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HomeMy WebLinkAbout2002-1551.Fernandes.04-01-02 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2002-1551 UNION# 2002-0542-0021 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Fernandes) Grievor - and - The Crown In RIght of Ontano (Mimstry of TransportatIOn) Employer BEFORE Nimal DIssanayake Vice-Chair FOR THE UNION RobIn Gordon Gnevance Officer Ontano PublIc ServIce Employees Umon FOR THE EMPLOYER Sunee1 Bahal Counsel Management Board Secretanat HEARING By wntten submIssIOns 2 DECISION The grlevor, Mr Jess Fernandes filed a grlevance on August 6, 2002 It states I grleve that management lS abusing its power and unfairly disciplining me by placing an unfair and inaccurate performance appraisal on my corporate file This lS contrary to article 2 (management rights) and article 2 (disciplining and dismissal) of the collective agreement The employer has taken the position inter alia, that the performance appraisal In question does not constitute discipline and that therefore the Board lacks jurisdiction to reVlew it for its fairness The unlon did not oppose the employer's motion and, without prejudice to any other position the unlon may take In any other matter, agreed that the instant grlevance does not ralse an arbitrable lssue No doubt the grlevor lS not happy with the contents of the performance appraisal However, that does not make the appraisal disciplinary There lS no suggestion that the grlevor has suffered any sanction or penalty as a result of the contents In the appraisal The employer lS entitled to glve guidance to an employee on performance lssues without engaglng In disciplinary action Every such action by the employer lS not subject to review by the Board for fairness An appraisal will 3 only be disciplinary, if it lS used to build up a record against the employee The employer has clearly taken the position here that the appraisal lS not disciplinary The employer lS bound by that Once the employer takes such a position, the grlevor has the assurance that the appraisal will not, and cannot be used as a disciplinary record In the future In other words, once the employer clearly states that the appraisal lS not disciplinary, then it lS not disciplinary See Re Bacchus, 911/88 (Watters) Having regard to the submissions of the respective parties and the foregoing reasons, the Board upholds the employer's motion that it lacks jurisdiction and that the grlevance lS inarbitrable Accordingly the grlevance is hereby dismissed Dated at Toronto this 210 day of January 2004 ~- . . ,.... , .. .. ... ... . . . , ~ . . . -, ~ .. Nlina". D~ .. . ~n" ~ -,,:,.::- - -_: <:;~... Vice~ so .. . .