HomeMy WebLinkAbout1985-0598.Wu.86-11-04ONTAN CROWN EMPLOYEES
GRIEVANCE
q m BOARD SETTLEMENT
IN THE MATTER OF AN ARBITRATION
- Under -
Between:
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
OPSEU (Chung-Wai Wu) Griever
- and -
The Crown in Right of Ontario .j-i
.(The Ministry of Transportation and Communications) Employer
Before: ,...
For the Griever:
For the Employer: .
Hearingi:
R.L. Verity, Q.C., ViceXhairman
I. Freedman, Member
G.A. Peckham, Member
B. Hanson, Counsel
Cavalluzzo, Hayes and Lennon
hrristers and Solicitors
R.C. Filion,Q.C., Counsel
Winkler,Filion and Wakely
Barristers and Solicitors
October 21,. 1985
December 16, 1985
February 10, 1986
April 9, 1986
June 10, 1986
-2 -
DECISION
On July 5, 1985, the Griever Chung-Wai Wu was dism issed
from his position as Electrical Design Drafter (Classification -
Drafter 11, pursuant to Section 22(3) of the Public Service Act. The
letter of dismissal alleged ” . ..your performance as a Drafter 1 has
been consistently and substantially below the requirements of this
position and level of responsibility...“. Essentially, the reasons
for discharge are two-fold: inability to perform the job and
attitudinal-behavioural problems.
A grievance filed 3uly 9, 1985 alleged unjust dismissal and
sought reinstatement with full redress. The Employer alleged that
the Griever was discharged for reasons of culpable conduct that was
within his power to correct. The Union contended that the case
involved primarily non-culpable conduct.
The arbitration was heard over five separate hearing dates
with the final day devoted to extensive arguments. The Board does
not intend to embark upon a repetition of relevant. evidence except in
summary form. ~Three witnesses testified on behalf of the Employer -
Vince Cimino; an Electrical Development Engineer with MTC; V.~ A.
McCullough? Head, Electrical Design and Development Section;‘and R.
A. Shannon, Head,. Electrical Engineering Section. .In particular,
Mr.~Cimino presented in depth testimony that consumed~ two hearing
dates.
-3 -
The Grievor was first employed by the Ministry on a
contract basis in 1976. On September 1,
1977, he commenced work in
the Electrical Development Unit as a Drafter 1. The function of the.
..~~
Unit is to create standard drawings and specifications for Mini’stry
traffic. signals and other illuminations devices. Mr. Cimino was
placed incharge of the Unit in 1979 and in that capacity became the
Griever’s supervisor.
<In additio~n to the Griever and Mr. Cimino, two other
employees worked in the Unit as Designers - H. C. Hilliard,
Electrical Development Officer; ,and M. i. Agellon, Senior Electrical
Designer. Briefly stated, the Griever’s job was to perform
electrical drafting duties., under close supervision, including the
preparation of standard electrical drawings to scale from sketches
~~.,
provided by the designers.
Until the summer of 1980, the Gri~evor was involved in a
metric conversion project which essentially required tracing from
existing drawings and translating numbers from the imperial to the
metric system. Prior to 1981, performance appraisals established
that the Griever performed his duties in a satisfactory manner. The
first critical performance appraisal was dated March 24, 1981. That
report reads, in part, as follo,ws:
II . ..Mr. Wu needs continuous supervision and
continuous’instructions in order to proceed with
and complete his work. Mr. Wu seems to have
difficulty drawing from sketches. He seems to.
want to trace which is not always possible.
-4 -
The quantity, the quality and the technical
content of his drafting work seems to fall
somewhat short of the ,expected level for his
classification.
or Mr. Wu seems to have some sort of behavioural
attitudinal problem. He states that he is
disturbed when his supervisor or the more sen
employees in- this unit ask him questions
regarding his work..."
ior
As a result of that appraisal, the Griever achieved a
rating of "fair". That category is defined in the Employer's
guidelines as:
1, . ..The employee who is not a relative newcomer
and whose performance falls short of a competent
level. Performance is adequate enough, however
to justify retention in the position."
That appraisal was discussed with the Griever on March 31;
1981 by Mr. .Cimino and Chief Engineer V. A. McCullough. Both. Mr.
McCullough and Mr. Cimino are professional engineers. Mr.. McCullough
confirmed the results of. that meetingin- a letter to the Griever
dated April 9, 1981 wherein it was pointed out that the Griever's
performance required improvement in both quality and quantity of
work. In addition, Mr. McCullough'3 letter included a reprimand
concerning the Griever's behaviour in the off.ice inwhich on several
occasions he created "a loud disturbance", when approached by either
his supervisor or other workers to discuss work in hand.
At the Hearing, Mr. Cimino testified that the Griever
refused to d'iscuss his work or accept d~irection without responding by
-5 -
way of confrontation that usually took the form of chest pounding and
stating in a 1ou.d voice - “you are disturbing me”, “I’m fine”, “I am
responsible”, “I am a Canadian citizen”. Invariably, each
confrontation ended by the Griever leaving his’work station and
proceeding to the washroom.
The Griever’s performance was of sufficient concern.that it
became necessary to evaluate his performance on two other occasions
in 1981. On May 25, 1981, a performance report noted “some
improvement”
in overall performaiicis; but went on to state that the
quality of the work could still be improved. Again, the Grievor
achieved a “fair” rating.
However by 3uly of 1981, the Griever’s 1nabil.ity to accept
direc,tion and work with Messrs. Hilliard and Age lion became so
serious that Mr. Cimino wrote to Mr. McCullough recommending that the
Griever beg transferred to another position. No such transfer took .~~
place.
The third appraisal in 1981 is dated November~l2. That
report noted that the Griever did not have a grasp of drafting
techniques and appeared to trace rather than draw. Communication,
comprehension ,and behaviour remained a problem. Two further problems
were identified,
unacceptable hyg i
that sometime in
namely absence from his work station and
ene habits. At the Hearing, Mr. Cimino testified
1981 he gave the Griever a drafting textbook. It
- 6
was Mr. Cimino's evidence ~that he d
the textbook.
d not observe the Grievor read I
Two performance appraisals were prepared in 1982 - one on.
3une 9 and the second on October 9. The first appraisal was
reminiscent of those prepared in 1981. The October 1982 appraisal
was more detailed.
Productivity was noted as a problem. It was
no.ted that slow output stems from his inability to work quickly in
>.5>,. modifying the. original~‘st’andard drawings because of the time taken to
practice letter
making photocop
Cimino made the
spacing, laying out the work on tracing paper and
ies of the work. In the performance report, Mr.
following comments:
“Mf. Wu should follow instructions and be
cooperative and not to shput at his supervisor
'nor- at his co-workers. In fact, on. several
occasions,
behaviour,
Mr:r’!,Wu has displayed an abnormal
where he has shouted and ~walked away
from his supervisor upon being~asked~ questions
regarding his work status.;
Mr. Wu should refrain from expectorating loudly
and ejecting the waste into-.the waste paper
basket. This sort of portrayal is definitely
unhygienic and many people have complained about
this behaviour.”
On November 9, 1982, the Griever was given a letter of
reprimand for. an incident which occurred on October 13 where the
Griever reacted in a loud manner when approached by his supervisor.
No grievances was filed as a result of this incident.
The Griever’s difficulties appeared to escalate in 1983. A I
performance appraisal dated May 31, 1983 was a five page document,
which identified areas of concern such~ as quality and quantity of
work, behaviour and communications, hygiene, attendance and training
and the corrective action required to alleviate each problem.
A memo from Mr. Cimino to the Griever dated~~september 22,
1983 detailed four ~areas of concern which -had an adve,rse effect on
the ‘Griever’s drafting responsibilities - excessive coffee breaks,
excessive absences from the drafting table, numerous spelli’ng ePrors,
and attitude.
On November 1,
1983, the Grievor threatened two employees
in other units of the Ministry in an altercation that took place at
t~he photocopying machine. The Griever was initially given a 10 day
suspension for his conduct which was subsequently reduced to a five
day suspension, pursuant to Minutes of Settlement.
Finally, in- establishing a work schedule for the Griever
for 1984, Mr. Cimino wrote the Griever a letter on 3anuary 10, 1984
which read, in part, as follows:’
“To meet previously stated objectives, I will
begin, on January 23, 1984 a detailed drafting
work schedule: which you, the designers and
myself, will follow very closely in meeting
completion dates (productivity of the work),
quality of drafting, .your knowledge of the work,
your behaviour ani):~:ca~llaboration with others.
.
-8 -
I hope that as we monitor your work.on a dafly
basis, we will not get into confrontations as we
have had in the past, but that we will achieve
mutual understanding and co-operation.
I hope that unrelared questions and answers to
Ministry work. are avoided and the only issues
which we will talk about is the Ministry work.
Summary of.objectives to be met in i984
1. Timely productivity as outlined on work
schedule.
. 2. Quality of Drafting Work - good notation ~,
spacing, no ink removal by penknife.
3. Co-operation and no confrontations.
4. Knowledge of Ministry drafting work.
‘I look forward to a better 1984 year, and that
our relationship will improve and be normal as it
should be in any work environment.. . .I’
In May 1984, the Grfevor received a written reprimand for
“screaming” ,.at Mrs. E. Hyams, a Ministry Employee working in another
unit.
The performance report of May 16, 1984 was the Grievor’s
first “marginal” rating. The Employer’s guidelines defines that
.*,
category:
“This overall rating covers the employee whose
performance isso unsatisfactory that termination
or reassignment should be considered.”
That performance report. reads in material parts as follows:
“Mr; Wu hasp had~job training for many years and
has attended courses on communications; To date,.
.,
-9 -
There.were complaints from other Ministry employees
concerning the Griever’s behaviour in 1984. The most serious
incid.ent occurred on November 27, 1984 when the Grievor, for no
apparent reason, delivered the ultimate insult in Chinese to a
Ministry employee of Chinese origin. That incident wars subsequently
reso 1 ved by way of an apology.
results, of training have been ~negligible. It is
difficult to assess what additional training will
be useful for this employee....
Mr. Wu has been doing drafting for the Ministry
for over six years and with this time, evidence
in.dicates that he has not mastered electrical
drafting skills and techniques-nor has he
achieved a working level in the drafting
clasgification in the Electrical Design Unit.
Mr. Wu spends a lot of time making unnecessary
photocopies of his work, cleaning up.his drafting
table and cleaning the work pens too many times,
which suggests that he has not learned the proper
usage of drafting tools. These may be some of
the ‘reasons why Mr. Wu is slow to complete his
work assignments, although on occasion he has
made minor revisions relatively quickly.
It is very difficult to communicate and
understand Mr. Wu’s technical knowledge and humans
behaviour. It is almost impossible to discuss
any part of his work with him, particularly an
in-depth discussion of his work, since any
attempt to do so, usually results in a
confrontation, sarcasm, or an answer having no
relation to the question.
I find Mr. Wu-extremely difficult to get along
with, as well as not compatible in our work
environment since he causes disturbances for
others by talking loudly and shouting.” .~
In December, 1984, the Union and the .Employer agreed that
I
the’Grievor would attend a mutually satisfactory training program to .,
- 10 -
improve his drafting skills.
For whatever the reason, the-training
program was never implemented.
On 3anuary 31, 1985, M. D. Harmelink, Manager, Traffic
Management and Engineering Office,
wrote the Grievor and notified him
that his, current performance and attitude were not acceptable. That
letter concluded with the statement: "If significant improvements
are not demonstrated in both work performance and attitude, I must
advise you that you ris~k dismissal from the Ministry".
The performance report dated January 31, 1985 was a five
page document which specified the-requirements of the position from
the standpoint of quality and quantity of work, attitude, current
problems and the corrective action required. Mr. Cimino wrote in the..;.
:~- report that "if the required improvements are not forthcoming by 1985
06 01 termination will be recommended".
A final appraisal report was prepared and dated June 18,
1985. Th'e report noted no significant improvement and contained the ~;,~,,
recommendation for dismissal. Mr. Cimino prepared a one page
document outlining the continuing problems with the Grieior in the
area of quality and quantity of work and attitude. Two copies of “.
Mr. Cimino’s document were presented in evibence bearing different
dates. The Board is satisfied that Mr. Cimino’s comments were
considered
prior to dismissal by the Acting Deputy Minister.
Memoranda from R. A. Shannon, M.-R. Quinton, Manager Traffic
- 11 -
Management and Engineering Office, and Margaret Kelch, Executive
Director Highways Operation and Maintenance Division, all contained
recommendations for dismissal.
The Griever did not testify at the Hearing. Three
witnesses were called by the Union. Miss Bonnie Lyles, a Ministry
Staff Allocation and Training Officer, outlined the, various staff
development courses available in 1983 and 1984. She testified that-
the Grievor attended a one day course given by her entitled
"Effective Listening" on October 23, 198'4.
Cuthbert Mondesir, now a senior Draftsman testified that he
worked with the Grievor for several years prior to 1980. His
evidence was that after some initial difficulty in drafting, the
Griever began to improve. In cross-examination, Mr. Mondesir
acknowledged that the Grievor’s.work at the time was restricted to
the metrification assignment.
The principal witness for the Grievor was Dr. Michael C.
Church, a clinical psycholo~gist at Humber Memorial Hosp ital, tiho also
carries on a private practice. Dr. Church assessed the Grievor at
the request of Mr. Hanson on October 18, 1985. Mr. Filion objected
to the admissibility of any post-discharge evidence on the basis that
it was not relevant. The Board heard Dr. Church's evidence and
'allowed the Parties to ‘argue what weight, if any,- should be accorded
such evidence.
‘2 -
Dr. Church interviewed the Griever for one hour on October
18, 1985, and performed psychological testings for three'hours.to
determine personality.and the likelihood of any mental disturbance.
The psychologist did not prepare a written r.eport. At the Hearing,
Dr. Church reported the following conclusions:
1. The Grievor does not suffer from any major
mental disturbances.
2. The Grievor does experience some depression
within the normal range.
3. The Grievor is a somewhat naive,
unsophisticated individual.
4. He tends to miss the ,subtleties of
interpersonal relationships.
- .
5. He is defensive and.sensitive to any form of
perceived slight.
,_:.:
6. He has difficulty tolerating any suggestion
of a problem or difficulty.
7. The Griever has poor insight regarding his ‘.
effect upon others..
8. The Grievor becomes more rigid under stress.
In cross-examination, Dr. Church acknowledged that as a
psychologist, he has no medical training, and that he merely.assessed
the Grievor with no follow-up treatment. Dr. Church testified that
when he asked the Grievor why he did not leave his employment the ~-
Griever replied that it would be a “loss of face" to do so. The
psychologist further testified that the Griever saw’ "no need for
himself to change".
- 13 -
Counsel for the Employer characterized the Griever’s
conduct as “culpable” in both job performance and attitude, and
accordingly there was no duty to place the Griever. in another
position. Alternatively,, if the Board, found the dismissal to be
non-culpable, the circumstances would not justify reinstatement.
Mr. Filion argued that there was no evidence that the Grievor was
capable of performing any other job in the bargaining unit, and that
in view of the Griever’s behavioural problems, there was no valid
reason to transfe,r the Grievor to a,ny other position. In short, the
di~fficulties encountered by the Grievor were br0ugh.t on to a large
extent by his own conduct. Mr. Filion argued that reinstatement in
any form would be inappropriate. -+;, . .
Mr.. Hanson directed his argument to the performance aspect
of the dismissal and to the extent that attitude was a prob,lem, it
was derived from the performance problem. The thrust of the.Union’s
position was that the Grievor’s shortcomings resulted from
non-culpable conduct, and that the Employer had failed to establish
its case uponthe usual tests. Mr. Hanson contended that the letter
of dismissal was singularly unclear; however’, he.urged the Board to
find that the. Employer relied upon performance to ground the
discharge. Specifically, Mr. Hansonargued four points.
1. The Employer failed to establish objective
standards.
2. The Employer improperly assessed the
Griever’s job~performance at the level of Drafter
2 instead of a~Drafter 1.
_.
- 14 -
3. The Employer gave the Grievor inadequate
supervisory direction.
4. The Employer failed to make reasonable
efforts to locate alternate bargaining unit
positions consistent with his qualifications and,
competence.
Mr. Hanson contended that discharge was an inappropriate
response in all the-circumstances.
Numerous arbitral and judicial precedents were submitted by
each of the Parties. The Employer relied upon cases of culpable
dismissal while the Union precedents cited were cases involving
The first issue that merits comment is the brev ity of the
letter of discharge. The reason for discharge relates to continuous
substandard performance and .contains no expressed reference to
non-culpable behaviour.
attitude or behaviour problems. However, the letter ,do.es use the
phrase “as indicated to you at ,various times”, and accordingly we
deem that to be adequate compliance to ground both reasons for
dismissal.
The second issue i
evidence - in this case the
It is appropriate, we think,
this nature with the hope of gaining some insight into the probable
cause of the difficul,ties exeerienced by the Grievor. Unfortunat.ely,
the evidence does not assist the Grievor. The psychologist concluded
s the relevancy of post-discharge
psychological assessment of Dr. Church.
to’consider ,such evidence in a case of
- 15 -
that the Grievor did not suffer from any significant mental
disturbance, at least as of the date of the assessment. The
impression Dr. Church conveyed to the Board is that the Grievor has a
poor prognosis that his performance and attitude are likely to change
in the foreseeable future.
We note that the Grievor was not cal led upon to testify.
We would agree with Counsel for the Employer that it is unusual that -._c
the Grievor did not present some evidence on his own behalf. In
these circumstances, the failure to-,testify does -justify an inference
that such evi.dence would have been unfavourable. (See Sopinka and
Lederman Text, Evidence In Civil Cases at p. 535)
:1
On all~the evidence and arguments presented, the Board must
conclude that the Grievor’s attitude and’substandard work
performance, which have continued unabated over a substantial period
of time, have rendered him unfit to continue in his employ.ment. The
Board finds that the Griever’s conduct. is indeed culpable conduct on
both grounds for dismissal. The Griever’s attitude is so peculiar
that it essentially disables him from the proper.performance of his
job. There can be little doubt that attitude was within the control
. .
of the Grievor.to correct. The Grievor’s substandard work
p~erformande can be attributed in no small measure to culpable
conduct. For whateve; the reason, the Grievor has consistently
refused direction from Mr. Cimino and the two designers employed in ._
the unit. He has been warned on numerous occasions that attitude was
- 16- _
a factor wh ich affected h is performance.
Mr. Wu was repeatedly advised of the requirements of his
position, more so.perhaps in ,the last two years. We are satisfied
that the Griever was assessed in performance appraisa.ls as a Drafter
1, although he was encouraged, quite properly we think, to develop
his skills to the higher level of a Drafter 2.
Mr. Wu has had the advantage of two Ministry courses - a
two day course in February, 1983 on “Interpersonal Skil.ls”; and a one
day course on October 24,
~;
1984 on “Effective Listening”. A course on
basic drafting skills may have benefited the Grievor; however, his,,
attitudinal problems were such that it is doubtful that a technical
training course would have alleviated his difficulties.
The Board is satisfied that Supervisor,Cimino has taken
every reasonable .step, by way,of on-the-job training, to assist the
Giievor, but without success. The Supervisor repeatedly explained
the requirements of the job to the Griever and in particular what was
required by way of drawing assignments. The evidence is replete with
examples that the Griever was unwilling to accept direction or . .
constructive criticism without.r’esponding by way oft confrontation.
When an ~employee’s performance is below the standard,
required, it is virtually impossible to retain that employee who
consistently rejects direction and assistance. In short, the
^. -.
- 17 -
evidence has established- that the Gr~ievor made no serious attempt to
acquire prof iciency in drafting skills.
However, the evidence contains several examples which tend
to indicate that the Grievor was able to perform the job in some
minimal fashion from time to time, but failed to do so on a
consistent basis, primarily because of.attitudinal problems.
In our opinion, the Grievor’s peculiar behaviour has
disahled him to such ati extent that it is beyond hope that he can be
expected to change his attitude. In the circumstances, there was no
duty upon the Employer to:find alternate employment or take- alternate
action such as demotion or lay-off. The Board is satisfied that the
Employer’s response was appropriate in all the circumstances. In the
result, the Grievor’s dis.charge must be upheld and the grievance
denied.
DATED at Brantford, Ontaii~o, this 4th day of November, A.D.,
1986.
J2- --- /
B. L. Verity, ~Q.C.. - Vice-Chairman ..~ . . .;.
"1, dissent" (see attached)
I. Freedman'. Member .
G.A. Peckman, Member
:.
DISSENT
The grievor worked fa the Ministry from 1976 to 1985, with no
recorded criticism cd his work performance or attitude during the first half of
that period.
Not a word of testimony was heard concerning tests to be given.the
new employee, for the pcYpose of”&ablishing his ability and capadty to perform
the job. Ncr was his personality assessed; only when the process of changing to
metric standards wa5 completed, did performance and personality~become issues.
c It-was the careless and ineffective manner in which the Employer
hired Wu and eventually became acquainted with him that contributed to the
problem that actuated this arbitraticn. The ireouciant indifference of the
Employer in allowing the matter to linger for 9 years must be taken into account
when fashioning a remedy. .:.
_.~_
In a dis~&arge case where the Employer respnded to the particular
situation in a tardy and somewhat tendentious manner, the grievor was
reirstated on terms. Re Kivilco v. Ministry oft Correctional Services, G.S.B.
439185 Da&).
An additional pint of .fiew encompasses the arbitrators’ oompendiq
of mitigatingfactors first listed by Judge Reville in the Steel Equipment co., Ltd.
- 2-
case (1964) I4 L.A.C. 356 and augmented by Prof. Arthun Qn C.B.C. v. C.U.P.E.
(1979) 23 L.A.C. (ZJ) 227) and others.
One of these factors obliges the arbitrator to give consideration “to
the special economic hardship for the grievor in the light of his particular
circumstances”.
The grievor is 53 years old, married, and the father of a dependant
son. His education was obtained in Hong Kong, and was supplemented by a few
courses in IMontreal &icGill)and Toronto (George Brown). .i -7
Although a year hae passed since his dismissal, the Board was
informed that the grievor is not working. His age and his skills are not likely to <:.
commend themselves in today’s market.
Another element in the process of reaching a decision involves the
Ministry’s reflsal to seek a transfer, or alternative-employment. Whatever
forces impinged upon the Ministerial mind when it hired the girevor,maylikewise
.s. impress the collective mind of another.Ministry, or more accurately, the Human
Resourss Secretariat. The Ministry displayed an unnecessary authoritarianism
when it dedded that despite some 6O,OOO,jobs, and thomands of managers, there
was no use in attempting to fiend a place for the grievor.
Arbitral jurisprudence indcates that an employee’s inability to
perfam the tasks inherent in his particularjob is not necessarily an indication of
incompatibility with employment status so as to justify discharge: Re: United
-3-
Automobile Workers and De HavIland Aircraft of Canada Ltd. (1964) 15 L.A.C.
284 (LasIdn>; Re: United Automobile Workers, Local 35, and Libby, McNeilI and
Libby of Canada Ltd. (1972) 23 L.A.C. 287 (Palmer) and Re: Aro Canada Ltd. and
International Assoc. of Machinists, Lodge 1817 (1975) 10 L.A.C. (2d) 81 (Beatty);.
Although the Employer, preoccupied in his haste to dismiss the
grievor, made no ‘effcrt to find other employment in the Public Service, there
are decided cases inoicating that there is an obligation upon the Employer to
consider whether there is other workwhich the employee is,qualified to perform.
See, for example, Rer Maritime Telegraph & Telephone Co. Ltd. and
International Brotherhood of Electrical Workers, Local 1030 (1984) 16 L.A.C. (M)
318 (Cotter).
Under the circumstances, discharge of the grievor is too crypti.c and
mechanistic. There need be no violation of any prindple of law to balance the
interests of the Employer and Employee in a different way. With the view of
enabling the griever to find a job by applying for any posted position in the
Public Service, and to seek early retirement at the age of 55, if he deems it
appropriate, I would allow the grievance upon~~the followingterms: ..,
1) The grievor is reirstated to the stats of an employee
wittnut pay.
2). _ He is not reinstated to his previous position.
,~ *+
Israel Freedman