HomeMy WebLinkAbout1988-0458.Robinson.90-01-02:." CROWN EMPLOYEES DE L'ONTA RiO ~
GRIEVANCE C,OMMISSION DE
SETTLEMENT REGLEMENT (~-_ JA. N161990~.(~e.}
BOARD DES GRIEFS ~,~%.o,,u~ ,,.,.,,,_,, %,~.~,,/
;80, RUE OUNOAS OUES~ TO~NTO, (ONTARIO) MSG IZg . BUR~U 21~ (416) 5~-
0458/88
IN THE MATTER OF AN ARBITRATIO~
Under
-
· s~ c~o~ sM~o~sss co~sc~vs Bx~C~m~N~
Before ..}~ -. Ab~.ij~;$
T~E GRIEVANCE SETTLEMENT BOARD
Between:
0PSEU (Robinson)
Grievor
_ .and.~_-
The Crown ~n Right of Ontario
(Ministry of Culture and Communications)
Employer
Before= R.L. Verity, Q.C. Vice-Chairperson
P. Klym Member
- A. Merritt Member
For the Grievor: P. Lukasiewicz
Counsel
Gowling, Strath¥ &
Henderson
Barristers & Solicitors
For the Employer: C. Slater
Senior Counsel
Human Resources Secretariat
Management Board of Cabinet
Hearing: December 14, 1988
DECISION
In this matter, the Employer.denied the grievor an annual merit increase
on May 1, 1988 based on unsatisfactory work performance. In a grievance filed,
William Robinson alleged that he was improperly denied the merit increase. The
remedy requested was retroactive payment of the increase together with interest.
The Employer rais. ed a prelminary~objection that the Board was without
jurisdiction to hear the denial of a merit increase. The Union maintains the Board
has jurisdiction to determine the merits.
The preliminary matter proceeded by waY of concise oral submissions
following the introduction of some 12 Exhibits. William Robinson is employed as an
Instructor/Researcher at the Ontario Science Centre in Toronto. On August 17,
1987, he received a formal performance review from Supervisor Luigia DeDivitiis.
.T~e appraisal was critical of. the grievor's performanJe in'a~ number of areas and
required improved performance with regard to demonstration training, meeting
deadlines, and keeping the supervisor informed. The appraisal was not grieved.
On November 7, 1988, Ms. DeDivitiis sent the 'grievor a lengthy memorandum
specifying areas of perceived sub-standard performance. That memorandum {Exhibit
4) reads, in part, as follows:
May l, 1988 is your merit date. I hope to see a substantial
improvement in your work performance before .that date. If your
work performance remains unsatisfactory I Will defer your merit
increase for 6 months .....
...I have dealt with your unsatisfactory work performance on
various occasions. We have discussed your unsatisfactory work
performance at your performance review as well as at other
meetings. Your inability.to meet_ deadlines lead to a one day
unpaid suspension for you on Tues. July 7, t987 .....
On April 27, 1988, the grievor was advised that hfs merit increase would
be deferred. Again, the grievor was informed of specific areas of unsatisfactory
performance. The memorandum (Exhibit 3) reads, lin part:
On March 8, 1988 we had a meeting to discuss the Deferral of
Merit Raise ....
Since the March 8th meeting we have had several conversations
and two formal meetings (March 27 and April 7, 1988) to set
priorities and deadlines and to discuss your-work' -
performance ....
Several extracts from the Ontario Manual' of Administration were made
Exhibits at the hearing. The following provisions are relevant.:-
ONE STEP SALARY INCREASE
Entitlement: 'A public servant, providing his work has -
been satisfactory, Shall be granted an -
increase in salary annually or
semi-annually, as prescribed in the
· applicable salary schedule, from his
existing rate to the next higher rate in
the salary range.
Anniversary
Date The anniversary date:
~rmination, . Is a date established for each employee
General Rule: for use in salary increase procedure;
· Will be the first of the month following
appointment or other transaction, except
that where the transaction occurs on the
first calendar day or the first working
day of a month, the first calendar daY
of that month will be the anniversary
date.
The above general rule is subject to some
modification, depending upon the type of
transaction, as detailed in the appropriate
sections of this manual.
(See Alpha-Subject Index.) -
Salary
Increase - GENERAL POLICY - One step salary increases:
Provisions: . May be granted annually or lsemi-annually
as prescribed by the applicable salary
schedule;
· Will take effect on the employee's
anniversary date.
ANNUAL INCREASES - An employee whose
position is allocated to a classification
for which annual increases are stipulated
,~ will:
. Have one anniversary date per year;
. Be eligible for salary increases at
intervals of twelve months from the
anniversary date established at the time
of assignment to the classification.
Deferment
Of Salary GENERAC - Anniversary dates for salary
~ncrease for review purposes may be deferred under
Reasons of certain conditions where an employee fails
Performance: to perform up to the standards for his
position.
PERIOD OF DEFERRA~ - Where an employee is
denied a salary increase on his anniversary
date due to unsatisfactory performance:
. his anniversary date will be deferred
for a period of six months for classes
with annual increase provisions and
three n~nths for classes with
semi-annual increase provisions;
.. a salary increase may be recommended on
i, the deferred anniversary date; and
. a new anniversary date is established,
based on the date the deferred increase
is granted,
GUIDELINES - A salary increase may be
deferred for unsatisfactory performance
according to the following guidelines.
At the time it becomes evident t~at an
employee's performance is such that his
work falls below the output expected from
the job, corrective action should be taken
by his supervisor.
If the situation is such that the
supervisor considers that an increase in
salary may not be earned, he must so inform
the employee, and set out formally for the
employee the ways in which his work is not
satisfactory. This must be done
sufficiently in advance of the employee's
anniversary date to provide the employee
with a reasonable opportunity to improve
his performance.
~ If, in spite of corrective action, the
employee has not improved his performance
by the time of his anniversary date:
· a salary increase may be deferred for a
period of six months in the case of a
classification with annual increase
Provisions, and three months in the case
of a classification with semi-annual
increase provisions;
· during the three or six month period,
the employee's performance must again be
reviewed and, if-no improvement in
Performance is noted, the salary
increase may be deferred for a further
three or six months.
- If, during a second three or six month
deferral, the employee has not improved his
Performance sufficiently, to warrant the
granting of a salary increase, action to
effect demotion or dismissal should be
considered.
The purpose.of these guidelines is not to
facilitate demotion of dismissal, but
rather to estao)ish a supervisor/employee
relationship that will assist in correcting
situations involvin9 marked
under-performance.
PERFORMANCE APPRAISAL
Performance
Appraisal Performance appraisal is a three-step
process whereby a manager and an employee:
· define the performance that is expected
of the employee during, the next review
period;
· discuss performance on an ongoing basis
during the review period; and
· evaluate job performance at the end of
the review period.
Reference was made to the following sections of the Crown Employees
Collective Bar§aining Act: .2
18.(1) Every collective agreement shall be deemed to
provide that it. is the exclusive function of the employer to
manage, which function, without limiting the generality of the
foregoing, includes the right to determine, _
(al employment, appointment, complement, organization,
assignment, discipline, dismissal, suspension, work
methods and procedures, kinds and locations of
equipment and classification of positions; and _
(b) merit system, training and development, appraisal
and superannuation, the governing principles of
which are subject to review by the employer with
the bargaining- agent, _
and such matters will not be the subject of collective
bargaining nor come within theljurisdiction of a board.
(2) In addition to any other rights of grievance under
a collective agreement, an employee claiming,
{al that his position has been improperly classified;
(b) that he has been appraised contrary to the
governing principles and standards; or
(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
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 application under section 19.
The Employer argues that s.18(1)(b) of the Crown Employees Collective
Bargaining Act confers upon the Employer exclusive jurisdiction to.establish and
manage the merit system including the right" to determine under what circumstances'
the merit increase will be given or deferred. Mr. Slater relied upon the decision
of Vice-Chairman Palmer in OPSEU (J. Dickie) and Ministry of Health, 314/85-as
being dispositive of the instant grievance. He contended that the real issue was
the denial of a merit increase and that the limited right given an employee under
18(2} to grieve an appraisal does not grant a similar right to grieve the denial of
a merit increase.
For the Union, Mr. Lukasiewicz contended that while the Board had no
jurisdiction with regard to the structure of the merit system, it did have
jurisdiction to consider an attack on the management of the merit system. The
Union acknowledged that the form of the grievance was problematic, However, the
thrust of the .Union's argument was that the~parties under~tood the grievance was in
reality an attack on the accuracy of appraisals on which the denial of the merit
increase was founded. Mr, Lukasiewicz argued that appraisals and the merit system
are inextricably intertwined. The Union maintained that Exhibits 3 and 4
constituted appraisals and that the issue therefore becomes whether or not those
appraisals were completed in accordance with the governing principles and
standards. In sum, the Union sought the r~ight to attack the accuracy of alleged
incorrect appraisals (Exhibits 3 and 4). At the hearing, the remedy sought by the
Union was the removal of alleged inaccurate appraisals and the substitution of
proper appraisals.
Despite the attractiveness of the Union's argument, the Board is
persuaded that the Employer's pretminary objection is well-founded.
Under s.18(1)(b) of the Crown Employees Collective Bargaining Act, the
merit system is a matter within the exclusive jurisdiction of the Emplyoer subject
to the limited right given the Union to review "the governing principles" with th6
Employer. The sub-section also provides that matters specified in (1)(al and (b)
cannot be the subject of collective bargaining or come within the jurisdiction of
the Grievance Settlement Board. In addition, the Collective Agreement is silent on
the subject of a merit increase.
t Inevitablly, there will be some relationship between performance
appraisals and the merit system. The Ontario Manual of Administration Policy on
Performance Appraisals doeslstate that "other organizational requirements such as
merit pay...are facilitated by performance appraisals". However, in our opinion,
the merit system and the appraisal process are separate and distinct entities. In
these particular circumstances, the formal.appraisal was completed in August of
1987 and made no mention of a merit'increase. Although the documentary evidence
established that the gfievor was unhappy with the appraisal, he chose not to file
grievance.
In s. 18{2)(b} of the Crown Employees Collective Bargaining Act, an
employee is given the limited right to grieve that he has been appraised "contrary
to the governing principles and standards". There is no corresponding right to
grieve the merit system.
-9-
While it may be said that the contents of Supervisor DeDivitiis'
memoranOa (Exhibits 3 and 4) relate exclusively to the grievor's perceived
unsatisfactory performance, they do not constitute formal appraisals. Rather, they
are part of the process specified in the One-Step Merit Increase at pp. 7 and 8 of
the Ontario Manual of Administration.
In OPSEU (Flinn et al) and Ministry of Health, 22/88, Vice-Chairman
Kennedy makes the following relevant comments at pp. 7 and 8:
...the jurisprudence of this Board clearly establishes that the
jurisdiction under Section 18{2){b) applies only to a formal
appraisal of the Grievor in his existing job. Reference may be
made to Isaac and MacIsaac 742/83 (Kennedy}, Cloutier 20/76
(Beatty), and Cunningham 279/79 (Jolliffe).
The Union alleged that the facts of the Dickie case, supra, represent an
attack on the structure of the system and not an attack on the management of the
system. With respect, we cannot agree. Vice-Chairman Palmer's comments at pp. 5
and 6 of the Dickie DecisiOn merit repetition:
...Obviously, the request.of the Union asks us to determine the
way in which the Employer has managed the merit system which is
established..This, in our opinion, is something we cannot do.
All the right the Union has with respect to this system is to
have the ability to review "the governing principles" of this
plan with the Employer.
For the reasons stated, the Board. must conclude that we are without
jurisdiction to determine the merits of the denial of a merit increase.
- 10-
Accordingly, the preliminary objection must succeed.
DATED at Brantford, Ontario, this 2nd day of January, 1990.
R, L. VERITY, Q.C. - VICE-CHAIRPERSON
"I dissent" (Dissent attached)
P. KLYM - MEMBER
A. MERRITT - MEMBER
DISSENT
With great respect to the reasoning by the Chair regarding the
issues in the preliminary objection to arbitrability by the
Employer, I find I must dissent.
Section 18(1)(b} of The Crown Employees Collective Act gives the
employer the right to determine the merit system. There is no
argument that the determination of the system (its structure,
provisions and details) are not subject to review by the Grievance
Settlement Board.
However, there is a considerable difference between establishing
or "determining" a merit system and the day to day application of
that system to individual employees. The Act does not
specifically state that it is also an exclusive management right,
not subject to any review by the Grievance Settlement Board, to
apply the rules of the merit system they have established to
individual employees in any manner they see fit.
In my opinion, neither Section 18(1)(b) nor any other section in
the Act precludes a reversal of a management decision on an
individual merit increase if this is a' consequence or a remedy
flowing from a 'reviewable issue. As an analogy, consider the
issues of complement or assignment. It is accepted that both
these issues are generally outside the jurisdiction of review by
the Grievance Settlement Board. However, if an issue such as
Safety and Health is determined to exist, the consequences or
remedy flowing from this revieWable issue could necessitate that
the Grievance Settlement Board involve itself in the issues of
complement or assignment. Failure to involve these otherwise
"exclusive" functions could result in the Grievance Settlement
Board's inability to fashion a remedy in deciding an issue as
required by Section 19 of the Act. Similarly the Grievance
Settlement Board, through' its jurisdiction flowing from a
reviewable issue, may find it necessary to involve itself in the
application of the merit system in fashioning .a remedy and, in my
opinion, the'Act does not preclude this.
The majority decision places some reliance on the decision in the
case of OPSEU (J. Dickie) and Ministry of Health, GSB 314/85.
In my opinion this case is distinguishable from 'our issue. In the
Pickle case, the grievor was absent due to sickness for 115
calendar days. The merit system plan provided that where there
was a Leave of Absence, with or without pay, and in excess of 60
days, the merit increase would be deferred'. The real issue was
whether sickness absence fell into this category of "Leave of
Absence with or without pay". There were no facts or subjective
judgements by management in dispute. The issue was an
interpretation of the provision of the merit plan.
One can understand the rationale in the Dickie decision when they
refer to the employer's right to manage the plan, because the
"managing" to which they were referring was the making of
objective interpretations of the provisions of the plan.
The Board in the Dickie case was not faced with an issue of a
management' decision made under the plan based on incorrect facts
or information. The situation would be subs'tantially different if
they were faced with a dispute regarding a wrong calculation of 60
days of absence or other incorrect information such as an employer
performance appraisal.
I do not believe the Dickie case stands for the proportion that it
is the exclusive right for the employer to make decisions for an
individual employee based on incorrect facts or information and
that such a deci§ion is not subject to review.
It is logical to conclude that if the grievor's performance
appraisal had been judged as being satisfactory then he would have
received the merit increase. Indeed the One Step Salary Increase
provision in the Ontario Manual of Administration states that a
public servant shall be granted an increase providing his work has
been satisfactory. The grievor's formal appraisal was in August
of 1987. He did not agree with this appraisal and there was.
correspondence between him and his supervisor into November 1987,
when the supervisor - through Exhibit 9, dated November 10, 1987,
re-affirmed her appraisal and set down specific assessments of his
performance and the improvements she wished in the deficient
areas. This was all part of and a continuation of the particular
appraisal of August, 1987. I would also consider that the letter
to the grievor on March 7, 1988 (Exhibit 4) advising him that his
merit increase, was in Jeopardy is actually a review and a
continuation of these same issues that are in dispute in the
performance appraisal.
Obviously the appraisal of the grievor had an impact on his merit
increase. The merit system and the' appraisal system may
technically .be separate entities but -there can be no doubt that
there is an interrelation and that they are in fact intertwoven.
The issue before this Panel is - What. is the real grievance?
Even though the statement of the grievance is that he was denied
his merit increase, it seems obvious to me that he is complainlng
regarding his performance appraisal which resulted in a denial of
his merit increase. This is the only reason he did not receive
the increase. Indeed the employer's written answer to the
grievance (Exhibit 12) refers specifically to the dissatisfaction
with his work as he was informed through his performance
appraisal.
Perhaps if the grievor had clearly put down the words on the
grievance stating that he felt he was improperly appraisal and, as
a result, denied a merit increase, the perception of the
jurisdictional issue might have been different. But this is in
fact the~real grievance. Unfortunately workers are not all aware
of the nuances in how they form their complaint into words and I
do not believe it is proper for arbitration boards to be.overly
technical and Iegalistic in appreciating this reality.
As stated above, in my opinion the real grievance involves
performance, appraisal and the Board has ju=isdfction pursuant to
Section 18(~2)(b). I believe nothing turns'on the issue that no
grievance .regarding the appraisal was not filed when the grievor
first .expressed dissatisfaction with the appraisal. Since
jurisdiction flows from Section 18(2) of the Act, timeliness
cannot be affected by the terms of the Collective Agreement, as
stated in GSB Decision 2165/86 Arora (Chairman R.L. Verity).
I would disallow the preliminary objection and proceed to hear the
merits of the grievance.
Peter Klym~ ~~