclusion that an employee has failed to meet the requirements of his or her position. I In contrast, p'connor. 1173/85, is a case in which the release of the Grievor was upheld. Despite a warning "that his i attendance record would be taken into consideration as to his suitability as a probationary employee" the Grievor ' s attendance record "simply collapsed" and there were further 1 6 uarnings "that his continued absence would be taken into accountW. The rationale for the Board's decision was expressed thus: The Employer, after waiting a reasonable period to assess his ability to maintain regular attendance, determined that it could no longer continue with the employment relationship with an employee who simply could not meet the requirement of regular .attendance at.work and therefore terminated his employment, and we think that termination was a valid release pursuant to Section 22(5) of the Public Service Act, and thus beyond our jurisdiction. Those are certainly not the facts of the present case. We have concluded that the termination of the Grievor's employment was not a bona .f&& release. It was precipitated by the approaching end of the Grievor's probationary period and the need to recommend for or against his appointment to the permanent staff. Most significantly, the Employer's action was taken without reference to the fact that no systematic review and evaluation of his job performance had been conducted. The release is therefore colourable and can only be characterised as a dismissal. The 'circumstances surrounding the purported release amply support the conclusion that the Grieiror was dismissed without just cause and we so find. The matter of remedy is referred to the parties, which are directed to meet promptly and to make every reasonable effort to reach a settlement. We retain jurisdiction in order to 7 : * . Y resolve any issues relating ta remedy, not. settled by the parties. Dated at Consecon, Ontario, this 11th day of October, 1988. P. Draper - Vice Chairperson r / T.J. Xearney - Member L.R. Turtle - Member