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HomeMy WebLinkAbout1980-0156.Maghsoudi.82-02-03IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Mr. Akbar Maghsoudi) - And - Grievor The Crown in Right of Ontario (Ministry of Transportation and Communications) Empioyer Before: *Mr. J.F.W. Weatherill Vice Chairman Ms. M. Perrin Member Mr. A. M. McCuaig Member For the Grievor: Mr. R. Anand', Counsel Cameron, Brewin & Scott .Mr. I. Cowan, Birector Personnel Branch Ministry of Transportation and Communications Hearings: June 22, 1981 November 5, 1981 0, * -2- DECISION In this grievance,~ dated January 4, 1980, the grievor protests a performance appraisal issued to him underdate of November 19, 1979. Such a grievance. may be processed to arbitration before thisBoard pursuant to section 17(Z) (b) of The Crown Employees Collective Bargaining Act. The grievor, who has been employed by the Ministry since 1972, is a Project Research Technician, Classification 4, and works in the Highway Environment Office of the Research and Development Division of the Ministry. No question arises as to his general qualifications or abilities. 'The "Employee Performance Report" in question, Exhibit 1 in these proceedings, contains three sections in which the supervisor's evaluation and comments are to be set out. The Report in question was prepared by Mr.F. N. Jung, a Senior Research Officer and the grievor's immediate superior. The first section of the report is headed "Dresent Performance Rating", and calls for a general evaluation on a scale of se'len levels, from c . -3- ’ "learner" through "marginal", "improving satisfactorily" and "fair", to "competent", "excellent" and "outstanding". The second- section of the report is headed "Supervisory ,Skills Rating". That section does not apply in the grievor's case. The thir,d section is headed "Basis for Rating", and calls for a description of the basis for the rating in the light of the major responsibilities of the employee's job "with special emphasis on results achieved", mention of other factors such as "attendance, punctuality, cooperation, etc.", of plans for future training or- suitability for advancement. In the first section of the report in question, the griever was marked "competent". In the third section the only notation made was "His relationship with other NTC staff has somewhat improved, but needs further improvement". On the evidence, the grievor had been given a performance appraisal on only one previous occasion. That was in 1973, when a different supervisor had rated him "excellent". r . -4- . . the preparation of the appraisal, and was asked what he considered the level of his performance to Abe. The grievor replied that hethoughtit was "outstanding". The supervisor, on the evidence before, us, said that he agreed with that, but that he would not mark the report "outstanding", he would mark it “excellent” because "management doesn't usually take 'outstanding' seriously", and that even he, the supervisor, did not get "outstanding" on his appraisal. The grievor protested, quite justifiably, that the latter consideration should not affect the supervisor's evaluation of the grievor. In the result, of course, the grievor was only marked "competent", the third level from the top. The employer has issued certain guidelines (essentially procedural in nature) and definitions for use in the preparation of employee appraisals. The guidelines refer to "two key elements" of.successful appraisals: "Appraising on the basis of specific performance, while at the same tine remembering that the objective is future or continuing improvement, not punishment for the gast." The definitions of the -f- ., pertinent overall ratings are as follows: "Competent" This overall rating designates .a level of performance which meets the require- ments of the position with normal management support. It is the level for the "Competent" - "Satisfactory" employee. It covers the range of performance from one who satisfactorily meets job standards to the highly satisfactory performance of a qualified and experienced employee requiring minimal management support. "Excellent" This overall rating designates a level of performance which is beyond the normal requirements of the job. It is the level for the employee who possesses valuable experience,ability, and 'energy and uses them to add a plus to the job.' It covers the employees who contribute to Unit Ministry goals by successfully completing difficult assignments outside his/her assigned accountabilities and demonstrating innovative skills above normal. "Outstanding" This overall rating is for employees whose outstanding ability in the position has been clearly demonstrated and recognized by remarkable contributions. It is an extension of the excellent rating and designates a level of performance going significantly beyond the requirements of the position. It will be noted (and is only to be ex?ectedj that the borderlines bet.neen these categories are not Frecise -6- and that difficult questions of evaluation might arise. This Board, in our view, should hesitate to override any bona fide exercise of management's -- evaluation function where fine distinctions of definition are involved; In the instant case, in addition to the evidence, uncontradicted, that the supervisor told the grievor he agreed that he was "outstanding", there is evidence, also uncontradicted, as to the grievor's "valuable. experience, ability and energy" and to his use of theseto "add a plus to the job". From all of the evidence before us, we have no doubt that the grievor demonstrated "innovative skills above normal" - SO that his rating should at least have been "Excellent" - and that, in some instances, the grievor made "remarkable contributions" to the extent that a rating of "outstanding" would have been justified. The only negative factor, suggested in the third section of the report, would appear to relate to what may be a conflict of personality. Abilit; to get along with fellow employees is certainly a proper factor to --I- consider in an overall evaluation, and one's rating in this regard might properly affect one's overall evaluation. The evidence in this case, however, does not establish any general difficulty the grievor might have in getting along with others. One witness, who testified on the griever’s behalf, referred to a "misunderstanding" which had once arisen between hkm and the griever, but which had been satisfactorily cleared up. That misunderstandings arise is normal. It is the ability or inability to "clear them up" which is significant. The more important evidence touching on the matter of relationships.with others relates to certain questions arising between the grievor and the very supervisor who made the evaluation, and involves the sharing of public credit for certain research reports prepared jointly. While the grievor's name does appear on certain published research reports, it does appear from all of the evidence that the importance cf the griever's work was not adequately recognized, and is certain111 not reflected in his performance appraisal. There is evidence, uncontradicted, of instances 05 cublis:led -8- papers based on programs worked out by the grievor for which the Research Officers involved received the acknowledgment. When the yrievorquestioned this, he was advised "not to make trouble*. The grievor did not in fact *make trouble", and on all of the evidence before us we would conclude that the grievor, despite a number of incidents in which he considered he had been unfairly treated, acted with commendable restraint. As to the quality of the grievor's work, the evidence before us is to the effect that it is very high. The grievor established a formula for lamp mortality and revised the contrast-definition formula used in the field of highway lighting. In the latter case the grievor's work changed a basic formula which had been relied on for many years in that field. The importance of the grievor's work was only reluctantly recognized by his supervisor. While many of the grievor's points were recognized by higher officers, little seems to have been done to ensure that his legitimate claims were recognized. Even .,. . -9- at the time the appraisal in questionwas made, the Assistant to the Executive Director of Research and Development advised the grievor that he would take his appraisal out of the hands of the immediate supervisor. Unfortunately, that was not done, and the grievor's record now contains the rather mediocre appraisal of which the grievor now complains. In our view, and having regard to all of the evidence before us, the grievor's complaint is justified. His appraisal was contrary to the governing principles and standards in that it did not fairly and objectively evaluate'the grievor's work on the basis of his specific performance, particularly having regard to the innovative work he did, work which was at times clearly "remarkable". It was suggested by way of relief that the Board should substitute for the appraisal in question an appraisal drafted by the grievor, showing his overali performance rating as "outstanding" and then elaborating, in rather glowing terms, on the basis for such a rating. -lO- . While there may be cases in wh.ich, where there is a finding that an appraisal is contrary to the governing principles and standards, the Board might simply set aside the appraisal, perhaps directing the employer to prepare a new one, it is our view that in the instant case it would be appropriate to direct that an appraisal showing what is .(on the evidence) the employer's true assessment be placedon the employee's record. We do not consider it appropriate to place the appraisal proposed by the grievor in the record. The function of elaboration of the bases for appraisal is properly a management function. For all of the foregoing reasons, and having regard to the circumstances of the instant case, the Board directs that the performance appraisal dated November 19,~ 1979, be set aside and removed from the grievor's record, and that there be substituted therefor an appraisal showing the qrievor's overall performance rating as "outstanding". DATED AT TORONTO, this 3rdday of February, 1982. . "i,, ,. ,'. , .i / .',Iria.'*' I &airman "I concur. "arion ."I; Perrin" Xember "I concur. A.:.!. XcCuaio" Yernber