Ontario Public Service Employees Union (Teske) v. The Crown in Right of Ontario (Ministry of Environment), 2000 CanLII 20542

GSB #1511/99

OPSEU #99D195

Under

Before

BETWEEN

Ontario Public Service Employees Union

(Teske)

Grievor

and -

The Crown in Right of Ontario

(Ministry of Environment) Employer

BEFORE Daniel Harris Vice Chair

FOR THE Don Martin

GRIEVOR Grievance Officer

Ontario Public Service Employees Union

FOR THE Mr Robert Younger

EMPLOYER Staff Relations Advisor

Ministry of Environment

HEARING September 28, 2000.

The grievor in this matter, Tom Teske, is an EO4 working for the Ministry of the Environment out of the Barrie, Ontario office. His grievance, dated June 7, 1999, is against his performance review (hereafter PMR), dated April 9, 1999. The employer has raise a preliminary objection that the grievance is not arbitrable because it was filed after the time limit for filing the grievance had expired.

THE FACTS:

Much of the factual circumstances are undisputed. The grievor met with his supervisor Michael Laengner on February 24, 1999 to discuss the grievor’s PMR. Suffice it to say that the grievor took issue with aspects of the PMR as being unfairly critical. He sought clarification from Mr. Laenguer as to the basis upon which certain opinions had been founded. He requested that information in an email to Mr. Laengner that same day. The grievor specifically requested that the reply be by memo or email; he did not want to meet with Mr. Laengner.

Mr. Laengner replied by email on February 25, 199. He indicated to the grievor that it was his view that they had fully discussed the PMR. That email reads in part as follows:

As previously stated I will forward the PMR via this email. You have the option of signing the PMR with or without comment. I encourage you to make any comments you feel appropriate.

You also requested during our meeting that I delay my request to return comments to me by Wednesday March 3/99 until Friday March 5/99. I agreed to that request.

You are welcome to discuss the PMR with Ian in my absence next week. He is familiar with the issues. Should you not return the form to Ian by Friday he will assume “no comment” and sign it off.

The grievor did take up the matter of his PMR with Ian Gray, Mr. Laengner’s supervisor, by means of email on March 3, a conversation on March 5 and a further email on March 8, 1999. The latter email confirmed the understanding between the grievor and Mr. Gray that Mr. Gray would discuss with his supervisor, Mr. Janse, the “possibility of not finalizing the PMR (leaving as draft) until Mike [Laengner] returns.” Mr. Gray confirmed the status of the matter in an email to the grievor on March 11, 1999, which reads as follows:

Tom; I discussed the attached E-mail with Jim Janse on March 10, 1999 and we agreed that there is apparently no copy of your PMR signed by Mike Laengner and therefor the matter will be set aside until his return.

On or about April 9, 1999, Mr. Laengner asked the grievor to sign his PMR. The grievor understood that the document he was being asked to sign was the unchanged draft of his PMR, a copy of which he had been given on February 24, 1999 when he reviewed it with Mr. Laengner. The grievor refused to sign it and asked Mr. Laengner for a signed copy of the document. The grievor’s uncontested evidence was that he received a signed copy in his mailbox on April 19, 1999.

It should be noted that along with the issue of the PMR, the grievor was pursuing a merit increase. The grievor testified before the Board that he did not know at the time that the two were linked. He also said that he began the process of seeking his merit increase with an email to Susan Anstett on February 8, 1999 as follows:

Just a reminder that as of February 1, 1999 I should be payed [sic] at the top of the EO4 categorie [sic] ($986.27)

Also, as of December 1998, I have eight years of service with the ministry. I believe I should get 4 weeks of holidays this year.

She replied to the grievor as follows:

You will have your merit processed upon my receipt of your performance review – Toronto payroll will not process without it attached to the ESF. I have written to Ian regarding this.

You are correct about your vacation entitlements – 4 weeks after 8 years of service. I do not have your CSD – this is with your corporate records in Toronto – so I cannot confirm the date with you. You can contact Elaine Mahoney at 416-314-9239 to verify for you.

An exchange of emails between the grievor and Ian Gary on April 29, 1999, further develops the matter of the merit increase. As is the nature of email, the entries should be read from bottom to top:

From: Tom Teske

To: GRAYIA

Date: 4/29/99 12:21pm

Subject: Merit Increment -Reply -Reply

Susan Anstett advised that on February 8, 1999 she sent you an ESF to complete and a reminder that a PMR was required. Since you signed the PMR that Mike Laengner prepared without my input, I trust that the ESF can now be signed so that I may receive my merit increase. Please provide me with the ESF if you are unable to sign the form before you retire and I will pursue that issue with your replacement.

(emphasis added)

>>> Ian Gray 04/29/99 11:50am >>>

As I have indicated previously when Mike was away on vacation an ESF could not be processed in the absence of your PMR.

Thus, I have not completed one and do not know the status.

>>> Tom Teske 04/29/99 11:32am >>>

Further to our conversation this morning regarding an ESF for my merit increase as a result of my anniversary (February 1999), Susan Anstett cannot locate the aforementioned ESF.

Please advise if you completed an ESF with respect to my merit increase in relation to my February 1999 anniversary date.

CC: LON985ADELAIDE. ENE3N65 (LAENGNMI),

The next step taken by the grievor to pursue the issue of the objectionable PMR was an email to Mr. Laengner on May 17, 1999, asking for a meeting to discuss the PMR. That email reads as follows:

As indicated in previous E-mails, I would like you to provide additional information in support of the comments that you made in the PMR that you prepared for me. I spoke to Laurie Manoim about my PMR and she suggested that I deal with you directly. I wish to meet with you and Craig in order to resolve this issue. I am assuming that Craig would most likely be the person who would prepare my next PMR.

I would like to resolve this issue by the end of the month and I am available to meet any day with the exception of the morning of the 18^th and the afternoon of the 19^th and the 20^th. Please advise when you are available to meet.

The grievor received no response to that email message. Ten days later, being May 27, 1999, he asked Craig Seaforth to accompany him to see Mr. Laengner in order to schedule a meeting regarding the PMR. He candidly admitted in his evidence that he also wanted a third party witness to be part of the conversation since he and Mr. Laengner were not on good terms. Mr. Laengner suggested that they meet then, and they did. He testified that he expected to discuss the employer development plan meant to help overcome the deficiencies found as a result of the PMR process. He was surprised when the meeting turned out to be about the items that had been included in the PMR. The grievor said they went through the PMR and he made it clear to Mr. Laengner that he was not happy with the PMR.

On June 7^th the grievor became aware that his merit increase was being deferred. He also received written confirmation that no changes would be made to his PMR. He then filed his grievance.

THE SUBMISSIONS OF THE PARTIES:

The employer submitted that the time limits under the collective agreement are mandatory. It was the employer’s submission that the grievor knew of the disagreement over the PMR on February 24, 1999 when he reviewed it with his supervisor. The grievor did nothing about filing a grievance until June 7, 1999, which was well past the time within which he was required to act. The employer relied on Re OPSEU (Parr) and Ministry of Education, 317/82 (Swan) and Re OPSEU (Goheen) and Ministry of Education, 321/82 (Verity).

The Union submitted that this matter differs from the situations relied on by the employer. It said that the grievor was engaged in the review process set out in the Guidelines and Directives relating to the Performance Management Operating Policy (Corporate Management Directives, Staffing and Development Branch, Management Board Secretariat, June 1, 2000). That is, the grievor was engaged in a proper and recognized PMR review process. He was allowed to exhaust that process before the time could begin to run within which he must file a grievance. The grievor was said to have known of the refusal to change the PMR no earlier than April 19, 1999. He then sought to meet with his supervisor within 30 days, by way of his memo of May 17, 1999. They actually met on May 27. He received the supervisor’s unsatisfactory answer and filed his grievance by June 7, 1999. The grievor was said to have diligently pursued the permitted review, and he acted on his grievance in a timely manner.

REASONS FOR DECISION

The collective agreement requires that complaints, or differences, be resolved between the parties in a timely manner. An employee who has a complaint is required to bring that complaint to the attention of his supervisor. Failing a satisfactory response, the employee may lodge a grievance. In this matter, there can be no doubt that the grievor had a complaint against the statements made in his PMR. Those complaints existed from the time that he received his PMR in February 1999. He promptly brought those complaints to the attention of his immediate supervisor, and, in turn, to his supervisor's supervisor. Mr. Laengner made it clear in his email of February 25, 1999 that his decision with respect to the contents of the PMR was final. None the less, Ian Gray advised the grievor that the draft would not be finalized until Mr. Laengner returned from holidays. The grievor testified that he believed a high level meeting of Mr. Laengner, Mr. Gray, Mr. Janse and he would be convened to resolve his complaints about the contents of the PMR. There is nothing in the evidence to support such a conclusion. All that Mr. Gray's email indicates is that he had discussed the matter with Mr. Janse in order to confirm that the matter would be put over to Mr. Laengner's return. There is no credible evidence that Mr. Janse, the regional manager, would be involved in reviewing the grievor's complaints, nor do the guidelines hold out any such process. On or about April 9, 1999, the grievor received his supervisor's final response to his complaint. That response was that Mr. Laengner would not be changing the contents of the PMR. Certainly the grievor knew by April 29, 1999 that his complaint had been rejected when he said in his email to Mr. Gray: "…you signed the PMR that Mike Laengner prepared without my input." The review process under the guidelines was also exhausted with Mr. Gray's concurrence in the PMR.

Accordingly, the grievor complained about his PMR in February 1999 and knew no later than April 29, 1999 that his complaints had been rejected. He filed his grievance on June 7, 1999, well past the time within which a grievance was to be lodged. The time limits in the collective agreement are mandatory. The grievance must be dismissed.

THE DECISION

The employer's preliminary objection the grievance is untimely is allowed. The grievance is dismissed.

Dated at Toronto this 2nd day of October, 2000.