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HomeMy WebLinkAbout1983-0070.Daley.84-04-12Between: IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Before: For the Grievor: For the Employer: 'Hearings: OPSEU (Leonora G. Daley) Griever - And - The Crown in Right of Ontario (Ministry of Health) Employer A.M. Kruger Vice Chairman I.J. Thomson Member P.H. Coupey Member S. Laycock Grievance Officer Ontario Public Service Employees Union P.J.J. Cavalluzzo, Counsel Cavalluzzo, Hayes & Lennon J. Zarudny, Counsel Crown Law Office Civil Ministry of the Attorney General October 5, 1983 November 10 & 22, 1983 December 2, 1983 January 3, 5 sr 10, 1984 February 13 & 14, 1984 -2- FINAL AWARD This matter comes before this Board as a result of a grievance launched by Brs. L. G. Daley against a decision to terminate her employment in December 1982. Mrs. Daley began her employment with the Employer on January 4, 1982. At the time of her termination she was near the end of her one year probationary period. At the outset, counsel for the Employer challenged this Board's jurisdiction. He argued: that Mrs. Daley had 'been "released" and that a release, under Section 22(5) of the Public Service Act and Section 27 of the collective agreement, is not 'arbitrable. The Union challenged this argument. Counsel for the Union contended that the Employer h,ad to show that what had occurred was a bona fide release and that a disciplinary discharge had not been camouflaged as a release in an attempt to circumvent Mrs. Daley's right to grieve under Section 17(2)(c) of the Crown Employees Collective Bargaining Act. On October 5, 1983, this Board issued a Preliminary Award dealing with this matter among others. The Board concluded that this issue could only be resolved after hearing "much of the evidence that would relate to the merits of Mrs. Daley's grievance." Accordingly, we ruled that we would proceed to the merits and reserve our ruling on the Employer's objection to our jurisdiction. The Board met with the parties on November 10, November 22, December 2, January 3, 5 and 10 and February 13 and 14, after .- _. -3- issuing its Interim Award. We received a great number of written exhibits and heard at length from witnesses for both parties concerning the events that transpired during Mrs. Daley's probationary period leading up to her termination. We have carefully reviewed these exhibits and our extensive notes on the oral evidence presented to us. It is our view that no useful purpose would be served by rehearsing at length the details of these matters in this Award. We believe that a brief summary of what we conclude are the most pertinent facts will suffice. When Mrs. Daley was hired for the position of Typist 9 in the Word Processing Centre of the Queen Street Mental Health Centre, she appeared to be highly qualified for this position. She had trained in the United Kingdom as a nurse. When she came to Canada in 1970, she was employed for six years at the Toronto Western Hospital as the supervisor of a stenographic unit. Thereafter she worked for the next six years at various hospitals on word processing equipment. She was familiar with medical terminology, with word processing equipment and with a hospital setting. While medical terminology and procedures at a mental health centre differed from that at a general hospital, it was assumed that she would adapt quickly and soon meet the require- ments of her job. At this health centre the large professional staff phone in material to be typed and record it on tapes. The typists in the Word Processing Centre transcribe these tapes onto a screen and, _. -4- after editing, the material is printed. In most cases, it is returned to the author who proofreads it and sends it back if it needs changes. The typists make any required changes and 'the forms, memos or letters then leave the Centre. Accuracy is very important on this job because mistakes could adversely affect patient care. Also some of these documents may be used in proceedings in the courts and it is important that they be complete and accurate. ,. New employees are expected to be familiar with medical 'terminology and with word processing equipment. There is little formal training. Mrs. Daley on her first day was given manuals to read which outlined the relevant practices and procedures of the Centre. She was also shown how to operate the equipment in use at the Centre. If she had any difficulty or questions, she was told to ask for help or advice from either her supervisor or from one of the experienced employees. When Mrs. Daley began to type, all her work was checked carefully by her supervisor, Mrs., J. A. Rodrigues or by an experienced typist, Mrs. P. Ena, before it went out. This was standard practice with new employees. By mid-February, Mrs. Rodrigues was satisfied that this kind of thorough checking was no longer necessary and that Mrs. Daley could now send her edited work directly to the authors for final corrections. Mrs. Rodrigues conducted spot checks of the work of all the operators. She also could identify problems through examining the . . ;. -5- work returned by authors for correction or through complaints she received. Mrs. Daley's work was satisfactory except for two problems. She had some habits from her former work that were unsuited to this job and she had some difficulty in changing her ways: In particular, she tended to identify as M.D.'s, professionals.who were not medical'doctors. Her second problem was a tendency not to hear words on tapes that Mrs.. Rodrigues considered to be clearly audible. In the period that followed up until about the end of June 1982, Mrs. Rodrigues and Mrs. Daley appeared to have excellent personal relations. They were friendly and often ate lunch together. There were no serious problems with the grievor's work, other than the two mentioned above. Mrs. Rodrigues should have issued her first (3 month) appraisal of Mrs. Daley early in April 1982, but it was not done until late June 1982. In any case, it was a favourable appraisal and Mrs. Daley had no grounds for complaint or concern. This was followed by a recommendation by Mrs. Rodrigues that Mrs. Daley receive a merit increase on July 1, 1982. Soon after this the situation changed dramatically. Mrs, Rodrigues and Mrs. Daley appeared to be in constant conflict with one another and Mrs. Rodrigues now found that the quality of Mrs. Daley's work had deteriorated. She was making numerous errors. Normally Mrs. Daley's work would have been formally appraised again six months after her starting date or early in -6- July. Mrs. Rodrigues delayed this appraisal until late August for two reasons. First, it would have come too close to the first appraisal to have been useful. Second, by this time she had noticed the problems in Mrs. Daley's work and wanted to give her time to improve. The second appraisal on August 25, 1982, indicated that the grievor's "understanding of work and quality of performance" was "Very Unsatisfactory". Under Remarks, Mrs. Rodrigues noted that:- "Since her last report at the end of June, Lena's work has deteriorated to an extent which is totally unaccept- able to this Centre. She has been told about making efforts toward improving on several occasions but to no avail." On September 1, 1982, Mrs.. Rodriques and Mrs. Daley met at Mrs. Daley's request. As a result of that meeting, Mrs. Rodrigues sent to Mrs. Daley a long memorandum outlining the nature of her concerns and her recommendations for the grievor to follow in order to improve her work. On the last page of that memorandum there are several comments worth noting. First, Mrs. Daley is told that her work will be reviewed again at the end of September. In the interim all of her work will be checked before it leaves the Centre. Second, Mrs. Daley is told that she will be held to producing "at least two error-free documents each day" and to reduce the errors on all her work. Finally she is warned that "if these objectives are not met by the time of the review in four weeks, we will be compelled to request your release from employment at this Centre." i . -7- At their meeting on September 1, Mrs. Rodrigues suggested that Mrs. Daley write her to confirm that the grievor had had some misapprehension which had adversely affected her work and which had now been clarified. Mrs. Daley felt unable to do this but agreed to have Mrs. Rodrigues draft the letter. Later that day Mrs. Daley signed a letter addressed to and drafted by Mrs. Rodrigues. The letter indicates that the meeting that day had cleared up the misconception Mrs. DaJey had had and that she now expected her work to improve. For a while the relations between the grievor and her supervisor improved. Mrs. Daley's performance on the job also improved. On October 4, 1982, Mrs. Rodrigues wrote Mrs. Daley to compliment her on her improvement. However,.in this letter she noted that the grievor still had not met the standard set on September 1, 1982 of producing "at least -two error-free documents each day." This was followed by an appraisal in mid-October that read her "understanding of work and quality of performance" as “Satisfactory”. In the Remarks section of the Appraisal Form, Mrs. Rodrigues commented on Mrs. Daley's success in improving the quality of her work. Soon after this the personal relationship between these two people again deteriorated and so did Mrs. Daley's performance on the job. On November 9, 1982, Mrs. Rodrigues wrote Mrs. Daley indicating the problems found in the grievor's work. This i . -a- memorandum concluded by noting that Mrs. Daley has failed to meet the standards of the job and that Mrs. Rodrigues intended to recommend her release under Section 22(5) of The Public Service ACt. Mrs. Rodrigues recommended that the grievor be released. At a pre-release meeting on November 23, 1982, it was agreed. that Mrs. Daley would be given a further four weeks to meet the required standard of performance. Her work would be evaluated "on or about December 17, 1982" by Mrs. Rodrigues.. The Supervisor wrote-to the grievor to confirm this understanding. On December 22, 1982, a letter was sent to Mrs. Daley informing her that her performance during the period since November 23, 1982 did not meet the required standard and that she would be released. It is that decision that was grieved by Mrs. Daley and is now before this Board. The Board heard conflicting evidence concerning the reasons for the fluctuations in the personal relationships between Mrs. Daley and Mrs. Rodrigues. There is no need to ~rehearse this at length here. We also heard conflicting testimony concerning the possible links between their changing personal relations and the equality of the grievor's work. We are satisfied that there was a link and that they reinforced one another. That is if the work deteriorated, Mrs. Rodrigues' criticism of the grievor would intensify. This in turn would unnerve Mrs. Daley and her work would further detriorate leading to even more criticism and on i 2 , . -9- and on. Mrs. Daley came to believe that Mrs. Rodrigues was 'out to get her". Mrs. Rodrigues in turn believed that Mrs. Daley was the dupe of other employees who were determined to undermine her authority. We also find that although Mrs. Rodriques is a very intelligent person, her performance as a Supervisor of Mrs. Daley left much to be desired. Her instructions' tended to change frequently, creating confusion for "Mrs. Daley. She was not familiar with portions of her written Manual which conflicted with her oral instructions to her staff. She herself produced work that did not conform to her own instructions to the other members of staff. Some of her instructiolswere unclear. She lost her temper and yelled at members of staff in front of others. . Mrs. Daley was not a cooperative witness in her appearance before this Board. We conclude that on some matters her evidence is not to be believed. For example, both Mrs. Rodrigues and Mrs. Ene (a witness for the Union) told the Board that toward the end of Mrs. Daley's stay at the Centre, the grievor had been instructed to print her work immediately on completing it. Mrs. Daley denied that this was so. This was a matter involving a significant departure from normal procedure in order to protect Mrs. Daley's work from possible tampering by others. We find ,it hard to believe that Mrs. Daley, whose memory was clear on many other matters, would have forgotten this event. The issue before this Board is to decide whether this was a release of a probationary employee for failure to meet the - 10 .- requirements of his position or a disciplinary dismissal. Before proceeding further, it Would be useful to reproduce relevant portions of two statutes which must be considered in deciding this matter. Section 22 of the Public Service Act reads as follows:- 22. (1) A deputy minister may, pending an investi- gation, suspend from employment any public servant in his ministry for such period as the regulations prescribe, and during any such period of suspension may withhold the salary of the public servant. (2). A deputy minister may for cause remove from employment without salary any public servant in his ministry for a period not exceeding one month or such lesser ~period as the regulations prescribe. (3) A deputy minister may for cause dismiss from employment in accordance with the regulations any public servant in his ministry. (4) A deputy minister may release from employ- ment in accordance with the regulations any public servant where he considers it necessary by reason of shortage of work or funds or the abolition of a 'position or other material change in organization. (5) A deputy minister may release from employ- ment any public servant during the first year of his employment for failure to meet the requirements of his position. R.S.O. 1980, c. 418, s. 22. It should be noted that this Act uses "dismiss" in Section 22(3) when dealing with discipline "for cause" but uses "release" in the following two clauses when dealing with a termination for reason of shortage of work and a termination of a probationary employee "for failure to meet the requirements of his position." We conclude that a dismissal is not the same as a release. (See also Re: Leslie and Ministry of Community and Social Services - 11 - 80/77 page 12). As we have already indicated, in Section 22(5), the pro- bationary employee may be released for "failure to meet the requirements of his position". As other arbitrators have already noted, the grounds for release are much broader than they would have been had this clause provided for release for "inability" to meet the requirements of the job." One can "fail" to meet the requirements for reasons that are either culpable or non- culpable. (See Keane and Ministry of Consumer and Commercial Relations 596/81 page 13). The other relevant statute is the Crown Employees Collective Bargaining Act which in Section 18(21 states:- 18. (1) Every collective agreement shall be deemed to provide that it is the exclusive function of the employer to manage, which function, without limiting the generality of the foregoing, includes the right to determine, (a) employment, appointment, complement, organiza- tion, assignment, discipline, dismissal, suspen- sion, work methods and procedures, kinds and locations of equipment and classification of positions; and (b) merit %ystem, training and development, appraisal and superannuation, the governing principles of which are subject to review by the employer with the bargaining agent. and such matters .will not be the subject of collective bargaining nor come within the jurisdiction of a board. (2) In addition to any other rights of grievance under a collective agreement, an employee claiming, (a) that his position has been improperly classified; - 12 - (b) that he has been app,raised contrary to the governing principles and standards; or' (cl that he has been disciplined or dismissed or suspended from his employment without just cause, may process such matter in accordance with the grievance procedure provided in the collective agreement, and failing final determination under such procedure, the matter may be processed in accordance with the procedure for final determination applicable under section 19. 1974, c. 135, s. 9, part. Of particular importance is Section 18(2)(c) which appears to provide all employees, including those onprobation, the right - to grieve a dismissal "without just cause". It is this section and Section 19 which follows it that provide this Board with the jurisdiction to hear appeals from discipline imposed by the Employer on employees. The Employer's position is that nothing in either of these in the collective agreement provides for Acts and nothing jurisdiction by th under Section 2215) ,is Board in the case of a release effected of the Public Service Act. Since this was a release "for failure to meet the requirements of his position," this Board lacked jurisdiction. The Union concedes that where a bona fides release made in good faith takes place, the Employer is correct. However, the Employer is not entitled to disguise a disciplinary dismissal in the garb of a release under Section 22(5) of the Public Service Act, and thereby deprive a probationary employee of his right to grieve and proceed to arbitration under Section 18(2)(c) of the Crown Employees Collective Bargaining Act. This Board, therefore, must proceed to hear the merits of such a matter in order to . . i - 13 - ensure that what purports to be a release is not in fact a disciplinary dismissal. It is now well established that this Board will assume jurisdiction to determine whether what the employee has characterized as a release is in fact a release or whether it is discipline. Our position on this matter follows what appears to be the.generally accepted view of the Board chaired by Professor Adams in Re: Leslie and Ministry of Community and Social Services 80/77 which found that:- ” ..:we are of the opinion that the bona fides release of an employee from employment made in good faith during the first year of his employment for failure to meet the requirements of his position cannot be considered to be a dismissal as that term is used both in the Public service Act and the Crown Employees Collective Bargaining Act...... Thus it follows that the bona fides release of a probationary employee in the first year of his employment made in good faith and for failure to meet the requirements of his position cannot be contested before this Board under S.l7(2)(c)." (pages 12-13) Professor Adams goes on to say on page 13 that:- " . . ..this Board is of the opinion that the employer cannot camouflage either discipline or the termination of an employee for a reason other than employee's 'failure to meet the requirements of his position..... by the guise of a 'release' under section 22(S) of the Public Service Act. This Board, there- fore, has jurisdiction to review a contested release to ensure that it is what it purports to be. But in the adjudication of such a grievance, this Board is without jurisdiction to evaluate and weigh the reasons of the employer unless the collective agreement provides otherwise. The Board must only be satisfied that the employer, in good faith, released the employee for a failure to meet the requirements of his position. As long as the Board can be satisfied that the employer has made an evaluation of that kind, it has no jurisdiction to review the fairness or correctness of that determination under Section I . - 14 - 17(2)(c)." (emphasis added) In Re: Insanally and Ministry of Correctional Services 7/83, Mr. Jolliffe takes issue with one aspect of Mr. Adam's position cited above. Mr. Adams suggests that a termination for any reason other than a bona fides release is "for failure to meet the requirements of his position" is covered by Section 17(2)(c). A release is narrowly defined and any other termination is to be characterized as a dismiss'al and, therefore, would be arbitrable. Mr. JoUiffe limits 17(2)(c) to cases where the reason for the termination was "obvious misconduct by a probationer." All other terminations of probationary employees are considered to be releases and, therefore, not within the jurisdiction of this Board. There are cases where this difference in approach might be significant. Mr. Jolliffe cites as an example the case where a female probationer would be released because the supervisor believed "that women have no place in such an institution." In Mr. Jolliffe's view, this is not discipline for alleged misconduct and accordingly is not arbitrable. Mr. Adam's approach on the other hand would be to find such a termination to be for reasons other than "failure to meet the requirements of the position" as indicated by the job description and accordingly a dismissal subject to arbitrable review. Fortunately, for reasons which will soon be apparent, this Board need not take a position as between these two approaches. c -i - 15 - We have reviewed the evidence in the matter before us. With some reluctance, we find.that what occurred was a release under Section 22(S) of the Public Service Act and accordingly we have no jurisdiction in this matter. This decision is reached reluctantly because we believe that Mrs. Rodrigues bears some responsibility for the grievor's "failure to meet the require- ments of the position." Nonetheless, it is clear to us that on September 1, 1982, Mrs. Daley was ,told of the minimum require- ments expected of her. The standard of an average of two error-free documents per day was reasonable and she fell far short of meeting this standard. Even Mrs. Ene, a union witness, conceded that the standard was reasonable, and that Mrs. Daley did not meet it and that her work was the worst in the office in those last few months. Mrs. Daley herself told the Board that the standard was reasonable. Furthermore, we find that no culpable acts by the grievor entered into the decision to release her. Even if there had been such acts, there was sufficient evidence of .non-culpable short- comings in her performance to warrant the finding that this was a release and not a 'disguised form 'of discipline. As we noted earlier the term "failure" in Section 22(5) allows both culpable and non-culpabale acts to be considered although Section 17(2)(c) precludes reliance solely or almost exclusively on culpable behaviour to effect a release. For all these reasons, this grievance is dismissed and the action of the employer in this matter is upheld. - 16 - DATED at Toronto, Ontario this~: lZfh~... day of April, 1984. iA. Kruger - Vice-C@irman ,.--. /’ 5!$izaJ cIiiLA&t-, I. J. Thomson - Member P. Coupey - Member