HomeMy WebLinkAbout1980-0323.Atkin.81-03-09Between:
Sefore:
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:
Ms. Bonnie Atkin
- And -
The Crown in Right of Ontario
(Ministry of Correctional Servicesj
Prof. P. G. Barton Vice Chairman
Mr. F. Collict Member
Prof. F. Collom Member
Mr. R. Nabi, Grievance Officer
Ontario Public Service Employees Union
Ms. V. James, Regional Personnel Administrator
Ministry of Correctional Services
January 13th and ?Dth, 1981
. ~. ,.
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The grievor was hired as a.Correctional Officer I on
a probationary contract at the Metropolitan Toronto West Detention
Centre on May 28th, 1979. On April lath, 1980 she was released,
the effective date of her release being May 2nd, 1980. On May 7th,
1980 she filed a grievance alleging that "I have been unjustZy
dismissed". It was agreed at the hearing that the Board was
properly constituted and had jurisdiction to consider the matter
subject to the normal jurisdictional problems arising in the case
of a probationary employee.
Metro West is a provincial maximum security holding
institution with up to 100 females in custody at any one time as
well as a number of males. The duties of Correctional Officers I
are the normal duties associated with keeping prisoners in strict
security including the making of.counts, supervising, feeding in
cells, escorting, cleaning, and taking to and from programs:
At the time of her hiring the then Deputy Superintendent
Mr. Lockhart interviewed,her and explained the various duties, the
need for security, and was quite impressed with her. The normal
training for Correctional Services officers on probationary terms
is to start with a two-week orientation and in a few months attend
the staff training course of two weeks in length. After approxi-
mately six to nine months a further week of staff training is
normally taken. In the case of the grievor this normal training
regimen was not followed and after a few days at work she was
put into the normal rotation. Her basic training course was one
week rather than two and was held in midJune. She did attend the
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later one week consolidation course.
During the entire time of her employment at the Metro
West Centre, then grievor was having very severe personal problems.
In particular up until December 1979, she had been living with a
husband who physically abused her, showed little or no financial
acumen, and generally made her life at home intolerable. Even-
tually she moved out of the home but unknown to her at the time,
was pregnant. By about mid-March, 1980 she realized that she was
pregnant and informed her employer. She indicated in her evidence
that her entire performance during her probationary year was
adversely affected by, in the first place the problem she had
been having at home, and in the second place the fact that she was
pregnant for three months and did not realize it.
During her time at Metro.West she was under the regular
supervision of Mrs. Ivy Brlek, who was in charge of the female
department there. Mrs. Brlek,indicated that Ms.Atkin started her term
of employment .well but that~the quality of her work deteriorated. Her
primary concern was. that the grievor was lethargic, uncaring, would
argue with inmates, and was not very security conscious. She dis-
cussed this performance with the grievor several times but the
grievor did not disclose the nature of the problem she was having
to her. Her first formal appraisal was on October 11, 1979, at which
time Mrs. Brlek indicated:
“‘Ms. Atkin is stiZ1 ieaming her job as a
ComectionaZ Officer. She sn;‘oys her work,
but is inclined to come on a little her&
with irmtes. Must Zeorn to give and take
a littie partimZarly sith the mental in-
mates. Needs to learn to assess individual
needs of the various types oy inmates”.
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Sometime in November the grievor was involved in a
security problem for which she was given a five-day suspension
without pay. The next formal appraisal occurred in late December.
At this time Mrs. Brlek said as follows:
“Ms. Atkin has been working fairly well. this
past month. At times she is nervous when she
feek she may have made a mistake. At other
times present herself as crpathetic towards
her job”.
. Attached to this appraisal is a note from the superintendent
Mr.Earrett asking Mr. Lockhart to discuss this appraisal with the
grievor and stating:
“I personally have observed this rather
apathetic approach by this officer, which
is somewhat surprising under the circum-
stances”.
Mr. Lockhart interviewed the grievor on January 16, 1980 concern-
ing this appraisal.
At this time the grievor admitted the problem
but indicated that it was because of her personal problems which
had been resolved. I might add that the grievor freely admitted
at the hearing that her performance had been affected during the
fall but felt that it had not been affected as much as the employer
had indicated, and stated that in, the last few months of her enployment
it had improved markedly.
In February the grievor was again evaluated and re-
ceived ratings of B's and C's in the various categories set out on
the Correctional Officers Appraisal Card. The rating scale indicates
that B's and C's are good or acceptable. One witness indicated that
he would have expected a person at this stage of their development
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to have obtained some A's on the appraisal form. A note on the
form indicates:
“Ms. Atkin is trying to improve herself and
her working habits. She is learning the
importance of security, and manages a unit
well. Sometimes~appears not to care when
confronted by supervisors and shows lack of
concern in some areas”. -~
In interpreting this jargon Mr. Lockhart indicated that it was
at best a cautious report; they normally try to give the employee
the benefit of the doubt and such phrases as “she is Zearning the
importance of security It mean that there is a problem there and
that she does not adequately understand the significance of
security .
During the late fall and spring both Mrs. Brlek.and
Mr. Lockhart had a number of interviews with the grievor concerning
her problems. We feel that it must have been apparent to the
grievor that she was not progressing as well as she should, but
that there were good explanations for this. In mid-March when
the grievor indicated that she had heard that she was pregnant,
she was interviewed by Mr. Lockhart concerning her future. The
normal vacation schedule had been pas.ted and as would be expected
she has filled out time on the schedule indicating when she was
going to take her vacation during the following summer. They also
discussed the question of a maternity leave and Mr. Lockhart indi-
cated that this would be available to her. At this stage he
apparently had some doubts about whether she would be appointed _
to the permanent staff and told her that he did not know whether
she would be. We are satisfied that at this interview the employer
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did not hold out any guarantees and that it would be unreasonable
for the grievor to have concluded from the interview that her
position was secure.
On April lOth, 1980 Mrs. Brlek prepared an a;nual
appraisal foti in which she'rated the general quality of service
of the grievor as "not satisfactory" and did not recommend appoint-
ment to regular staff. Her comments are as follows:
%ving appmised Ms. Atkin for almost monthZy
for the past sir months, I WI sorry to say that
I haves found little OF no improvement in her
work habits. She appears lackadaisical, and
at times, not caring about the perfomnance of
her duties. Ms. Atkin was found guilty of a
serious breach of security and uas suspended
without pay for five days as a result.
Ms. Atkin has not been careful in her verbal
approach to inmates. In my ‘presence she has
used profanity to irmiates”.
This appraisal was discussed with the griever on April 18th, the
date ,that she received formal notice of her release, and she indi-
cated that she did not agree with it. It appears that a substantial
proportion of the staff at the institution also disagreed with the
decision to release the grievor.
The primary problem with this grievance is a jurisdic-
tional one. In the now familiar cases of Joyce,and Eriksen, some
scope was 'found for a Board to investigate the merits of a release.
This review of the substantive grounds of release of a probationary
employee was severely restricted by the, subsequent cases of Leslie
#O/77 and Szlladay !94/78. As a result of these cases, which we
accept, once a non-colourable good -faith release is found, the
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Board is powerless to consider the merits of it. In other words
if the release is found to have been a bonafide release under
Section 22(5) for failure to meet the requirements of the posi-
tion, there is no jurisdiction under Section 17(2)(c) of the
Cro~r Employees Collective Bargaining Act to review it.
The only other possible basis for a review of the merits of a
release is Section 17(2)(b) of the m, the appraisal section. ~.
There are considerable problems involved in applying this section
to a release as has been indicated by the Chairman in Tucker W206/78
.and by this Chairman in Pecoskie #45/80.
The position of Counsel for the employer in her able
argument, was that there was no evidence of bad faith anywhere
and that as a result we must assume that the relevant people acted
in good faith in appraising her and as a result are without juris-
diction to consider the merits of the release. The position of the
Unipn was that, in the first place, she was not released because of
failure to meet the requirements of her position, but because of
her attitude. The second argument is based on Section 17(2)(b), and
it is that, because there was no evidence given concerning governing
principles and sta.ndards, she could not have been lawfully
appraised.
Dealing with the first argument,the various grounds set
out in the appraisal of April 10th do in our view, indicate thatas far
as the employer is concerned, she was not carrying out her duties
adequately. It is true that the first two allegations concern
attitude, but as we have indicated, it was a view of the employer
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throughout that her attitude was affecting her ability to carry
out her job properly. We feel that the comments on this appraisal
must be considered in the light of the previous appraisals as well
as in the light of the oral evidence that we have heard which indi-
cate that,far from bei'ng solely concerned with her attitude, the
employer was very concerned about the effect of this attitude on
her ability to carry out the requirements of the position. It
may well be that her forgetfulness, her lack of security conscious-
ness, her apparent agressiveness with inmates at times, were all
caused by the attitude problems referred to in the April 10th
appraisal. Accordingly we feel that the employer did address
itself to the requirements of Section Z(5). The,only evidence
which was suggested to us as providing a basis :for a conclusion
of that there was a colourable release, was the evidence con-
cerning the information given to the employer about her pregnancy.
It was suggested at the hearing that by mid-March her work
had been improving and that as a result of the interview
with Mr. Lockhart where the employer became aware of
her pregnancy, a critical appraisal of April 10th was prepared.
We have very anxiously considered the evidence given by all the
parties concerning the interview in mid-March and are unable to find
any evidence that the employer was angered or put out in any way by
this news.
With respect to the arguments based' on Section 17(2)(b),
in particular that the employer could not lawfully appraise her
without establishing governing principles and standards, it was
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suggested that if there are no governing principles and standards,
the test must be one of the reasonableness of the appraisal. As
has been indicated in previous decisions, to accept this proposi-
tion is to do an end run on e, and ~&a&y (supra) and to get
into the merits of a non-colourable bona fide release. We are un-
prepared to do this.
In the result we feel that we must reluctantly dismiss'.
the grievance as beyond our jurisdiction. We say reluctantly because
we have no doubt that the very severe problems‘encountered by the
grievor in her personal life during the time of her probationary year
adversely affected her performance, and that it was unfair of the
employer, knowing of her problems, to treat her in the usual way as
other probationary employees. We feel that she should have been
given an extension of a probationary term and an adequate chance
to show that she is capable. In this regard we wish that she had
managed to 'slip through' the probationary period as in dip V. -
g #125/77 where an extension of the probationary period was
awarded in similar circumstances. However, we do not have the :
power to do this and leave the consideration of her possible future
to the employer.
Dated at London this 9th day of March 1981.
I w>
Prof. P. G. Barton Vice Chairman
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