HomeMy WebLinkAbout1989-1610.Mitchell.91-06-06 ': ~' '~ "" ' : ONTARIO EMPLOYESDELA COURONNE
¥~% ,, ~ ~: ., CROWN EMPLOYEE,.?. DE t.'ONTARIO
780 OUNOAS STREET WEST, SUITE 2700, TORONTO, ONTAR~, ~SG 1Z8 TELEPHONE/T~L~PHONE: (4 76) 32~-~395'
780, RUE DUNOAS OUEST, ~URE'AU ~'100, TORONTO (ONTARIO]. A,.fEG 1.,~E FACSIM~LE/T~L~COPlE : (4 ~6) 326-~'395
1610/89
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU(Mitchell)
Grlevor
- add -
The Crown in'Right of Ontario (Ministry of Energy)
Employer
BEFORE: J. Emrich Vice-Chairpersqn
J. Carruthers Member
R. Scott Member
FOR THE A. Ryder
GRIEVOR Counsel
Ryder, Whitaker, Wright & Chapman
Barristers & Solictors
FOR THE P. Rusak
EMPLOYER Counsel
Mathews, Dinsdale & Clark
Barristers & Solicitors
HEARIN~ May 1, 1990
September 5, 1990
December 11, 20, 1990
~he grievor was hired on June 25tS, 1989 as a Writer/Editor at the
information Officer 2 kevel with the Corporate Rekations Branch of the
~inisCry of Energy. On Novemoer ~Oth, 1~89 his employment was terminated
pursuant to s.22(5) o£ the PuDiic Service Act R.S.0. I~BO c.418 as amended,
which authorizes th~ 0eputy ~inister to release any puoLic servant during
~he ~irs~ year of empkoymen~ for failure ~o meet the requirements of the
position, the grievor filed a grievance on the same date ciaimir~g that he
was wrongfuLky dismissed and s~ing reinstatement with full re~roac~ivity
of pay, benefits and interest. The parties pkaced ~e£ore the Board a numDer
of auSnoritie~ which nave canvassed this issue of the proper
characterization of a terminaS[on and the co~responding scope of review.
indeed, the parties were not in disagreement as to the appropriate standard
of review, Put differed as to the conclusions to Ce drawn upon the
application of t~ standard ~o the ev£dence.
~he gravamen of the Employer's case was that the grievor's work
demonstrated deficiencies in oasic writing sKilLs such as grmm~ar, spelling=
and punctuation, as wel~ as in ~ne form, flo~ and accuracy of his writing.
Ene F~mpYoyer maintained taa~ ~nese deficiencies had not improved
sufficiently despite instruction provided to tne grievor t~rougn editing, ,
performance appraisals and a speech-writin=~ course. Since tee core duties
of the grievor's position enta[ked writing speech_=s, press rekeases and
other ma~eria~ in a s~ress~ul con~e~t of ~ign~ deadlines and ~a~ls for [as~
minute revisions to content, the Employer concYuded ~a~ ~he grievor could
not meet the requirements of his pos£~ion and effected his re,ease
accordingly. ~n support of ~er position, zounse~ for the Employer referred
us to the foLYowing cases: Re OPSEU (~ary Von BuchstaO) and ~e Crown in
1
Right of Ontario (~inistry of the Attorney General) ~.S.B. lJ58/85; Re OPSEU
(Basanti Roy) and the Crown in Ri~t of Ontario (l~inistry of Consumer
Commercial Relations) G.S.B. 1554/.35; and Re OPSEU (_~tella Wyness) and the
Cro~n in ~ign~ of Ontario (~inistry o£~the
At the hearing, counsel fo~ tee Onion ~[gatl[ conceded teat if it could
ce estaDlis~ed that t~e grievo~'s termination on ~ovemoer ~5Otn, 19.~ w2z a
bona fide re[aase, then tn£s 8oa~d nas no jurisdiction to evaluate and
~eign tn~ reasons for r~ease. However, M~. Ryder emphasized that the
burden of proof sested upon the ~mpkoyer to satisf~ the Board that
management exercised t~e autnorit~ to release t~e p~ooatio~er reasonably and
in good faith. £n this case, there was no assertion that management acted
in bad fait~. ~at~er, the g~avamen of the case on Denalf of the grievor ~as
that management could no~ estao!isn a rational connection 6e~we~n t~e
evidence adduced a~ the hearin~ and t~eost~nsiOle ~rounds for release.-
Furthermore, management nad no~ afforded to the ~rievor an adequate
opportunity ~o meet t~e position r~quirements, in support of h~s ar~ments,
counsel for the Union referred us to the following cases: Re OPSEU (Oan.
Sheppard) and the Crown in R[~h~ of Ontario Ministry of Government
Services) G.S.B. 24)2/8~; 2e OPSEU (Vince Fer~aro) and the Cro~ra in ~[ght of
Ontario (Ministry of Correct£onai Services) J.S.~. 3?5/84; Re O~SEU
(LoDraico) and ~he Crow5 in Ri%h~ o~ Ontario (Ministry o~ Natural Resources)
g.S.B. 1905, ~90~/BZ; Re Cohns~aedt v. University of.Re,ina [19.39] t S.C.R.
(s.c.c.).
Having reviewed t~e foregoing authorities, ~e pans[ is'sa~isf£ed ~ha~
it is incumoent upon the Employer to show ~hat it exercised [ts authority to
2
release t~e prooationary employee reasonaOly and in ~ood faith. This test
was interpreted [n the case OPSEU (~anon Schiralian) ~d the Crown in Right
of Ontario (~inistry of gover~ent Services) G.S.B. 0~14/~ RoOe~Cs ab p.12
in the foiiowin~ m~er:
... For a reasonaoLe and ~ood faith exercise o£
authority to have occuFred, t~er9 ~ust have o9en a
ra~iona~ relationship Oetween ~he oOservations made oy
management and the con~Lus£on that was reached. [t is
no~ appropriate for management to leap ~o a conclusion
~na~ an employee nas failed to meet 5he requirements o£
his or her post,ion.
A~ pages 10-~4 of the Sneppar~ case cited aoove, Vice-Chairperson Slone
places this extrac~ from the Sc~ira~ian case in t~e conte~ o~ t~e Board's
~urisprudence as it ~as developed from the case Re LesYie and t~e Crown in
Ri~h~ of Ontarlo (~nistry of Community and $ocia~ Services) (1978) 22
C.A.C. (2d) 125 (Adams). At. pa~es 14-16, Vic~iCnairperson SYone ma~es the
foYlowing oOservations as to th~ over~appin~ tests developed:
[~ can be argued wi~n some ko~ical force tha~
Board does not sit as an appeal triDunal from the
decision oy a Deputy Minister to release a proOa~ionary
employee for faikure ~o me~t the r~quiremen~s
position. We are not entitled ~o suDs~itu~e our
asses.__~4~.-~ of ~a proOatione~'s jo~performance for tha~
of ~he Deputy Minister. However, ~ne jurisprudence of
this Board entitles us to revLa~ certain aspects o~ the
release. '~he considerations fall within three somewhat
overlappin~ categories:
A. Lack of Good Fai~n:
[£ the ~mployer lacked ~ood faith in releasing the
proDationary empYoyee, then tee ostensiOke "tek,asa"
will De considered actually to have oeen a dismissal,
which can be grieved under Section lS(2)(c) of the Crown
Empkoyees Collective Bar~a[nin~ Act. Clearly the Dad
faith, if found, must be relatively serious.
B. UnreasonabLe:
'~hile this term is u~ilized in bna earlier
decisions we do not take it to mean that we can review
the merits of tae .=mpioyee's
?etns~a~e nlm if we find that the assessment was
"~reasonaOke" that th~ empkoyee bad'not me~ ~ne 300
requirements. Eeasonaokeness in this oontex~ is a
species of ~ood faith. ~re~
~d ~ a rele~ ~r~rly ~tiva~ed or
p~ti~ ~loyee~ not fulfill~ o~ could not
wo~d ~ve seen ~ ~e~le exe~ci~ of
C. Radical Relationship Between the Facts ~d ~ne Release:
This facto~ is nea~ly ~non~ous
"~easonaSleness". [f the ~nploye~'s assessmen~ ~na~ a
c~ain se~ of fa~s 3us~ifi~s
on ~y ~alf-in~etii~en~ view
celease becoges a discna~ ~d
B~d of ~bit~ati~ ~t ~ve c~ to a ~ffe~ent
(emphasis added)
~he t-=st developed in tn~ Sneppard sase was cited and followed in the
Lobraico case. ~ha Dafoe casa was decided under s.22(4) of the ?uolio
Service Act and is nog as relevant to our decision.
In bna Basanti Roy G.S.B. 15~4/~5 and Von Buchstab G.S.B. 1~58/.35
oases cited above, ib is noted that the Board's Ourisprudence stemming from
t~le Leslie case was placed in some doubt by the reasonin§ o£ Vice-
Chairperson. De,isle in OPSEU (M. 8alderson) and Ministry of ColleKas add
4
Universities G.S.8. 1589/B4. the majority held that the release of a
probationary employee pursuant to s.22(5) of the PuOlic Service Act ~i~hou~
access to arbitral review for cause was discriminatory ~nd offended s.15(1)
of the Canadian Charter of Ri~hCs and Freedoms. ~e Balderson decision was
quashed on review by 5~e judEement of ~ne Ontario Divisional Court da~ed
DecemOer 19, ~9~6. ~h~ court held that the Board had improperly applied ~ne
Charter retrospectively. Pne cour~ refrained from commen~ upon ~ne scope 'o~
review. £n t~e Von 8uchstao case, Vice-Chairperson Gors~y reviews ~he
reasonin~ of ~he 8alderson decision. He notes at p.5 that the Ba[derson
decision adopted the principle t~ab Zhe onus which lies upon management to
prove cause ~or ~erminatin~ a proOationary employee need not ce of ~he s~me
form or weigh~ as wou~d justify the dismissal o£ a seniority-rated employee.
Suostantiai deference will 0e accorded to the judgement of the empYoyer.
AC. p./, Vice-Chairperson Gors~y conc£ud~s tha~ the standard articulated in
8aiderson is w~e~er ~n@ employer's assessment ~as "palpabLy unreasonable,'.
Counse~ for bne ~ployer too~ the position ~ha~ whether we adopt the
sor~ of tests articulated in the Sneppard case, or tne "palpaOly
unreasonable" tes~ of ~he Balderson case, C~e evidence would saow Chat t~e
authority to release ~ne grievor for failure ~o meet CUe r~quirements of the
position nad Oeen exercised reasonably and in good faith. Upon reviewin~
the evidenoe, we are of the view ~na~ the S~p[oyer can meet t~e tests as
articulated, w~e~her on the standard of the Saeppard case or that of ~he Von
BuchstaO case.
At ~ne time ~ne grievor was hired, there was a complement of three
Oargaining uni~ positions in the writing unit of the Communications
Department of the Corporate Relations Branch. ~e Cwo Writer/Editors
reported to a bargaining unit position entitled Coordinator, and t~roug~ t~e
Coordinator to the supervisory position of F~nager, Communications. For the
first week after the grievor's hire, ,~r. Brian Edwards, who holds the
position of Manager, was away on vacation and the position of Coordinator
was vacant. Approximately t~n days after the gri~vor started worK, Ka~
Christi~ was appointed to the Other Writer/Editor position. '~h_~ Coordinator
position was fil~ed in mid-July when Martin Dewey was hired.
Mr. Edwards t~sti£ied tha~ it was ~r. Dewey's r.esponsiO£[i~y to assign
wor~ to ~e writers, edit b~eir work ~d provide guid~ce to th~ writers
~hro~h editorial ~o~en~, ~d to [amcn draft speecS~s, press rek~ases or
o~er ma~eria[ tnro~h t~e appro~ais pr~ess, once he was satisfied as to
t~e q~tity ~d content of a d~t.
~ evidence of Bri~ ~wa~ds, Kate C~istie ~d tee grievor did not
differ in ~y 'material respect concerning ho~ work ts assigned, h6~ the
~provais pc~ess was o~g~i'aed to f~cti~, nor as ~o the requYremants of
tee Writer/~itor position. We find tha~ tee responstOilities of the
Writer/Editor entail the c~positi~ ~d sd[ting of speeches, news releases,
artickss, fact sheets, projec~ s~aries, energy notes, ~d or~nures as
assi~ed, using word processing computer equipment, it is ex~otsd tna~ the
Wri~er/~itor will vet a draft for spelling, p~ctuation, ~d gr~atica~
errors prior to submission of tae draft to tn~ Coordinator for approva[. A
"pi~ sheet" is prepared ~d distributed on a regu[ar ~asLs by the
Coordinator which sets fOrth the nature of tae work to be assigned, to whom
tne wor~ is ass[~ed, the deadlines ~d t~c~ica[ advisors for tns projects.
~he Writer/~itors are sxpscted to contact suca advisors to gather.
sufficient information to prepare a draft w~icn is factually ~d t~icalYy
accurate. Such consulOations inform the writers as to the bone and pokicy. I
direction which the i~inister would li~e to assume in respecO to an assigned
suOject. A sample "p[nK sheet" was filed in evidence and is at~ached to
this a'~ard as Appendix "A".
Once a draft £s ready z~or suomis.sion to the Coordinator for approval,
the Writer/Editor is expected to prepare a "green sheet" which accompanies
the draft through the hierarchy of the approvals process. ~he draft is
reviewed first Dy the Coordinator and, if approved, the approval is
indicated Dy his or her signature and date on ~he "~reen sheet". £he draft
is then forwarded wion the "green sheet" for approval oy Brian Edwards,
Manager, Communications. '~ne Coordinator is expected to review the draf~
most closely, on a word-Oy-word Oasis to comment on such matters as
spekling, =~rammar, punctuation, flow, choice of language and t~=chnical
accuracy, i~e Manager is expected ~o edit ~e same ~a~ters, out may we~l De
aole to provide suggestions for con5ent cased on more current information.
From the ~lanager, the draft is passed to ~ne Director of the Corporate
~ekat[ons Branch, who is Arthur DicKinson. ~ne drafO is then forwarded to
the tecnnicak advisor ass[Ened to t~ne project and from there to his or her
supervisor. ~he draft is reviewed at this. LeveY primarily for ~ec~ni.caY
accuracy, although ali witnesses indicated t~at other sorts of revisions
could be demanded at this stage. £f t~e suoject-matter of the draft touches
on policy issues, ~he draft is routed to ~e E~ecu~ive Oirector of the
Policy Branch for approval. Otherwise, the draft would be routed to ~h~=
Executive C~ordinator of the reLevan~ Branch. Finally, the draft is routed
to ~he Deputy ~Minis~er's office for approval. High pro£iie or sensitive
policy ma~ters wou~d nave to Oe approved Oy the ~inister. A~ any stage of
the approvals process revisions can De required and the draft is remitted
Dark to the Writer/Editor to incorporate such changes, the revised draft is
then routed UP through the hierarchy of the approvals process a~ain. ~ne
"=~reen sheet" snouYd accompany the dra£t ~nroughou~ and should provide a
trai~ of the progress of the draft tnrough the signatures and dates
Once the work is approved, tne "green she~=t" should De filed in central
filin~ with the particular assignment. - A sample "green sheet" was produced
Dy the grievor during examination £n chief pertainin~ to ~he approval
process for a d~aft speec~ he had worked upon. it is attac~d as Appendix
"B" to ~nis award.
Non~ of the other "green sheets" pe~rta~ning to the grievor's work couid
De found in the ~nistry's likes despite the fact that a search was
undertaken oy ,~inistry pgrsonn~Y, and despite ~he fact that the ~r[evor
testified that he made copies o£ documents he ~ad wor~ed on after mid-
August. Even t'ne "green sheet" Cna~ ~he gr~evor produced d£d not hay
name on i~ as writer, alphorn he fiLYed in th~ other aspects of the ['rrm
that he would ~e expect~=d to as part of his 3oo respons[o£1i~ies.
Counsel for the Union invited us to draw an inference adverse to the
,~inistry concernin¢ the missin¢ approval sheets. ~he suggestion was that
the "~reen sheets" would have revealed tha~ t~e grievor was asked to do
revisions of work even after approvaks were ootained. ~ne Board reO~cts
this suggestion as specuYa¢ive, the evidence o[' ~r. Edwards and Kate
Christie was that £~ is the writer's responsibility to keep track of
"green sheet" throughout the approvals process to central filing. The
grievor too~ ~he position before us that ~r. Dewey was requirin~ unnecessary
editing of writing previously approved. He said that he kept copies of
relevant documents after mid-August when management first raised performance
concerns with aim. Pnus,'it is more probao[e that he would nave kept copies
of the "green sheets" for bis worK, yet he did not.
in any event, it was clear from the evidence of Brian Edwards and Kate
Christie that revisions could De required at any stage of the approval
process, the pertinent issue is w~etner the revisions were required because
of deficiencies in basic skills, as alleged by the Employer, or not. ~hus,
we find that the proolem of the missing "green sheets" must be relegated to
the realm of speculation and is a red herring.
rne gr/evor was aole to recollect aY[ the assig~nents that ne ,~as given
from the time he.was hired on Monday, June 2SC~ to ~he date of his release
on ~bursday, November JO, 1989.
His first assignment was received fr~m ~r. krthur D~ckinson, the
Director of the Corporate Rela)ions Branch, while ~r. Edwards was a~ay on
vacation. ~he grievor was ass£gned to draft a teznnicak paper on parallel
generation. ~he~grievor indicated tha~ ~r. Edwards edited that piece when
he returned the wee~ co~uencing July 4t~ and he voiced no complaint and gave
no feedbac~ to the grievor aoout his draft. Mr. Edwards was no~ asked
aO°ut ~hi$ assignment when ne ~ave his evidence. However, it can be no~d
from tne "pin~ sheet" filed as Exnioit #20 tnab Martin Oewey is assigned a
rewrite of ~he parallel generation paper two months later ~ith a dead~[ne of
SeptemOer 1), 1939.
2he next assignment that the grievor recollected was a draft of a
speech to De delivered ~y the Minister to a forum of energy efficiency
associations in Kingston. He identified Exhioi~ .#) as his worK, although he
could not rememoer who had done the editing, gr. Edwards testified that he
reviewed this work and took it into account in forming his conclusion that
the §rievor was seriously de£ici~nt for a professional writer in the basic
s~iYls of spelling, grammar and punctuation. The draft, with ed[ts shown,
appears as follows:
First of all let me say thank you for inviting me to Kingston in
July, to talk to you about one of the most important issues of
our~.rg.r.iod ~f-T ~-'eFy~r - energy.
{,
When I was in the area, back in March?the weather was not
~' ~~ ~ accommodatinq. I appreciate the chance to get away
from Queen's Park and ~ '~n~.e__to enjoy your wonderful scenery
and talk with you,
Even the beauty which surrounds Kingston, however, reminds me of
why I am here. The sunlight, water and ~tars are all symbols of
.__w]~a:~W~ are here to discuss. I~-~i?e~beauty lies also our
~_~e/~How to use and conser-ve'~wur e~e~y, so our children and
grandchildren can enjoy a night like this.
A warm summer's night in Kingston, as I am sure Mayor Cooper
knows is as close as one can get to perfection. However it is
that same light, water and air, which we seek to preserve, while
.harnessing it for our energy needs.
10
-2-
Ontari~s are always quickly brought back from our musings by
the grim reality of the geography we enjoy. While spending our
summer evenings lighting the barbecue and our camp fires, we are
reminded just how fragile our link to life in this province is.
We should always remember, as Tuzo Wilson warned; "In many parts
of the world including much of the southern United States people
would be uncomfortable if heating fuel is cut off, but in Canada
many people would die. We need our energy fuels just to stay
alive in our rigorous climate and fuel for our future is
essential." ;
I feel there are no small steps in energy conservation. Each
step, no matter how small it may seem .,is a significant one.
Preserving our environment, while cons'el-ring and using our fuels
efficently/ could be the most important thing we do for our
children.. ' ' ' ~_0D-~--p ~
I am proud to say Mayor Cooper and her'council are unique in
.t.h_is~area~ in taking a leading role in .the area of energy -
conservation. Besides hosting in October ? a one day seminar
"Cities Energy Program" Kingston is part of the Ontario Ministry
of Energy and Ontario Hydro pilot project to encourage
municipalities and townships to convert to energy-efficient
streetlighting.
11
the grievor's associate, Writer/Editor Kate Christie, was questioned
aOou~ the errors in grammar and spelling in ~aragraphs two and three and was
aDLe to confirm as incorrect the constructi, on of the s~=cond paragraph and
the speiiin~ errors in paragraph three highlighted in t~e editing. ~ne
Board Ls satisfied ~a~ ~nks document reveals speL~Ln~ errors, one of which
would not De corrected by a computer spell-checK ("they're"). 'Furthermore,
the Board would also conclude ~ha~ i~ wou~d no~ De unreasonaOle for the
Employer to conclude ~hat the document also reveals several instances of
very awkward construction which complicates comprehension. The grLevor
indicated ~e was required to ma~e three drafts of this speec~ De£ore £t
passed through ~ne approvals system.
On July JJ, J9B9 the grievor was assigned to draft the response of the
Parliamenbary Assistant to the Minister to a motion taoLed Dy the Entropy
Critic for the Progressive Conservatives concern£n] the future of variously-
powered generating stations, the =~rievor indicated t~a~ gartin Dewey
returned this speech to him for revisions on July l/th. ~e ]rLevor made
the revisions and resuomitted' the second draft to Marbin Dewey on the
afternoon of July 18th. :ne speech was due ~o ce de!Lvered in the
Legislative assemoLy on July 20tn. 'Ehe grievor received no further
revisions nor any feedback about the speech from Mr. O~w~=y or Mr. Edwards.
Mr. Edwards was not questioned aDou~ tais assignment w~en ~e testified.
On July 19th, ~Ir. Edwards assigned the Erievor the tas~ of dra£~L.ng a
speech aoout the street iigntin§ conversion program to De delivered ~y Hon.
MiKe Brown, MPP Algoma-~Mani~ou[in, on '~uesday, July 25~. He indicated in
direct examination that the speech ~as required Dy Monday, July 24th and
that Mr. Edwards requested his draft on Friday, July 21st. He provided ~is
12
initial draft ~nat a£bernoon. An excerpt from this speech was identified Dy
tQe ~rievor as part of an early draft and Mr. Edwards testified taat
took this into account ~n assess[nB the grievor's ability to ..~eet
requirements of ~is position, rne extract, with edits, appears as fok~ows:
Controlling the demand for more and more energy also reduces the
environmental impact of energy production and use.
I know that both of these concerns matter very much to(~hose
of us who live and work irt the north. And they also matter to
the Government of Ontari,~t,h_at is why the Minister of Energy y
has made demand management his top priority.
In particular we have sharpened the }ocus on electricity demand
management programs. Recently/~as you kno~c/~he m.~.inister
introduced a series of amn~drr;~nts to the Power Corporation Act
directing Ontario Hydro to intensify its efforts in electricity
conservation and efficiency programs.
Our new program is designed to help slash these costs by
providing interest free finanCing and leasing, or cash
What's in it for communities taking part in the program is a
potential saving of 24 to 75 per cent of electricity costs for
streetlighting, as well as reduced maintenance costs.
What's in it for the province of Ontario is a potential
reduction in electricity demand by as much as four megawatts.
This is a significant energy saving and one that could help to
carry us toward our over-all conservation targets..
The Board is satisfied that an Employer reasonably could conclude fr~u
this extract that the grievor did not have a good grasp of the fundamentals
of punctuation. Furthermore, there are errors, whether of spelling or
printing, t~at ought to have been picked up by the grievor in his re¢iew of
the document pr[or to sdSmission through the formal approvals process.
Ultimately, the speech was approved and the grievor received very favouraO[e
feedDac~ concerning its content from the Parliamentary Assistant and from
the Hon. lKiKe Brown. ~ne speech was used again in SudOury by the same
memOer of the legislative assemOly.
On Augus~ 14tn, ~ae grievor was called into an informal meeting with
his Coordinator, ~r. Dewey, and Mr. Edwards. At ~is meeOin~, Mr. Edwards
indicated that he pointed out to t~e ~rievor ~at management was concerned
aoout ~e quality of his production. Mr. Edwards candidly admitted that he
did not point out concrete e~a~p~es of the. proO[ems. Mr. Edwards evidently
relied upon the editing process and the types and exOent of revisions
~equ[red as being a gu[de to the grievor. When the grievor was asked in
chief whether he understood why concern was being expressed about t~e speed
and accuracy of ~is production, ne responded that he had never missed a
deadline and that ~e wasn't made aware of what accuracy meant, and responded
"if i~s tecnnically inaccurate, it ~ot past the ~ec~ica[ people".
?he Board is satisfied that the grievor nad received sufficient editing
of his drafts ~o that point in time, either from Mr. Edwards or M~. Dewey,
that ne ough~ to have been aware that his writin~ contained deficiencies in
~he standards expected of spelling, grammar, punctuat/on, and construction.
~e Board finds that the evidence to this point in time does not estao[ish
that the grievor's deadlines were exceeded. Rather, the criticism
concerning the speed of production is relevant to the number of revisions of
the grievor's work needed De fore the draft would b_= ready for passage up
~arough t~= approvals sys~e~n, oeyond ~ne positions held by ,qr. Dewey and ~r.
Edwards. The meeting of August 14~h was confirmed in a personal and
confidential letter to .the gr£evor of the s~ne date from Mr. Edwards:
It's time for the writin~ section to start gearing up
for ~ne heavier work Loads we can expect in September.
At t~at time the sec~ion will nave to ~ up to spe~.
By ~is [ ~e~ ~ every~e will ~ave bo De familiar
w~a g~e policy areas we ~ave to address ~d wi~h
pr~ed~es for moving wor~ smoothly 5broth
pipeline.
Even more, t~ ~ti~ ~ to ~ ~ a ~siti~
~orR ~d ~iftly, with mi~im~ revisit. 'We have to
~ ao[e to pu~ speec~s tpgebner on s~ort deadlines ~d
O~g ou~ press releases to order.
[b is aere ~ [musa goin~ ou~ a concern ~Ra~ f ~ave,
Laird. Yo~ wor~ ~o ~ ~ req~red ~ ~d of
revisi~ t~b we will no~ ~ ~le to ~ford
~p~e~r. Enere is no qu~sti~ agou~ your willingness
to. do ~he worR or the energy you pu~ in~o your ga~s.
You have Oeen more t~ satisfactory
~ve s~ re~rvabi~ ~u~ w~t~r you will De
~orR with ~ s~d ~d ~c~y req~red ~ t~s ~d
of o~rati~, fhis is somethin~ we will Rave ~o assess
in cominE weeks, Laird.
[ surest that you ~d I meet ~o discuss 5his in more
datait. [ must fur~Rer men, ion bha~ s~ould your
parform~ce in bna jog for wnic~ you w~re hired no~
improve, further measures will ge
I ~ ~optng ~ha~ you will see this as a positive move
towards correcting ~ne situation, LaLrd. [ loo~ forward
~o se~ing some improwmen~s.
(emp~sis added)
~ne response of the grievor to this meeting was that'he raised
matter wi~h the Union and began t~ Reep copLes o£ everything h~ wrote, Rept
copies of anything sent to him, and ~pt a diary of ~vents as they unfolded.
~6
He testified that he didn't Know what m~nagement meant, claiming that he had
not had any feedOac~ to that point. H~ chose nog to discuss the concerns
raised any further with mana§emsn~.
On Aufust 15, 1999, ~r. Dewey assigned th_= grievor ~o update a core
formula speech pertain[n~ Go ~e suojec~ "Cities Energy Forum". [n direct
e~amination, the grievor identified a series of electronic Rail messages
that passed between ,~ir. Dewey, the grievor and the technical advisors for
~nis project, lC ts apparent 5hat one of t~e technical advtsors, Walter
Chic~, suggested to the ~rievor that ~ne sp~=e.~h could be "livened up" with
~ne insertion of appropriate vignettes.
From the testimony given a~ the nearing and t~e exnioits, it is
apparent ~a~ a core or generic sp~=ech is generally developed for a suoject
that is frequentLF addressed, such as the Citi~=s Energy Forums. A Local
version Ls derived from t~e generic versLon with cnan~=es made ~o Local
references and people, prior to delivery of the speech at a particular
location. £n Chis instance, Cne core speech was Co be updated and adap.~d
for delivery tentatLv~=ly a~ a Kingston forum in September. ~Ls date ~as
changed to a tentative date Ln Novemoer for delivery aC a differen~
location. ~he grievor indicated that the orL~inal core speech was scrapped
through a series of circumstances, r~he grLevor indicated t~aC gr. Chick had
requested a number of changes and Mr. D~weyI was no~ satisfied wiC~ C~ose
changes and ot~=r changes reques~.~d oy Mr. Shervill.
~he grievor LdenCt£Led a "~reen sheet" which pertained to ~he §eneric
Cities Energy Forum (CEF) speech that was being developed at ~his time £rmne
from mid-August to mid.-September, 198~. ~his approvals routin~ sheet Ls
attac~ed as Appendix "B" to this award. ]~h~ grtevor a. lso produced the
seventh draft of the gene~ic CEF speech which he indicated had been approved
up to ~ne level of ~. Sne~vill's ~equast fo~ ex~p~s ~o ~ inckuded.
genetic CEF ~as ~en ~ou~ed OacK ~o ~e ~ievo~ fo~ cevis[~ to add the
Al~o~h seven vineries were discussed~ it was ewntua[l~ d~ided
add three: one a~ ~e Do~om of page 2 pec~aini~ go the Univecsi~y
Windsor; one a~ p~es 5-S pe~Saining go g~e e~p~si~ of the
i~emo~ial Audito~i~; ~d ~ae ~n[rd a~ pages ~-8, pe~taini~ go the Adv~ced
House n~a~ 8~n~Sm. Although ~e g~ievo~ ap~a~ed to [dd[caS~ [n dicecg
ex~inagion ~nag Mis seventh dcaf~ of ~ae gene~[c speec~ ~ad c~cei~ed
a~p~ovai as sho~ ~ ~ne ~ovais ~ou~iag snee~ (Appendix "B"), ig was
eventually so,tad ou~ in c~oss'e~ina~i~ gna~ this seven~ dcaf~ was
p~oduced af~e~ a p~io~ d~afg, wignou~ g~e ex~pkes, had Seen approved up
t~e [eve[ of Mc. Beale. Eventually, ~e g~ievo~ admitted ~a~ the seventh
draft of ~e ~ene~ic CEF s~ecn was n~ve~ ~nb up tn~o~ the
p~oc~ss D~a~e M~. Dewey neva~ sign~ [~ off.
As indicated f~om the e[~ctconic mall messages da~ed OctoOec lO~n,
1989, fi[ed ~ ~niO[~ $1~, the ~ievo~ ~d Mc. Dewey were no~ in
p~ess of developing a [~akized ve~s[~ of g~e genetic speech of a Ci~[es
~e~gy Fo~m speech go ~ given D~ ~a~[i~en~a~y Assis~ R~
Ni~a Fails on ~ow~ec 13~ a~ ~:30 a.m. ,~. Oewey liked g~e
d~af$ of ~ne gene~ic speec~ ~%d instructed ~ne g~ievo~ ~o dcaf~ a
Falls ve~si~ ~d ~nd thaC [~alized speech tn~o~n ~e approvals system.
F~om ~nibit ~20, ~ne "pin~ sheet'~, ig c~ be seen O~ag g~e deadline
w~ich M~. ~wey ~d t~e gF[evo~ were working fcc th9 l~a[ized ve~si~ was
~o~r 25tn, wit~ ~ovai of ~he ~pu~y Minisge~ needed Dy Novem~ 1st,
18
and gne ultimate deadline for delivery of ghe speech oeing NovemDer
1989. Mr. Edwards identified as ExniDits ~3 and #3 respectively, two drafts
of the Niagara FalLs CEF speech prepared by the grievor with edits £rom
Martin Dewey dated October Jlst and November 5th, 1389. Mr. Edwards
testified ona~ ~e would have seen the Niagara Fa[is version once Mr. Dewey
had approved it and sent i~ to him as par~ of the ~ormai approvals rou~in§
process.
On review o~ the seventh draft of ~he generic version (Exhibit #15) and
~h~ two drafts of the Niagara Fails version, i~ is apparen¢
wa~ not satisfied wi~h the manner kn w~/$h the grLevor had ~ompos~fl and
inserted the ~nree exampkes noted above. Alrhou~ the rrievor claimed ¢~at
Mr. Dewey edited extensively materiak ~hat had been approved previously up
to Mr. S~erviil, he never filed a copy of a draft of the ~eneri~ version
which did not have ~he e~a~ples inserted w~icn wouid ~ave accompani~
approval§ routing, sheet filed as Exhibit #!5. fne seventh draft of the
generic version wi~h the e~amp[es inserted (ExhiD~t #~3} was never approveJ
Dy ~r. Dewey.
fhe vast majority of the ediss in ~ne two Niagara Fails versions
(Exnioits ~B and #9) pertain to the grievor's insertion of £ocal references
to people and places and the three vignettes in the first nine pages, fhus,
we conclude that Mr. Dewey was directing ~is editing primarily to maber£a[
t~at was Deing inserted in~o ~ne generic speech at ~nis sta~e prior
suOmission through formal approvals. Furthermore, we conclude upon a review
of E×hioits #3 and ~9, that the ~rievor was caretess in not correcting
printing errors on page ~1 (ExhiOit #9) before suDmi~ting it to Mr. Dewey.
~h~ grievor omitted to ~yphenate compound adoectives such as "energy
19
efficient" at pages 5, 9 and 13 of Exhibit #9 although this was specifically
mentioned a~ p.9 of the prior draft (E×hiOib 9~), Ab page ~ of Exn[Dit #9,
the grievor failed 5o take [n~o accost the ch~ges requested a~ p.6 of ~he
prior draft (~niOit ~8) to improve the accuracy o~ th~ facts. Mr. Dewey
wished ~ae grievor ~o clarify ~nat .~he c~ges made ~o improve ~h~ energy
efficiency of t~e Kitchener auditOr[~ we?e supported by the Ministry, Put
not ~der~en by ~ Ministry. Further, ,~r. Dewey wished
g~e savings which would accrue fr~ energy-efficien~ desi~ would redo~d to
~he Cigy of Kitchener, but the ideas for design improvements could be p~sed
on in a for~.
~ grievor seems to have (hissed this point in ~hiOib ~ ~d tn his
defenoe of ~ibit ~8 ~d Exhibit $~ oontain~ in ~is memo to Mart~ Dewey
~d Bri~.~wards appended to Exhibit S6. At p.8 of Exnidit ¢9 he omitted
to m~e bne gr~a~ical ~d p~ctua~ion ~h~¢es necessi~ab~ by t~e edi~
p.8 of BxniDi~ ~8. ~ grievor admits he overlooked ~his edi~ in.his memo
abtac~ed to ~nioit $5. ~he frustration caused by this carelessness on
pa~t of ~be grievor is ven~d Dy M~. ~wey in ~ electronic mail messa~ .~o
~ne ~rievos dated Novem~r ~d, 1~89 a~ 15:5) pm. which is ~pended to
From Exaibib ~14, daSed November 9, 19B~, ~d 8be 8es~im~y
grievor, it is apparen~ tha~ ~. Dewey decided to b~e bne revisions
~rtaining ~o ~ne inc[us[~ of ~ne vi~ebbes inbo his own
the grievor did m~e bne revisions s~esbed in ~nibit ¢9. Mr. Dewey
e~piained ~is reasons for doing so bo ~he Crievor in the memo dated November
Bth ~d f[~ed as ~n[bit ~14. Even~uakly, the speech successfulYy passed
t~ro~h the formal ~provaks pr~ess in time for delivery of bhe speech on
Novemoer 13tn, Out well past t~e deadlines first set in ExniOit #20.
On August 21st or 22nd, the grievor was assigned to draft two press
releases for t~e ~[~ista~'s response to a document b~at 4as to be released
in connection with t~e Conference of Pro~inc£aL Energy Ministers on August
24tn. ~he grievor and ~r. Oewey met 5o discuss a dra£~ outline for the
press releases. ~n[s outline was filed as ExhiOit #15. ~he grievor
produced a draft for the r~leases on the afternoon of August 22nd.
grievor testified that Mr. Dewey cal~ed nlm OacK ~o his offi~e oompk'aining
t~a~ the dra£bs did not fo[iow ~is outline. ~he ~rievor claimed
Dewey said ~hat the grievor had not taXen accurate notes of the outi£ne.
However, the gr/evor was able to sho~ Mr. Dewey his own notes (Exnioit #18).
T~e grievor did the revisions and resuDmi~ted it ~o ~v~r. Dewey. Pie never
received any further feedback. M~. Dewey did not best/fy and neither the
grievor's first drafts nor final drafts for these press releases were
in evidence to compare them to ~ha outline filed. ~e grievor testified
~ab after Augus~ 14~n, he ~p~ copies of all material ne produced. ~r.
Edwards was not questioned about these ~ress releases and the outline when
he testified.
£n the perfo~zance review a% p.2 (Exhioit #&), the following note Ls
made respecting skills needin~ improvement "Following guidelines/outlines
once §iven or agreed upon". At po4 of the evaluation in Part ? deal£ng wi~n
performance oojec~ives for the period November ls~ to ~Oth, 19B9, the
following notations were made:
- outlines ~o De done promptly and agreed wit~
Coordinator
- outlines to De followed.
21
In his memorandum dated November S, 1989 ~o Brian Edwards, the Erievor
gives the same expkanation as ae did at the hearing - ~ha~ Mr. Dewey's
expectations were not consistent with th~ notes he had made Cot the ~ievor
to foYYow as an outline for the press releases. We find ~ha~ ~ne evidence
is unckear as to w~etne~ ~ne ~=rYevor followed ~r. ~wey's outline
drafts, in ~y event, t~is particular iss~ is not pursued Oy M~. ~wards
in ~ grievor's final ~rform~ce review of November ~tn, 1~9.
~ next iss~ in the ohronoko~ of eventz is that Br[~ ~wards
approved the grievor's request to abtend a sp~ech-wrisin~ course on Oo~ooer
1?tn, 1989. Ar paragraphs seven ~d
grievor's memor~d~ ~o ~r. Edwards dared November 3, ~9B9, the grievor
s~ates his c~piain~ aOou~ this issue,, w~ioh ne reirera~ in his res¢imony:
As for the sendin~ 9~ mys~Yf on a speech-writing
course [ t~inK this is a prime example of ~he Martin
Dewey approach ~o my wor~ing here. He instructed two
empYoyees of this minisbry to not men~ion ~ne course to
~me at all, if ~enry Gates had not menti~e~
mi~h~, never have berne aware of it.
Whiie ~ivin~ me "const~t ~uid~ce ~d in-depth
· feedback" he was deliberately exc!uding m~ fra~ a course
tna~ migh~ Oenefi~ me. [ Dro~h~ t~e co~s~ to ~r.
~wards' attention ~d ne 'st~ed ~ne doc~ents. ~r.
Dewey in t~e me,time was signin~ himself ~d
s~aff mem~r ~o. bhe course. While doing this ne.
deliOera~e[y ~d with forethought tried to exckude m~,
He has done ~n[s on Other ma~ters including
occasi~a[ty including me in the d[stributi~ of t2e
"Pi~
Mr. Edwards, in cross-examination, explained thaC his inibiaY impulse
had been to deny ~he grievor's request to a~tend the spee~h-wrY~in~ course
on ~ne basis t~at ~ne grievor was so defkcient in basic sKikYs. However, ne
reconsidered and approved the grievor's reques~ to attend ~ne course in the
22
hops that the ~rievor would sea what was expected in speech-writing and that
this would assist him in his worK.
At the hearing, ~a gr[evor indicated [n his direct e~am~natkon in May
t~at he Learned for the first time Prom Mr. Edwards' testimony at one
hearing that ~ar%in Dewey nad nothin§ to do wiCh the ~?[evor's request to
a~te~d the speech-writin~ course. However, in cross-examina~ion in
September, t~e ~rLevo~ L.le~ttfied a tet~e~ ~a ~ad ~e~eiv~d £romB~ian
Edwards dated January ~5, 1990. ?his oorrespondenc~ was Mr. Edwards' reply
~o the ~rievor's memo of Novemoer 5th, 195'9. At p.2, ~r. Edwards states:
~he decision to not send you on tee speech-writing
course was nothing to do with Martin. [ made it,
because at the time [ didn't feel you would benefit from
it when you obviously lacked the fundamental sKilLs
required. [ $~anged my mind when [ felt we should ~ive
you the opportunity at [east to see what [s required.
£n re-examination, the ~rievor explained t~at ne never read the entirsty of
Mr. Edwards' letter. He discounted it as a se[f-servin~ document and flied
it away. G~ven that the ~rievor described ~imself as "royally ~icked" oF
his termination on NowmOer 50tn, that he ~i[ed a Er[evance on the sane day,
and the request to set a'~earing da~e before chis Board ~as made by the
Union on January 25, 1'~0, we £[nd [~ impkausiO~e t~at ~ne ~rie~or, as a
professional writer, would not be aware of the entire content of Mr.
Edwards' letter. We therefore conclude tna~ t~e evidence oefore us does hoc
support a conclusion that the Coordinator, Mr. Dewey, sou§hr to preven¢ the
grievor from aCtend[n~ a speech-writing course on OctoOer l~th, 198~.
Prior to his performance review on November 1st, the ~rievor undertook
another assignment on OstoOer 15tn, 1RBe. ~ne task was to draft a speech
for the Deputy Minister, ~nomas Sosa, to be ~[ven at a special meetin~ on
NovemOer '3rd, 1989 of ~]e Association of Major Power Consumers of Ontario
(&~PCO speeca), Mr. Edwards testified, that ne asked L~. Dewey to aklow him
to review and comment u~on the gr[evor's draft, prior to :qr. Dewey doin.g a
comprehensive edit. Mr. Edwards made this request upon heari~ i~r. Oewey
voice complaints to him aDout the quality or the ~rievor's worX. ~r.
Edwards made edYting comments on each page of the speeon to page l~ and
explained that ne ran out of patience to cons[der pages 14 and 15. Page 19
has a dangiin~ preposition a~ the =~d o~ t~e first sentence w~icn Kate
Christie identified as incorrect usa~, althoug~ i~ wou~d Oeaore acceptable
in a speech t~n ia a puolica~[on.
~r. Edwards' overall assessment of the draf~ ~aic~ is handwritten on
~he first page following t~e t£tie page is as follows:
Mar ti~ -
~his. is very poor - i~'s' uneven, doesa'~ flow, contains
facCuaY, grammatical and spe~ling ~rrors. Needs majo~
surgery, fast.
Brian
Upon revie~ of ~nis exhibit, we find tna~ 5here Ls sufficient Dasis for
assessment. For example, page ¢ con~akns e~a~pkes of a grammatical error
wita adverOs placed improperly and a speiYin~ error ("do" for "du~") which
would eot Oe correct-=d Dy a oomputer speii-cnec'&. Page ~5 contains
of awkward construction and fac%ual 'error w~ich are no%ed as such ~y
Edwards.
In his testimony, the grievor indicated tha~ ~e submitted a firs~ draf~
which ~e received ~ac~ from Marti~ ~ewey on Octooer 2)rd with revisions. On
Octooer 24tn, ~e grievor was worKin§ on the speeca when ~he computers wen~
24
down at 4:00 p.m.. the grievor was unaOle to nave the maifuncbion f~xed
~efore ~ne end of the day. He was sick on October 2)bn, so he req~sted
colleague, Kat~ C~ist[e, to ge~ the revised draft bo Martin ~wey on
~[f. ~Ms. Christie saw tha~ Bria~ Edwards nad made som~ fur~er
revisits, as noted on Exhibit ~. ~he grievor was at ~ork on Oct~er
~d dL~overed ~hat Mart~ Dewey had bag~ a new versLon of bhe speech
~t~er 24t~. He testified tha~ he gave a copy of h~s second draf~ bo
~wey, bu[ [~ was never s~m~ted ~ro~ C~e ~provals process.
D~ing this c~onolo~ of evsn~s, Martin Dewey app~n~ly mis~derst~d
w~a~ ~r~spired between ~he gr~evor ~d Kate Christie concern[~ the
revisits to the gr[evor~s flrs~ draft, ~d co.~nenced a new versi~ of
~ spe~h as indicated in the electronic mail mess~es of ~to~r 50tn
~d 51st filed ~ Exhioi~ $1~. Since Mr. Edwards' revisits were availaoie
from ~to~r 24~n, ~d since ~ne grievor continued to work on it
~tn, w~ find tna~ gne grievor would have received Mr. Edwards' revisits
his dr~t ~d ~en aware of ~he criticisms expregsed. We also no~e tha~
Exhioit ~1~ would indicate ~na~ this speech missed t~e initial deadline seb
ia ~niDit $20 of ~5oOer 2)rd ~d also tn~ deadline aae griavor ~ave
~t~er ~tn or
Mr. Edwards testified t~at as t~K the grievor's ~ speech i~to
acco~ ~d f~ed~cK ne nad rec~iv~ fr~n ~artin Dewey concerning
~rievor's work when he completed the perform~ce review flied as E~hibit
for the period A~ust 14, 19B9 to ~toOar 50, ~989. The grtevor indicated
t~a~ ~e was sailed in to see ~r. Edwards on Novemoer ~d, 19~'9 to review the
perforate' ~praisaY', as well as the contents of a letter dated November
~d. in p~agrap~ two, tee letter sets forth tee steps taken by m~agement
to communicate the performanze standards expected:
Durin~ ~ne past months Martin Dewey, Co-Ordinator,
Writing and Editing has provided you with the necessary
technical guidance and direction. Your work has been
reviewed as assignments are given. £nstructLon and
ass[stance has been provided w[bn ~ach ass[gr~men~
order to provide you wit~ the ~uidance to complete work
in a ~imely, correc~ and sound fashion. Unfor~unaSe[y,
no improvements 'nave ~een made despite every effort
~elp you in the writing and editing area. Firstly, you
and £ ~av~ reviewed your wor~ in August. SecondIy, you
have b~en s~nt on a course to improve writing
Finally, yo~ na~e had const~% ~uLd~nce and ~ndepth
£eed~ac~ from your senior counterpart.
~ne grievor was ckearky put on notice in the closin§ sentence ~naU £ai~ure
to mee~ the performance oO3ec~ives set wou~d resul~ in release pursuan~ bo
s.22(5). The performance oo~ctives for t~e period NovemOer ~st ~o Novemoer
~0~ are contained in Part ~ of ExniOi~ ~g:
From the'period Nowmoer 1 to Novemoer ~0, 1~39, these
are ~ne oo3e~ivas to oe' met and will ~e reviewed on
Novemoer 50, 193~:
AiL wri;Lng assignments ar~ to be completed on
time and to ;ne satisfaction of ~ae Co-
ordinator, ~ri~ing ~ Editing and the Manager,
Communications, specifically:
- outiines ~o ce done promptly and agreed
wi~ Co-ordinator
- outlines ~o Oe followed
no spe~ling errors
- no grammatical errors
- no £actual errors
- minimum of editing to Oe r~quired
- no ma~or r~-writes to De necessary
~he grievor was invited to respond ~o ~ne performance review and did so
on November 5t~. T~.is material is appended ~o E~i~i~ ~. ~n addit[on, the
grievor added a nandwr£~ten commen~ in Part ~ which reads as foYYows:
£n her evidence, Kate ChristLe identified as errors the three circled
words: "concen" and ~assesment" ar-= mis. spelled; "doesnot" should not
joined.
Du~.iag the period Nove:~oer 1st to ~O~n, the ~r£evor was still wor~in~
on the Niagara FalYs versions of the CEF speech. He also volunteered to
ass[st ga~e Christie who had been assigned to rev[se and ed[C a series
six publications ~isted as "Where a~d How-to" ooo~s oa Exhibit $20.
Altnougon deadiines w~re initially s~ for co~pletion of this wor~ in
October, Ms. Christie nad no~ me~ ~na~ deadline. Kate Christie
~na~ ,~artin Dewey asked net to re¢iew and ed[~ t~e §rievor's woc~ for
consistency wi~a other Doo~s in t~e series upon which she had wor~ed.
Christie res£s~ed t~is reques~ as she was opposed to being r~=quired to
"Oudge" her peer's worK. None~nekess, iv[r. Oewey insisted that she perform
the tasK.
None of ~ne grievor's dra£~s on this pro~ect ~ere filed i~ evidence,
al~ou~ a series of electronic mai~ communications De,ween Mr. Dewey and
2?
Ms. Christie were. They revea~ a debate concerning issues of punctuation
and ~ypnenation. In respect to nipnenation, Mr. Dewey comments in Exhia£~
$24 t~at the only time he insists upon hyphenation is wi~n compound
adjectives such as "energy-effickent". This rule was applied in his editing
of the grievor's work in Exnib£ts ~3, $4, #~, $8 and ~. £ndeed, Ms.
Christie indicated that sne felt tt necessary on many occasions to debate
issues of punctuation, usage and style. A review of Exhibits $24 and ~25
revea[ an' articulate and essentially collegial discourse about such issues.
We further conclude that ,~s. Chr£stie's E-maLl to Mr. Dewey is devoid of the
awkward phraseology, poor spelling and poor grammar that characterize the E-
mail messages from the ~rievor in Exhibit $15.
la respect to the grievor's editing of the how-to Ooo~s, Ms. Onristie
testified that s~e did not agree with his punctuation and granlmar in some
instances, but that mis work had ~ffected a general improv_~ment. Her
message of November 25rd, 1~ 5o Martin Dewey was to the same effect.
cross-examination, sh~ was required to identify other spelling, pun~tuacion,
and §r~nmatical errors in speeches drafted Dy the grlevor, We accept that
there would have Deem more consistent ~uidance on issues of punctuation a~d
usage if Mr. Dewey had endorsed a particular stylebook for use Dy ali three
writers in the unit, However, 'we also find that the sort of mistakes t~at.
the grievor carelessly made in respect to spelling and grammar were clearly
incorrect and not merely a question of style.
On November JOth, the grlevor met ~ith ,~r. Edwards to receive his
performance review for the period November 1st to JOth, ~989. '~his
evaluation was flied as Exhibit $11. Fhe main duties and responsibilities
af the position are set out in Part [:
£h~ position title, Wri=er/Editor, captures the main
duties and responsibilities. ~ore specifically, the
pos£tion description calls for "wri~in8 ma~eriais for a
variety of modes (exhiOits, A/V scripts, pampnLets,
speeches, policy doo~en5s, advertising, etc.) ...". [n
practice, the maoor requiremenSs are Eot speeches and
news releases, usually done at shor~ notice wi~h very
tight deadlines. LaLrd's work has not Seen satisfactory
in that i~ constan~ky requires so much editing that it
constitutes re-writing ~y nLs supervisor. His ~aslc
s~iLls are below ~ minimum required - ~rammar~
spelling, accuracy, etc.
~he performance objectives for bnis review period were ex,ratted from
~he earlier performance review above. Par~ 2 deals w[tn ~ne performance
results for ~he period:
Speci£Lc PerEoc~mance SpeciE£c Perfo?mance. BesuLts/Comments
Objectives ~ ~argets
Once familiar wit~ the ~inistry,. to 0espi~ his willingness and
De able to produce a variety o£ enthusiasm La[rd ~ac~s the basic
ma~ariais, especially speeches and skills to do ~ae 300. His standards
news releases, of nigh quality, of spekling, ~r~mar, accuracy are
quiq~ly, accurately and requ£~ing a well below ~ose needed. His work
minimum of editin§, invariably requires such extensive
editing and r~vision as ~o
constitute a complete r~-wri~e b~
niSCo-ordina~or. ~his causes
problems wi~n tigh~ deadlines and
puts a heavy Ourden on his Co-
ordinator.
He aisc seems to Lack comprehension
of what is required and that ~e
[ac~s the basic s~£kts. £t has been
difficu[C Co ass[~=n work to
because o£ his Yack of ability.
On August 14 w~ indicated to Laird
our concern and made some
suggestions on how ~e could improve.
[n Oc~ooer he was sent ca a speech
wri~[n8 course. On NovemOer 1 his
pe_rformance was reviewed with him
and he was advised t~a~ his work was
unsatisfactory and tact He must
improve ox Novemoer 30. His
performance has not improved,
All writing asstg~nents are to oe
completed on time and to the
satis£a~tion o£ the Co-ordinator,
Writing ~ Editing and th~ Manager,
Communications, spec£~ica[[y:
- outlines to De done promptly
and agreed with Co-ordlna~or
- outline to ~e
~ no spe~ling errors - sps[~ing has no~ improved
~ no gra~maSicai errors
~ no factual errors -. still ma~es factual errors
~ minimum of editing to oe - still constant re-writes have
required nad ~o Oe done
- no ma~or re-wriSes to De - major re-writes in every case
necessary ~d to De do~e
Part 3 of the performance review identifiss tee s~iiYs needin~
improvement. '~hese were indicated as foklo~s:
SKills Demonstrated Needed/OesiraOle Training
to ennance skills
Know~edge and aOility to use word His s~i[ls are so far Oelow minimum
processor required for ~ne 3oo that
impossiole to r~ca~m~end a course of
~raining.
~he overaY~ performance assessment is contained in Part
OveraLL joo performance statement Oy 8upervisor/~V~nager:
Very willing and enthusiastic.
Basic writing/editing= skills are inadequate, and hay_=
not improved. Care[ess.
FoLlowing th~= NovemOer 1st re¢iew he was gLven the
oDd, nee to respond in writing=. Even this material is
fuLL of errors in speLYin~ and ~ra~%mar ~hic. h cannot be
toLerated in an ~xperLenced wrLter.
~r. Edwards tes~i£[ed tha~ he took into account ~ne §rievor's work on
t~e ~i~gara FaLls CEF speecn, as wel~ as the §rie~or's response to
performance review of August 14th to OctoOer JOtn, 1959, which ~Mr. Edwards
had received in early NovemOer. Mr. Edwards ack~nowledged in cross-
examination that the Erievor's response to ~ne performance review was not
work-related production. H~ e~pkained t~at ~e took the r_=sponse into
account 0ecause it manifested the same sort of errors in spelling, grammar,
punctuation, prootems in "fLow~, and carelessness tha~ nad marred
grievor's wor~-re[ated production, imf. Edwards' assessmen~ of the Erievor's
response is summarized in his [~ter to ~he grievor of January 15, 1~O in
wh/c~ he makes the foLiowin~ comments:
£ cannot understand why you, in your defense against my
adverse assessment of your capaOilities would ~ave not
~a~en more care ~o ensure ~na~ th~ =~rammar, spei~inE and
Langua~ wer~ impeccaD[~. ~hat you dkdn'~ says to me
rna= e£t~er you don't ~now or you don't care, and
neisner one ts acceptab[.= in a pro£ess[onai writer.
Mr. Edwards did not take into account Ohe grievor's work on the "How-
~o" cooks, Dut Ms. Christie indicated that in'some instances, she did not
agree wit~ the gcievor's c~oice of words and ~rammar.
We find, having reviewed the evidence exhaustively, that the grievor
was re[eased in good faith during the first year of his employment for
failure to meet the r~quirements of his position and was not terminated for
some other reason or as an act of discipline, so as to altow his grievance
pursuant to s.13 of the Crown Employees CoLlective Bargain[n~ Act. On the
standard of review articulated in the Leslie case, once the Board has
es~aO~£s~ed that the Employer ~as ac~ed in good fait~ in re~easing the
employee for failure to meet the requirements of the position, the Board has
no Ourisdiction to review the fairness or correctness of that determination
under s.2_2(5) of the PuoYic Serv/ce Act.
£n support of our conclusion, we further find that tee evidence
establishes a logical and rational connection ~etween the deficiencies in
t2e wor~ of ~ne grievor and the ~ployer's conclusion that the grievor
lacked basic wri'~ing skills in the areas of spekiing, grammar', form, flow,
and accuracy so as to produce speeches and news reieases of high quality,
quickly and accurately, requiring a minimum 'of editing within a framework of
tight deadlines. We find that tee performance standards expected of the
grievor were reasonaDle and rekevant to the nature of the work required of
~is position. We find that through ~e ve2ic[es of ed[ting, memos and
electronic mail communications, through meetings', a speech-writing course,
and performance appraisals conducted re§ularky throughout the proOationary
period, guidance and instruction were given to the grievor and opportunities
were provided for t~e grievor to improve. We find that the gr£evo~ was made
aware of the 3o0 requirements Oy ~r. Edwards.
]~e grievor maintained throughout that neither Mr., Edwards nor Mr.
Dewey spoke to him personally, particularly in the last month of his
~2
employment, and that he had little feedDac~. ]~e evidence suggests that Mr,
Dewey retreated to communicating with the grievor through editorial comments
on the grievor's drafts, to .~riCten memos and etectronic mail communications
after he kost confidence in C~e grievor's abilities, and particularly after
their dispute concerning the outline and ~ne ~rievor's draft of the
news releases. None~nekess, ~ne evidence is o[ear ~ha~ ~. ~wards was
~for~d of ~he grievor's progress thro~nout by ~r. Dewey ~d ~nat
~wey, ~hro~h his ~itorial c~n~ ~d corrections t~ t~e ~rievor's
drafts, gave fae~aoK to ~e gr[evqr concerning ~he quality of his wor~.
Although ~ne s~esCion was made tha~ ~. Dewey met with ~s.
more frequentky ~d, thrown impiica%[~, provided more gu[d~ce ~o her,
was also c[ea~ upon t~e evidence ~a~ h~r w°rKioad was grea~er, ~d
quaYity of her writing ~d responded posi~Lve[y to bne guid~ce
NonetheLess, aY~houga bhe mm~er in wnic~ Mr. ~wards ~d Mr. D~wey dealt
wi~n ~ne grievor could have Oeen more direct, we are satisfied that
c~cern was re[a~ed ~o ~he grievor's ~parent failure to recognize
deficiencies or to capitalize upon ~ne instruct[~ ~d.gu[d~ce given. -
~he asses~ent Oy the ~pioyer o.f ~ne grievor's wor~ took place over a
reas~able period of bime ~d t~ into accost enough of ~ne grievor's
word-related production as Co ~ represenCa~ive of [~s q~iigy.
Unfor~at~[y, t~e grievof's word-reLated producgi~ ~d his defence to his
asses~ent a~ ~e ~d of Oc~o~r continued to ~e so repk~te wtth the sort of
errors in spelling, gr~ar ~d compositi~ tna~ rendered i~s qualiuy Delow
the minim~ requ[~ed, in [[gnC of t~e evidence availaote to the ~mpioyer,
~he decis[~ ~o release was one that a reasonaOke employer migh~ have
chosen, ~d certainly was no5 "palpably ~reasoaaoke".
Unlike ~ne LoOraico case, the ~pLo~er [n gais case was nog expecting
the g~ievo~ to live up to ~ne requirements of two posigions, without
in~o accost ~he [mp[ica~i~s of suc~ ~ expecta~i~. Un~iRe t~e
case, tn~ ~ployer in t~is o~ c~icated to the g~ievor the p~rform~ce
st~rds exacted ~d his deficiencies in respect to those st~dards.
~ pointed ou~ in th~ Von BuchstaO case, having fo~d tha~ ~he
~ployer's decision fails within t~e realm of t~e reasonaoYe, or a~ Yeast,
is not paipaOYy ~reasonabie, ~he extent of our review is 'e~nausted.
For ai~ of ~e aoove reasons, ~he griev~c~ is d~nied.
Oa~ed' this 6th day of June , 1991.
J. E. / Emrich Vic~-Chairperson'
'~rruther~- L~emOer'
J.R. Sco~ MemOer
34
,L
·
Appendix "B" MINISTRY OF ENERGY
COMI~ICATIONS APPROVALS ROUTING SHEET
Speech ' ' t{e~$ release : Article ' '''~ ....
Brochure Ener~ Note Fact Sheet.
Write- , Phone
ALL RKVI~S DUE : ' "'
REVI E%q]".D BY , v TNT DATE
SPECIAL C0~NTS:
If you have questions, call Brian Edwards at 965-1481