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HomeMy WebLinkAbout1980-0095.Pecoskie.81-03-23Between: Before: GRIEVANCE ;k;;bEMENT IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD For the Grievor: For the'Employer: Hearing: December 22, 1980 Miss Jean Pecoskie. Grievor - And - The Crown in Right of Ontario (Ministry of Correctional Services) Employer P. G. Barton Vice Chairman D. Middleton Member M. Perrin Member I. Roland; Counsel Cameron, Brewin & Scott C. F. Murray, Counsel Hicks, Morley, Hamilton & Storey I. ._ _ .~.. - 1 m, 2- On March 23, 1980 the grievor Miss Pecoskie was terminated from her position as Correctional Service Officer I in the Millbrook Correctional Centre, Millbrook, Ontario. In a grievance filed January 24, 1980 she grieved unjust dismissal and asked for a reinstatement with retroactive,pay. Before we deal with the facts we might indicate'the relevant partsof the Collective Agreement and Statutes as well as prominent cases we have taken into considerationrand the, approach we take to the matter. Article 2~7.6.1 of the relevant Collective Agreement provides that a probationary employee who has been dismissed or released is unable tom file a grievance. Section 17(2)of the Crown Employees Collective Bargaining Act, 1972 provides as follows: . . "In addition to any other rights of grievance under a collective agreement, an employee claiming, (a) that his position has been improperly classified; (b) that he has been appraised contrary to the governing principles and standards; or (c) that he has been disciplined or dismissed or suspended from this, employment without just cause, may process such matter in accordance~with the grievance procedure provided in the Collective Agreement, and failing final determination under such procedure, the matter may be. processed in accordance with the procedure for final determination applicable, under section 18.*, Section 22 (S).of the Public Service Act provides as follows: 'A Deputy Minister may release from employment any public servant during the first year of his employment for failure to meet the,requirements of his position." There have been a number of cases dealing with the the jurisdictional problems surrounding these provisions and we have read them carefully. The issues as we see them are as follows: 1. Was she a probationary employee when her employment was terminated?. 2. If so, was she dismissed or released? 3. -If dismissed, was it a'dismissal without just cause pursuant to section 17(2) (c) supra? 4. Is just cause in the case oft a probationary employee diffe.rent from that in the case of a regular employee? 9. .If released, do we have jurisdiction under s.l7(2)c to review it? 6. If released, is the provision in section 17(2),(b) supra sufficient to give us power to review it? The general approach we have taken to this problem is that set out in the cases of Leslie 80-77 and Haladay 94-78. We agree with the sentiments expressed in those cases that what appears to be a release on its face may be colourable and may in fact be a dismissal and that we should look at the substance of what was done rather than the procedures that were followed. In August of 1978 the grievor became a casual employee of the Millbrook Correctional Centre, one of the first two women so employed. On March 23, 1979 she was appointed as a Correctional Officer I.for a probationary period of one year effective April 2, 1979. This was back-dated to March 12, 1979 upon proof that she had been working full time since that date. One of the requirements of her employment was stated to be that she "exhibit acceptable performance during her first year of employment". 1. Was she a probationary employee when her employment was,terminated? The relevant section of the Public Service Act refers to "the first year of hi.5 employment". The scheme of appointment to the civil service involves appointment to a probationary year : '..~..~ prior-to appointment to regular service.. -It-is clearthat, as. ,. ;,~: far as: her employerwas concerned , she was in her probationary year at the time she left. Then question., which was not adequately '-" canvassed at the hearing, is whether or not the phrases "'the first .' year of his employment" is a reference to the probationary year. It should be remembered that for about eight months prior to March 12. 1979 she was a part-time employee. : We are satisfied that, for the purposes of this~ award she was in "the first year of her employment: and that s.22(51 was applicable. Any other interpretation would frustrate the purposes of having a.probationary year of full time employment. We are supported in this conclusion by the decision in Dorothy. Johnston, January 20, 1981. In that case an employee had worked full time in the unclassified public service from December 8, 1976 was appointed to the classified service on November 27, 1978. She was subsequently released'within one year and the board agreed' that s.22c.5) was available to the employer. We agree. that the date of formal appointment is significant and in our case that date is March 12, 1979. 2. Was she dismissed or released? I.. It was pointed out at the hearing that attendance is very important at Millbrook Correctional Centre, perhaps more so than at any other correctional institution in Ontario. The reason for this is,the requirement of a large number of staff to escort -5- prisoners throughout the facility, something not done in many or in most other prisons. In addition there is a need for a certain minimum number of security officers to maintain security in the institution. If on a particular day the number of,people coming inky to::work,is not adequate it is necessary for the institution to hire casuals and to pay them overtime. At the time the.grievor was hired Mr. Whibbs a Regional Personnel Administrator stressed in an interview with her that attendance was important. At the time of her termination the superintendent Mr. Rundle had before him her personnel file. It showed a total of 21 l/2 'days of absences between the date of hiring and the date of termination. Four of these incidents were in connection with -. regular days off. According to the personnel file three of the incidents were in connection with Wofkmens'.Compensation Board claims. One of these incidents for five days was known by the employer to be for sick time when the grievor had pneumonia. Although this information did not appear in the personnel file available to Mr. Rundle at the time he terminated the employee it appears that almost all of the other incidents were for what could be described as medical reasons. Many of these reasons were substantiated by medical evidence~called by the qrievor as well as by call-in slips and monthly appraisal forms which referred to her absences as because of sickness. In April 1979, for example the reason for the absence -was because of a bad sunburn which the qrievor received on a trip to New Orleans. Other reasons which the employer accepted included food poisoning, pneumonia and a sore back. On four of the occasions when the qrievor called in she described her problems as being one of flu or a headache or'other medical reasons. In her evidence she _---- _--. ^i : ::,., '.. , __. ..-!~..~ . . . .~ : _ _' .'. '.?,~ '. - 6 Y' indicated that on all four occasions she suffered from symptoms associated with her menstrual period, which she said caused her more discomfort than the average woman. A summary of the personnel record informatiom shows that there were approximately thirteen separate~incidents involving her being absent from work apparently all or almost all for legitimate medical reasons. As mentioned earlier one of' these absences between: :: :_* September 7 and 13, 1979 was for five days for pneumonia. On September 11 a letter was. sent to the grievor stating that the .,~: Attendance Review Committee had reviewed her attendance and found it to be unsatisfactory and including the following paragraph: "This letter is to advise'you as you are on probationary staff and your attendance is one of the many factors which is considered before appointment to regular staff, an improvement in this area would enhance your chances of being placed on regular staff". We are satisfied the qrievor did receive this 'letter and must . have been aware of the significance of her bad attendance record. She was interviewed about a problem of punctualitythat she had by Mr. Drury on September 14, 1979.. Following this interview there were six separate incidents of attendance, the final one being a Workmen's Compensation absence which took four,days between January 8 and Jauary 14, including three days regular days off. Onabout January'15, 1980 her Superintendent Mr. Rundle called the duty office in which the grievor was occupied, at about 1O:OO.p.m. This was' an internal call in the sense that it was all on an internal circuit within the Correctional Centre and the normal procedure in internal calls would be for the caller to identify his or herself before asking for somebody. In this case Superintendent Rundle did not identify himself and merely asked for Lieutenant Latke. The qrievor identified herself as i Officer Pecoskie and upon the request for Mr. Latke apparently stated: "Yeh, just a minute". Proper decorum would be for her to ~say "yes sir" and apparently or. Rundle was a bit concerned about her failure to do. so and directed Mr. Latke to "chew her out"... j.. :: i .~'.~ ,. Mr.. Latke apparently did' speak to her about, say.<ng:."'yeh"., ,in,s,tead:~: .:I ~_ '. of."yes sir". These matters were documented. "Qn January 23, 1980' or perhaps on the-.ev&nq~~o~f Ja&ry .. 22,, the qrievor received her notice of terminatiorr'~which is a ._ standard form release letter indicating that she had~.failed~ to.' establish and maintain a satisfactory record of attendance. I~t , mentions the fact that she wasp advised in S'eptember~l97.9 that.her record of attendance was unsatisfactory and that she was being released according to Section 22(S) of the Public Service Act for failure to meet the requirements of her position. The only other evidence relevant to the matter is the fact that her monthly appraisals by various supervisors within the institution showed that she was a good officer, a willing worker, was learning a job and showed every indication of being competent. We might now address~ some of the questions referred to earlier. The basic question is a jurisdictional one, whether or not this was a dismissal or a~ release. On its face it purports to be a ,release and the only evidence we have that it might be a colourable release, is the reference to the telephone call on January 15. The qrievor suggested that Hr. Latke and Mr. Rundle had taken the matter far more seriously than they indicated at the time, and even suggest that Mri Latke had told her she should not have angered Mr. Rundle and that he was upset. Mr. Rundle on \ -a- the other hand indicated in his evidence that he had not considered the incident to be a significant one and that it was not the reason for terminating her employment. There is some suggestion in the grievor's argument that the personnel file or various files in the institution had been laundered to remove documentation relating to that incident; That is a very serious allegation and one that should not be made lightly and we are .zcatisfied that we have not seen any evidence whatsoever that this occurred. Having considered the incident carefully we see no reason why the super- intendent would take it any more seriously than he claims he did and are unable to accept the argument that this was the reason for her termination. It may well have been the catalyst that led to a review of her attendance record. That is different from saying that it was the sole or major reason for her termination. We are satisfied that she was released and it is unnecessary for us to consider the third and fourth questions set out above (p.2). 5. If released do we have jurisdiction under s.l7(2)c to review it? As stated in Leslie and Haladay E, and subject to what~ might be the effect of s.l7(2)b, once we find a non-colourable bona fide release we do not have any jurisdiction under s.l7(2)c to -- review it. , 6. If released, is the provision of s.l7(2)b sufficient to give .us power to~review it? The question of appraisals has been before the Board on other occasions. Ins Scott 23/76, the matter of the standard to be applied -9- to what was agreed to be an appraisal was considered. In Haladay 94/78 the Board expressly declined to give a final determination to the question, as had the Board in the earlier case of Leslie 80/77 at p.13.. More recently a further attempt was made to challenge the validity of a non-colourable release under s.l7(2)b. In Tucker 206/78, the learned Chairman, referring to s.l7(2,)b at p.5 indicated as follows, "What is contemplated there is, we think, an appraisal of work performance according to a formal procedure." We have not had the benefit of evidence or argument on the question of what is or is not an appraisal contemplated by s.l7(2)b and accordingly are not inclined to seize jurisdiction in this case under'that provision. . We are inclined to agree with the thoughts of the Chairman on this issue. . Even if we had accepted jurisdiction under s.l7(,2)b we think that what was..done here was far from being "manifestly wrong" in the words of Scott 23/76. -. In the result we feel that we lack jurisdiction in this case,,and dismiss the grievance. ~Because of the result we have not considered here the question, of the applicability of the recent Supreme Court of Canada decision in Leeminq. DATED AT London, Ontario this 23rd day of March,. 1981. Peter G. Barton Chairman "D-B. Middleton" I, concur/&rat Member "M. Perrin" M. Perrin Member (dissent to follow March 9, 1981) . _