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HomeMy WebLinkAbout1992-0518.Collins.93-10-20 r ) ~ (.. ( ./ ~-.,:;- ONTARIO EMPLOYES DE LA COURONNE . CROWN EMPLOYEES DE L'ONTARIO , ". "GRIEVANCE COMMISSION DE 1111 SETTLEMENT ' . REGLEMENT BOARD DES GRIEFS , 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO. M5G IZ8 TELEPHONEtTELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) M5G IZ8 FACSIMILE ITELECOPIE (416) 326- 1396 518/92 IN THE MAT~ER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT f \ Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Collins) Grievor ... and - The Crown in Right of Ontario (Ministry of Consumer & Commercial Relations) Employer BEFORE: 0 Gray Vice-Chairperson I Thomson Member M O'Toole Member FOR THE G. Leeb UNION Grievance Officer Ontario Public Service Emp~oyees Union FOR THE P Tbop EMPLOYER ' Employee Relations Officer Management Board Secretariat HEARI.NG December 1, 1992 April 22, 23, 1993 c .C;- r AWARD - The grievor was appomted to the probationary staff of the Office of the RegIstrar General In Thunder Bay on Apnl15, 1991 On or about March 27, 1992, she receIved. a letter dated from the Deputy Registrar General; Edward J ("Ted") Kelly, in whIch he said \ that I regret to mform you. that effectIve unmechately, you are bemg released from empioyment wIth the Office of the RegIStrar General, Y olir release IS for failure to meet "the requll'ements of the posItIOn and IS m accordance wIth sectIOn 22(5) of the Pubhc Service Act. She gneved. Shortly after concludmg a three day hearmg, on April 27, 1993 we Issued the foliowing deCIsion. I I, Havmg gIven careful consideratIon to the evidence and arguments of the partIes, we are satIsfied that this' grIevance should be allowed. We chrect that the employer reinstate the-gnevor to employment forthwIth and, further, that it compensate her for any loss she has suffered as a result of its "release" of her on March 27, 1992. We remain seised and, if the parties are unable to do so themselves, will determine the amount of compensatIOn or any other issue which may arise concerning the implementation of thIS award. Reasons for this award will be provided in- WrIting if one of the parties files a written request therefor wIth the RegIstrar of this Board wIthin 30 days df the date hereof. By letter dated May 27, 1993, counsel for the employer adVised the RegIstrar that he had J been mstructed to request'reasons for our decision. These are our reasons I The Facts The Office of the Registrar General moved from Toronto to Thunder Bay In eariy 1991 Few of Its staff moved with it. Quite a number of new employees had to be hIred. The MinIstry deCIded to couple an employment eqUity ImtIatIve wIth the move. It arranged wIth Employment and Immigration Canada ("CEIC") m Thunder Bay to provide 22 week -....- --" -- -- - --- ------"--=---=--"'"--=---: '--- ---- ~-- --~----- ~. --_..- --"- .- I -2- I long pre-employment trammg courses to two groups of 40 local "represent;:ttIves" of "disadvantaged groups", wIth the intent of hiring 25 from each group in the staffing of the new Thunder Bay office. The traimng of the first group began m the fall of 1990 and ended m March 1991 The grievor was one of those selected- for employment from the first group Ted Kelly became. Deputy RegIstrar General m mId November 1991 At that tlme the Office of the Attorney General was expenen~inga number of difficulties, not the least of ) which waS a growing and trouhlesome backlog of work. One of the things Mr Kelly dId after he arrived was ask managers to identlfy emplQyees who were having dIfficulty coping wIth the demands of employment, and define specifically what the difficulties were Managers responded WIth the names of 23 employees The gnevor's was one of them. Mr Kelly said that the grievor's team manager had Identlfied her as havmg difficulties with "attendance, punctualIty, perpetual lateness and a non-responsive attltude to ~ ~ounselling ;, Mr Kelly testIfied that he began reviewing these 23 cases m late January 1992 In early March or late February, he saId, he-accepted the "assessment of the managers" that, in the case of the grievor and two other employees, "the deficiency was not rectifiable m the short term." He added that "On revIew of the material there w~s no evi~ence of effort by the grievor to respond positively to the assessment conveyed to her' of her conduct being unacceptable. She was assessed as being difficult to dealt with, Inclined to become defensive and somewhat abusive [toward members of management] and inclined toward outburst to th~ extent that they found It difficult to cQunsel her" It was beta use. she ha~ not responded in any positive way, he said, that he had concluded that her service should not contmue He acknowledged that 17 other probationary employees with problems J mcludmg absenteeism and lateness were kept on and gIven counselling He said that the difference between them and thegrievor "was a question of degree and also the degree of effort made in response to the adVIsement process [sic] that had taken place" -, - - - "- -3- Mr Kelly did not know the gflevor He had no personal knowledge of any of the matters on which he relied in decldmg to "release" the grlevor, apart from havmg overheard "m passmg" what he described, without elaboration, as ~n "outburst" or "exchange"dunng a meeting others had with the grlevor m January 1992 OtherwIse, he relIed entirely on information from the grIevor's manager, Lenora OiDonnell, her former manager, Wilma Wiggms, l;md the then ASSIstant Deputy RegIstrar, Heather Adams. Of those three, only Ms O'Donnell was called as a WItness. Mr Kelly testIfied that he was shown documentary eVIdence of a senes of absences totalling 37 or 38 days, includmg 20 slCk leave days, a couple of leaves of absence, vacatIOn and bereavement leave He testified t.hat her team manager also showed hIm ((records" concerning the gflevor's punctualIty and the actIOns which had been taken to bnI1;~ the ((unacceptability" of her ('cbnduct" to the attention of the grievor He saId he had been told there was a meeting m OCtober 1991 at whIch the grievor was counselled WIth respect to punctuality and the way she dealt with absences. He said M~ Adams and Ms. O'Doilnell both told hrm that they both met with the grlevor on that occasion for the purpose of advising her that her ((attendance and punctualIty" were unaCc~ptable He noted that attendance 'and punctuality were also dealt with inthe gnevor's Performance Development and ReVIew .("PDR") In late 199:1. I Mr Kelly says he was told about another meeting Heather Adams had convened m January 1992 This IS the occasion on whIch h~ heard the unspecIfied (<outburst" or ((exchange" He was told that this meetmg concerned an alleged ('unauthonzed absence" in December 1991 when gnevor had been absent WIthout calling m. Apart from the matter of her not haVIng called In, he. understood that she was accused of having asked a co-worker to tell Ms O'Donnell (falsely) that the grIevor had called in that day and left a message Before Mr Kelly testified, durmg a break m earlIer testimony by Ms O'Donnell, the partIes agreed on the number, tImmg and nature of the OCcaSIOns on whIch the gflevor was '- - -- ~._- --- - ~- ------ -- - - --- ---_.._-~-~.- ---- -- - ~ -=....,-- -~ -- ---- ---- ----- --- ----~ ~- -~ I I , I I i -4- absent from work. During cross-examination, the unIon's representative put to Mr Kelly i . the parties' agreement that the 'grievor had been absent qn siCk leave. 13% days between April 15 and th~ end of 1991, hnd only 2Y2 days in the first three months of 1992 He mvited Mr Kelly to acknowledg~ that this was a dramatic improvement. Mr Kelly's only ! response was that those were riot the figures on whIch he had made his deciSIOn, which I were 15 sick days and 1 leave o~ absence day m 1991 and 4% sick days m 1992 ) I I t .I 4 I During his exammatIon-in-chlef, Mr Kelly observed that "m an ideal sItuatIOn we I would have preferred that the isspe [which led to her release] be addressed more formally and earlier in the course of her employment." During cross-exammatIOn, Mr Kelly ... acknowledged bo~h that the grietor had been given a merit increa.se in October 1991 and that a performance increase is rlormally awarded If the performance of the employee "in overall terms is satisfactory" IRe said he had learned that the approach taken by I management in this workplace, however, had been to treat the merit award as automatic and not related to performance. He also volunteered that the difficulties which were later I I reported to hIm "were not clea~ly and forcefully stated m the PDR" and that the PDR I document understated the problem later described to him. He saId that the explanation he was given for this inconsistehcy was that "the approach taken and direction gIven to I management at that time was to be careful not to make statements about performance that were not encouraging, becaUse of concerns about senSItivIty" and that "nobody who received a PDR received feedb:ack that theIr performance mIght have warranted - I everything was hedged because ot deSIre to bend over backwards to deal with thIS unIque I \ situation." 1 I Lenora O'Donnell was the JrIevor's team manager from the middle of August 1991 I onwards She managed a group! of 10 (later 9) employees who worked on amendments, I mamages or adoptions. The grievor was one of the 5 (later 4) employees m that group who worked on amendments. Each of them had hIS or her own files to work on. The task of I answerIng telephone calls or other correspondence about the status of amendment files was I t i "1 I 1 I -5- I I I shared among them m ways whi~h varied over time. Ms. O'Donnell had no.complamtabout the quahty of the grievor's work, nor dId anyone else I I I I I !. As we have already noted, iduring a break in Ms O'Donnell's testImony the partIes agreed on the number, timmg a~d nature of the grievors' absences. She was absent due to I sickness on the followmg days (~r half days) May 2,22 (half day), 27, 29, June 3,26,27, I July 9,26, September 16, 17, 2~, 24, October 29, 1991, February 4, 11 (half day), March ) I I 3, 1992 The employer does not dIspute the bona fides of her SIck day claIms for those days. \ She was also absent on August 19, August 26 (half day), October 21 (half day) and I I November 30 The parties agreed that these were "lieu days", that IS, time off to compensate for overtime work! for which the empl,oyer dId not WIsh to pay addItional compensation. An absence on qecember 12, 1991 (the subJect of the meetmg m January i 1992) was ultImately treated a~ a leave WIthout pay The grIevor was also granted leave I without pay for 2Y2 hours on December 30 to attend an appointment WIth her dentist. She \ was granted bereavement leave: for December 23 and 24, 1991, and for January 6, 1992 I ! I I I 'The grievor's normal hours of work were 845 a.m. to 5 00 p.m. These were changed m January 1992 to 8.30 a.m. to 4.~0 p.m. Ms O'Donnell testified about occaSIOns when the grIevor was late for work. She h~d noted the followmg in a notebook: i . i \ J October 25, 1991 - called ih at 9'11, "car was out of gas", came in at 10 45 October 28, 1991 - came in 10 minutes late October 29, 1991 - called dt 8.23, came m at 9'30 I I . ~ November 26, 1991- 15 m~nutes late ( January 1~, 1992 - came if at 10'00, no message week of January 21 to 28, 1~92 - came in at 9 10 one day I February 18, 1992 - calledl at 8 50, WIll be in 15 mmutes later ; i I I i ! I -6- i I I When employer counsel askea her about the "quantum" of the gnevor'sabsences, I - I Ms. O'Donnell testified that the grievor's latenesses were "for a longer period of time than I the average." I i i When asked, Ms O'Donnelll had no explanatIOn for havmg recorded that the gnevor '-' came in late on October 29, 19911 when (as the parties agreed) she was away sick that day I She still insI~ted that her notes were accurate. She acknowledged that she did not keep ! notes about the punctuality of every employee on her team. She said that when the grievor ! was late, she made up the miss~d tIme by (for example) working through her lunch hour, unless the lost time was so great that she sought a leave WIthout pay She saId that each time the grievor was late she ,told her that/ she expected her to be on time. She also mentioned punctuality and at~endance at team meetings, but these remarks were not directed at anyone person. I I i I The Ministry's province-wi~e policy at the relevant time was that I Probationary staff should have a PDR Plan prepared WIthin the first month of employment and reviewed huarterly Before the expIrY of the probationary period, supervisors should review perl'ormance carefully to determine iHhe employee meets the requirements of the positIo~s based on the previous quarterly PDRs, I \ I I The document which' records tlu~ polIcy notes that "the PDR cycle proVldes employees with timely feedback on theirperfor~ance." Ms. O'Donnell testified thatjsupervisors m the gri~vor's workplace were mstructed to conduct one PDR reView at 6 months She prepared one PDR document. The only date on it is J;anuary 12, 1992, the da~e the grievor signed It. Ms. O'Donnell testified that the document would have been prepared at the end of November or beginning of December I 1991 In it, she rated the grIeVOr as "fully competent" WIth respect to 11 of the 12 factors wluch are indIVIdually rated, these are the subject of positive written comments. The 12th I factor - attendance and punctuality - IS rated "needs Improvement", with the notation that "She has mISsed over 12 5 days and is frequently late. Because she is important to the i I j \ -7- I , tea.m this must improve." The overall ratmg Ms. O'Donnell assigned was "fully competent", and her concludmg (undated) co~ments were that "Suzanne does have the abIhty to do an excellent Job but must be punct~l and Improve her attendance She IS begmnmg to accept i \ more responsibilIty " "Punctuali~y" is one of 4 matters noted under the headmg "SkIlls to I be Developed Durmg Review Period." Ms. O'Donnell testified that thIs box is meant to I captlJ-re the skIlls to be develbped durmg the 6 months followmg the reVIew penod. Although the form provides are~s for an "ActIOn Plan" and other informatIOn concerning I "skills to be developed", those ateas were left blank. I , \ I I I , "Needs improvement" faUs, between "fully competent" and "unsatisfactory" in the rating scheme contemplated by, the PDR document. Ms. O'Donnell was asked in cross- examination why she had no~ rated the grIevor's punctuality and attendance as "unsatisfactory" She replied that: "we" (the other or others, If any, were not identified) had i .. spoken to the grievor in October 1991 about her absences and latenesses. Durmg that meeting the grievor had said! she would improve, Ms. O'Donnell testified, and her attendance and punctuality dI~ improve m October and November- "It was stIll not , , acceptable, but It was improved!" - i I I I I Ms. O'Donnell acknowledged I that her PDR meeting with the grIevor m late November or early December, a meeting wh~ch lasted about an-hour, was the only formal evaluation , meetmg she ever-held with the grIevor She saId that at that meetmg'she expressed her ! concerns about attendance m a pOSItive way' that it was up to the grIevor to be there, that I she was important. She did ~ot spell out for the grievor - then, or ever - what I consequences there might'be if attendance and lateness problems continued. She did not . 1. . tell the grievor - then, or ever + that she would or might be released if her attendance or punctuality did not improve. I I Ms O'Donnell testified that after Mr Kelly's arrival, all managers were asked to , supply Heather Adams with the rames of employees about whom they had any concerns i i ( I -8- Shesupphed thre~ names The gnevor's was one of them. She saId that the concerns she expressed about the gnevor were "attendance, latenes~ and some disruptIOns that\ had taken place." When the employer's- counsel asked what those dIsruptIOns were, th~ umon's \ representative Said heob]ectecl to reference to conduct whICh dId not form part of the stated reasons for release Employer counsel then wIthdrew the questIOn, and asked whether the dIsruptions were disruptions arising from an absence or absences. Ms O'Donnell said they were not, adding that although she had made other comments, attendance problems were the prImary concern she had expressed about the gnevor Ms O'Donnell dId not testify that the gnevor was dIfficult to deal wIth concerning attendance and punctuality She ,dId not testify that the grlevor had failed to respond positively to expressions of concern about her punctuality and attendance. Indeed, on Ms. O'Donnell's eVidence the grievor did improve after such concerns were raised WIth her, albeIt not as much as Ms. O'Donnell would have liked. The grievor is a siIlgle mother of two small children whose prior employment had been at low paymg jobs WIthout potentIal for advancement. She was delighted to be one of those t r selected by the Ministry from the pre-employment courses offered by CEIC Almost 4 months after ~he was hired, the grievor received the following letter dated August 6, 1991 from the then Deputy RegIstrar GeneraL Dear Suzanne, I would like to begm this note with a congratulations for the progress you have made and a thank you the assistance you have contributed in making our recent reorgamzatIon transitIon a smooth one, Early mdication shows that our new teams are pulling together wonderfully, and substantial inroads are being made toward ehminatmg our work back log, So thanks, Suzanne, and keep up the good work. Several managers have brought to my attentIon that Team Representatives are , concerned about the effect recent changes will have on their progression, pay-for knowledge, ete, My short answer is that the reorganization will have no effect on your progression WIthin the 0 R.G in the long run, Please be assured that this branch remams committed to the concepts of teamwork, genencjobs and multt-skilhng, Mter consultation with Human Resources Branch and our own Resources "- Committee, 0 R.G management has devised inmvidual performance plans for each Team Representative, According to your Team Manager, Wilma Wiggins, you are - -----_._----~ -9- currently learning Amendments. Access to subsequent areas withm 0 RG will (for all Team Reps) occur via the following methods/criteria. 1 Relative mastery over current area's skill set and knowledge base, 2, Opportunity for rotatIOn as determined by 0 RG operational requirements, 3 PerIpheral Teaming exposure to other areas through perIpheral contact eg SWAT team, Enquiries, D.RB. etc, Formal discussIOn of when rotation will be available to you WIll occur at your Performance Development Review (PDR) meeting, As you are aware, your current classification at 0 RG IS Office Admm 8 (traming underfill), Accordingly, your first merIt date and PDR IS scheduled for October 1, 1991 Attached is the PDR form to be used durmg that meetmg, Please review it and then return It to your Team Manager who will file it until your reVIew date, Feel free to keep a photocopy I hope thIS letter contams answers to at least some of your concernssurroundmg Performance Review at our branch, Once agam, thank you for your important efforts on the Amendments team, Please know that we depend on you every day I By the time she received this letter, the grievor had missed 8Yz days of work. There was no I mention of that in tills apparently congratulatory letter She received a merit increase in October 1991, by which tIme she had had four more sick days and at least 1% lieu days. The grievor testified that when she receIved the August 6th letter,and aga10 when she received her merit increase, she felt as though she was advancing, doing well. It was not put to her that she knew that the merit 10crease had been gIven to everyone without regard to merIt, nor was there evidence that she was told or by other means knew it. The grIevor says she met with Ms O'Donnell 10 late October or early November in connection with her PDR. She does not recall any separ~te meeting earlier in October concerning her attendance. Ms. O'Donnell expressed concern about her attendance and punctuality at this PDRlmeeting. The grievor testified that this was the first time anyone had spoken to her formally about thIS. The grIevor says that after these concerns were raised WIth her, felt she had been naIve about her job She told Ms. O'Donnell she would try to Improve, and testified that she did Improve thereafter Ms. O'Donnell did not set any \ particular targets for improvement, however, or warn her that there would be any particular consequences if she dId not improve. ~- "'" '- -10- The PDR document had not been prepared at the tIme of the PDR meetmg. The gnevor says she received It later, about two weeks before she sIgned It. When she received It, she noted the reference to attendance and punctualIty She took thIS as confirmatIOn of what had been dIscussed at the earher meetmg She says that Ms. O'Donnell dId not speak to her formally about attendance and punctuality agam after the PDR Il!eeting The grievor testified that most of her early absences were due either to her children ,.. bemg. sick or to medical treatment she reqUIred for injuries suffered m an automobIle accident which occurred in early 1991 She saId that on occasions when she was late she had told Ms. O'Donnell that she would make up the time and Ms. O'Donnell had agreed. She answered tend' when asked whether she had thought that she could come in late whenever she wanted as long as she made up the time. She said she understood later, when Ms. O'Donnell expressed concern (at the PDR meetmg), that lateness was not (Cok" even if she made up the time. She repeated that she had told Ms. O'Donnell that she would improve, and had improved. Concernmg her absence on bereavement leave January 6, 1992, the grlevor testified that she attended at work that day and told Ms. O'Donnell she would be away later for the funeral of her aunt, who had died the previous day Ms. O'Donnell then told her that she dId not have to be at work, that she could go home If she wanted. As a result, she dId go home. The umon's representative asked the grievor about her meetmg in January 1992 with r Heather Adams. The grievor saId she had understood that If she was unable to come to work she could not Just leave a message but had to speak to her manager dIrectly She had I tned to do that on December 12, 1991, but when she telephoned she found that she could not speak to either of the managers directly because they both had their telephones on VOIce mail. She had explamed this at the meeting m January, she saId, and had apologized for the iIiconvemence she had caused. She testified that at the end of that meeting Ms , -- -11- , Adains told her that the case was closed,. and that there would be .no documentation on her "corporate file" As we have already noted, a leave of absence without pay was approved for December 12, 1991. The gnevor testified that she dId not raise her voice at thIS meetmg with Ms. Adams, and that Ms. Adams had not warned her at that meeting about Improvmg her attendance record. Employer counsel cross-exammed the grievor extensively WIth respect to the January \ meetmg and the events which led to it. He put it to her that she had asked another employee to say that shJ had called in on December 12, 1991. He suggested that this had been discussed at the meeting in January 1992 He put it to her that Ms O'Donnell was not at the January meeting because she and Ms. O'Donnell had had "an exchange" about the absence of December 12, 1991. For the Illost part, her answers to these assertions were "I don't remember" Counsel did not challenge either the grievor's statement about how the January meetmg ended or her assertion that she was gIven no warmng at thIS meeting about Improving her attendance and punctuality Decision I Mr Kelly purported to release the grievor pursuant to subsection 22(5) of the Publ~c \ Sermce Act, which provides that ) 22(5), A deputy minister may release from employment any public servant durmg the fIrst year of his employment for failure to meet the requIrements ofhlS pOSItion, I The collective agreement in effect when thegrievor was hired provided for a one year probationary period. (This was changed to a 9 month perIod in the collective agreement whIch came into effect on January 1, 1992 Although it raIsed it at the outset, the union did not pursue an argument that that change affected the prmclples applIcable to our reVIew of the employer's action in March 1992 ) \ -12- In ReLeshe and The Crown Ln R~ght of Ontarw (Mimstry of Commumty and Soc~al Sermces) (1978), 22 L.A.C (2d) 126 (Adams), the majOrIty saId that this Board is of the opmion that the employer cannot camouflage either dIscIpline or the termmation of an employee for a reason other than the employee's failure to meet the requIrements of hIS position, as that phrase is explamed in the Square D Co. Ltd. case, by the guISe of a 'release' under SectIOn 22(5) of the Pubhc ServweAct, This Board therefore, has jUrisdIction to review a contested release to insure that it is what It purports to be, But in the adjudication of such a grievance, this board IS without jurisdiction to evaluate and weigh the reasons of the employer unless the Collective Agreement provides otherwISe, The Board must only be satisfied that the employer, m good froth, released the employe~ for a failure to meet the requIrements of his position. As long as the Board can be satisfied that the employer has made an evaluation of that ) kind, it has no JurisdictIOn to review the faIrness or correctness of that termination under Section 17(2)(c) [Now 18(2)(c) of the Crown Employees Collective Bargaimng Act] ! In Sh~ral~an, 0914/86 (Roberts), the Board stated that the termination of a Probationer must be reVIewed to determine 'whether the Employer reasonably and in good faIth exercised the authority m Section 22(5) of the PublIc Service Act to release [the probationer] and dId not seek merely to cloak a discIplmary dIscharge behmd the release procedure.' Re Clarke and Mimstry of Correctwnal Servu:es, GSB 443/82 (Swan) at p 2. See also, Re Abdulla and-Mimstryo{ Munic~pal Affairs (1986), GSB 1103/85 (VerIty), where ,the Board remstated an employee after findIng that her purported release was not based upon a reasonable and good faith assessment of her performance, We fmd that ~he same result must be reached in the present case. For a reasonable and good froth exercise of authOrIty to have occurred, there must have been a rational relationshIp between the observations made by management and the conclusion that was reached, It is not appropriate for management to leap to a conclusion that an employee has failed to meet the requirements of hIS or her position. J In Sheppard, 2492/86 (Slone), the Board made these observations about the "good faith", "reasonable" and "rational relationship" tests referred to in the earlier awards. I t can be .argued with some logical force that thIs Board does not sit as an appeal tribunal from the decision by a Deputy Minister to release a probationary employee for failure to meet the requirements of the position, We are not entitled to substit~te our assessment of the probatIOner's job performance for that of the Deputy Minister However, the jurisprudence of thIS Board entitles us to review certain aspects of the release, The conSIderatIOns fall WIthin three somewhat overlapping categories: -13- A. Lack of Good FaIth, If the Employer lacked good faIth m releasmg the probationary employee, then the ostensible "release" will be conSIdered actually to have been a msmIssal, whIch can be g:rieved under SectIOn 18(2)(c) of the Crown Employees Collective Bargmmng Act, Clearly the bad faith, If found, must be relatively senous, B. Unreasonable, While thIS term is utilized in the earlier deCISIOns we do not take it to mean that we can review the ments of the employee's job performance and reinstate him if we fmd that the assessment was "unreasonable" that the employee had not met the job requirements. Reasonableness m this context IS a speCies of good faIth, Whereas the phrase "bad faIth" could encompass a release improperly motivated or mahciously mtended, "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 fulfil 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, RationalRelationshin Between the Facts and the Release, ThIS factor IS nearly synonymous with "reasonableness" If the Employer's assessment that a certam set o( facts justifies release is "irratIOnaY' 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 "irratIOnaY' any thought process or decision WIth which one do~s not agree. I The Deputy Minister must be free to make decisions, without being found to have acted irratIOnally merely because a' Board of arbitration mIght have come to a different co!,clusion, In Sheppard, the deCIsion to release the grievor was based on "absenteeism." The - j grIevor had been absent due to an emotional CrIsis for 7 weeks durmg the first three months of his probationary perIod. Durmg the third quarter of lus probationary year he was absent a further 8 days, one day to attend a funeral and the balance due to an injury and an Illness unrelated to the cause ofthe initial absence. His performance wasevaltiated every three months. On each OccaSIOn he was admonished about his attendance record. HIS evaluation after 9 months of employment stated that if he did not estabhsh and maintain a satisfactory attendance level, his supervisor would recommend his release. His attendance thereafter was "perfect." The Board observed that absenteeism may be the baSIS for a release under subsectIOn 22(5) of the Publw Se.rmce Act. -14- [OIne of the requirements of any position IS that the employee can reasonably be expected to show up for work. An employee who mIsses too much work as a result of some chronic problem may be unsUItable for a permanent Job, no matter how likeable, talented or hard workmg that person mIght be. The Board nevertheless found that the decision to release the grievor was both irratIOnal and made m bad faith. It found the decIsIOn IrratIOnal because- '- there was absolutely no basis for Mr Dunlop [the decision maker) to conclude that the lengthy absence m May and June of 1986 mcreased the likelihood of future absenteeISm, All he knew was that the Grievor had been absent 24% of the trme, With all due respect to Mr Dunlop, who came across as a well meaning individual, he allowed himself to be seduced by a bare statistic, That statistic was of margmal relevance in the context of an employee whose attendance record for the immediately precedmg six months had been excellent. The question which he ought to have asked, either of himself or of the Grievor, was whether or not the Grievor could be expected to be relIable in terms of showmg up at work. The Board found an element of bad faIth because the decision to release failed to take into aCcount the grievor's improved atten,dance during the months following hIs last appraisal. In the Board's view, the warning to the grievor that release would be recommended if his attendance did not improve had carried with it a promise that release would not be recommended if attendance did Improve thereafter By failmg to assess whether rus attendance had improved thereafter, the employer reneged on that promise. In Nicholson, 1294/88 (Ratushny), the grievor had been released because of inappropnate conduct during the first rune months of his probatIOnary penod. He had been warned at the end of that period that he would be released If he dId not improve. There was no evidence of any shortcomI~g in ros work In the three months between that warning and the date of the letter releasmg him. The Board found that an employer could not be said to be actmg m good faIth If It released an employee m such CIrcumstances, noting that the threat of release if there is no improvement carries with it the implIcation that If there is improvement there will be no release. -15- ( In Ferraro, 373/84 (DelIsle), the decisIOn maker thought that the concerns whIch led to the release decIsion had been dIscussed with the grievor during the; probationary penod. The Board found that this was not so. The Board held that in those circumstances It could not be said that the grievor was released for faIlure to meet the requirements of hIS positIOn. We conclude that the grievor was not released for failure to meet the requIrements of the job smce he was never glVen an opportumty to meet the requrrements as h~ was never advised that he was failing to meet any nor counselled on how to rmprove, Good faith on the part of the employer demands that it hve up to its own Standing Orders which bespeak counselhng, coachmg and farrness of notIce of what IS required of the probationer Having regard to normal requirements of procedural fairness we cannot characterize the grIevor's termination as a release, ) One ofthe many troubling aspects of the employer's conduct and position in this case IS,lts insIStence, through its WItnesses and counsel, that all of the grievor's absences were 6 ~ relevant to and supported the deCISIon taken, even the absences on bereavement leave and time off m lIeu of pay for overtIme. It acknowledged that the Office of the Registrar General was not prepared to and did not gIVe employees addItional pay for overtIme work, so that time off in lieu was the only way employees were compensated for working beyond theIr regular hours That time off was thus time off to whICh they were entitled, as was time off on bereavement leave. There 18 an element of bad faith in weighing such absences agamst a probationary employee, particulary absences which have been encouraged by management, such as the gnevor's absence on January 6, 1992 In any event, the fact that an employee takes time off to which he or she is entitled cannot logically support a , conclUSIOn that the employee will not be reliable in his or her attendance There was some 1 suggestion in argument that the "lieu days" were relevant\because they had not been scheduled in advance, and were only so designated after the fact. This was not part of the parties' agreement about the grievor's absences, and there was no evidence about after-the- fact charactenzatlOn with respect to any absence other than the one on December 12, 1991. - ;. -16- Another troubhng aspect of the employer's conduct and posItIOn was the unexplamed dispanty between the number of days Mr Kelly thought the gnevor had been absent when he made his decISIOn and the smaller number agreed upon at the hearmg There was also Mr Kelly's failure to respond dIrectly to the umon representative's suggestion in cross- examinatIOn that the grievor's attendance had improved dramatIca:lly after the PDR meetmg m late 1991, except to dispute the attendance figures to which the parties had by then agreed. J There were also Mr Kelly's several references to allegations by others of mIsconduct I by the gnevor, allegatIOns unsupported by any dIrect evidence before us In the context of the other evidence and the failure to call Heather Adams, the repeated emergence of these references created a very strong suspicion that this was really a disciphnary dIscharge in the gUlse of a release. It was not that suspiCIOn which led us to allow the grIevance, j however It was the cumulahve effect of the absence or madequacy of evidence to support the various premises on which Mr Kelly claimed to have based his decision. We have already noted that Mr Kelly made his decision on the basIs of mcorrect information about the grievor's attendance record. Mr Kelly dId not say that he released the grIevor Just on the basIs of.a record (apparently exaggerated) of her absences and latenesses, however He said he released her because she had failed to respond to counselhng and had a bad attItude. He accepted the "assessment ofthe managers" that her "deficienCIes" were "not rectifiable in the short term." On the gnevor's eVIdence, management raIsed concerns about her attendance and 'punctuahty in only one formal meetmg: a PDR meeting m late October or e~rly November 1991 On Ms. O'Donnell's eVIdence It was addressed m two formal meetmgs: first in a meetmg m October and then in the PDR meeting, which she says was in late November or \ J early December If there were two separate meetmgs, they were close enough in time that the comments m the second meeting would have seemed a repetitIOn of the first, rather I ~ I 0 -17- than a fresh complamt about lack of progress smce the first. The PDR document purports to speak to the perIOd up to October 1991- that IS, the perIod prIOr to the PDR meeting. The grIevor understood, qUite, reasonably, that the PDR document covered the same ground as the PDR meeting That document could not faIrly be seen as a fresh complaint about inadequate response to the earlIer counselling It was not apparent whether Mr Kelly thought that the grievor was counselled about attendance and punctuality at the meeting in January 1992 We accept the grIevor's uncontradIcted testimony that she was not. \ The grIevor was spoken to formally about absences and latenesses whICh OCCUlTed m the period up to October or November 1991 She was told her attendance and punctualIty needed improvement. She said she would Improve. She did Improve, as Ms O'Donnell acknowledged. Mr Kelly was -apparently oblIvIOUS to that when he made his decision. Ifth~ grievor's acknowledged improvement was insufficient, one would think it would have been r~;used as a dIstmct concern at the meetmg m january 1992 There is no eVIdence that it was raised then or later If further Improvement was a requirement of the position, then it was a requirement which was not clearly communIcated to the grievor A decision to release an employee for failure to meet an alleged reqUIrement of a position cannot be reasonable or in good faith under sectIOn 22(5) if the employee has not been told of the requirement, coUnselled that she has not met it or been 'meetmg It and warned that she may be released if that ~eficiency is not remedied. The employer argued that the pre-employment course would have taught the grievor that punctualIty and regular attendance were Important, and that this made It unnecessary for it to tell her so. The only eVIdentiary baSIS for tlus was the testimony of the Ministry employee wq.o designed the course. He did not see it delivered. The only WItness to that was the grievor, who had no particular recollectIOn of the course content on this subject. In any event, pre-employment instruction that attendance and punctuality are .. -' -18- \ important IS, at best, only a substitute for the employer's gIving the same instruction at the tIme of hiring The employer's conduct after the hiring -'- its response to the attendance and punctuahty of the employee ,and other~ around her - mstructs the employee as to the CIrcumstances IIi which and extent to whIch departure from an earher counsel of perfectIOn will be tolerated. If the employer conscIOusly adopts and conspicuously applies a very tolerant standard during the first few months of employment, as the employer did wIth the grIevor, It cannot rely on pre-employment mstructIons to JustIfy a shIft wIthout warmng to a more demandmg standard. Mr Kelly was misinformed about the grIevor's attendance and punctuahty, and mIsinformed about whether her attendance and punctuality had Improved in response to counselhng. In addItion, he acted in the belief that the grievor was "difficult to deal with, mclined to become defensive and somewhat abusIve [toward members of management] and Inclined toward outburst to the extent that they found It dIfficult to counsel her" He said this was the assessment of the grievor's managers. Beyond the reference to "the managers," he dId not say who made the assessments. When she testified as the employer's first wItness, Ms. O'Donnell did not express any opmion about the grIevor's attItude or receptivity to counselling, beyonq. what might be inferred from her observations about the grIevor's having improved after she was spoken to. By the time Mr Kelly imphed that Ms. O'Donnell had expressed such opmIOns to rum, the opportumty to cross-examine her about the basis of them was gone. There was no testimony from anyone else who might have been an author of one of the assessments on which Mr Kelly says he relied in this regard. The-alleged factual basis for those assessments was not identIfied. Ms. O'Donnell's vague reference to disruptions and Mr Kelly's vague reference to havmg overheard an "outburst" or "exchange" were insufficient support for such assessments, and there was no other eVIdence led to support them. We were called upon to assess whether the deCIsion to release th.e grievor was made reasonably and in good faith. The focus of such an assessment must be on the entire (, a. , , -19- process by which the decisIon was made, not Just the thll1kll1g of the person who ultimately took responsibilIty for the decisIOn and lent hIS name to It. It IS not enough that a decIsIOn be a reasonable response to reports on whIch that deCIder chose to rely, If it turns out that the reports were substantially ll1accurate. It is not enough that a ~elease decIsIon be a reasonable response to subordmates' opimons on which the decider IS prepared to rely, If the opmIons have no demonstrable basIs in fact. Our assessment ofMr Kelly's decision was made, as it had to be, agamst the evidence before us. On that eVIdence, a decIsIOn that the gnevor had failed to meet the requirements of her positIOn was not reasonable. There bell1g no other suggested basIs on which terminatIOn of the grievor's employment could be sustamed, the gnevor was entitled to reinstatement wIth compensatIOn. Dated at Toronto this 20th day of December, 1993 /' ) . // / / ~ f ( ~/..( . ./, ---' / ! ~"'~/ -< ).:-~ \, _ : /) /<' ~;:/ ._._. J/-:/' ' '---_./ / Owen V Gray, Vice-ChaIr / / ( ~.'T 7Tl. '1 o'~aA. M. O'Toole, Member