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HomeMy WebLinkAbout1989-0577.Nesbitt.90-12-17 /.,., ~ ..... ~. # .. ~..,, .': ,: -. .,.' !;, .,. ".';;* ..:?. '1 ONTAFIIO EMPL OY£S DE LA COUROIVNE · '~,~ . · ,,,~, : CROWNEMPLOYEE$ DEL'ONTARIO "~"~ C,OMM ,'~ "':-i~ ~'"' GRIEVANCE ISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS ;80 OUNDA$ STREET WEST, .SUITE 2;00, TORONTO, ONTARIO. MSG 1Z8 TELEPHONE/TE£~'PHONE: (4 ~6) .326- ;80, RUE DUNDAS OUEST. BUREAU 2~'O0, TORONTO {ONTARtOJ. MSG IZ8 FACSIMSLE/T~L~:COPIE : (4~6) 326~1,..3~6 0577/89 IN THE MATTER. OF AN ARBITRATION Un4er THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANC~ SETTLEMENT BOARD BETWEEN OPSEU (Nesbitt) Grievor - an~ - The Crown in Right of Ontario (Ministry of Correctional Services) Employer BEFORE: P. Epstein Vice-Chairperson J. McManus Member G. Milley 'Member FOR THE G. Richards GRIEVOR Grievance Officer ~ Ontario Public Service Employe'es Union FOR THE J.F. Benedict ~.. EMPLOYER Manager Staff Relations and Compensation Ministry of Correctional Services HEARING: November 14, 1989 June 22, 1990 AWARD Michelle Nesbitt was a successful candid~te~for a position as a Correction Officer in May of 1988. She began work as a probationary employee for the Ministry of Correctional Services at the Maplehurst Correctional Centre on May 30, 1988, as Correctional Officer I. Her probationary period would have ended on May 30, 1989, but she was released by her employer, effective May 16, 1989 pursuant to a letter dated April 25, ~1989 written~by G Commeford, the Superintendent of Maplehurst. Mr. Commeford noted in the letter that the employee had utilized 4.88. attendance credits over the three-month period, being January 1 to March 31, 1989. He further commented on the fact that the employee had utilized 13.88 attendance ,credits on 'twelve occasions since May of' 1988. Mr. Commeford concluded his letter by indicating that the employee had demonstrated that she was unable to establish and maintain regular attendance and was, therefore, being released from employment. The employee subsequently grieved the action of the employer, suggesting that the termination from employment was "unjust, unreasonable and unwarranted". -- ~ -- The employer says the release was bona fide and done in good faith and was not a disguised dismissal. Counsel for the employer says that in these-circumstances the Board lacks jurisdiction to review the merits of the release from employment. The grievor says the release was "colourable" and was a disguised dismissal done in bad faith and the Board, therefore, has jurisdiction to review the matter. The test to be applied and the extent to which this Board may review the matter has been the subject of considerable jurisprudence. We have been referred to, and have reviewed, the following cases: Leslie, Haladay, Sheppard,. Tucker, Insanally, Atkin, Peroskie, Ferrarro, Eisnor, Clarke and Nicholls, among others. From these cases emerged certain clear principles. Firstly, we do not sit in appeal from the decision to release the ~Ployee and we are, thus, not entitled to substitute our judgment for the employer's judgment on the job performance of the employee. Secondly, however, if we were to find that the employer did not act in good. faith, then the release may be considered as a dismissal and can thus be reviewed by the Board under Section 18(2)(c) of the Crown Employees Collective Bargaining Act. As indicated in Sheppard, the bad faith must be relatively serious. Thirdly, for a reasonable and good faith exercise of authority to have occurred, there must be a rational relationship between the observations made by management and the conclusion that was reached.. It is not appropriate f~r management to leap to a conclusion that an employee has failed to meet the requirements of his or her position (See Crooks, Shiratian, Sheppard). It is, thus, necessary to review the facts of this g~ievance in order to determine whether the release is bona fide or whether it is colourable. Gary Commeford is the Superintendent of the Institution. He indicated the importance and necessity of good attendance at this correctional centre. Among other things, the correctional officers are responsible to provide adequate custody and control of inmates and provide a margin of safety and backup for all officers on shift. If an officer calls in sick, casual officers have to be hired and if they are not available or too many are needed, classified officers must be utilized. This puts a strain on the rest of th~ Staff. Mr. Commeford indicated that ten to eleven credits due t~ illness is the average per annum., one twelve-hour shift equals one and one-half attendance credits and that a probation officer's average absence is six credits on a three-month shift. Ms. Nesbitt's record with respect to absences was as follows: June: No absence July: 1 sick day ~_.~ August: 1 sick day i! ~! September: t sick day October: No absence November: 4 sick days December: 2 sick days January: 1 sick day February: Partially used credit (Employee reported in and then went home ill). March: 2 sick days (But three credits used because of twelve-hour shifts). April: No sick days In Mr. Commeford's release letter, he calculates the total as 13.88 credits on twelve occasions since May of 1988. Mr. Commeford indicated in evidence that when the grievor's attendance record was brought to his attention by the Attendance Review Committee: "I saw that punctuality and attendance was brought to her attention with no improvements, so I decided to release her". The comment was indeed an odd one in light of the fact that punctuality was never an issue with this employee since all of her appraisal reports indicate that she was always punctual. · Mr. Commeford is correct, however, that the appraisal reports did mention the employee's absences, although hardly with the force one would have expected had it been a serious problem to the appraisers and supervisors. Mr. Commeford went on to testify that he perceived a pattern developing with respect to absenteeism because the employee's days off were in conjunction with her regular days off. Notwithstanding this pattern, Mr. Commeford says that..he confined his decision to the number of credits used. He acknowledged .that aside from the reasons advanced in his letter of April 25th, the~e was no other reason for the release. Mr. Commeford clearly did not investigate or examine any of the reasons for the grievor's absences and paid no attention to the fact as to whether the grievor had a reasonable reason for her absence. Clearly the statement by "C~'mmeford that a pattern was developing with respect to absenteeism, particularly when he relates it to following the employee's days off, is not supported by the evidence and in any event it would not have been possible for Mr. Commeford to determine a pattern of absenteeism following days off without at least examining the purported reasons for the grievor's absenteeism. This he wholly failed to do. Mr. Commeford indicates that he expected probationary correctional officers to meet average attendance figures or below at the institution for their work group, but there was no policy on releasing probationary employees if they failed to meet other requirements. He acknowledged that probationary employees who exceeded the absentee average have nevertheless been appointed to the permanent staff. This is not a statement that can be lightly ignored in view of evidence that indicates that he wholly failed to examine the reasons for the absence and also considered punctuality, notwithstanding that there was no issue of punctuality with this employee. There is a committee at the institution that deals with staff attendance. If ther~ is above average absence for the quarter, the committee may issue a letter. This is step 1. If attendance continues to be a problem, a second letter is issued. In this case, the typical step 1 letter was not sent, but a letter was sent by the Assistant Superintendent on December 31, 1988 to the employee ~eferring to nine absences on nine occasions. The letter refers to the grievor's explanations of having some difficulty adjusting to the midnight shift. The Assistant Superintendent made a point of mentioning that he was not questioning the legitimacy of the credits used. He insisted that' there be a marked improvement in attendance. The step 2 process with the Attendance Review Committee consists of an interview with the unit supervisor to discuss the problem. Notably, in this case there was no step 2 taken with this employee, nor did the Attendance Review Committee recommend the grievor's release. After step 2, there is an interview with the Attendance Review Committee and that was not pursued in this case either. Mr. Commeford says t'hat Ms. Nesbitt's absenteeism did not improve after the letter from Mr. Geis, the unit supervisor. That was an interesting observation by Mr. Comme ford because it obviously motivated his thinking and yet it was a 'statement that was not correct and, in fact, the evidence was to the contrary. Ms. Nesbitt's 'attendance did improve after her meeting with Mr. Gels. Mr. Commeford also noted that the employee was a better than average employee, except in the area of attendance. It is, indeed, puzzling that Mr. Commeford would make that statement and then release this employee based on attendance on what we find to be an extremely meagre review of her record. Leo Gels, the institutional Staff Training Officer also testified. 'He had met with the gzievor during her probationary period to advise her that her attendance should stay within the institutional average, or less. He advised us that the grievor had been previously on staff at the institution, but had left on her own before her probationary period was completed. Her previous attendance record was not apparently a problem. This does not appear to have been a factor that anyone considered. Mr. Geis outlined for us that there are four steps in dealing with attendance problems. The first is fact finding. The second is meeting with the employee. The third is having the employee attend before the Attendance Review Committee.. The fourth step, if the problem is not solved, is dismissal Mr Geis agreed that the policy .applied to all staff and fairness' required the application of that policy to probationary employees as well as permanent staff. Mr. Geis acknowledged that Ms. Nesbitt did not take liberties with her sick credits when. she was employed by the institution on her first employment and Mr. Geis was simply unable to say whether he felt she had taken liberties with her sick credits the second time around. During the period of Ms. Nesbitt's employment at the institution, she originally worked eight-hour shifts. She was then transferred from one unit to another unit at her request and as a result had to do'two sets of consecutive midnight shifts. She was just finishing these two sets of shifts when she was transferred to another unit and had to start another midnight shift. She ended up doing three sets of night shifts in four weeks and the employee indicated that she was having trouble sleeping during the day and, accordingly, lost-four days in November. She discussed this with Mr. Gels, who expressed some concern, and the employee indicated that she was taking various steps to attempt to deal with the problem. It appears that the employee's attendance record thereafter was less of a problem. The employee says that in the December meeting with Mr. Geis, although he expressed concern about her attendance, at no time was it ever conveyed to her that she would be released if her attendance did not improve. Ms. Nesbitt applied for the ICIT Team, which we gather is a position of some responsibility within the institution. The evidence established that one had to be a superior employee to be accepted for this team because it required a good deal of judgment and responsibility. Although Ms. Nesbitt was recommended by others in the institution and accepted for the team, she later declined because her husband was concerned about her personal safety<., i gather members of the ICIT Team intervene in crisis situations and, hence, the husband's concern. Shortly thereafter, Ms. N~sbitt was released. She indicated in her evidence that she was in shock to receive a letter of release since there had been no indication from any of her supervisors that those at the institution were sufficiently unhappy with her that she would be released. - 11 - Mr. Robertson was the Office Manager at Maplehurst for ten years and testified with respect to average record of absence. Suffice it to say that there is some considerable controversy on the average absentee credits taken by employees, but no matter how one looks at that it appears to us that Ms Nesbitt either was close to the average or below, depending on which view of the absentee figures one ~eventually selects. Giving this mat%er the best consideration we can, we have reached the conclusion that this release was colourable and not bona fide. There was not the kind of systematic review of the employee's attendance record and reasons for absence that would justify the release in this case. There was no account taken of the good appraisals by all of the persons who supervised this employee and it appears to us on Mr. Commeford's own evidence that he failed to fully investigate the reasons for the absence, attributed a problem of punctuality which did not exist and attributed to Ms. Nesbitt absences to be well beyond the average for ths institution. In this respect, we think he was wrong on all counts. We do not find that the employee's absence in this case was sufficient to warrant her release, particularly in light of the lack of action taken by the staff to deal with same. - 12 - Having concluded that the employee was not properly released, we have reluctantly concluded that the employer in these circumstances acted in bad faith in releasing the employee. The grievance must, therefore, succeed. REMEDY The grievor has asked that she be reinstated in the same position that she would have been in and to be compensated for all pay and benefits lost during ~he intervening period. The problem in this case is that the grievor was released with.just two weeks to go in the probationary period. The purpose of the probationary period is for the employer to have ample opportunity to observe the probationer in.order to make the ultimate assessment of whether the person is suitable for the permanent position. (See Sheppard). Counsel for'the employer took the position that we could not extend the probationary period and the jurisprudence seems to support that view. Had we not felt bound by that jurisprudence, in this case we would have extended the probationary period for a three-month period. In view of the fact that we cannot do that and in view of the fact that we have found that the grievance must succeed we, therefore, order that the grievor be reinstated and compensated with interest for all lost wages and benefits. The grievor's reinstatement shall be to the status of a probationary emple, yee with two weeks remaining in the probationary term. The Board shal% remain-seized in the event of any difficulty in calculating the appropriate compensation. DATED at Toronto, this 17th day of December :, 1990. Phi ~ person 7. M~Manus, Member · G. Milley, Member ''