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HomeMy WebLinkAbout1983-0230.Waggoner.84-03-02i. Between: Before: 230/83 IN THE MATTER OF AN.ARBITRATION Under THE CROWN EbIPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEHENT BOARD For the Griever: OPSEU (John Waggoner) Grievor - And - The Crown in Right of Ontario (Ministry of Correctional Services) Employer R.L. Verity, Q.C. Vice Chairman P. Craven Member F. Hannah Member M. Mercer-D&antis Grievance Officer Ontario Public Service Employees Union For the Employer: P. Radley Staff Relations Officer Ministry of Correctional Services Hearing: January 17, 1984 i -2- DECISION In this matter, John Waggoner filed a Grievance dated March 9, 1983, the essence of which is the allegation of "unjust appraisal". Article 18(2)(b) of the Crown Employees Collective Bargaining Act, R.S.O. 1980 Chapter 108 gives an employee the right to grieve "that he has been appraised contrary to the governing principles and standards". The Grievor was at all relevant times employed as a Correctional Officer 2 at the Mimic0 Correction Centre. The Centre is a medium security institution accommodating approximately 242 inmates in a dormitory setting. The Grievor received satisfactory ratings on all performance reviews from the time of his first employment with the Ministry in September, 1977 until February 10, 1982. On that date he received an appraisal which rated his performance as unsatisfactory and in addition contained written comments most of which were derogatory. That appraisal was prepared by Shift Supervisor James Loran and was allegedly for the period August 13, 1980 to and including December 31, 1981. On February 24, 1982, Mr. Waggoner grieved that appraisal. The issue was eventually settled by the Parties two days prior to an arbitration hearing in December, 1982. The terms of settlement included the removal of the appraisal from Mr. Waggoner's personnel file. However, the Ministry did reserve the right "to complete an appraisal regarding Mr. Waggoner's performance during this period". Mr. Waggoner was given the right to grieve the revised appraisal. . - 3- Prior to the settlement in December, 1982, Mr. Waggoner received an annual appraisal from Shift Supervisor Berry for the period September, 1981 to September, 1982 which was both positive and laudatory. The Berry appraisal overlapped the Loran appraisal by some four months. Pursuant to the terms of the settlement, a revised appraisal was prepared by Mr. Loran after consultations with Superintendent Gregory Simmons. This appraisal was received by the (: .' Griever on March 7, 1983 and was for the period from August 14, 1980 to August 31, 1981. The results of that revised appraisal changed the Griever's performance rating to satisfactory; however,the written comments accompanying the revised appraisal were more derogatory than the comments iri the first appraisal. It is this revised appraisal that is the subject matter of the instant Grievance. The appraisal form used by Mr. Loran in both appraisals provided for only three performance rating categories as fOllOWS: - satisfactory - not satisfactory - satisfactory - except in the following important respects. At the Mimic0 Correctional Centre Shift Supervisor,s are responsible for the preparation of appraisals for Correctional Officers. Yr . Loran testified that he prepared the original appraisal from his own . . -4- I : observations, and from the opinions of other Shift Supervisors and the Griever's Unit Supervisor. In both appraisals Mr. Loran expressed concern regarding the Griever's performance in the areas of super- vision of inmates, security, and lack of personal initiative. These concerns were set out in greater detail in the revised appraisal. (I,. ;: (..I’: Superintendent Gregory Simmons testified that he assumed his duties at the Centre on August 31, 1982 and therefore had no personal knowledge of the Griever's performance during the period in question. In his testimony, the Superintendent stated that he discussed numerous technical deficiencies in the first appraisal with Mr. Loran. The Superintendent was also a party to the settlement negotiations in December, 1982 and assisted Mr. Loran in the preparation of the revised appraisal. Mr. Simmons gave evidence that his interest in the revised appraisal was limited solely to the correction of technical problems and that no attempt had been made to obtain a fresh appraisal. The Griever testified that he was greatly surprised by the derogatory comments contained in both appraisals. It was his evidence that none of the concerns contained in those reports had been brought to his attention. The thrust of.the Union's argument was that the revised appraisal was manifestly wrong and that the comments contained in both appraisals were totally unjustified. Ms. Mercer-DeSantis , i ‘( ” -5- ~ t relied in part upon the revised rating from unsatisfactory to satisfactory performance to support her contention. She argued that the revised rating should be allowed to stand in the Griever's personnel records without the accompanying comments. For the Ministry, Ms. Radley contended that the revised appraisal comments were fair, contained no misrepresentations of fact and were non-discriminatory. Further, it was argued that the ( comments were supportable on the evidence. Having reviewed the evidence carefully, the Board is not satisfied that there were sufficient consultations by the appraiser with other supervisors to present a balanced assessment of the Grievor's performance durinq the period.in question. In our opinion, some positive aspects of the Griever's performance were deserving of comment in the appraisal as well as the alleged deficiencies. In addition, we are not satisfied that the Griever was i, made aware of the Employer's concerns prior to the presentation Of the first appraisal. We would agree with Superintendent Simmons in his testimony that derogatory comments contained in an appraisal should come as no surprise to an employee. Any perceived deficiency regarding employee performance should be brought to the attention Of an employee prior to being recorded in a written appraisal. The Ministry has recognized certain deficiencies in the appraisal procedures generally, and has taken steps during the past ., ,. 3 -6- ( year to introduce new appraisal forms which highlight skills require'd to perform the job. In addition, the Ministry has instituted a formalized tra,ininq program for appraisers which will have the effect of achieving greater objectivity and accuracy. An appraisal is an important document to an employee, as the comments contained therein can affect opportunities for advancement and promotion. The preparation of an appraisal is not a science per se; however,to achieve a balanced viewpoint an c appraiser should have access tosnd knowledge of an employee's personnel records. In the instant Grievance, Mr. Loran was unaware that he had such a right. The terms of settlement agreed upon between the Parties in December, 1982 reserved the right to complete an appraisal. What was done, in effect,was not an appraisal de nova or a new appraisal, but merely a revision to the wording of the existing appraisal. The time frame of the revised appraisal was for a shorter period of time than the first appraisal. At the Hearing, no satisfactory explanation was presented by the Employer for the change in rating to satisfactory from unsatisfactory performance. In fact, the written comments contained in the revised appraisal do not reflect a satisfactory level of perfOr- mance. We hasten to add that there is no evidence of bad faith on the part of the Ministry in the preparation of the revised appraisal. Further, in our opinion Mr. Loran bore no malice towards the Griever. - I - The Board is concerned that the undue delay in the preparation and delivery of both the original appraisal and the revised appraisal has the effect of rendering the general comments portion of the revised appraisal of questionable value. This is not the appropriate case for the Board to order a fresh appraisal. For the above reasons, the satisfactory rating accorded to the Griever shall be retained in the Griever's personnel records. However, the qeneral comments accompanying that appraisal will be i removed from the records. DATED at Brantford, Ontario this 2nd day of March, 1984. R.L. Verity, Q.C. Vice Chairman i hiember ” I concur” F. Rannah Member