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HomeMy WebLinkAbout1977-0080.Leslie.78-08-15IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Ms. Maureen Leslie And Ministry of Community & Social Services Before: G. W.~Adams Chairman P. Sigurdson Member G. K. Griffin Member For the Grievor: For the Emplcyer: Hearlnp: s. T. Goudge Cameron Browin S Scott Barristers & Solicitors Suite 202, 161 University Ave. Toronto, Ontario Mr. George Richards Ontario Fublic Service Employees l&ion 130! Ycnge St. Toronto, Ontario c. ii. Riggs Hicks, Morley, Hamilton P.O. Box 371, Royal Trust Tower Toronto, Ontario M5K lK8 Ms. Rosemary McCully Comnunity 6 Social Services 6th Floor, Hepburn Block Queen%Park November 9th; 1977 ' March 1 & G, 1978 April 14 6 15. 1978 Suite 2100. 180 Bundas Street West~. Toronto, Ontario ..,. -2- In this case the grievor, Maureen M; Leslie grieves that her dismissal from the employ of the,Ministry of Community and Social Services was without'just cause. She requests 'reinstate- ment as a Public Health Nurse within the Government Services within the same salary classification." The employer takes the position that this Board lacks jurisdiction to entertain thd: . . grievance because MissLeslie was "released" by the Ministry during the first year of her employment "for failure to meet the requirements.of,her position" in accordance with the powers of a deputy minister under The public Service Act R.S.O. 1970, c.386 as amnded Sec. ~22(5) . It is the employer's position that the Crown Smployees collective Bargaining Act, S.O. 1972 C.67, under which this Board is constituted, only empowers the Board to review the "dismissal" of an employee, not the "release" of an employee. While the Board has already determined its jurisdiction to review the termi- : nation of so called "probationary empl~oyees" in the earlier case of Re: Joyce an%ninistzy of~nttorney ceneral 21/76, the employer submitted that the recent Supreme Court of Canada in Jacmain v Attorney General of Canada and Public S@rvice Staff Relations Board (1977); 78 CU. 14,117~deals with a similar issue caused by the interaction of the public Service Employment A&, R.S.C. 1970, c. P.32 s. 28(3) and the.Pubiic S&vice Staff Relations Act, R.S.C. 1970, C. p.35 s%(l) and requires's change in ~the Board's practice as explained in the voice decision. We have reviewed the able submissions of counsel on this. issue and have come to the conclusion that some change with respect to the release of "probationary employees" in their first year of employment is required. In me Jo~z,.z at page 33 the Board sumnarized its juris- diction to review grievances of this kind in the following way: ~~ :. . -3- . . . ..ft is our view that&. Joyce's grievance is, as any probationary employee's grievance would be properly before this board by virtue of s.17(2) of the Act and there is nothing. the Legislation has done or the parties or a board of arbitration wy do which can derogate from that right. We are, in short, prepared to take jurisdiction of her grievance on that basis alone. Bowever, and as arbitrators in the private sectorandas this Board itselfhas recognlsed, we must again caution the parties that in seizing juri.sdiction over the termination - be it release or a dismissal - of a probationary 'employee', we do not and h-111 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 J;n~ the case of a ‘regu2.w employee. The Board then went on to describe this lesser standard of when it would intervene in terms of a "palpably unreasonable employer's assessment." A reading of the &-in case now indicates that in fashionftqthis approach to probationary .employees, more attention should be paid to the legal differences between the terms "dismissalU and "release", as these terms are used in the. Public Service Act, m, and the Crown employees Collective bargaining Act, Supra. - And thus the Board's jurfsdfction in matters of this kind needs to be restated. In Jacmain an employee received notice during his probationary period of the employer's intention to "reject" him for cause but he contended that the decision was really a disciplinary dismissal camou- flaged as a rejection. The arbitrator reviewed the behaviour of the, grievor towards his colleagues and superiors and concluded that this behaviour was an "insufficient reason for his discharge." Thus, Mr. Justice De Grandpre, with whom J,+tices Martland, Judson and kitchi,e concurred, defined the Issue before the Court fn the following’way’: #I : does the rejection of an employee on probation because his superior is not satis- ffed with him constitute a disciplinary action . which is therefore subject to adjudication. Section 28(3) of the Public Service Employment Act provides: (3) The deputy head may, at any time during the probatkmery period, give notice to the employee and to the Commission that he intends tD reject the employee for cause at the end of such notice period as the Conmission may establish for any, enployee or class of employees and, unless the Comafssion appoints the empl- oyee to another position in the Public Service before the end of the notice period applicable in the case of the employee, he ceases to be an employee at the end of that period. Section 91(l) Of the Publfc Service Stiff Relatfons Act provides: 91. (1) Where an employee has presented a grievance up to and including the final level in the grievance process with respect to (a) the interpretation or application in respect of him of a provision of a collective qreenqnt or an arbitral award, OX (b] disciplinary action resulting in discharge. suspension or a financial penalty ad his grievance has not been dealt with to his < satisfaction, he may refer the grievance to adjudi- cation. In concurring with the Court of Appeal‘s reasoning with respect to the implicatidn to be drawn from these two provisions and, thereby, answering the above question in the negative, Mr. Justice De Grandpre had the following to say: The Court of Appeal held, when the case cane before ft, that the adjudicator did not have jurisdiction to weigh the cause of rejection, once it was established ‘that this cause wes not frivolous and that the rejec- tion MS not for reasons based on anything but good faiti, I19773 1 F.C. 91, at p. 98: It is clear from the varfous reasons for decision -5- of the adjudicaeor that he considered the action here taken by the employer to be disci- plinary acUon camuflaged as rejection. Xow- ever, the facts established before him mke.it quite clear that the employer had ample cause for rejection. There could only be disciplinary action camouflaged as rejection in a case where no valid or bona fide grounds existed for rejec- .tion . By the adjudicator’s own admissions, that is not the factual situation in this case. Eeald J., speaking ~foi the Court, had pre- viously referred to Fardella v. The Queen,. Cl9743 2 F.C. 465, and written (p-981: I have no hesitation in expressing the view that the conduct complained of in this case is a classic example of behaviour which would justify rejection of an employee during a probation period (and this was conceded by the adjudicator--see Appekz Case, pages 70 and 731 . It might also be ground for disciplinary action even during a probationary. period. However, on the facts here present, it is clear that the employer intended to reject and did in fact reject during probation and was, in my view, quite entitled so to do. That being so, the adjudicator was without juris- diction to consider the grievance under section 91 and erred in law in so doing. After referring to the decision of this Court in Bell Canada v:Office.aad Professional employees’ Iizternational Union; il974> S-C-R. 335 I73 CLLC~l4,170~, Reald J. went on to empha- size tlh point at tie end of his reasons lp. 100): In my view, the whole intent of seotion 28 is to give the employer an opportunity to assess an employee’s suitability for a position. If, at any tine during that period, the employer con- cludes that the employee is not suitable, then the employer can reject bin without the employee having the adjudication avenue of redress. To hold that’s probationary employee acguires vested rights to adjudication during his period of probation is to completely ignore the plain meaning of the words used in section 28 of the Public Service EnplOysMt Act and section 91 of the Public Service Staff Relations Act. Hr. Jacmain clearly had the right to grieve under section 90 of the Public Service Staff Relations ,.-,._. Act. His grievance was~consldered and rejected. However, hot all grievors under secUon 90 dre entitled to adjudication under section 91. The right to adjudication is restricted to those grlevors bringing themselves within the four . -6- ccqners of section 91(l) which, on the facts here present, Hr. Jacmain has not been SW-~ cessful in doing. I concur with these views of the Court of Appeal. The learned justice explicitly left open the question of whether the adjudicator would have jurisdiction when the "rejection" was clearly a disciplinary action because, in his v&w, them conduct of the grievor in Jacmaln was clearly of the kind meriting rejection.. In this respect he wrote: The case at bar is not a case of disciplinary action. The employee's pax conduct, ir&cible attitude and unsatisfactory adjustment to his surroundings were valid reasons for his superior's unwillingness to give hlm d permanent position in his. Service. This seems obvious ~to me, but I will nevertheless cite the unanimous opinion of the arbitrators in Re United Electrical ,workers b Square D Co., Ltd., (1956) 6 Lab. Arb. Cas. 269, at page 292: Amemployee who has status of being "on probdtion" clearly has less. job security thdn an employee who enjoys the status of a pernnnent employee. One is undergoing a p+od of testing, demonstration nor lnvesti- gation of his qualifications and suitability for regular employment .as a permanent employee, and the other has satisfactorily met the test. The.standards set by the company are not neces- sarily confined to standards relating to gual- lty of production, they may embrace consldera- tion of the employee's character, ability to vork fn hanwny with others, potentiality for advancement, and general suitability for reten- tion in the company. Although it is apparent that any employee covered by the agreement can be discharged for cause at anytime, the employ- ment of 8 probationer may be terminated if, in the judgment of the company prior to "&e comphtion of the probationary period, the probationer has failed to meet the standards set by tba company and is considered to be not satisfactory. That'case involved d discharge in the private ~’ sector. The adjudicatory in the case at bar attempted to establish a distinction between the 'Drlvate.and public sectors. Thls proposition was -?- not argued before us and I can see no basfa,fot it, particularly since, aa previously mentioned, the Wokding of a. 28 of th8 Public Service Employment Act is v8ry broad. In the public. 38Ct‘X, dS in the @Vat8 38CtOI, the C!i?&dOy8a who wants to improve his lot must still, I hope, take certain~ risks. Mr. Justice Pigeon wrote a separate and concurring opinion. He was of the view that an adjudicator has jurisdiction "to Inquire whether what is in forn'a rejection Is in substance a disciplinary dismissal." However, he did not agree that this invests the adjudicator with jurisdiction to review the deputy head's decision as to the suitability of the employee. In concluding that this is what the a~rbitrator in Jacmin had done, he expressed hfmself thusly: Althxgb I agree that, in the case of a probationary employee rejected by the deputy head under S. 28, an adjudicator has jurisdiction to inquire whetJam. whet is in form a r8jeCffOn 1s in substance a disciplinary dismissal, I canuot agree that this dO8S invest the adjudicator.with jurisdiction to review the deputy head's decision as to th8 suitability of the employee. In the present case, the adjudicator fo~und that there were grounds for deciding that the employee was unsuitable. Xowever, differing in t?Idt r8SWCt from the deputy head’s judgment, he was of th8 opinion th.at those groynd.9 as established before him, w8re not SuffiCfSlt to jUSfffy th8 r8j8CtiOn. In my view this is what he was not authorized to do because he only had jurisdiction to review a disciplinary dis- missal not a. rejection. On the basis on which the adjudicator proceeded in the instant case, he would review ev8ry rejection because he would hold it to be disciplinary Whenever in his opinion tier8 was insufficient cause. Just aa I cannot agree that ths employer can deprive an 8mployee of the benefit -a- of the grievance p2ocedure by labellfng a disciplin- ary discherge a rejection, I c-t agree that an adjudica,tor nay proceed tn revise a rejection on the basis that if h8 does not consider it adeguat- ely motivated, it must be found a disciplinary discherge . . . Finally, it is to be noted that even the dissenting opinion of Mr..Justice Dickson, concurred in by Chief Justice Laskin, acknowledged that an employee could not have a "rejection for cause" reviewed by an adjudicator as long'as the contested action of the employer was not, in fact, a dis- ciplinary discharge. In this regard, he reviewed the wording of ;~ section x%(3) of the.Pubzfc Service bnploymnt Act, ,s~pii, and section _ .- 91(f) Of the Public Service Staff Relations Act, Supra, and observed: It will be seen that, where the grievance of an employee is withrespect to disciplinary action resulting in discharge, s. 91(1)(b) of the Public Service Staff Relations Act 8ntiffeS the employee to refer th8 &8VZU,C8 to adjudication. Where, bcwever, a probationary employee ceases to be an employee because of rejection for cause, pursuant to S. 28(3) of the Public Service Employment Act, he has no right to refer th8 matter to adjudication. The issue'which this appeal brings Squarely to the fore is whether th8 protection agafnst~diaci&iary discharge extends to probationary employees. In t8m, the mswer is undoubtedly.in the affirmative. The word "amployee" contained in s. 91(l) of the Public Service Staff Relations Act does not exclude employees oni&o~tion. Prima facie they are protected. Yet, if the interplay of s. 28(3) of the Public Service Employment Act and 5. 91(l) of the Public Servfc8 Staff Relations Act is such that rejection for cause in effects aubsum8s disciplinary discharge, then 8V8.W case of disciplinary discharge constitutes inherently a case of rejection for cause and the protection prOVeS to b8 illusory. In my view, rejection for cause and hlsciplinary discharg8,ar8 separate and distinct CoJVZepts. . . . . . It'fa now common ground that it was, indeed, ik.mbant upon tha adjudicator to hear evidence and decide whether the employee ceased to be an employee due to disciplinary .diacharge, in which event the l djudfcator had juriadfction to go on and consider the merits, or whether employment terminated as .a result of rejection for cause, in which -9- event he did not have jurisdiction. The provlstons of the statutes germane .to this grievance must be considered fn the light of thfs reasonfng. Sections 6, 7. 9, 16 and 22 of the Public service Act, B, provide: 6.-(l) When & vacdnoy erlsts~ln the classified service, the deputy minister of the ministry in wJ&ich the viicancy exists shall nominate fn -~. ~;~-.~ writing from the list of eLigibles~ of the Com- mission a person to fill the vacancy. :~ (2) The Commission shaJl:appoint the person nominated under subsection 1 to * position on the prob~ticizry staff of the classified service for not rare than one year at * 'Lime. 7. The Cotission shall. if requested in writing by the deputy minister, recomme nd to the Lieuterw2t Governor in council the appointment of a person on the probationary stiff of the classified service to the regular staff of the classified service, and then re&mmsndation shall be actim&ed..by the certificate of qualification and assignment of the Commission. 9. A person who is appointed to a position in the public service for d specified period ceases to be , ./ a public servant at the expiration of that period. :.;, 16. A contravention of section 11, 12, 13, 14 or IS shall be deemed tq be sufficient caBuse for dismksal. Z?.-(l) A &pi&y minister may, pending an investi- g&ion, suspend from employment any public servant ln hii ministry for such period as the~regulatfons prescribe, and during a&such period of suspension may withhold the salary of the public servant. (2) A deputy minister may for cause remove f-m employment without salary any public servant in his ~. min.istry.for a period not exceeding one rmnth or such lesser period as the regulations prescribe. (3) A deputy mfnlster may for cause dismiss from employment in accordance with the regulations &JW public servant in his ministry. (4) A deputy mfnister may release from em~oymont- in accordance with the regulations any public servant where he considers it necessary by reason of shortage of work or funds or the abolition of (I position or other wterial change in organization. .~ .. - - 10 - (5) A deputy minis& may rslease from employment any public, servant during the first year of his employ- ment for failure to meet the requirements of his posl- tion. R.S.0.'1970, C. 386, ~~22; 1972, C. 1, S. 2. Sections 6, 17 and 18 of the crown &mployees collective Bargaining Act provide: 6. Upon being granted zepres.qntation rights, the employee organization is authorized' to bargain with the employer on t- and conditions of employi&t, except as to matters that are exclusively the function of-the employer under subsection 1 of section 1.7, and, without limiting the generality.of the fore&w, including ratesof remuneration, hours of work,,over- time and other premium allowance for workpeperformed, the mileage rate payable to an employee for,mifes travelled when he is requlred.to use his own autonv- bile on the employer's business, benefits pertaining to time not worked by employees including paid holidays, Raid vacations, group life insurance, health in~urd.nce ax&long-term income protection insurance,~Rrosvtions, demotions, transfers, lay-offs or reappolntnents of employees, the procedures applicable to t-he processing of grievances, the classification and jo,b evaluation system, and the cundltions applicable to leaves Of absence for other than any elective public office or political activities or training and development. 17.-(l) Every collective agreement shall be deemed to provide that it is the exclusive function of the employer to manage, which function, witMut limiting the generality of the foregoing, includes the right to determine, la) employment, appOfntment,,complement, organi- ration,, dssignment, discipline, dismissal, suspension, work methods and procedures, kinds and locations of equipment and classi- fication of positions; and (b) merit system, training and development, *ppr*ls*1 and supersnnuatlon, the governing prin- ciples of which are subject to review by the employer with the bargaining *gent,. and Such matters will not be the subject of collective "bargaining nor come within the jurisdiction of & board. (2) In addition to any other riehts of grievance under a collective agreement, an employee claiming, Is) that his position has been improperly classlfiied; (b) thnat be has been appraised co;ltrary to the gover- ning principles and standards? or - i. - - 11 - (c) t&t he has &en disciplined or dismissed or SUS- pond+ from his employment without just causer my P~CSSS such matter in accordance with the grievance pmcedura provided in the wllectlve agreement, and fdbg final detendmtfon under such pzwsdue, the Umtt8r aY h pmcasaad & acwr&nce with the procedure for final deter- mination applicable under section 18. -- - . 18.-(l) Every collective agreemen tsJallbedeemed ,' toprovide th8tin the emt thepsrtiesare unable to effect a s8tthmnt of dny differences between them arfsing from the interpretation, application, adnin.$s- tration or a.llegedwntrapenffonof the agreement, lncludingdny question &a to whether a mattax is arbitrable, such mattar may be referred for arbitration to the Grievanw Setffement Board and the Board after giving full opportqnity to the parties to present their evidence and to make their SubmfSSions, shall decide the mattter and its decision is. final and binding upon the parties and the employees cov- ciredbytheaqr-t. .. (?I The Grievance Settkment Bard has the same p0pre.r~ as & hxrd of arbftr&tion under subsections 12 end 13 of section 10. (3) Where the Grievance Settlement Board determines that a disciplinary penalty or dismissal of an employee is excessive, it may substitute such other penalty for the discipline or dismissal es it considers just and reasonebJe in all the circulmesnoes.‘ (4) Where ii party or an employee has failed to wmply with any of the termsof-th~declslon of the Grievance Settk- .nmit Board, any party or employee affected by the decisi,on nmy, after the expiration of fourteen days from the date of the release of the decision-or the date provided in the decision for cwpliance, whichever is later, file in the office of the RegiStr.ar Of t&e supranv court d wpy of the decision, exclusive of the reasons therefor, whereupon the decision shall be entered in the same way as a judgment or order of that wurt and is enforceable as such. Also of interest and relevance to this case is the collective agreement between the parties which in part, provldes: 27.6.1 DISmSSAL Any probdfonary employee wh3 is dismissed Or released shalf. not ba enfftled to file a griemnce. 27.6.2 Any employee other tJmn a probationary em- ployee wb is dismissed shall~be entitbd to .' 'file * grlmancs at the second stage of the grievance procedure provided he dws so within twenty (20) days of the date of the dismissal. We agree with the employer's counsel that these two statutes should be interpreted to give full effect to their respectfve provisions and that this Board should not lightly .' conclude that the Legislature intended, by the passage of ~' the crown employees collective Barqalninq Act, to repeal by inference, provisions found in the Public service Act. Approaching the respective provisions of these two statutes from this viewpoint, we find that terms ~'dismiss"'.and "release" found in Section 22 of the public Service Act fnvolve.different concepts and that section 17(2)(c) of the Crown Employees Collective Bargaining Act does not provide for'the processing of a release."in accordance with the pro- cedure for final determination applicable under section 18." However, we would quickly-add that section 17(2)(c) simply provides an employee with rights "in addition to any other rights of grievance under a collective agreement" and we see nothing in this statute or the Public Servfce Act pre- eluding the parties, in their collective agreement. from giving this Board jurisdiction to review the release of an employee under Section22(5) Of the Public service Act. But the parties~have explicitly decided against this, as witnessed by art. 27.6.2 of their collective agreement. To restate our understandfng of the relationship '. between these two statutes, we'are of the opinion that the bona fides release of an employee from employment made in good fafth during the first year of his employment for failure to meet .the requirements of~his position cannot be considered to be a dis- missal as that term is used in both the Public service ACT and the C&wi Employees Collective Bargaining Act. If this were not the case, there would have been no reason for the legislative draftsman to insert section 22(5) into section 22 because by section 22(3) the deputy minjster had,already beengranted the power to.dfsmiss any public servant fn his ministry for cause. The distinction between a release (for failure to meet the requirements of a position in the first year of employment) and a dismissal having therefore been made In the PUM~C service Act, it must be concluded that the distinction was appreciated by - the draftsmen of the crown Employem Collective Bargainin%. - 13 - The two statutes are closely related and, indeed,~ the Crown Employees collecffve Bargaining Act makes a number Of explicit references to the Public service Act. Accordingly, the absence of the term "release" ln~ section 17(2)(c) must be construed and interpreted to be a significant and intentional omission. Thus, it follows that the bona fides release of a probationary employee in the first year of his employment made in good faith and for failure to meet the requirements of his position cannot be contested before this Board under S.l7(Z)(c). We observe that this result is not contrary to any policy either expressed in legislation or understood.in the industrial relations community. Indeed,~the purpose of drafting the statute in this way is likely found in the reasoning of Re United Electrical Workers & Square D CO. Ltd., (1956) 6 L.A.C. 289 at page 292, a .viewpoint given the explicit approval of the Supreme Court of Canada in Jacmain. A few qualifications should, however, be noted. Until the '. Supreme C~ourt of Canada has said othemise, this Board is of the opi~nion that ,the employer cannot camouflage either discipline~or the termination' of an employee for a reason other than employee's failure to meet the requirements of his position, as that phrase is explained in the +re D. CO. Ltd. .case, by the guise of a "release" under section 22(5) of the public service Act. 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, in good faith, . released the employee for a failure to meet the requirements of his position. As long as the Board can be satisfied that the employer has made an evaluationof that kind, it has no jurisdiction to review the fairness or correctness of that determination under Section 17(2)(c). It may be, as was suggested in ~ovce, that the Board has jurisdiction under s.l7(Z)(b) in cases of this kind and unfortunately this issue was not as fully argued before the Board as we would have liked. However, if this jurisdiction exists, the application of s.l7(2)(b) mustbe in light of the purpose of a probationary perfod as that purpose fs expressed ln Sguars D. co. Ltd., Supra. Thfs brings us to a review of the facts. The parties, do not dispute the fact that the grievor was in the first year of her employment. From the following correspondence it is also clear that the'employer purported to release her from employment in accord- ance with section 22(S) of the PI&UC SCV~C~ Act. The correspondence in this regard reads: PENS'#Nh 6 CONFIDENTIAT, " nsreh 15, 1977 Dear Miss. Ladlie: In -ember, 1976, your supervisor and I met with you tc discuss your perfornnnc e evaluation end en individual develo-t plan. In addition I RM3t With you dt yOUr ZSqUdSt On FdbrUary 2.5, 1977 end discussed the wntinuation of problem you rmre ewoontdring~ in the Pzuqrdm. f have concluded lqrovement lwthe dress of wnwrn expressed by your suprvisor and yoursdf hds not been suificient and ds you dra not meeting thdrdqnirements ofyollr@osition. - 14 - Theafore, I em duthorislng your release from employment effective to-&y. You will rmcefvd two weeks pay in lieu ofnotice. This f S in dCwrddWe with Secffon 22 (5) Of the PublicService Act which states that "A D?3putyMinistermay release from employment any pablfc servdnt during the first yedrofhis employmntforfdflure tomeettix3regu.irenmnts of his position=. and Pdrsonnel Dfracti~ l/73, Appeadix A, which dehgdtds this authority to me under Section.23 of the Public Service Act. Yours truly, '(Signature) C. A. Rub&m, Ph.D. Dlrectur . . . . . J?EGZST&FiED Ns. Mdureen Leslle, 45 Balliol Street, 61415, Toronto, Oniarfo Dedr Ms. Leslie, Mdy 12, 1977 Reference is made to the meting of April 27, 1977 COnwrrring "diSmissd1 WithOut jUSt CdUSe”. , ,:; - 15 - A review of the hearing report and related material reveals that you were released from employment, not on the basis of incompetence as a Public ffealth Nurse, but on the basis that you could not, even with career canselling, adapt to a new and evolutionary program concept. It appears that your perception of the scope of a Public Health Nurse is traditional and somewhatnarrowand that this hindered your relationship with the other team members. Furthermore, you did not demonstrate, parti- cularly since the December 3, 1976 evaluation, a willinq- ness to adapt to the Infant Stimulation Program and the multi-disciplinary approach. You were intezviewed and selected in the surmner of 1976 for the position of Public Health Nurse in the Infant stimulation Program and the developmental and transprofessional mture of the Program was discussed with you at that time. You accepted the position on that basis. .~ ,On December 3, 1976 your performance was assessed and you were noted es requiring improvement in the following areas: work habits, adaptability, attitude, analysing sltuations and materials, and takings independent action. Subsequently, an Individual Develop- ment Plan was draw up to assist you in improving your performance, which included: erpsctations for you re case- load, parent and teem participation sessions, orientation to outside.agencies;reqularly scheduled meetings with the Progrsm Director and other staff, and supervised home .. _%: visits. A oonscientious effort was made to assist you in developing those areas listed as requiring improvement. Despite this, a final assessment prepsred in March revealed that your failure to adapt to this program and your role es a member.of the trensprofessionel tedm was seriously undermining the effectfveness of the service offered to clients and the family. _ I must CcncJude that the interest of both parties are best served by terminating your employment with this program. You do not wish to return to this position and the proqram dmands t31e &ctfcfpatlon of a committed and willing team member. I must re-emphasize that your compet- ence as a Public Health Nurse in a more traditional setting is not questioned. 'I heve, therefore, no k2ternative but to hereby advise you that in accordance witi Section 22(S) of the Public Service Act, you are released from employment for your inabillty to adjust to the Infant Stimulation Program. - ,- 16 - should you feel that release is unjust, you may .apply to the Grievance Settlement Board for a hearing within 21 days of receipt of this notice. sfncerely yours, "Original Signed by nay 12, 1977 D. Crittenden Dorothea Crittenden. cc. Civil Service Commission Provincial Auditor Ur. B. Pilotte Dr. C.A. Rubino The issue then is whether the grievor was in fact released for failure to meetthe requirements of her position or whether her employment was terminated for some other reason oras.an act of dis- cipline, allowing her to grieve under S.l7(2)(c) of The Crown Employees' Collective Bargaining Act. The grievor is a public health nurse hired by the employer. to work in the Infant Stimulation. Program operated by Surrey Place Centre in the,City of Toronto. It is a program offered to parents of developmentally delayed infants under 2 years of age and is aimed at providing an individual home stimulation program for.each child. At the basis of the program offered is the “Deielopmental Profile" which amounts to a checklist designed to identify an infant's developmental skills in the areas of: Gross Motor Coordination Fine Motor Coordination Social - Cognitive Skills Early Self-Care Skills Communication Skills The~lnfant Stimulation Curriculum, which we find was given to the grievor at the time of her hiring, describes the importance of the profile in the following way: The most appropriate level of stimulation for the infant is determined by noting the unachieved items.. E&h item has been chosen because the skill can be prograarmed for the infant, because of its importance in the infant's overall development, and to reflect the progress that may be expected in a~deldyed popula- tion under 2 years of age. - 17 - The Pmfile is a way of rscvrdinq the developmental assessment findings, setting appropriate goals and' observing the infant's progress in order to determine the effects of stimulation. The Pmgress Summary Sheet gives an overview of the infant's achievement in all Skill areas. The accompanying vrltten infor- mation gives M outline of the development and import- ance of each skill. While all the inforrntlon applies equally W both boys and girls, the pronouns "he" and "she" have been used altermtively in the text. In cwperatfon with the parents, individualized home stimulation pmgrams are designed for the infant in each skill area. Instructions specifying the &nnzdiate goal, suggested activities , and the long-range purpose of the skill are written up for the parents and are updated regularly. The parents are expected to carry out activities during daily mutines. A formel collection of activities is being developed for each item on the check-list. ALthough there is considerable overlap of function in all the skills, the separation has been made tn mm clearly define the infant’s difficulties so that pmgrasf- ming c&be a& specific as possible. It is, however, important to bear in mind the overlapi for example, wtor coordination influences the infant's exploration of the environment and the ability ~to self-feed, while conanurication influences the infant's ability W f&i early concepts and to engage in problem solving. The material was developed by: ,-_. ;: Rhona Wolpsrt, Program Director, Physiotherapist Janice Gouse Sheese, Clinical PsyCholOgiSt Margaret Schmidt, Physio and Occupational Therapist Acknowledgements are given to: Martha Sandmann, Occupatioxnl Therapist Selen Sagar, Speech Paeholoqist Sharon Leuchter, Speech Pathologist A good synopsis of the program and one that notes the.multi- disciplinary nattire of each program team member's job is found in Exhibit 6 and we.find that the grlevor was provided wjth a copy of this document at the time of her hiring. It reads: , fi. - 18 - INFANT STIMUUTIOff PRCfXAH Purpose This program provides service to developmentally handicapped infants and their families. Its goals are to maxfmize the infant's developmental potentials and W assist families in their understanding of and adjustment W the infant's disability. A major program emphasis is training parents W enrich the at-home learning environment for their infants. Client Population Infants eligible for admission are those under two years of age who have an identifiable developmental delay or have one or both parents diagnosed as developmentally handicapped. The family must reside within,the geographical area served by Surrey Place Centre (Metropolitan Toronto, York, Peel, and Ralton Counties). An essential factor in accepting clients is the family's willingnem Gparticipate in their infant's stimulation proqr&. Referrals Any family, mmunity agency or pmfessional indi~vidual wishing to make a referral to the program may contact the Surrey 'Place Centre Intake Department directly' (925-5141, extensions 110, 111 or.112). A case coordi- nator a&es the initial contact and, when appropriate, refers the family to theInfantstimulation Program. Staff Team members are drawn from the disciplinea of physio- therapy, occupational therapy, psychology and public L health nursing. Clients are assigned to one team member who assumes responsibility for every aspect of infant and family training, using the expertise of the other disciplines on a resource basis. When necessary, consultations from other professionals, both within Surrey Place Centre 'and fmln allied comounity agencies, are sought. services Following an initial assessmnt of the infant's fuA%ZtiOn- fng lewl, always carried out in the homesetting, service .~ is provided through a combination of individual home visits and in-centre parent-child gmup sessions. The goal of both aspects of the program is to teach families to recognize their infant's functioning level in order to provide sppropria~te toys, activities, and.experiences to : amourage..Ns/her further development in the ares of: gross mtor coordination fine motor ccordination social-cognitive skills ,i - 19 - early self-care skills com~cationa skills Bow, visits are made on a bi-monthly basis. Together, the parents and therapist work out a set of appmpriate .stimulation activities using the program's newly developed 'Infant Stimulation Curriculumn. Written suggestions are left for the family W follow until the next visit. Play meterfals and specially designed equipment,,such as walkers, exercise balls, etc., are loaned to families as necessary. Parent-child group sessions consist of a play period, during which stimulation activities are modelled for, the parents, and a parent discussion group. Group discussions focus on normal infant development, specific needs of handicapped children , nutrition, genetics, etc., and offer families an opportunity to share their feelings and experiences. Program Evaluation Regularpmgramevaluation ensures thatnewinformation as well as the cumulative experience of staff members .. is lncorprated into new and better programs for infants and their families. The effectiveness of the pmgram, both on the development of the individual child and the Population of infants as a whole, is determined by periodic reassessment of the infants' functioning on a stand4rdized scale. Observations are made of the families implementation~and adaptation of the stimulation activi- ties to their own circumstances. Parents are encouraged to comment on the usefulness of these activities. This information enables staff to design new program, sore specific to the needs of individual infants and families. Research projects are being undertaken W provide more .infonmtion about the needs of the developmentally delayed infant and his/her.family. These include a study of the comparative effectiveness of service provided by individualized home or in-centre parent-child groups and an analysis~of the differences between a normal and a delayed infant population. Ministry of Surrey 2 Surrey Place Comtunfty~and Place Toronto Social Services Centre S~ptemter, 1976 For further information contact: Infant Stimulation Pmgram: 925-5141 . - 20 - .I” The grievor was hired on August 23, 1976 by Miss Rona Wolpert, the Oirector of the Infant.Stimulation Program. The program was operated by a very small staff including Miss Wdlpert, who is a physiotherapist by occupation, Ms. Janis Gouse-Sheese, a psychologist, Andy Mrs. Margaret Elizabeth Schmidt, an occupational therapist. The program, when comnenced in 1974. was the only one of its kind-in Canada and must be considered, even to-day, to be In an experimental and evolutionary phase. When the program was first started, each of the highly trained professionals played their respective professional . 1 roles for each client. This meant that a family had to contend with at least three therapists and it was found that this approach tended to overwhelm the client. In response, therefore, it was decided to .adopt a "transprofessional" form& whereby each family would have only one therapist assigned to it and that therapist would be the only staff member to provide the program services to the family. The deci- sion to organize the program in this way was made at or about the same time it was decided to move away from the departmental approach for all of Surrey Place Centre's services and to move in the direction. of a multi-disciplinary organizational format. Because of the nature of the Infant Stimulation Program, it was one of the m6st multi- disciplinary oriented of the services the Centre offered and, thus, was one of the most demanding programs on its staff who, indivi- dually, had to become conversant and effective in all of the rele- vant program disciplines. ~~.. This move to a transprofessional format had been made before the grievor was hired in 1976. When the grievor entered the Infant Stimulation Program, it was administered by a small number.of highly trained professionals who had, in effect, developed the program since 1974; the program was experimental and In an evolving state; and each therapist, including the grievor. was expected to play a multi-dfsciplinary role in providing the program's services to the clients and in seeking ways to improve the program. When the grievor entered the program, we find that it was a relatively smooth working, closely knit group of dedicated professionals. During the course of her employment and' until her release In March. 1977. we must find .as a fact that the morale of this'group of employees steadlly declined to the point where there was almost an absence of comnunicatlon between team members InMarch 1977. We find as a fact that Miss Wolpert resigned in March 1977, in 9 - 21 - part, because of her relationshlp'with the grievor and we also find as a fact that the two other employees. Ms. Sheese and Mrs. Schmidt. had concluded by this time that they could notwork with the grievor. There can be no doubt that this interpersonal .conflict was disruptive '. to the program. On the basfs of the evidence brought before the Board, we are satisfied that Dr. Rubino, the Executive Director of the Centre, confronted.with this situation in March, .1977 and with the knowledge 1 ._- he had gained:-in his dealings with the grievor and Miss Wolpert from the time of the griever's first evaluation by Miss Wolpert in December 1.976, released the grievor because, in good faith, he believed she had failed to,met the requirements of her position. This bejng the case. we have no jurisdiction to go behind:.that decision and determine whether he was right or wrong. Right or wrong, we.are satisfied that that was the basis to his decision. However, even on the basis of'this ~ Board's approach in Joyce, supra, ,this grievance would fail. : :. The~evidence amply establishes that the grievor had diffi- culty in coping with the transprofesstonal role she had to assume. Indeed, her counsel acknowledged she was a "square peg in a round hole." She experienced substantial difficulties in comprehending the tests which were the essence of the program and in contributing to the develop- ment of the program. Over time, her fellow employees came to view her as 'a drain on their time and energy. Complicating these problems was the griever's disagreement with the objectives of the program. .~ The grievor saw the program as centered more directly on the family and all of its related problems whereas other members of the program saw it focussed more narrowly on the development of the child and believed that team members were unqualified to engage in the '"family counsel- Ting" inherent in the grievor's approach. These differences in philosophy only served to compound the griever's problems in adjusting ;to the requirements of the program as they were then cast. There was some evidence that Ms. Wolpert was against the addition of a public health nurse to the program's staff from the outset of the grlevoPs hiring and thai'she resented the gr,ievor being paid more than herself. However, we are satisfied that Ms. Wolpert was aware that these consIderatjons might be affecting her judgment.:, - ?. . and took steps to counteract this possibility. Dr. Rublno was consulted and brought ,into discussions wfth the grfevor and muc~h~ of the basis to Miss Wolpert's evaluation of the griever emanated from complaints made against her by Mrs. Schmidt and Ms. Sheese, neither of whom could be said to be affected as Mrs. Wolpert might have been. Moreover, it was Miss Wolpert who had htred the grievor and she appears to have been optimistic about the grievor's potential at that time. The grievor told the Board, on hiring, she was unaware of the transprofessional nature of the position and that her orientation or introduction to the, program was inadequate. The evidence does not support either of these submissions. The infor- mation given to her at the time of her hiring explicitly conveyed the multidisciplinary nature of each team member's responsibilities and we are satisfied the griever was given ample assistance in becoming oriented to the nature of.:~these tasks. For a 'few weeks she observed others. She was also directed to'the relevant literature and' manuals describing the tests. Moreover, she herself is a highly educated professional and it is to be expected that she would take independant initiative in acclimatizing herself to this new setting. When the evidence is examined, it is clear that those responsible for the program were not happy with her performance on a number of fronts and a massivemorale problem had set in which was, in part, a product of her attitude and capacity to adapt. In view of this evidence and her prcbationary status, it cannot be said that she was appraised contrary to the governing principles and standards or that she was dismissed. We find that the grievor was released from employment for failure to meet the requirements of herposition and; as a result, this grievance must be dismissed. dated at Toronto this 15th day of August, 1978. G. W. Adams Chairman I dissent (See Page 24) . P.ISigurdson Member I concur G. K. Griffin Member . 7 - 24 - RE: ZWWEEN LESLIE DiS S E&T According to the principles ennunciated in Eriksen and Joyce this Board has Seen empowered to review a --probationary employee's termination of employment i;l order to: a) assess -whether it is a "release" under S.22(5; or whether it is a dismissal for just cause under Section 22 (3) (iP. this'respect,, I agree with the majorityjib) if the ter?&nation was not disciplinary in nature, to evaluate and weigh tha reasons for the termination. In my respectful submission the decjsior, in Re Jacmain (19~77),.78 CLLC. 14, 117 has no applicability to .ti;e Crown Employees' Collective Sargaining Act which qrants, in Section 17 (2), a much broader rigtit of review. Secticn )l !?i Of the Public Service Staff Relations .Act only grants ~the right of adj,udicatibn in matt,ers of."discip'linary action re5xltir.g in discharge.." Inherent in that is the ccrollary.propOsition that a "rejection for cause0 under Section 28 ;3) of t;.e I?sblic~ Service Employment Act or a release is not ad:udicable. cr. c: 2 r Section 17 (2) the ~release of a probationary cmp:oyee u-Let Section 22 (5) canbe reviewed either as a "dismissal" under 55. I-! cr under ss. (bl: this is the clear statement cf Eriksec a:~< 132s. '~ The concept of "dissipline" in Cec=ior.l; (2.1 ic)~ enccxpass.2: the act of dismissal for disciplinary rezons. Tht?r?fore, the .: i - 25 - concept of "dismissal" in the same subsection must refer to matters other than disciplinary action. Xhether an employee is dismissed or released the result is the same in that her employ- ment is terminated for non-disciplinary reasons. Should I be in error in that a r~elease is not encompassed by the concept of dismissal in (c) then clearly the action of an employer in evaluating and taking action upon that evaluation (termination) are subject to review under Section 17 (2) (5). -. There is no similar concept in federal legislation. Under either subsection this Board is entitled to assess the actions of management in determining whether the probationer has either been dismissed without just cause or has been appraised correctly according to governing principles and standards. As stated in Eriksen, a probationer has all the rights of an "employee" unless clearly and s~pecificaliy taken away. If a probationer was not entitled to come before this Board the Legislature would have so provided in!qords similar to S.49 (1) of the ?ublic Service Act Regulations (see Eriksen as to inapplicability of this provision). This leads to the second and most important issue in this casFand that is the power of this Board, once it has assumed jur,, :cdiction under ss. (?), to review the facts. The .ma]ori ty has, in my opinion, ignored the evolution of arbital .' jurisprudence over the last txenty-two years by reverting to the ,unreaiistic and narro:; c~oncepts of Souare D. Co. Limited., (19~56) 6 L.A.C. 229. I do not beli?,;e that a close an5 objective reading - 26 - of the Jacmain case stands for the.proposition that the principles of Square D are to be applied in the public sector so that, .realistically, no probationer can question her termination unless there is a clear, provable case of bad faith. Only four Supreme Court Judges allude to it at all. .~ Cif course, the right to review a management decrsron of this type is severely curtailed and this matter has been adequately dealt with in- the Eriksen decision which relies primarily on Re Porcupine Area Ambulance Service, (1974) 7 L.A.C. (2) 182. There is nothing in the Jacmain decision that.would change the mandate of this Board which is to assess "both the reasonableness of the standards imposed by (management) 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". This Board should be "reluctant to interfere.. unless it is'piain that the employer's assessment or standards are palpably unreasonable". Probationary employees in the public service are entitled to a fair and proper assessment 6f thei: abilities and are entitled to expect that this Board will fairly and objectively review all the merits of the grievance before it. AS to the merits of the grievance, and applying the standards which I believe are applicable as set out in Eriksen and 'in Porcupine mbulance, I reluctantly and with deep reTret have reached the same csnclusion as the majority. I have some reservations that :.:aureen Leslie was not afforded alequa:e r I - 27 - instruction or time to demonstrate her ability to perform in the strange and unwieldly concept of "transprofessionalism". I feel somewhat more strongly than the majority that a great deal of the responsibility for Ms. Leslie's inability to fulfil the functions of her position lies on the shoulders of her team members who were intellectually and personally antagonistic to the grievor from the beginning. Although I ~question the validity and honesty of.the evaluations given to,the grievor, I cannot reach the conclusion that the ac'ion oc c L management was "palpably unreasonable”. i must comment, though, that a pore conscientious effort to, find. an alternative position should perhaps have been expended than that indicated at the hearing. , .-.