HomeMy WebLinkAbout1976-0013.Gordon.76-08-13. . Ontario 13/76
CROWN EMPLOYEES
GRIEVANCE SETTLEMENT
BOAR0
416/965/1410 Queen’s Park
Toronto. Ontario
M7.4 1z5
IN THE,MATTER OF AN ARBITRATION
Under The
CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Mr. W. D. Gordon
And
The Ministry of Transportation
and Communications
(Grievor~)
(Employer)
Before:
For the Grievor:
For the Employer:
Hearing: Westbury Hotel, Toronto, Ontario, April 8, 1976
D. M. Beatty Chairman
Mrs. Mary Gibb Member
S. R. Hennessy Member
George Richards-Ontario Public Service Employees Union
N. H. Pettifor - Staff Relations Supervisor
Personnel Branch, Ministry of
Transportation and Communications
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In the grievance he has brought before this Board, Mr. W. 0. Gordon,
who was employed by the Ministry on its probationary staff, as a Technician 2,
Survey, claims that he was improperly terminated from his employment on
February 10, 1976. At the outset of the hearing the employer directed our
attention to article 30.6.1 of a collective agreement dated March 12, 1976
which purported to be retroactive to January 28, 1976 and asserted that by
virtue of that provision neither Mr. Gordon had the right to file nor this
Board the jurisdiction to entertain this grievance. The article provides:
Any probationary employee who is dismissed or
released shall not be entitled to file a grievance.
In raising this preliminary objection however, the employer apparently was
not aware of our earlier remarks in Re Eriksen as to the manner in which
such matters~ should be raised before this Board. And accordingly, rather than
bifurcate the hearing and issue an interim award on the preliminary question,
this Board reserved its ruling on that issue and required the parties to
adduce evidence and present argument with respect to the merits of the
grievor's complaint. However, because of the complexity and fundamental nature
of the Ministry's objection to our jurisdiction, it was agreed that the parties
would submit additional written argument on the jurisdictional question prior
to our rendering a decision on it.
In the interim and before receiving.the parties' written submissions
on this matter, another panel of this Board had occasion to again consider, in
a separate grievance, the same preliminary objection that was raised by the
employer in this case. In that case, Re Joyce 21/76, after a prolonged and
careful consideration of the matter, that panel came to the conclusion that
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article 30.6.1 did not and could not affect the right of probationary employees
a to challenge their terminations before this Board. That award we believe to
be an exhaustive and careful consideration of all of the arguments raised by
this employer to support its allegation and as well of several additional con-
tentions that were not raised in the particular grievance before us. Because
that decision is simply too long to set out in detail in this award, and
rather thanexcerptonly portions of it, we would adopt in toto the reasoning
expressed in it as the basis on which we would deny the employer's objection
to our jurisdiction in the grievance before us. Accordingly we are appending
a copy of that award to this decision and it may be considered by the parties,
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as forming party of the present award. Moreover, and because we believe that
the reasoning that is set out in the Re Joyce award is sufficient to clothe
this Board with jurisdiction to hear the merits of Mr. Gordon's complaint, we
do not feel it necessary to pass on or consider certain additional arguments
raised by the Union with respect to the applicability of article 30.6.1 to the
circumstances of this particular case, Very simply, the reasoning that is set
out in the Re Joyce award renders superfluousall of the other arguments with
respect to the temporal and descriptive scope of article 30.6.1 as it might
apply to the circumstances of Mr. Gordon's particular grievance.
However and before turning to the merits of Mr. Gordon's grievance
0 we think it advisable tocommenton two matters which we believe are relevant
not only to the circumstances of this grievance, but as well to the future
relationship of the parties. In the first place and with respect to the proc-
edure by whichchallenges to this Board's jurisdiction should be made, we would
refer the parties to our remarks in our earlier decision of Re Eriksen 12/75
wherein we stated:
After receiving the submissions of the respective
parties with regard to this preliminary issue concern-
ing our jurisction, this Board adjourned to consider
..- whether we should either reserve on this preliminary
issue and proceed to hear the merits of the case or,
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alternatively, whether we should adjourn our hearing
at the conclusion of the arguments.on this jurisdictional
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matter and issue a written interim award as to our
jurisdiction to hear the merits of this grievance.
In the latter case, necessarily, this Board would only
then be required to reconvene to hear the merits of
the case if we were to conclude that we were properly
seized of this matter. In the course of our deliber-
ations as to whether or not we should, as the employer
requested, bifurcate the hearing and issue an interim
award on the jurisdictional issue, this Board came to
the conclusion, for the reasons that follow, that we
did have jurisdiction to hear the merits of Mr. Rriksen's
grievance. Accordingly, in the circumstances of this
case, there was no need for us to issue a formal
ruling as to the appropriate procedure this Board should
follow when confronted with a challenge as to our jurisd-
iction to hear the merits of a grievance and with a
request that we adjourn the hearing pending the release
of an interim award with respect to that issue of arbit-
rability.
However for the future reference of the parties
we think it advisable for us to outline the procedure we
expect to follow in future cases when similar issues
of arbitrability and jurisdiction are raised. In the
first place, it should be noted that the issue of the
proper procedure to be followed in such circumstances
has been considered by arbitrators with son&frequency
the private sector. Further, a review of these awards
reveals that although historically there has been some
division of arbitral opinion, many arbitrators have
taken the view that, when faced with a challenge to its
jurisdiction, boards of arbitration should'adjourn the
hearing at the close of arguments presented with respect
to the jurisdictional,issue and only if it determines,
in a written interim award, that it has jurisdiction
should it reconvene to hear the merits of the case.
Re: Ottawa Newspaper Guild, Local 205 and Ottawa Citizen
(1965). 16 L.A.C. 147 (Reville); Re: united Steelworkers
of America and Construction Products Inc., Canadian
Division (19?0), 22 L.A.C. 125 (Brown). The rationale
supporting such a procedure is manifested in the following
passage:
"lt is true that many distinguished arbitrators, who are
entitled to the greatest respect, have adopted a contrary
course. Thus, despite a preliminary objection as to
arbitrability, these arbitrators have considered grievances
on their merits, only to rule that the grievance is
otherwise inarbitrable. This course of action is open to
objection on several grounds. If, of course, the grievance
is untenable on its merits, then it hardly matters whether
the arbitrator has held the grievance to be inarbitrable
or not. If, on the other hand, the grievance is meritorious
on it merits and is dismissed because the arbitrator
reluctantly comes to the conclusion that he has no juris-
diction to entertain it, then the griever's hopes are
alternately fired and extinguished in the same document.
There is, of course, a third alternative equally unpalatable,
in which the arbitrator finds that he has' jurisdiction to
en~tertain the grievance and allows it, only to be overruled
on a motion by way of certiorari, in which case the
successful griever is then frustrated by the action of
the Courts,which leaves the latter open to the familiar
jibe that they are not qualified to deal with labour-
management relations.
For all these reasons, the board prefers to rest its
decision on the grounds of jurisdiction and, if it is
wrong in its findings, then the matter can be put
right on a motion by way of certiorari without the
respective positions of the parties being jeopardiaed
or prejudiced by its obiter dicta."
RE OTTAWA NEWSPAPER GUILD, LOCAL 205, AND OTTAWA CITIZEN (supra)
However, in later awards other arbitrators have begun
to question the rationale, need and utility of bifurcating
a hearing in such a manner. As stated in one of the
awards:
"These later awards appear to be much more sensitive to
the ramifications of so dividing the hearing. They note
such a bifurcation could in some instances operate to
the prejudice of one of the parties and necessarily in
all cases will result in further delay in the resolution
.of the real issue between the parties: Re Int'l Union
of Electrical Workers, Local 549, and Sylvania Electric
(Canada) Ltd. '(19721, 24 L.A.C. 361 (Simmons); Re Hiram
Walker'and Sons Ltd. and Distillery Workers, Local 61
(1973) 3 L.A.C. i2dJ 203 (Adams). In that latter ,
award Professor Adams considered the premises underlying
historical approach taken by arbitrators to this issue
and finding them wanting, offered specific guidelines
that arbitrators should consider before acceding to such
a request to split the hearing. He stated (at pp. 205-6);
"Arbitration hearings, in themselves, quite apart
from the outcome, can be quite therapeutic in the
sense of "speaking ones mind" and "revealing the facts".
Furthermore, it may be more frustrating for a griever
to be denied this'&perience" and forced to listen to
a very technical presentation on the issue of arbitra:
bility. Thirdly, many issues of arbitrability cannot
be resolved without considering the merits (this cbserv-
ation has become very relevant to the case at hand).
For these reasons, I find both Ottawa Citizen, supra,
and Construction Products Inc., supra, insufficient
justification for elongating the period between the
conduct. grieved and final resolution.
One important- function od arbitration is to
supply “speedy relief" to the parties, and this function
should not be overridden by mere speculation, in fact, it
is common knowledge that this speculation is not the
reason why ,a party will ask for a separate hearing on the
x~%e of arbitrability. Parties normally make this
request in order that the hearing take on a structure
that will insure that the arbitrator does not let the
merits of the grievance affect his decision on its
arbitrability - and there is nothing improper in
this motivation. Arbitrators are only human and can
be affected by the merits of a grievance in
dealing with a technical argument concerning the
availability of relief. An arbitrator's approach
to the issue of arbitrability may, therefore, be
little more than a "sham" and this affects the
integrity of the entire process. Consequently, if
a bifurcation of the hearing will strengthen the
integrity of the arbitral process without unduly
impinging upon its function of providing "speedy
relief", requests that this be done should be given
serious considera,tion. But, they should not be
acceded to unless:
(1) the party requesting the adjournment made
this fact known to the other party before the
hearing date to enable the other party an
opportunity to refrain from having his witnesses
in attendance:
(2) the merits appear to be severable from the'issue
of arbitrability;
[3) the delay will not seriously affect the avail-
ability of witnesses; and
(4) no other serious prejudicial effect, uncompensable
by money, will be experienced."
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RE FABRICATED METALS AND STAMPING LTD. AND UNITED AUTOMOBILE
WORKERS, 'LOCAL 222(1975), 9 L.A.C. (Zd) (Beatty)
Although, as noted, because of our determination as to our
jurisdiction to hear the merits of the grievance before us,
we did not have to determine whether we should bifurcate
the hearing, in fUture cases , unless exceptional circumst-
ances prevail, we would expect to conform to the procedure
outlined by Professor Adams in the passage quoted above.
Rep Eriksen E/75 G.S.B. (PP.7-10)
Secondly, although we have determined that this Board must, for
the reasons set out in the Re Joyce 21/76 decision, take jurisdiction of
Mr. Gordon's grievance on its merits, it must not be assumed that in so
doing, this Board intends to review the termination of Mr. Gordon on the
same basis and against the same standards as we otherwise would had he been
a seniority rated or regular employee. Rather, as we stated at the conc-
lusion of the Re Joyce decision:
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However, and as arbitrators in the private sector and as
this Board itself has recognized, we must again caution the parties
that in seizing jurisdiction over the termination - be it a release
or a dismissal - of a probationary 'employee' we do not and will not
exercise the full appellate review that would ordinarily be exercised
in the case of an employee who has completed their probationary period.
To put the matter in the language of s.17(2) of the Act the standard
of 'just cause' that is imposed by statute, must, if the probationary
period is to have any meaning, be different in the case of a
'probationary' employee than it is in the case of a 'regular' employee.
More specifically we would remind the parties, as we indicated in our
earlier Re Eriksen award (pp.20-23) that:
Finally and in asserting our jurisdiction over grievances
brought by probationary employees, whether terminated under s.22(5)
or s.22(3) of.The'Public Service Act, it is essential that our
determination on this jurisdictional issue not be confused with
the grounds on which probationary employees who have less than one
year's continuous employment may be terminated under either s.22(3)
or s.22/5) nor with the standard of review that this Board will
assert over the termination of such employees. The two are completely
distinct and severable issues. Having articulated the grounds on
which we have assumed jurisdiction over the termination of employees
who have less than one year's continuous service, it remains only
then to describe the substantive grounds on which such employees
who are probationers may be terminated whether under s.22(3) or
.5.22(5). In the first place it was we believe, beyond dispute
land the parties were agreed on this) that the grounds on which a
probationary employee may be dismissed (and necessarily released)
under either s.22(3) or s.22(5) must be different than those which
would support the dismissal of one who has Passed through his or
her probationary period. The rationale for such a distinction
necessarily is founded in the character and purpose of the pro-
bationary period. That probationary period, is to use the words of
another board of arbitration designed to recognize
. ..the legitimate interests of the employer in
attempting to secure the most competent, com-
patible and suitable work force it can acquire.
One cannot reasonably expect an employer to be
able to assess the full capabilities and po-
tentiality of a job applicant from a brief inter-
view, an application form, references and the like.
Rather he must be entitled to an opportunity to
view the new hire in the particular context of
his own work environment. That is the sole purpose
of the probationary period. It is, as we have said,
a legitimate purpose.
Re Porcupine Area Ambulance'Service and'C:U.P.E.
Local 1484 (19?4), 7 L.A.C. (2) 182 (Beatty)
8.
However in recognizing the valid concerns of an employer to be able to
select the most able, proficient and congenial work force we would not
+ubscribe to the notion that the employer has completely unfettered
right to terminate the services of a probationer at will. To the con-
trary and again to advert to the decision in'Re‘Porcupine Area
Ambulance Service, (supra) we believe:
. ..that in any case involving the discharge of a
probationary employee the employer must not
only prove the acts complained of which pre-
cipitated the discharge, but in addition he
must demonstrate that this reasonably supports
his conclusion that the discharge was ap-
propriate. Were it otherwise an employer
might well be justified in asserting that a
probationary employee who was late on one oc-
casion (with or without justifiable excuse)
had fallen below the standards of punctuality
thereby demonstrating his unsuitability as a
future employee. In short, the employer must
not only prove the facts upon which he based
his action, but in addition that the em-
ployee's conduct demonstrates that it is
reasonable to conclude such an employee will
likely prove unsuitable as a seniority-rated
employee. This will necessarily entail a
board of arbitration assessing both the
reasonableness of the standards imposed by
the company against which the employee's
conduct is to be measured, as well as the
conclusion that the conduct complained of
reasonably supports the conclusion that the
probationary employee is likely to prove
unsuitable.
However and as the same board cautioned:
One should add that in our view this review
by a board of arbitration should not take on the
nature of an appeal es to the correctness of the
company's prognostication as to the future
prospects of the probationary employee. We have
already stated that some of the legitimate
concerns of an employer in assessing the future
employment relationship of a new employee, viz.
his character, compatibility, potentiality
for advancement and general suitability are
necessarily vague. Further the judgment of
the company is necessarily in the nature of a
prognostication. Arbitrators should therefore
be reluctant to interfere with that prognosis
unless it is plain that the employer's assessment
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0 or standards are palpably unreasonable.
However, should the employer fail to es-
tablish any basis for the termination of
the probationary employee, or should it
be demonstrated that his assessment or
the standards against which the assessment
is made are unreasonable, boards of arbi-
tration must not sanction such disciplinary
action simply on the basis that it was in-
voked against a probationary employee. In
sum we would assert that although the proper
basis for discharge of a probationary em-
ployee may be somewhat broader than that
justifying the termination of a seniority-
rated employee, and although the standards
of review by boards of arbitration will be
somewhat less rigorous, nevertheless the
employer must affirmatively establish that l his termination of a probationary employee
was reasonable in the circumstances.
Implicit in these remarks is the recognitions, particularly
with respect to a "release" effected under s.22(5) of'The'Public
Service Act, that although the employer is entitled and indeed has a
legitimate interest in assessing the overall suitability of persons
who seek to join its permanent staff, the probationary employee is
entitled to a fair and proper assessment. Such an assessment neces-
arily assumes the probationer will be given a sufficient period
of time 'to demonstrate his proficiency and capability, that his
duties and responsibilities have been clearly articulated to him,
that reasonable standards of behaviour and performance are ex-
pected of him, that his progress is systematically reviewed and,
not insignificantly. that the employer has made reasonable efforts
to coach, instruct and inform the employee throughout the probationary
period. Such principles, fundamental to a probationary period in any
sector of employment, are even more fundamental in the public service,
0 where the probationary period is usually a longer and more prolonged
duration.
We would only add, that this standard of review, at least insofar
as it reflects the reasoning set out in the Re Porcupine Area
Ambulance~Service award cited therein, has, since our Re'Eriksen
award, generally been approved by mother arbitrators as properly
.describing the,,nature and scope of the arbitral function in such
cases. See Re Central Canada Potash Co. Ltd. (1975) 10 L.A.C. (2d)
29 (Norman) ; Re Shasta Beverages Ltd. (1975) 9 L.A.C. (2d) 117
(Fraser) and Re Board of Education for the City of Windsor (1975)
10 L.A.C. (2dJ 165 WrugerJ.
It is then against that standard that we will assess the merits of Mr.
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l Gordon's and indeed all other probationary employees' grievances
in the future which challenge the validity of their terminations.
Turning then to the merits of this grievance, it was
the position of the employer that Mr. Gordon was dismissed under
s.22(3) of The Public Service Act because his"leve1 of performance
and big attitude have not been up to the standard expected by
this Ministry". To substantiate that claim, the Ministry adduced
in evidence, through Mr. G. S. Rideout, who as the Party Chief
for the crew on which Mr. Gordon was employed was his immediate
0 supervisor, and through Mr. H. Guise who was the Project
Supervisor for the project on which Mr. Gordon worked, five
performance evaluations which were prepared by them. Apart
from the first report, which was prepared while
Mr. Gordon was employed on the'unclassified
staff immediately prior to his
commencing his probationary period, each
of these performance reports makes reference to one common problem
that Messrs. Rideout and Guise perceived with his work performance.
l Specifically and as they elaborated in their evidence before this
Board, it appears that, although employed and classified as a
Technician 2, Survey, Mr. Gordon's real interests lay in the field
of inspection work. Indeed Mr. Guise testified and the grievor
confirmed that the latter had advised him that he regarded his
present position. as simply a "stop-gap" job and that his real
interest lay in securing a position in the Ministry in the field
of inspection work.
According to the evidence of Messrs. Guise and Rideout,
l and indeed as is reflected in their performance evaluations of the
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a grievor, this apparent lack of interest in his classified position
affected not only his attitude and motivation toward his work but to some extent
as well it detracted from the'quality of it. Thus, and as evidenced
in his first appraisal on June 2, 1975, Mr. Guise noted that the
quality of his technical work was in need of improvement. Though
described in the report as a; deficiency with respect to the quality
of the griever's work, from the second appraisal in September 1975,
where it is stated that the griever's "motivation" is "improving"
and from the evidence that Mr. Guise and Mr. Rideout gave to this
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Board, it is apparent that the real source of the employer's complaint
in the initial report related, in part at least, to the griever's
apparent lack of interest in both the clerical and technical (survey)
aspects of the position in which he was classified. That this was
ultimately the root source of the employer's,concern is also
manifested ih the latter two evaluations, prepared in October and
December where, in the section pertaining to comments and recom-
mendations, the deficiencies in the grievor's attitude and motivation
with respect to the particular duties noted above are again referred
Without delineating in specific detail all of the particular
0 to* complaints of Messrs. Rideout and Guise, it is sufficient for the
purposes of this award to note that according to them, Mr. Gordon's
apparent lack of motivation and his ambivalent attitude towards
certain aspects of his work caused him to avoid that type of work
whenever he could, to respond to the requests of other supervisors
who were not responsible for him to assist them on various aspects
of inspection work to the neglect of the work they had assigned, and
generally to perform at a level which while not completely unaccept-
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0 able, left them with the impression that he often did just
enough work to enable him to "just get by". That is and
while they conceded that the grievor's attitude and motivation
could and often did fluctuate, it was their opinion that Mr. Gordon
generally performed at a level just sufficient to meet the minimum
requirements of his job while apparently waiting and hoping for a
vacancy to arise in the field of inspection work. Although, and
apart from the matters described above, the employer also made
reference to certain other aspects of the grievor's work performance
a which caused them some concern, as for example in his refusing on
one occasion to accept a transfer to a different job site, we do
not believe, such matters were either of a primary concern to
the employer or indeed, in the circumstances of that particular
example, that any negative conclusions could properly be drawn from
his behaviour. Rather, in our view, the cause for and the propriety
of the Ministry's termination of Mr. Gordon fails to be determined
on the evidence and evaluations described above.
For his part the grievor did not challenge in any
l way the fact that the employer had, as the performance reports
reflect, expressed concern over and discussed the matters described
therein with him. To the contrary, Mr. Gordon signed each of these
reports and on those occasions when he disagreed with their substance, he
registered his dissent to them. Nor did Mr. Gordon attempt to
dispute their claim that he was less interested in the clerical
and certain aspects of the technical work associated with his job
than he was in inspection work and that he did take advantage of
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a every opportunity to participate in that work when such assignments
were requested of and offered to him. Rather, and apart from
disputing their conclusions as to how his interest in the inspection
work affected the performance of his assigned duties, the thrust of
Mr. Gordon's evidence was to the effect that many of the employer's
allegations and conclusions could be attributed to a personality
problem that he had experienced with Mr. Rideout. Specifically it
was his evidence that because he was not perhaps as assertive or
aggressive as some other persons on his crew that he and Mr. Rideoutmay not
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have been particularly compatible in a work relationship. Indeed it was his view
that the latter may have improperly interpreted his reticent
personality as evidence of a lack of interest in his job. In short,
it was the grievor's opinion that apart from his difficulties with
Mr. Rideout, he had in fact discharged his duties in an acceptabte-
and responsible manner and had,he felt,demonstrated the necessary
qualities to be placed on the regular staff.
It is essentially, against that evidence that we must
assess the propriety of the Ministry's termination of Mr. Gordon.
a
However and before doing so, two other matters must initially be
settled. In the first place and with reference to the issue,
raised at the hearing as to allocation of the burden of proof in
the termination of a probationary employee, we would direct the
parties' attention to our earlier comments in the'Re Eriksen
award, where this Board stated its position in these terms:
Following from our decision to seize jurisdiction in
ca.ses such es these an issue may also arise as to the proper order
of proceeding end the burden of proof that must be discharged. It
is now beyond dispute that in matters of discipline and discharge
alike, arbitrators have asserted that the employer bears the onu.s
of proving it bed just cause for the action it took, and except
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when such issues as the employment status, or the fact of termination
etc. are in dispute, would be required to~~lead its evidence first to
substantiate the sanction it imposed. ‘.'Re,United~Steelwcrkers and
International Nickel'Co. 'of Canada Ltd. (1969). 20 L.A.c. 5 (H.D.B~ow~).
This general consensus of arbitral opinion has been generated by the
widespread feeling that because of the potential gravity inherent in
the resolution of such grievances and because the employer initiated
the termination and accordingly alone knows the reasons for the
action it took, it should be obliged to assume the onus of justifying
its conduct. Similarly, in cases where an employer terminates an
employee under s.22(5) for failing to meet the requirements of his
position, it would seem to this Board that the same pragmatic
considerations would dictate that the employer carry the onus of
proving that in fact the qrievor was unable to meet those standards.
That such a standard is also applied by arbitrators in the private
sector in "non disciplinary" dismissals, confirms us in our view
that there is neither any,loqic..nor.rationale which would support
any other rule. ore ~Atlas'Steel 'Co. and Canadi-an 'Steelworkers Union
(1975) 8 L.A.C. (2d) 350 (Weatherill).
Re Eriksen 12/75 G.S.B.(PP. 19-20)
In the second place we must re-emphasize, as we stated
in the initial portion of this award, that we can not and, will not
review and test the termination of a person such as Mr. Gordon in
the same fashion as we would in the case of a person who had been
appointed to the regular staff. To do so would as we noted in our
Eriksen award,render meaningless the concept of the probationary
period as a time during which the employer must be allowed to assess
the character, compatibility, general suitability, motivation, and
a potentiality for advancement of a prospective member of its
regular staff. Accordingly in grievances of this kind rather than
sit in appeal on the merits of an employer's decision as to the
future employment prospects of a probationary employee, this Board
must concern itself only with ensuring that the criteria utilized
by the employer in reaching its judgement and the application of
those standards provided a fair and reasonable assessment of the
employee's capabilities and reasonably support the conclusions
that were drawn therefrom. Moreover, as we expressly cautioned
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0 in our Re Eriksen award, because, of necessity, the judgement of the
employer in such matters is in the nature of a prognostication and
is often, as in the present case, drawn against relatively intangible
qualities, we must therefore:
be reluctant to interfere with its prognosis
unless it is plain that the employer's as.ses.s-
ment of standards .are~~palpably unreasonable.
Re,Porcupine'AArea.'Ambu~ance Service (supra)
Nor do we believe that because Mr. Gordon may have
been employed on the unclassified staff for some nine months im-
mediately prior to his appointment on February lb, 1975 to the
l "probationary staff of the classified service", that it can be argued
that his termination is not to be assessed on the standards described
above. To the contrary, while it may be true, as the Union argued
that his period of service as a "Crown employee" on the unclassified
staff together with his service on the probationary staff of the
classified service might well have precluded the Deputy Minister
from effecting his "release" under s.22(5) of The Public Service
Act, nevertheless it is a matter of record and the fact remains -
that he was still a probationer within the meaning of s.6(2) of the
a Act at the time of his termination. Moreover, and as the first
performance report itself reveals, it was only during that probationary
year and not the period of time that Mr. Gordon was employed in the
unclassified service that the employer directed its mind to deter-
mining whether Mr. Gordon met the requirements it expected of its
regular staff. Accordingly it must follow, if one is to give effect
to the underlying premise of and rationale for a probationary period
that the termination of Mr. Gordon must be tested against the standards
a
0 we have earlier articulated in ourRe'5riksen 12/75 award.
Applied to the circumstances of this particular grievance,
we do not believe that there is sufficient evidence before us which
would warrant the conclusion that the employer's decision to terminate
Mr. Gordon was unreasonable. In the first place it simply can not
be and indeed was not argued that the standards and criteria utilized
by the employer to assess Mr. Gordon's work performance and future
employment prospects were in any sense improper or unreasonable. To
the contrary we believe that an employer may, as this Ministry did,
l take note of an employee's apparent lack of interest in and motivation
towards certain aspects of his work and, in the appropriate circum-
stances; draw from that fact the conclusion that such a person will
not be compatible with its expectations of persons who are placed
on its regular staff. Moreover there is simply no evidence before
this Board to challenge the employer's assertions that Mr. Gordon's
attitude and Performance were of a cyclical nature;that he commonly
absented himself from work which Mr. Rideout had assigned to him
and that it always appeared that he was doing just enough work to
0 get by until he could secure a job in the field of inspection. In
the result.and against that evidence we believe the
employer's conclusion that Mr. Gordon was not suitable for and
could not meet the standards it expected of its regular staff who
were classified as Technician 2, Survey, was not unreasonable. Very
simply, as we noted'in our Eriksen award, it is perfectly proper for an
employer to assess a probationary employee on certain aspects of his
character and motivation that may not be permissible once an employee
, is placed on the regular staff. Accordingly where, as here, the evidence
;‘i. .,
CL %<: ?: i
Yf
17.
a supported the conclusion that Mr. Gordon's attitude of indifference
to the work of the position in which he was classified affected
his performance, and his interest or willingness to do more than
was minimally required, the employer was entitled to draw the con-
clusion that his overall effort was not sufficient to warrant his
placement on its regular staff.
Although the grievor challenged the employer's negative
assessment of his attitude and motivation and sought to explain
his difficulties on the basis of his own and Mr. Rideout's differing
personalities, such an assertion, we believe, simply fails to take
account of the fact that Mr. Guise himself signed or approved every
evaluation he received. Nor is such an opinion consistent with
their evidence that each of these performance ratings was the subject
of extensive discussions between them and was not simply the judge-
ment of a single individual. Moreover we do not believe, as Mr.
Richards suggested, that the grievor was lulled into a false sense
of security by the fact that on each of the performance charts his
assessment was,in each category,almost invariably placed at the
level of "standard performance". Although it is true that the
supervisors in this case might well have been overly considerate
of the grievor's sensitivities, nevertheless from the concluding
comments that appear on each of those reports and indeed from
his own rejection of them, it is, clear that;as a probationer Mr.
Gordonshould have been particularly sensitive to theiradmonitions
and should have recognized that his' fail'ure to respond coltld
or in fact would result in his termination. Accordingly, where
as here the grievor was formally apprised of the deficiencies the
18.
0 employer perceived in his work and was advised of the level of
performance it expected of him, the fact that the employer never
specifically confronted him with the natural consequence of its
complaints can not impugn the reasonableness of its decision.
In the result, and although this Board may itself have
drawn different conclusions as to Mr. Gordon's future employment
prospects, and notwithstanding that the employer's assessment
pertains only to his capabilities as a Technician 2, Survey, and
not to his general abilities or competence in other areas, we do
0 not believe that there is sufficient evidence before us which
would warrant the conclusion that the employer's assessment of
Mr. Gordon was unreasonable. To the contrary we believe that the
employer has established that both the standards it relied upon
to assess the grievor,and the conclusions it drew in applying those
criteria to the circumstances of Mr. Gordon's work record, were
fair and reasonable. From the performance reports it is manifest '
that the grievor was specifically apprised of the employer's
complaints with respect to matters which the employer may, during
the probationary period, reasonably and properly concern itself.
That the grievor was given every opportunity to respond to and
correct those perceived difficulties and failed to do so is, as
we have noted, a matter of record. In short, and against that
evidence, and recognizing that the employer's decision is necessarily
in the nature of a prognostication, we are not prepared, against
their year of observation, to conclude that their decision was an
unreasonable one.
0
In the result therefore, and for the reasons given, it
must follow that Mr. Gordon's grievance is denied.
Oated at Toronto this 13thday o Nf August 1976.
0. M. Beatty
Chairman
I concur
Mary Gibb
Member
S. R. Hennessy
Member