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HomeMy WebLinkAbout1976-0025.Dykstra.77-03-25- ‘CROWN EMPLOYEES 416/964 6426 GRIEVANCE SETTLEMENT 6OARO IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Mr. Ren Dykstra And The Ministry of.Revenue Suite 405, 77 Bloor Street West TORONTO, Ontario. MS.7 lM.2 (Grievor) (Employer Before: D. M. Beatty Chairman .E. J. Orsini Member H. E. Weisbach Member For the Grievor: Georqe Richards-Ontario Public Service Employees Union For the Employer: W. E. Stanley - Director, Personnel Services Ministry of Revenue Hearinqs: Westbury Hotel, Toronto, Ontario, June 2, 1976 77 Bloor St. W;, Toronto, Ontario, September 28, 1976 ‘-2- In the grievance he has brought before this Board, Mr. R. Dykstra claims that he was improperly terminated from his employment on September 12, 1975. For its part, the employer, in .addition to resisting the grievor's claim on its merits, also advanced several arguments of a preliminary and jurisdictional nature, which it claimed precluded this Board from entertaining, let alone allowing, Mr. Dykstra's complaint. Specifically, and in the first place, it was the employer's contention that because Mr. Dykstra was notified on August 8, 1975, that he would be released, effective at the close of business on September 12, 1975, the Grievance Settlement Eoard did not have jurisdiction to hear his grievance in that this Board did not become 'operational' unti: some time in November 1975. For the reasons we gave at the initial hearing in this matter we must re.ject the employer's submission as being without merit. Very simply, and althouah we can well understand the confusion that may arise when a new tribunal, such as the Grievance Settlement Board:'.succeeds to the jurisdiction of another administrative agency, such as the Public Service Grievance Board, it is our view that when the present lepislation, by which the Grievance Settlement Board was created, was proclaimed.on July 21, 1975 any grievances which arose after that date, as Mr. Dykstra's did,, would properly come before this Board. Indeed, when one makes reference to S. IO(l) of the Crown Employees Collective Bargaining Amendment Act 1974 S.O. 1974 c.135, it would -3- appear that even if the incident which gave rise to the grievance arose before that Act was proclaimed, a grievance which was not filed until after the.proclamation date would properly.be filed with this Board. Section 10(l) provides: -Where any procedure has been commenced to process any matter referred to in subsection 2 of section 17 of The Crown'Employee.5 Collective Bargaining Act, 1972 in accordance with the procedures under The Public Service Act and the procedure is not completed before the coming into force of The Crown Employees Collective Bargaining Amendment Act, 1974, the procedures under The Public Service Act shall continue to apply in respect of the matter end the provisions of The Crown Employees Collective Bargaining Amendment Act, 1974, other than this section, shall not apply in respect of the matter. Moreover, and in any event, given that Mr. Oykstra did not file his grievance until March 15, 1976, when this Board was fully constituted and operational, it is apparent that his rights of grievance as described in s.17(2) of the Act would properly fall within the .: jurisdiction of this Board. The second basis on which the employer objected to the jurisdiction of this Board to hear the merits of Mr. Dykstra's grievance flows from the first. Specifically it was the employer's contention, that by virtue of the gnevor's prolonged delay in filing his grievance the doctrine of lathes raises a bar to our hearing evidence with respect to the merits of his complai.nt at this late date. That the doctrine of lathes is relevant to and may deny. a grievor the opportunity to air the merits of his complaint at arbitration, has been implicitly accepted by the Divisional Court in the t?Cent case of Re Parkina duthority of Toronto & Toronto civic Employees Union Local 43 C.U.P.E...(1975) 4 O.R. 2d 45. As summarized .,; -4- in that decision, the doctrine holds that: - . ..In determining tibether there has been such delay as to anwunt to lathes the chief points to be considered are (1) acquiescence on the plaintiff's part, and (2) any change of position that has occurred on the defendant's part. Acquiescence in this sense does not mean standing by while the violation of a right is in progress, but assent after the violation has been completed and the plaintiff has become aware of it. It is unjust to give the plaintiff a remedy where he has by his conduct done that which might fairly be regarded as equivalent to a waiver of it; OII where by his conduct and neglect he has, though not waiving the remedy, put the other party in a position in which it would not be reasonable to place him if the remedy were afterwards to be asserted. In such cases lapse df time and delay are most material. Upon these considerations rests the doctrine of lathes. Ha&bury's Laws of Enqland, 3rd ed., vol.14 p.641 para 1182 In short the doctrine requires for its application the establishment of acquiescence on the part of the grievor and a resulting change in position on the part of the employer. Moreover, and with respect to the former criterion one board of arbitration has written: But acguiescence requires morP than knowledge of a state of facts. It also requires the realization that those facts constitute a violation of a legal right. One cannot be charged with effective ac- quiescence in the breach of a right unless he was: shown to be aware of the right or unless the circumstances are such as to justify~ the conclusion that he ,must have been aware of it. Re Parking Authority of Toronto and CiV.?.E., Local 43 (1974) 5 L.A.C. (2d) 150,158 (Adell). See also Re Governing Council of the University of Toronto & S.E.I.U. Local 204 (1975)‘ 10 L.A.C. (Zd) 417 (Adell). Applied to the circumstances of this case it is a matter of record that at the time of his termination Mr. Oykstra simply had no knowledge of his right to file a grievance. Indeed on his own evidence, which stands uncontradicted, it is apparent that while he disputed the -5- propriety of his termination he was specifically advised by his representative that as a probationary employee he had no right to challenge the employer's dec.ision. In fact it was not until he was advised that he might contact the Provincial Ombudsman and obtained their advice on March IO, 1976 that he was informed that he might,be able to secure a hearing before this Board. In short and against that evidence it is manifest that Mr. Dykstra could not have acquiesced in the employer's decision. Succinctly, until he was advised otherwise by the Ombudsman's office, Mr. Dykstra was simply not knowledgeable of his right to come before this. Board. Nor do we believe that either Mr. Dykstra or his representative , can in any way be faulted for their lack of awareness of his stnct legal rights. To the contrary both his own belief and his representative's advice was, a t the time, an accurate reflection ,., of the jurisprudence of the day and~of the principles on which both the employer and the union had operated in the preceding years. Indeed it was not until our later award in me Eriksen 12/75 was released that this general assumption was laid to rest. Very simply then, the fact that neither the grievor nor his representative anticipated our ruling in ne Eriksen'~can not in any way alter or impugn the fact that at the time of his termination neither of them knew or had reason to know that persons such as Mr. Dykstra were entitled to grieve their terminations. In the result and for those reasons we~,woul~d reject the employer's assertion that Mr. Dykstra's grievance is barred by the doctrine of lathes. -6- The final issue which could be said to affect the Board's jurisdiction to hear Mr. Dykstra's grievance and which was initially raised by this Board itself, concerns the effect to be given to - I Article 30.6.1 of the collective agreement between the parties which was dated t-larch 12, 1976 and which preceded,even apart from its retroactive date, the grievor's complaint by some three days. That clause provides: Any probationary employee who is dismissed or released shall not be entitled to file a grievance. When raised by this Board it was agreed by the parties that on its face and assuming its validity, Article 30.6.1 would effectively preclude this Board from hearing the merits of Mr. Dykstra's grievance. However and because, as the parties were made aware, the legal.effect of this particular clause had already been the subject of exhaustive agreement in two earlier grievances which were filed with and still pending before other panels of this Board, it was agreed that the results in those other grievances would in all likelihood effectively and determinatively resolve the issue in this case. Accordingly, the Board advised the parties that it would adjourn the. initial hearing in this matter pending the Board's determination as to the propriety and effect of Article 30.6.1 in the other grievances in which that issue had been rai~sed. Subsequently on August i3, 1976 the Board released its decision in me myce x/76 in which it was held that Article 30.6.l.of the Agreement,was null and void. After further consideration of.that award by this panel of the Board, it was decided that the reasoning set out in the me JOY& award sho~uld form part of and be appended to our decision in the instant grievance. In the result, and for the reasons set out in the ne JOOC~ award, we are also of the view that Article 30.6.1 can not preclude Mr. Dykstra from bringing his grievance before this Board.. Having determined that each of the employer's challenges to our jurisdiction is without merit, and having the assurance of the parties that this Board was otherwise properly constituted and seised of this matter, the Board reconvened on September 28, 1976 to hear evidence and argument with respect to the merits of IV. Dykstra's grievance. From the evidence adduced at that hearjng it is apparent that the circumstances giving rise to this complaint are not in serious dispute. Briefly stated, it was the evidence of Mr. I. Stephenson and Mr. D. Rowsell, the 'Director and Assistant Director respectively, of the Ministry's Succession Duty Branch, that during the period between December 16, 1974 when he was hired and September 12, 1975 when he was terminated, th-. Dykstra was simply unable or unwilling to complete the volume of v&k which they expected of him. According to their evidence, Mr. Dykstra had been hired as, and after an initial break-in period was expected to perform up to the level of an Estate Assessor 2, because of his legal training -and practice in Holland and because~ of his previous experience in estate and succession duty matters with various trust companies and accounting firms. However it was their evidence that even after the initial break-in period, during which Mr. Dykstra was introduced to various office procedures and policies, he was simply unable to match the production of the other Estate Assessors, who, _ &- although having anywhere from 5 to 15 years' experience in the Branch, did not possess the grievor's professional and academic qualifications. Moreoever, it was the opinion of both Messrs. Stephenson and Rowsell, that Mr. Dykstra's inability to handle the volume of work they expected of him (and all the other Estate- Assessor 2's) could be attributed to his inability to be decisive and his proclivity to become "hypnotized as he sees the f!les build up around him". Apart from this apparent deficiency in Mr. Dykstra's ability to handlean acceptable volume or quantity of work, there was, on the evidence before us, no suggestion that the quality of the griever's work was in any way unacceptable or below the expected.norm. Moreover and while the grievor conceded that he was unable to cope with the volume of work which was directed to him, it was his contention that standinq alone that fact did not justify or support the negative inference that was drawn by the employer as to his ability to adequately perform the work associated with the Estate-Assessor 2 position. In the first place Mr. Dykstra claimed that until the week before .he'was advised of his termination he never received any instruction, orientation or training from any of his Supervi,sors as to the policies, procedures and practices of the Branch. Moreover, it was his contention that much of his difficulty jn keeping up with the volume of work which was assigned to him could be attributed to the incomplete and deficient state of the files he had inherited from another Estate-Assessor who had left.the Branch in April 1975. Furthermore, Fir. Dykstra claimed :. i . . -9- that while he did in fact have difficulty in processing the volume of work that came to his desk, he was under the impression that ali of the Estate Assessors were similarly overburdened and that at no time, prior to being advised on August 8, 1975 that he would be terminated on September 12, 1975; was he warned, cautioned or admonished by his superiors that his level of output was SO deficient as to jeopardize his future employment. Indeed it was his evidence that at no time did any member or Supervisor caution him that his level of output was other than acceptable. To the contrary according to Mr. Dykstra the only assessment of his work occurred in Xarch 1975 when a formal appraisal which showed that his performance.was "satisfactory" in all respects and that his capacity for development and initiative were above average was presented to him by his Supervisor. Indeed even his "drganizaing ability" a factor the employer now claims was respo,,nsible in part for inability to handle the required volume of work was characterized as being "satisfactory - low" and not, as the form permitted, as being "unsatisfactory". Against that assessment, and in the absence of any complaints from any member of supervision as to the quality or quantity of work, it was the grievor's position that it does not now be in the employer's mouth to impugn his work performance. It is against that evidence that the Board must now determine whether the grievor was dismissed without just cause. In makinp such a determination, this Board has already 'had occasion to articulate its views as to the grounds on which and the standards against which the termination of a probationary employee is to be measured. In the - 10 - first place, this Board has expressed the view that the probationary status of an employee notwithstanding, the employer nevertheless bears the onus of proving that it had just and reasonable cause for the termination it imposed. More specifically, this Board-has stated: It is now beyond dispute that in mtters of discipline and discharge alike, arbitrators have asserted that the employer bears the onus of proving it had just cause for the action it took, and except when such issues as the employment status, or the fact of ter- mination etc.'are in dispute, would be required to lead its evidence first to substantiate the sanction it impsed. Re United Steelworkers and International Nickel Co. of Canada Ltd. 119691, 20 L.A.C. 5 (H.D. : Brown). This general consensus of arbitzal 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 s'ame pragmatic considerations would dictate that the mployer carry the ORUS of proving that in fact the griever 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 losic nor rationale which would support any other'rule. Re Atlas Steel Co. and Canadian Steelworkers union (1975) 8 L.A.C. (2d) 350 (Weatherill). Re Eriksen 12/75, @ pp. 19-20'~-' However, and while we are of the view that the employer must bear.'the onus of establishing reasonable and proper grounds on which to justify its termination of a probationary employee, this Board has also taken the position that: . . . . the grounds on which a probationary employee may be dismissed (and necessarily released) tinder either s.22(3) or s.2215) must be different than those which would support the dismissal of one who - 11 - has passed through his or her probationary period. The rationale for such a distinction necessarily is founded in the character and purpose of the probationary period. That probationary period, is to use the words of&other board of arbitration designed to recognize . ..the legitimate interests of the employer in attempting to secure the mO.st competent, compatible and suitable work force it can acquire. One cannot reasonably expect an employer to be able to asses.s the full capabilities and potentiality of a job ap- plicant from a brief interview, an ap- plication form, references and the like. Rather he must be entitled to an op- portunity to view the new hire in the par- ticular context of his own work environment. That is the sole purpose of the probationary period. It is, as we have said, a le- gitimate purpose. Re Porcupine Area dmbulance Service and C.U.P.E. Local 1484 (1974) I 7 L.A.C. (2) 182 (Eeatty) However in recognizing the valid concerns of an employer to be able to select the mrst able, proficient and congenial work force we would not subscribe to the notion that the employer has a completely unfettered right to terminate the services of a probationer at will. To the cor.trary and aqain 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 any employer might well be justified in asserting that a probationary employee who was late on one occasion (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 wtich he based his action, but in addition that the employee's - 12 - conduct demnstrates that it is reasonable to conclude such an employee will likely~ prove unsuitable as a sefiiority-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 conclusi~on 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 as 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 neces- sarily vague. Further the judgment of the company is necessarily in the nature of a proq- nostication. Arbitrators should therefore be reluctant to interfere with that prognosis unless it is plain that the employer's assessment or standards are palpably unreasonable. However, should the employer fail to establish any basis for the termination of the probationary employee, or should it be demonstrated that his assessment or the stan<ards against which the assessment is made are unreasonabl,e, boards of arbitration must not sanction such disciplinary action simply on the basis that it was invoked against a pro- bationary employee. In sum we would assert. that although the proper basis for discharge of a probationary employee 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 his termination of a probationary employee was reasonable in the circumstances. Implicit in. these remarks is the recognition, particula;J,,y with respect to a "release" effect&under =.22(S) of The Public Service Act, that alt.houqh the employer is entitled and indeed - 13 - has a legitimate interest in assessing the overall suitability of persons who seek to join its permnent staff, the pro- bationary employee is entitled to d fair and proper assessment. Such an assessment necessarily assumes the probationer will be given a sufficient period df time to demonstrate his pro- ficiency and capability, that his duties and responsibilities have been clearly articulated to him, that reasonable standards of behaviour and performance are expected of him, that his progress is systemati&lly reviewed and, not in- significantly, 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, where the probationary period is usually of a longer and more prolonged duration. Re Eriksen 12/75 pp. 19-23 : Applying those standards to the facts described above, necessarily, in our view, leads to the conclusion that Fir. Dykstra's grievance must suc- ceed. In the first place, on the evidence adduced before this Board we are not satisfied that the grievor's admitted inability to handle the volume of work that crossed his desk in any way reflects upon his personal skill, ability and potential to perform the tasks associated with the job of an Estate-Assessor 2. To the contrary and in light of the grievor's un- challenged testimony, it may well have been and in the grievor's view it was because he never received proper and adequate instruction in the policies and procedures of the Board, and because of the incomplete and deficient state of the files that he inherited from his predecessor, that he was unable to process the volume of work Messrs. Stephenson and Rowsell expected of him. Moreover, and in light of the grievor's unchallenged assertion that all of the other Estate Assessors were having difficulties processing all of the files that crossed -their desks, we are not satisfied that it was reasonable for the employer to conclude that the grievor's particular difficulties in clearinghis desk of all of the files P directed to him generally reflected on his ability to perform the job of an - 14 - Estate Assessor 2. In short, and in liaht of the orievor's evidence, we~are not satisfied either that the cause for the grievor's admitted in- ability to handle all of the work directed to him could reasonably be attributed to any lack of personal skill or ability or that the standard of work expected of him was reasonable in th.e circumstances described. Very simply where, as here, the employer has failed to respond or in any way challenge the grievor's explanations for the condition of his work, it is, we believe, unreasonable for it to have concluded that the phenomena it observed in any way reflected on his capabilities and suitability as an Estate Assessor. In addition, and apart from the complete absence of evidence rhich would support the conclusion that the grievor's failure to process an acceptable volume of work was attributable to his own lack of skill and ability, we believe that the employer's assessment of the grievor is deficient in another material and fundamental respect. Specifically and on the griever's own uncontroverted evidence, it is manifest that at no time, throughout his nine months of employment, could it reasonably be said that he had received a fair and proper opportunity to demonstrate his capabilities and potential. As already noted, in our Re Eriksen award, this Board has expressed the view that a fair and'prbper assessment of a probationary employee's suitability for permanent employment: . ..assumes the probationer wills be given a sufficient period of time to demonstr~te~~ his proficiency and capability, that his -15- du$@ and responsibilities have been clearly articulated to him, that reasonable standards of behavious and performance are expected 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 d probationary period in any sector of employment, are even more fundamental in the public service, where the probationary period is uswAly of a longer and more prolonged duration. Re Eriksen 12/75 @ p. 25 Applied to Mr. Dykstra's probationary period, it is, on his own uncontroverted evidence, a matter of record that at no time did he receive the proper instruction or orientationto the policies, procedures and practices of the Branch; was he advised of the standards of performance that were expected of him: was his progress systematically reviewed or assessed with him;..was he advised of the perceived deficiencies of his work; or was he coached and instructed as to the means by which he could overcome the deficiencies the employer perceived in his work. To the contrary and except for the "satisfactory" appraisal he received in April, neither his immediate superiors nor Messrs. Rowsell or Stephenson ever addressed themselves to such matters until they advi.sed him of their decision to terminate him. Although it is true thatboth Messrs. Rowsell and Stephenson testified that they were advised and believed that Mr. Dykstra's immediate supervisors had attended to those matters with him, we simply can not accept such hearsay evidences in the face of the grievor's direct and unequivocal testimony to the contrary. Re Girvin et al and Consumers Gas Co. (174) 40 D.L.R. (36) 509 font. Div. ct.). Moreover, given that the employer, who as noted - 16, - carries the burden of proving it had reasonable grounds for terminating - the grievor, failed to call any of the supervisors who might have challenged the grievor's assertions in this regard, it'follows that this Board is entitled to draw the inference that any evidence proferred by those supervisors would not have supported the employer's position. Re International Harvester Co. of Qnada Ltd. (1973) 5 L.A.C. (2d) 29O(Hinneganl; Re Great Oil Sands Ltd. (19731, 3 L.A.C. (Zd) 245(Sychuk) and see also Re LBoug1a.s Aircraft Co. of Canada Ltd. (1975) 8 L.A.C. (2d) 118, 131 (O'Shea). Having established to our satisfaction that the employer did not provide the grievor with a fair and proper opportunity to demonstrate his suitability for permanent employment, it must follow that its judgement as to his capabilities is similarly flawed. That is, and, by way of example, if as Messrs. Rowsell and Stephenson would have us believe, the grievor's performance was so palpably deficient through- out his period of probation, then, to ensure that the grievor was given a fair opportunity to demonstrate his full potential, it was incumbent upon the employer to systematically and unequivocally advise him of the grounds for their dissatisfaction and apprise him of the manner in which they expected the work to be completed. Very simply and were the rule otherwise, Mr. Dykstra would have been lulled into a false sense of security and into believing that his deficient performance was the norm expected and tolerated by the Branch. Put somewhat differently, it is only when an employer advises.an employee -17- of the deficiencies of his'work habits that the employee is given a fair and full opportunity to correct those deficiencies and demonstrate his full capabilities. Similarly in the absence of any systematic and on going coaching, orientation and instruction as.to the Branch's policies, and procedures, it is simply unreasonable to assume that the grievor's failure to conform with them in any way reflects on his capabilities or suitability to discharge the duties of that position. In short, having established to our satisfaction that the 9rievor was not given an adequate opportunity to demonstrate his capabilities and proficiencies and to respond to the employer's dissatisfaction, we must conclude that the employer's decision to terminate him was not reasonable in the circumstances. In the result Mr. Dykstra's grievance must succeed. Accordingly we would order him to be reinstated immediately in hisformer position of istate-Assessor #2, with all of the rights and benefits associated therewith, effective September 13, 1975. In the unlikely event that the parties should encounter difficulties in the im- plementation of this award and/or in the compensation and other benefits due to him.as a result of his reinstatement, the Board shall remain seised of those matters for thirty days following upon the release of this award. Dated at Toronto this 25th day of March 1977 D. M. Eeatty Chairman ~. I concur E. J. Orsini Member I c*nc*r H E. Weisbach Member