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HomeMy WebLinkAbout1989-0243.Ross.92-02-11 \] ON TA RIO EMPL 0 YES DE LA C ~)URONNE CROWN EMPLOYEES DE L'ONTAR~O GRIEVANCE C,OMMISSlON DE SETFLEMENT REGLEMENT BOARD DES GRIEFS 1~0 DtJN~)A$ STREET WEST, $1J~TE 2100, TORONTO. ONTARtO, MSG ;Z8 TELEPHONEITEL~:F:'HONE: 180, RuE OUNDAS OUEST, BUREAU 2100, TORONTO (ONTAI:t$O), M5G lZ8 FACSIMILE/T~L~COP~E .' 243/89 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIFB BARGAINING ACT' Before THE GRIEV~NCE SETTLEMENT BOIleD BETWEEN OPSEU (Ross) Grievor The Crown in Right of Ontario (Ministry 'of Community & Social Services) Employer BEFORE: B. Keller- Vice-Chairperson J. Carruthers Member D. Daugharty Member FOR THE R. Anand GRIEVOR Counsel Scott & Aylen Barristers & Solicitors FOR THE M. Gottesman EMPLOYER Counsel Legal Services Branch Ministry of community & Social Services HEARING February 5, 6, 19, 20, 1991 May 24', 1991 June 14, 1991 August 6, 7, 29, 1991 DECISION The grievor alleges that she was dismissed without just cause and seeks reinstatement and compensation for lost wages and benefits. An inter-related issue was also raised concerning the status of the grievor who, at the time of her alleged discharge was an unclassified employee. The employer conceded that as a result of Board decisions commencing with Beresford (1429/86) and Miller (1972/87), two of the contracts under which the grievor was employed, commencing November 28, 1988 (she had a total of five), were invalid. Thus the Board has to deal with the matter of remedy for this second issue. The grievor was appointed to the unclassified s~rvice on or about March 21, 1988 at the South West Local Office (S.W.L.O.) of the Ministry as an Income Maintenance Clerk (CIMS). She was appointed to another Income Maintenance Clerk position on September 21., 1988 and October 29, 1988 but with duties associated with cheque writing, on November 28, 1988 she was appointed Halfway House Clerk in the same location. She was reappointed to that position on March 27, 1989 to a three day term. On March 29 she was informed she would not be reappointed. At that time approximately 26 of the 90 staff at S.W.L.O. were unclassified,. 21 in the same section as the grievor. All contracts other than the grievor's were renewed that Spring. The grievor performed well in the positions she held as an Income Maintenance Clerk. There were no complaints about her work or attendance. At the end of the Summer of 1988 a field worker position.became vacant. The grievor applied for it but was unsuccessful. During the interview for that position she was asked if she wished to become a Halfway HOuse Cierk which would prepare her for the Field Worker job. She expressed.an interest and was appointed in October or November. Ms. Sheila Judson who was then the Income Maintenance Manager testified that the grievor was given the position because she had .performed well in her previous positions and it would give her experience. The position of Halfway House Clerk is a unique one. It essentially involves clerical duties. There is generally a heavy work load and deadlines must be met. The grievor reported to Mr. Joseph Sousa, an Income Maintenance Worker who in turn reported to Ms. Lynn Butler the Income Maintenance Supervisor. In addition to performing the clerical functions of the position the grievor was also allowed to interview clients. This was to permit her to gain more experience. The grievor's predecessor apparently also did limited interviewing. The grievor was given the normal training when she started and on-the-job training by Sousa as required. According to the preponderance of the evidence, and the testimony of Judson and Butler things were going well until the end of 1988. BUtler stated that although there were problems with a heavy workload "that's part of the j ob". The grievor was on leave over the Christmas/New Year period and then away on sick leave from January 3-6. She returned to work on the 9th. From this time on events get a little confusing due to the inconsistent and contradictory testimony of the employer's witnesses. In accordance with our best understanding of events, however, relations particularly between the grievor and Butler began to deteriorate. A number of incidents took place that require some comment. The first one took place between the grievor, Mr' Bill Campbell and Butler. The grievor and Campbell were apparently talking near the grievor's-desk. Campbell, who works in another area was asked to leave. Butler then became concerned about Campbell's reaction as he was a union steward. The grievor too was concerned about the incident and, in particular, Butler_'s. reaction as later in the day she asked another supervisor not to bring a matter to Butler's attention as Butler was sufficiently upset about the earlier incident. At this point it must be said that the above incident with Campbell gave rise to an unfair labour practice complaint which is currently being heard. It is not this 'Board's intention to comment further on the matter given that fact and because our ultimate determination of'this issue in no way turns on the incident. A second incident which took place is the removal of the grievor's interviewing duties. Depending on which version of events is preferred, the duties were taken away either by Sousa, by Butler, by the management team in the office or by Butler and subsequently confirmed by the management team. There were discrepancies as well about whether the removal was permanent. According to Sousa it was temporary until the grievor caught up with the backlog. Butler stated that it might be temporary and Judson testified it was permanent. Butler and Sousa gave as reasons that there was a backlog that had to be dealt with. Judson added that it was for the grievor's own safety as she was giving poor advice to clients and it was necessary to protect her. No such incidents were given in support of that proposition in spite of the fact that Incident Reports are kept and in later testimony, Ms. Darryle Lempke, another supervisor said she could not recall the issue of the grievor's safety ever being raised with regard to her interviewing. On February 3, the grievor requested a transfer. That request precipitated a meeting with the grievor, Butler and Judson. The relationship between the grievor and Butler was discussed as well as the grievor's work performance. The meeting was not disciplinary, appears to have been fairly relaxed and seems to have been designed to clear the air. It was decided that a meeting involving the grievor, Butler and Sousa would be useful to clarify what was expected of the grievor. The transfer request was rejected. The three met about one week later. Sousa testified that he made a list of items he wanted to discuss. All at the meeting, he said, had the same interest in improving the effectiveness of the program and the goal was to determine work priorities. The grievor was given, and accepted, the priorities laid out for her and agreed to follow them. Sousa also stated that the grievor had been complying with instructions before the meeting. No further incidents took place until the management team met in the second week in March. It was then decided the grievor's contract would not be renewed and she was informed-on March 16. According to Judson, the reasons were the concerns about her performance on the job and attendance. When questioned about the latter point by Mr. Anand, Judson stated that there was nothing in writing'anywhere about the grievor's performance or attendance and the grievor was never told her absenteeism was excessive. In reviewing the grievor's attendance records, Judson acknowledged that the grievor had been absent approximately 20 days in a 12 month period and that all the reasons given by the grievor were valid. None of the other supervisors-who testified, all of ~hom related performance and ~attitude difficulties the grievor had, mentioned attendance as an issue that was discussed by the management team in the March meeting. The first issue to be decided is whether there was just cause in the employer's decision not to renew the contract. The employer urges on the Board the test normally applied in the case of probationary employees given the length of service of the grievor. In the instant case, whatever criteria are used, the result is the same. The evidence demonstrates, and both Judson and Butler testified that from her initial hiring in March 1988 until the end of 1988, no difficulties were experienced with the performance of the grievor. Thus for the purposes of our determination, anything to warrant non-renewal of her contract had to occur subsequent to that time. Yet nothing in the evidence presented to this Board establishes grounds that would warrant non-renewal. No Incident Reports were ever taken involving the grievor; she was never counselled about poor performance. Even the meeting with Butler and Sousa was just to ensure that priorities were understood. None of the employer witnesses were able to give specific, concrete incidents involving sub-par work performance although all testified in a general fashion about performance and attitude problems. .Complaints were made about her attitude - which we accept - but nothing was ever documented and no one ever spoke to her to counsel her. and. indicate her job was~in jeopardy. Similarly, the employer raises attendance as a reason but this appears to have been an afterthought. Even if it had been a consideration, it had never been brought to the attention of the grievor as a problem. Our conclusion, therefore, must be that the decision taken by the employer was unreasonable and that it was a decision taken in bad faith. Although we have reached this conclusion on the evidence presented, we equally have no doubt that the attitude of the grievor, at the workplace was a contributing factor to the actions of management. She did not impress this B6ard as a model employee who was entirely without blame. In fact, had the employer been more diligent in maintaining proper documentation it is possible an entirely different conclusion would have been reached. This secondary conclusion is a major factor in our consideration of the appropriate remedies. The appropriate remedy for this aspect of the case is to order full compensation, with interest, for a five month period, being the length of the contract that would have next entered into. From the amount owing by the employer is to be deducted any monies received by the grievor from other sources. This Board is not prepared to order compensation for any longer period of time for two reasons. The first is that there were difficulties with the grievor as mentioned above and she is not entirely blameless in this matter. The second is that it would be clearly speculative to consider any further appointment beyond the one following the non-renewal. This then leads us to a consideration 0f the Beresford Milley line of cases. As indicated above, the employer has conceded the illegality of all but the first of the grievor's contracts. What then is the appropriate remedy? A review of the problem of remedy can be found in Canete (2192/90). No useful purpose would be served in repeating that analysis which this Board finds compelling. The employer submitted that posting the job of Halfway House Clerk would be appropriate. That was one of the options proposed by the union. It is not one which the Board feels is appropriate on the facts of this case. First, too much time has elapsed since the grievor was replaced in the position and it would be unfair both to her and more particularly the incumbent. This type of remedy may be appropriate in job posting r 11 - cases where no other remedy is available but it is not fair to an incumbent who has taken the job in good faith when there are other courses Lof action that can be taken if they are also appropriate. Second, no labour relation purpose would be served by returning the grievor to the S.W.L.O. as the actions on both sides have caused a breakdown in the employment relationship in that office. In our view the only remaining appropriate remedy is placement on the seniority list so that the grievor can avail herself of her rights to seek employment elsewhere than at S.W.L.O. pursuant to the collective agreement and the applicable Acts and regulations. To summarize: 1) The employer's actions contravened s. 18(2) (c) of C.E.C.B.A.. 2) The grievor is entitled to five months compensation less income received from other sources, plus interest. 3) The grievor is entitled to placement on the surplus list but may not apply for a position in S.W.L.O. for as long as Judson and Butler are employed there. Following any appointment the grievor will have to fulfill the full probationary period provided in the collective agreement. Nepean, this 11th day of February, t992. M. Brian Keller, Vice-Chair David Daugh~rty, Employer Member r Union Member