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HomeMy WebLinkAbout1982-0061.Bartello.82-07-02Between: Before: G1/82 IN THE XATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (Ms. Marie Bartello) Grievor , - And - The Crown in Right of Ontario (Ministry of Transportation and Communications) Employer Prof. R.J. Roberts Vice Chairman Xi- , II. Simon klember Mr. E.R. O'Kelly Member For the Grievor: Ur. A. Green, Esq., Counsel Golden-Levinson For the Employer: Mr. I. Cowan Director of Personnel Ministry of Transportation and Communications Zearings: April 6, 1'362 June 7. 1982 -2- AWARD This arbitration involves the termination of the grievor. The Employer, the Ministry of Transportation and Communications,submitted at the hearing that this termination was a bona fide "release", and hence not -- reviewable by the Grievance Settlement Board. The Union, the Ontario Public Service Employees Union, contended that this termination was a "discharge", and hence was reviewable by this Board. The question whether the Bmployer had just cause to discharge the grievor was argued by both parties, the Employer arguing this issue in the alternative. NO objection was raised by the Employ-er to our hearing the entire substantive case before ruling upon its preliminary objection to our jurisdiction. Upon consideration of the evidence and argument of the parties, we conclude that the termination of the grievor was a bona .fide release by the Employer, and hence -- this Board does not have jurisdiction to review the matter. The grievance is dismissed. Our reasons for reaching -this conclusion will become evident from what follows. On February 16, 1981 the grievor began employment as a Word Processing Operator with the Strategic Policy - -3- Secretariat of the Ministry of Transportation and Communications. The duties of the grievor revolved around the operation Of a Micom Word Processor. Essentially, we understand this type of Word Processor to involve a keyboard on top of which is mounted a screen similar to a television screen. What the operator types appears on this screen, and by manipulating certain keys on the keyboard the operator oan alter, revise or correct the text that is being typed. Whenever desired, the text which appears on the screen may be printed out via a printer which is located to the one side of the screen and keyboard. The Strategic Policy Secretariat of the Ministry is a small but important office. Generally, its functions appear to be to serve the needs of the Deputy Minister of this Ministry for speeches, background material and the minutes of meetings, etc., regarding the operation of the Ministry. The output from the Strategic Policy Secretariat seems from the evidence to be widely distributed throughout the Ministry. There was room for two Xicom Machine Operators in the Secretariat. Apparently, for several months prior to the hiring of the grievor, the needs of the Office were served by one Micom Machine Operator. It seems i, _ -4- that the grievor's predecessor had left some time before she came into the office. The result was that there was no outgoing employee to assist in any training on the Micom Machine which might be required by a "green" incumbent. There was little doubt that when the grievor was hired it was known to everyone, including her Supervisor, Ms. Joyce Cranwell, that she was "green" in that she had no actual experience in the operation of a Micom Word Processor. Some years before, then grievor had operated a more rudimentary Word Proces~sor called an MT/ST Machine. The only other qualification that then grievor had WFS that she had taken a minimal introductory course of short duration regarding the operation. of the Micom. Ms. Cranwell testified that because of the enthusiasm that the grievor expressed during her interview, it was believed that the grievor would, with some training and experience, be able to become proficientin the operationof the machine. In order to assist the grievor, the Employer provided her with the instruction manuals for the machine and ordered a tape which was called a Micon Kit. It seems that this tape contained a number of exercises, etc., designed to familiarize an employee with the operation - 5 -. and manipulation of the Yicom System. Apparently, the Employer believed that with these teaching aids and the assistance of the other Micom Operator, the grievor would become proficient throughaprocessofon-the-job training. By the time of her "three month appraisal", the grievor still was not proficient in the operation of the Hicorn Machine. Apparently, this did not unduly concern her supervisor, Ms. Cranwell. The latter testified that the Micom Kit which'had been ordered was late in arriving, and she felt that this factor perhaps was playing a part in slowing the development of proficiency in the grievor. As a result, Ms. Cranwell rated the grievor as "improving satisfactorily",. She stated as the basis for this rating, "The major respons- 'ibilities of the position consist of copy typing and dicta typing. The quality and speed of the output requires [sic] some improvement in order to reach the expectations of the staff for whom work is produced. With greater experience, I believe this employee will achieve those expectations." In the following months, however, the grievor's performance showed little, if any, improvement. The grievor's output was, on occasion, poorly set up. . ’ -6- Frequent corrections were required. Some of the Mtimbers of the Secretariat for whom typing work had to be done began to direct work which had to be "perfect" away from the grievor and to the other Micom Operator. On several occasions, they accomplished this by bypassing the normal channel of flow for work in the office, i.e., handing the work to Ms. Cranwell and relying upon her to assign the work in the usual course. One Member testified that he adopted the tactic of "encouraging" Ms. Cranwell to assign his work to the other Operator. It seems that Ms. Cranwell found that on occasion she had to caution soneMembersto abide by the usual rules regarding distribution of work. There was a suggestion in the evidence that ones ~of the reasons for the yrievor's lack of progress in her proficiency with the Micom Word Processor might have been her attitude. One Member testified that from her observations the grievor seemed distracted and without much interest or enthusiasm for the job. It appearedthat.theyrievor did not absorb the instructions -s-he was receiving. For example, there was evidence that even after the grievor had been shown how t0 manipulate the .ticom in a certain way, the grievor - 7- would be unable to remember the operation a short time thereafter. There was further testimony that in some cases, the grievor would retype an entire document rather than attempt to make a simple change via operation of the Micom Word Processor because she could not recall h:w to manipulate the keys on the keyboard in order to code that function into the Micom. Ms. Cranwell testified that she observed further incidents which tended to indicate that the grievor's inability to improve her performance to an acceptable level was due to an attitudinal deficiency. There were some incidents of lateness and leaving early -- although it seems to be fair to.say that all agreed these incidents were not serious in and of themselves. Ms. Cranwell~also noted that the grievor seemedtobemaking flippant comments in the office. In one case, a flippant reply to Ms. Cranwell's Supervisor, Mr. W;A. Rathbun, on the telephone caused considerable embarrassment to MS. Cranwell when Mr. Rathbun brought it to her attention. On November 12, 1981, Ms. Cranwell met with the grievor .in the Boardroom of the Secretariat. During this meeting, Ms. Cranwell handed to~the grievor the following letter: . . November 12, 11981 Ms. Marie Bartello Strategic Policy Secretariat Dear Marie: At the time of your June 1981 appraisal, required after three months as a probationary employee, I reminded you that you were not yet performing at an adequate level which we concluded related to your lack of experience. However, now, after seven months on-the-job training, I must advise you that your work is below the level required. We must promptly identify and deal with your weak- nesses if you are to reach a level of competence which will allow us to recommend you as a regular employee prior to the end of your probation. We have only until the end of December, 1981. Only if you can prove your ability to work with more confidence (.i.e. produce final hard copies more quickly), convince us of your willing cooperation, act in a more enthusiastic and professional manner and more earnestly strive to contribute to the duties of this office, will I be satisfied to recommend you as a regular employee. J.R. Cranwell Office Services Supervisor StrategicPolicy Secretariat Essentially, the grievor was put on notice that she would not be recommended as a regular employee if her performance and attitude did not improve to a satisfactory level. The grievor testified that when she received this letter in the meeting, she was surprised. She resolved to 'improve in all of the areas that were reviewed during the meeting. During the next month, the grievor did improve her performance: however, she did not improve to a level that Ms. Cranwell considered to be satisfactory. Over Christmas, Ms. Cranwell decided thatthe grievor should be released. On January 4, 1982, Ms. Cranwell met with her Supervisor, Xr. RathbUr:. He asked her if she had decided whether to reconnnend the grievor as a regular employee. Ms. Cranwell replied that she had decided to release the grievor. Later that day, Ms. Cranwell and Mr. Rathbun invited the grievor into .?lr. Rathbun's office. They handed her the following letter, which was signed by Mr. Rathbun but composed by Ms. Cranwell: - 10 - January 04, 1982 I Ms. Marie Bartello Strategic Policy Secretariat Dear Marie: As you are aware, we have arrived at the point where we must decide whether to appoint you to the permanent public service. On November 12th, you were advised that your performance was not satisfactory. The steps necessary to improve so that a permanent appointment.could be made were discussed at that time. While I recognize you have worked hard at improvements, I regret~that we do not feel you have sufficiently improved to justify permanent appointment and, therefore, have not met the requirements of the position of .Typist 3 in the Strategic Policy Secretariat. Because you will not be appointed to the permanent staff, it is best that your employment be terminated as of January 04, 1982. You will receive two weeks salary in lieu of notice. W.A. Rathbun Executive Director Strategic Policy Secretariat .The letter advised the grievor that she was being releasedbecause she did not meet the .requirements of her position. On January 14, the griever submitted a grievance that she was dismissed without just cause. This hearing tillowed fin dw course. . . At the hearing, there weresubmitted on behalf of the grievor several letters of recommendation dated January 18, 1982. These letters were signed by the ?lembers of the Secretariat for whom the grievor performed theW.of her work.,The gist of these letters was that the grievor's work was entirely satisfactory. The letters concluded in recommending the grievor as a "good employee" or "for future employment". The three Members whc wrote these letters testified in reply. 'They retracted what was written in the,letters regarding the satisfactory nature of the grievor's work, explaining that they thought the letters were going to be used in a search for future - employment and not in an attempt by the grievor 'to retain her position. They stated that they phrased the letters in the way in which they did because they had some sympathy for the grievor and did not wish to jeopardize her chances with some future employer. Yone expressed a desire to have the grievor back in her former position. On the above record, it.seems that we are unavoidably led to the conclusion that the grievorls termination was a bona fide release. In a recent award, this Vice-Chairman -- made the following observation: Under Leslie ~[Re Leslie and hlinistry of Co~UiitV and Social Services-(August 15, i978), G.S.B. 80777 -IL?- (Adams) I, the question whether a probationer was "released" or "dismissed", and hence whether the probationer can grieve his termination, depends upon whether he or she was terminated for failure to meet the requirements of his or her position. The definition of what comprises "the requirements of the probationer's position" must, therefore, be treated as crucial. Upon this definition rests the interest of the Employer in being able to weed out unsatisfactory probationers without confronting the possibility of a full-blown and expensive process of grievance and arbitration. On the other side of the coin is the probationer's interest in being heard .on a matter as important as the loss of his economic livelihood. When we balance these interests . . . we conclude that the drafters [of the Public Service Act] must have intended the expression "requirements of his [or her] position" primarily to mean job requirements such as those which are set forth in the descriptions the government generates for positions in the public service . . . . We do not think that the definition of this expression was intended to encompass other things such as the usual requirements to report for wbrk on time, avoiding abusins sick leave, or avoid engaging in acts-of insolence to supervision. ..*~ 'Re KeaneandMinistry of Consumer and Commercial Relations (March 18, .1982), G.S.B. 596/81 (Roberts), at 10-11. In the present case, there seems to be little doubt that the grievor was released because she failed to meet the job requirements for her position as a Micom Operator in the Secretariat. There does not seem to be any indication in the evidence that the grievor's termination was based upon - 13 - her failure to report for work on time or failure to observe other norms which traditionally call for disciplinary sanctions. The evidence indicates that the only part played by the grievor's minor abuses in theseareaswastoindicate that the grievor's unsatisfactory , performance in becoming proficient on the Micom Word Processor might have sprung from an attitudinal problem rather than from lack of natural ability.\ ThePublicService A%t, however, doesnotrestrictreleaseto involuntary malfeasance such as incompetence. As was said in Keane, supra, '!!Je emphasize the words used in Leslie, 'attitude and capacity', in conjunction with the _. failure of the grievor to meet the requirements [of] her position. . . . The word 'failure' as used in s.22(5) of the Public Service Act encompasses both voluntary and 1. involuntary deficiencies such as attitude and capacity. i If the legislature had desired'toexclude acts of voluntary malfeasance from forming the basis of a 'release' it surely would have used a word like 'inability' or 'incapacity' rather than the word 'failure'. It seems to us that failure to meet in an acceptable way the job requirements for a -particular position can form the basis for release whether or not the grievor might have been able to correct his or her attitude or behaviour." g. at 13-14. - 14 - Finally,' there does not appear to be any evidence that the termination of the grievor sprang from a discriminatory or other motive which might affect its bona fides. When asked about her feelings regarding the grievor, Ms. Cranwell testified in a forthright manner that she liked the grievor and that she did not bear her any ill will. There was no real evidence contradict- ing this testimony. We must conclude that the motive for releasing the grievor solely sprang from her failure to meet the requirements of her position. The grievance is dismissed. We do not have jurisdiction to review the decision of the Employer t0 release the grievor. DATED at London, Ontario this 2nd day of July,.1982. n V R.J. Roberts Vice Chairman "I dissent" (see attached) B. Simon Uember E. R. O'Kelly ilember DISSENT - It is with regret that 1 feel obliged to dissent from my colleagues decision in this case. SUMS. Joyce Cranwell the grievor’s supervisor interviewed her for the job. She was one of four applicants and was chosen as the ~most efficient and capable for the position. At the interview .Ms. Bartello made it quite clear that she had no experience in operating~ the !Micom word processor. She was assured that she would be given the necessary instructions and training how to operate the equipment. It was not until several months after she was hired that an instruction kit including the manuals how to operate the Micom was given her and she was then left on her own without anyone helping her. When she asked the other operator in the office for assistance,,she was told “I am not your supervisor to teach you. You better follow the instructions in the manual”. In spite of this, the June appraisal of Ms. Bartello’s performance had some very encouraging comments about her performance. There were not further appraisals made of her performance, although there is a requirement for a nine-month appraisal for a probationary employee. Instead, <Ms. Bartello received the letter of November IZth, 1981 from Ms. Cranwell. In her letter she failed to point gut a single incident of incompetence or failure by the grievor to perform her job. The lettei is vague of any particular complaints and it speaks in -2- generalities only. Onfy if you can prove your abbility to work with more confidence (i.e. produce final hard copies more quickly) . Convince us of your willing cooperation. Act in a more enthusiastic and professional manner and more earnestly strive to contribute to the duties of this office will I be satisfied to recommend you as a regular employee. The grievor testified that she was shocked when she received this letter. She had not had a single complaint about her work during the entire summer from anyotie. Her attendance record was good. She was never late for work and ha.i left early to go home only once, because she had a ride with another oer:.)n from the office. She apologized to Ms. Cranwell and never heard -aymore about it. Severalweeks after the November letter, the grievor approached ,Ms. Cranwell and asked her “How am I doing on the job”. She told her, “alright you should only smile a little more often”. It became clear from the evidence that Ms. Cranwell carried a personal grudge against Ms. Bartello since the incident with the telephone call from Ms. Cranwell’s supervisor. When Ms. Bartello tried to explain to her what exactly had happened in the conversation she had with ,Mr. Rathbun, Ms. Cranweil told her, “I can see all hell will break lose when we put you on the permanent staff”. She then went on to tell her how much &lr. Rathbun was upset with her. He told her, “Once you put her (Ms. Bartello) on the permanent staff you better look out”. The grievor has also been accused of making too much noise and of speaking too loud. She explained that sometimes she had to raise her voice on account of thenoise coming from the ~machines. ,411 of these incidents had nothing to do with the griever’s work performance and were in my view the main reason for her discharge. The evidence by the three members of the secretariat for whom the grievor performed work and who had given her letters of recommendations praising her work and then came before our Board to retract the statements contained in their letters in my view is not credible. fall three came with the same excuse that the reason they had written these letters was to help Ms. Bartello get another pdsition. They each admitted in evidence that they had never complained against her work. Their conduct is to say the least, very strange and puzzling. I conclude that this was not a bona fihe release and that the reasons for the griever’s discharge were not related to her job performance. I would. have allowed the grievance to succeed. July 2, 19x2 /lb