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HomeMy WebLinkAbout1988-1294.Nicholson.89-09-21~-'~- ~ ONTARIO EMPLOYES DE LA COuRONh~E CROWN EMPLOYEES DE L'ONTA RIO GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 OUNDAS STREET WE,~T, TORONTO. ONTARIO. MSG 1Z8. SUITE 2100 TELEPHONE/T~L~cPHONE 180, RUE DUNDAS OUES T, TORONTO, (ONTARIO) MSG 1Z8 * 8UREA U 21 O0 (416) 598-0688 129~/88 IN THE MATTER OF AN ARBITRATION Under~ T~E CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Be tween: OPSEU (Nichotson) Grievor - and -. The Crown in Right of Ontario (ainistry of Health) Employer~ Before: E. Ratushny Vice-Chairperson I. Freedman .Member D. Wal~inshaw Member · For the Grievor: H. Law Senior Grievance Officer Ontario Public Service Employees Union Por the Employer: L. Boyd Counsel ' Legal Services Branch Ministry of Health Bearings: April 20, 1989 (Toronto) July 18, 25,~ 1989 (Kingston) DECISION The Gr~evor was appointed to the probationary staff of the Kingston PsYchiatric Hospital on January 11, :1988, as a Cleaner 2. He' Qas notified by letter dated December 20, 1988, from the Acting Administrator that he would not be appointed to regular staff as 'a result of his failure to meet the requirements of the position pursuant to Section 22 (5) of the Public Service Act The sole" issue before us is whether, in all of the circumstances surrounding the release, it was "based upon a reasonable and .good faith exercise of the authority of management. under 'Section 22 (5) of the Public Service Act". (Shiralian, G.S.B. 914/86 at p. 14, per V-C Roberts)' It'is not 'the function of this.· Board to "second guess" the correctness of the Ministry's decision not to employ the Grievor. Rather, it is to consider whether,', on the evidence presented, the circumstances of the release meet the legal standard of' "good faith". The absence of good faith i.n ~:the circumstances surrounding the release may be established without a finding of personal animosity or other negative motivations towards the probationary employee. Those circumstances simply may be so arbitrary and ~nreasonable that the good faith ~equirement is not· satisfied. It is alleged on behalf .of the' Grievor that several of his supervisors .developed resentment and prejudice towards him which led to a'.'. lack of objectivity in their assessment of his performance. The evidence does not support such a' conclusion. These supervisors testified that they did not harbOur any such personal attitudes towards the Grievor and there is no reason to disbelieve them. His counsel frankly conceded tha~ during the period from January 11, 1988 to September 20, 1988, the Grievor demonstrated, on occasion, poor work performance, unauthorized breaks and a failure to follow instructions properly. A great deal of evidence was presented with respect to specific incidents of alleged shortcomings in the work performance of the Grievor and his attitude towards supervision during the period from January 11, 1988', to September 20, 1988. -We do .not propose to document in these reasons ou~ analysis of each of. these incidents. They may be said, generally, to fall within one of three categories: (1) Incidents where the Grievor clearly had acted inappropriately- or had responded inappropriately to intervention by his supervisors; (2) Incidents where the Grievor had been -suspected of inappropriate conduct but where that proved not to be the case; and {3) Incidents where past experience led supervisors to place a negative interpretation upon the conduct'of the Grievor which, in turn, caused him to react in a 6egative manner. However, we are clearly of the view that there were sufficient shortcomings during this period to warrant the release of the GrieVor. Nevertheless, the Employer chose not to release 'the Grievor on the basis of these incidents. It is the Employer's response to the 'Grievor's work performance and to his attitude towards supervision which forms the basis for the.allegation that the release was not in good faith. The Grie~or's first performance appraisal (three .month) was excellent. There were no negative comments and the following passage was included: Management is very pleased with Mr. Nicholson's progress and attendance to date. We .look forward to this favoura~le performance in the future. Although there ~was evidence that his supervisors had spoken to him about taking.~unauthorized breaks on three'separate occasions, there is no reference to this in the first performance appraisal. The second performance appraisal (six months) covered the period to July · 11, ' 1988. His "strengths and skills" are described as follows: Mr. Ni~h~lson is knowledgeable in housekeeping, duties. He demonstrates the ability to do quality, work. His · supervisors find him co-operative and ,a -pleasant employee .· The next segment of this appraisal indicates areas where "improvement is necessary" and instructs the supervisor to "state clearly if any area is below required standards". Nevertheless, apart from an area where training was required, the only entry Unoffic~a·~ breaks, understanding verbal instructions. Under recommendations for the improvement of performance, the appraisal indicates that the Grievor was read the Hospital's policy with resPeCt to Rest Periods and also states: ' He must:i alSo communicate with his supervisors when there is not a 'clear understanding of instructions. The Grievor testified. that he discussed this appraisal With Francis Benoit,"the Assistant Director, since the supervisor who had completed ~he appraisal Was on holidays at the time. Mr. Benoit died prior to the hearing of this grievance. The Grievor testified that no warning was given in relation to job security. His impression of the meeting.was that "everything was fine". He received a six-month merit pay increase. During the following months, further incidents occurred as they had in the past. On September 20, 1988, one of the supervisors gave the Grievor a verbal warning for inadequate work performance in the laundry room. There is .no question.~that, at that time, the Employer would have been perfectlY justified in releasing the Grievor. However, the Employer chose not to do so. Instead, at about.that time, Mr. Benoit met'with the Grievor and informed him that if he did not "pull up his socks" he would be released. In early November, Mr. Benoit called him in again and- asked him how things had been going since they last spoke. The Grievor responded to the effect that things were fine. Nothing critical was mentioned by Mr. Benoit.' On November 14th, the Grievor received his .third performance appraisal covering the period to October 11, 1988. It includes the following comments with respect to areas where improvement is necessary: Poor work performance; loitering - Policy 3 - 2 - 14. The following comments appear in relation tO recommendations for improved performance: Mr. Nicholson has been consulted abou~ being out of.his work area and spending time idly. He received a verbal warning (Sept.20/88) for poor work performance. He must realize that there must be an improvement in these areas, as lost man hours leads to reduced patient care and that any further infractions could lead to his dismissal. Mr. Nicholson's supervisors will continue to assist him in 'any way he feels necessary.. The comments of the Department Head, although unsigned, were as follows: This performance appraisal~ will be reviewed fully and frankly.Qith Mr. Nicholson and follow-up training by his supervisors should resolve the output areas listed under .[areas :~where improvement necessary]. Management looks forward to Mr. Nicholson performing to the .Housekeeping standards and providing a high quality of patient care. In fact, there.~ were no indications of any shortcomings in the Grievor's performance or attitude from the time of the warning by Mr..Benoit on~' approximately September 20th and the time of receiving this third appraisal on November 14th. All of the negative comments on this appraisal must have related to incidents prior! 5o September 20th. Nor werei there any further incidents over the next two weeks. Nevertheless, on November 28th, in a strongly worded memorandum signed by all five of the supervisors., it was recommended that the Grievor be .released. Although the memorandum appears to be exaggerated and' over-stated in describing some of his negative characteristics, the gist of the criticisms probably were justified on ~he basis of his work performance and ~response to supervision prior to September 20, 1988. However, ~the fundamental deficiency in the Employer's response .is that on September 20th, the Grievor was told that unless he imprq~ed, he would be released. From September 20th to November 28th, :he did improve and there was no evidence of any further problems.lwith his work during this period. The Grievor testified that during' this period he was doing everything he possibly could~:to avoid any criticism of his work. Indeed, the memorandum of November 28th concedes that: "He had made some improvement since his meeting with you on Septembe~ 20, 1988". Nevertheless on 'November 28th, the recommendation was made to release him. This recommendation constituted the effective decision to release since it was accepte~ without further input "up the line". Incidents alleged to have .occurred after this date do not appear to have been taken into account in the decision to release. An employer ca,not be said to be acting in.good faith in releasing an employee .in these circumstances. That is so even where the employee is a probationary employee and.even where the employer would have been justified in releasing that employee earlier. When the employer says: "You will be released unless you improve", the implication is that, in the absence of other circumstances: "If you'do improve you will n0~ be released". Accordingly the Grievor must be reinstated but under certain Conditions. we are of the view that in the circumstances before us the Grievor should be reinstated as a probationary employee who has completed nine months of probationary employment and who has been warned that, in view Of past deficiencies, unless his performance is satisfactory during, the next three months, he will be released. There will-be no order in relation to wages or seniority.' We will remain ~eized in the event that any difficulties~ should arise in the implementation of this award. ~ Before concluding, we would like to acknowledge the very high quality of written submissions receiVed from counsel on behalf of both the Grievor and the Ministry. These Permitted us to focus more quickly upon the relevant issues and to borrow directly from these submissions in preparing our written reasons. DATED at'Ottawa this ~]$t day ~~989~.: of _ E. R]f~u~~-Chairman Free~h, ~ Member ~ 12.