HomeMy WebLinkAbout1988-0410.Shaw.90-10-30" GRIEVANCE CpMMISSION DE · ~ ~ ~- x. ,
S~LEMENT REGLEMENT
BOARD DES GRIEFS ~. ~., ''''~ ~''
~80 DUNOAS STREET wEST, TO~O~O, ONY~lO. MSG ~Z8-SUITE 21~ TE~EP~E/T$~ONE
1~ RUE DUNDAS OuEST. TO.TO, ~ONTA~O~ ~5~ ~- 8UR~U21~ 14~) 5~.~e
4-10/88
IN THE MATTER OF AH ARBIT~TION
Under ."
T~E CRO.WN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SZTTLEMENT BOARD
BETWEEN
'OPSEU (Shaw)
Grievor
The Crown in Right of Ontario
(Ministry of Community & Social services)
Employer
BEFORE: A. Barrett · Vice-Chairperson
W. Shipman Member
I.'J. Cowan Member
FOR. TH~ J. Paul
GRIEVOR Grievance Officer
Ontario Public Service Employees
Union
FOR THE M. Gottesman
EMPLOYER Employee Relations officer
Legal Services Branch
Ministry of Community &
Social Services
~EARI~G: June 8, 1990
_ iI
The grie¥or was a probationary employee who, on April 12.
1988, was released by the Deputy Minister under the authority of
Section 22(5) of the Public-Service Act for ostensibly having
failed to meet the requirements of his Position. This board' is
asked to find that the release amounted to a dismissal without
just-'~ause which we have jurisdiction to deal with.gnder Section
18(2) (c) of the Crown Employees Collective Bar~aininq Act.
The extent to which this board may review the exercise
of a Deputy Minister's discretion to release, a PrObationary
employee was usefully summarized and explained in Sheppar~, GSB
2492/86 (1988) (Slone) at ~age 10 et 'seq.
As already stated, the authority for a Deputy
to release a probationary employee derives fr°m ~ction 22(5)
of the Public Service Act, which reads as
"22(5). A deputy minister may release from
employment any publl~ servan~ during tbs first
.z_ year of his employmen~ for failure %o meet the
--- requirements of his l>osition.'
The exten~ to which this board may review the exercise
of this authority, was first co,sidereal ia the case of R_~e
Leslie and The Crown in Right o~ Ontario (Mini'stry of_
Co,unity and ~cial Se~ices), (19~8) 2~ L.~.C. (2d) 126
. .. (Adams). At page 134 of that decision, writing for the
majority Chairman Adams ,aid as follows,
"... this Board is of the opinio~ that the
employer can.no~ camouflage either discipline or
the termination' of an employee for a
other than the employee's failure to mee~ the
requirements of his position, as that phrase is
~- explained in the gquare D Co. Ltd. case by the
~ise of a 'reissue' un~e~ ~ctio~ 22(5] of ~he
Public Se~ice Act. ~is Board therefore, has
~urimdic{ion %0. review a contested r.leas, to
in the adjudication of such a grievance, %him
board i~ without jurisdiction %o evaluate a0d
weigh the reasons of the employer .unless
Coll.c=iva Agreemen= provides othe~ise,
Board mus% only be satisfied %hat the employer,
in good faith, relea=ed ~he employee for a
failure %o meet the requirements of his
position. As long as %he Board can be
satisfied that %he employer has ~de a~
evaluation of %ha~ kind, i~ has no
to r~vi~w the fairness or corre~nes~ of that
termination under $e~ion .17{2) (c).' (Now
18(2)(c) of the C~w9 Em~loje~ Collective
Bar~ain i~g
~m Leslie decisio~ wa~ considered some six year~
later in the case of OP~U (Vinos Fer'raro) and ~e Crown
Riqht-of_Ontario (Ministry 9f. Corr.ct~omal Se~c,s), O.S.B.
373/84. A~ Page 4 of %he Ferraro decision, Vice-~ai~an
Dellsle ~i~es as
"In Xnsanally, (Jolliffs), 7/83 'this Board
noted fha: one o~ the questions lef~ o~n after
'~ Leslie and its progeny wae~
'... whether the Board has any ~wer to a~%
satisfied tha= the 'release' was not ~na fide,
i.e. was no,.made for any v~iid reason
what~o'ewer .... To $~y %ha% %he Board has no
Jurisdiction when the release ha~ been mada in
9sod faith ls clear enough, but it fails to
tell us what, 1~ anything, can be done a~ut a
release not made in good faith or not made for
valid re~'s6ns or made for no reason at all, 'or
made by mistake.'
with the greatest respect the learned
arbitrator has mis-stated the qae~tion. The
clear implication from Leslie is that the good
faith of an employer can be looked to for .the
purpose of determining whether the termination
is a 'release'. This Board can examine the
process used by the employer and determine
whether what it has chosen to characterize as a
release truly is such; if the termination is
not a r$1ease it is a dismissal and hence
arbitrable under $. 18(2)(c)'. To adopt the
language of _Halad2f (Swan) 94/781
'There is a-difference here, of course, between
a review of a grievance on its facts and a
review on the merits. A review on the facts
may well reveal that, no matter 'how clearly the
merits favour the grievor, the Board is simply
unable to award any remedy.'
So too, thouqh the Board refrain from examining
the merits, a review of the grievance on its
facts may entitle the ~rievor to a remedy."
In the later case of OPSEU (Gulshan Abdulia) and the
Croton. in Right of Ontario (The Ministry of Municipal
Affairs), G,S.B. 1103/85, a similar question arose. In
considering whether or not a release purportedly made under
the authority of Section 22{5) of the Public Service Act
could be sustained, Vice-Chairman Verity stated the test as
follows~ (Page 9)1
"For the Employer to succeed, i% musk satisfy
the Board that it acted reasonably and ~n good
faith in releasing the Grievor based on her
overall Job perfor~:ance. On the evidence,
Board iS not satisfied that the Employer has
me% that test."
In %he more recent case of OPSEU (Manon $chirallan)
and The Crown in-Right of Ontario (_Ministry of Government
_~er¥ices) G.$.~, ~91,4/85 IRoberts), tb'e Board in that cas,
sun~marized the Jurisprudence as follows (Page. 12)~
".., our attention was directed to a sufficient
number'of the legion of release va, di~missal
cases' which have passed through this Board to
remind us of the ~rinciples to be applied in
this area. Basically, tbs %erminatioa of a
Probationer must be reviewed to determine
'whether the Employer reasonably and in good
faith exercised the authority in Section 22(5)
of the' Public Service Act tO release [the
probationer] ..., and ~id not seek merely to
cloak a disciplinary d£schar~e behind the
release procedure.' Re Clarke and Ministry of_
Correctional Services,'GSB 443/8~ fSWan) at p.
~. See also, Re Abddlla and Ministry of
Municipal Affairs (1986~, GSB 11.83-/85 (gerity),
where the Board reinstated an employee after
finding that her purported release was not
based upon a reasonable and good faith
assessment of her performance.
We find that the same result must be reached in
the present cas~, .¥or 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.
There seems to be little doubt that the release
of the grievor in this case was based upon the
conclusion Of management that the 9flavor was
one of those people who were incapable of
handling the st-tess of ~eing attached %o a
switchboard console day after day. According
to the evidence, thl~ conclusion was derived
virtually entirely from the attendance,
punctual~ty, etC., record of the grievor. As
far as this Board is aware, no effort was made
to sub~tantiate %his hypothesis. The ~riev~r
was not even asked about it. There was no
medical evidence to establish such a link. As
far as the record indicates, no effor~ was made
to establish medical Confirmation,"
In disposing Of the master at PaSe 14, the 8oard in
Shir~lian found'that the Orievor's release was:
'not based upon a reasonable and good faith
ex~ciae of the authority of management under
Section 22(5) of the Public Service Act. 'This
leads us to the conclusion that '%he't,~mination
of the Grievo~ wa~ a dismissal without Just
cause.~
It can be argued with some logical force %hat %his
Board does not sit as an appeal tribunal from the decision by
a Deputy Minister to release a I~robationary employee for
failure to meet the requirements of the position. We are not
'entitled to submtitute our assessment of th~ probationer's
Job performance for that of the Deputy Minister. However,
'~the Jurisprudence of this Board entitles us to review certain
aspects of %he release. The considers%ions fall within three
~omewhat overlapping categoriesl
A'~ Lack of Good Faith,
If the Employer lacked 9ood faith in releasing
probationary employee, then the ostensible "relea~se" will be
considered actually to have been a dismissal, which ¢~n be
grieved under Section 18(2}(¢) of the Crow~ F. mployees'
Collective Bargain.in] Act. Clearly the bad faith, if found,
must be relatively serious.
B. Unr~easogable ~,
While this te~ is utilized in the earlier ~ecis!.ons we
employee's Job performance and reinstate ]~im if w~ find
%h~ a~se~ment was "onr~asosab~u" ~ha~ the employee had no~
met the Job requirements. Reasonablene~ In this context
a species of good faith.. ~ereas the ~hrase 'bad faith'
could encompass a r~leasm improperly ~ivated or ~liciously
intended, 'unreasonableness" speaks ~re %o an obJec~ive
assessment that the release di~'not fl~ loqically or
rationally from the facts. If, for example, there'was si~
no evidence that a probationary employee had not~fulfilled or
could not fulfill the Job r~uirements, then no matter how
well meaning were the actions of his. superiors, the release
would have been an unreasonable exercise of authority.
C. Rational Relationship ~e~ween the Facts end,he
Release~
~is factor is nearly synon~us with
"reasonabIeness~. If the E~loyer's assess~nt %hat a
certain set of fa~$ Justifies release ts 'irrational= on any
half-intelligent view of the ~tter, ~en thee release becomes
a discharge and can be reviewed. ~e "rational relationship"
test shoul~ not be placed too'high~ It Is easy to brand
"irrational= any ~hought process or decision with wht~ one
does not agree. ~e Deputy Minister must be free to make
decisions, wi%hour being found ~o have .acted irrationally
merely bec'ause a Board of arbitration might have come ~oa.
dif f,rent conclusion."
The union attack on Mr.,$haw's release is fourfold.
1. It ia said' that Mr. Shaw was not properly o~iented in
the job, but was l~ft to learn for himself what was
expected of him,
2. It is said that supervision of him was sporadic and
wholly insufficient.
3. It is said that he received only one formal performance
appraisa~ during the 11 month course of his employment;
that it was shockingly negative; that he was given
insufficient cred'it for improvements m~de thereafter; and
was led to believe that he was making s~tisfac~tor~
improvement.
4. It is said that SuperviSory expectations of him were-too
high in that he. was assessed as a Social Worker II,
although classified as a Social Worker I-working in an.
"underfill" capacity. Under this heading it is also
asserted that allowances were not made for the two
-~'-- ~ physical disabilities the grievor bears.
We heard extensive evidence over the seven days of
hearings and received 40 exhibits, all of which we have carefully
reviewed in attempting to determine whether Mr, Shaw was properly
released for+ failing to. meet the. requirements of the job or
dismis.sedwithout just cause.
The grievor was hired on May 11, 1987, as a Vocational
Rehabilitation Counsellor to work in the Welland office 'which is
a satellite o~ the Hamilton office. His job was to assist people
.with'mental, physical.or emotional difficulties to find appropriate
employment. He was required to assess clients, determine their
eligibility for vocational rehabilitation, formulate plans for
them, and counsel them. The incumbent in the position requiras
skilled social work techniques, a knowledge of the governing
legislation, programs available, availability of resources, good ,
knowledge o~ the labour market, and an ability to market the
program to prospective employers.
When he was hired, Mr. Shaw had held a B~.W degree for
three years and had' worked as a life skills trainer and
rehabilitation aide with adults with traumatic head injuries for
two of those three years. During his last year at Universihy, he
had worked three 'days a week as a Vocational Rehabilitation
Counsellor in London, Ontario. Thus, he had some familiarity with
the job and some experience as a professional social worker.
Because hi~ working experience was not directly related to the job,
he was hired on an "underfill" basis and told that he would be
classified as a Social Worker I, and paid at that level for up to
two years until he fulfilled the experience requirements to bring
him up to the Social Worker II level.
The Welland office is a "remote" office. Mr. Shaw was
the only Vocational Rehabilitation Counsellor ther,. He shared
office space with a group of people working in the Family Benefits
area, and sha~ed a clerical support staff with the Family Benefits
people. His first supervisor, Liz Voogjarv, was located in St.
Catharines, and she supervised six counsellors located in St.
Catharines, Niagara Falls, and Welland. Four counsellors were
located with her in St. Catharines. The Welland and Niagara Falls
offices had one each.
When Mr. Shaw was hired, he understood that supervision
was to be remote and that he would not have daily contact with his
supervisor. He thoupht he could handle that, and certainly other
V.R.S. counsellors 'in an underfili position have been able to
handle it well.
There was some dispute in the evidence.about how much
supervision Mr. Shaw actually 9or. Both of his supervisors, Ms.
Voog~ar~ and Mr. Felton, had to rely on their diary entries to
determine when they had seen Mr. Shaw for purposes of supervision.
They could not honestly re.call the length of time spent with the
grievor in each session, nor could they specifically recall if all
appointments noted in their diaries were kept. Mr. Shaw, too,
referred to his diaries in detailing'his meetings with his
supervisors, and generally disputed that he got as much supervision
time as was alleged-by management. All in all, Mr. Shaw says that
he met'with.Mi. Voog3arv for supervision about 11 times in her six
months, as his supervisor, and another 11 times with Mr. Felton, his
subsequent supervisor. He said that most meetings were an hour or
less, although about two-and-one-half :hours was spent discussing
his first pe{.formance appraisal on September 2nd. ~.
Mr. Shaw says that Ms. Voogjarv did not meet' him on his
first d~y of employment to orient him and introduce him 'to other
people in the office. He was met by the previous incumbent, one
.Mr. Foster, who spent only about 45 minutes with him. Four days
later, Ms. Voogjarv came to the Welland office and gave him a brief
Orientation and a list of performance expectations for. the job.
These performance expectations pertained to the Social Worker II
standard.
The Social Worker class standard in this Ministry
describes Social Worker I. as "the entry level for recruits with
minimum qualifications and no experi'ence." Social Worker II is
described as "the full working level for qualified social workers."
The Social Worker I standard is expanded as follows:
"This class covers entry level positions of social
workers who are gaining casework experience following completion
of undergraduate profes§ional education. Employees receive
instruction on departmental programs ~nd policies from a senior
social worker Who assigns and supervises work. Under close
supervision,' they conduct interviews', compile case histo'ries,
assess problems, and recommend supportive treatment. They Provide
counselling and Utilize appropriate community resources to meet
clients' -needs. In all positions at this level, assignments are
selected to provide scope for the development of competence.
Senior social workers provide professional ~uidance and review
social treatment decisions.
Management witnesses testi'fied that they had essentially
the same performance expectations for Social Worker i's and Social
Worker II's. Ms. Voogjarv felt there was only a slight degree of
difference and that ~her expectations 'for both are the same. Mr.
Felton also testified that' his expectations were ~not really
different for Social Worker %'s and Social Worker II's. Mr. Felton
couldn't recall seeing the class standards and wasn't aware of
their contents.
Ms. Voogjarv said that her method of supervision of new
counsellors is to have meetings with them approximately every two
weeks, and otherwise to be available bY telephone to answer
questlon$, to courier files and memos between the offices, and to
discuss individual problems with counsellors at regular staff
meetings. She delivered her schedule to all counsellors every
Friday so that they would know where to locate her in the event a
problem arose. She said that the grievor did not avail himself of
these opportunities; he rarely telephoned her, and refused or
neglected to Send her files for review on a regular basis. In
response the grievor says that Ms. Voogjarv was difficult to get
hold of bF phone and Would take too long to respond to his
messages. Ne stopped sending her files because she kept them too
long, and he was un'able to work on them in' their absence.
Fairly early on, the grtevor's support staff,. Ms. Roper,
complained to her supervisor, Ms. Riley, and to Ms. voogjarv that
· the grievor was difficult to work with and did not seem to
understand or follow office procedures. Mr. Shaw's inability to
get along with Ms. Roper was cited as .one of the main reasons the
grievor was found to be unsu{ta~le for the job. Ail management
witnesses ~estified that Ms. Rope~ was a long service employee with
excellent clerical and people skills.. Everyone else got along with
her well', and her complaints about Mr. Shaw must 'have been well-
. founded. Strangel~ enough, Ms. Roper was not called to give
· - evidence at the hearing, although we understand she is still
employed by the Ministry, and was not Said to be un~vailable for
any reason. As a result of these complaints, Mr. Voogjarv met with
Mr. Shaw and Ms. Roper in Welland in early Augu-~t to fully explain
to him the office procedures, turn-around time, and paper flow
expectations.
It was in early August tha~ Ms. Voo~jarv decided that
things were not working out. Not-onl~ were Ms. Roper and her
- 13-
supervisor, Ms. Riley, complaining about the grievor, but so were
the other V.R.S. c6unsellors who interacted'with the grievor at
staff meetings.
On September 2, 1987, Ms. Voogjarv had a long meeting
with Mr. Shaw to discuss his performance appraisal from his start
date, May llth to August 31st. The performance appraisal is
compendious and contains criticisms followed by expectations under
12 headings, summarized as follows:
a) Caseload Management,
It was noted that Mr. Shaw had a present caseload of 40,
and that the area expectation of caseload size is 50
clients. All counsellors are expected to open four files
per month, and close four files per month. Mr. Shaw had
opened 2.5 files per month,, and closed 1.75.
Organizational Skill~
It was noted that the grievor was not able to readily
access information or remember whether he had received
items iB circulation. The expectation was that he become
better organized by creating an efficient filing system.
C) Followln~ Instructions
Deficits in this area were considered' crucial and
significant by Ms. V0ogjarv., When Mr. Sha~ was asked to
provide a list of the status of all files, he referred
to only 28 clients out of a caseload of 39. On July 3rd
Mr. Shaw was asked to send Ms. Voogjarv five files a we~k
for review. Two weeks later, five files were forwarded,
then no more were sent until after the performance
appraisal was scheduled. Five additlonal files were Sent
on August 28th and another five on August 31st, just
prior to the performance appraisal, givin~ Ms. Voogjarv
insufficient time to review them before the apprai?al.
Mr. 'Shaw was also asked on July 3rd to provide Ms.
Voogjarv with advance notice of up-coming interviews so
that she could make plans to observe them. More prodding
was required before interviews were scheduled for July
28th and August 19th. Ms. Voogjarv provided to Mr. Shaw
a detailed critique of the files that were submitted to
her, and in the majority of cases, she found the file
notations confusing and incomplete. On August 6th Mr.
Shaw was asked to submit in writing his expectations of
his supervisor, his support staff and his fellow
counsellors. This was not received prior to the
performance appraisal.
d) Working Relationships with Clients, Aqencies, Peers,
Supervisor
It was noted that Mr. Shaw lacked confidence in dealing
· with clients and peers, that he was ~ore of an observer
than .a participant, and that he was not using his
clerical staff as effectively as he could. He was
encouraged to phone his supervisor at any time, and to
work at building relationships wit his peers and clerical
staff..
e} Communication Skills
It was noted that Mr. Shaw lacked a sense of humour, and
displayed an inability to express emotions and emotional
support with his peers. He would sometimes stand or sit
too close to others, and at other times appear to be
aloof from the group. He was better with clients,
however. With respect to his written communications
skills, his recording was found to be generally concrete
and factual, but lacking in analysls and appraisal. An
assertiveness training course was recommended.
~.rr.- f) Dependence/Independence
Under this heading Ms. Voogjarv asserted that Mr. Shaw
had received close supervision, but had failed to ~ispla~
independence in identifying topics for review, and
exhibiting and understanding what he has been taught.
Initiative
It was 'noted that Mr. Shaw was not a very active
participant in staff meetings and'he was encouraged to
take more initiative in this regard. He was alsO advised
to modify or adapt the procedures in the Welland office
to suit his own preferences if the existing procedures
dj4 not suit him.
h) Innovation
Mrs. ShAw was asked to expand his awareness of community
agencies.
i) Decision Making Skills/Judgment
Again it was noted that Mrl Shaw'_s'file recording lacked
assessment and appr'ai~al, and that he was to improve in
this area.
j) Leqislat{on. and PolicE
Un~r this headinG, Mr. Shaw was encouraged to gain a
better familiarity with the policies and ~procedures
manual 'by identifying areas for discussion in future
supervision sessions, He was also asked to meet with
Ms. Riley, ~he Family Benefits supervisor, to discuss and-
explore the inter-relationships of their clients with
e~ch service. At this point, Ms. Riley and Mr~ Shaw had
had very little commlunicationlwith each other.
k) Kn~owle'dqe of Di~abilit~es
Mr. Sh~w'waS~directed to increase his'knowledge by visits
to. variOus'agencies which deal with client ~roups.
1) J~b~Placement
· Mr. Shaw was asked.to develop.'a Job search technique to
use. with clients.
All in all~, Mr. Shaw was pretty depressed to learn that
he was perceived as being deficient in all areas. Mr. Shaw
'- that at the end of this ~'nterview, Ms. Voogjarv suggested he should
resign rather than wait around and be released later. Ms. Voogjarv
does not recall saying t.hat,.although she said she might have ~ai~
something like that in response to a direct question by Mr. Shaw.
Although the ~erfor~a~ce appraisal' was discussed at length
September 2nd, it was not delivered to Mr. Shaw ~n writing until
some time in October, 1987'. In the space reserved for employee
comments on the performance appraisal Mr. Shaw wrote: "I began the
duties of my position on May 11, 1987. My first contact with the
supervisor for the purpose of supervision was on July 3, 1987.
feel earlier contact to.learn supervisory'wants and expectations
would have enhanced my 'performance." When Mr. Shaw wrote those
remarks Ms. Voogjarv strongly disagreed with them, and finally
persuaded Mr. Shaw to sign another blank performance appraisal
sheet deleting all employee comments. Ms. Voogjarv denied'having
done this when asked about it on cross-examination, but the
original sheet was produced by employer counsel during Mr. Shaw's
cross-examination when he asserted that in fact the switch had
taken place. Ms. VoogJarv was not called in reply to explain this
contradiction in her testimony, although the voluntary production
of the document later is an indication of good faith on Ms.
Voog~arv's part, and reflects more against her memory than her
integrity.
Mr. Shaw says that this performance appraisal confirmed
for him that'Ms. Voogjarv and he had a personality conflict, and
that she was cold and ~ntimidattng in her manner towards him.
In accordance with management policy, Ms. Voogjarv
formulated a work plsn for Mr. Shaw which was delivered to him on
October 26, 1987. it basically suntmarized the expectations set out
in the written performance appraisal. From October 26th onward Ms.
VoogJarv met.with Mr. Shaw weekly to review his performance and she
provided him with a written memorandum summarizing each meeting.
This went on for only three weeks, however, because Ms. Voogjarv
was promoted to a new job in London, Ontario. In their last
meeting on November 10th Ms. Voogjarv explained that Mr. Felton
would.be taking over as Mr. Shaw's sup6rvisor.
Mr. Shaw testified that the performance a~praisal was not
a fair assessment of his performance and came as a complete
surprise to him.. Until September 2nd he thought he was doing a
good job. All of his memos to the selectio~ committee were being
passed and Ms. Voogjarv was signing all of his authorizations for
client services. Yet the performance appraisal contained nothing
positive. Ne felt he was doing an adequate Job at opening new
files and.said that it was inappropriate to close files prematurely
just to meet an arbitrary target. WheB he took over the 'Wellan4
office the files were in disarray'and some had slipped down behind
the filing cabinet and got lost. He was reluctant to send files
to Ms. Voog~arv for,review because that Prevented him and Ms. Koper
~rom working on them. He didn't give Ms. VoopJarv advance notice
of client interviews she could observe because he assumed she would
simply select interviews from his weekly schedule submitted to her.
In general, Mr. Shaw says that he never flatly refused to comply
with instructions, but felt Ms. Voogjarv was not receptive to his
-disagreement as to procedures or his failure to understand. Ms.
Voogjarv made him feel inadequate or stupid. He was not aware,
even after the performance.appraisal, that Ms. Roper and Ms. Riley
had complained about him, and felt he had a ~ood working
relationship with Ms. Roper.
with respect to his communication skills, Mr. .Shaw
explained that his posture and demeanour are somewhat affected by
two physical disabilities. As a teenager, Mr. Shaw underwent six
brai~ surgeries which resulted in a visual impairment and .short-
term memory'deficit. Unassisted, he has only peripheral vision,
but with special prism glasses he has a good 150 degree, vision
scope. Nevertheless, he often holds his head at an angle to the
object he is viewing and reads verttca'lly rather thaa horizontally.
Because he has lost his short-term memory, he has developed certain
techniques to transfer new information into hfs long-term memory.
~e must remember by rote and repetition and sometimes loses
information if he is distracted before he can process it into his
long-term memory. Sometimes in group discussions he will close his
eyes to better concentrate on what is being said. Ee uses a tape
r~corder and makes notes of conve~sations where possible, but his
writing is slowed by his visuel impairment. He says that these
cop.ing techniques may explain why some of the other staff were
uncomfortabls in his presence. He insists though, -and there was
no evidence %o 'thm contrary, that he got alon~ very well with the
clients who could perhaps identify with him and take heart from his
significant achievements in face of his disabilities. Mr. Shaw
says that he told Ms. VoogJarv about his disabilities in detail on
May 15th, but Ms. Voogjarv does not recall this discussion. She
noticed the unusual prism glasses, however, but assumed there was
no serious problem because she knew that Mr. Shaw had a driver's
licence, which is a.prerequisite for the job.
Mr. Shaw says that the total time spent by management in
orienting him tO the job was about two and one half' hours,
including time required 'for h~m to s~gn necessary papers. ·
Ministry orientation check list was produced ~n evidence and Mr.
Shaw said that some, but by no means all, of the areas were covered
by Ms. Voogjarv with him. Although there ~s a space for an
employee signature, he was never asked to siga it, nor ia fact did
he ever see it until after he was released. After his initial
meeting with Ms. Voogjarv on May 15th he did not see her agai~ on
a one-to-one basis unt~l July 3rd. In June there were four group
staff meetln~s where all of the counsellors went on field trips to
view work places and rehabilitatto~ facilities. These staff
me,tings and field trips were frequent throughout the course of Mr.
Shaw'a employment, but he says he did not use those opportunities
to spepk to Ms. Voo~jarv about problems or questions he had.
He had two private meetings with Ms. Voogjarv in July and
two in August with an additional meeting in August with Ms. Roper
to have the office ~rocedures explained t° him. Then came the
$~ptember 2nd performance appraisal, wi~h the f°l~0w-up_meeting on
October 2Ist to review 'the typed version of it. ~ The three weekl~
supervision sessions followed, and thus ended Ms. Voog~arv's
supervision of the griev0r.
Mr. Shaw feels this supervision was wholl~ inadequate and
that it was tainted in any event by Ms, Voogjar~v's' condescending
and cold attitude towards him. In response, to t~he ~riticism that
he did not seek out supervision, Mr. Shaw says· that he tried
several times to contact Ms. Voogjarv ~ telephone .~ at the
beginning, but ther'e was enough delay in' her g'ettin~ back to him
that he did not feel it was worthWhile. In'stead, he turned to the
other %q{S counsellors for advice and often contacted, them by phone-
on a. daily basis. ~e felt they were help. ful' and supportive,
although Mr. Felton testified that the other·counsellors complained
to him that Mr. 'Shaw was calling them too often; asking the same
question of several people. Mr. Shaw explains he was looking for '
a consensus opinion on issues.
Mr. Felton took over the grievor's supervision
November 25th and Mr. Shaw was hap~y w~th the change.. ~e felt very
comfortable with Mr. Felton and encouraged by his positive comments
such as: "With some work I can get you through probation." Mr.
Felton advised him to contact other counsellors to obtain answers
to questions, Mr. Felton also asked another counsellor, Mr.
~Toumishey,. to spend some time with Mr. Shaw and help him in any way
he could. Mr. Felton met with Mr. Shaw three times in December and
another three times in January, and in each case they reviewed
files and Mr. Felton signed authorizations for ~im. A performance
discussion was scheduled for February 12th, but had to be cancelled
at the last minute. It was rescheduled for February i6th and took
place then. They went through'Ms. Voogjarv's Work plan step by
step, and Mr. Felton was very positive and recognized improvements
ia many areas. For this meeting Mr. Shaw prepared a "Report on
Accomplishment of Performance Appraisal Work Plan" wherein he
s~3D~arized his improvements and noted that his caseload was now up
to 46 clients and t~at he had added 16 new cases and closed 14
· files in a five month period. Ne also suau~arized for Mr. Felton
his involvement in several community activities outside of working
hours. He noted that there was an improvement in his record-
keeping, that he was better prepared for. supervision sessions, that
he had increased his communication with co-workers, and that he had
applied for a course in assertiveness training.
Mr. Felton never did give Mr. Shaw a formal performance
appraisal, but he gave him two written memos dated February 3rd and
February 29, 1988, reviewing.his performance. By February 3, 1988,
Mr. FeIton had reviewed 39 files and found the recording to be .
concretel, f~ctual, up-to-date, generally clear, and showed
continuity, and an appropriate use of community agencies.' .It was
found to be still to° brief to portray an accurate Picture of the
.client, and required a more focused assessment and appraisal. It
was noted that Mr. Shaw's office was now in order with the
appropriate forms on file, completed correctly. Overall the files
were said to be "neat and p~esentable, allowing q~.ick access to the
material".. With respect to caseload management, it was noted that
Mr. Shaw's waiting list had been reduced from about 58 people to
zero from the. time of the previous appraisal and that his case load
had increased to.46, ~ust four off the targeted 50. His.monthly
average fiIe openings were 3.2 and closings almost three. This was
said to be a significant improvement since his last performance
appraisal. Mr. Shaw's organizational ski]la were Said to be
acceptable, With an improvement shown over the last performance
appraisal. With respect to Mr~ Shaw's assertiveness generally, it
was noted that there was some improvement, but more was needed,
and the enrolment in the assertiveness training course was noted.
It was al~o noted that allowing the clients to actively
~articipate in vocational planning was a positive aspect of Mr.
Shaw's perceived weakness in directing clients. 'With respect to
the issue of accepting supervision, it was noted that Mr. Shaw had
~ 23 -
failed to set-up joint interview situations so that Mr. Felton
could observe, and that Mr. Shaw failed to follow instructions
regarding an approach to a ;articular selection committee
submission. With respect to consultation with colleagues which Mr.
Felton had actively encouraged, the conunent was that Mr. Shaw had
perhaps gone overboard in this regard. In conclusion,'Mr. Felton
said: "For the most part, you have co-operated with me during the
past few months, and have quickly provided me with files and
information that I 'required. Though the. above-noted incidents do
not represent the norm, so far.. as my-involvement', you should look
to improving your response to supervisory directions."
.
On February 20th Mr. Felton provided Mr. Shaw with a
statistical analysis of his caseload from September 1987 to
February 1988. The caseload was now 48' with'an average 3.2 files
op~ned Der month and three files closed. It was noted that of the
closed files, only 1'5 percent were "successfully" closed (which
means that the client got a job), and the expectation was for 30
to 40 percent successful closures. Mr. Felton indicated that he
expected Mr. Shaw to increase his rate of successful closures prior
to the next performance appraisal towards 30 percent.
Mr. Felton's diary notes show that he spent a
considerable amount of time in March working on Mr. Shaw's formal
performance appraisal, and it appears it was prepared shortly
before Mr. Shaw was released. Mr. Shaw himself did not see it
until after he was released.
Mr. Shaw says that he was only informed that Ms. Roper
was having problems with him after a February meeting with Mr.
Felton. Neither Ms. Riley nor Ms. Voogjarv had done so before.
At Mr. Felton's suggestion, he took Ms. Roper out to lunch and
discussed her concerns with her. He felt that he cleared up any
difficulties at that lunch. With respect to his relationship in
general with Ms. Roper, Mr. Shaw said: "She was very cool from day
one". She was pleasant and answered all his questions, but did not
volunteer information.
As part of the assistance Mr. Felton offered to Mr. Shaw
he asked Mr. Toumlshey, another VRS counsellor, to meet with Mr.
Shaw regularly and assist him in any way he could. Mr. Toumfshe~'s
circumstances were in many ways similar to Mr. Shaw's. Mr.
Toumishey was also located in a remote office, Niagara Falls; was
also hired on an underfill basis: and had started the job just two
months before Mr. Shaw. Prior to his hire he had four months
experience in the Waterloo office doing the same job. Mr.
Toumishey performed very well in the job and was appointed acting
supervisor in January 1988. After Mr. Shaw left he looked after
25-
the'Welland office for about three months until a new person was
'hired.
He confirmed that the Ministry expectations for a Social
Worker I were no different from those for a Social'Worke~ II. He
explained how he had progressed rapidly in the job by taking the
initiative in contacting Ms, Voogjarv whenever help was required,
forming a go~d relationship with his clerical staff, and a'good
relationship with the Family Benefits people who referred a lot of
clients ~o him. He too received some complaints from Ms. Roper
about how Mr.. Shaw was' handling the office procedures. At'Mr.
Felton's request, he went to the Welland off/cB and discussed with
Mr. Shaw perceived ~roblems that his peers and clerical staff
appeared 'to have in dealing with him. Mr. Shaw explained,his
physical disabilities in some detail to Mr. Toumlshey and in
return, Mr. ToumisheY told Mr..'Shaw that he should explain his odd
ways to others so that.they could gain a better. ;ersPec,tive on
them.
Mr. Shaw took offence at Mr.. Toumishey's comments. He
said Mrt. Toumishey told him he looked strange to ~im and the other
counsellors, that it was disconcerting to see him read vertically,
and that it upset~people to see him clo~e his eyes in meetings.
He is alleged to have described Mr. Shaw's behaviour as "bizarre".
When Mr. Toumtshey took over the Welland office after Mr.
Shaw's departure, he noted that the files were all in order, and
that the clients seemed to l'ike Mr. Shaw. However, there was a
very low referral rate for new clients which Mr. Toumishey rapidly
corrected by liaising with Ms. Riley in the Family Benefits section
and obtaining referrals from her.
It is to be noted that although Mr. Shaw feels that there
was some discrimination against him due to his disabilities, he
never asked for any specific assistance or consideration (with one
minor exception) due to them. He didn't mention hfs disabilities
in his job interview, but he explained.them to anyone who was
interested thereafter. Mr. Shaw had been a client of the
Vocational Rehabilitation Services himself for eight years before
obtaining his Social Work degree.
Mr. Shaw met with Mr. Felton twice more in March and
continued'to feel that he was progressing well. He continued to
see Mr. Felton as a very encouraging supervisor who provided
positive feedback and constructive criticism. He said that he
tried to arrange interviews with clients that Mr. Felton could
observe, but felt he had to have the client's consent to these
interviews and none was forthcoming. Mr. Felton testified that
whg~ he told Mr. Shaw that Ms. Roper and Ms. Riley made complalnts
about him, Mr. Shaw seemed surprised. He made attempts to improve
this relationship, but not successfully according to management
wi.thCS acs.
Finally, on April 11, 1988, Mr. Shaw was called into the
offi'ce of Mr. Vice, who is the manager of Direct Ser'vices for the
· Hamilton Region. Mr. Vice told Mr. Shaw. that he was to be released
for failing to meet the'requirements of the job. Mr. Shaw says,
although Mr. Vice denies it, 'that Mr. Vice told him'that he and
others did not think that Mr. Shaw met their idea of what a
c6unsellor is.
Mr,. Shaw asked to see his formal performance appraisal
and it was finally produced for him a day .or two before he left.
We attach that appraisal as an appendix to this decision. The
performance appraisal summarizes much of what'Mr.' Felton ihcluded
in his two February memos to Mr. Shaw, expands upon them, and
addresses other areas as well. .. '
We also received in evidence a memo to file written by
Mr. Vice regarding a'meeting held on March 16, 1988; with Mr.
Felton and Mr. Dowling, who is the manager of Human Resources.
The meeting was held to review Mr. Shaw's performance. The two
chief~ areas of concern identified were Mr. Shaw's inability to
interact effectively with support staff, and his ability and
willingness 'to follow supervisory instructions. There'appeared
als~ to be an underlying concern that Mr. Shaw lacked initiative
in obtaining referrals from the community.
The,difficulty that we as bo'ard members face, and'must
face, is in trying to determine on the evidence to what extent Mr.
Shaw's coping mechanisms relating to his disabilities contributed
to an early perceived difficulty in him getting along with other
people: peers, clerical and supervisory staff, and to what extent
Mr. Shaw was the author of his own misfortune.
We make the following findings of fact and derive
conclusions therefrom on-the evidence as follows:
1. The performance expectations for Mr, Shaw were those for
a Social Worker II, rather than a Social Worker I.
2. Mr, Shaw~ was not closely superyise4 prior to his first
performance appraisal.-
" .3. Mr. Shaw took very little initiative in attempting to
.=.- obtain "supervision on demand" with Ms.. V0ogj. arv and
resisted meeting her requirements.
4. Mr. Shaw's coping mechanisms with respect'to his
disabilities probabl7 contributed to the perception by
others that he was strange or unusual. An early
explanation to co-workers might have altered that
perception.
5. Ms. Voog~arv's performance appraisal of September 2nd was
the first indication to Mr. Shaw that he was not
progressing a~ expecte4.
29
$ After Mr Shaw's p~rformance appraisal, and in particular
after the change of supervision, Mr. Shaw made
substantial efforts to improve, and did improve.
7. Mr. Shaw developed and improved substantially under the
supervlsfon of Mr. Felton.
Mr. Shaw became much more amenable to supervisory control
under the direction of Mr. Felton than under the
direction of Ms. Vo°gjarv.
9. Mr. Shaw required more supervision than other Social
Worker I's working in an underfill capacity.
10. Mr. Shaw was entitled to more supervision, if needed, in
that he was classified as a Social Worker I, and paid as
one.
11. Management placed a great deal of emphasis in deciding
to release Mr. Shaw upon his inability to get along with'
Ms. Koper, but was not willing to produce her as a
witness at the hearing, thus substantially weakening the
weight we are willing to give this evidence.
12. Mr. Shaw did not fully meet the reasonable performance
expectations of ~a. Social Worker II during his
probationary period, but he made steady progress on the
work plan given to him in October and coul4 reasonably
have been expected to continue to improve.
As stated in Sheppard (above), for a release to be bona
fide. it must be reasonable in that on an objective assessment it
flows logically and rationally from the facts'.
We find that it was unreasonable of management to expect
Mr. Shaw to meet Social Worker II standards while he was classified
as a Social Worker I and paid as a Social Worker I. We also find
that unt'il his fi'rst performance appraisal in September, Mr. Shaw
did not really know what was expected of him or how he was to
achieve it. He was left pretty much alone in the Welland office
and given minimal supervision for a Social Worker I. Once the work
plan was in place and Mr. Felton took over the ~rievor's
supervision,~ substantial improvements wer~ made. Thereafter, Mr.
Shaw was receiving the sort of close superv~'sion that a Social
Worker I is entitled to. Mr. Felton's performance appralsal~of Mr.
Shaw (Appendix "A") is quite positive overall. We fe~! that if Mr.
Shaw had had that type of supervision and a solid work plan from
the beginning, things might have turned out differently., He would
have had time to~ work on his remaining deficiencies, and further
~, improve. On all of the evidence it is apparent that Mr. Shaw was
capable of improvement and was makin~ a real effort to improve.
After ll months on the job, management made the decision that Mr.
Shaw did not meet the ~requirements of' the job: that is, that he
did not meet the Social Worke~ II standard. In our view, this was
an unreasonable expectation of a Social Worker I. Mr. Shaw had an
uphill ,battle to face after his negative ~ first performance
appraisal, and he faced it in a workmanlike manner. Given the
improvement Mr'. Shaw made once he was made aware .of his
deficiencie~ and counselled on how to overcome them, we are left'
in serious doubt that he could not meet the requirements of his
position. Basically, time ran out on h~s' probation before be'was
given~an adequate opportunity to show that he could meet reasonable
performance expectations.
We conclude %hat Mr. Shaw's .release did not flow
logically or rationally from the facts. Therefore, he was
dismissed without just cause. Accordingly, the grievor must be
reinstated forthwith and compensated with interest for all lost
wages and benefits. His reinstatement shall be to the status of
a probationary employee, with one month remaining in.- his
probationary term. We will remain seized pending ~mplementation
of the terms of this award.
DATED at Toronto, .t~is 30th day of October, 1990.
I. COW/UN, Member