Loading...
HomeMy WebLinkAbout1979-0267.Rotundo.81-03-11” IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Mr. Nicholangto Rotundo - And - The Crown in Right of Ontario Ministry of Correctional Services Before: Prof. J.R.S. Prichard Vice Chairman Mr. G. Peckham Member Mr. J. Smith, Member For the Grievor: Mr. R. Nabi, Grievance Officer Ontario Public Service Employees Union For the Employer: Mr. J. Benedict Ministry of Correctional Services Hearing: July 22nd, 1980 August 26, 1980 -2- In this case the grievor, Mr. Nicholangelo Rotundo grieves that he "was not given proper consultation and that (he) was coerced into the signing of (his) resignation". He.seeks to be reinstated without loss of earnings. At the,time of his alleged resignation the grievor was a plumber at the Mimi& Correctional Centre. The employer takes the position that the grievor's resignation was voluntary and therefore should be given effect. In the alternative if the resignation is found to be ineffective the employer argues that the grievance should be dismissed onthe grounds that if he had not resigned, the grievor would have been released under Section 22(5) of the Public Service Act for failure to meet the requirements of his position. With respect to the question of the voluntariness of the resignation,the employer bases- its case squarely on the Board's decision in me lrloore (128/79). The employer takes the position that the facts in the case before us are virtually identical in all relevant respect to the facts before the Board in me MOOE and that the Board should therefore find the resignation to be effective as the Board did in Re Moore. We have carefully reviewed the Board's decision in me MOOE and find both the statementofthe arbitral jurisprudence with respect to resignation and the application of that jurisprudence to the facts of the case to be highly persuasive. We therefore intend to adopt this jurisprudence without restating it and to apply to the facts before us. Refe,rence to'the extensive jurisprud- ence in this area can be found in the Board's decision in Re more \ -3- 'and me m.~~ray (34/76). The grievor was hired as a Maintenance Plumber at the Mimic0 Correctional Centre on September 13th, 1978. He has been a licenced Plumber since 1966 and is 44 years old, married with five children. Prior to joining Mimic0 the grievor had worked with Keele Plumbing for over 10 years. The griever's native tongue is Italian and he speaks English only as a second language. He did, however, pass Grade 10 English and he did successfully complete a course in plumbing at George Brown which required him to do some reading of technical materials in English. The grievor last worked at Mimic0 on September 21st, 1979. At the outset we must recognize that there were very significant differences between the evidence offered by the grievor on his own behalf and the evidence offered by the witnesses for the employer. On crucial points the two stories differed and thus we have been forced to make findings of credibility in order to reach our factual conclusions. In every important respect we have pre- ferred the evidence of the employer's witnesses to that of the grievor. On the important points we found the grievor's evidence. was either confused or lacking in credibility in that he denied certain things that in light of all the circumstances seem to be almost .beyond challenge. In particular, the grievor consistently denied being aware of the negative appraisals he received in the course of his employment with Mimic0 and this lack of awareness simply does not square with the facts which included appraisal forms which he had initialled in acknowledgement and numerous dis- -4- cussions' he had in Italian with the Superintendent of the Centre concerning his performance. In contrast to the grievor's evidence, the evidence of the Superintendent, Mr. Carlo OeGrandis, was entirely credible. Mr. DeGrandis appeared to us to be entirely forthright and on important points we find his.evidence to be the most reliable. What follows is the facts as we find them. Where there were major discrepancies in~the evidence, we have indicated them although we have concentrated on providing our conclusions. From the outset of the grievor's period of employment at Mimic0 his supervisor found his performance to be inadequate. Beginning in September 1978; the grievor was ranked between poor and nil for the following categories: ability displayed, initiative, acceptance of responsibility and attitude to rehabilitation. With respect to interest, ,he began at the average level but then declined to nil /* Similarly with respect to attitude towards department and other staff he began at average and deteriorated to poor and then nil. During his period of employment he maintained average or good scores on both appearance and attendance. Employees at Mimic0 are rated monthly and the employee is required to acknowledge re- ceipt of the appraisal form which the grievor did every month until the end of his period of employment. In addition, the grievor saw written comments on his performance. For example, his November 1978 appraisal included the following: "On checking your work performance as a plumber, we find a lot to be desired. YOU appear to have little knowledge of the type of work required of you in this institution. -5- We are concerned about your lack of abiiity, knowledge and initiative. We have also noticed errors in regard to requirements under plumbing -\ codes and time taken to complete assignmerits given to you. up until the present, your performance is un- satisfactory and a close watch will be kept on the amount of time taken to complete projects assigned to you. Also, we will be watching the ability and proficiency you display as a plumber- tradesman. You are on probation for one year and a higher quality of work will b$ required from you. This coonselling is given to you in the expecta- tion that your performance will show a marked improvement." Similarly, in a written report dated June 29, 1979 which was acknowledged by the grievor it was stated: “Mr. N. Rotundo's monthly appraisal report has indicated that his performance has been and is still, not satisfactory. He is lacking on any kind of maintenance work. He does not know any . rules and regulations pertaining to the plumbing code. He has been counselled on numerous occasions, but this has not had any effect on him." That same appraisal form included a recommendation that the grievor not be appointed to regular staff. Other written appraisals were put before us and they conveyed the same message of dissatisfaction on the part of the supervisor with the per- formance of the grievor. The probationary period for an employee in the posi- tion of the grievor extends for one year. Therefore, his proba- tionary period expired on September 12, 1979. Inanticipation of this anniversary date, the Superintendent of the Centre, Mr. DeGrandis, reviewed his files .in August since he was going on -6- vacation at the end of August. He concluded that unless the last reports from the grievor's supervisors showed a "measurable im- provement" in the grievor's performance, the grievor should not be continued in employment at the Centre and should be released. He left the instruction with his Deputy Superintendent, Peter Jackson, who was left in charge during the Superintendent's holidays in late August and early September. The Deputy Super- intendent exercises all the powers of the Superintendent in the Superintendent's absence. As instructed, Mr. Jackson met with the grievor on August 28, 1979 to review his performance and to take action on it. In a meeting that extended for approximately one hour Mr. Jackson and the grievor reviewed and discussed the performance reports on the grievor, the grievor's concerns about those reports and Mr. Jackson's conclusion that the grievor's performance was unacceptable. Much of the time in the meeting was devoted to discussing the grievor's disagreement with the findings of his supervisor. Near the end of the meeting Mr. Jackson informed the grievor that he was going to be released from employ- ment and that this meeting was more than just another performance review. At this point in the meeting, the grievor asked Mr. Jackson what could be done to help him and Mr. Jackson indicated that he would be willing to accept the grievor's resignation. There followed some discussion of the differences between the release and resigning and the implications of the decision for the grievor's personnel file. Mr. Jackson explained that if the -7- grievor were to resign, the file would indicate that fact and if the employer were,asked for a reason for the grievor's leaving they would simply relay the content of his resignation letter. Mr. Jackson suggested that the grievor should go away for a day to decide what action he was to take and that he should come back the next day with his mind made up. The grievor inquired as to what his resignation should say and at one point asked Mr. Jackson to write the resignation for him. Mr. Jackson declined to write it, but told the grievor that it should contain the date he was to resign, the words "I hereby resign" and the reason for his resignation so that it could be quoted to any future employer who might inquire. The grievor made notes at that time and then left the office. The next day in the mid-morning Mr. Jackson called the grievor to his office again. At the beginning of the meetingi the grievor wished to review the performance appraisals further .but Mr. Jackson refused on the grounds that they had been tho- roughly reviewed the day before. Mr. Jackson then asked the grievor if he had reached a decision and the grievor said that he had decided to resign. At this point the grievor provided a piece of paper in his hand-writing which was dated August 29,, 1979 and which stated in full "I Nick Rotundo resine my position as of September 13/1979. (Signed) Nick Rotundo". The discussion in the meeting then turned to the subject of the grievor's future and the grievor indicated that he was less than confident of his ability to get another job -8- immediately. In addition, the grievor said that he would like \ to delay his leaving his employment because he wanted to see the Superintendent, Mr. DeGrandis again. It was agreed that his termination date should be extended from September 13th to'Sept- ember 21st;1979 ,and the written resignation was amended by Mr. Jackson to that effect. The next event occurred on September 21st, 1979 when the grievor spoke separately with both Mr. DeGrandis and Mr. Jackson. In the afternoon the grievor approached Mr. Jackson-and asked to get his resignation back. The grievor was accompanied by a representative of the Union who indicated he was not familiar with the situation but that he was the only person on duty that afternoon. Mr. Jackson denied the grievor's request to return his resignation to him saying that it was well past the time for the end of his employment as initially agreed upon and that his resignation must stand. The meeting that same afternoon with Mr. DeGrandis occurred as a result of Mr. DeGrandis'returning to the office a day earlier than scheduled. He was not due to work until Monday but he decided to attend at the office unannounced in order to catch up on his mail. He was advised that the grievor wanted tolsee him and he agreed to meet the grievor. The grievor advised him of his resignation and told him of his continued dis- agreement with his supervisor's assessment. Mr. DeGrandis formed the impression that the grievor was hoping that Mr. DeGrandis would permit him to withdraw his resignation, but he felt that the grievor recognized that he would not and the meeting ended with Mr. DeGrandis wishing the grievor well. At this stage both Mr. Jackson and Mr. DeGrandis were unaware of the grievor's grievance. That grievance The grievor viewed the entire matter quite differently. He claims that from the outset he did not know he would be on probation.when he went to Mimico. Furthermore, while he had : signed papers from time to time, he claimed he did not always know ' what he was signing. Since nothing happened each time after he signed the papers, he did not think much of it. With regards to was filed sometime on September 21st, 1979. As described by the witnesses for the employer, this is a case of a probationary employee who performed poorly over a 12-month probationary period and showed no signs of improvement during that.period. In the absence of any improvement, the employer decided to release the grievor before he completed his probationary period and joined the permanent staff. Once this decision was com- municated to the grievor, the employer offered him the alternative route of resigning so as to protect his employment record and,the grievor accepted this alternative. He did so after being given 24 hours to think the matter over. Furthermore, he even worked three weeks following this decision before raising with anyone in management his dissatisfaction with his decision. It was only on his final day of employment that he raised his dissatisfaction. At this stage, 'management refused to allow the grievor to revoke his resignation. At this stage, as a result of the extension of the grievor's period of work, the grievor had completed his probationary period. ,In sum, from the'employer's point of view, this is a straightforward ,case of an employee being given an opportunity to protect his employment record instead of 'being released which the employee voluntarily accepted. - 10 - the meetings on August 28th.and August 29th in Mr. Jackson's office, the grievor gave evidence of only a single meeting which he described as lasting only about five minutes. He said that Mr. Jackson said %e have to let you go" and then "I think it is better for you if you resign because it is better to find a job under the Government." The grievor said he did not know what to do but decided to resign and so signed a piece of paper saying that he resigned. He says that he signed it during the interview on a plain piece of paper that he got from Mr. Jackson. He said that he did not know what to say on the paper and Mr. Jackson told him to say "I resign". The grievor said that he then requested that he be extended until September 21st so that he could see Mr. DeGrandis. He thought Mr. DeGrandis would treat him better since he had showed some sympathy to his plight in the past. Later in his evidence, the grievor admitted that he did have the opportunity to think about the question of his resigna- tion overnight. Furthermore, he acknowledged that it was in his house in the evening between the two meetings thathe wrote the res~ignation letter with the assistance of his brother. The grievor explained that he signed the resignation thinking that it would be better for him and that he would have a better record while looking for a new position. He knew that the alternative was being fired and he thought that being fired would be worse than resigning. However,the grievor testified that he believed that there was no reason for him to be fired since he felt he had carried on his job in the proper way and should 3 be permitted to continue to do so. He testified that he did not - 11 - want to lose his job and that this is why he did not want to resign nor be fired and why he wanted to revoke his resignation and continue working. There was considerable evidence and disagreement about an alleged earlier resignation in March of.1979. That evidence is not directly relevant to the question before us and we have, there- fore, decided not to draw any particular conclusions about that incident. However, our impression of that evidence and thee conflicting stories about the incident was one of the sources of our doubt as to the grievor's credibility and our confidence in Mr. DeGrandis' evidence. The basis of the Union's case on behalf of the grievor is that the grievor was coerced into resigning and that he made the decision to resign wi,thout understanding its implications or the alternatives he had before him. In particular, he was not aware of the opportunity to grieve against any release that.might have been imposed upon him. Furthermore, the grievor was not given the assistance of a Union representative during the meetings in August and it was only on September 21st that he consulted with the Union representative who advised him in his course of action in the final hours of his employment. The question before us is whether or not the grievor's resignation should be interpreted as voluntary and informed and, therefore, effective or whether it should be'found invalid and ineffective. Following the analysis in Re Moore and applying the considerations indicated i,n that case, we have concluded that the - 12 - grievor's resignation was ,voluntary and should'be given effect. This decision reflects a perhaps somewhat more limited notion of the term "voluntary" than that put forward by counsel for the grievor. In the context of an employee who is about to be released by an employer, the term voluntary cannot mean that the grievor has the opportunity to do what he would like most. That is, the mere fact that the grievor in this case was not allowed to do what he wanted to do most - continue working at Mimic0 - does not mean that his resignation was coerced or involuntary. Voluntary in this context means being permitted a free choice among the alternative courses of action available to him. On August 28th and August 29th, 1979 the only two courses of action availableto thegrievorwereeither to be released or to resign. The grievor chose to resign based on his belief that it would enhance his opportunities to obtain employ- ment elsewhere since his work record 'would not reflect the fact that he had been released. In our opinion,the grievor made this decision with an understanding of the circumstances and on a reasonably in- formed basis. While he certainly was not informed of the likeli- hood of success in challenging by means of a grievance the decision to release him, and while he may not have appreciated the full legal implications of his decision to resign, we do find that he made an informed and voluntary choice. Furthermore, there was no evidence that he would‘make a different choice if faced with the same situation again. All the grievor's evidence indicated was that if allowed tochoose between continuing work and resigning he would, of course, prefer to continue work. - 13 - There were two or three factors which might indicate that his decision to resign was less than completely voluntary. / These include the fact that the grievor was not accompanied by a Union representative in his meetings on August 28th and August 29th and that Mr. Jackson initiated the discussion of the resigna- tion option, suggested the wording of the resignation letter and providednote paper on which the grievor wrote some initial notes. With respect to Mr. Jackson's actions we do not think they.are fatal to the voluntariness of the griev~or's resignation. Mr. Jackson testified that the griever-asked him to write the resigna- tion and that he refused saying that it was important that the grievor make his own decision. Furthermore, it was Mr. Jackson's evidence that the discussion of a resignation arose only when he was asked by the grievor what his options were. Sure18 at this point,it was quite proper for Mr. Jackson to inform the grievor of the options before him so that he could make an informed choice. Indeed, if Mr. Jackson had failed to mention the resignation option, the grievor might well have a cause for complaint although not per- haps of a legal nature. Mr. Jackson's error, if any, was in not urging the grievor to seek the advice of his Union or to ensure that a Union representative was present during at least one of the meetings on August 28th or August 29th. This Board has indicated previously the wisdom of ensuring that the employee is properly informed in these situations and that the presence of a Union representative may well be the most appropriate means of ensuring this (see the observations of Mr. Hennessy in Re mrrag (34/76)). However, we have also held that the absence of a Union representa- - 14 - tive is not necessarily fatal to the employer's case. The facts before us are such a case. In conclusion, therefore, we have found that the grievor's resignation was voluntary and sufficiently informed to be effective. The grievance must, therefore, fail and we need not consider the alternative grounds as to whether or not the employer could have released the grievor. Before closing, we wish to add two final comments. First, we wish to stress that voluntariness does not necessarily mean total freedom but rather means only the freedom to choose among the available alternatives. It will be a rare case in which the grievor will not have preferred some course of action other than being fired or being required to resign. That, however, is not directly relevant to whether or not the resignation is effective. The key consideration is whether or not the grievor was allowed to choose.freely among the available alternatives. %cond,casessuchas, the one before us should serve as a warning to management representatives in dealing with the employees who are given the choice between resigning or being released, dis- charged or similarly dealt with. These are situations in which the employee should be given every opportunity to think carefully as to the consequences of his decision. In most cases, it would likely be wise to give the employee time to think about his deci- sion and to urge him to gain the benefit of a Union representative's advice. Furthermore, in many cases it may be most appropriate for the employer to take the initiative in recommending that the grievor have a Union representative join them during the discussion of the - 15 - alternatives available to the employee. If resignation decisions are not handled properly, they are likely to come back to haunt management in a manner similar to the case before us. On the other hand, it would, in,our view, be unfortunate if the employer were to conclude that it was unable to permit an employee to resign in order to provide the most compassionate and sensitive form of termination available under the circumstances of a particular employee. We hope.that this decision along with the decisions,in Re Murray and Re MOOE have provided some guidance to the manage- ment representatives in arranging their affairs in this respect. Finally we wish to thank Mr. Nabi and Mr. Benedict for their assistance in this matter. Dated at Toronto this 11th day of March 1981. . _ -. Prof. J.R.S. Prichard Vice Chairman .. Mr;-G. Peckham Member "I dissent" (See attached) Mr. J. Smith . Member /lb 5 MINORITY REPORT After reviewing,this decision I must respectfully disagree with the majority opinion. In my opinion, the,absence of Union Representatives for Mr. Rotundo on the meetings held on August 28 and 29, is very crucial element in the determination of this award. Due to the fact that the Grievor seemed confused about the consequences of his actions and augmented by the dilemna he ' faced, I am sure that common sense should have prevailed in managements thinking here to offer the Grievor representation unless, however, it was by design rather than by accident, that. no Union representation was-made a&J.able. Adding to the problem previotily mentioned is how the . . resignation took place the Company suggested it, aided in the composition of-the letter and even provided the paper. Also, the Griever should have been told of the alternative of,filing a grievance if he choose not to tender a resignation. ' I& summazy, I believe the grievance should have been allowed DATE: JEFF SMITH, ~@ard Member- Marrh 9. tW-47