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HomeMy WebLinkAbout1984-0373.Ferraro.84-10-30TE‘EP”O”E’ rrs/aoe- cl*89 313/04 IN THE MATTER OF AN ARBITRATION. Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: For the Grievor: For the Employer: Hearinq: August 8, 1984 OPSEU Wince Ferraro) - and - Grievor . The Crown in Right of Ontario (Ministry of Correctional Services) Employer R. Delisle Vice Chairman R. Russell Member L. Turtle Member B. ~Herlich Grievance Officer Ontario Public Service Employees Union J.F. Benedict Manager Staff Relations Personnel Branch Ministry of Correctional Services pi .:: ,. .:;; “1~ ..,i 2 The grievor began work with the Ministry as a casual employee on 4 May, 1982. On 3 October, 1983, he was appointed to probationary status to WOKk in the Reception Unit in the Adult Training Centre. His employment was terminated by letter dated 6 January, 1984, effective 20 January, 1984. Section 22(S) of the Public Service Act provides: A deputy minister may release from employment any public servant during the first year of his employment for failure to meet the requiremerrts of his position. The letter of termination written by Superintendent A.J. mberts gave the following KeaSOnS: I have carefully reviewed your work performance since you were appointed to probationary status in October of 1983, and have liaised with Mr. Ferguson and other supervisors. There have been concerns, discussed with you by .MK. Wood, Mr. Harrison, Mr. McTrach,, and Mr. Ferguson on issues ranging from punctuality to your relationship with inmates, your interest level, your low motivation, and your apparent inability to accept constructive criticism. It would appear that there has been little significant improvement in these very important areas and therefore I must inform you that you are being released from employment for failing to meet the required standard. The Ministry takes the position that this Board lacks jurisdiction to entertain the grievance as the Crown Employees- only empowers the Board to review the 'dismissal" of an employee and not-'a "release". On this issue the jurisprudence of the Board iS founded in the decision of Leslie (Adams), 80/77 which states: . . . the bona fides release of an employee from employment made in good faith duting the first year of his employment for failure to meet the requirements of his position cannot be considered to be a dismissal . . . and cannot be contested before this Board under s. 17(2)(c) (now 18(2)(c) C.E.C.B.A.). . . . (However) 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. This Board, therefore, has jurisdiction to review a contested release to insure that it is what it purports to be. But in the adjudication oft 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 .:. : : 4 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 OK correctness of that determination under s. 17(2)(c). (pp. 12-13). ' In Insanally, (Jolliffe), 7/83 this Board noted that one of ~the questions left open after Eeslie and its progeny was: . . . whether the Board has any,-power to act if satisfied that the "release" was not bona fide, i.e. was not made for any valid reason whatever. . . . To say that the Board has no jurisdiction when the release has been made in good faith is clear enough, but it ~fails to tell us what, if anything, can be done about a release notmade in good faith or not madeor valid reasons or made for no.reason at all, OK made by mistake. With the greatest respect the learned arbitrator has mis-stated the question. The clear implication from Leslie is that the good faith of an employer can be looked to for the purpose of determining whether the termination is a “release”. This Board can examine the process used by the employer and determine whether what it has chosen to characterize as a release truly is such; if the termination. is not a release it is a dismissal and hence arbitrable under s. 18(2)(c). To adopt the 94/78: language of Haladay (Swan) -a 5 :: ..i. I~. .._, r There is a difference here, of course, between a review of a grievance on its facts and a review on the merits. A review on the facts may well reveal that, no matter how clearly the merits favour the grievor, the Board is simply unable to award any remedy. So too, though the Board refrain from examining the merits, a review of the grievance on its facts may entitle the grievor to a remedy. On 31 October, 1983, an incident occurred on griever's shift. The grievor'was the Control~and Log Entry Officer and entered itr the log that Officer Bertoli did rounds at 0400 hrs. This entry did not jibe with the punch clock disc and a memo from the 'griever's supervisor, Harrison,% requested a report to explain the discrepancy. The ' discrepancy was later explained to reside in t~he delinquency of Officer Bertoli. The griever's response to his supervisor's memos unfortunately closed with the statement: .I deeply resent having my ability as an officer and a person questioned in this manner. (Exhibit 3). Assistant Superintendent Ferguson interviewed the grievor concerning his response. Ferguson testified that he was not concerned about the actual punch clock incident but rather with the griever's closing statement which indicated a reluctance to accept criticism. Eerguson testified that "I can accept mistakes as long as the employee learns from it". Se admitted that the grievor may have apologized during the interview but he was unable to recall. The grievor testified, was not cross-examined on any of his - evidence, and we accept that he did apologize and evidently did learn from his mistake. The Standing Orders for Maplehurst Correctional Centre provide: The new Correctional Officer will be appraised monthly during his or' her first year of service. These appraisals have a twofold purpose. Firstly, they are obviously an on-going record of the individual's performance and secondly;.perh-aE more.importantfyi-they.provide-a traxnrng,tool-for-management-and tne.orrlcer;.wnereay-posltlve . traits-can-be.seen*and.recognized; and.negatrve.trasts-or,areas - neearng-rmprovement.alscussed*with ZXZ+i.to*improvem&t; These Standing Orders are consistent with the sound philosophy found in the .oft quoted decision of Eriksen, (Beattie), 12/75: Although the employer is entitled and indeed has a legitimate interest in assessing the overall suitability of persons who seek to join its permanent staff, the probationary employee is entitled to a fair and proper assessment. Such an assessment 7 necessarily assumes the probationer will be given a sufficient period of time to demonstrate his proficiency and capability, that his duties and responsibilities have been clearly articulated to him, that reasonable standards of behaviour and performance are expected of him, that his progress is systematically reviewed and not insignificantly, that the employer has made reasotiable efforts to coach, instruct and inform the employee throughout the probationary period. Such principles, fundamental to a probationary period in any sector of employment, are even more fundamental in the public service, where the probationary period is usually of a longer and more prolonged duration. NO appraisal was done with respect to the grievor for the month of October, his first month on the job. Detailed, appraisals were done for the months of November and December. (Ex. 8 and 6). Neither were shared nor discussed with the grievor. His supervisor, Harrison, filed a lengthy report on 8 November, 1983 concerning the grievor. (Ex. 8). This was not shared with the grievor. Indeed none of these documents were seen by the grievor until the date of this hearing. The appraisal forms naturally have a space marked "Appraisal Read and Discussed" with spaces for signatures by employee and appraisor, date of interview and notation of whether a copy was given to the employee: in , I i 9 greater level of interest, and motivation in his pOSitiOn, and tKy to overcome his resentment for advice and direction, if he is to be considered further as a Correctional Officer. There is irony in the extreme in written expressions of great Concern and of needs for improvement when there is absolutely no communication of the same to the probationer. __ The letter of termination recites that there were concerns since his appointment to probationary status "ranging from punctuality t0 your relationship with inmates, yOUr kItereSt level, your low motivation and your apparent inability to accept constructive criticism". The Superintendent states that these- were discussed with the grievor butt by the uncontradicted evidence of~the grievor, this was not so. The griever's supervisor, Harrison, testified that griever's over-all attitude and stand-offishness was the primary concern. He testified however that he never discussued the same with him. Harrison testified that he recommended against appointment to permanent status. When asked where such recommendation OCCUKKed he pointed to the above excerpted extract from the December appraisal. On any reading of the closing sentence there noted we cannot find such a recommendation; clearly it was'an expression of concern that if the grievor did not effect change then I fi ,. . ,_ ,’ 10 consideration would have to be given to his status. This last appraisal does not bear the hallmarks of an appraisal leading to release. .We conclude that the grievor was not released for failure to meet the requirements of the job since he was never given an opportunity to meet the requirements as he - was never advised that he was failing to meet any nor., counselled on how to improve. Good faith on the part of the employer demands that it live Up to its own Standing Orders which bespeak counselling , coaching and fairness of notice - of what is required of the probationer. Having regard to normal requirements of pKOCedUKa1 fairness we cannot characterize the griever's termination as a release. The ,teKmination was a dismissal. Counsel for the employer took the position throughout that there were no grounds for dismissal and we agree. Accordingly, the grievance is allowed, the grievor is ordered reinstated and ccanpensated for all lost wages and benefits and credits. This Board will remain seized pending the implementation of its award. DATED at Kingston, Ontario, this 30th day of October, 1984. )’ //’ -: (I: ~c-.;. ,.~l :.:. ; ,, ? :II. cc _. <. ,. ~: .._ ( ,, 'K‘il; DeliSTe, 'K‘il; DelisTe, Vice Chairman Vice Chairman R. Russell - Member / \ (see attached Addendum) - =a ADDENDUM I cannot disagree with the board's findings and award. However, I am concerned that underlying this case is the possi bility that the grievor ,demonstrated that he i s basically not suitable for this type of wor_k,(as management contended) and that management failed to identify .the situation to the grievor in a proper and reasonable manner following their own laid down procedure. n