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HomeMy WebLinkAbout1978-0005.Anand.79-02-21I ’ GRIEVANCE cl0 ;kE!;bEMENT iN T!!E MATTER OF AN ARBKRATION Under The CROWN EFPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT EOARD Mr. George Anand The Grievor Ministry of Community & Social Services The Employer 3efore: For the Grievor. Professor Mary Eberts -Vice-Chairman E. J. Orsini -Member H. E. Weisbach -Member F?r. George Richards, Grievance Officer Or.tario Public Service Employees Union 1901 Yonge Street Toronto, Ontario For the Employer Mr. D. Abramowitz, Manager Empioyment Relations & Development Ministry of Community and Social Services Toronto, Ontario tiearitq April 24th, 197% kpril 25til, 197% Suite ZiOO, 180 Dundas St. West Toronto, Ontario -2- The grievor complains that he was wrongfully dismissed from the Ontario Public Service; prior to this dismissal, he had been employed as a Social Worker II in the Vocational Rehabilitation Services Division of the Ministry of Community and Social Services. The employer stated that the dismissal was ' . ..a result of your continued unacceptable level of performance and the lack of suitable alternate employment opportunities within the Ministry..." (Exhibit 3, letter from the Deputy Minister to Mr. Anand.) Although there was no culminating incident in this case, the employer contends that the dismissal was justified because there were consistent deficiencies in Mr. Anand's work over an eighteen-month period, which were not remedied-despite developmental programs designed an.d implemented by three supervisors. The Ministry adduced considerable evidence which in its view supported the contention that the grievor was incapable of performing at an acceptable level. Job evaluations performed by three supervisors, Ernest Rivait, Paul Dodd, and David Cohen, were put before the Board. Many of these evaluations were quite lengthy. At issue often was Mr. Anand's handling of particular cases, with the supervisor's evaluation and the social worker himself putting forward differing opinions as to how the case should have been handled and whether it had been correctly treated. At the root of some of these controversies appeared to be different theoretical understandings of the proper role of a social worker. Needless to say, this Board is not sufficiently expert in the field of i ., -3- social work to grapple in minute detail with its internal professional controversies. Some evaluations stressed Mr. Anand's imperfect cotmnand of written and spoken English, and awkwardness with professional vocabulary. From the written work submitted by the grievor to the Board, it was clear that his language capabilities were not perfect; it was equally true, however, that imperfections of grammar and syntax and peculiarities of jargon slipped into the supervisors' evaluations, making it difficult for the Board to determine exactly what standard of,competence in this area was being applied to Mr. Anand. Even given the difficulties in assessing the evidence tendered, it does seem as if Mr. Anand had some trouble with the job of vocational rehabilitation counsellor, to which he came in March of 1976. These problems, however, must be viewed in the light of two other factors: his satisfactory work record up until that time, and the degree of departmental reorganization - or disorganization - which both precipitated his move to Vocational Rehabilitation Services and dogged his presence in that Unit. There is, as well, the third factor of the absence of suitable alternate employment within the Ministry, which cannot of course be attributed to Mr. Anand. Mr. Anand holds the degree of M.S.W. from Delhi University. He joined -the Ministry in 1971 as a Social Worker I in the Family Service Unit of the Toronto District office. His work in the family counselling field appears to have been successful. His supervisor recommended in -4- % March 1972 that he be assigned to regular staff; the Ontario Association of Professional Social Workers assessed him as a permanent full member in the same year; and in May 1972 he was reclassified to the Social Worker II level He received merit increments in 1973 and 1974 and received praise for his work in his professional association. Mr. Anand's difficulties appear to have begun with the pending dissolution of the Family Service Unit. In November 1973 the Unit had four professional social workers; Mr. Ernest Rivait was hired as Director, and one of his responsibilities was to have been the institution of a performance evaluation system. This took about a year. By the end of 1974. however, the "handwriting was on the wall" about the dissolution of the Unit: two of the four professional social workers had resigned and one had transferred because of this pending abolition. Mr. Anand and Mr. Rivait were the only ones left. To help him get a job elsewhere, Mr. Anand asked Mr. Rivait to do evaluations of his performance. Two were done: one in March of 1975 (Exhibit 19) and a second, more extensive, dated October 22, 1975 (Exhibit 6). Unfortunately, Mr. Rivait's evaluation of October 1975 reflected what was later called an unacceptable level of performance on Mr. Anand's part. Without going into great detail in reassessing this evaluation, and not seeking to explain away any real shortcomings Mr. Anand may have had, it does appear that some of this unfavourable impression was created by what one could call a difference in approach between the two men. Mr. Rivait -5- was a proponent of, and extensively trained in, psychiatric social work. ,Mr. Anand, with a different sort of background, seems to have tried to "bone up" on psychoanalytic theory so that his case records would ~reflect what he thought Mr. Rivait expected in this regard. The results were not satisfactory from Mr. Rivait's point of view. There was a further feature of this evaluation which emerged in Mr. Rivait's testimony. He said that he judged Mr. Anand in light of what he would expect from the holder of an M.S.W. with five years of experience ; in one of the areas pinpointed as a weakness, that of diagnosing clients' problems, Mr. Rivait said that the average social worker would probably have the same amount of trouble as Mr. Anand, but that Mr. Anand did not measure up to his, Mr. Rivait's above average standards. This adverse evaluation had very serious implications for Mr. Anand, because it figured in deliberations about where he should be transferred once the Unit had been disbanded. Even at this stage, too, the scarcity of positions requiring trained social workers was evident: Mr. Herbert Sohn, at that time Director of Social Services for the Metro Central District, testified that the only two posts available within the Ministry were one doing family.counselling in Hornpayne (a Northern community) and another as a vocational rehabilitation counsellor in Toronto. Other jobs available in the District did not require the M.S.W. level'of training. Discussions among Mr. Anand, Mr. Rivait, and Mr. Sohn in November, 1975 resulted in Mr. Anand being advised that his next placement would have to be on a "probationary" basis, because of the unacceptable level of -6- performance reflected in the October evaluation. Mr. Anand chose the V.R.S. position, even though his prior experience was more in keeping with the Hornpayne job: Hornpayne was, he thought, too remote. Mr. Sohn advised him by letter (Exhibit 7) that he should "make every effort to utilize supervision to deal with weaknesses and to bring your performance up to an acceptable level"; he advised him that monthly assessments of his work would be required, and that if a final assessment at the end of six months were not favourable "the Ministry will have to make decisions regarding further action which might include demotion or reassignment of duties." The six month "probation" in V.R.S. started in March of 1976. Because of staff changes and departmental reorganization, another "final" evaluation period of January through June of 1977 emerged. Mr. Anand was, in fact, with V.R.S. until December of 1977. The decision to dismiss him was taken in August of that year but not communicated until November or December. In this period from March 1976 through December 1977 Mr. Anand received extensive evaluations of his work: from his first supervisor, Mr. Paul Dodd, in July 1976, after four months of contact (Exhibit 8); and from Mr. David Cohen, successor to Paul Dodd, in October 1976 (Exhibit 9), January 1977 (Exhibit 9B), February 1977 (Exhibit 9C), and March, April, May, June, and July 1977 (Exhibits 9D. 9F, 9G, 9H). From a perusal of these evaluations, it seems that great care and effort went into them. Following the October 1977 evaluation, Mr. Anand was advised by letter from Mr. Graham Lethbridge (successor to Herbert Sohn in the . . .: -7- Toronto region) that without significant improvement in his work over the next few.months, his May 1977 merit increase would not be recommended (Exhibit 13). He was also warned that Mr. Lethbridge would recommend his dismissal if his work was not up to standard by May, 1977. A comprehensive performance improvement plan was then instituted by Mr. Cohen, Mr. Anand's supervisor; and in May 1977 Mr. Cohen advised Mr. Anand in a memo of below-par areas in his work. He set out another range of achievement objectives with a schedule, and indicated that if the objectives were not met by July 15, 1977, Mr. Cohen would recommend Mr. Anand's dismissal. Mr. Anand was not given any merit increment in May 1977. The decision to dismiss Mr. Anand was taken in the summer of 1977 after an unfavourable progress report for June and July. Mr. Lethbridge testified that he explored within the Ministry the chances of finding another Social Worker II position for Mr. Anand, but that family counselling - the position for which he seemed best suited - was increasingly being done in the private sector so that jobs were very scarce. It appeared.from the evidence that officials in the Ministry, and Mr. Anand's supervisors, expended considerable energy and concern to help him with what they regarded as his performance shortcomings. Such assistance is most praiseworthy, although, ironically enough, the close scrutiny of his work which it involved may have added to Mr. Anand's troubles in making the transition to V.R.S. counsellor. It is hard to say. What is clear is that Mr. Anand never did satisfy the expectations of his -%- supervisors in the V.R.S:position. We have to decide whether this failure, following on some four years of successful employment history, merits dismissal. In our view, dismissal was not warranted. For four of his six years in the Public Service, Mr. Anand was adjudged a successful professional. His transition to an unfamiliar area was the result of departmental reorganization; the fact that he spent almost two years there turning in what was regarded as unsatisfactory performance is also to quite an extent attributable to the personnel changes, reorganizations, and consequent extensions of his "probationary" period. We should not therefore attach much weight to the fact that about a third of Mr. Anand's total tenure in the Public Service came under this cloud. In the ordinary course, one would expect that someone who has successfully discharged a substantial part of his duties would re reassigned if it appeared that he were having trouble adjusting to his new respon- sibilities. The thought of reassignment did, in fact, occur to Mr. Lethbridge. It was only when opportunities within the Ministry were not forthcoming that the decision to discharge was taken. In our view, the responsible officials did not conduct a sufficiently extensive search for transfer opportunities. The Working Conditions Collective Agreement defines the "Employer" as The Crown in Right of Ontario. Section l(a) of The Pub2ic Service Act, R.S.O. 1970, c.386 defines "civil servant" as, in part, "a person appointed to the service of the Crown..." and section l(g) defines "public servant" as, in part, "a person -9- appointed under this Act to the service of the Crown..." These defini- tions, and indeed the whole scheme set up under The Public Service Act, indicate that the Public Service extends beyond any particular Ministry. An employee in the classified service, like Mr. Anand, should be entitled to have the search for alternate employment extend beyond the confines of the Ministry in which he holds his current post. We think that Mr. Anand should be reinstated to the Public Service as of May 1, 1978 with no loss of salary or benefits. He should also receive a genuine offer of a position in the Service in keeping with his talents: a Social Worker II position in family counselling inside.E outside the Ministry of Community and Social Services or, failing the availability of such a post, a position in the Public Service with a different classification but requiring similar professional skills at a salary no lower than the Social Worker II salary. (see decision No. 877/77 of the Public Service Grievance Board: _Mubarka Alam.) Obviously, this is a solution that requires co-operation between the parties. The Ministry, in our view, should bear in mind Mr. Anandfs previous hesitation about moving to a small northern community, and should be reasonable in its search for an alternative Social Worker II position. For his part, we expect that Mr. Anand will realize the difficulties in locating Social Worker II positions within the Public Service and not expect that "the perfect job" will immediately be forthcoming. In our view, Mr. Anand may have cause for a fresh grievance if no appropriate Social Worker II position or equivalent is found for him, and we do not wish to pre-judge future issues in any way. We would hope, however, that co-operation on his part in accepting any reasonable offer will make it possible to avoid further proceedings in this matter. - 10 - In view of the practical difficulties in finding a Social Worker II post, as an interim solution, the Ministry could provide Mr. Anand with a position available at the present time at a salary that is fair and equitable considering the circumstances, while it proceeds with dispatch to find him a Social Worker II post or its equivalent. As soon as the Social Worker II post becomes available, Mr. Anand 5 should be paid a lump sum representing the difference if any between the salary attached to this ultimate post and the salary he received during the search period. c To surmnarize, Mr. Anand should be reinstated as of May 1, 1978 and receive all his salary and benefits at the Social Worker II level from the date of his dismissal to May 1, 1978. Between that date and the time he is put into another Social Worker II position or its equiva- lent, the Ministry may offer him a substitute position at a salary fair and equitable in the circumstances, but should pay him the difference if any between that salary and the salary attached to this final job as soon as Mr. Anand takes up this new Social Worker II job. Dated at Toronto, 'Ontario this 21st day of February, 1979. Mary Eberts 4 Vice-Chairman I concur E. J. Orsini Member I concur H. E. Weisbach Member