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HomeMy WebLinkAbout1992-1089.Dadula.93-09-03 c, {: ~ -. '. \'..t; ONTARIO EMPLOYES DE LA COURONNE ~ , CROWN EMPLOYEES DEL'ONTARIO - - GRIEVANCE COMMISSION DE 1111 SETTLEMENT REGLEMENT . - BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100 TORONTO ONTARIO, M5G lZ8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 2/00, TORONTO (ONTARIO) M5G /Z8 FACSIMILE ITELECOPIE (416) 326-1396 ;J 1089/92 ( IN THE MATTER OF AN ARBITRATION Under \ THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLE~ENT BOARD -/ L BETWEEN OPSEU (Dadula) Grievor - and - - The Crown in Right of Ontario (Ministry of Transportation) Employer BEFORE :. W Kaplan vice-Chairperson S Urbain Member D. Montrose Member FOR THE G. Leeb UNION Grievance Officer Ontario Public Service Employees Union FOR THE P.Throup EMPLOYER Counsel Winkler, Filion & Wakely Barristers & Solicitors HEARING February 17, 1993 July 12, 22, 1993 \ -- - - ----- - - - -.-.- -- .-. .- --- -- - -~ ---.- --- --~ ----- ------- ( ~_. 2 C. C' :~~.~:I>" "'d..:;;.';, i{~ Introduction By a grievance dated May 27, 1993, Danny Dadula, an Electronic TechniCian employed by the Ministry of Transportation, grieves that he was dismissed without just cause By way of remedy, the grievor seeks reinstatement, compensation and removal of all records relating to his discharge from his personnel file The case proceeded to a hearing In Toronto, at which time evidence and argument were heard '- \ In brief, the employer took the position that the grievor, a probationary employee, was properly released for failing to meet the requirements of his position. The union took the position that the grievance should be upheld because the employer has failed to meet itS own stated requirements for ./ the orientation, training and assessment of probationary employees - Moreover, it was the union's pOSition that the procedures followed to discharge the grievor demonstrated that the employer has not acted in good faith - Before turning to the evidence, it is appropriate to set out a few background facts. The grievor began his employment with the Ministry of Transportation (hereafter "the Ministry") in October 1989 when he received the first of a series of ~hort~term contracts These contracts continued until September 17, "991, when the grievor began work as a full-time probationary employee after winning a job competition The grievor was released on May 1, 199,2 At the time of his release, the prob~tionary penod provided for in the Collective Agreement was nine months in length At the time of his hiring, the probationary period provided for in the Collective Agreement was twelve months in length There was some di~cussion between the parties as to which of these probationary periods applied to "~ \., ,/ ) ~'-i' 3 (1;~:' I t' 'if' the grievor Given our result in this case, no answer to this question is required. The evidence establishes that the grievor was released prior to the termmation of the shorter probationary period ;' The grievor worked in a laboratory, and -was responsible for the testing and repair of electronic equipment used in traffic management. When he first began work as a probationary employee, his supervisor was Mr Arun Kapur In January, 1992, responsibility for the day-to-day supervision of the grievor was assigned to Mr Lambert Philadelphia Mr Philadelphia held the position of Field Support Coordinator, and he is a member of the bargaining \ unit. Mr Philadelphia repor~s to Ms Sui Wong,. who is the the head of the Electronic Engineering Section The grievor worked alongside Mr Arthur - Smith, who is the Senior Electronic Technologist The Evidence It is helpful to set out the evidence slightly out of turn The Employer's Case Testimony of Lambert Philadelphia Lambert Philadelphia testified He has worked for the Ministry for a number of years, and! on January 1, 1992, Mr Philadelphia assumed responsibility from Arun Kapur for overseeing the grievor Mr Philadelphia testified in some detail about the operations of the laboratory and the work of the grievor The grievor was responsible, among other things, for testing and repairing a certain piece of equipment referred to as the 170 Controller This is an electronic microprocessor device that controls a combination of traffic signals. --- -- - - _.. -- -- _. ---- -- ~ I.~' 4 ,('- Before assuming formal responsibility for the laboratory in January 1992, Mr Philadelphia paid a number of visits to it, and 9uring the course of one of those visits it was brought to his attention that there were problems with the equipment not being tested and repaired within the required" \ periods of time Mr Philadelphia then established a procedure for the inventory, monitoring and repair of the equipment, and instructed the grievor and Mr Smith in the reqLiirements of the Ontario Specifications Manual, which det~ils the testing procedures to be followed In mid-January 1992, Mr Philadelphia met with the grievor, Mr Smith and one other employee to discuss .assigned duties and responsibilities Minutes \ of this meeting, which took place over the course of two days, were later / ( - issued, and they' set out in considerable detail what the grievor was required to do, when he was required to do it, as well as his hours of work and weekly reporting requirements. The grievor was advised that his mam l duty was the repair of the 1 70 Controller Mr Philadelphia's office is not located in the laboratory, so he is. not in that building all of the time. ( Mr Philadelphia testified about his working relationship with the grievor, and he told the Board that he quickly became concerned by the grievor's attitude and the fact that the grievor did not cooperate with him or with Mr _ Smith For example, Mr Philadelphia testified that tl1e grievor agreed to begin work each day at 7 00 a m., take thirty minutes for lunch, two 15-minute breaks, and leave work at 3 30 p.m. The grievor also agreed to work a compressed work week, which meant that this schedule was over a two-week period, and the grievor worked nine out of the ten working days To make up all of the required hours, the grievor was required to tack on an additional thirty minutes at the end of one of his working days 5 (.~ t"i ',:!C'" .~ Mr Philadelphia usually arrives at work before 7 00 a m.and he began to 'notice that the grievor was not keepmg to his schedule Around the end of January 1992, Mr Philadelphia brought this to the gnevor's attention and suggested that if he was having difficulty arriving at work on time, ~rhaps he should consider arranging a later start time The grievor dedined' the opportunity to adjust his schedule Mr Philadelphia testified that he had to speak to the grievor again about his not arriving at work on time, and he also told the Board that the gnevor failed to keep Cl number of commitments to stay late when he arrived late According to Mr Philadelphia, the grievor promised on several occasions to improve his punctuality, but these promises were not kept. Mr Philadelphia also testified that the grievor was a source of disharmony in the laboratory He told the Board that the grievor would "put down" Mr Smith in front of others, and described an incident in January 1992 when he did so in front of a coop student and an engineer When Mr Smith complained about this, Mr Philadelphia met with the grievor and told him that behaviour of this kind was unacceptable Mr Philadelphia believed that the grievor r~sented Mr Smith because the grievor had also applied for the Senior ElectrOnic Technologist pOSition that Mr Smith had been awarded Mr Philadelphia advised the grievor to accept the fact that Mr Smith was the Senior Techno,logist, and that it was essential that he treat him properly and show him appropriate respect. Several weeks later, in early February 1992, the grievor advised Mr Philadelphia that he did not respect him either Mr Philadelphia asked him why he would say something like that, given that he, Mr Philadelphia, had been spending considerable time in training thegrievot and in encouraging him to take courses to improve his skills Apparently, the grievor did not have an answer to this question The --------- - ( ( ~. . , 6 Ii ,t"- i1 grievor also made a number of further complaints about Mr Smith's knowledge and abilities According to Mr Philadelphia, the grievor's attitude and conduct negative'ly affected employee morale He noted that Mr Smith did not engage in any of this misconduct. " - Mr Philadelphia testified that Mr Smith was responsib.le for assigning the grievor some of his work, but when he, Mr Philadelphia, went to check on that work, the grievor advised him that he had never been assigned it. When Mr Philadelphia raised this issue with Mr Smith., he insisted that he had in fact assigned thegrievor the work. Mr Philadelphia testified that it was extremely difficult to run the laboratory in these circumstances Mr Philadelphia quickly became concerned that the grievor did not have the - knowledge to perform his position Mr Philadelphia expected the grievor to have' a thorough know.ledge of the 170 Controller, and in fact believed that he did have a detailed familiarity with it. However, Mr Philadelphia \soon learned that the grievor did not know as much about it as he had claimed, and so Mr Philadelphia arranged for another employee to return to the laboratory to provide thegrievor with an overview of the equipment. I According to Mr Philadelphia, if the 1 70 Controller needs tope repaired: it might have to be repaired right down to the component level Mr Philadelphia formed the opinion that the grievor could not perform these repairs, and that the only repairs he could perform involved the less I demanding task of switching the boards rather than repairing the components. After the grievor was released, Mr Philadelphia learned that .... he had never repaired the components, but instead had swapped boards, and he learned this when he examined various standby controllers and / determined that they had been stripped Of their boards - '-. _. .. n (,,, ~ ~ \\":":.7 7 ~ Mr -Philadelphia was also concerned by the length of time it took the grievor to perform repairs, and he testified that after the middle of January he met with the grievor at least once per week, and sometimes as often as every day, to discuss his work and his concerns with respect to it. Mf.. , Philadelphia gave a number of examples of the grievor failing to follow established procedures, and others concerning unacceptable delays in the processing ,and repair of certain equipment. I Another incident\ that convinced Mr Philadelphia that the grievor did not have the knowledge or skills to perform the position in question involved a request that he perform a Cost Analysis Report on a new Prom Board for the 1 70 Controller The request was given to the grievor in writing in late February 1992, and it sets out a number of specific questions the grievor - was required to address The grievor was asked to complete his report by March 31, 1992 That date came and went, and the grievor did not contact Mr Philadelphia to explain the status of his report. On April 1, 199,2, Mr Philadelphia met the grievor, and it was agreed that the grievor could have \/ an additional three days to finish the report. On April 6, 1992, Mr Philadelphia wrote the grievor and asked for the report. Later that day, the grievor advised Mr Philadelphia that he had left the report at home, and he offered to go and get it. Mr Philadelphia told him not to go home, but to bring it to work the following day Instead of following this instruction, the grievor ~ent home and got the report; and then arranged for it to be printed, in contravention of another policy pertaining to ,printing Mr " Philadelphia testified that he was surprised to learn that the grievor had not followed his instructions, and he met with him to tell him as much He also told the Board that when he reviewed the report, he 'found that it ~ (,h<; E~:- 'i 8 <1!:?~ i'\ was virtually useless, and more importantly that the grievor had not addressed the specific issues he had been requested to consider He had instead delved into unrelated matters of little interest to the employer This report was introduced into eVidence and it contains a number of '" ""- diagrams and charts. Mr Philadelphia testified that he could n6t figure out what they meant. On April 10, 1992, Mr Philadelphia wrote the grievor a note expressing some concerns with his report, including the fact that he had not followed his instructions about the subject matter to be covered On April 12, 1992 the grievor wrote Mr Philadelphia, apologizing and \ indicating that he realized that he went "overboard" \ Mr Philadelphia also testified about an incident he felt demonstrated very poor judgement on the part of the grievor The long and short of this - incident is that the grievor was asked to attend at a manufacturing plant to measure paint thickness on a certain cabinet. The grievor was instructed to record his findings in a report containing the serial number of the cabinets and the measurements of paint thickness. Instead of completing this simple assignment, the grievor wrote a longer report setting out various observations about the appropriate Ministry approach to cabinet manufacturers and containing a number of photographs of the grievor inspecting a cabinet at one manufacturer The grievor is Jdentified in these photographs as an employee of the Ministry, and Mr Philadelphia was concerned about that, as he did not wish competitor manufacturers to think J that the Ministry was favouring one supplier over /another ) Mr Philade'lphia also related an incident in which the grievor forwarded to him some correspondence and some resumes relating \ to the possibility of the laboratory hiring a coop student in the spring or summer of 1992 The '-- i - .. - --- ~~- ----- - - ~ C 9 C -. "'1- -~ materials include a posting Jor the position, which identifies the grievor as- the contact person at the Ministry M'r Philadelphia testified that there was no such position in the laboratory as there was no funding for such a \ position Mr ~ Philadelphia did not ask the grievor to assume any ,,- responsibilities with respect to the possible placement of coop students, and he des,cribed a procedure for the hiring of these students that did not involve the grievor in any respect. Various other incidents occurred, all of which had the effect of convincing Mr. Philadelphia that the grievor was not workmg out. He testified about the grievor failing to keep two scheduled appointments for a Ministry driving examination, and about the grievor repeatedly disobeying instructions about following laboratory procedures The grievor did not - return tools to their assigned spot, and he had difficulty in prioritizing his work, and in working on more than one assigned task at a time Mr Philadelphia r~ceived a complaint from one of the manufacturers about the grievor, anq upon investigating it he learned that the grievor was not pre-screening equipment before returning it to the manufacturer for repair, contrary to established policy Mr Philadelphia wrote the gnevor a number of notes confirming various discussions with him about these and other -' matters, and also, as indicated above, they met regularly to discuss the I gr'ievor's progress and performance Mr Philadelphia testified that he found the grievor unresponsive and difficult to deal with Mr Philadelphia also testified about his activities in tutoring the grievor, and about the grievor's participation In various Ministry courses Of ) relevance to this case is an .incident involving a course titled Supporting PC Users. When the grievorfirst applied.Jor it, there was money available in . ._ _'n. --~ .. - -. _. _.. J --- r .. .-i' '. 10 " II the laboratory budget, so the course was approved The grievor was advised, however, that approval was for that budget year only, and could not be carried forward into the new fiscal year It was initially anticipated that the grievor would! take the course in -March of 1992 ;I However, because of fiscal festraint, the grievor was told to cancel his attendance at that course and was directed to retrieve his authorization form Mr Philadelphia advised the grievor that because of fiscal constraints, - funds would not necessarily be available for him to take the course during the new fiscal year, which began on April 1, 1992 Mr Philadelphia advised the grievor to keep his authorization form and await further information On April 27, 1992, Mr Philadelphia learned that the grievor was taking the - Supporting PC User Course. Mr Philadelphia was quite surprised to learn (" r this, given that he had told the grievor that he could not take this course until he received authorization to do so Mr Philadelphia asked the grievor why he was taking the course given that he had been told not to, and the grievor told him that it had earlier been authorized Mr Philadelphia reminded the grievor of their earlier conversation Ultimately, the grievor was allowed to attend the course since the Ministry would have been billed for it in any event. Mr Phil~delphia also discussed this matter with Ms Wong, and he obtained a copy of the authorization form, Upon reviewing this form, which was introduced into evidence, it was apparent that the earlier authorized dates had been Whited out. It was at this point that the decision was made to release the grievor Introduced into evidence was a performance evaluation dated March 24, 1992, signed by Mr Philadelphia and the grievor This document lists in I some detail the various duties and responsibilities assigned to the grievor - - _._--~- - -- -- - - - --~ - - . - - - - I . 1 1 C ;:. along with completion dates and reporting requirements Mr Philadelphia I testified that he met with the grievorin late February or early March, and the grievor was provided with a handwritten copy of this document. It was later typed and signed, and Mr Philadelphia testified that he thorougl1Jy reviewed the grievor's job performance, his attitude, including the need for him to work on his communication skills with his co-workers and to respect them, and his attendance with him during the early March meeting It is noteworthy that the grievor referred to these meetings in a June 1992 .Ietter to the Deputy Minister' of Transportation This letter indicates that he met twice with Mr Philadelphia in March 1992, and received performance appraisals on, each occasion- This letter also indicates, In ., several places, that the grievor was made aware at these meetings that his cOhduct was threatening his continued employment at the Ministry (see - Exhibit 2, Tab 43, p 2 & P 3) , Also invoduced into evidence was a more detailed list of thegrievor's I deficiencies, which Mr Philadelphia prepared on Apnl 28, 1992 This document, which was attached to the document dated March 24, 1992, concludes that the grievor's work performance is not satisfactory and that he has failed to meet the requirements of his pos.ition The last page of the , I document is signed bi Mr Phila-delphia, and it is the printed material found at the end of most government Performance Planning and Review forms It indicates that the grievor will not be recommended for a permanent position / Mr Philadelphia testified that an inspection of the gnevor's desk was conducted following his release, and it revealed' that the grievor had made numerous photocopies of different documents for no apparent reason, that ~ I ,--~--_., -- --- -~ -.-.--.-...----- ---_..._-- -~._-_. -..- --. -.-'-..--- -. ..-.--- .- --- .. -- - - - ~ - - ____ - ____ __ I . 12 ( " ( he had failed to return tools to their assigned location, that he had not . , J passed on all- of the materials he obtained with respect to the possibility of J the laboratory hiring a coop student, and that he had what appeared to be copies of letters intended for Ms -Wong .- ( One letter, providing course information, was addressed to the grievor and was dated April 7, 1992 It advised him that he would be attending the April 27, 1992 Supporting PC Users Course, and it gave details of the time and location of that course At the very bottom, it says "cc S Wong" and this is highlighted. The presence of this document In the grievor's desk suggested to Mr Philadelphia that the grievor had been asked to deliver this letter to Ms. Wong, but had not done so because he knew that he had been told that he was not to take this course Mr Philadelphia testified that - when he met with the -grievor he asked him about this letter The grievor advised him that while he had been given it, he did not know that he was supposed to deliver it to Ms. Wong and so he put it in his desk. Mr Philadelphia found several copies of other letters intended for Ms Wong in the grievor's desk. Mr Philadelphia concluded his evidence in chief by stating that he had nothing against -the grievor, and that he made every effort to assist him over the course of his employment. Cross-Examination of Mr. Philadelphia Mr Philadelphia was asked numerous questions in cross-examination He testified that Mr Kapur stopped being responsible for the laboratory around ~ November 1 991 Mr Philadelphia agreed that things were somewhat chaotic in the laboratory at this time, and that this was why he was asked to take · ~ 13 .~ over Before officially assuming responsibility for the laboratory, Mr Philadelphia visited it and determined that equipment was not being processed as scheduled He also determined that there was a communication problem between the grievor and MrSmlth. ; After learning that thegrievor did not have the necessary knowledge with respect to repairing the 170 Controller, Mr Philadelphia arranged for another employee to train the grievor, and he testified that this training took place in the fall of 1991 over a period of approximately one week for two hours per day Based on his subsequent investigation, Mr Philadelphia formed the opinion that the grievor did not repair any 170 Controllers, but ) either returned them to the manufacturer or swapped boards~ Mr Philadelphia agreed that he told the grievor that he could, in an emergency,- swap boards, provided that he subsequently repaired the defective board r Mr Philadelphia insisted that he never saw any evidence that the grievor conducted any repairs, although the grievor would repeatedly promise to perform the repairs. Mr Philadelphia agreed that some days the grievor would arrive at work early, but testified that if he did, he was only a minute or two early, and that just about every other day he. would be five to fifteen minutes late He always left, however,at his usual finishing time After a while Mr Philadelphia stopped discussing the matter with the grievor, having told him that it was his responsibility to ensure that he arrived at work on time Mr Philadelphia agreed that the grievor expressed to him some difficulty in, understanding his verbal instructions, and as a result, Mr Philadelphia would put some of his instructions in writing In his opinion, however, \ _I ---- _. -- ------. - - ~.- /' 14 \\:;l-t;.;. i) when the grievor wished to understand he did, and when he wished not to understand he did not. Sometimes the grievor would profess difficulty In understanding instructions as simple as "do this" ,; ML Philadelphia was asked why he did not put his concern about the grievor swapping boards instead of repairing them uHo writing, and he testified j that he was extremely busy and simply did not have the time or resources to put everything into writing Mr Philadelphi~ also noted that 10 some r conversations the grievor would indicate that he understood what was being said, and in those cases there was really no pOlOt in following- the conversation up with written minutes Most of the time, Mr Philadelphia attempted to deal with concerns as they arose - Mr Philadelphia was asked about a number of concerns he testified to in chief, and he told the Board that he was upset about the grievor's visit to \ the cabinet manufacturer to test the paint thickness because the report went beyond what was required, and because -the grievor appeared to have I put himself in a position where the Ministry could be accused of favouritism to one manufacturer Mr Philadelphia agreed that he did not 1 1 - put these concerns in writing He was shown, however, an example of some ( concernS that were communicated to the grievor in written form, namely the proper procedure to be followed for the printing of documents Mr Philadelphia agreed that, in general, after he put a concern in wnting he did not have to raise it with the grievor again Mr Philadelphia was asked about the grievor's invol\tement in the pOSSible hiring of a coop student in the'spring or summer of 1992, and he reiterated ( his evidence about the procedure to be followed as he understood it. Mr I t; : . -'-'j 15 .J .' Philadelphia is of the view that upon being contacted by the community college about this matter, the grievor should have referred all questions and matters with respect to it to either him or Ms Wong Moreover, the grievor was not asked to screen any resumes, but the inspection of hi~ desk I later revealed that he had in fact done 50 Mr Philadelphia testified that he _ received a call from the colle.ge in early May, and that the college was under the impression that the laboratory would be taking a coop student when that was not planned ,Mr Philadelphia agreed that the laboratory has hired coop students in previous years, and that some of these students have worked with the grievor Mr Philadelphia was asked about the Prom Board report and about his - / concerns that the grievor had not completed the specific project he had been assigned He agreed th~t some of his questions had been answered, but testified that the principal concerns that the grievor was to have addressed were not dealt with Moreover, he pointed to a number of parts of the report which contained factually incorrect information, and some of the extraneous issues the grievor raised had the effect of changing the focus of , the report. He also testified that he was not very appreciative of the grievor writing him an apology letter after he was advised of the ,problems with his report. Mr Philadelphia did not believe that the grievor used his time efficiently, and writing a letter like this was another example on point given that the grievor was always saying that he did not have enough time to complete his assigned tasks Mr Philadelphia was asked why no proper performance appraisal was done on the grievor until the decision was made to terminate him, and he testified that when he met with the grievor in mid-January 1992, he. _/ --I ,- \ 16 C "- '. '..; effectively conducted such an appraisal, which was later put In writmg m the minutes of the meetings, a copy of which was given to the grievor He also testified that he was continually appraising the grievor and bringing " ' concerns to his attention and instructing 'him on how to deal with those concerns Mr Philadelphia repeated his evidence that he held ,weekly meetings with the grievorand also met with him informally on a more irregular oasis He testified th,at the grievor knew exactly how he was doing r ( Mr Philadelphia was asked about the complaints he received from a manufacturer about the grievor, and he testified that the substance of these complaints was that the grievor was returning equipment without an accompanying report, and that in many cases after testing the equipment the manufacturer discovered that there was nothing wrong with it. Mr Philadelphia received, these complaints at the end of March 1992, or early in "- April He advised the grievor of these complaints as soon ashe received i them, and he reiterated an instruction he had given the grievor the previous November not to return anything to that manufacturer without pretesting it in the laboratory, as that was his job. After this incident, Mr Philadelphia \ did not experience any other problems of a similar nature, although he noted that he told the grievor not to ship anything out until he, Mr Philadelphia, had inspected it first. Mr Philadelphia agreed that he approved thegrievor taking a Wordperfect course on April 15, 1992, because the grievor had prior approval for it and \ because it did not cost very much. ~r Philadelphia insisted that the grievor \ was instructed to withdraw from the Supporting PC Users course scheduled \ for March 1992, and was 'advised to retrieve and retain- his application until ,\ - -. _.- ..- - - . - - . ~ -. -.. - - - - - - - - ----- ----- _. i '~. 17 0- r the training budget for the new fiscal year was established Mr Philadelphia learned that the grievor was taking the course when he attempted to arrange a meeting with him and was advised that the grievor could not attend because he would be going on the course - .. _/ Mr Philadelphia was asked about the document dated March 24, 1992, and he agreed that it does not give the grievor any feedback about his performance Mr Philadelphia testified that nevertheless the grievor was given feedback J at the meeting earlier held to disc,uss the handwritten version of t~is document, and from January forward until the date of his release Mr r' Philadelphia agreed that the April 28, 1992 document was the first one to state in writing that the grievor was not meeting the requirements of his position, but testified that while this may be so, the grievor had been - verbally informed of this fact on numerous occasions. While Mr Philadelphia never specifically advised the grievor that hiS work was unacceptable, he testified that he implied as much in a great many conversations, and that he attempted to obtain acceptable work from the grievor by instructing him in the proper repair of Controllers, as well as by designing a special form so the grievor could chart the progress of his repair work. Mr Philadelphia testified that even after he designed this form, the grievor would not consistently fill it out, and so he, Mr Philadelphia, was required to constantly check with him to monitor the progress and substance of his work. Mr Philadelphia was asked whether it was appropriate for him, as a member of the bargaining unit, to engage in this type of supervisory activity, and he testified that he did not consider it to be a question of status. Rather, he w~s simply attempting to ensure that the work got done ( 18 C" . \, ~ ~ and thcitproper procedures were followed Mr Philadelphia was directed to that part of the grievor's performance appraisal which he completed on April 28, 1992, and in particular to i1 portion of it that he ticked off, which states. "PERFORMANCE IS NOT / ACCEPT ABLE Rating for an employee whose performance results failed to met job requirements This employee must improve within an agreed upon time period or be considered for reassignment or termination" Mr Philadelphia testified that in his view, the grievor had already been given sufficient time in which to improve, and he recounted his efforts from January on' to assist the. grievor .in meeting the requirements Of hls position - I Mr Philadelphia was also pointed tQ that part of the performance appraisal "\ I ). titled "Guidelines for Performance Planning and Review," which states that "the responsibility for Performance Planning and Review rests with management excluded staff Those management staff who are responsible for supervising employees will be considered accountable for ensuring that the performance of employees is planned, monitored and reviewed" The Guidelines, which are printed directly on the performance appraisal, also state th~t performance reviews for probationary staff "should be conducted I I after three and nine months to provide a basis on which to determine acceptability for permanent employment." Mr Philadelphia did riot provide an explanation as to why he,1 rather than a member of management, was called upon to fill out the form, but testified that he had been pr0vided it by the office coordinator and instructed to fill it out. Mr Philadelphia was asked a number of questions about some of the ----- ------- -- --- . -- --'-'-.- ~._..... ~-'- - -. --- -.---- _. -- --- - .. - -- .---- -- ----- ,- I t,. I , I'> .- ) \. :- 19 , l particulars of the concerns set out in the grievor's performance appraisal r Some of these concerns have already ,b~en reviewed in this 'a~ard Suffice \. it to say that others, such as a written concern about the content of one of the grievor's reports containing a misrepresentationapout a Ministry'- supplier, was somewhat overstated in that the report was never provided to that supplier, nor, in the normal course of event$, would it have been Mr Philadelphia testified that Ms. Wong made the decision to terminate the grievor; all he did waS supply her with the relevant facts Mr Philadelphia testified that in general he met with laboratory e~ployees every Monday to discuss the forthcoming week, and then again on Friday to review progress. In his view, the laboratory is organized in such a way so as to virtually run \ - itself, and his constant on-site presence was not necessary or required He could be easily contacted at any time to discuss problems Mr Philadelphia was asked some questions about Arthur Smith. He described Mr Smith as the lead hand, and. he agreed that there was at least one instance in which Mr Smith misunderstood instructions, and that this was brought to his attention. Mr Philadelphia told the Board that when he topk charge of the I,aboratory he realized that there was a IQt of confusion about the specific roles of Mr Smith and Mr Dadula, and so he as~igned each individual specific' duties and responsibilities A list of these duties and I responsibilities, along with completion dates, was introduced into evidence and, as already noted, reflects the substance of the meetings held in mid-January 1 992 Mr Philadelphia agreed that he never raised with the ~ grievor his concerns that thegrievor was attending courses but not advising him of the exact dates of those courses However, Mr Philadelphia testified that he would have liked to know the dates of those courses even '\ -. "- .. - ---- I G~--: 20 ';'3ll:" , ';J;t~'? ! though they had been approved, and he pointed out that he found several copies of course confirmation letters that should have been given to Ms. Wong in the grieyor's desk after his employment was terminated Mr Philadelphia agreed that, in general, it was more effective to send a oopy of a letter to the intended recipient, or to give it to him or her, rather than to give it to the original recipient and ask that person to pass the copy on Mr Philadelphia also testified to finding several resumes in the grievor's desk after his termination, and in his view, the grievor should have passed those on to him or Ms Wong as well Re-examination of Mr. Philadelphia' ) In re-examination, Mr Philadelphia was asked about the copies of the letters he found in the grievor's desk after his termmation Mr - Philadelphia could tell that they were intended for Ms Wong because they stated "cc: S. Wong" and this was highlighted. \ Testimony of Siu Wong Ms. Wong testified She has been he head of the electrical engineering section since, October 1 991, and' has been employed by the Ministry for a number of years. There are approximately twenty-five employees in her section, and most of them are technical or professional staff The laboratory is part other section Ms. Wong testified that she made the termination decision, and in doing so she relied primarily on the information provided to her by Mr Philadelphia However, Ms. Wong also had a number of encounters with the grievor, and her views about the grievor's suitability for employment were influenced by these encounters --- -- ---~-- ~._---_._------ . - - --- _nn_ I - /' (.. i~ , I '. ~ 21 I Ms. Wong was asked about the grievor's attendance at various courses, and in particular, about his attendance ata Supporting PC Users course Ms Wong was shown a copy of the completed authorization form, and she ,; testified that she authorized the grievor to attend this cour.se during -the fiscal year ending on March 31, 1 992 When Ms Wong authorized attendance on this course, she attached a pink notice to her authorization stating that ) if the course was riot held prior to the end of the fiscal ye;arl. then the employee ,could not attend Ms. Wong never told the grievor he cou.ld take the course in the new fiscal year, and she only allowed him to continue taking it after she found out he was taking it because her section would , have been billed for it in any event. Moreover, Ms. Wong remembered that the Ministry had already had to absorb the cost for this course on a previous occasion involving the grievor when he had signed up for it the previous - year without prior approval~ and she was anxious that there be no repetition of this event. In her view, the course was more useful for the gnevor's personal development than for assisting him in performing his duties in the laboratory MsWong concluded from these events that. the grievor was manipulative ) Ms~ Wong was also asked about the grievor's request to her that his probationary period be reduced. She testified that the grievor approached her in February 19~2 and said that he was entitled to a shorter probationary period because of his previous employment with the Ministry Ms. Wong advised him that she would look in~o this, and when she did she learned that this was possible, but that it was up to her:... to decide if she wished to reduce it. She testified that she advised the grievor that she would not be I reducing his probationary period, and one reaso.n was because she wa~ being kept regularly informed about his lack of progress by Mr Philadelphia ---_.~-- _.._---~~--- -'- . _.~ --- .-. --- - . - -,- . . ~ --"....,.-""'-.,---~ ~- ~-_.__.- --- ~- - ( " ~ 22 '.~ These reports led Ms. Wong to the view that the grievor's- performance was I not meeting the Ministry's expectations, or her own expectations, of the expected work product of someone holding his position and classification Ms. Wong reviewed some of the grievor's technical reports, and she noted that the grievo~, on his own initiative, submitted copies of them to her Ms. Wong testified to the same concerns about these reports earlier discussed by Mr Philadelphia Ms Wong believes that the grievor's report on the new prom board was useless, and she is also of the view that a proper report would have taken a qualified Technician 3 approximately three days to produce, not three weeks, followed by a one week-extension Ms. Wong observed that the grievor was provided with dear written instructions about what was required on his report, and that these instructions were not followed Ms. Wong also formed the view that the grievor was not a team player, and \ she pointed to his inability to get along with Mr Sm,ithand Mr Philadelphia She noted that team work is essential in a laboratory, and the fact that the grievor could not or would not work as a member of the team made it impossible for the laboratory to do its work ~ ) According to Ms. Wong, she learned that there were problems in the laboratory between September and December 1 991 The Ministry was receiving complaints that the testing was not being done, and so she made the decision to put Mr Philadelphia in charge Ms Wong testified that Mr / Philadelphia was knowledgeable about the laboratory, and also had supervisory experience Depending on his particular assignment, Mr Philadelphia has been responsible for supervising one to seven employees C 23 " 'i, " I 'for the past six years Ms Wong believes that Mr Philadelphia is not overly demanding, and is, i'n fact, very easygoing She is of the opinion that Mr Philadelphia trains his staff as required, and she noted that she has never received any complaint~ about him She testified that she trusts his .. judgement. I / Cross-Examination of Ms. Wong In cross-examination, Ms Wong agreed that she was not completely familiar with Human Resou.rces Guidelines concerning the performance review of probationary employees. Ms Wong was referred to the printed part of the grievor's performance appraisal, referred to above, and asked why the grievor was not given a formal performance appraisal after three months She was also asked why the grievor was not given a formal . ) performance appraisal until sometime before he was fired Ms. Wong answered these questions by testifying that prior to her arrival at the laboratory in October 1991, it was in a state of confusion Ms Wong responded to this confusion by putting Mr Philadelphia in charge, and after I dealing with these and other events,it was the holiday season In January 1992, Ms Wong instructed Mr Philadelphia to establish a work plan for all the laboratory employees so that everyone was aware of their own responsibilities and the responsibilities of others Ms Wong testified that even though the grievor had not received a formal performance appraisal to this point, he had still received feedback about his performance from Mr Kapur and Mr Philadelphia Ms. Wong is aware of Mr Kapur's efforts in this respect, because he advised her in writing of them \ Ms. Wong testified that she was aware of the Human Resources Secretariat's directive that probationary employee be advised of their ) - - - -- C 24 ~:: ~ shortcomings and the .fact that they are not meeting the requirements of / their position Ms Wong testified that this directive was complied with, and she noted that Mr Philadelphia met regularly with the grievor, and in \ that way he was made fully aware of his shortcomings and his need to make I improvements Ms Wong testified that she eventually came to the conclusion that the grievor had not worked out and would never work out, and she believed that if she did not release him from employment he would become a permanent employee She did not think that this was an appropriate case for her to extend the probationary period, and she' formed this opinion because of the laboratory's experience with the grlevor, and his performance, in the previous months Ms. Wong testified that she decided to release the grievor before talking to him, but testified that this decision was only made after she carefully considered the events of previous - months, all of which had been reported to her Ms Wong noted that she had received some calls from district offices' complaining about the cost of repairs, and these costs were being incurred because the grievor was not repairing controllers, but was returning them to the manufacturer Ms. Wong testified that she had worked with Mr Philadelphia and so was ) aware of his supervisory abilities Ms Wong was generally aware that - members of management were expected to prepare and conduct performance appraisals, but testified that she has delegated this task in the past, and she noted that doing so is a generally accepted practice She testified that she was confident about the soundness of her decision, and that nothing the grievor could have said to her on the day that he was releaseq could have made her change her mind Ms. Wong testified that not only was her decision based on the information provided to her by Mr Philadelphia, it was also based on her review of the grievor's written work, and on feedback I (i'" 25 .......;.t... ~'i,;rp ~ from the districts, as well as on her own observations of him Ms Wong testified that she made the termination decision right after seeing the - grievor's -performance review, and after being told of the grievor's unauthorized attendance at the Supporting PC Users course She told the Board that she wanted to discuss the review with the grievor, but he called in sick. Ms Wong agreed that- one reason she moved so quickly to terminate thegrievor was because- she believed his probationary penod would soon expire Ms Wong did not know anything about a decision to ext~nd Arthur Smith's probationary period by three months Testimony of Mary Nardi I Mary Nardi testified $he is an Administrative Assistant in the Ministry's Staff Development and Training Branch She has occupied that position for- two years, and has been with the Ministry for four years Her- responsibilities include the coordination of courses held at the Mintstry's Downsview site, and she testified generally about the procedures followed by an employee who wishes to sign up for a particular course Suffice it to "- say that the employee must obtain the written approval of his or her supervisor, as most courses involve a charge being levied to the particular department or branch within the Ministry Ms. Nardi knows the grievor, and she testified that she met him in the fall , I of 1 991 whep he called to express interest in attending a course titled \ Supporting PC Users Ms. Nardi asked the grievor to obtain an authorization letter, and based on his representation that he would do so, she held open a spot in the course Ms Nardi telephoned the grievor several times when the authorization letter failed to appear, but she never received it. The course took place as scheduled, but without the grievorin attendance Ms Nardi \ C, 26 C-' 1,..;. testified that her-office budget had to absorb the cost of the three-day course, which ranQes from $450 to $650 per person, depending on the number of participants ;. After this incident, Ms. Nardi received a number of other calls from the grievor requesting information about various courses, and he sent her a list of five courses he was particularly interested In attending The grievor continued to be interested in attending a Supporting PC Users course, and in 1992 Ms Nardi received a signed authorization form enabling him to do so The original of this form, signed by Ms. Wong, was introduced Into evidence Among the information to be filled out on the form is the date of the \ course, and on the form introduced into evidence it IS clear that at some point the form specified the exact dates of the course, but that most of this - information had been "whited out." Ms Nardi testified that when she received the form the white-out had been applied Ms Nardi told the- Board that the course began on April 27, 1992, and that the grievor attended it. . l Cross-Examination of. Ms. Nardi In cross-examination, Ms Nardi testified that, in her experience, it was I - very unusual for employees to ask her to hold open a space in a course and then not follow through wIth authorization She also testified that the Supporting PC Users course was, relative to the other courses offered, ___ extremely expensive because it cost $15,000 (US) to run, while, the other courses cost approximately $500 to run Accordingly, when a student fails to appear the cost of that student's spot cannot be easily absorbed. Ms Nardi testified that she did not find anything unusual about the fact that the dates had been whited out on the form authorizing the grievor to attend the Supporting PC Users course She not'ed that the dates of courses change ~ ( -I -- . ~ .-.. ~ -~_._-- "\ (,," 27 :.. ~ ~ ---- I \i1 , I all of the time All that Ms. Nardi is concerned with is that the course has been appropriately approved The Union's Case " Testimony of Peter Thomas Peter Thomas testified He is a Senior Electronic Maintenance Officer in the Electrical Engineering Section, and is c:oncerned with traffic control Mr Thomas has worked for the Ministry for more than thirty years Mr Thomas ( first met the grievor in 1989 or the spring of 1990 The grievor was engaged, at that time, in setting up a demonstration of the 170 Controllers He was at work after hours, and Mr Thomas assisted him in his presentation ofa seminar on this topic. Mr Thomas also tqld the Board that \ - he was aware of a device the grievor built to assist him in checking the wiring on electrical harnesses. In Mr Thomas's opinion, this device was quite useful and saved a lot of time Mr Thomas did not work in the laboratory, but went there from time to time On these visits, he would observe the grievor at the work bench, and he appeared to be working on Controllers From what Mr Thomas could observe, the grievor appeared to know what he was- doing Mr Thomas testified that the grievor was likeable and friendly, and appeared competent. Cross-Examination of Mr. Thomas In cross-examination, Mr Thomas agreed that he did not supervise the grievor, and did not have day-to-day knowledge of his activities and I accomplishments He also testified that Mr Philadelphia is a very patient and understanding man who knows his stuff I . ( 28 ('. , I \;;,.- .. ',; Testimony' of Danny Dadula The grievor testified on his own behalf He became a probatfonary employee on September 17, 199T, and was hired by Mr Kapur The grievor has extensive background in the private sector, and first began work with;. the Ministry as part of a Ministry of Community and Social Service~ vocational rehabilitatior,l placement in 1989 He held a series of contracts until he won a permanent position in the fall of 1 991 In general, the grievor has - been responsible for the repair of 1 70 Controllers, and has also been responsible for teaching coop students .about these Controllers The grievor / testified that at no time, since first beginning to work for the Ministry In 1989, has his performance ever been reviewed with him by a member of management. His performance has, however, been reviewed Introduced into evidence was a copy of a "Consultants Performance Appraisal" that the grievor received in February 1991 upon the completion of one of his term contracts The grievor received many excellent ratings, and the lowest rating he received was satisfactory The appraisal concludes "On the ? whole, the Consultant provided a very valuable service to this office due to his interest, conscientiousness and cooperation" When the grievor first began work he was usually assigned work by Mr Kapur The grievor was not provided with a job specification when. he was hired, and testified that he was never given one Usually, Mr Kapur told him what to do, but no one ever told him what his job was all about. The .grievor was shown a copy of the minutes of the meeting, held on January 17 and 20, 1992, and he told the Board that this was the first time he ever received any information setting out his duties and responsibilities in detail The grievor also met regularly with Mr Philadelphia in January Sometimes these meetings were general staff meetin~s, on other occasions, the , - . --- ~ u ---- - - - -'- - -~--- -- Q~'i'~ 29 ( . /~ grievor and Mr Philadelphia met alone.. The grievor testIfIed that whIle Mr / Phiiadelphia would assign him work during these meetings, he never said I ( anything to indicate that the grievor was not meeting the requirements of his position iI The grievor spent most of his time repairing 170 Controllers The grievor was asked about Mr Philadelphia's evidence with respect to the manufacturer returning 170 Controllers earlier sent to it by the grievor, f having found nothing wrong with them. He told the Board that each time this occurred, he explained his testing process to Mr PhIladelphia, and that Mr Philadelphia appeared to be satisfied wIth the explanation He also testified that when Mr Kapur was in charge, he was under instructions from him to send all Controllers back to the manufacturer for repair . -' The grievor was asked about his relationship with other employees, and in particular, with Mr Smith He testified that they had some disagreements, and that Mr Smith was .not familiar with the Controllers He also testified that he never saip that he did not respect Mr SmIth What he did say was that respect could be achieved by Mr Smith serving as a good example The grievor testified that he had a discussion with Mr Philadelphia about this incident, and that Mr Philadelphia was satisfied with his explanation He also told the Board that after this dIscussion, Mr Philadelphia did not raise l any other concerns with him about his relationship with Mr Smith The grievor testified that he kept several tools at his desk that should have been returned to the tool cabinets.- He also told the Board that he ,never made contact with the community college to request coop students, but that the college contacted him. This seemed natural to the grievor, because of -- -~ - - - -- I ( (, 301 ;; ''''~:; ~.; .- his previous experience supervising, training and evaluating coop students, and he suggested that the college send him whatever information it had available, and he would pass It on. The grievor did not tell the 'college whether there was a coop placement. He intended to pass the information on to Mr Philadelphia or Ms. Wong, and as planned, he passed on the best resumes to Mr Philadelphia The grievor testified that no one ever told him that he was not to do this, and since he thought that he was in charge of the I coop students there was no reason why he should not dd some pre-screening before passing the resumes on '- The grievor was also asked about the Supporting PC Users course and the fact that he had apparently whited out the dates on the approval form. He \ I told the Board that he did white out the dates, and he explained why The - grievor received Ms Wong's approval to take the course scheduled to begin on March 15, 1992 That course was postponed The grievor was advised \ that another course would be held, but as he did not know the dates of that I . . course, he whited out the dates on the course approval form so that the dates for the new course could be inserted when the course was rescheduled. While the grievor had been advised that he could not take any new courses without prior approval, he was of the view that courses that had already been approved, such as this one, were not subject to the restriction, and he noted that he was allowed to take a Wordperfect course in April 1992 The fact that he had been allowed to do so confirmed his , opinion that he was entitled to take the Supporting PC Users course,) which was rescheduled for the end of April 1992 He also testified that he indicated on a schedule, posted in the laboratory, that he would be attending this course, and in that way made his supervisor aware of his plans I, -- -- "---. -- -- -...---- I C' 31 'w .. When the grievor was advised by letter dated Apri'l 7, 1992, from Ms Mary Nardi, that the Supporting PC Users course had been rescheduled for the end of April, he' also received a copy of the original letter This copy had "cc S Wong" highlighted Th~ grievor testified that ,he did not know what the , pureose of the extra copy was so he put it in his desk He was later advised by Mr Philadelphia that he should have delivered it to Ms Wong, but testified that he did not know at the time that this is what he was expected to do The grievor testified that he liked attending courses, but that all of these courses were for the benefit of the Ministry, and he explained what some of the benefits were .J The grievor was asked about his final days on the job He tes~ified that Mr J Philadelphia asked him to do a certain Job, and he advised him that he could not as' he Was to be attending the Supporting PC Users course Mr Philadelphia expressed surprise at this news The grievor explained to Mr Philadelphia that he thought that th~ course had been approved for the new budget. Mr Philadelphia left the room for about thirty mmutes to discuss ., the matter with Ms Wong, and when he returned he told the grievor that he could attend the course The grievor attended the course on April 27 and 28, but on the 29th, Mr Philadelphia called him to a meeting and handed him some papers. He advised the grievor that these papers were hiS appraisal The grievor reviewed these papers, and the negative tomments found therein, and was in shock. He thought that everything was going well; and the only discussion about his job performance that he ever had with a member of management was about regucing' his probationary period After going over the dqcuments with Mr Philadelphia; the grievor felt sick and depressed and went home He did not return to work for several days. When c . - - -~- - - _..__._-~ - - - . --. --- .. . - -- -- -,-- -.--- --- ---.--- -~- I · (~~;;, 3 2 iI I he returned to work he was advis~d by Mr Philadelphia that Ms Wong I wished to see him. The two met, ,and the grievor was releas~d from employment. Since losing his job, the grievor has been receiving- unemployment insurance, and has also been looking fora new job He ;; testified that the job market for electronic technicians is very poor He \ has taken several computer courses to improve his skills He told the Board that he enjoyed working at the Ministry and would like his old job back. Cross-Examination of Mr. Dadula In cross-examin~tion, the grievor agreed that he learned about the Electronic Technician position from a posting, and a copy of that posting was introduced into evidence The salient section of the posting states The Ministtyof Transportation, Electrical Engmeering Section, seeks a highly motivated individual to provide, assistance in testing and repairing traffic signal control equipment. You will perform electrical, environmental testing and repair complex microprocessor fbased traffic signal control equipment, assist in the evaluation of new traffic signal devices, assist in the development and assembly of electronics test equipment for automatic testing, repair/modify traffic signal control equipment. / He agreed that not only did this posting tell him something about the job, he also had an understanding of what the job entailed as a result of his prior laboratory work experience He also told the Board that the nature of the position was discussed at the job interview, and that when he began work, the work he was assigned was the work he expected to be assigned based on all of the information he had previously obtained Upon being hired, the grievor was advised in writing that he had a f / c- .' \, 33 ....~ .' I i , probationary period of one year He testified that he wrote to Mr Kapur in I i - , September 1 991, soon after starting the job, about reducing that period to I I I six months because of his previous laboratory experience Mr Kapur did not / respond t9 this request, and so he raised it with Ms Wong in December 1 991, and she told him that she would look into it and get back to him. When she did not, the grievor raised the matter again the following month with Mr Philadelphia He testified that Mr Philadelphia advised him ( sometime in January 1992 that the period would be reduced to six months j , Mr Philadelphia did not confirm this by letter,. however [There was some I ! I question as to whether this claim was put to Mr Philadelphia in his evidence, and a review of our notes indicates that it was not. It was i the I I employer's position that Mr Philadelphia neJer advised the grievor that his ! probationary period would be reduced and, in fact, advised him that it would not be reduced.] i The grievor was asked about his evidence in chief and about the statement i he made that he instructed coop students in the repair of Controllers The I I grievor agreed that this had been one of his tasks He was then asked about I his evidence that he did not, on the instructions of Mr Kapur, repair i Controllers, but sent them all out for repair He testified that the truth of the matter was that some were sent out for repair and others were not The grievor also testified that prior to January 1992, Mr Kapur screened the resumes of coop students. The grievor became more involved in the coop student process when Mr Smith referred' a telephone call from a community college to him The college wanted to know if the laboratory was going to be taking any coop , students, as it had in the past, and the grievor agreed to look into it. He \ , _ _ i ._ L ~ - - -- - -- - --- - - ---- - -- .--- -- -- -_..- -- -- --, -- - - --. c ,. .' 34 < .., I agreed that no one In management ever gave him any authontyor direction to do this. He also testified that he made a mistake, for which he was ~ sorry, in screening the resumes Instead of simply passing on all of the i materials that he had obtained The grievor felt that this was part of.. his I job, and that he was doing his duty for the Ministry The grievor agreed that he w~s very well aware, in the spring of 19.92, that money was tight, and that one employee, Diane Harty, had been let go at the end of her contract because of budgetary problems. The grievor was also aware that training funds came out of an annual budget, but did not know that the Ministry's budget year began on April 1 st, and ended on March 31 st He did know, however, that there was a budget year, and that the Supporting / . PC Users course had to be taken in the budget year However, the grievor - also understood that if the course was approved for one budget year it could also be approved for the next. When the grievor received notice that the course would be held at the end of April he did not think -1that he had to ask Ms Wong about it, although he knew that the person in- charge of schedulmg the courses, Ms. Nardi, was not responsible for approving them. The grievor knew that it was an expensive course The grievor agreed that when a course was scheduled, Ms; Nardi would give / him a letter to that effect, along with a copy of that letter with the "cc" section highlighted The grievor agreed that he was very familiar with this process, and first testified that he knew that the copy of the letter that he received was Ms. Wong's copy He was then asked why he did not give her \ her copy iff he knew that it was to go to her, and he then testified that he did not know why Ms Nardi gave him two copies. He agreed that he could conveniently drop off Ms. Wong's copy, and that it was reasonable for Ms \ ..... \ ----;-- I (~~" \. ~ 35 I Ii' ; n."1' I \ Nardi to assume that he would. do so However, he testified that he did not give her the cOpy of the scheduling letter because he believed Jhat there was another copy that Ms. Nardi sent directly to Ms Wong When the grievor was reminded that he previously testified that he knew that his copy was Ms. Wong's copy, he testified that he thought that his copy was a duplication of her copy The grievor did not agree that he had weekly meetings with Mr Philadelphia, and testified that, in general, they were. not this regular Some of the meetings that did take place were alone, and others took place with a group. The gri~vor testified that when he met alone with Mr Philadelphip, the discussions were confined to general matters such as his Mr Philadelphia did advise the grievor to try to work as part - work duties. " of a team. He testified'that he had good relations with Mr Smith, and produced a Christmas card that Mr Smith sent him' as evidence of that fact The grievor testified that Mr Smith knows what .heis doing, in his job, but as he is new to traffic control, there are many things he must learn One of the things he must learn is to command respect. The grievor emphasized, however, that he never told Mr Smith that he did not respect hlm~ A ~ this point, the grievor was shown a copy of a letter he wrote to the Qeputy Minister of Transportation on June 26, 1992 which indicates, among other \ things, that the grievor did not have the highest regard for Mr Smith's qualifications, knowledge and ability \ The grievordid not agree that he did not follow the .instructions given to \ him for the preparation of his Prom Board report. He testified that he met at least weekly with Mr Philadelphia after being given this assignment in January 1992, and this evidence, it should be noted, is somewhat at - ----- - - . ~ ---.. . -.. -" - - ~ ---- -- - . - -- -- --- . \i', 36 variance with his earlier testimony that he did noe meet all that regularly with Mr Philadelphia The grievor testified that he believes that all of the matters he covered in the report were necessary, and he did not agree with the sUQgestion or with the employer's evidence that he went beyond h1s mandate in the preparation of the report. He did agree that he wrote a letter to Mr Philadelphia on Apnl 12, 1992, apologizmg for getting carried away on his report, but explained that one reason he did so was to calm Mr Philadelphia down It is noteworthy that the grievor, on this letter, clearly demonstrates that he is aware of the significance of sending copies of correspondence to others, as thi~ .Ietter is "cc'd" to Ms Wong and Mr Smith The Igrievor testified that Mr Philadelphia was not telling the truth when he said that he specifically instructed thegrievor not to return home to get his report, but to bring it in the next day - According to the grievor, he did not have any concerns about job security In February, March and April 1992 He testified, however, that Mr Philadelphia threatened him and told' him not to rock the boat. The grievor also testified that he has been forced to sign certain reports and other documents when he did not want to He believed, nevertheless, that he was doing well, an<;t that he was cooperating fully with Mr Smith and Mr Philadelphia Re-examination of Mr. Dadula 1 .1 ) 1 In re.;.examination, the grievor was referred to his letter to the Deputy Minister, and he testified that he wrote this letter at a time of considerable upset. The grievor was then asked to describe how he had been threatened, and he referred to a memorandum from Mr Philadelphia, which -.. had been introduced into evidence and which expresses considerable ~~':- r-- 'i' 37 ;,::... J/;" dissatisfaction with the griev6r's Prom Board report. It is useful to set out the full text of this letter, dated April 15, 1992 -FACTS We have had numerous discussion on vanous ,! subjects Your subsequent actions to our discussion were in direct conflict with what I was trying to achieve It only goes to prove to me that you understood quite well our discussions, but always choose to do something that is contrary We have discussed this topic and more in very great detail and there is nothing more I will add at this time it is time to get on with OUR WORK! Thanks. Lambert. - - I did not ask for a letter of apology You did not have to issue one. So please take these back, IIApology letters" and once again, thanks for your consideration Lambert - After reviewing the letter on the witness- stand, the gnevor testified that he must have misread it. In re-examination, the grievor also clarified the instructions he had received from Mr Kapur about sending out the Controllers. He testified that Mr Kapur told him to send them out whenever there was a backlog, and as there was a backlog, he sent them out for a considerable period of time, which might "have been as long as six months. He also reiterated his earlier evidence that he never told anyohe at the college that there was a position in 'the laboratpry for a coop student. \ Employer Argument Employer counsel 'began his argument by reviewing some of the relevant f jurisprudence He pointed out that the Board does not sit as an appeal f tribunal reviewing the decision of the Deputy Minister to release a I -- - - -- -------- ,- ( ( 38 I \~. .~ I probationary employee for failure to meet the requirements of his or her I I position Counsel also observed that in case after case, the Board has set out the limited scope of its review In Sheppard 2492/86 (Slone) the Board held that it could only review certain aspects of a release '" ~ ,. A. Lack of Good Faith If the Employer lacked good faith in releasing the probationary employee, then the ostensible "release" will be considered actually to have been a dismissal, which can be grieved under Section 18(2)(c) of the Crown Employees Collective Bargaining Act. Clearly, the bad faith, if found, must be relatively serious I B. Unreasonable While this term is utilized in the earlier decisions we do not take it to mean that we can review the merits of the employee's job performance and reinstate him If we find - that the assessment was "unreasonable" that the employee had not met the job requirements Reasonableness in this context is a species of good faith Whereas the phrase "bad faith" could encompass a release improperly motivated or maliciously intended, "unreasonableness" speaks more to an objective assessment that the release did not flow logically or rationally from the facts. If, for example, there was simply no evidence that a probationary employee had not fulfilled or could not fulfill the job requirements, then no matter how well meaning were the actions of his superiors, the release would have been an unreasonable exercise of authority C. Rational Relationship Between the "Facts and the Release This factor is nearly synonymous with "reasonableness" If the Employer's assessment that a certain set of facts justifies release is "irrational" on any half-intelligent view of the matter, then the release becomes a discharge \ and can be reviewed The "rational relationship" test should not be placed too high. It is easy to brand as "irrational" any thought process or decision with which {",> -' f~ ,.. "'C\,~"~ ~~;;;,- 39 i' r one does not agree The Deputy Minister must be free to make decisions, without being found to have -acted irrationally merely because a Board of arbitration might have c;ome to a Qifferent conclusion (at 1 5-1 6) ;.. In counsel's view, this case and others, including Balderson 1 589/84 } (Delisle), Mitchell 161 0/89 (Emrich) ant:i McKnight 2022/90 (Kaplan) stood for the proposition that once the Board determines that the employer has acted in good faith, and that in deciding to release a probationary employee, there was no unreasonableness and nothing irrational in the conclusions that the employer reached, the Board should not interfere with the result Counsel argued that when this standard was applied to the facts of the instant case, the grievance could only be dismissed - In reviewing the evidence, counsel noted that the grievor was well aware of the nature and demands of his job when he applied for it, and that he had, In fact, prior laboratory experience This was not, accordingly, a case where an -employee was put into a job he or she was clearly unqualified for and unprepared to perform, and then was negatively assessed on his or her failure to perform the position in question Counsel :conceded that in the time period prior to Mr Philadelphia's assuming supervisory responsibility, the laboratory was not well managed However, that situation changed after Mr Philadelphia took charge, and counsel argued that the evidence was clear that Mr Philadelphia regularly met with the grievor, provided training, instruction and supervision to him, and kept him constantly informed of his progress and his continuing failure to meet the position's requirements While Mr Philadelphia did not regularly document the grievor's deficiencies, " counsel pointed out that there really was no doubt but that he brought them .r c., I " 40 -, . " to the ~rievorls attention, and did. so on a regular basis through staff meetings, one-on-one meetings, and memoranda In January 1992, the grievor and Mr Philadelphia met over the course of several days, and subsequently the grievor received along and detailed Itst of his dutie~ and I responsibilities, / and in discussing that list Mr Philadelphia made it clear to the grievor that a number of problems needed to be addressed. There were other meetings after this one, and counsel argued that the same message was communicated to the grievor In the circumstances, coun~el argued, t_he grievor must have been aware that the employer had serious concerns about his job performance and the fact that his job was on the li.ne Counsel also pointed out that the grievor was well aware of the nature of a probationary period and, as a result, made a number of efforts to get his probationary period reduced In counsel's submission, the employer's ~ concerns about the grievor's performance could have been better documented, and the grievor could have received an earli~r written performance appraisal However, counsel argued that the grievor was kept well informed about his progress, and there was nothing palpably unreasonable about the employer's decision in this case Counsel also pointed out that the facts established a rational relC\tionship between the facts and the decision to release Counsel referred to Mr Philadelphia's evidence about the failure or unwillingness of the grievor to follow instructions and take directions He noted the employer's concerns about the grievor not appearing at work on time, and the employer's ultimately unsuccessful efforts to take remedial action with respect to this He also referred to thegrievor's inability to get along with both Mr --.--- /o- r \:.~ ~}~; 41 . Philadelphia and Mr Smith. And counsel referred to the problems surrounding the Prom Board report as "another case in point. Counsel noted that the grievor was provided with detailed Instruction's for the preparation of a report that Ms. Wong estimated should have only taken several days It took the grievor four weeks, and the report he submitted was, on the evidence of Ms. Wong and Mr Philadelphia, of no use whatsoever Moreover, here too, counsel pointed out, the grievor deliberately disobeyed instructions and went home to get his copy when he had been explicitly ordered not to do so It was noteworthy, counsel suggested, that in evidence the grievor testif~ed that he continues to believe that his report was useful - Counsel also referred to various other problems with the grievor, including his conduct with respect to the Supporting PC Users Course This incident clearly established, according to counsel, that the grievor was not an honest employee, and that the Ministry could not trust him. Other incidents, such as the grievor acting without authority as a representative of the laboratory with respect to coop students, further confirmed the employer's view that the grievor could not and would not act as a member of the laboratory team, and did what he wanted when he wanted without regard to instructions and the requirements of his position. While none of the incidents considered alone might be sufficient to support a release, counsel argued that they should be considered cumulatively, and when they were the requirements established by the Board in reviewing cases of this kind had, in counsel's view, been more than met. \ Counsel also argued that this was an appropriate case for making some ~ (7 . ''',. , ,; 42 ':.:l~j findings about credibility, and that these findings also supported the decision tq release Counsel suggested that where there was a conflict I .' ' between the evidence of Mr Philadelphia and the grievor, Mr Philadelphia should be believed Counsel pointed out that the evidence established" several cases of dishonesty on the part of the grievor, and he suggested that failing ~o give MsWong her copy of his course information letter was one of a number of examples on point. Another example. was in the proceedings before the Board when the grievor gave conflicting evidence With respect to the same questions. In conclusiOn,counsel argued that, as in 'most cases, there were things that the employer could have done differently, and there were things that the employer could have done better But there was, in hiS view, really no doubt that the employer had brought its concerns to the grievor's attention, that .J these concerns were significant, and notwithstanding t numerous opportunities to, improve, the grievor's performance did not improve, and that the decision to release was accordingly fully supported by all the facts in this case Counsel urged that the grievance be dismissed Union Argument - Mr Leeb began his submissions by expressing general agreement with the legal principles to be applied by the Board in its review of a probationary release He too took the position that it was not the function of the Boa rd to second-guess the employer's decision In hi~ view, the issue before the Board was whether the release was a reasonable and rational decision based on the facts. And in his view,' it was not. Mr Leeb referred to the Human Resources Directives and Guidelines This IS -. - ----- - --~-------~ - -~---_. - -_.~--- ~-~ ------ ~- - - -- --- -------------- ____n__ i I. \ 43 I .~ a Management Board document superseding the Manual of Administration Among the issues dealt with is the release of probationary employees The relevant Directive states ~ Employees must only be released during the first year of employment in the OPS for failure to meet the requirem~nts of a position [PSA, s. 22{S))] if -periodic appraisals show that performance on the job failed to improve to the level expected, -they were kept informed of their shortcomings, and provided with adequate assistance and opportunity to overcome them. - The relevant Guideline states: Failure to meet requirements of position Releasing employees within their first year of employment 'with the OPS for failure to meet the requirements of a position should take place only after all efforts at improving the performance of the employees have failed This includes appropriate support and assistance from management as well as adequate accommodation as required by the Ontario Human Rights Code. - Provide Assistance First ') Managers and supervisors of employees in this situation should provide help and. encouragement, and where I appropriate, formal training in order that employees may improve their work performance Open, frank discussions should take place where all parties involved obtain a clear understanding of performance objectives and expectations, and what action will result if those are not met. Schedule performance appraisals frequently, for .,-.. - , - CA 44 '~.i4.\.' .j' example every three to' four months "- Documentation Required Where release for failure to meet Job requirements within the first year of employment is being i contemplated, a pattern of poor performance should be .. - documented The documentation should demonstrate .., -the e'mployee has been advised that he/she' is not meeting the standards of the job and that release IS being considered, Mr Leeb argued that these Directives and Guidehnes were not followed, and the failure of the employer to follow them in this case was fatal to ItS . decision to release the grievor, and Mr Leeb cited Rupert 372/84 (Gorsky) in support of this point. Very simply, in the union's view, the failure to follow these Directives and Guidelines resulted In the grievor not being provided with a real opportunity to meet the requirements of his position, and indicated a lack of reasonableness and good faith on the employer's part. In Mr Leeb's submission, the release decision should and could be set aside on that ground alone Mr Leeb also pointed out that when the gnevor finally did receive a written performance appraisal it was on the eve of his discharge, and once again the employer failed to comply with its own procedures when it had Mr Philadelphia, a member of the bargaining unit, prepare the evaluation instead of a member of management. Mr Leeb argued that at the very least, the grievor should have' been given some warning that his job was on the line, and there should have been a ~tated timetable within which he was "' --~. . ( 45 ~ . expected to improve Mr Leeb also argued that when the grievor was finally given a- performance appraisal, it was not a proper performance appraisal since it was prepared for one reason - to justify and support the employer's decision to release In Mr Leeb's submission, this was completely contrary to the principles governing performance appraisals and indicated considerable bad faith on the part of the employer Moreover, turning to that release decision, Mr Leeb pointed out that there was, at a minim-um, more than one month left in the grievor's probationary period at the time when he was r~leased, and this time could have been used_ to give the grievora real opportunity to meet the I requirements of his position Instead, Mr Leeb argued, the employer hastily \ / threw together a performance appraisal, and then immediately followed it. with a release The performance appraisal, in the union's submission, was "- written in bad faith ! Mr Leeb also argued that the employer was relying on irrelevant criteria in '\ its decision to release Mr Leeb noted that the position specification did not state that strong interpersonal skills were required for the Job, and did state that Mr' Smith was the grievor's supervisor, not Mr Philadelphia It was significant, Mr Leeb suggested, that the employer had not called Mr Smith to give evidence, and argued that given its failure to do so the Board should and cOlJld infer that his evidence would have been unfavourable to the employer's case (see Shaw 410/88 (Barrett) and Sopinka and Lederman, The Law of Evidence at 535) Mr Leeb also suggested that a number of the employer's. concerns were exaggerated For example, Mr Leeb argued that It was the grievor's ~._- - ._ ,_.. "-'..A ' . ~ .;"",x.- '..1' :.. ........ - -- - - -_.._- - ;. CL 46 f-."" evidence that the community college contacted thegrievor, and not the reverse, and that in any event, the grievor realized his mistake and apologized for it. This was not, Mr Leeb suggested, a suffiCient reason to ~ release the grievor from employment. Mr Leeb also suggested that it ~'was not unreasonable for the grievor to submit a whited-out application form for the Supporting PC Users course The grievor did not know when the next course would beheld, and so he could not fill in the dates. While Mr Leeb did not djspute the fact that the grievor was told that he required i reapproval to take courses in the new fiscal year, h,e noted that the grievor took the Wordperfect course and nothing came of it. When the grievor received notification of the Supporting PC Users course,it was not unreasonable for him to assume, Mr Leeb suggested, that he had also been approved for it. Mr Leeb pointed out that no one told the grievor that he - I was to deliver Ms Wong's copy of the confirmation letter to her, and that the grievor proferred an explanation for his failure to do so, namely that he had a received a copy of her copy It was, in Mr Leeb's submission, up to the employer to deliver to Ms. Wong her copy, not the grievor Likewise, Mr Leeb argued that the grievor thought that he was doing the right thing when he went home to get his Prom Board Report, and he suggested that the grievor's evidence on this point should be preferred to that of Mr Philadelphia \ In Mr Leeb's view, when Ms. Wong received a copy of the grievor's Prom Board report, and on various occasions when she was advised by Mr Philadelphia of problems relating to the grievor, she should have taken charge, met with the grievor and spelled out to him in no uncertain terms that his job was on the line Mr Leeb argued that not only was this obligation set out in case after case, it was also part of the employer's (:.. 47 . ~ !~ ; t '\ stated policy, and at a minimum, it was necessary as a matter of fairness I to the individual employee Mr teeb also argued that the grievor really did not get/3 chance in this case because the laboratory was in a chaotic state during his first four months on the job, and so that important training;. and orientation period was effectively lost. " Mr Leeb arg.u~d that the grievor deserved a fair chance to do the job, and that the evaluation process the employer followed in this case deprived him of that opportunity, and he referred to Agboka 729/90 (Fisher) in support of this point. In Mr Leeb's view, the only fair remedy in this case was to return thegrievor to work, and to provide him with a real chance to demonstrate that he can meet the requirements of his position Mr Leeb asked the Board to reinstate the grievor with full compensation and interest, and to remam seized with respect to the implementation of its award Employer Reply In reply, counsel again conceded that the process followed in thiS case was far from perfect. However; counsel reiterated his earlier argument that~ the grievor was repeatedly told about his shortcomings, that the employer made numerous efforts to assist him, and that the grievor knew, as his efforts to obtain a reduced prob~tionary period illustrate, that his job was on the line Counsel also argued that_ the grievor, by his own conduct, made Impossible the continuance of the employment relationship ~ In counsel's view, the evidence amply established that the grievor was dishonest and manipulative, and not only had the Board heard evidence about his dishonesty, it had witnessed it when the grievor himself testified in these proceedings 'The employer could not trust this individual, and there were more than ample grounds for it to conclude that he was not and would '\ / -- -. - - ~..-,; . -- ...( - +-~ --.. - --~'-!r'''''''''' - ~-- -- ------ -- ----- I . C' 48 C~. ~...:'i 't> .''10' I not ever be able to meet the requirements of his position ( \ I In counsel's submission, the employer regularly evaluated th~ grievor's performance and brought to his attention the resultS of that evaluation Counsel argued that the grievor did not just have a .chance to do his Job, but was given many chances, and he consistently failed to perform the essential requirements of his position, and he consistently acted in a manner contrary to the interests of the employer Counsel argued that one of the purposes of performance appraisals is to ensure that employees are " made aware of their shortcomings, and he argued that the evidence In thiS \ case established that the grievor was made aware of his shortcomings on numerous occasions. Counsel also argued that the evidence did not demonstrate any unfairness to the grievor, and the fact that Mr - Philadelphia and not Ms. Wong completed the April performance appraisal was, in counsel's view, of little significance It was the content of the appraisal that mattered Counsel. also point~d out that the grievor testified I to feeling threatened, and when this was explored he admitted to feeling as if his job was in jeopardy The release in this case ,could not, counsel \ suggested, have come as a surprise \ In counsel's submission, the employer in this case had not just established that the grievor was properly released for failing to meet the requirements ( of his position, but had also established what would constitute just cause for the termination of a classified employee There was, in counsel's view, no bad faith, and he noted that considerable bad faith is required by the ( Board to set aside a release Counsel also argued that there was no unreasonableness present in this case What there was, in his view, was a ~ rational relationship between the facts and the decision to release ( , - - ~ ..... _..~ .': -~-~ . - --" - - - - ." . (;.,,' t. 49 V....i .. Counsel urged the Board to dismiss the grievance I Decision Having carefully considered the evidence and arguments of the partie~, we have come to the conclusion that this grievance should be dismissed Obviously, the employer's conduct must be measured against its own Directives and Guidelines. That part of the Directive relating to the release of probationary employees requires periodic appraisals demqnstrating the employee's performance on the job failed to Improve to the level expected, ) and also requires that employees be kept well informed of their \ shortcomings and provided with adequate assistance and opportunity to overcome them. In this case we find that this Directive has been complied . with, although the manner in which this was done can hardly be described as exemplary \ There is no doubt, on the evidence, that the grievor was kept well informed of his shortcomings. There is also no doubt that he was provided with more than adequate assistance and opportunity to overcome them. It is clear "- from the evidence of Mr Philadelphia that he personally worked with the , grievor and provided him with considerable trainihg, support and assistance in an ultimately unsuccessful effort to enable the grievor to meet the \ requirements of his position He also arranged for the grievor to receive training in the basic requirements of his position These efforts failed, but through no fault of the Ministry Moreover, these efforts suggest considerable good faith on the part of the employer While it would have been preferable if the grievor had received periodic - -- ---- ---- .--- ~---- -,-"- - --- - --. . ---- -. -.-- --- -.-. ----- ------ --- --'------ . f", so - <-~\ -..,; fI written appraisals clearly setting out the fact that his performance was / not improving, as well as the consequences,. including release, if substantial improvements were not forthcoming, the evidence establishes , l that this information, beginning in January 1992, wa~ regularly and ,; I repeatedly communicated to the grievor There was some evidence in this case that the grievor responded better to written directives; and although this evidence is equivocal given his failure to respond to the written instructions provided to him in advance of his beginning work on the Prom Board report, as a matter of practice, written appraisals, which clearly state the consequences of a failure to improve within a specified time period, should be given to employees in fulfillment of this part of the Directive - The benefits of providing probationary and other employees with formal written appraisals, in addition to inf0rmal verbal ~ppraisais, are self-evident. Not only do they provide the parties with a record to refer to if a release decision is subsequently challenged, more importantly, they provide the employee and the employer with a written statement against which improvement in performance can be evaluated Providing written appraisals is a matter of fairness to the employee and, as the GUidelines l indicate, they are the preferred manner in which the information should be - conveyed However, we cannot find that the Directive requires written appraisals as a precondition to the release of a probati.onary employee, nor can we find, in the circumstances of this case, that there was any question but that the grievor was not meeting the requirements of the position, and that the Directive was complied with insofar as this information was regularly and consistently communicated- to him. -,--- - - - ---~--_. ~- -- - - -~ ~ ... - - ~ - ----- ~ --.-- - '& (. 51 C> ..... " Moreover, it should be noted that the grievor states in his JI,me 1992 letter to the Deputy Minister to having received two performance appraisals in ( \ March 1992 On the evidence before us, the second of these appraisals was setout in writing, and the grievor, in late March 1992, signed a copy of it I The evidence also establishes that the grievor received a third performance appraisal at the Emd of April 1992, and this appraisal was also In wnting While its characterization was questioned by the union, Mr Philadelphia testified that the grievor's performance wa$ also appraised in January j 1992, when he met with the grievor and Mr 'Smith, to discuss the assignment and progress of work in the laboratory The grievor ) subsequently received a written copy of the minutes of this meeting Had) the grievor not received these performance appraisals, had the - employer not kept 'him fully advised about the requirements of his position, ~ had the employer not made significant efforts to work with the grievor in meeting those requirements, and had the evidence established that the grievor was left unaware of the fact that his job was in jeopardy, we would have upheld the grievance and reinstated the grievor It is worth noting that while none of the individual incidents detailed in this award would , f likely support a release, it is appropriate, i1i this case, to cumulatively consider them Obviously, the first fewm0nths of the grievor's probationary period cannot be considered in this case - on the evidence of the employer and the union, the laboratory was in a chaotic state, and it is clear that the employer was in no position to assess the gnevor in this penod While we might, in another case, have been inclined to find that these conditions effectively deprived the grievor of a significant part of his probationary penod, we / '. ~' 52 cannot so condude in the instant case The grievor was no stranger to either the laboratory or to his position He knew exactly what he was supposed to do, and, supposedly, how to go about doing it. Accordingly, this is not, in our view, ~n appropriate case to find that the grievor was n6t given a full opportunity to meet the requirements of his p6siti(~n As a matter of fact, we find that the employer had, in the period beginning in January and ending, in 'April sufficient time to assess the grievor, attempt to assist him, and ultimately, to conclude that he was not meeting the requirements of his position While it may have been better if the grievor had been given a longer opportunity to attempt to meet the requirements of his position, we cannot conclude that an extension of his probationary period would have, in any way, affected the ultimate result. . \ We find that the grievor knew exactly what his job entailed We also find that he was provided with assistance and support to assist him in performing his position, and that he was made aware of the many difficulties he was encountering on the job and the need for improvement, particularly in the period beginning in January 1992 and endmg with his release The evidence indicates that at no time did the grievor meet the employer's legitimate job expectations, and that those expectations were regularly and consistently communicated to him, as were the suggestions that the grievor change his attitude and behaviour, as well as improve his performance It is also worth mentioning that there is no evidence in this case of the grievor making an honest effort to improve when his shortcomings were brought to his attention We cannot find that the fact that Mr Philadelphia prepared both of the grievor's written performance appraisals instead of a member of ~ - _. -- ~ - - --- I .. 53 C'" 'P' I management is a sufficient reason to set aside the release Obviously, performance appraisals should be prepared by members of management - - the Guidelines and the performance appraisal form introduced into evidence say as much In this case, Mr Philadelphia was acting in a managemeot capacity and was, on the evidence, the grievor's only day-to-day supervisor He was the only ,person in a position to properly assess the grievor Moreover, even jf the appraisal had been formally prepared by someone else, it would have been based on information provided by Mr Philadelphia I However, there clearly was a defect in this 'case in this particular respect, but we cannot find that the defect is of such significance as to irreversibly taint the final result. Some additional observations are in order The grievor demonstrated an - inability to work as part of a team, and his on-duty conduct, including his failure to attend work on time, hl~ assuming responsibility for matters beyond his purview, and most importantly of all, his dishonesty in taking a course that he knew required Ms Wong's approval, demonstrate that the I grieVor was not meeting, and would not meet the requirements of his position The grievor's misconduct in taking tl1is course is illustrated by his concealing MsWong's copy of the course information form. The explanation othegrievor provided for doing so simply makes no sense The grievor knew that he was responsible for delivering this form, and the various explanations that he provided for not doing so are simply not believable On the issue of credibility, the Board was invited, on several occasions, to prefer the grievor's evidence to that of Mr Philadelphia and Ms W on9 This we cannot do In every case of conflict in the evidence, we prefer the testimony of the employer's witnesses Not only is their I evidence internally consistent, more importantly the evidence of the .. ( 54 :i -- grievor when he was testifying was inconsistent on several occasions, and j also varied from his own written materials introduced into evidence The grievor was aware, for example, prior to his release, that his employment was in jeopardy We also find that the grievor was advised that his ;i. probationary period would not be reduced It is clear in this .case that while the grievor lTlet the requirements of a , junior and less demanding position with the Ministry, and d.id so over a number of years pursuant to several limited term contracts, he was not able to meet the requirements of his Technician position Accordingly, he was properly released for his failure to do so That failure was made inevitable, notwithstanding the assistance, support, and, it should be noted, good faith of the employer, by the grievor's attitude and behaviour In - short, this is not an appropriate case for the Board to set aside the grievor's release in that we are satisfied that there was a rational ( relationship between the observations made by management and the conclusion which was reached We find no evidence of any bad faith or unreasonableness in this case - all of the evidence is to the opposite effect. Accordingly; and for the foregoing reasons, the grievance is dismissed " ~ it 55 ? DATED at Toronto this I 20th day of September ,1993 'I 1// IC- ----------------- William Kaplan Vice-Chairperson .. ~ /lU' . _Q.. ~__~_ Addendum Attached S. Urbain " Me~d qD~t~~~--~ Member I I Chairperson's Addendum I !have readMr Urbain's addendum, and while I cannot agree with all of his findings of fact, I wholly agree with the general concerns that he has - expressed In this case, as in many others, the 'Board has found itself satisfied, at the end of the day, with the propriety of the ultimate result but very concerned about the process employed in reaching that result. The majority, in this case, decided that while the management Directives were effectively complied wit~, the relevant Guidelines were not. Had the situation been the reverse, we would' have upheld the grievance and reinstated the gri~vor Our finding in this case, however, should not be taken as either condonation or approval of the manner in which management went about discharging its responsibilities Both the Guidelines and Directives are there for a reason, and absent exceptional circumstances they should be followed It may be that the time has come for the Board to \ consider what -other remedies, in like cases, might .be appropriate so as to communicate this view to the members of management who are, after all, responsible for managing, and in that way ensure greater attention and fidelty to these established policies and procedures \ / - -- --_. -- ~--- . 1 ,; 1089/92 OPSEU (Dadula) and Ministry of Transportation' Addendum The~grievor started his probationary period on September 17, 1991, as a full-time -Electrontc Technician His immediate supervisor according to the Position Specification is the Senior Electronics Technician who at the time was Mr Arthur smith. B~th in turn reported to Mr. Arun Kapur, the Field Support Co-ordinator All three positions are in the bargaining unit. The Field Support Co-ordinator reports to the Head of the Electrical Engineering I Section, a management position that is' excluded from the bargaining I unit /, ( According to the Employer's Human Resources Directives and Guidel ines performance appraisals for employees on probation should be scheduled frequently for example every three or four months Performance appraisals are to be completed by .management staff who a~e excluded from the bargaining unit Counsel for the employer conceded that prior to the replacement of Mr Kapur by Mr. Philadelphia in January of 1992, the laboratory was not well managed. The employer agreed that conditions in the laboratory were somewhat chaotic. As a consequence of this mis-management the grievor did not receive a - written appraisal of his performance for at least the first four months of his probationar~ period After Mr. Philadelphia replaced Mr Kapur meetings were held' with the laboratory staff including the grievor, in January 1992. The minutes of two meetings January 17th, and 20th, were prepared and given to the staff including the grievor. They describe in detail what the grievor's responsibilities were, how much time he was to devote to each anq how to report his progress . However according to the Employer's own guidelines this does not qualify as a performance appraisal. The document prepared in late March 1992 referred to as the second appraisal also fails to qualify as a valid performance appraisal in that, as Mr. Philidelphia conceded, it does not give the grievor any feedback about his performance. i Mr. Philadelphia admitted that the April 28, 1992, performance appraisal was the firf:it one to state in writing that the grievor was not meeting the requirements of his position. I must agree with the Union's argument that this was not a proper performance appraisal since it was prepared solely to justify the Employer's decision to release the grievor. Ms. Sui Wong, became Head of the Electrical Engineering Section in October 1992 some weeks after the grievor started his probationary period. As a member of management excluded staff it wasMs wong's responsibility to conduct a performance appraisal of the grievor. When asked why the grievor did not receive a performance appraisal after his first three months of probation Ms Wong replied th~t Mr Kapur, the Field Support ~o-ordinator, was on ~ I b-. ~, vacation and then the Christmas holidays ,intervened Ms. Wong went on to testify that she felt comfortable delegating this task. To delegate performance apprais~ls to a member of the bargaining unit is simply abdication of managerial J an responsibility It is not surprising that Mr Philidelphia would be reluctant to put something in writing ~hat might cost a fellow Union member his job It was not his responsibility to inform~the grievor in writing that his job was on the line if he dtd not make significant improvemeDts' to his work performance. Ms Wong received copies of the grievor's Field Testing Report o~ Cabinets and then his Prom Board ~eport in April, 1992 When Ms Wong concluded that these reports were technically deficient she had a managerial Obligation to personally bring this to the grievor's attention as soon as possible This was not done. Eventually Ms Wong made the decision to release the grievor without even talking to him On the ipsue of credibility, I am in full agreement with the other members of this Board and accordingly have concurred with this decision i Dated at Don Mills, this 3rd day of September 1993. . l- I J --. .