SHP - 393
IN THE MATTER OF AN ARBITRATION
B.C. RAIL LTD.
THE UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA, LOCAL NO. 170, METAL TRADES DIVISION
SOLE ARBITRATOR:John Kinzie
APPEARING FOR THE UNION:
Theodore Arsenault Ė Counsel for the Union
APPEARING FOR THE COMPANY:
Rick Leche Ė Counsel for the Employer
Hearings in this matter were held in Squamish and Vancouver, B.C. on January 3, 4, 5, 15, 22, 29, February 9, 27, and 28, 1990.
On September 20, 1989, Singh Biln, the Employerís Mechanical Engineer in Squamish, wrote to Darryl Alexander, the grievor, in the following terms:
You have been advised on many occasions during the past 20 months that your performance and attitude as an apprentice has been far below accepted standards. Clause 27.6 of the Collective Agreement between B.C. Rail and Local 170 states "An apprentice must throughout his apprenticeship continue to display the desire and aptitude to learn the trade or he will not be retained as an apprentice". Assessments of your performance indicate that you continue to lack in the desire, the aptitude, and basic skills necessary for improved performance. Your performance at trade school has been marginal at best, relative to marks expected by B.C. Rail apprentices.
Consequently, effective today, your employment with B.C. Rail has been terminated. Your final pay cheque is attached. All other inquiries or matters may be addressed to the Manager, Personnel Services at the address below.
This arbitration is concerned with Alexanderís grievance against the termination of his employment as an electrical apprentice with the Employer.
In response to the grievance, the Employer submits that there are two aspects to the termination of the grievorís employment. First of all, as a result of Bilnís letter of September 20, 1989, the Employer maintains that the apprenticeship agreement between it and the grievor was terminated pursuant to Section 16(2) of the Apprenticeship Act. Relying on the decision of the arbitration board in West Kootenay Power and Light Company Limited (Award dated August 17, 1987, unreported, Richard B. Bird, Q.C.), it says that an arbitrator has no jurisdiction to review its decision to terminate that agreement. That jurisdiction is vested in the Director of Apprenticeship under the Apprenticeship Act.
The second aspect of this matter is the termination of the grievorís employment with the Employer. The Employer agrees that I have jurisdiction with respect to this matter. However, it maintains that it had just and reasonable cause for its action. Alternatively, should I find against the Employer on this aspect, the Employer submits that I could not order reinstatement of the apprenticeship agreement as that is a matter governed by the Apprenticeship Act. Therefore, as the grievor was only an apprentice without an Employer and consequently had no seniority, he would have to be laid off immediately after his reinstatement because he would not be entitled to bump another employee.
The Union, on the other hand, maintains that the grievorís apprenticeship agreement was never terminated and that if he is reinstated to employment, the agreement would become active again. In any event, it says that the provisions of the Apprenticeship Act do not exclude an arbitratorís jurisdiction to review an emplgyerís termination of an apprenticeship agreementr nor his authority to make any necessary remedial orders should he find that that action was taken without just and reasonable cause.
With respect to the merits of the grievorís termination, the Union submits that no proper and appropriate occasion existed for the Employer to review the grievorís work performance history when it did. Further, the Employerís decision did not satisfy the recognized criteria for a dismissal of an employee for non-culpable deficiencies in job performance. For both of these reasons, the Union maintains, the Employerís decision to terminate the grievorís employment should be set aside, and he should be reinstated to his position as an electrical apprentice with compensation.
The background facts to this proceeding are as follows.
The grievor commenced employment with the Employer as an apprentice in the electrical trade on February 16, 1987. They entered into a written apprenticeship agreement which was registered under the provisions of the Apprenticeship Act on March 25, 1987. The term of the grievorís apprenticeship was set for three and one-half years, expiring on August 15, 1990. Ordinarily, the electrical apprenticeship is four years in length, but the grievor received six months credit for his completion of the TRAC program sponsored by the provincial government.
The Employer operates an extensive apprenticeship program. Before someone is selected for the program, he must successfully complete a set of six aptitude tests and be interviewed and screened by the Mechanical Instructor and the Personnel Planning department. Once enrolled as an apprentice, he must of course take the training programs required by the Director of Apprenticeship. In addition, the Employerís apprenticeship program requires apprentices to spend one day a week on further theoretical studies and classroom training. These studies are overseen by a Mechanical Instructor and include courses and tests put on by the Railway Educational Bureau.
As part of this program, apprentices are moved through various work areas to give them experience in all the work within their trade that is performed by the Employer. For electrical apprentices, this could involve approximately 12 different areas such as the locomotive rebuild centre, the electronic room, specific repairs, construction, and maintenance.
With respect to each move, the foreman in the area assigns the apprentice to work with a journeyman in the trade. The foreman meets the journeyman and the apprentice in the morning to give them their assignment for that day. Thereafter, the apprentice works under the direction and supervision of the journeyman. The foreman would only occasionally see them at work during the day. At the end of the apprenticeís move through an area, the foreman and the journeyman get together and review the apprenticeís performance. They then submit a written shop report to the Mechanical Instructor on his performance. It is the Mechanical Instructorís responsibility to review the shop report with the apprentice and to counsel him in those areas where improvements are needed.
The format of the shop reports changed several times during the period of the grievorís employment. When he commenced his apprenticeship, the form called for the evaluation of an apprentice under seven different headings: ability, initiative and adaptability, dependability, attitude, safety, punctuality, and time lost. With respect to the first four headings described above, they were in turn each broken down into five levels of performance with marks of 0, 5, 10, 15, and 20 assigned to the various levels. The other three headings: safety, punctuality, and time lost were broken down into three levels: excellent, satisfactory, and unsatisfactory. The marks for the three levels in the safety heading were 0, 5, and 10 while for the three levels in headings: punctuality and time lost, they were 0, 3, and 5. An apprentice performing at the top level under all seven headings would achieve a mark of 100. At the bottom of the report there was a space for comments and for signatures by the foreman, journeyman, and cost centre supervisor.
The first shop report done on the grievor covered the period February 16 to April 12, 1987 and involved the locomotive rebuild area. He achieved a mark of 73. In ability, he was rated at the 15 level of performance which reflected that he had performed his assignments during that move "with normal training period". In initiative and adaptability, he was again rated at the 15 level which reflected that he had "adapted himself normally to new environment". On dependability, he was rated at 15 reflecting that he was "generally dependable". With respect to attitude, he was also given a 15 which indicated according to the shop report form that he "cooperated fairly well with Supervisor and fellow employees". Under the headings: safety and punctuality, he was rated satisfactory, receiving marks of 5 and 3 respectively. With respect to the seventh heading, time lost, he was rated at excellent receiving a mark of 5. No written comments were included in this report.
Brian Russell, a machinist by trade, was the Mechanical Instructor at the time the grievor commenced his apprenticeship with the Employer. He testified that in his view the grievorís first shop report was a satisfactory one.
The grievorís second shop report again involved the locomotive rebuild area and covered the period April 13 to June 5, 1987. The mark on this shop report was 61. The grievor received 15s under the headings of initiative and adaptability and dependability and satisfactory ratings under the headings of safety, punctuality, and time lost. However, under the heading of ability, he was rated at 10 which reflected an evaluation that he was "slow learning but tried during this assignment". He also received a 10 under the attitude heading which reflected an assessment that he was "occasionally away from job or somewhat disinterested".
In the "comments" section of the report, the foreman, John Gross, stated that:
Darryllís basic problem I believe is his attitude, he is good with his hands, his ability to keep track of his journeymanís tools has improved. I believe he should be talk (sic) to and his attitude will have to change.
Russell testified that he did speak with the grievor after receiving this report and the grievor told him he would work to maintain better reports.
The next report covered the period June 8 to August 2, 1987. The mark on this report is 76 and reflected ratings of 15 under the headings of ability, initiative and adaptability, and dependability and ratings of satisfactory under the headings of safety, punctuality, and time lost. However, under the heading of attitude, the grievor was rated a 20 which indicated that he "cooperated with Supervisors and fellow employees at all times". Russell testified that in his view, this report was an acceptable one.
Unlike the first two reports on the grievorís performance, this third report was not signed by the journeyman to whom the grievor was assigned to work with, i.e., Gary Griffin. Griffin testified in this proceeding that he never saw the report at the time, nor did the foreman who prepared it, Ron Packard, asked him for his opinion on the grievorís work performance. Seeing the report during the hearing, he said he would have given the grievor a 20 rating on dependability reflecting a "very dependable" assessment, rather than the 15 given by the foreman.
In his evidence, Packard agreed that it was possible that he never discussed the report with Griffin, and that he, Packard, had never actually worked with the grievor. However, he said he always took a keen interest in apprentices in his area. He also testified that he felt the grievorís mark on this report was an above satisfactory mark.
The grievorís fourth report covered the period August 3 to September 27, 1987. His foreman at the time was Paul Owen, an electrician by trade. Owen testified that he discussed the grievorís performance with the three journeymen he had worked with and prepared a report which had a mark of 81 based on that discussion. This report reflected ratings of 20 under the initiative and adaptability and dependability headings. Owen said he was subsequently called into the office of the Cost Centre Supervisor, Darryl Clark, and told that the mark was a little too high. He was asked if he could knock it back. As a result, Owen said he reduced the rating under the dependability heading from 20 to 15. This resulted in the mark on the report going from an 81 to a 76.
Clark was not called to testify in this proceeding.
Russell testified that the grievorís fourth report was a satisfactory one.
The grievor commenced his fifth move on September 28, 1987. Ordinarily, this move in the governor and contactors work area would have lasted until November 22, 1987. However, it ended early as the grievor commenced his Level 2 course of study at the B.C. Institute of Technology (BCIT) on October 26, 1987. A shop report was prepared on the grievorís work performance during the month before he commenced his school studies. He was given a mark of 75.
The Level 2 course of study at BCIT continued through until December 18, 1987. The pass mark for this course is 70%. The grievor failed, only achieving a mark of 58%. His school report contained the comment that he needed upgrading in several areas, two of which were electrical math and the Canadian Electrical Code.
At about the same time, a number of other events occurred. On November 30, 1987, David Lonergan succeeded Brian Russell as Mechanical Instructor. On January 8, 1988 Russell wrote the following confidential memorandum to Lonergan,concerning the grievor:
Darryl has never shown much drive or initiative since he began his apprenticeship. He is in my opinion a "below average" electrical apprentice and does not show any real desire to improve himself. He did not use his in-house schooling time well and was often the instigator in classroom discussions not pertaining to work.
I discussed Darrylls shop report with him and as indicated on the back of one, he promised to improve the situation. A noticeable improvement was never obtained.
I believe this man has plenty of work to do if he is going to become a tradesman.
As its confidential nature would suggest, this memorandum was not discussed with the grievor nor was he given a copy of it. Russell was also cross-examined as to his conclusion that the grievor was "below average" when all but one of his first five shop reports were satisfactory according to his evidence. No real explanation was given. Russell agreed that he had made improvements in some areas.
Three days later on January 11, 1988, Lonergan wrote a confidential memorandum to Terry Currie, the Mechanical Engineer at the time, regarding the grievor. In that memorandum, Lonergan stated that:
After reviewing Mr. D. Mileís (sic) report and Mr. B. Russellís report and receiving Mr. Alexanderís latest shop report, I find that I have to agree with both Mr. Miles and Mr. Russell, in that Mr. Alexander is not up to the standards that we expect from our apprentices.
As of January 11, 1988, the grievorís "latest shop report" wouldappear to be his fifth one from the governors and contactors workarea. His mark on that report was a 75.
On January 20, 1988, Currie and Lonergan met with the grievor and his shop steward to discuss his performance to that date. During the meeting, Currie referred to the fact that the grievor had failed his Level 2 courses and expressed the opinion that his work performance as reflected in his shop reports was less than adequate as well. Currie testified that he told the grievor he expected him to raise his shop report marks to the level of the other apprentices in his trade.
Currie subsequently confirmed their discussion in a memorandum to the grievor wherein he stated that:
This letter confirms our discussion of 20th January 1988.
Since joining the Company in January 1987 your job performance has been inadequate. In shop assignments you have shown an indifferent attitude while you have recently failed your Electrical Work level 2 examination at B.C.I.T.
The Company expects an immediate and substantial improvement in your performance both at work and at school.
As an apprentice your continued employment is subject to clause 27.6 of the Collective Agreement.
A failure to demonstrate immediate improvement in your work habits and attitude will result in your immediate dismissal.
I will personally conduct reviews of your performance on a regular and on-going basis.
Please govern your actions accordingly. A copy of this letter will be placed on your personal file.
From December 21, 1987 to January 17, 1988 the grievor was on his sixth move in the maintenance work area. Dave Mazzotti was his foreman. Mazzotti testified that he sat down with his journeymen and prepared reports on apprentices in conjunction with them, but the three journeymen concerned would not sign the reports. Such was the case with this report.
The mark on this report was 70 reflecting ratings of 15 in ability, initiative and adaptability, and attitude, and satisfactory in safety, and excellent in punctuality and time lost. However, under the heading of dependability, he only received a 10 which reflected an "occasional lapse in dependability".
The grievorís next move was in the construction area for the period January 18 to March 13, 1988. Again, Mazzotti was his foreman. Further, this was the grievorís first shop report covering a full move after his meeting with Currie. The mark on it was 75 reflecting the same ratings as on the previous Mazzotti report, except that the 10 under the heading of dependability had been raised to a 15. Mazzotti also added the following written comment that:
Darryl has improved considerably since starting in construction, but still needs monitoring carefully.
During this period and further to the recommendations of his BCIT instructor after he failed his Level 2 courses, the grievor took a course on the Canadian Electrical Code at BCIT. He finished the course on March 24, 1988 with a mark of 91%. He did this while working full-time for the Employer in Squamish.
The grievorís next scheduled move was for the period March 14 to May 18, 1988. His foreman was Paul Marlatt and he was assigned to work with a journeyman by the name of Johnny Pilotte.
About five weeks into this move, the grievor left to return to BCIT to redo his Level 2 courses of study. He completed them on June 17, 1988 and achieved an overall mark of 73%, sufficient for a pass. He was assigned to Level 3 set to commence in February, 1989.
As well, Marlatt and Pilotte prepared a shop report on the grievorís five weeks in their work area. He was given a mark of 71, reflecting ratings of 15 in ability, initiative and adaptability, dependability, and attitude, and satisfactory under the headings of safety, punctuality, and time lost. As well, Marlatt added the comment that:
Darryl has shown a significant attitude improvement during this report period.
Two events happened about this time and prior to the grievor commencing his next shop move on July 4, 1988.
First of all, Biln, who had succeeded Currie as Mechanical Engineer on February 22, 1988, met with the grievor in the presence of Lonergan and 2 shop stewards on June 23, 1988. Biln testified that Lonergan had requested the meeting because he was having difficulty with the grievor. Biln summarized the substance of the meeting in a memorandum to the grievorís file. The grievor was not given a copy of the memorandum at the time, but there was no dispute during the hearing about it accurately summarizing the substance of the meeting. In that memorandum, Biln stated:
This afternoon at 1300, I met with Mr. Alexander in presence of D. Lonergan, A. Obieglo and L. Bell. The purpose of the meeting was to review Mr. Alexanderís performance as an apprentice and encourage him to improve his attitude towards his fellow employees and his trade.
I advised Mr. Alexander that I would personally continue to monitor his performance and noted that I did not want to see him fail. I also advised him that his continued apparent lack of interest in his studies could not be tolerated.
Mr. Alexander responded by saying that he believed he was doing okay and indicated that journeymen misinterpret his questions or actions.
I advised him that several supervisors and tradesmen were consistent about their comments regarding his attitude and that he has been made aware of these assessments on every occasion. Furthermore, I advised that his change (sic) of success or failure was in his own control and not in others.
I reminded Mr. Alexander of Mr. Curries letter earlier in the year and stated that his performance will continue to be monitored.
I closed by adding that I consider myself a compassionate people-person and would not want any apprentice or any employee to not succeed. However, I would not tolerate continued poor performance.
Also discussed was Mr. Alexanderís intentions to take additional night courses supplemental to his trade. Everyone discouraged Mr. Alexander from doing so at this time and instead advised him to concentrate on his coil studies.
The meeting closed by commitment by all to make any efforts in assisting Mr. Alexander to improve his performance.
Following this meeting, Biln instructed Lonergan to have a shop report done on the grievorís performance monthly rather than the usual two month period and to report to him after each report was received.
Secondly, the format of the shop reports were changed. Whereas in the earlier format each of the levels within the seven beadings were assigned a specific mark, i.e., 0, 5, 10, 15, and 20 in the case of the first four, 0, 5 and 10 for safety, and 0, 3 and 5 for punctuality and time lost, under the new format, the foreman and journeyman were given the ability to determine the mark within the existing ranges, 0-20, 0-10, and 0-5, and assign it to the level within the headings that they thought appropriate. Lonergan testified that the reason for this change was that the foremen and journeymen felt the existing report form was too rigid and that giving the flexibility of working within a range of marks and of assigning the mark to the level they felt appropriate would be more responsive. Full marks under this report continued to be 100.
The grievorís next shop report under the new format covered the period July 4 to July 24, 1988. The foreman was Marlatt and the journeyman to whom the grievor was assigned to work with was Peter Lanyi.
The mark on this report was 88. Lanyi testified that he determined the marks for each heading and assigned them to the various levels on the report form. He said that he had not been given any prior instructions about how to fill out the form. He also testified that after he had filled out the form, he discussed it and the marks he had assigned with Marlatt. Marlatt then signed the form. The report also contained the following comment:
Performs assignments as instructed but has a tendency to occasionally be arrogant.
The next shop report covered only a seven day period. Mazzotti, the foreman, gave the grievor a mark of 75 with the comment that the "period (was) too short to assess other than average".
Lonergan reported to Biln on these two reports as he had been instructed. He referred to the "arrogant" comment in the first report, and noted that it had been easily dealt with. He concluded his report as follows:
In concluding, it is hoped that Darrylís future Shop reports will continue to reflect an improvement towards his work, and, also his fellow workers at all levels.
The grievor was not copied on Lonerganís reports to Biln, but Lonergan testified he showed them to the grievor before he sent them to Biln.
The eleventh shop report on the grievorís work performance covered the period August 1 to August 28, 1988. Marlatt was the foreman. The mark on the report was 82. In addition, Marlatt commented that:
Darryllís attitude has continued to improve since last report. Since last working with Darryl, attitude changed for the better; had no problems with work habits.
The grievorís next shop report covered the period August 29 to September 25, 1988. The foreman was Packard and the journeyman to whom the grievor was assigned was Alexander Kokal. They collaborated on the report and the comments. The overall mark was 70 reflecting 15s under the headings of initiative and adaptability, dependability, and attitude and satisfactory under the last three headings. Under the heading of ability, he was given a 10 indicating "slow learning but tried during this assignment". In the comments section, the following appeared:
Darrel (sic) must set up some priorities towards his apprenticeship. He must strive to organize himself to reach these priorities. Darrel (sic) has too many courses and personal obligations. He has himself confused in my opinion.
Lonergan reported to Biln on this shop report after he had discussed it with Packard and Kokal. In his report dated October 4, 1988, Lonergan commented that:
As far as I am concerned, this appraisal is totally unacceptable for an Apprentice approaching the end of his second year with the Company.
The comments on the shop report are also very accurate, very recently, Mr. Alexander enrolled himself in a math Course and an Electronics Course at B.C.I.T. through our Apprenticeship Branch Counsellor, a Mr. G. Wanless.
Later the same day Mr. Wanless called, to say both of Mr. Alexanderís Courses are on the same day at the same time. When I informed Mr. Alexander of this, he said he already knew, but he did not inform me, or Mr. Wanless, and, did not appear overly concerned that he had not.
It is this attitude which leads Mr. Alexander to trouble, he is not concerned with the basics, which is what he should be concerned, and is overly concerned with other things for example Night School Courses, he is not satisfied with one, he has to enroll in two at the same time, so long as he just passes he is satisfied, but, unfortunately for him, that is not good enough for the Railway, in the past our Apprentices have maintained a very high standard when attending school, and that standard must be maintained by all future Apprentices.
In closing, again, I am very disappointed with this report, I feel there can be no excuse acceptable, and await any comments from you, or any recommendations you make.
The grievor was shown a copy of this report before it went to Biln.
Biln subsequently advised Lonergan to continue monitoring the grievorís work performance and reporting to him.
In fact, the grievor did enrol in one course, not two, at BCIT. The course was Math for Electricians 3 again a course that it was recommended he take after he failed his Level 2 course in the fall of 1987. He took the course at BCIT while working full-time from September 19 to November 23, 1988 and achieved a mark of 82% on it.
The grievorís thirteenth shop report covered the second month of his move with Packard and Kokal, i.e., September 26 to October 23, 1988. The overall mark and individual heading ratings remained the same as the earlier report. In the commentsí section, Packard observed that:
Darrel (sic) should try to organize his work procedures in proper steps to complete assignments.
Kokal commented that:
Paid more attention to detail pertaining to general work. Also showed attentiveness to instructions.
In his report to Biln concerning this latest shop report, Lonergan stated that:
I have spoken with the Journeyman and Foreman concerned, and both agree that, although the overall mark is the same as last months report, a considerable improvement in Mr. Alexanderís performance was noted as per the comments on the shop report.
It is encouraging to see comments of this nature on Mr. Alexanderís Shop Reports, and also to hear the same from the people who were directly concerned with this apprentice.
The Journeyman also feels the mark given was a good mark at this time and that the comments on the report are of greater value, and that not only does he expect improvements in the future, but Mr. Alexander has at last realised what it is that is expected of him as an apprentice at B.C. Rail and will endeavour to reach and maintain the standards we expect from our apprentices.
I have had a talk with Mr. Alexander, shown him the Shop Appraisal, and more importantly, passed on the comments made by his Foreman and especially those made by his Journeyman. And I have to agree with the Journeyman in that this apprentice does now understand what we expect.
On October 24, 1988, the grievor commenced an eight week shop move in the maintenance area again with Mazzotti as his foreman. In the first report, Mazzotti and the journeymen involved gave the grievor a mark of 69 with a 12 in both ability and attitude. The 12 in ability was in the "slow learning but tried during this assignment" level. The 12 in attitude was in the "occasionally away from job or somewhat disinterested" level. Mazzotti added the following comment to the report:
Although Daryls (sic) initial report appears bad, I expect him to improve as he becomes more familiar with what is expected of him. An attitude change was definitely needed at the beginning of this move if Daryl (sic) was to gain any of the valuable experience it could bring.
Prior to the second shop report being done on the grievorís work performance in the maintenance area, the shop report format underwent another change. This change was a substantial one, basically involving a complete rewrite of the form. Under the new form, apprentices were evaluated under ten headings: job knowledge, work quantity, work quality, planning and organizing, work habits, attitude, ability to deal with others, initiative, adaptability, and dependability. For each heading, there were five different ratings levels: exceptional, superior, satisfactory, marginal, and not satisfactory, and a space beside each heading for the foreman and/or journeyman to explain the rating given.
The foreman and journeyman filling out the form were no longer responsible for attaching a mark to the report. In fact, the marks that corresponded to the ratings did not appear on the report. The marking was done separately by the Mechanical Instructor after he received the report from the foreman and journeyman.
The marks for the ratings were as follows:
exceptional Ė 10
superior Ė 9
satisfactory Ė 8
marginal - 4
not satisfactory Ė 2
Thus, full marks on this report form were 100. A satisfactory report produced a mark of 80.
In the previous report, Mazzotti and the journeymen had expressed some concern about the grievorís ability to grasp some of the aspects of the work he had to perform. Thus, in the second part of the grievorís move in the maintenance shop, they kept him under constant supervision. Because of this fact, the grievor was not given the opportunity to plan and organize his work or to show any initiative. This explanation was given on the report, but at the same time the grievor was rated as not satisfactory under both these headings.
Under the headings work quality and adaptability, Mazzotti and the journeymen rated the grievor as marginal, but at the same time made the comment in the explanation section - "OK". It was suggested to Mazzotti that marginal and OK were contradictions. He responded saying that OK did not mean exceptional or satisfactory.
The overall mark on this report was 44.
From December 19, 1988 to January 15, 1989, the grievor was with Don Dorosh, foreman, and assigned to work with Kokal as his journeyman. In this report, the grievor was rated as satisfactory in six of the headings and as superior in four. In the explanation section, the following comment was made:
Mr. Alexanderís knowledge of the work, his retention from his last term in Motive Power #1 was quite good. The journeyman was pleased with this term.
This report produced a mark of 84.
In his report to Biln dated February 9, 1989, Lonergan commented on this report that:
As can be seen, this is a very good report in that not only did Mr. Alexander satisfy his Journeyman but in some areas his performance exceeded the Journeymanís expectations.
I have discussed this report with Mr. Alexander, and informed him that I am very pleased with it.
It is hoped that Mr. Alexander will continue to show this kind of effort in the future.
The grievorís next move covered the period January 16 to February 12, 1989. Sam McRae was his foreman and M.L. Smith was the journeyman to whom he was assigned. Their shop report on the grievor included seven satisfactory ratings and three marginal ones. The overall mark on the report was 68. Lonergan observed in his report to Biln that:
After Mr. Alexanderís previous report from Motive Power Shop #1 (Specific Repair) which was a good one, it was a disappointment to receive this one.
On February 27, 1989, the grievor commenced his Level 3 course of study at BCIT. However, in the latter part of March, 1989, the grievor was involved in a car accident which resulted in an injury to his back. Because of the nature of his injury, the Workersí Compensation Board would not allow him to work in these circumstances or continue his course of study at BCIT. From the end of March to May 30, 1989, the grievor was either off work or undertaking classroom assignments under the supervision of Lonergan.
When the grievor returned to work on May 30, 1989, it was in the middle of an existing shop move for apprentices. As a result, he was assigned to work in various areas with different journeymen. No shop report was prepared on the grievorís work performance during this period. on July 3, 1989, the grievor was assigned to the Motive Power Shop #1 (Specific Repair) under the direction of Art Sherlaw, foreman, and Kokal as his journeyman.
About the same time the grievor returned to work, more precisely on May 29, 1989, Packard replaced Lonergan as the Mechanical Instructor. Packard testified that on taking over the duties of Mechanical Instructor, he reviewed the files of all of the apprentices employed by the Employer. He said that on looking at the grievorís shop reports and his BCIT marks and comparing them with those of the other apprentices, he became quite concerned. With respect to shop report marks, he said that the Employer expected its apprentices to have marks in the 80s on a consistent basis. The grievorís shop report marks did not meet that expectation. Based on this review, Packard testified that he recommended to Biln that the grievor be terminated. He made this recommendation prior to taking his holidays which commenced on July 14, 1989.
Between July 19 and 26, 1989, Biln said he also conducted a similar review of all of the apprentices files, including the grievorís file. He testified that the Employer expected its apprentices to achieve marks in the high 80s in their vocational courses of study and a minimum of 80 on their shop reports. His review of the grievorís file satisfied him that the grievor had not performed to the Employerís standards. He said that he decided to terminate the grievorís employment. He testified that he made this decision by no later than July 26, 1989.
Biln also said that there was no straw that broke the camelís back in respect of his decision. The decision was based on his review of the grievorís file.
Biln testified that he did not communicate his decision to the grievor immediately, because he did not want to undermine the authority of his Mechanical Instructor who was on holidays at the time. Packard did not return from vacation until the middle of August, when Biln went on vacation. Thus, they were both not at work until after Labour Day, 1989. Biln then informed Packard of his decision, discussed the matter with the Employerís Labour Relations department, and then met with the grievor on September 22, 1989 to advise him of his termination and to give him the letter of termination dated September 20, 1989 which is set out above.
In early September, 1989, the shop report concerning the grievorís work performance during his move in Motive Power Shop #1 (Specific Repair) from July 3 to August 27, 1989 came in. The mark on that report was 68 made up of seven satisfactory ratings and three marginal ratings.
Sherlaw testified concerning this report. He said that he is a machinist by trade, not an electrician. Consequently, in filling out this report he relied heavily on Kokalls opinions. As well, he did not spend any time working with the grievor. He testified that he did not recall any violent disagreements with the journeyman about the ratings that appeared on the report.
Kokal also testified concerning this report. He said that he and Sherlaw did have a serious disagreement over the ratings that appeared on the report. He told Sherlaw that the true state of affairs regarding the grievor would be reflected by the report if all of the ratings were moved one column to the right. This would have given the grievor seven superiors and three satisfactory ratings and a mark of 87. Kokal testified that he also asked Sherlaw to include comments on the report on his behalf to the effect that the grievor had improved greatly, particularly his problem solving abilities, and that in his opinion the grievor would make a good electrician.
Asked about this shop report in cross-examination, Biln said that it had no bearing on his decision to terminate the grievorís employment. His decision was made on July 26, 1989 and this report was not available to him at that time. Nor, he said, had he discussed the grievorís performance with either Sherlaw or Kokal prior to making his decision.
With respect to the shop reports on his work performance, the grievor testified that he felt the marks on some of them were lower than what was justified. He discussed his concerns on occasion with his shop steward and with the mechanical Instructor. He testified that in his view he was performing equivalent to the other apprentices, but was not being recognized for it. He endeavoured to upgrade his school performance by taking additional courses as recommended by his instructors but received only criticism for it. It was his conclusion, he said, that personality had a lot to do with his marks, citing conflicts with certain journeymen as well as with Lonergan.
The grievor testified that at no time during his apprenticeship was he told that the Employerís expectation of apprentices was that they would score in the 80s on their vocational courses of study and on their shop reports. In his evidence, Biln agreed that he had not specifically stated that expectation to the grievor during the June 23, 1988 meeting or at any other time. He felt that the grievor and other apprentices would be aware of that expectation through their Mechanical Instructor and the feedback he gave to them regarding their reports. However, none of the Mechanical Instructors testified that they told the grievor that he must achieve marks in the 80s on his shop reports on a consistent basis.
Gary Wanless, an Employment Training Counsellor with the Ministry of Advanced Education and Job Training, also testified in this proceeding. He said that he was responsible for the administration of the Apprenticeship Act for employers and apprentices in the West Vancouver and Howe Sound area. This included the Employerís shop and apprentices in Squamish.
Wanless said that the Employer advised him in writing by letter dated September 25, 1989 of its decision to terminate the grievorís employment. He testified that in these circumstances if an apprentice is actively seeking employment, the Director of Apprenticeship will not treat the apprenticeship agreement as cancelled. If the apprentice finds employment with another employer, the apprenticeship agreement will be transferred to it.
In cross-examination, Wanless was asked whether the grievorís apprenticeship agreement had been cancelled. He said it had not been. He agreed that it could be assigned to another employer. He agreed it could also be reinstated with the Employer. Finally, he agreed that the status of the grievorís agreement at that time was that it was inactive, but that it could be reactivated.
In Wanlesses view, it was the prerogative of the Director of Apprenticeship to cancel an apprenticeship agreement, not that of an employer.
I now turn to address the issues raised in this proceeding.
The first one that arises is whether I have the jurisdiction to review and remedy, if appropriate, the Employerís termination of its involvement in the apprenticeship agreement with the grievor. It is clear from Wanlessí evidence that the grievorís apprenticeship itself has not been cancelled as a result of the Employerís actions in this case. The apprenticeship agreement could be assigned to another employer and, in Wanlessí view, it could also be reinstated with the Employer.
The Employer submits that an arbitration board under a collective agreement does not have jurisdiction to inquire into an employerís decision to terminate an apprenticeship agreement with one of its apprentices. This jurisdiction, it says, is vested in the Director of Apprenticeship. In support of this submission, counsel for the Employer refers to the following provisions of the Apprenticeship Act, R.S.B.C. 1979, c.17 as amended:
16(2) A party to an apprenticeship agreement, registered or not, may terminate it without the consent of the other parties.
13. The director of apprenticeship shall
(h) on application by a party to a registered apprenticeship agreement, decide any question respecting the rights and duties of the parties under the agreement Ö
Counsel for the Employer also relies on the decision of the arbitration board in West Kootenay Power and Light Company Limited, supra. In that case, Bruce Byrnell, a lineman apprentice, was on the verge of completing his apprenticeship when the employer decided that he was unlikely to qualify as a journeyman and terminated his registered apprenticeship agreement. Byrnell grieved that decision alleging that the employer had:
failed or refused to certify that he successfully completed his apprenticeship in the linemanís trade, failed or refused to accord him journeyman linemanís status, terminated his apprenticeship and wrongfully demoted him, all contrary to the collective agreement Ö
Byrnell also launched an appeal under the provisions of the Apprenticeship Act.
The arbitration board concluded that it did not have jurisdiction over all aspects of Byrnellís grievance. Its reasoning is reflected in the following excerpts from its decision:
We regard the real substance of the dispute as being whether the Company was acting within its rights when it cancelled its registered apprenticeship agreement with Byrnell under Section 16(2) of the Apprenticeship Act, ("A party to an apprenticeship agreement, registered or not, may terminate it without the consent of the other parties.") or whether, pursuant to that agreement, and under the terms of the Apprenticeship Act, the Company was obliged to determine and certify or otherwise report to the Provincial Apprenticeship Board that Byrnell had successfully completed his term of apprenticeship in the linemanís trade by reaching the journeymanís level of competence in all respects.
[At p. 1]
It is under the Act, not the Labour Code or the collective agreement that the most important remedy the grievor seeks to resolve his grievance can be obtained, i.e. a formal certification of journeymanís standing issued by the Provincial Apprenticeship Board. It is the determination of the grievorís entitlement to that remedy which is the critical issue in this arbitration. Statute law clothes officials acting under the Apprenticeship Act with authority to decide whether Byrnell ought to be granted journeyman standing and to grant it, not as a matter of employment but a matter of qualification. Our authority to decide issues does not go beyond issues raised about the collective agreement. While section 98 of the Labour Code gives arbitrators very broad scope in formulating remedies, those remedies are for breaches of the collective agreement not for breaches of agreements which are outside the scope of the collective agreement as we find the apprenticeship agreement to be. If Article 13.10 were fully effective or if it had never existed or if an estoppel properly lies makes no difference to our view of the matter; we do not have the authority to issue a certificate of qualification to Byrnell under the Apprenticeship Act and the power of decision as to whether the Company violated the registered apprenticeship agreement lies with the Director of Apprenticeship, subject to rights of appeal, and the authority to issue a certificate of journeyman status lies with the Provincial Apprenticeship Board. Byrnell must seek his primary remedy in an appeal under the Apprenticeship Act.
[At p. 10]
In conclusion we do not have the authority (jurisdiction) to decide whether Byrnell was, at the date of termination of his apprenticeship with the Company, entitled to journeyman status and whether the granting of that status was improperly blocked by the Company.
[At p. 15]
After the termination of his apprenticeship agreement, Byrnell elected to bump into a meter readerís job. This was clearly a demotion for him and was so found by the arbitration board. In this regard, the board retained jurisdiction for the reason that:
If it is properly determined under the Apprenticeship Act that the grievor has attained journeyman standing and a certificate of journeyman qualification is issued, it appears that upon the application of the Union with appropriate supporting evidence, subject to considering whatever evidence and argument the Company may adduce and make to this Board, we could find that Byrnell was demoted without just or proper cause and ought to have been promoted to the classification in the collective agreement of lineman at Keremeos. The Board could then refer the calculation of his damages including issues of mitigation and failure to mitigate, if any, to the parties and if they were unable to resolve the issue of damages, it could be referred back to US. If, on the other hand, a final determination made under the Apprenticeship Act sustains the Companyís position that Byrnell could not meet the requirements for journeyman status, then it appears to us that, subject to whatever evidence and argument the Union may make, our finding could be that he was demoted for just cause. If such a determination is made the Company could apply to us for dismissal of the grievance with notice to the Union.
[At pp. 15-16]
In my view, the circumstances of the West Kootenay Power and LightCompany Limited case are distinguisable from those present here.The principal remedy sought by Byrnell and the union was theissuance of a certificate of journeymanís standing in the linemantrade to Byrnell. As the arbitration board noted it did not havethe authority to issue such a certificate. That authority is vestedin the Director of Apprenticeship under Section 13(b) of theApprenticeship Act. That provision reads as follows:
13. The director of apprenticeship shall
(b) issue certificates of apprenticeship and certificates of qualification to persons who qualify
Nor was the Director of Apprenticeship a party to the arbitration and subject to the jurisdiction of the arbitration board.
In this case, on the other hand, the remedy sought by the grievor and the Union is the grievorís reinstatement as an electrical apprentice with the Employer. The Employer is a party to this proceeding and this arbitration board has the authority to make the necessary orders, if found to be otherwise appropriate, in respect of the remedies sought pursuant to Section 98 of the Industrial Relations Act. If the Employer is directed to reinstate the grievor and the apprenticeship agreement, based on Wanlessí evidence, the Director of Apprenticeship would agree to that.
Furthermore, the partiesí collective agreement makes considerable reference to the status of apprentices. In particular, Rule 27.6 provides that:
An apprentice must throughout his apprenticeship continue to display the desire and aptitude to learn the trade or he will not be retained as an apprentice.
In terminating the grievorís employment, the Employer relied on this provision and the grievorís failure, in its view, to meet its requirements. In my view, the Employerís decision to terminate the grievorís employment as an apprentice clearly gives rise to arbitrable issues which I have jurisdiction to resolve.
The Employer principally relies on Section 16(2) of the Apprenticeship Act. That provision suggests that an employer, or any other party to the apprenticeship agreement, may terminate it without the consent of the other parties. Then it argues that pursuant to Section 13 (h) of the Act only the Director of Apprenticeship may interpret the rights and duties of the parties under the agreement.
In response to this argument, I would note first of all that absent provisions like those contained in the Apprenticeship Act, arbitrators have reviewed decisions of employers to terminate the employment of apprentices and, where appropriate, have ordered them reinstated as apprentices. In argument, I was referred to a number of decisions of J.F.W. Weatherill dealing with the terminations of apprentices by CP Rail and the Canadian National Railway Company. The national railwaysí collective agreements also contain the same provision as Rule 27.6 in these partiesí collective agreement. Mr. Weatherill took jurisdiction over those cases and in one of the cases given to me, ordered that the apprentice be reinstated into his apprenticeship. See CP Rail (Award dated July 17, 1978 - Grievor: S. moguin).
Thus, there is nothing inherent about apprenticeship which preventsarbitral review. Do Sections 16(2) and 13(h) of the Apprenticeship Act exclude such review?
The issue of whether a statutory provision has the effect of removing a subject matter from collective bargaining including the grievance-arbitration dispute resolution procedures has been considered by the courts and arbitration boards. The leading case on this issue is the decision of the Supreme Court of Canada in Durham Regional Police Association v. Durham Regional Board of Commissioners of Police et al. (1982), 140 D.L.R.(3d) 1. Section 24(6) of the Ontario Police Act gave a municipal council the discretionary authority to pay any damages or costs awarded against a member of the police force in any civil or criminal proceeding brought against him. In an interest arbitration award, the arbitrator prescribed Article 17.06 which required a council in mandatory terms to reimburse a member of the force for reasonable legal expenses where he was acquitted of a criminal or statutory charge. The question in the case was whether Article 17.06 was forbidden by the provisions of Section 24(6) of the Police Act.
The Supreme Court of Canada concluded it was not. Laskin, C.J.C., speaking for the Court, stated that:
Fastening on s. 24(6) and s. 29(2), I am of the opinion that the unfettered discretion reposed in s. 24(6) does not prescribe exclusivity that would preclude establishment of a collective bargaining regime. Section 24(6) is an empowering provision only and its suggested exclusivity is not found in its provisions. The supersession of s. 24(6) by a post-enacted provision for collective bargaining still leaves s. 24(6) operative in respect of members of the police force who are not under a collective bargaining relationship with the Board of Commissioners of Police. In the circumstances, there is no incompatibility or inconsistency in this case between s. 24(6) and s. 29(2); each has its own area of operation. The latter may itself be superseded by the Lieutenant-Governor in council if it chooses to act under a regulation; it has not chosen to do so in this case.
[At pp. 4-5]
The Durham Regional Police Association case was recently applied by the B.C. Court of Appeal in British Columbia Government Employeesí Union v. R. in Right of British Columbia Government (Personnel Services Division) (1987), 12 B.C.L.R. ( .2d) 97. In that case, Section 73(2) of the Forest Act, on the one hand, provided that where a regional manager considered it necessary to avoid unreasonable delays or costs, he could order that timber that was required to be scaled by a forest service scaler, a government employee, be scaled by a licensed scaler who was not a government employee. The collective agreement between the parties on the other hand contained a provision prohibiting the contracting out of work where it would result in the laying off of employees.
Hutcheon, J.A., speaking for the Court, stated that:
No doubt the legislature could exclude s. 73(2) from the collective bargaining process as it has done with a number of other subjects by s. 13 of the Public Service Labour Relations Act. Thus, for example, the principle of merit and its application in the appointment and promoting of employers (sic) is excluded (s. 13(a)). That exclusion has not been made in this case.
The question, in my view, is what the effect is on legislation then in existence when the employer agrees in the collective bargaining process to restrict the right to contract out. The decision of the Supreme Court of Canada in Durham Regional Police Assn. is authority for the proposition that the existing legislation must be read in such a way as to harmonize with the collective agreement unless the operation of the latter is clearly excluded. The differences between that case and the present do not seem to me to warrant a different approach. In my view, I am bound to apply that case to the present circumstances.
Paraphrasing Chief Justice Laskin, I would say that art. 24 still leaves s. 73(2) operative for those instances where the exercise of the discretion would not result in the laying off of forest service scalers.
[At pp. 102-103]
In Matsqui Police Board, Corporation of the District of Matsqui 1 85 1 22 L.A.C.(3d) 93 (Munroe) the arbitration board faced a similar fact situation to that in Durham Regional Police Association, supra: a statutory provision authorizing a municipal council to indemnify a police officer for costs incurred in respect of a charge arising out of the performance of his duties and a collective agreement provision dealing with the subject matter expressed in mandatory terms.
The majority of the arbitration board found in favour of the union. In doing so, it commented on the jurisdictional question as follows:
That argument raises two distinct questions. The first is whether a proceeding under the Police (Discipline) Regulations is within the am it of s. 54.1 of the Act. The second is whether the answer to the first question really matters - i.e., whether it would be permissible for the-police board to enter into a collective agreement which provided for reimbursement of legal fees in circumstances which went beyond those particularized in s. 54.1.
Our answers to those questions begin with a review of what might be characterized as the modern jurisprudential environment within which such issues are to be addressed. While none of the following cases is directly on point, they cumulatively suggest that the courts will not be quick to find that a subject normally amenable to collective bargaining has been removed by oblique statutory implication from a particular bargaining table.
[At p. 95]
Later, the majority stated that:
Subject to possible challenge under the Canadian Charter of Rights and Freedoms, it is entirely possible for the Legislature, by appropriate language, to exclude an employer from the operation of the Labour Code (as our University Act, R.S.B.C. 1979, c. 419, now does with respect to the relationship between our three public universities and their faculty members), or, more surgically, to exclude certain subjects from collective bargaining in the context of a particular bargaining relationship (as the Public Service Labour Relations Act, R.S.B.C. 1979, c. 346, does with respect to subjects such as superannuation in the public service, the organization of government, etc.).
But in our view, such must be done with reasonable clarity of expression. Put another way, the spirit of the Durham decision, supra, as we read it, is that am aguities in the relationship between general collective bargaining legislation and special constituent statutes ought to be resolved in favour of the former - i.e., in favour of allowing collective bargaining over "rates of pay", "hours of work" and the full range of "other conditions of employment": see the definition of ecollective agreement in the Labour Code, s. 1.
[At p. 100]
Applying the principles set out in these decisions to the facts of this case, I am of the view that, first of all, the relationship between employers and apprentices is amenable to collective bargaining. Secondly, Section 16(2) of the Apprenticeship Act is an empowering provision which gives the parties to an apprenticeship agreement the power to terminate the agreement without the consent of all the other parties. Thirdly, the circumstances in which an,employer may exercise its power to terminate its involvement in an apprenticeship agreement are subject to restrictions contained in a collective agreement and the Industrial Relations Act, including the just and reasonable cause requirement. Fourthly, in my view, Sections 16(2) and 13(h) of the Apprenticeship Act do not have the clarity of expression that would be necessary to exclude the application of the collective bargaining regime to the issue of the termination of apprenticeship agreements. Finally, this conclusion still leaves Section 13(h) of the Apprenticeship Act operative for those instances where an employer terminates its involvement in an apprenticeship agreement and the affected apprentice does not have access to the grievance-arbitration procedures under a collective agreement.
I should add that if I am wrong in my interpretation of the arbitration boardís decision in West Kootenay Power and Light Company Limited, supra, and it does stand for the wider proposition that an arbitration board cannot inquire into an employerís decision to terminate its involvement in an apprenticeship agreement, I respectfully decline to follow it. The board in that case did not address the interpretive principles reflected in Durham Regional Police Association, supra and the other decisions which have followed it. I find those principles persuasive on the issue of my jurisdiction in this case. Applying those principles, Sections 13(h) and 16(2) of the Apprenticeship Act, in my view, do not exclude my jurisdiction in this case.
To summarize, I am of the view that I have the jurisdiction to review the Employerís decision to terminate the grievorís employment and its involvement in its apprenticeship agreement with the grievor and grant the appropriate remedies under the collective agreement and the Industrial Relations Act if the circumstances of the case so merit.
In dealing with the termination or discharge of employees, arbitrators have made the distinction between cases involving culpable conduct and those involving non-culpable conduct. In a paper entitled Non-Culpable Employee Conduct prepared for the Continuing Legal Education Labour Arbitration Seminar - 1987, Robert A. Pekeles succinctly described the distinction as follows:
Culpable conduct as it relates to poor work performance is conduct within the capacity of the employee to control. Non-culpable poor work performance by contrast, is conduct which is beyond the capacity of the employee to control. Culpable conduct involves an element of fault or blameworthiness. Non-culpable conduct does not.
[At p. 1]
Section 93(1) of the Industrial Relations Act requires that every collective agreement contain a provision that the employer must have just and reasonable cause for the dismissal or discipline of an employee. If a collective agreement does not contain such a provision, it is deemed to do so pursuant to Section 93(3)(a) of the Act.
The application of that standard to dismissals for non-culpable conduct has some similarities with its application to dismissals for culpable conduct. one of those similarities is the requirement for a culminating incident. See City of Vancouver (1983), 11 L.A.C.(3d) 121 (H.A. Hope, Q.C.) where the arbitrator stated that:
The evidence gives rise to a further problem. In the event the conduct of the grievor is to be seen as culpable, there was no evidence of a final incident deserving of some form of discipline which would justify the initiation of proceedings leading to dismissal. It must be remembered that the first test in the Wm. Scott case is an articulation of what was previously described as the doctrine of the culminating incident. What is anticipated in the first aspect of the Wm. Scott case is that an employer will lead evidence of in incident which will sustain dismissal in itself or which will revive the discipline record of the grievor so that the incident and the record, taken together, will disclose just cause for dismissal. The same principle applies to conduct seen as non-culpable. The issue was addressed in Re Victoria Hospital, London, and London & District Building Service Workersí Union, Local 220 (1979), 24 L.A.C. (2d) 172 (Weatherill). In that case Professor Weatherill was considering non-culpable conduct in the form of innocent absenteeism. On p. 174 he said:
The "culminating incident" need not necessarily be an actual instance of absence from work, in our view. It might arise, perhaps, upon the receipt of some medical advice bearing on the employeeís condition even though that condition may not yet have led to the employeeís absence from work. In discipline cases the "culminating incident" must in itself be grounds for discipline, and it then constitutes the occasion for considering the record that is, for taking a general view of the employee. In cases of "innocent absenteeism", what is required is that there be some proper and appropriate occasion for assessing the employeeís attendance an health, and for considering the question whether or not the employee can give reasonable attendance in the future. (Emphasis added.)
To paraphrase that decision in the broad context of non-culpable conduct, an employer is not justified in dismissing an employee until there has been a culminating event in the sense of some "proper and appropriate occasion" for assessing the conduct of the employee seen as non-culpable but deserving of dismissal. Again the question raised in that appraisal must be whether the employee can achieve reasonable performance in the future. In the absence of some incident or occasion which calls work performance into question an employer has no cause to address the issue in the context of a possible dismissal, whether the conduct is seen as culpable or non-culpable.
[At pp. 143-144]
Both counsel argued this case on the basis that the grievorís employment had been terminated for non-culpable conduct.
Counsel for the Union submits that there was not "some proper and appropriate occasion" for Biln to review the grievorís work performance and decide to terminate his employment on July 26, 1989. I agree with that submission.
The last shop report submitted on the grievorís performance in a work situation covered the period January 16 to February 12, 1989, some five and one-half months prior to the grievorís termination. On February 27, 1989, he commenced his Level 3 course of study at BCIT. After approximately four weeks at BCIT, the grievor was involved in a car accident as a result of which his back was injured. Because of his back injury, he had to stop school and he could not work with the tools. During the intervening period from the end of March to May 30, 1989, the grievor was off work altogether or confined to the classroom.
He returned to work on May 29, 1989 in the middle of a shop move. He commenced his regular shop move on July 3, 1989 with Sherlaw and Kokal. No complaints were registered with Biln or Packard, the new Mechanical Instructor, about his work performance. Sherlaw and Kokalís shop report was not submitted until early September, 1989 well after Biln had made his decision to terminate. Biln testified that this report had no bearing on his decision as it was not available to him at the time he made his decision.
In my view, to use the words of the arbitrator in City of Vancouver, supra, there was, on the evidence before me, no incident or occasion which called the work performance of the grievor into question during the months of June and July, 1989 which justified Biln reviewing the grievorís file and making the decision to terminate his employment.
This conclusion, in and of itself, would justify the setting aside of the Employerís decision to terminate the grievorís employment and my ordering his reinstatement. However, I have also considered the extensive evidence and argument adduced concerning the grievorís work and school performance and the Employerís system for evaluating its apprentices. Having done so, I have also concluded that the termination of the grievorís employment must be set aside on the merits as well. I now turn to my reasons for reaching that conclusion.
As stated above, there are some similarities in the application of the just and reasonable cause standard to dismissals for non-culpable conduct and dismissals for culpable conduct. One of the differences, though, is in the criteria for review.
Dismissals for culpable conduct are subject to review by arbitrators pursuant to the framework set out in William Scott & Company Ltd., BCLRB No. 46/76, (19771 1 Can LRBR 1. However, the Labour Relations Board has determined that that framework is not applicable to cases of dismissal for non-culpable conduct. See Canadian Liquid Air Ltd., BCLRB No. 2/82, [1982) 1 Can LRBR 355. As a result, arbitrators in British Columbia have developed a separate set of criteria for reviewing employersí reactions to employees who allegedly are unable to perform their duties through no fault of their own.
These criteria have been described in different ways at different times. However, I am of the view that the description contained in Edith Cavell Private Hospital (1982), 6 L.A.C. (3d) 229 (Hope) provides a useful summary for the purposes of this case. The board there stated that:
An employer who seeks to dismiss an employee for a non-culpable deficiency in job performance must meet certain criteria:
(a) The employer must define the level of job performance required.
(b) The employer must establish that the standard expected was communicated to the employee.
(c) The employer must show it gave reasonable supervision and instruction to the employee and afforded the employee a reasonable opportunity to meet the standard.
(d) The employer must establish an inability on the part of the employee to meet the requisite standard to an extent that renders her incapable of performing the job and that reasonable efforts were made to find alternate employment within the competence of the employee.
(e) The employer must disclose that reasonable warnings were given to the employee that a failure to meet the standard could result in dismissal.
[At p. 233]
I now turn to review the facts of this case against those criteria.
I propose to consider the first two criteria together - the Employer must define the level of job performance required and must establish that that standard was communicated to the grievor.
It is clear from Bilnís evidence that the Employer evaluated the grievorís work performance as an electrical apprentice prior to making its decision to terminate against a standard of achievement of marks in the high 80s on the vocational courses of study and a minimum of 80 in the shop reports. This standard was used on the basis that it reflected the level of attainment that the Employerís apprentices had achieved in the past and were continuing to achieve.
However, having considered all the evidence and argument before me, I am satisfied that the Employer never defined or laid down a standard, or level of performance required, at that level. That standard or level of performance may have been what Biln in his own mind expected of his apprentices, but I must conclude on the evidence before me that that expectation was never communicated to the Employerís apprentices, and most particularly the grievor, with the preciseness and particularity that would justify the dismissal of an employee for the failure to meet it. At times, the grievor was told he must perform to the level of the other apprentices. But he was not told what that level was, and in his own mind, he was performing as well as the others.
On the other hand, the Apprenticeship School Report forms used by the Director of Apprenticeship to record apprenticesí marks in their courses of study clearly defined a passing mark as 70%. Further, the first two formats of shop reports used during the grievorís apprenticeship, which covered most of his actual working time with the Employer, left the clear impression that 71 represented a satisfactory mark. This conclusion is consistent with Russellís evidence, who as the grievorís first Mechanical Instructor testified that his marks of 73, 76, 76, and 75 were acceptable or satisfactory shop report marks.
When all of the evidence is considered, I can only conclude that the Employer had not defined a standard. Biln expected marks in the 80s, while in my view, apprentices, journeymen and foremen could reasonably conclude from the first two shop report formats that a mark of 71 or above represented a satisfactory level of job performance. This inconsistency leads me to the conclusion that the Employer had not met its obligations under the first two criteria set out in Edith Cavell Private Hospital, supra, to "define the level of job performance required" and to "establish that the standard expected was communicated to the employee". If an employee is to be evaluated against a standard, it is only just and reasonable that that standard be clearly laid down and communicated to him beforehand. That, in my view, was not done in this case.
The fourth criteria set out in Edith Cavell Private Hospital, supra requires that the Employer must establish an inability on the part of the grievor to meet the requisite standard to an extent that renders him incapable of performing the job.
I have a number of comments in respect of the application of this criteria to the facts of this case.
To satisfy this criterias the Employer relied principally upon the shop reports done on the grievorís work performance during his moves through the various areas of the Employerís operations. In response, the Union raised a number of concerns about the use of the reports for this purpose.
It pointed out that it was the journeyman who worked with the apprentice, assigned him his work, and was there to assess how he performed it. Further, it was the journeyman who had the expertise in the trade. Most of the foremen the grievor worked under were not electricians by trade and for the most part they never observed him actually working at the trade. Yet the evidence was that the foreman generally took the leading role in completing the shop report, filling in the marks and comments. Although the foreman was supposed to consult with the journeyman prior to completing the report, the evidence was in the grievorís case this did not happen on every occasion. where the foreman and journeyman had differences of opinion on their assessments, there did not appear to be a way to ensure that difference was reflected in the report. In this regard, reference was made to the last report on the grievor and the differences between Sherlaw and Kokal on their assessments.
I share some of these concerns. Additionally, the last form of shop report used in the grievorís case appeared to be quite complex with five separate ratings under each of ten different headings. Further, the foremen and journeymen using this form were not given hands-on instruction on its use. These factors may explain some of the inconsistent comments on Mazzottiís report covering the grievorís performance in his shop during the period November 21 to December 18, 1988. It may also explain the wide variation in marks from that report which was a 44 to the grievorís next report covering the period December 19, 1988 to January 15, 1989 which was an 84.
Most of the concerns raised by the Union appear to have been answered by the new form of shop report adopted by the Employer after the grievorís termination. Apprentices continue to be evaluated under the same ten headings as in the last form: job knowledge, work quantity, work quality, planning and organizing, work habits, attitude, ability to deal with others, initiative, adaptability, and dependability. However, there are now only three rating levels: poor, satisfactory, and good. This should make the form simpler to use. Most importantly, though, the form is designed such that the foreman and journeyman now do their own, individual evaluations of the apprentice under each of the headings and make their own individual comments.
It seems to me that the journeyman is in the best position to evaluate an apprentice, based on his expertise in the trade and his exposure to the apprentice at work. A shop report form designed to assess an apprenticeís work performance must make provision for the expression of the journeymanís evaluation. The new format clearly does. The fact that the earlier formats did not clearly provide for it, leaves the weight to be attached to them open to question.
Secondly, as I concluded above, there was no clearly defined standard against which the grievorís work performance was being measured. Biln had his expectations. The grievor was not aware of them, and I am satisfied that neither were the foremen and journeymen.
Thirdly, when all the evidence is considered, particularly that of the journeymen who worked with the grievor, I am not persuaded that it establishes that the grievor is incapable of performing as an electrical apprentice and eventually becoming a journeyman. It is true that the grievor has had some difficulties. However, I am satisfied that when concerns about his performance have been identified he has done his best to address them. Additionally, when he failed his Level 2 courses of study and it was recommended that he take some upgrading courses in certain areas, he did so and achieved marks of 82 and 91 on them. More recognition of this effort might have been given by the Employer. If he continues to work on the deficiencies in his performance, learning through the knowledge and experience of his foremen and journeymen, the evidence suggests to me that he has the capability to earn his qualifications as an electrician.
Put another way, I am not persuaded on the evidence that the grievor has not displayed the desire and aptitude to learn the electrical trade within the meaning of Rule 27.6 of the partiesí collective agreement.
The final criteria in Edith Cavell Private Hospital, supra, is that the Employer must disclose that reasonable warnings were given to the grievor that a failure to meet the standard could result in dismissal.
In my view, the Employer did not satisfy this requirement. On January 20, 1988 Currie told the grievor verbally and in writing that the Employer expected an immediate and substantial improvement in his performance. If such did not occur, he would be dismissed immediately. He was not dismissed immediately, and although the Employer was critical of the grievorís performance thereafter, he was never advised again expressly that it was such that he could be dismissed.
It might be argued that that result was implicit in Bilnís meeting with the grievor on June 23; 1988; but still, Bilnís decision to terminate was taken over a year after that meeting. In the interval, no such similar meeting took place nor a warning that he could be dismissed.
I am of the view that any warnings given to the grievor were not sufficiently contemporaneous with the actual decision to terminate as to satisfy this requirement.
In conclusion, I am satisfied that the Employer did not have just and reasonable cause to terminate the grievorís employment as an electrical apprentice. Pursuant to Section 98 of the Industrial Relations Act, I direct that the Employer reinstate the grievor to his employment as an electrical apprentice. Specifically, this direction to the Employer includes resuming its obligations under the grievorís apprenticeship agreement.
In mitigation of his damages, the grievor has been working in the construction industry as a drywaller and carpet installer. He testified that if he was reinstated, he would need a period of time to complete his obligations under any existing contracts he had, before he commenced work again with the Employer.
I request that the parties discuss the timing of the grievorís reinstatement in light of his current contractual obligations, and the amount of compensation payable to him after taking into account the monies earned by him in his contracting business and any other factors that may be relevant to this issue. I retain jurisdiction to deal with any of these issues in order to complete my Award, should the parties not be able to resolve them on their own.
Dated this 4th day of June, 1990.
(signed) JOHN KINZIE