HomeMy WebLinkAbout1988-0051.Hawley.89-03-23 ONTARIO EMPL OY£S DE LA COURONNE
CROWN EMPLOYEES
GRIEVANCE C,OMMISSION DE ,
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST, TORONTO, ONTARIO. MSG 1Z8- SUITE2100 TELEPHONE/T£L~'PHONE
180, RUE DUNDAS OUEST, TORONTO, (ONTARtOJ USG 1Z8- BUREAU2100 (415) 598.0688
0051, 0389/88
IN T~tE HATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between:
OPSEU (A. Hawley)
Grievor
- and'-
The Crown in Right of Ontario
(Ministry of Natural Resources)
Employer
Before: N. V. Dissanayake - Vice-Chairperson
J. Solberg - Member
D. Montrose - Member
APPEARING FOR M. Ruby
THE GRIEVOR: Counsel
Gowling and Henderson
Barristers & Solicitors
APPEARING FOR P. Pasieka
THE EMPLOYER: Counsel
winkler, Filion & Wakely
Barristers & Solicitors
HEARING: July 14, 1988
August 16, 19B8
September 14, 1988
October 19, 1988
December 20, 1988
2
DECISION
These are two Grievances with respect to performance
appraisals dated February 8 and February 26, 1988
respectively, issued to the grievor Ms. Arlene Hawley.
They are filed pursuant to section 18(2)(b) of the Crown
Employees Collective Bar~ainin~ Act which gives an
employee the right to Grieve "that he has been appraised
contrary to the Governing principles and standards" The
union alternatively claims that the appraisals in
question were issued in bad faith with improper motives
and that the appraisals have disciplinary overtones. On
the agreement of the parties, the two grievances were
consolidated.
At the time of the appraisals in question Ms. Hawley
was employed as Acting Petroleum Resources Secretary at
the Ministry's Petroleum Resources Section at London,
Ontario. Ms. Hawley has been employed with the Ministry
of Natural Resources since August 1981. She held a
number of non-bargaining unit positions before coming to
this position. She was first employed in the Personnel,
Finance and Administration section as Personnel Secretary
and in 1983 took up an acting position in the Fish and
wildlife section fer approx±mately a year. 'Then she
returned to her job in the Personnel Section. In June,
3
1986 she was appointed as Acting Regional Personnel
Assistant. Once that~assignment ended in December 1986,
she once again returned to her regular job as personnel
secretary.
When she returned to her.job as Personnel Secretary
in December t986, her job had been reclassified under the
then new OAG system, as an OAG 6. She disagreed with
that classification and grieved under the Public Service
Act.. Subsequently she initiated further proceedings
including grievances relating to two performance
appraisals and one against a cautionary letter, a
complaint to the Public Service Labour Relations Tribunal
and a domp!aint under the Human Rights Code. All of
these proceedings were settled by a memorandum executed
on June 3, i987. As part of the settlement, the grievor
was placed as Petroleum Resources Secretary on an acting
basis. It is in this position that Ms. Hawley received
the two appraisals which are the subject of this
proceedisg.
When Ms. Hawley arrived at the Petroleum Resources
Section she was trained for about one week by her
predecessor. At the end of the training, Mr. P. Palonen,
5he Provincial Petroleum Supervisor, under whose direct
supervision she worked, met with her for under one hour.
4
When asked in cross-examination what was discussed, Mr.
Palonen testified, "we went through generalities. I told
her she will be getting work from various people. That
she will be in charge and that she can assign work to
Brigette Davidson". When asked if there was anything
else discussed, he said "I told her some specific things,
like, all mail has to be opened daily". Mr. Palonen did
not have a cody of a job specification for Ms. Hawley at
this meeting. He also conceded that the "performance
management cycle" or Performance appraisals were not
mentioned at this meeting. There was no discussion of
a review period. When Employer counsel asked whether he
felt that Ms. Hawley understood what exactly was expected
from her, Mr. Palonen replied "she came as a qualified
and competent secretary and I felt she knew what was
expected!'.
According to Mr. Palonen, between ~une, 1987, (when
Ms. Hawley commenced her job} to January 8, 1988 {when
the first appraisal meeting took place), on a number of
occasions he came across problems with Ms. Hawtey's work
and pointed those out to her. None of these was
documented.
Mr. Paionen was asked by Employer counsel how the
January 8, 1988 appraisal meeting ("First Me.eting") came
5
about. He replied "I had detected some minor concerns
through other staff. I thought she should have become
familiar with our procedure by now. I felt it would be
better if we can set up some specific tasks that can be
identified."
Ms. Hawley received approxima~tely a weeks notice
that a formal appraisal would be carried out on January
8. In prepar@tion she obtained a copy of her job
specification. On January 8, Mr. Palonen did not have
a copy ot her job specification, but she msde a copy for
him. The appraisa~ meeting lasted between 4-4 1/2 hours.
During the meeting between Mr. Paionen and Ms. Hawley
they could not agree on anything and there were heated
exchanges throughout. Mr. Palonen reviewed various
aspects of Ms. Hawley's work, and also raised the issue
of whether Ms. Hawley was adequately preparing herself
for other jobs, which she may wish to go to at the end
of her acting assignment. Ms. Hawley disagreed with
most criticisms of her work and indicated openly that she
did not want to discuss other jobs as she felt that that
was no~ a proper subject for discussion in a performance
appraisal4
It is not useful to review in any further detail
what conversations took place at the January 8 meeting.
6
Suffice it to state that after over four hours of debate,
the meeting ended somewhat abruptly with Mr. Palonen
stating that a written appraisal will be issued in two
days. Ms. Hawley was not informed on January 8 that a
further performance appraisal would be conducted.
The written appraisal, although promised in two
days, was not issued until February 8, 1988. Mr.
Paio'nen explained that the delay was due to the
difficulty he had finding someone to type this
confidential document. The appraisal which was filed in
evidence took the form of a six page single spaced
memorandum. It was an unusual performance appraisal in
that it was in the nature of minutes of the January 8
meeting. Mr. Palonen testified that he felt that the
government's printed performance appraisal forms were
"somewhat mickey mouse" and that he found it easier to
us~ the memo format for appraisals. Ms. Hawley insisted
tkat the written account of the January 8 meeting had a
number of untruUhs~ including the claim that target dates
were set ~ the meeting. At the conclusion of the
Memorandum Mr. Palonen wrote: "We agreed to review your
progress in dealing with these issues in one month or by
February !5th."
By memorandum dated February il, 1988, Ms. Hawley
objected to the contents of the written appraisal and
indicated that she looked forward to "cur discussion on
February 15, 1988 to finalize this appraisal." The
meeting initially scheduled for February 15 was postponed
until February 19 by Mr. Paionen's memorandum dated
February 16. On the basis of the evidence the Board is
satisfied that when Ms. Hawley attended the meeting on
February 19, she was under the impression that the
purpose of the meeting was to resolve the disagreements
about the first written' appraisal. Thus, with Mr.
Palonen's consentr she arranged a union representative
to attend that meeting.
The meeting on February 19th was attended by
Palonen, Ms. Hawley, the union representative and another
member of m~n~ement. Tke latter two persons were not
active participants in the meeting, which lasted some 2
1/2 hours. Mr. Palonen and Ms. Hawley started discussing
some of the contents in the first written appraisal, but
Ms. Hawley objected to practically everything that was
raised and they did not make much progress. According
to Ms. Hawley and the union representative, halfway
through the meeting Mr. Paionen suddenly announced~that
"from now on this is a new performance appraisal"
Resulting from this meeting, a second written
performance appraisal dated February 26 was issued, it
was just as lengthy as the first one and was also in the
same memorandum format and took the form of minutes of
the meeting of February 19.
These two appraisals are alleged by the grievor to
be contrary to "the governing principles and standards".
To establish what the governing principles and standards
are, the union filed excerpts from (1) The Ontario Manual
of Administration and (2) The Manual of kdministration
of the Ministry of Natural Resources. These include the
following:
Ontario Manual of Administration
Performance Appraisal Guidelines
The following performance appraisal guidelines
are presented to assist in the development and
implementation of effective performance
appraisal programs:
1. Define performance expectations that are:
set by manager and employee at the
beginning of e~ch review period;
re-examined during the review period and
revised where appropriate;
specific to each job;
consistent with the position description~
results oriented~
measurable.
9
2. Discuss actual performance with the
employee on a day-to-day basis throughout
the review period.
3. Base the evaluation at the end of the
review period on the employee's work
performance and accomplishments.
4. Discuss the performance ~valuation at the
end of the review period with the employee
and where the appraisal is written, provide
the employee with a copy.
5. Include in the performance evaluation at
the end of the review period a summary
ratine of the employee's performance so
that the employee has a clear understandinq
of whether overall performance has
exceededL met or not met the expectations
of the job.
6. Indicate, where performance expectations
have not been me~ what is required to meet
these expectations and whether improvement
has been demonstrated during the review
period.
7. Include in the appraisal of managers, their
operations of the performance appraisal
program.
{Emphasis added}
Manual of Administration of the Ministry of
Natural Resources
Performance Appraisal
Policy: It is ministry policy that employees
have a right to know how their
performance is viewed and are
entitled to an hones~ review and
written appraisal of their
performance by their supervisors.
it is ministry policy that this be
achieved through The Performance
Management Cycle.
A written record of each progress
review or formal appraisal is to be
prepared at least annually and is te
10
be kept by both the supervisor and
the employee. Documentation should
be in the form of a memo to the
employee with a copy to the manager
of the unit.
Performance appraisals are not to be
placed on the corporate personnel
file. There are two exceptions to
this part of the policy - one is in
the case of probationary employees
where quarterly performance
appraisals are mandatory and must
form part of the corporate personnel
file. The other is in the case of
any identified performance problems.
in this situation documentation
(pursuant to the Ministry's directive
on progressive discipline) should be
included in the corporate personnel
file. In the event of a grievance it
may be necessary to document
progress, and the performance
appraisals may be required for the
corporate personnel file.
Performance Management Cycle:
The Performance Management Cycle is
an ongoing process through which job
related goals and objectives are
achieved by the joint efforts of
employees and supervisors. The
Performance Management Cycle
involves:
a) assessing an employee's work
performance against job
requirements through both
formal and informal
communications between the
employee and the supervisor on
work-related matters,
b) assessing an employee's
potential for development and
providing the employee with an
opportunity to make career
goals known,
c) providing a system of
identifying performance
!1
problems and assisting in their
resoiuticn.
The Process:
The most basic element of the process
is a "contracting" arrangement
between the employee, the supervisor,
and the manaqer in which thev agree-
to "targets" to be achieved. It
should be noted that the nature of
targets can vary with the scope of
the job. in simple repetitive task--
based jobsf targets may be no more
than basic performance measures,
establishing standards as to the
quality and quantity of work expected
in a unit of time. As job
complexities increase, so should the
targets. Targets will have less and
less to do with day-to-day, job
performanc9 and will increasingly
identify areas where there can be
growth, improvement, and enrichment
in job performance.
The steps in the process should be:
1) The Supervisor and Manager meet
and agree on an overall
direction for h e un i t ,
including'the units targets,
plans, and goals.
2) The employee and the supervisor
have a preiiminar¥ discussion
during which the purpose of the
Performance Management Cycle is
explained, the unit's plans and
objectives are reviewed, and
the emDtovee's position
specification is reviewed for
accuracy and completeness. A
date is set for a formal
discussion.
3) The supervisor and employee
independently work on tasks or
assignments from first meeting
and develop ideas and
suggestions in preparation for
their next meeting.
4] The supervisor and the employee
meet again and, through
discussion, questioning and
examination, try to develop
three to six key targets which
the employee and the supervisor
can agree upon. In addition,
it is often appropriate to set
targets ih the areas of
personal growth and development
to ensure the employee's
training needs are clearly
identified.
NOTE: Steps= ~, _ ~ and 4 can be done as
one step and accomplished in
one meeting in most cases.
5) These targets are reviewed by
the manager to ensure
com~atibiiity with the unit's
work plans and objectives.
The agreed upon results are
then prepared in writing,' and
should identify what the
targets are and how each party
will ' ..... they ~=
~,v~ when a~
achieved; what are the minimum
required standards and how can
they be verified, what check
points there are on the way to
completing these targets and
what reporting requirements
have been established; what
constraints may exist to
achieving these targets; what
support is required from the
supervisor/manager.
The process is not a static one
and requires regular reviews of
progress towards targets
throughout the cycle. Once the
13
cycle is completed, a performance
appraisal is prepared.
(Emphasis added}
Counsel for the Employer agrees that not all of the
above have been complied with in the appraisals under
review. She submits however, that these are not ~srd
and fast stand[rds and principles but merely guide!in~s.
She contends that the Employer has substantially
complied with them and that the Board should not
intervene in the circumstances.
Counsel for the Employer is correct to the extent
that the Board will not require technical compliances
with the written words. ~[evertheless these policies
have a rationale and a purpose. IX the employer can
satisfy us that the rationale and purpose of the written
policies were achieved by some alternate procedure, the
Board is less likely to be concerned. Nor are we
concerned unduly about the use of the memo format in
place of the appraisal forms issued by the government.
What is important is that the process of appraisal used
must be such that the Board can be satisfied that the
concerns and objectives of the written policy have been
~et.
14
First ADDraisai
We turn to the first appraisal. The evidence is
that no position specification was discussed or even
available at the meeting between ~r. Palonen and Ms.
Hawley at the commencement of her employment. Mr.
Palonen testified that he essentially discussed
"generalities" No review period was set up ~or any
measurable expectations defined and there was no mention
of performance appraisals. The written appraisal refers
to a number of incidents and shortcomings but there is
absolutely no rating of the employees overall
performance. Suffice it to say that the Employer failed
to follow s6me of the basic guidelines in the Ontario
Manual of Administration.
The Ministry's own policy states (see su_~) Ghat
"The most basic element of the process is a
"contracting" arrangement between the employee, the
supervisor and the Manager in which they agree to
"targets" to be achieved.'? This was not done. Also Mr.
Pa!onen agrees that he did not at an~ time explain the
Performance Management Cycle to Ms. Hawley.
The evidence is clear that the appraisal meeting on
January 8 was net conduc't=d
cycle or review period. Mr. Patonen's own testimony was
15
that he decided to have the appraisal meeting on January
8 because he had received complaints from other staff
about the grievor's work. it was at that point that he
decided that it is appropriate to set some "iden'tifiable
tasks" for Ms.' Hawley.
The Board also Kotes that the appraisal is flawed
for a number of other reasens. Firstr it contained
numerous assertions which were not factual. For
example, the appraisal is critical of Ms. Hawley's
handling of incoming phone calls. Mr. Palonen testified
about his concerhs. It was alleged that Ms. Hawley told
a client who called that Mr. Palonen was at "coffee
break". Mr, 2alonen felt that such a response was not
tactful or professional. However, under cross-
examination it came to light that the allegation was
based on a complaint made by an unidentified client to
another employee at the office who in turn conveyed it
to Mr. Palonen. Despite the fact that Ms. Hawley was
not the only person who answered the telephone, Mr.
Palonen assumed without any inquiry ~hat it was Ms.
Hawley who took that call. Sini!ar!y, with regard to
his criticism of Ms. Hawley relating to a missing file,
under cross-examination l~r. Patonen admitted that the
misfiiin.~ co~id have been caused by someone else,
Nevertheless, he was holding Ms. Hawley responsible
16
~imply'because she was "in-charge", although he had not
investigated whether ~he could reasonably have avoided
the incident in her capacity.
The Board also finds that most of the "problem. s"
referred to in the appraisal were either never raised
with the grievor ~Jrior to January 8th or were casually
discussed in the course of dealin~ with the p~rt{cular
situations that arose in the office. Ms. Hawley was
not advised that her perform, anco was unacceptable. The
Board in Re Tara_schuk, 803/84 (De!isis) had this to say
about tko importance of bringing performance
deficiencies to the attention of the employee prior to
a formal appraisal:
It may possibly be that the appraisal
done by Mr. LaVictoire is an accurate
description of his perception of the grievor's
strengths and weakness. The problem is that
it appears that the grievor was not properly
advised of his criticisms. He believed, and
had reasonable grounds for believing, that he
was performing quite well. If the objective
of per form,anco appraisal is future
improvement, and the Career Development Review
?.spot t is to avoid surprises the process
adopted certainly failed the grievor in this
instance. He had no opportunity to effect
change. We declare that the grievor has been
appraised contrary to the governing principles
and standards and that he deserves to have the
offending passage expunged and all
correspondence relating to the same
from his Personnel File.
~7
We are equally of the view that Ms. Hawley was not
properly advised of any concerns that Mr. 2atonen may
have had and that therefore the allegations in th~ .
formal appraisal would have come as a surprise to Ms.
Hawley. [See also, Re Arora, 2165/~6 IVerity~].
The Board thus finds the first appraisal
fundamentally flawed for a number of reasons including:
(1) The employees specific job dut±es were not
rev±owed at the commencement of employment and no
targets were set (2) No review Der~od was set and the
employee was not advised that she was subject to a
performance review after a specified time or period
The concerns about the employee's performance were not
brought to her attention to permit her an opportuni~ty to
improve herself prior to the formal apDraisa! (4} The
written appraisal itself contained a number of
unsubstantiated allegations.
In these circumstances, the Board concludes that
the first appraisal is clearly contrary to the
governing standards and principles.
The Second Appraisal .
The second meeting was held approximately five
weeks after the first appraisal meeting and about ten
days after the first written appraisal was issued.
Palonen agreed that it was highly unusual to have two
performance appraisals within such a short period of
time. He also testified that he was not aware of
another appraisal meetin~ at which the enployee had
union representation. The term "performance appraisai'~
is a term which should be familiar to a supervisor in
the civil service. However, in the documentation
referring to the second meeting there is no mention of
that term. in the particular circumstances, the Board
cannot accept that Mr. Palonen inadvertently omitted to
use the proper phraseoloqy. As noted before, in her
memorandum to Mr. Palonen, Ms. Hawley referred to the
meeting scheduled for February 19 as a meeting to
"finalize" the first appraisal. It is reasonabl'e to
expect that if that was Mr. Palonen's intention, at
least at that point he would have immediately advised
Ms. Hawley in very clear terms that the meeting was a
formal performance appraisal meeting. However, this was
not done~ The unusual circumstances of one formal
appraisal having being held just five w~eks earlier and
the presence of the union representatiYe~ together with
!9
the absence of reference to a performance appraisal in
the correspondence all support the claim by the union
that it was during the meeting on February 19, ~hat Mr.
Palonen decided to conduct a new performance appraisal.
And of course such an impromptu performance appraisal
c~nnot be sustained under any
Mr. Palonen intended from the beginning to conduct a
performance appraisal on February !9, ~ are satisfied
that his intentions were not adequately communicated to
Ms. Hawley. We are of t~he opinion that Ms. Hawley
reasonably believed that the meeting on February igth
was for the purposes of discussing and resolving the
disagreements relating to the f~-=~___~ written appraisal
and that she was surprised when she found herself facing
a new performance appraisal.
It was apparent from Mr. ?alonen's test±mony that
he paid little attention to the guidelines for appraisal
as set out in the Ontario and Ministry Manuals. ~ndeed,
it appeared that he was not familiar with some of the
basic concepts set out therein. A supervisor who elects
to ignore the written policy runs the risk of being
~ound~ not to have complied with the governing standards
and principles. For the reasons set out above, the
Board is of the view that the
under review are so ~=~:~=~:=~,ta=i~ flawed
m~tive ar:,~ that they are in the nature of disciplinary
~ction.
Dated this 23rd day of MarCh, i~9, at Hs:.i!tsn,
Ontario '~
~.v. Dis~anayake, Vice-Chairperso-~-
g. Selborg, ~ember
D. Montrose, Member-