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HomeMy WebLinkAbout1978-0114.Prew.79-03-30- GRIEVANCE ;k;;bEMENT IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING. AC7 Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: For the Grievor: Mr. G. Prew And Ministry of Housing (Grievorl (Employer) Mr. G. Adams - Chairman Mrs. M. Gibb - Member Mr. D. Anderson - Member Mr. George Richards, Grievance Officer Ontario Public Service Employees IJnion 1901 Yonge Street Toronto, Ontario For the Employer: Mr. A. P. Tarasuk Central Ontario Industrial Relations Institute Suite ZOO, 85 Richmond St. West Toronto, Ontario Hearings September 29th, 1978 Suite 2100, 180 Dundas St. West Toronto, Ontario -2- This is a dismissal case. The grievor has been employed with the Ministry of Housing since March 1967. In 1972, he became an area manager for Ontario Housing Corporation in the London area. The position specification for this job indicates significant supervisory responsibilities. Required qualifications include: (a) Formal Education: senior matriculation or equivalent academic and technical combination in the Institute of Property Management, Ryerson F.R.I., or similar. (b) Other Knavledge/Skill: Several years of responsible administrative experience, ability to interpret legislation and regulation, supervisory ability, facility of expression (orally and writing), sound knowledge of applicable legislation and office and housing management techniques, ability to initiate procedural and policy revision, must have flexibility and adaptability, tact and diplomacy and good practical judgement. Unfortunately, during the course of 1974 and 1975 the grievor received two five-day suspensions and, following a work performance review in October 1975, his dismissal was recommended. However, Deputy Minister D. A. Crosbie decided that the grievor should be demoted in the circumstances. His decision was outlined to the grievor in a letter dated December 11, 1975 which reads: Dear Mr. PreW: I have reviewed Mr. Young's report on the pm-dismissal hearing held on Monday, November 10, 1975. The evidence suggests that the position of Area Manager is no longer within your capacity and, as a result, it would appear that your health is being severely damged. I therefore am initiating a medical examination for you by the Employee Health Services Unit, pursuant to Section 16(l) of the Regulations under the Public Service Act. Being mindful of your long association with the Civil Service, I am also recommending that you be demoted to an alternatives Civil Service position that is routine in nature. -3- Since this position will be at a lower classification level, you will be assigned to the maximum of the usual designated pay scale. YOLU performance will be under close review for 12 months with reviews et 3 month intervals. If it is demonstrated that you are unable to perform in this new position to the satisfaction of your supervisor within this 12 month period, this will be considered grounds for dismissal considering your past work history. Should you refuse an alternative position, then your employment with the Civil Service will be terminated subject to any appeal you may wish to make. I believe the foregoing course of action provides you with a new opportunity to collect your physical and mental resources to make a new start within the Civil Service without losing the accrued benefits of having been with the Civil Service for some time. Yours sincerely, D. A. Crosbie Deputy Minister. The grievor apparently accepted the demotion but, owing to illness experienced inmediately after receiving Mr. Crosbie's letter, a transfer was not effected until March 1976 and actual employment in the new and lower position was not commenced until June of that same year. The position to which he was transferred was that of senior clerk (clerk 5 general), a position located in District F, District Administrative Office of Ontario Housing. The job duties of this position are outlined in the position specification and include: 1. Under the direction of the District Administrative Officer. supervises the recording, processing and and verification of all rent transactions for the District by performing such tasks as: ensuring the setting up of resident records, signed leases, salary verifications, ledger cards, rent payable verifications, notice of move-ins, etc. upon receipt from the Tenant Placement Branch of the necessary documsntation, or transfer of same from another district office when the resident is a transfer; ~- 4 - 2. ensuring the piocessing and custody of rent payments received by staff over the counter or by mail; supervising the issuance, and in certain instances issuing personal receipts for payment and reconcilia- tion of all collections received for the day and preparing for transmittal to bank; supervising the recording on resident ledger cards of rent and other charges to tenants monies paid, and adjustments processed so as to provide daily balance for any resident and for all transactions: preparing accounts to be handed over for legal action to ensure their correctness for court evidence; Co-ordinates the administrative, and clerical function performed in the district office by: controlling stationery supplies issued to the various areas in the district through a periodic review of records relative to supplies issuance to ensure maintenance of pre-determined stock levels at these locations and through quarterly physical counts and reviews of purchases to ensure use of supplies is within acceptable limits; dealing with resident enquiries received by telephone or in person, referring resident to District Manager or appropriate Area Supervisor or Cornunity Relations Worker as necessary; preparing board submissions in proper form of notices to vacate and eviction action as assigned by District Administrative Officer for Submission by District Manager to Senior Management and Board of Directors; liaising with the District Adminstrative Officer to determine priorities in clerical services being provided; supervising the processing of time sheets to the Head Office for hourly paid employees to ensure a meeting of deadline and payroll production; controlling records of District and Maintenance employees in order to maintain personnel records at the district level; acting as liaison officer, relative to personnel matters, between the District Office and Housing Operations (Metro) for all projects; -5- 3. 4. 5. 6. ensuring the safe custody of resident files and records; supervising office administration such as ordering stationery, daily processing of mail into and out of office, proper use of telephones, office space, etc.; composing and dictating a wide variety of business letters, memoranda and administrative matters; Maintains proper records , submitted by field staff, of all capital assets in the District by performing such tasks as: maintaining an up-dated assets register of all equipment used in the operating and maintenance areas, such as tractors, snow blowers, etc.; maintaining an updated asset register of all furniture, stoves and refrigerators by location and serial number; ensuring the exercising of warranty claims on guaranteed items where necessary; Trains and supervises staff; training all new staff; planning and assigning work of subordinate staff, appraising performance, and recommending merit increases, promotions or disciplinary action; To co-ordinate procedures and requirements relative to tenant requests for transfer: review all documents pertaining to tenant transfer requests prior to District Transfer Committee meetings, to ensure that all necessary data is provided; maintains accurate records of all tenant transfers; prepares and distributes agendas and minutes Of all District Transfer Committee meetings; directs the distribution of letters to tenants ensuring that each tenant involved is notified of the committee decision. Other duties as assigned by District Administrative Officer. -6- The position specification outlines the following skills and knowledge required to perform the work: Grade 12 or an equivalent combination of education and experience. Completion of related courses in office management and administration would be an asset. Several years progressively responsible clerical experience together with proven supervisory ability. Ability to colrnounicate both orally and in writing. Tact, good judgement. His immediate supervisor was Mr. Hassan A. Ramji. Mr. Ramji assumed his position as District Administrative Officer in August 1976. The office is located at Jane Street and Highway 401 in the Municipality of Metropolitan Toronto and the office is responsible for the administration of the Ontario Housing accommodation provided by the Province in that area. Mr. Ramji had a staff of seven including Mr. Prew, the grievor. Basic responsibilities of the office relate to purchasing, control of accounts receivable and payable, and the collection of rent. Ramji testified that Prew knew nothing about basic accounting principles and the procedure of reconciliation, both of which were necessary to perform the work, and Prew explained that he was new on the job. Accordingly, Mr. Ramji spent a good deal of time instructing the .grievor during'the first three months of their working relationship. Mr. Ramji testified that during this period the grievor was simply unable to assume any responsibility. However, at the end of this three months, the grievor was left on his own and became ill after a week, resulting in an absence from work for six weeks. While he was absent a large number of unpaid invoices were discovered in his desk. He returned to work in December of 1976, but was again unable to shoulder the required job duties. This caused Mr. Ramji to prepare a formal evaluation of the grievor's performance. His -7- report to district manager Mr. F. Kelk is dated February 18, 1977 and contains a detailed assessment of Mr. Prew's performance problems which were numerous and fundamental. A meeting was held with the grievor and the inventory of performance problems went unchallenged. Mr. Kelk then wrote a short memorandum to Mr. G. Frizelle, appending Ramji's report and recommending: I' (1) That because it seems apparent that Mr. Prew is unable to perform due to either a health or emotional problem, that investigations be made to determine if his case comes within the frame of L.T.I.P. (2) That he be placed in work better related to his experience ability and more suitable for his health." A further inventory of the grievor's shortcomings are contained in a memorandum dated March 21, 1977 from Mr. Kelk to Mrs. Niddrie following additional meetings with him and by memorandum dated April 1, 1977, Mr. R. K. Scott reviewed a meeting with the grievor held on March 29, 1977. This memorandum directs the grievor to assume all the duties and responsibilities of the senior clerk and that Mr. Ramji would monitor his performance and report through Mr. Kelk to Mrs. Niddrie on the level of his performance withina two month period. It was indicated that should he fail to achieve an acceptable level of performance he would be terminated in accordance with Mr. Crosbie's letter of December 11, 1975. The duties and responsibilities he was expected to perform were set out in a schedule appended to this memorandum, During the following two months some improvement was evident but his performance was nowhere near an acceptable level. At no time did he perform more than fifteen percent of the required duties and review meetings -8- were held with him every week during this two month period. Mr. Ramji's evaluation was conveyed to the grievor by memorandum dated June 9, 1977 and this report was sent to Mrs. Niddrie with the attached recommendation and evaluation. MEMORAWDUM TO: FROM: Mrs. B. Widdrie Mr. H. A. Ramji CCNFIDEETIAL D.F.S. Mr. F. W. Kelk RE: MR. GEORGE T. PREW~ In response to Mr. R. K. Scott's memo dated April 1, 1977, I submit the report on' Mr. George Prew, on his performance during the last two months. (1) Memorandum addressed to Mr. Prew is self explanatory. (2) In my observations, I feel George is a very likable person and if given a chance to choose his career involving Public Relations or such clerical work suitable to his ability and experience, he may exhibit better performance. I have discussed with him (off the record) of various possibilities as follows: (a) He may try to choose a career to his ability and liking and request for a transfer to the Management, if such a vacancy exists in the Ministry. (b) If he feels that some kind of ill-health, depression or any such justified reason is holding him back to work efficiently, he should consult his physician and take necessary steps to obtain benefits,from programmes such as L.T.I.P. or so. (c) That if he feels he wishes to improve himself in the present employment, then he will have to undergo educational prograsmm which will extend anywhere between six months to two years. However, I told him under the circumstances, this was a remote Possibility of being accepted by the Corporation. -9- In my above discussion, I cleared the air with him that these were my personal suggestions and he should not reply on them rather make his own decision. The matter is now ieft in your good hands. H. A. Ramji District Administrative Officer His performance continued at the same substandard level, making it necessary to employ temporary staff and to distribute many of his duties over the existing staff. This dislocation in the functioning of the office is reviewed in a memorandum dated October 31, 1977 from Mr. Kelk to Mr. Frizelle and in further memoranda dated January 10, 1978 and January 12, 1978 between Kelk, Mrs. Niddrie and Mr. Frizelle. Between January 1978 and May 1978, the grievor was absent due to sickness for a total of thirty eight days scattered throughout these months. By letter dated May 2, 1978, Mr. Kelk reviewed this problem with the grievor and directed him to undergo a medical examination. At about the same time, a formal review of his work performance was again undertaken and by letter dated May 4, 1978, Mr. Crosbie advised him of his dismissal for failing to meet the requirements of.his position. We observe that the grievor did not testify on his own behalf. The Union argued that no culminating incident'had been established; and that the employer failed to take sufficient measures to understand the cause of Mr. Prew's performance problems and absenteeism. We are of the opinion both submissions are without merit. The grievor's performance has been an issue since he was first demoted and a great deal of time was devoted to resolving his problems by various - 10 - supervisors. We have no hesitation in concluding that the grievor was unable to meet the requirements of his job as senior clerk. The only issue in this case is whether dismissal is excessive and, unfortunately, the grievor never testified before the Board to provide it with some understanding of his underlying problems and existing capabilities. In the typical dismissal case, where cause for discharge has been established, the onus is on the grievor to adduce evidence that would cause a board of arbitration to modify the penalty imposed. (See Phillips Cables Ltd. (1974). 6 L.A.C. (2d) 35 (Adams)). However, this is not a typical disciplinary discharge. Rather it involves a non-disciplinary termination based on the employee's inabiljty to meet the requirements of his position and, in this context, one consideration gives us concern independent of any evidence that the grievor might have brought forward. This concern relates to the unilaterial demotion of the grievor in 1975 to a position for which he was unsuited. No explanation was given for why the grievor was demoted to this particular position as opposed to another position not requiring familiarity with accounting principles. Admittedly, the grievor may have, been fortunate in retaining a job in 1975, but the question of whether the grievor should have been dismissed at that time is not before us. In Mr. Crosbie's letter of December 11, 1975, he advised the grievor that the job would be of a routine nature. However, the evidence of Mr. Ramji indicates that knowledge in accounting principles was fundamental to the job and the grievor was so deficient in this skill that he was asked whether he wanted to go back to school. We also note - 11 - that the grievor's problem was identified as early as August 1976 and one of the first eval,uations recommended employment in another capacity. Accordingly, it is our concern that the grievor was demoted to a,job he was simply incapable of performing, with the result that his performance in that job is not an indication he is unsuited to any work that might be assigned to him. In other words, the work assignment to him appears to have been insufficiently routine within the meaning of Mr. Crosbie's letter. Having regard to all of this evidence we direct that, as of the date of this decision, the grievor be treated by the employer as an employee on layoff and that he be given immediate consideration for work within his qualifications and capabilities. Because the employer has not established the grievor is unsuitable for any work that might have been assigned to him and having regard to the grievor's seniority, his age, and the fact that at one time he performed in a very responsible position, the Board is of the opinion that dismissal is excessive. However, because of these same facts and because the grievor did not come forward at the hearing with an explanation for his problems and a demonstration of his capacity for work, no compensation is to be awarded. Dated at Toronto this 30th day of March 1979. Chairman (I concur) Mrs. M. Glbb (I concur) Mr. 0. Anderson Member Member