Loading...
HomeMy WebLinkAbout1982-0581.Farley.83-08-24581182 IN THE MATTER OF AN ARBITRATION Under,, THE CRQWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Gordon Farley .- And -, Before: For the Grievor: For the Employer: Hearings: Gri evoi -The Crown, in Right of Ontario (Ministry of Transportation and Communications) Employer R.J. Roberts Vice Chairman S.J. Dunkley Member '~ ; D.B. Middleton Member L. st%o& Grievan~ce Officer i Ontario Public Service Employees Union G. Eden Staff Relations Officer ,,: ,,i &F: Ministry of Transportation and I,,:., ' ';L ,i Communications . . June 6, 1983 July 6, 1983 -2- DECISION I. ~~ritroduotion The grievance fin this arbitration raises the question whether the Employer was reasonable 'in giving the,grievor a special performance 'appraisal, essentially as a formal record of non-disciplinary counselling. For reasons which follow, .we 'conclude ~that ~for the tiost part the Employer met this requirem'en't of reasonableness, however, because there were certain deviations from this requirement the grievance his allowed in part. II. ~Factua'l Background The grievor is .etiployed with the~Ministry of Transportation and Communications as a Patrolman 2, Emergency Patrol. Employee~s in this classification have. as their primary duty providing assistance to vehicles on 'the highway which appear to be in distress.. The 'griever operates out of District 6, which 'covers ~most of-the 'highways around Metrooolitan. Toronto. This District is divided.up into several smaller areas. Each Patrolman on each 'shift is assigned one of these areas to cover. It is his responsibility to patrol his assigned area in a radio-equipped truck, which also carries gas cans, water cans,,~booster cable~s, .etc. which 'might be required to assist stranded motorists. There are 'a number of way& in which ~stranded motorists might be located in the course,'of a patrol. First, the _^. . -3- ,’ ’ patrolman while patrolling his area might come upon someone needing assistance. Secondly;.the O.P.P. might contact the Dispatcher at the District office and request. him to send an Emergency Patrol vehicle ta a particular location. Thirdly, calls for assistance might be received by Patrolmen via C'.B. Radio, wh~ich also seems to form part of the standard equipment of each 'Emergency Patrol Truck.. It can be seen from this brief description that in the performance 'of their duties the grievor and his fellow Patrolmen must operate, to a great extent, on their own. Their actions- are not subjedt to the direct control of supervision. Their sole contact with headquarters is via radio communication. It is only through this medium that management.might contact Patrolmen,. and vice versa. The only other control~medhanism at matiagement's disposal ._ is a document entitled, "Emergency Patrol Daily Activity Report". On this Report Patrolmen are required to enter i” ‘. certain details relating tb.the assistance they rendered to motorists on the highway, including the amount of time spent on each call; the license number, make and color of each vehicle; the problem encountered; and various. details relating to we&t&r conditions and condition of the highway. On or about, March 31, 1982, the grievor received from his supervisor, Mr. Rarold.Xohnston, his annual Employee .’ 2 (‘. .~ -4- :... Peformance Report. In this Repor,t,,.his performance was rated as ncompetent". The basis ~for this rating, which was the third highest of seven categories, was as follows: Gordon Farley hds~stio~~ decided improvement since, I spoke 'to him abcut l&mileage and low productivity. Decision making is competent. Attendance and Punctuality~ are satisfactory. Co-operation is good, requires~medium supervision. Due 'to nature 'of job 'productivity changes daily. a.. Other comments indicated that future training should be considered for the 'griever and that then grievor had the ability for advancement. The 'griever signed this Performance Report without making hny c&merits. About six months plater, ~hcwever, matters changed. On October 6th, 1982 the Employer gave 'to then grievor a special Employee Performance ~Report.. His performance rating dropped two categdries, from "competent" to "fair". The basis for this rating was set fortbas follows: From March 31, 1982 ~until-the 'present date, Gordon Farley's ~attendance has deteriorated, cresting shift problems, costly overtime replace- ment, therefore is not acceptable. His attitude and co-operation with'the Radio Room Dispatcher is not always good. on occasions he has failed to respond to.radio calls.from the Radio Room. Daily activity reports 'are below average. Parking a government vehicle in an area that is restricted fs ,against the rules and shows poor judgenient (sic1 on your part. Using Emergency Patrol vehicle for business other than fts intended function is not acceptable. Making a false 'statement on a Daily Activity Report is not acceptable. In conclusion we will expect your co-operation and attitude to reach 'a competent level. . . . The grievor refused to-sign this Performance Report. He ::: then filed the grievance leading to the present arbitration, stating; "The comments in my Performance Report dated 82.10.06 are inaccurate and misleading." The grievance requested as a remedy that the Performance Report be destroyed. III. Issues' Raised At the hearing, both parties seemed to agree that it was within the jurisdiction of this Board under s.18(2) (b) of the 'Cr'own Emp loyees Collect;Ive Ba?zg,a.inirig, Act to review for reasonableness the action of the Employerin- giving the grievor the above special Performance Report. This was in accordance with: the position taken by a Panel of this Communi'ca.tidns, G.S.B. #23/76 ISwan . In that case the -.* Board said, in pertinent part: In the absence of any promulgated standardsi we propose to judge the employer's appraisal against the 'most fundamental standard. If the employer has not chosen to fetter itself with an elaborate code for conducting appraisals, against which its conduct may be tested in any given case, then the question which remains to be 'answered is simply whether or not an appraisal complained of is in. accordance with a general standard of reasonableness. . . . -6- In addition to a requirement of good faith, then, weconsider it appropriate 'also to require of management that its appraisals not be manifestly wrong. Although'we would be unlikely~ to interfere with an appraisal merely because we.'doubt that it coiucides with 'our opinion Of ths 'griever, or because it is not the appraisal we would have made, we have a responsibility under s.l7(2)(b) to overturn an appraisal which ~appears, .on the basis of the evidence before pus, to. be wrong. The onus of proof of that proposition, of course,'~lies on the grievor. 'Ida. at 6-7. - It seems that the Board found jurisdiction to review Peformance Appraisals for conformity to standards of procedur'al and substantive reasonableness. IV. pro.~e:&$r~a’~ ~e:&s’~n&&n&ss s It seems to us that when reviewing a special performance appraisal for conformity to standards of procedural reasonable- ness, it is necessary to address two separate questions. These are : / .& . 1. In theecircumstances', was it reasonable 'to give the grievor a special Performance Appraisal: and, 2. Was the griever given reasonable opportunity to review and comment upon the allegations in the special appraisal before it was placed in his personnel file? For reasons which follow, we hold 'that in both areas the Employer satisfied~the requirements of procedural reasonableness. .-, ~There seems to beg 'little doubt that in the circumstances , of. this case the Employer had reasonable grounds to make a ~.. j,". - 7 - special Performance Report regarding the grievor.~ It seems that since his last regular appraisal at the end ,of March, 1982, at least'two things had happened to indicate to the Employer that it would be advisable to enter into' the grievor's personnel file a formal record of non- ; disciplinary counselling. First,the grievor's.,_attendance had deteriorated. Secondly, anincident had come to the Employer's attention which tended to indicate that on one occasion the grievor left his patrol area without authosizationandseemedtohaveattemptedtocoveruphisabsencewith ::~. a misleadingentryinhisDaily Activity Report. At least with respecttothe latter, theEmployer couldhavetakenthemore serious .route of disciplining the grieoor. In these circumstances it does not seem to usto be improper for the Employer to have chosen the less incisive alternative of making out a special Performance Report. At the hearing, the,Union argued on behalf of the grievor that.it would%,bc 'improper to'use particular incidents of misconduct as the "trigger" for a special Performance Report. Alluding to certain 'dicta in 'Scott, -- ~=, the Union asserted that to do so would run contrary to the purpose of a performance appraisal, which is to "show progress or the lack of it, by qnnparison from period to period . . . on the basis of a whole period's contribu- tions rather than merely on the incident which provoked their ,, -8- : (’ generation. * Scott,: 'm, at 11. Because of' this, the Union contended, it would be unreasonable to respond to a specific incident with a special Peformance Report. ( We disagree. It does not seem to us that the Employer should be foreclosed frommakingtbis kind of non-disciplinary response to conduct which might otherwise have attracted more serious measures. In this context,. the special Performance Report fulfills the function of a written record of non-disciplinary counselling, nothing more and nothing less. On balance, there does not seem to us to be any disadvantage. to the grievor in this. While it is true that such record would form part of the grievor's personnel file and hence likely would be reviewed in any competition for promotion that the ~grievor entered, so would a record of discipline. And while there are more procedural advantages for a grievor in grievance and arbitration of discipline, an instance of non-disciplinary counselling does not form part of an employee'~s disciplinary record and~hcnce cannot be used for purposes of progressive discipline. Finally, it should be 'noted that the Scott case upon which the Union relied, did not conclude in its 'dic~tum that it would be unreasonable to issue 'a special Performance Report in respons~e to a particular incident. In that case, ,Professor Swan merely highlighted certain realities that ought : c -9- ..I~ ?. ‘. 'to be kept in nitid.when reviewing a~per~sonnel file which contains special-purpose appraisals. He warned that a special-purpose 'appraisal should not be accorded the same weight as a regular appraisal. He said: i In our view, . . . Ithere] his a danger inherent in special-purpose~'appraisals of a single employee. They are 'designed to support a decision, whether favourable 'as in promotion or unfavourable as in discipline, and are 'likely to be influenced, and exaggerated, by themotivation. As a consequence, they are much less likely to be objective than are appraisals produced as part of a regularly scheduled program. . . . Clearly, special-purpose appraisals will sometimes be necessary for their identification value in choosing among employees, or for some similar purposes. The developmental value of regular appraisals, however, is likely to be far greater, since they will show an employee where he stands and what is..expected of him with far more.object- ivity. ..; Id. at 11. - Professor Swan acknowledged that despite their drawbacks special-purpose appraisals were capable of performing legitimate functions.. We hold that one of those functions comprises useasa recordrof non-disciplinary counselling. This brings us to consideration of the second aspect of procedural reasonableness, whether the griecbr was given a reasonable opportunity to review and comment upon the special Performance Report before it was placed into his. file. We find that he was. The evidence at the heari~ng indicated that after Mr. Johnston made out the special i - 10 - Performance Report herein, he held a meeting with the grievor and permitted the latter's Union Steward to attend. He.explained fully the 'contents of the Report to the grievor. He gave him full opportunity to ask questions, explain and comment. The grievor also was given the opportunity to make written comments, at the base 'of the Report. In these circumstances, there does not seem to be any question that the requirements of procedural reasonableness were met in this case. IV. Subs~tantive.Reaso'ntib~een~ss We now turn to the 'second aspect of our review, that of substantive reasonableness. This too, tends to break down into two enquiries. They are as follows: 1. Were the comments in the especial Pefonnance Report reasonably related to the reason for undertaking the special appraisal; i,,.. 2. Were the comments reasonably accurate, in the sense of not be~ing~manifestly wrong? These‘issues will be dealtwith as follows.: It seems to us that, given the nature of the special Performance Report in the 'circumstances.of this case, i.e., as a written record of non-disciplinary counselling, it would be unreasonable for such a record to refer to matters other than those thdt precipitated the report. In other words, a special Performance Rep~ort should not be used as an excuse to "throw the book" at an ,employee. The comments made should 1 7 - 11 - ( _,, relate to the retison&Z~ why the ‘Report was ~made in the first place. Itwould be unreasonable;.in our view, to use such a Report asa vehicle~'for dredging up and reciting alleged shortcomings of an employee which played no part in motivating the special appraisal. . It.~seeuis that there '&re some comments made in the special -:--%. Performance Report which.'did not relate to the reasons why.the Report was made. As previously indicated, there seems to be two / reasons why the special Performance Report was made: first, the griever's attendance h6d deterioratedfrom the' time of his 'last regular appraisal;.and, secondly., the Employer had discovered that on one occasion the grievor had left his assigned patrol with- out authorization and apparently attempted to cover up his absence by making a misleading en&y in his Daily Activity Report. Yet in addition to commenting upon these matters, :the special appraisal added, "[The griever's] attitude and co-operation with the Radio Room dispatcher is not always good. On o,ccasion he C,~ failed to respond to then radio calls from the Radio Room. Daily activity reports are below average." The evidence at then hearing clearly indicated that these additional alleged shortcomings of the grievor had existed for some time '-- certainly since along before his last regular Performance Report when he nevertheless received a competent~rating and a 1 . - 12 - i comment to the effect thSt.his "Co-operation is good, requires medium supervision." Between the date of this regular Per~formance Report, March 31, 1982, and the date of the 'special Performance Report, there had not been any change 'in these characteristics of the grievor. Because of this the' infer~ence is strong that these character- istics did 'not form any part of the motivation for the .special performance 'report. They seem to have been Utbrown in It for good measure. They should have not been included. Turning to the other-aspect of substantive reasonable- ness, we find that the bulk of the comments that properly appeared on'the special appraisal were reasonably accurate, in the sense of not being manifestly wrong. See' e, E, at 7, 10. In this regard, we are referring to '. the following comments in the report: From March 31, 1982 until the present date, Gordon Farley's attendance has deteriorated, creating shift problems, costly overtime replace- ment, therefore is net acceptable. . . . Parking a government vehicle in an area that is restricted is ,against the.rules and shows poor judgement [sic) on your part. Using Emergency Patrol vehicle for busines.s other than its intended function is not acceptable. ,- In conclusion we will expect your co-opera- tion and,.attitude toreach a competent level. . . . The. middle two paragraphs of the cbmen~ts, above ~~ related to the single incident when the grievor left his assigned patrol without authorization. - 13 - .. ^ i” ‘.- Theonlycriticismofthese remarks that we can make relates~ to the ~vagueties~s with 'which the griever's supervisor described the inciden~t in which the grievor essentially left his area without authorization on a "frolic" of his own and in the course~of that escapade received a parking ticket which ultimately found its way into the hands of 'Mr. Johnston. It seems' to us that to be fair to the griever these remarks ought to have / \. (' reflected the fact that they related to a single incident. There should be ~no infer~ence left. open that the grievor was being- cnunselled regarding more than one incident-~of.this W=. It will be noted that we omitted from the comments to which we gave our qualified approval, above, the following statement: Making a false statement on a Daily Activity Report is not acceptable. ,.. In our opinion, it was not reasonable for the Employer to characterize as ':false" the statement on the 'griever's Daily Activity Report which seemed to have been entered in an effort to cover up the ,fact that he left his. assigned area without authorization. The word "false" is a very strong~word, which conjures up an impression of fraud. Fraud should be, and is, very hard to prove;inter alia, -- because of thee blemish that such a conclusion might place -.. ‘d .~, - 14 - . i .'upon the reputation of the 'recipient, Here, the evidence fell short of prwing that the 'grrevor made a fraudulent entry. At most, the 'wldence 'showed that the griever's Daily Activity Report contained a misleading entry which coincided with 'the time he was out of his assigned area, and which might or mlght'not have been made withan . i intention to mislead. This comment should nothave beenincluded. V. Remedy ._ / We believe 'that the most appropriate remedy to apply in this case is to remit the special Performance Report to the Employer for revision in accordance with the views expressed in this Award. Because there was a legitimate purpose in making this special Performance Report and placing it in the personnel file of: the griever, thi.s -; is not an appropriate case for ordering the report to be expunged from the griever's file. Further, we see no i necessity in-this case'to order that the rating given to (. the grievor in the special Performance Report be changed. In the light of the existence of legitimate reasons for making a record of non-disciplinary counselling-- one of which could have led to imposition of discipline-- and the limited function to be fulfilled by such a report, there does not seem. to be any reason to order a'change in this regard. . . ‘ - 15 - I !f (I 'VI . ~Cc3ic:lus~ion The 'grievances is allowed in part. We will retain jurisdiction of the matter pending implementation by the parties of the terms of this Award. DATED AT London, Ontario.this24thday of August ', 1983. ._ r 7:3542 ts, ~Vice-Chairman 1 .-- D.B. ~Middleton, Member . . ~: . . -