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HomeMy WebLinkAbout1991-1093.Rivard.92-02-18 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPL 0 YEES DE £ 'ON TA RIO GRIEVANCE CpMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 OUNOAS STREET WEST, Su'/TE 2;'00, TORONTO, ONTARiO. t',f5G ~rZ8 TELEPHONE/T~£~-PHONE~ ~416) 326- ~388 180, RUE DUNDAS OUE~T, ~UREAU 21~, TORONTO fONTARIOL MSG IZ8 FACS~MILE/TEL~CO~E : ~4t61 ~2~- r3~6 1093/91 IN THE MATTER OF AN ILRBITRATION Under THE CROWN EMPLOYEES COLLECTIVE Bi%RGAINING /%CT Before THE. GRIEVANCE SETTLEMENT BOARD OPSEU (Rivard) Gr[evor - and .- The Crown in Right of Ontario (Ministry of Housing) Employer BEFORE: B. Fisher Vice-Chairperson J. Carruthers Member F. Collict Member FOR THE P. Chapman GRIEVOR Counsel Ryder, 'Whitaker, Wright & Chapman Barristers & Solicitors FOR THE S. Patterson EMPLOYER Counsel Human Resources Secretariat Management Board of Cabinet HEARING. October 24, 1991 1 DECISION This case involve the application of Article 3.13.1 which reads as follows: APPOIHTMEHT TO THE CLASSIFIED SERVICE 3.13.1 Where an employee is appointed to the Classified Service and has worked more than twenty-four (24) hours per week on a continuous basis immediately prior to appointment to the Classified Service, the time he actually worked within the previous year may be considered to be part of his probationary period to a maximum of six (6) months. FACTS The grievor commenced employment with the Ministry of Housing on April 17, 1989 as an unclassified employee. His position at that time was a Appeals Assistant to the Rent Review Appeals Board in the Sudbury office. His main job function was to prepare work-ups for Board members on appeals filed by landlords or tenants. In the course of this position he worked closely with the Board members but for administrative matters he reported to the Regional Manager, Ms. Paulette Smith. In or about September 1989, his title was changed to Appeal Analyst and his class[ficaUon changed from OAUIO to F.O.I., however there was no change in his job content. In August 1989, the grievor started doing work on files from the Toronto office rather than the local Sudbury office, however he physically remained in the Sudbury office. This continued until July 1990, when he ceased taking on new Toronto files and again started handling Sudbury files. in late 1990 he competed for the classified position of Appeals Analyst F.O.I. and won the compeUtion. He started on the classified staff on January 21, 1991. At the time of being advised of the fact that he won the competition he was advised that there would be a one year probationary period. There was some dispute between the grievor's 2 evidence and that of Ms. ~mith as to exactly what Ms. Smith said to the grievor at this time regarding the usual length of the probationary period, however as It is not necessary to determine this issue to decide this case, we decline to make a finding on this point. During his period of time that the grievor was in the unclassified service, no performance appraisals were done on him. The grlevor's position was that at no time was his performance questioned, however he does admit that on at least three occasions Ms. Smith spoke to him regarding attendance problems and on one of those occasions he received a letter regarding the issue. The grievor's position is in essence that 2 of the 3 complaints were trivial in nature, in that they related to a single incident of being out of the office for a few minutes and his receiving a personal fax message on the Ministry's fax machine, and the third complaint, relating to chronic lateness, was a result of Ms. Smith denying a previously agreed to scheduling arrangement. On cross-examination, the grievor denied that he had ever been absent for a day without calling in first to explain his absence. He said that Ms. Smith never mentioned this as a problem during the time he was an unclassified employee. Ms. Smith testified on behalf of the Ministry. She was on the selection committee which hired the grievor into the classified service. She indicated that she had specially considered the question of whether or not to reduce the grievor's probationary period. She further testified that in reaching this decision she considered the following factors and materials. 1. Attendance Problems: She had Prepared a list of the grlevor's late arrival times based on the grievor's own sign-in sheet. This document was let into evidence without objection by the Union. For the time period from January 2, 1990 to March 21, 1991, it discloses that the Grlevor was late on 84 occasions. Even if one excludes the time frame before May 3, 1990 in which the grlevor claims he had a special arrangement so that he could arrive for work at 8:15 a.m., the grievor was still late off 35 occasions from May 10, 1990. to March 21, 1991. Throughout this latter time period the grievor's expected arrival time was 8:45 a.m., which' was the latest possible arrival time of all of the people in his unit. This late start time was agreed upon by Ms. Smith and 4 DECISION: The only decision brought to the Board's attention on this article was a decision by this same ViceChair in Bishop 1432/88. This was a case where the Board found that the Employer had failed to exercise its discretion properly in that it simply applied a rigid rule that no Correctional Officer's in the Horthern Region would be entitled to a reduced probation period. The 8oard unanimously decided in that case that this offended the second rule in Kuvnties (513/84 Vice Chairperson Verity) where at page 16 he states: in cases involving the exercise of manager discretion, Boards of Arbitration generally hesitate to substitute their view for that of the decision.maker, which is a recognition of the fact that Boards have less familiarity than does the Employer with the exigencies of the work place; However, Arbitrators must ensure that decisions are made within the confines of certain minimum standards of administrative justice. Those administrative law concepts relating to the proper exercise of discretion include the following consideration: 1. The decision must be made in good faith and without discrimination. 2. It must be a genuine exercise of discretionary power, as opposed to rigid policy adherence. 3. 'Consideration must be given to the merits of the individual application under review. 4. Ali relevant facts must be considered and conversely irrelevant considerations must be rejected. in this case the Union claims that 1, 3 and 4 were violated in that Ms. Smith did not properly assess the positive features of the grtevor's record against the negative ones of attendance and communication. The major positive feature which the Union says Ms. smith ignored was the fact the he had actually performed the job in question for one year and nine months. However the testimony of Ms. Smith was clear that she did consider the fact that the grlevor was fully trained in arriving at her decision not to reduce the probationary period. 5 There can be no dispute that technical competence is only one part of assessing a persons ability to perform a job. Certainly lateness and communication skills are legitimate concerns of an employer for a position of this nature, where for example the lateness of one individual not only affects the Ministry's ability to serve the public but also affects the workload of those employees who do show up for work on time. Union counsel also argued that Ms. Smith's failure to raise these concerns with the grievor during his unclassified service and to tell him they would adversely affect his chances of having a reduced probationary period if he were to obtain a classified position constitutes bad faith. However the evidence does reveal that Ms. Smith addressed both the lateness and communication problems with the grievor. It is not necessary however for the Ministry to specifically warn an unclassified employee that this behaviour could affect his entitlement to a reduced probationary period if he were accepted into the classified service. This would create too much of a burden upon the employer in their dealings with unclassified employees. Moreover, even a reasonably astute unclassified employee would readily understand that lateness and communication problems would probably adversely affect both his chances at winning a competition as well as his chances of having his probationary period reduced. The grievor in this case struck us as being at least reasonably astute. In addition the grievor did not testify that he was surprised to learn that his chronic lateness would adversely affect his chances of obtaining a reduced probationary period. On the evidence we find that the decision of Ms. Smith was made in accordance with the Kuvnties tests. She considered all the relevant factors. She may have put more weight on some facts (i.e. attendance) that' we would have if we had made the decision, but one must remember that no matter how well qualified the members of this Board are, we are not to become line managers for the Employer. Ms. Smith did consider one Irrelevant factor, that is the grlevor's personal financial position, however as that factor favoured the grievor, the union is obviously not relying upon this factor to overturn the Employer's decision. 6 There is no question that Ms, Smith based her decision based on the individual circumstances of the grievor's situation, in fact, it was the grlevor's individual problems which prompted her not to reduce the probationary period. The grievance is therefore dismissed. DATED at Toronto this 18ch dayof February, ~992. BARR ER '~J'~ CARRUTHERS