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HomeMy WebLinkAbout1987-1885.Hohenadel.88-05-24IN TEE HATTER OF AB ARBITRATION Under TEE CROWR EtiPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEWERT BOARD Between: .------- OPSEU (JAMES ROEERADEL) and Grievor The Crown in Right of Ontario (Ministry of Correctional Serojces) Employer Before: -__--- For the Grievor: --------------- For the Employer: _--------~_~~~~~ R. L. Verity, Q.C. Vice-Chairman I. Thomson Uember II. O'Toole Member B.W. Sheldrick Counsel Gorling 5~ Benderson Barristers 6 Solicitors J.F. Benedict Counsel Staff Relations and Compensation Ministry of Correctional Services Bearing: ------- April 21, 1988 ;_ ‘i -2- DECI,SION In a grievance dated August 17, 1987,.the grievor, James Hohenadel, a Correctional Officer 1 at the Guelph Correctional Centre, alleged that he had been discharged without just cause. The remedy requested was reinstatement with ,full remedial redress. The Parties agree-that the grievor was at all material times a probationary employee. The Bmployer-maintained that the grievor was released pursuant to s. 22(5) of the Public Service Act and accordingly the Board was without jurisdiction in this matter. The Union contended that the grievor was not properly or-validly relea~s.ed on probation, but rather was dismissed without just cause, and that the Board had jurisdiction to determine the merits under s. 18(2)(c) of thee Crown Employees Collective Bargaining Act. In particular, Union Counsel ~Sheldrick contended that,the reasons for the purported release had no rational connect.ion to the grievor'.s ability to perform the requirements of his position. The following provisions of the Collective Agreement and the Y legislative enactments are relevant: s. 22(S) of the Public Service Act 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. -3- s. 18(2(c) of the Crown Employees Collective Bargaining Act provides: In addition to any other rights of grievance under a collective agreement, an employee claiming,. (c) that he has been disciplined .or.dismissed or .suspended from his employment without just cause, may,process such matter in accordance with the grievance proced,ure provided in the collective agreement and failing final determination under such procedure, the,matter may be processed in accordance with the procedure fbr finals determination applicable under section 19. Article 27.8.1 of the relevant Collective Agreement (effective January 1, 1986 to December 31, 1988) reads: Any probationary employee who is dismissed or .released shall not be entitled to file a grievance. There was one complicating factor in this matter. Tragically, the grievor died as a result of a traffic accident in February, 1988. The Employer made~ no preliminary objection to jurisdiction following the grievor's death. Accordingly, the hearing proceeded inthe normal fashion, but without the benefit of the grievor's testimony. The Board is satisfied that it was entirely proper to have proceeded in this manner. The grievor was employed at the time the grievance arose and the grievance was filed in a timely manner. The fact that he subsequently ceased to be an employee does not render the grievance inarbitrable.' The remedy, if any, would of course be -4- effected by the grievor's death. See generally, Brown and Beatty Text, Canadian Labour Arbitration (2d Ed) para 2:3110 pp 88-89; E. E. Palmer's Text, Collective Agreement Arbitration in Canada (2d Ed) p. 177; Re Ontario Hydra and Canadian Unions of Operating Engineers (19811, 30 L.A.C. (2d) 157 (Kennedy); and Re International Association of Machinists and Aerospace Workers, Local 1861, and Erie Iron Works Co. Ltd. (1970)., 21 L.A.Ci 320 (Weatherill). In addition, the omments of Chairman Shime in E. Blake et al and Amalgamated Transit Union, 1276/87 et al merit repetition at p. 5: I .,.Section 18(i) (C.E.C.B.A.) specifically grants the employee the right to grieve in the. active sense but that the~employee's right does not continue throughout the Section. Thus, there is no specific extension of the employee's right to proceed to arbitration and it is only "the matter" that is entitled'to proceed in accordance with the arbitration procedure in Section 19. .while given the right to grieve is not The employee specifically given the right to proceed to arbitration." In the. instant grievance, the Union sought the right to bring "the matter" to arbitration. As indicated previousiy, the Employer agreed with that procedure. 9 The grievor worked for a period of time as a Correctional Officer at the Guelph Correctional Centre as a member of the unclassified staff. On September 16, 1988, he was formally appointed : -5- to the classified staff, effective September 15. In the written appointment, Superintendent Lyndon Nelmes advised the grievor that the one year probationary period would be reduced by four weeks. The evidence established that the grievor was well liked by, his supervisors and performed his job satisfactorily, with one noteable exception. By February, 1987, his nine d.ays absence from duty attracted the attention of,the Institution's Attendance Review Committee. Subsequently, on March 18, Senior Assistant Superintendent Corrections F. W. Morris held an informal interview with the ,grievor. According to Mr. Morris' testimony, the grievor was advised that his attendance record was unsatisfactory and that regular attendance was a requirement for permanent employment. Following the interview, Mr. Morris sent the grievor a copy of the following memorandum: As recommended by the Attendance Review Committee - me-eting of February 20, 1987 - I have informally reviewed Mr. Hohenadel regarding his absences during his probationary year. Mr. Hohenadel stated that the illnesses were caused by strep throat and a cold. I emphasised to him that satisfactory attendance was a requirement of successful appointment to permanent Staff. There were no further discussions with the grievor concerning the attendance issue. Subsequent to the March 18th interview; the grievor was absent for a 12 hour shift on May 8, an 8 hour shift on June 1 and a 12 hour shift on June 16. -6- On July 29, 1987, the grievor's employment .was. terminated e~ffective Friday, August 14, ‘1987. Superintendent Nelmes letter read as follows: The Chairman of the Attendance Review Committee h;as brought to my attention the fact that you have been absent from duty a total of 12 times, with equivalent sick time equal to 17 credits during your probationary year. You were I believe interviewed by F. W. Morris, Senior Assistant Superintendent, Corrections, on or about March 18th this year regarding your attendance generally, and during that interview Mr. Morris indicated the importance of maintaining a high level of attendance, particularly having regard to ~the fact that you were on probationary status. Since that interview you have been absent on three occasions for's total of 4 credits mused. A Correctional environment is such that one has to place considerable reliance upon trained staff being present on duty when expected to be. The consequences attached to frequent absences include additional strain on colleagues and lack of continuity of operationsi not to mention the financial aspect attached to covering for the absent staff member. It is for these reasons that I believe regular attendance is a basic requirement fo a Correctional Officer's position. 1.n this regard, I do not consider you have met that requi,rement during your period of probation. I am therefore going to release you from employment at the Guelph Correctional Centre for failing to meet the requiremetns of your position, and am 'authorised to'do so by virtue of Section 22(5) of the Public Service Act having been delegated to me. It is unfortunate that this has to occur, and I sincerely hope that you will be able to direct your energies and talents towards another career stream in the not too distant future. The release will become effective on Friday, August 14th,~l987. - 7 - The evidence established' that the grievor's .record of absenteeism compared unfavourably with other probationary employees and exceeded the institutional average for all correctional officers fin the calendar years 1986 and 1987. The grievor's absences can be characterised as intermittent and of'short duration.. On several occasions the absences coincided with regular days off. However, the Employer does not dispute the bona ,fides of the grievor's absences on account of illness. Superintendent Nelmes acknowledged that he was not aware of the reasons for the grievor's three absences between March 18 and August 14. The jurisprudence of the Grievance Settlement Board has been relatively consistent since the Decision in Leslie and Ministry of Community and Social Services, 80/77 (Adams). At p. 13 of the Leslie Decision, Chairman Adams made the following comments: I( . ..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 Board under s.l7(2)(c) (now 18(2)(c) C.E.C.B.A.). .,&he employer cannot camouflage either discipline or the termination of an employee for a reason other 'than employee's failure to meet the - requirements of his position...This Board, therefore, has jurisdiction .to review a contested ,release to insure that it is what it purports to be. But in the adjudication of such a grievance, this Board is without jurisdiction to evaluate and weigh the reasons of the employer unless the collective agreement provides otherwise. The Board must only be satisfied that the employer, in good faith, released the employee for a failure to -8- meet the requirements of his position. As long as the Board can be satisfied that the employer has made an. evaluation of that kind, it has no jurisdiction to review the fairness or correctness of that determination under Section 17(2)(c)." Vice-Chairman Swan made the.following succinct jurisprudential observations in OPSEU (Peter Clarke) and Ministry of Correctional Services, 443/82 at p. 2: "The Board's jurisdiction has been developed in a number of cases, ,including Leslie, 80/77, Baladay, 94/78, .Tucker, 206/78, Pecoski, 95/80, Atkin, 323/80, Turcotte, 344/80, 6eane;596/81, and Walton; 612/81 Andy 613/81. While the test has been differently expressed from case to case, wee think that in essence the question before us is whether the Employer reasonably and in good faith execised the authority in Section 22(S) 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 f~act, and therefore.depends upon all of the circumstances of the case." Initially, therefore, the Board is required to charact.erize the matter on the facts adduced: namely, either as a bona fide release or a dismissal. The Union submitted four Board Decisions in support of its position - Ferraro and Ministry of Correctional Services, 373/84 (Delisle); Abdulla and Ministry of Municipal Affairs, 1103/85 (Verity); Shiralian and Ministry of Government Services, 0914/86 (Roberts); and Sheppard and Ministry of Government Services, 2492/86 (Slone). In all of these Decisions, the various Boards characterized 5~. . -9- the facts asdismissals rather than releases. Despite the Union's able submission, the four cases cited can be distinguished on the facts'. In our opinion, the.Eoard's jurisdiction has not changed in any..material respect since the Leslie Decision of Chairman Adams in 1977. In assessing the facts of the instant grievance, this Board is satisfied that what occurred was a bona fide release made in good faith and not a dismissal.' Simply stated, there is ho disciplinary connotation whatsoever in the termination of the grievor’s employment. The Employer made a decision based solely on the grievor's perceived unsatisfactory attendance record during~the probationary period and concluded that he failed~. to meet the requirements of the position. Therefore, having characterised the matter as a bona fides release, the Board is without jurisdiction to review the merits of the release nor the procedures followed in carrying out that release. In the result, this grievance must be dismissed. DATED at Brantford, Ontario,,this 24th day of May, 198s.