GSB# 2002-1551

UNION# 2002-0542-0021

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Fernandes)

Grievor

• and -

The Crown in Right of Ontario (Ministry of Transportation)

Employer

BEFORE

Nimal Dissanayake

Vice-Chair

FOR THE UNION

Robin Gordon Grievance Officer Ontario Public Service Employees Union

FOR THE EMPLOYER

Suneel Bahal Counsel Management Board Secretariat

HEARING

By written submissions.

DECISION

The grievor, Mr. Jess Fernandes filed a grievance on August 6, 2002. It states:

I grieve that management is abusing its power and unfairly disciplining me by placing an unfair and inaccurate performance appraisal on my corporate file. This is contrary to article 2 (management rights) and article 2 (disciplining and dismissal) of the collective agreement.

The employer has taken the position inter alia, that the performance appraisal in question does not constitute discipline and that therefore the Board lacks jurisdiction to review it for its fairness. The union did not oppose the employer’s motion and, without prejudice to any other position the union may take in any other matter, agreed that the instant grievance does not raise an arbitrable issue.

No doubt the grievor is not happy with the contents of the performance appraisal. However, that does not make the appraisal disciplinary. There is no suggestion that the grievor has suffered any sanction or penalty as a result of the contents in the appraisal. The employer is entitled to give guidance to an employee on performance issues without engaging in disciplinary action. Every such action by the employer is not subject to review by the Board for fairness. An appraisal will only be disciplinary, if it is used to build up a record against the employee. The employer has clearly taken the position here that the appraisal is not disciplinary. The employer is bound by that. Once the employer takes such a position, the grievor has the assurance that the appraisal will not, and cannot be used as a disciplinary record in the future. In other words, once the employer clearly states that the appraisal is not disciplinary, then it is not disciplinary. See Re Bacchus, 911/88 (Watters)

Having regard to the submissions of the respective parties and the foregoing reasons, the Board upholds the employer’s motion that it lacks jurisdiction and that the grievance is inarbitrable. Accordingly the grievance is hereby dismissed.

Dated at Toronto this 2^nd^ day of January 2004.