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HomeMy WebLinkAbout1979-0048.Corridore.81-01-19IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD 'Between: Mrs. M. V. Corridore - And - The Crown in Right of Ontario Ministry of the Attorney General Before: J.F.W. Weatheriil Chairman M. H. Gibb Member H. Weisbach Member for the Grievor: I. Roland, Counsel ior the Employer: J. Zarudny, Counsel I I . . Hearing: December 29th, 1980 180 Dundas Street West Toronto, Ontario M5G lZ8 Suite 2100 -2- DECISION The grievor began her period of probationary employment on February 28, 1978. She first worked as a Data Entry Operator 2 at the Summons Office or Richmond Street, in Toronto. In May, 1978, her "three months" appraisal included a recommendation that the grievor be released from service. It was considered that she had not learned to perform her assigned work in a satisfactory manner. That recommendation was not acted on and the grievor was, instead,given c&xintemForary clerical work to perform in the Summons Office (although there was no regular position available), and she performed such work satisfactorily. Then on July 3, 1978, the grievor, in order that she might have another chanceataregular position, was trans- ferred to a position of Clerk 2 General at the Mail Tag Office in the Old City Hall. While the quality of her work was satisfactory in the sense that it was felt the grievor was capable of performing it, there were, it was felt, many errors attributable to her. Since the work on the tag desk to which the grievor was assigned was largely "team" work, there may be some difficulty in attributing particular mistakes to the griever. -3- In the "nine-month" appraisal dated December 29, 1978, it was concluded that the grievor was unsatisfactory, and it was again recommended that she be released. This recommendation was acted on, and on January 12, 1979, the grievor was advised of her release from employment pursuant to section 22(S) of The Public Service Act, effective February 2, 1979. Section 22 of The Public Service Act is as follows: 22.-(l) A deputy @istet may, pending an investi- ~~~~0. @ion, suspend from employment any public servant in tim~~ti his ministry for such period a the regdatiom presctfbe. and dating any such period of suspension may withhold the salary of the public servant. (2) A deputy minister may for c&se remove from &loy- b& ment without salary any public servant in his ministry tziLmm*t for a period not exceeding one month or such lesser period as the regulatiom pracriba (3) A deputy mfhfstet may for cause dismiss from employ- m” meat in accordance with the regulations my public -nt iahismiaistry. (4) A deputy minister may release from employment in~$~~~~ aaordaacc with the regulations any public servant where he considers it necessxy by r-n of shortage of work or funds or the abolition of a position or other material change in organization. (5) A deputy ~mfnister may release from employment Id*m any pubtic servant during the fvst year of his employment for faihue to meet the rquitements of his position. R.S.O. 1970. c. 386. s. 22; 1972. c. 1. s. 2. -4- In the instant case, there is nothing to suggest that the employer resorted to this procedure as a colorable device to disguise what was really a form of disciplinary action against the grievor, nor is such a proposition advanced by the union. Indeed, the grievor's superiors met with her on several occasions in order to help her understand and adapt to her work, and to uncover any problems which she might be having. The grievor complained (with respect to her work at the Mail Tag Office;, thatherfellow employees were behaving unfairly towards her, and that she was made to do the bulk of the less- desirable work. The employer did not brush aside these complaints, but listened to them and investigated them. In our view, the action taken in terminating the grievor's employment was one which it was open to .the employer to take under section 22(5) of The Public Service Act, and the grievor was in fact released under that provision. Any jurisdiction this Board might have in such a matter is set out in section 17(2) of The Crown Employees Collective Bargaining Act. That section is as follows: -5- . CA-- (2) in addition to any other rights of grievance under a collective agreement, an employee claiming, (a) that his position has been improperly cbusified; (b) that he h& been appraised contrary to the gover- ning principks and standards; or (c) that he ha. been disciplined or dismissed or sus- pended from his employment without just cause. may p- such matter in accordance with the grievance procedure provided in the colktive agreement. and failing fmal determination under such procedure. the matter may be processed in accordance with the procedure for final deter- ~&ion applicable under section 18. 1974. c. 135. s. 9, park Obviously this is not a case coming under section 17(2) (a) . It is conceded by the union that it is not a case coming under section 17(2)(c). It is contended, however, that it does come within section 17(2)(b), that is, that the grievor has been "appraised contrary to the governing principles and standards*. There were, as we have seen "three-month" and "nine- month" appraisals of theqrievor's work carried out by her supervisors. There is no doubt that the supervisors carried out these tasks fairly and in good faith. The appraisals are set out on standard forms and evaluate the grievor under various heading relating to relevant aspects of work performance and the employment relationship. Whether or not this Board, or some other person considering the matter were to arrive at the same conclusion as did the -6- employer, the fact is that the employer made a bona fide appraisal of the grievor, and it has not been shown that the appraisal'was made "contrary to the governing principles or standards* which might apply. Indeed the material before us suggests that the grievor's appraisal was made in accordance with such principles and standards. The employer actedinthe exercise of its clear power under section 22(S) of The Public Service Act. This Board has no jurisdiction to sit in what would in effect be an appeal from a decision to release a probationary employee, although we may have to make a preliminary determination as to whether or not there was in fact a release. Here there clearly was. The release, in the instant case, was apparently decided on the basis of an appraisal, (in the formal sense of the term probably contemplated by section 17(2) (b) of The Crown Employees Collective Bargaining Act), but it has not been shown that there is any necessary connection between the making of an appraisal (which must be done in accordance with governing principles and standards), and a decision to release a probationary employee. -7- For the foregoing reasons the claim that the qrievor was appraised contrary to the governing principles and standards is dismissed. The claim to have been dismissed from employment without just cause is also dismissed, since the grievor was releas~ed on probation. DATED AT TORONTO, this 19th day of January, 1981. khairman "I concur. Mary H. Gibb" Member - "I concur. Henry Weisbach." Member