HomeMy WebLinkAbout1981-0630.LeBLanc.82-06-08:
IN THE MATTER OF.AN ARBIT~TIOM
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE 'GRIEVANCE SETTLEMENT BOARD
Between: OPSELJ (Isabelle LeBlanc)
- and -
The Crown in Right of Ontario
(Ministry of Consumer & Ccmmercial
Relations)
Before: ,R. L. Verity, Q.C.~- Vice Chairman
H. Roberts - Flember
E. 3. Bounsall - piember
For the Grievor: P. Cavalluzzo, Counsel
'Golden, Levinson
For the Employer: D. W. Brown; Q.C.
Crown Law Office (Ministry of the Attorney General)
Xearings : February 17, 1982
April 26, 1982 April 27, 1982
AWARD
The Grievor, Isabelle LeBlanc, was purportedly "rel,eased"
from her employment with the Ministry as an "Examiner, Financial
Officer 2" with the Pension Commission of Ontario pursuant to
.- Section 22(S) of the Public Service Act. The letter of release
from Leon Dorff, Manager PersonalServices, was dated September
30th, 1981, the last day of her probationary period. By way of
explanation, that letter contained the following paragraph:
"I understand that you have been unable to meet
the performance standards of the position. I
note that your supervisors have advised you of
the specific problems and their expectations,
and that assistance has been offered in an attempt
to improve your performance."
The Grievor alleges "unjust and improper dismissal" and
requests the remedy of reinstatement to the Examiner's position
"with.full back pay and benefits".
There are two issues in this Grievance, namely:
1) Was the termination of the Grievor .a release or
a dismissal?
2) If the termination was a dismissal, was it a
valid dismissal?
The fact situation in this matter is somewhat unusual.
The Ontario Pension Commission commenced operation .in this Province
on January lst, 1965, land is a statutory body under the Pension
Benefits' Act. In essence, the Ontario Pension Commission supervises
and regulates all private pension plans in Ontario. Essentially, it
is. a sma 11 office operation comprising approximately 20 Employees.
The Grievor was hired by the Commission initially on !
January 3rd, 1972 as an Analyst. The position of Analyst under
the old organizational system corresponds to the present classification
of Examiner (the Grievor's classification). The Grievor holds the
Nova Scotia equivalent of a Bachelor of Education and in addition
she holds a Bachelor of Commerce degree from St. Francis Xavier t
University. Prior to her employment with the Ministry in 1972,
she had attained,54 years experience as an Actuarial Assistant
with William M. Mercer Limited in Toronto. In early 1974 the
Grievor was promoted to the position of "Special Projects Officer"
under the direct supervision of the Superintendent of the Pension
Commission of.Ontario, ?lr. J. W. Bentley. For personal reasons,
the Grievor left the Ministry on December 2nd, 1977 to return to
Nova Scotia where she accepted a position with the Nova Scotia
Government as "Senior Analyst!' with the Pension Benefits Branch of
that Government. In effect, she became the senior Employee under the
Superintendent of Pension Benefits in Nova Scotia. Again for personal
reasons, the Grievor returned to Ontario in 1980 and was rehired by
-the Ontario Pension Commission as a probationary Employee in the
posi,tion of "Examiner" on October lst, 1980.
The evidence is clear that the Grievor's.employment
history with the Ontario Government from 1972 to December 2nd,
1977 ~was exemplary and she was considered by her peers and
supervisors as a valued employee. In her position as "Special
Projects Officer" from 1974 to 1977, she was an employee with
considerable responsibility including attending all Pension
Commission meetings and recording the minutes of those meetings.
As Special Projects Officer she assisted and guided Examiners and
Senior Examiners, and made the decision as to, which items would be
placed before the Ontario Pension Commission for its consideration.
Her employment success from 1972 to 1977 with the Ontario Pension
Commission was referred to by the Superintendent of Pensions, J. W..
Bentley who stated - "I was very proud of her work".
When the Grievor returned to Ontario in October of 1980,
the only position available at that time was.the position of
"Examiner"~- a position for which she was eminently~ qualified.
Following her return to Ontario, three separate Employer
appraisal Reports indicated that the Grievor achieved the highest
possible rating in all categories of attendance, punctuality,
demonstrated job interest, quality of work, potential and relationship
with co-workers., The evidence is clear that the Griever's employment
record was considered sJccessfu1 by the Employer, until the happening
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of two events in June of 1981. A reorganization of the'pension
Office was instituted as a result of the Government's establishment
of a "Guarantee Fund". As a result of this reorganization, two new
positions were posted and filled in May of 1981 -- the positions of
"Chief, Operations Section" and "Chief, Valuation and ?lan Termination
Section". These two new positions were filled by two "Senior Examiners",1
-Mr. IgnesNastajus and Mrs. Gemma Sal&at. The Griever did not apply
for either position; the announcement of Mr. Nastajus' and Mrs.
Salamat's position was made on June 4th, .retroactive to ~June 1st.
Both Mr. Mastajus and Mrs. Salamat had worked successfully with the
Griever in the 1970's in more junior positions to the Griever, and
when the Grievor returned to the Ministry in 1980 as an "Examiner"
both Mr. Nastajus and Mrs. Salamat had been promoted fin the interim :
to the positions of Senior Examiners. Job competitions were ~held in
June 1981 to fill the two vacancies in the classification of Senior
Examiner that resulted from the Nastajus and Salamat promotions.
Interviews took place on June 16th and the Selection Committee for
the positionsof Senior Examiners was composed of Mr. J. 'W. Bentley,
*
Mrs . Linda Bowden, Fersonnel Administration, Mr. NastajuS and Mrs.
Salamat. At the interviews, each of the four applicants was asked
a series of basicquestions. For example, one of.these questions was: I
"How do you read an actuaria‘l report?"
The evidence is clear that Miss LeBlanc was offended~ ,
by the. generality of the questions, and asked Mr.'Bentley on more
than one occasion.whether it was necessary for her to answer
questions'of that nature. At the Hearing, Mr. Bentley candidly
admitted that the Griever was capable of answering any and all
questions without difficulty. I.'? . Bentley also testified that
Miss LeBlanc's reluctance to answer questions caused him personal
concern. Be correctly stated that it was essential that each
'candidate be treated in an identical manner fin fairness to all
applicants. IMiss LeBlanc's interview was not successful and-the
'two positions of Senior Examiners were awarded to two other
applicants.
On June 25th at approximately -9:30 a.m., Mr. Bentley..the.
Superintendent of the Ontario Pension Plan, spoke with Miss LeBlanc
to advise her that she had been unsuccessful in the.competition.
Miss LeBlanc became infuriated at the news and indicated to Mr.
Bentley that "he was totally incorrect in his assessment". Mr.
Bentley testified that he was unsuccessful in achieving any meaningful
conversation with the Grievor and from his own evidence "he couldn't
get a word in edgeways". At approximately lo:30 of the same day,
the Grievor arrived unannounced at Mr.
Bentley's office to pursue
-the matter further, and in doing so she interrupted a meeting in
progress between Mr. Bentley and Mr. Nastajus..
The Board accepts the evidence of Mr. J. VI; Bentley in
its entirety, as to the conversation that took place between he and
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the..Grievor in his office. ilr. Bentley is a truly credible witness.
No useful purpose can be served by repeating the Griever's conver-
sation with Mr. Bentley -- suffice it to say that it was of a personal
nature and was both insulting and threatening to Nr. Bentley. On the
evidence, we find that Mr. Bentley's description of the conversation
"it was a tirade" is credible. We accept Mr. Bentley's evidence that
the Grievor's voice was loud and the general tenor of the conversation
could be heard by others outside of Mr. Bentley's office. IYr. Bentley
did say to the Grievor, in error, that she was denied'the job because
she was a probationary~Employee.
The Superintendent chose to take no disciplinary~actibn
as a result of the Grievor's actions: He believed, again erroneously
when viewed in retrospect, that the passage of time would rectify the
attitudinal problem.. 1."~. Bentley and the Grievor had no further
conversation together subsequent to June 25th, 1981.
Miss LeBlanc filed a Grievance on.July 9th, with regard to
her failure to obtain the position of "Special Examiner". Subsequently,
she received a letter from John F. Leybourne, Deputy Director of the
Ontario Securities Commission, to the effect thatthe competition of
June 16th was declared null and void, and that each of the applicants
for the positions of Senior Examiner would be re-interviewed. Yiss
LeBlanc was re-interviewed on September 28th, 1381, two days before
her release. i4r .
J. W. Bentley was not part,of the. second interview,
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.and he was replaced on the Selection Board by Andy Roqerof the
Companies Branch. With the exception of Mr. Roger, all members
of the Selection Board were aware that the Ministry intended to
release Miss LeBlanc.
It is interesting to note in passing that Miss LeBlanc's
competition grievance was the first grievance in the history of the
Ontario Pension Commission.
As indicated previously, June 1981 was the date when the
Grievor apparently .experienced a complete personality change. It
is obvious that in June she developed a chronic attitudinal problem.
The evidence is,clear that she became highly critical of Government
policy in the establishment of the.Guarantee Fund and of most of the
personalities involved inthe administration of that Fund, and~in
the administration of the Pension Office generally. At a staff
meeting in June she.refused to enter the meeting room after being
requested to do so on numerous occasions, and when the meeting room
door was shut she, returned to her desk. Having reviewed the evidence
carefully, the Board finds that the Grievor became an island unto
herself, refusing to communicate orally with most of the office
staff. In pa.rticular, she became uncommunicative with her immediate
Supervisor, i<r. Mastajus and also with Mrs. Salamat. On more than
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one occasion she challeng,ed their authority and demanded written
instructions for unusual problems and insisted on reviewing the
functions of her Supervisor and his counterpart in writing. In
addition, she'refused to enter her Supervisor's office in the
future "because of the negative vibes she was feeling". 'Mr.
Nastajus attempted to share.his concern and the concerns of .Xrs.
1~ Salamat with the Grievor, and eventually an accommodation procedure
emerged whereby the Grievor would write notes to other staff members
thereby avoiding personal contact.
Nevertheless; the Grievor did continue to do her jqb,
but the evidence does indicate that the Grievor's attitude in June
and July in particular proved upsetting to fellow Employees. In
fairness to the Grievor, Mrs. Renate~Leis testified that she had
no difficulty communicating with~the Grievor on a day to day basis.
tQs . Leis, however appears to be the exception, having regard to
the evidence of four other Employer witnesses. The Grievor's first
unfavourable appraisal is dated July 16th, 1981. In that appraisal,
the Grievor's potential and relationship with co-workers were both
'rated "unsatisfactory", and under the category demonstrated job
interest, the Grievor was rated as only "fair". The Grievor's
former~Supervisor, P. W. Neale, prepared,the July 16th appraisal
report which contained the following comments under the heading . . .
"General Comments.and Recommendation":
"Miss Leblanc has shown an unwillingness to take
direction from her supervisors and has adopted
a very hostile and irrational attitude towards +I...-
I
\
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Recently she bad-mouthed the Superintendent of
Pensions to his face in front of several
co-workers."
In addition, the July 16th appraisal contains the \
recommendation that Miss LeBlanc not be recommended for appointment
to the regular staff. Miss LeBlanc was very upset by this report,
disagreed with its contents and refused to sign the appraisal.
It is interesting to note that the Grievor's Supervisor,
Kr. Nastajus preferred not to complete the appraisal in view of
hisinexperience as of that date as a Supervisor. Mr . Neale who
did complete the appraisal of the Grievor, retired from his position
as an Executive Officer in November of 1981, and.is presently retired
and living in Florida and accordingly was not available to ~give
evidence.
The Board is of the view that the extent of the discussion
of the July 16th appraisal report with the Grievor is incomplete, in
the absence of any testimony from Mr. Neale. We do however, know that
Mr. Nastajus tiaS not present, and we accept the Grievor's evidence
that the discuSsion of the appraisal report was brief.
On September 28th, the Grievor went through a second
interview for the position of "Senior Examiner". LWS.
Salamat
testified that Miss LeBlanc demonstrated no attitudinal problems
at the second interview and answered all questions thoroughly.
&n;lin r.!iss T.ealanr wac ~rnc~7rr~~cir~l in -kc-i-;-r et.- ---Z+:-- -F
-_
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The final appraisal of Miss LeBlanc is dated September
22nd,.l981 and was discussed with the Grievor on September 29th,
the day before her termination. In thatappraisal two unsatisfactory
areas were indicated under potential and, relationship with, co-workers.
All other factors were rated "very good". Under the heading "General
Comments and Recommendation" the following items were cited:
” 1 . First incident with G. Salamat (before
interview) criticism of management &
procedures.
.2. Refusal to enter staff meeting room.
., 3. Incident with.J. Wells Bentley (after
interview)
4. Second incident with G, Sal~amat & first incident with I. A. Nastajus
5. :lary Jiorner notes & second incident with
I. Nastajus
6. -Uncommunicative/hostile/devisive"
In addition, the further comment appears:
"Release., For details see memos of 21/g/81
to J. E. Service, to file and to I. A. Nastajus."
In the memo of September 21st, 1981 referred to in the
final appraisal, Mr. Mastajus makes four findings up to a period
of September 18th as follows:
“(a) Ms. LeBlanc's demonstrated, antagonistic behaviour to, and her apparently complete determination not to initiate any communica-
tion with, management staff since her previous
appraisal show no signs of being temporary in nature:
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(5) all attempts'by management to.resolve the
situation and reach some sort of compromise
have been rebuffed, in each case with sufficient
hostility so that atthe present time, even
issuing daily, work-related instructions
causes tension between Ms. LeBlanc and the
manager that must issue. the instruction:
(C) MS . LeBlanc's continuing and non-constructive
comments of criticism about management .and
procedures directly to non-management and
clerical staff are already having a disruptive
and damaging influence on both staff-management/
staff-staff relationships and on work-flow, which
if left unchecked, will be difficult to repair: and
Cd) there is adequate cause for'concern that
Ms. LeBlanc's lack of support for management
or its policies will eventually manifest
itself to the public and to plan sponsors
outside the Con-mission;whether through a
lack of cooperation or of acceptance. on her
part, and thereby cause some measure of
reluctance to comply with the Commission's
requirements among~a group of her own clients."
Mr. Nastajus concludes-that memorandum with the
recommendation that the Grievor be released.
On behalf of the Employer, Mr. Brown argued that the
fact situation should be properly characterized as a valid release
under Section 22(5) of the Public Service Act. He did not challenge
the Griever's knowledge or competency, however the Griever's
attitudinal problem from June 1981 to the end of the probationary
period was stressed as the reason for termination. xr . Brown
indicated the problem was then Griever's total inability to cope
with the Employer's decision not to promote her to the position
off Senior Examiner. After reviewing the facts extensively, 1:~.
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on the basis of attitudinal change and her inability to switch
from a management role in 1977 to the new employee 'status of
Examiner in 1981.
Mr. Cavalluzzo argued that the fact situation was a
discharge camouflaged as a release. He alleged that it was
managerial incompetence that had perpetrated the Griever's
t attitudinal change. He argued forcefully that attitude was
I
a matter that was within the control of the Grievor to correct
--it could have been corrected by normal disciplinary procedure
whether orally or in writing. Nanaaement has an obligation to
make an Employee‘aware of its dissatisfaction and that its failure
to do so until the final appraisal report one day before the
termination was totally unsatisfactory. Finally, the Union
argued that the discipline was invalid on the basis of no
ministerial delegation of authority under Section 23 of the
Public Service Act.
The jurisdiction of the Grievance Settlement Board in
"release" cases was set out by the Union concisely as follows:
c
1. The Board has jurisdiction to determine if there
was'a bona fide release made in good faith for
failure to meet the requirements ~of the job.
2. An Employer can't camouflage a discipline or
dismissal ,under the guise of a release.
3.
4.
5.
/
The Board must review a contested release to
ensure that it is what it purports to be.
If the Board determines a valid release has
taken place it cannot assess the merits of a release.
The onus is on the Employer to demonstrate that
wha.t in form purports to be a release, is in
substance a release.
These five principles have been established by
arbitral precedent of this Board in the Leslie Award, 80/77
and the Ekholm Award, 366/80.
Mr. Cavalluzzo argued that if the Board finds that
no release has occurred, then a dismissal has infact taken
place. In the fact situation at hand, Elr. Cavalluzzo argued
this was not a disciplinary dismissal, it was properly
characterized as a dismissal.
Iiaving considered the evidence in its entirety, this
Board is of the opinion that the fact situation at hand is best
characterized as a dismissal rpther than a release. On the
evidence we find that the LeBlanc termination was intended to
be a disciplinary measure, and in the circumstances,. management's
.motives were improper. See Tucker and the Ministry of the
Attorney-General,~ 206178 (Weatherill). .
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Having found that the LeBlanc termrnation was a
discharge, we also~find that it was an improper discharge in
the absence of delegation of authority under Section 23 of
the PublicService Act.
Admittedly, the attitudinal problems of Miss LeBlanc
as described in some detail in this Award, were totally.unacceptable.
,We find that the attitudinal change of the Grievor was in fact
perpetrated by management's handling of the organizational change
in the office and its failure to adequately assess the Grievor's
application for the position of Senior Examiner. Each management /
witness testified that the Griever's attitudinal change would "blow
over" with the passage of .time.
Unfortunately that was not the case,
and only Mr. Nastajus, the Griever's newly appointed Supervisor,'
made an attempt to point out to the Grievor management's.concerns.
14iss LeBlanc was given a multiplicity~ of explanations for her
I failure,to attain the position of Senior Examiner, none.of which
was the real reason for her failure, namely her attitudinal
problems. Her conduct was at least partially attributable to
intense frustration on her part. We are not satisfied that Mr.
Weale's explanation to the Grievor of the July 16th assessment
was anything more than superficial. The first informative
appraisal, from the Griever's' standpoint, was the Nastajus
appraisal of September 22nd which was not discussed with the
,Grievor until September 29th'-- the day before she was terminated.
That final appraisal specified six areas of behavioural problems,
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five of which occurred prior to the July 16th appraisal, Only
the sixth issue "uncommunicative, hostile, devisive" was described
as a continuing problem. On the evidence, the Board is not satis'ied A
that the sixth point in the final appraisal was a significant problem
subsequent to July 16th.
A significant piece of evidence,is a paragraph contained
in Mr. Kastajus' memo of September 21st where he states:
"I have considered requesting an extension of Ms.
LeBlanc's probationary period as a possible
alternative to release, particularly in view
of the.fact that, during these past 3 months,
1% . LeBlanc has not only kept her own work
up-to-date, but has single-handedly eliminated the backlog of 3 other examiners.
Furthermore, her attendance/punctuality record,
as well as the quality of her work, have remained
excellent."
In addition, the evidence is clear that at the request
of Mr. J. W. Bentley, Miss LeBlanc was performing the work of a
Senior Examiner from the tine of her re-hiring on October.lst,
1980, although she was classified as an Examiner.
The Board is of the opinion that Miss LeBlanc's
attitudinal problems should have been the subject of disciplinary
action on the part of management, ,either orally or in writing.
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Alternatively, the Employer had the right to forego discipline
in the special circumstances of this case, however it had an
obligation to -express its concerns clearly to the Grievor and
to embark upon some form of rehabilitative counselling to correct
an obviously correctable problem.
In the instant case, we would attributes management's
failure to adopt either of the~above corrective procedures to
inexperience in industrial relations and not to incompetency.
It must be remembered that Miss LeBlanc's promotion grievance
of July 7th was the first grievance ever filed with the Ontario
Pension Commission.
A significant piece of evidence is the,evidence of
Mrs. Salamat, that the Griever demonstrated no attitudinal
problems during the second interview for the position of Senior
Examiner on September 28th. That second interview was nothing
but a facade or a sham as three of the four members of the
Selection Board had knowledge at the time of that interview
that Miss LeBlanc would be terminated.
Admittedly, this is an unusual fact situation. In
our opinion had Mr. Nastajus had a longer period of supervisory
experience, orhad Mr. Bentley addressed the Grievor,'s attitudinal
,problem directly and forcefully at the outset;,the problem would
t have been resolved to the mutual satisfaction of both parties.
The Griever is not without blame for her attitudinal
deterioration commencing in June of 1981. The evidence indicates
that she is an.intelligent woman, and in her own words we accept
her testimony that she is a "workaholic". She should have been
aware that her attitudinal problems were creating difficulties
for her fellow workers. Attitude is an essential ingredient for
a successful employment relationship, and it is a necessity to
maintain a proper and respectful attitude to other employees and
superiors. In reinstating Miss LeBlanc to her former position as
an Examiner, we would caution the Grievor to learn from this
experience and to re-establish a positive attitude, and intie.
future to effectively communicate with all of her fellow employees.
In the result, the Grievor shall be reinstated forthwith
to the position of Examiner, Financial Officer 2 with the Pension
Commission of Ontario. In addition, she will receive monetary
compensation minus any salary benefits received in the interim,
retroactive to October 1, 1981 when she will be deemed to have
achieved seniority status.
t
The Board shall retain jurisdiction in this matter in
the event thatthere are any difficulties in the calculation of
i ,
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compensation benefits or in the interpretation or im?lenentation
of this Award.
DATED at Brantford, Ontario, this 8th day of June, d.D., )
1982.
R. L. Verity, Q.C. .- Vice Chairman
"I concur" (See Addendum)
H. Roberts - 'Member
"I concur"
E. J. Bounsall - Member
ADDENDUM .- (Isabelle LeBlancj
It is clear from the wording of this award that both I
parties were at fault in thi.s matter - the Grievor by
virtue of her totally unacceptable attitude and the Manage- '
ment by its failure to deal with this problem in a way and
at a time that would have been pertinent and proper under
the circumstances.
My major concern is set out in the question below.-
In a relatively small work unit~where close co-operation
and frequent int
efficient operat
better contribut
a) an emp
rface between the members is ~required for
on, which of~the following will make the
on,
oyee with the highest technical competence
but a poor attitude, J
or
b) an employee less technically competent but posses-
sing an excellent attitude?
It can be argued, of course that both areas above
requiring improvement can be changed through effort and
application.
Only time and the subsequent relationship following
the Grievor's reinstatement will confirm the correctness of
this Board's decision.
.-.
H. Roberts
14 May 1982