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HomeMy WebLinkAbout1984-0803.Taraschuk.85-06-06803184 IN THE MATTER DF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before . THE GRIEVANCE SETTLEMENT BOARD e Between: OPSEU (J. Tarashuk) and Crievor The Crown in Right of Ontario (Ministry of Transportation and Communications) Employer Before: For the Grievor: For the Employer: Hearing: R. 3. Delisle Vice-Chairman F. D. Collom Member W. Shuttleworth IMember M. Farson Counsel Cornish & Associates Barristers & Solicitors P. W. Codner Employee Relations Officer Personnel Services Section Ministry of Transportation and Communications April 15, 1985 ,T - 2 - : AWARD The griever is, and at all material times was, a Leasing Agent working in the Land Management function of the Ministry. Pursuant to ,s. 18(2) of the Crown Employees Collective I Bargaining Act he grieves: that he has been appraised contrary to the governing principles and standards; His Employee Performance Report, Exhibit 3, prepared July 11, 1984, covering the performance period October 24, 1983 to May 4, 1984 contains the following passage: However, Borden (Taraschuk) has difficulty with setting priorities vith respect to assignments resulting in reports being completed late. He allows minor matters to interfere with his workload and is easily distracted leading to ineffective use of his time. A special effort on Borden’s part will be. required to organize his work so that he can complete his assignments within the alotted time. ,is The grievor asks for a declaration ordering the de letion of th passage and the removal from his Personnel File of any correspondence relating to the Performance Report. , The Performance Report was prepared by Robert .LaVictoire who had been the grievor’s supervisor during the period covered by the report. It is noteworthy that the report was prepared two months after the end of the period and that LaVictoire had ceased being the grievor’s supervisor on Kay 8, 1984. From October 24, 1983 to January 29, 1984 the grievor was on special assignment and did no field work. His task was to review existing files respecting leased properties and to file handwritten reports. He testified that during that period his supervisor said nothing to him about any difficulties in “setting - 3 - priorities”, being. “easily distracted”, or “brganizing his work”. From January 29, i984 to March 23, 1984 the grievor was in the field performing the varied duties of a Leasing Agent. He testified that during that time his supervisor spoke to him about .” one assignment which was taking longer to complete than normal. His supervisor spoke with him about this two or three times but the griev0r, was dealing with a difficult tenant. Dufing this period the grievor testified there’d been no criticisms regarding “setting priorities”, “organizing his work” or “using his time effectively”. With respect to being “easily distracted” the grievor allowed that his supervisor complained about his distraction by a fellow female employee and that afterward he confined the same to coffee breaks and lunch hours. The criticism was not repeated. The grievor testified that from March 23, 1984 to May 4, 1984 there were no criticisms of his work; no criticisms regarding “setting pribrities” of . “effectiveness of using his time”. The grievor noted that during that six week period he was off sick for three-and-a-half weeks. On March 23, 1984 a Career Development Review Report, . Exhibit 4, was completed by the grievor’s supervisor, LaVictoire. The grievor testified’that he reviewed this report with his supervisor and attached his own comments thereto. A typed version was provided to him on March 28. During the .course of this interview there were no criticisms voiced with respect to “setting priorities”, “late assignments”, “effectiveness of using time”, or “distract ions” . III fact the report is glowing: “very satisfact.ory manner w - 4‘- 'ith special attention to details", "all assignments completed satisfactorily", "excels in his willingness to assist Eellow workers", "punctual", "genuine enthusiasm", "valuable asset". Mr. ;LaVictoire testified that this Career .’ Development Review Report procedure had been devised at the request of all the property agents: the agents had asked to be evaluated half-way through the year so they wouldn't be surprised by their performance appraisal at the end of the year. The grievor testified that on March 31, 1984 he received a memorandum, Exhibit 5, which was dated January 31, 1984, signed by the A;ea Manager, which complimented the grievor on the work he performed on the Land Management Inventory between October 24, 1983 and January 29;1984. The grievor testified that his initial reaction to the appraisal he received in July was disappointment'and shock.. He stated that the complained of passage was not a fair assessment and noted that none of these criticisms had been brought up~for discussion before. We can understand his reaction. It is important to note that the grievor was not cross-examined with respect to any of his evidence. Counsel for the Ministry sought to later have the Supervisor testify GO instances when he had been critical of the grievor. This was ruled objectionable. Lord Herschel1 wrote in Browne v Dunn; -- (1893) 6 R. 67, 70 (H.L.): NOW, my Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact - 5 - by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter alt.ogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he i:s in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct,of a case, but is essential to fa’ir play and fair dealing with witnesses. Mr. Lavictoire testified that the complained of < comments found in the grievor’s appraisal were intended as comments respecting only the field work of the grievor between January 29, 1984 and May 4, 1984. He had no complaints regarding the grievor’s work during the time he was engaged on the special assignment. Mr. LaVictoire described the Career Development Review Report, completed March 23, 1984 as applicable only to the period when the grievor was on special assignment, Octobe; -24, 1983 to January 29, 1984. He agreed however that it would have been re,asonable for the grievor to believe that the comments in that Report were applicable to cover as well the period up to March 23; 1984. . From the grievor’s perspective then, the complained of passage was directed to his performance from March 23, ~1984 to May 4, 1984, a period of time during which he was actually pn the job for a period of two-and-a-half weeks. Is the performance appraisal here “contrary to the governing principles and standards”? - 6 - The Performance Appraisal, Policy and Process Handbook, distributed by the Ministry, Exhibit 6, sets out the principles and standards adopted by the Ministry: MTC POLICY THE APPRAISAL PR;CESS WILL BE SUCCESSFUL WHEN TWO KEY ELEMENTS ARE COMBINED: APPRAISING ON TH,E BASIS OF SPECIFIC PERFORMANCE, WHILE AT THE SAME TIME KEMENBERING THAT THE OBJECTIVE IS FUTURE OR CONTINUING IMPROVEMENT, NOT PUNISHMENT FOR THE PAST. (P. 2) . . . Appraisal forms are primarily a means to ensure that a discussion between supervisor and subordinate about performance does take place and that certain essential considerations are covered, both in face-to-face discussion and in a written summary. Regular communication between supervisor and subordinate about job pqrformance, even on a daily. basis, is not a substitute for comprehensive appraisal. Frequent discu~ssions are, of course, most useful and help to ensure that there are no great surprises at appraisal time. (P. 6) The Ontario Manual of Administration, Policy, Staff Development, Exhibit 7, describes the process: Performance Appraisal Process: Performance appraisal is a three-step process whereby manager and an employee: 1) define the performance that is expected of the employee during the next review period; 2) discuss performance on an ongoing basis during the review period; and 3) evaluate job performance at the end of the review period. . . . 2 - 7 - Employees are responsible for their own performance and are entitled to know on a regular basis:. the performance expected of them; how they are performing: and . the resources available to them to attain the expected performance. (12-75-l) It may possibly be thatthe appraisal done by Mr. LaVictoire is an accurate description of his perception of the griever’s strengths and weaknesses. The problem is that it appears that the grievor was not properly advised of his criticisms. He believed, and had reasonable grounds for * believing, that he was performing quite well. If the objective of performance appraisal is future improvement, and the Career Development Review Report is to avoid surprises the process adopted certainly failed the grievor in this instance. He had no opportunity to effect change. We declare that the grievor ,has been appraised contrary to the governing principles and standards and that he deserves to have the offending passage expunged and all correspondence relating to the same removed from his Personnel File. . 2 5 - a - Vice-Chairman r I w/w - (see attache< Wm. .d:Tsh6ttleworth, Member Addendum) .__ _____ -- __.. ---_ i F : ADDENDUM .' This addendum is not meant to indicate dtsagreement with the reasoning, nor with the conclusions reached in this award, with which I concur. I feel, however, that some further comment might be useful to the parties. I quite readily accept that there were shortcomings in the appraisal vis-a-vis the established standards. Nevertheless, I find no reason for doubting the sincerity of the supervisor's comments on the appraisal form itself. Whereas it is true that the evidence in support of the comments is somewhat meagre, the supervisor stated in cross examination that there were several instances of performance shortcomings and gave as an example the grievor's undue delay in submitting an invoice for payment. One of the statements removed from the appraisal by this award refers to the grievor's difficulty in setting priorities. The grievor’s response to this criticism was that management sets the priorities. It became quite clear from the evidence that there'were priorities which he was expected to set in his responsibilities as a Leasing Agent. My main concern is that the findings of this board may leave the impression that there is a "winner" and a "loser" in this arbitration. I hope not. If, however, such an unfortunate interpretation is placed on this award by the parties, both of them are losers. C! . Shutt:eworth