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HomeMy WebLinkAbout2010-0839.Fenwick.13-01-30 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2010-0839 UNION#10-12 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Canadian Union of Public Employees - Local 1750 (Fenwick) Union - and - The Crown in Right of Ontario (Workplace Safety and Insurance Board) Employer BEFORE Nimal Dissanayake Vice-Chair FOR THE UNION Jim Morrison Canadian Union of Public Employees – Local 1750 National Staff Representative FOR THE EMPLOYER Gurjit Brar Workplace Safety and Insurance Board Counsel HEARING May 1, 2, 9 & 10, July 9 & 10, November 7 & 8, 28, 2012. - 2 - Decision [1] The grievor, Ms. Alana Fenwick joined the WSIB on May 25, 2009 in the capacity of Bilingual Eligibility Adjudicator in the Ottawa Office. Under the collective agreement she was subject to a nine month probationary period. This decision deals with her grievance dated April 12, 2010, following her termination effective April 6, 2010. [2] The following provisions of the collective agreement are relevant: 3.03 Employer’s Obligation During Probation: During the probationary period the Employer will provide training, supervision and regular performance feedback to the employee. 12.08(a) During the probationary period the Employer will be the sole judge of an Employee’s ability and suitability for employment and dismissal will be at the Employer`s discretion. Probationary employees will not be able to file a grievance related to termination of their employment but can do so if the probationary Employees(s) has been terminated in bad faith, arbitrarily or for reasons that are discriminatory or contrary to legislation. Following the dismissal the parties will as necessary meet to discuss exit options that if accepted shall preclude filing a grievance. [3] The union’s primary position is that the grievor’s termination was arbitrary, discriminatory and in bad faith. In addition, the union submits that the employer violated article 3.03 by failing to provide regular performance feed back to the grievor during her probationary period. [4] EMPLOYER EVIDENCE It is common ground that on hire the grievor was subject to a period of training consisting of eight weeks of in-class training and a practicum period of eight weeks. Following each phase of training the grievor, along with other probationary employees, were evaluated. The report on the grievor`s in-class portion of training signed off by her then manager, Mr. Dan Paris, establishes that the grievor was found to have achieved all requirements and achieved an overall score of 95 percent, exceeding the class average of 91 percent. The manager in his summary set out very favourable and positive comments about the grievor’s attributes demonstrated during the training period. On September 14, - 3 - 2009, the grievor had been assigned to an EA team managed by Ms. Marie Shallow, which consisted of four permanent EAs and four probationary EAs. On September 25, 2009, Ms. Shallow signed off the grievor’s report on the practicum phase of the training. The grievor was again found to have achieved all of the requirements. Ms. Shallow concludes the report with the following: Overall Comments on Practicum Objectives While Alana was assigned to my team on September 14, 2009, I have reviewed many of her cases over the past 8 weeks and she has met the objectives of this practicum. Her decisions are well thought out and clearly documented. She is able to work independently but also seeks advice on more complex cases. She is using AECL as her main case management tool. This allows her to manage the increasing volume and make decisions well within the required timeframes. She has on occasion requested additional work as able to manage a high volume at this early stage. Part 4 – Recommendation Alana has adjudicated a wide range of cases over the past 8 weeks. She demonstrates confidence and is able to manage the more complex cases. She is able to work independently but seeks advice from me and her peers where appropriate. She has excellent communication skills. She also demonstrates sensitivity when dealing with WPP. I recommend that Alana continue in the new job noting that this is an interim recommendation with a final recommendation being made at the 120 day mark. I will continue to monitor her work, reviewing her adverse decision letters as well as aggravation basis decisions. Alana’s previous work experience has proven to be a real asset in her new position. I am very pleased to have Alana on my team. [5] The grievor came under Ms. Shallow’s supervision following her successful completion of training. The primary role of the EA position is to determine initial eligibility of benefits claimed by injured workers. For this purpose, a computer system downloads claims to each EA’s desk on a daily basis. Ms. Shallow testified that each day a minimum of 5 to 6 new claims are assigned to each EA desk. [6] In chief, Ms. Shallow was asked why the grievor was terminated. She replied that in reviewing the grievor’s work performance she “felt she had difficulty dealing with people and was not meeting the performance objectives”. Asked what led her to come to that conclusion, Ms. Shallow replied, “I had received complaints – calls and letters, and - 4 - from my observations of her demeanor during our case conferences, she tended to be negative”. Referring to the reports on the grievor’s performance during the training period, Ms. Shallow stated that she had a very positive opinion about the grievor’s work performance as of the end of September 2009. However, that changed and she “began to have concerns about her decision-making ability and customer service skills”. Asked what prompted that change of opinion, she stated that complaints by way of a letter from a printing company and two calls from injured workers as well as her own observations during case conferences “called into question the grievor’s competence and the manner in which she was speaking to stakeholders on the phone”. [7] Asked to elaborate about the complaints, Ms. Shallow said that a printing company wrote a letter dated November 30, 2009 complaining about two fines levied against it by the grievor, a $250.00 fine for filing an incomplete report and a $250.00 fine for late filing of a report, and alleging that the grievor had made numerous inquiries about the same information. Ms. Shallow reviewed the file and met with the grievor. She testified that following the discussion, it was agreed that one of the fines was inappropriate and that the grievor would rescind it. Ms. Shallow undertook to contact the company and inform that one of the fines would be rescinded. Sometime later the company advised that the fine had not been rescinded as agreed. The grievor had to be reminded again before she did that. [8] Ms. Shallow testified about two calls she received in early January 2010. In the first call the worker complained that he was sleeping during the day following a night shift, and was awakened by the grievor who had called to discuss his claim and that the grievor had asked a “barrage of questions”. Ms. Shallow concluded that the grievor had exhibited poor judgement. She coached her that when a call is made, before starting a conversation the grievor should always ask whether “this is a good time to talk”, and if the worker says it is not, arrange for a convenient time to call back. The second worker was upset about the grievor’s tone of voice during a telephone call. The worker felt that the grievor was “talking down” to her. Ms. Shallow coached the grievor that her conduct with regard to both calls was inappropriate. Ms. Shallow testified that during case conferences in the latter half of December 2009 she noticed that the grievor would - 5 - “get judgemental or frustrated about what an employer should or should not do”. Also on several occasions the grievor told her that she had just had a difficult conversation over the phone and that the caller may contact Ms. Shallow about that. Employer counsel asked Ms. Shallow what the grievor said or did, that led her to conclude that she was frustrated. She replied, “It was just a sense I had that she was negative. That was the general impression I got. She seemed to lose composure”. Similarly, Ms. Shallow testified that her conclusion that the grievor was judgemental or frustrated about what an employer should or should not do, was a “general impression, a general sense” she had. She could not recall anything specific the grievor said or did that gave her that impression, except that several times the grievor told her that she did not believe what people were telling her. That, she felt was being negative. [9] Ms. Shallow testified that these concerns caused her to change her opinion about of the grievor’s suitability as EA. As a result between Christmas and New Year, she audited the claims decisions the grievor had completed during the fall of 2009. She concluded that the grievor did not meet five objectives, all of which the grievor had “achieved” during the training practicum. Ms. Shallow testified about the importance of meeting those objectives. When counsel asked what the audit showed, Ms. Shallow replied, “It was not so much the audit. It was the complaints and my own observations that made me feel there could be some improvement in these areas”. [10] Ms. Shallow testified that on January 5, 2010, she met with the grievor to discuss concerns about her work performance, and to set up a plan to enable the grievor “to get back on track”, because her probationary period was to end on February 9, 2010. She identified to the grievor the areas in which improvement was required if she was to recommend confirmation of permanent status. She assured the grievor that with coaching and mentoring she would be successful. She obtained the grievor’s agreement that they would meet twice a week for that purpose. [11] Ms. Shallow testified that January 5, 2010 was the first time the grievor was made aware of any deficiency in her work. As a result the grievor seemed visibly surprised. She asked Ms. Shallow why these issues were not pointed out earlier and why they are raised - 6 - two weeks before the probation was scheduled to end. Ms. Shallow explained about the complaints that had come to her attention in December and her own observations in December, and that those caused her to do a thorough audit of her work. Ms. Shallow did not provide the grievor with specifics of any particular claims she had problems with. Asked whether the grievor disagreed with her position that she had not met some of the performance objectives, Ms. Shallow replied that the grievor stated that she felt she had been doing a good job and expressed surprise. The next day Ms. Shallow provided the grievor with a letter documenting her findings on the areas that needed improvement and setting out the action plan to address it by meeting twice a week. She agreed that this was the first written feedback she had provided, since the September 2009 training evaluation. Ms. Shallow testified that on January 15th 2010, the management team requested and obtained agreement from the grievor and the union to extend the grievor’s probation period by two months. [12] Ms. Shallow testified that in late September 2009 the grievor advised her of some neck, arm and lower back pain and that some minor adjustments were made to the grievor’s work station. However, the symptoms persisted and Ms. Shallow was advised that the grievor was receiving treatment from a chiropractor. Ms. Shallow arranged for the grievor to move to a different work station on the 5th floor which was more adjustable. Ms. Shallow testified that the grievor made no request for any specific accommodation with regard to her physical issues nor did she offer any. In early December a formal ergonomic assessment was conducted of the grievor’s work station and some minor changes were made again. Ms. Shallow testified that to her knowledge, the grievor’s physical issues had no impact on her ability to do her job. [13] Ms. Shallow continued to meet with the grievor through January, February and March 2010. Following each meeting the grievor was provided written feedback. It suffices to note that these identified that the grievor was showing good improvement in some areas, but needed further improvement in others. On January 11, 2010 Ms. Shallow issued a progress report from her meeting with the grievor on January 8th. In it Ms. Shallow recounted that the grievor’s performance was deemed acceptable until concerns arose as a result of the complaints and Ms. Shallow’s own observations. She referred to her audit - 7 - of the grievor’s files from the fall 2009 and her conclusion that she was not meeting objectives in five areas, and the action plan implemented to address the concerns. She concluded the report as follows: Alana, I am aware that you have been working extra hours each day since our discussions began. This demonstrates a commitment on your part to improve in the areas we discussed and of the importance we place that in each and every case a day matters. [14] In a report following a review meeting with the grievor on January 15th, Ms. Shallow commented favourably on three telephone calls by the grievor which she had monitored. Then she wrote: Finally, you asked me for feedback on your progress. I feel that you are improving on your decision making timeliness. That you are using the case load management tool (AECL) more effectively and are demonstrating that you can provide excellent customer service. One area in which you continue to require assistance is your letter writing. I will continue to review your adverse decision letters. Finally she wrote: To ensure a balance between your work demands, health, safety and wellbeing, I am requesting that you work your regular hours only 8:30am-4:30pm, taking both your breaks and designated lunch time. If you wish to work additional hours you need my approval first. [15] She testified that the direction about not working extra was made for three reasons. First, to protect the grievor’s health and safety by ensuring that there is no aggravation of the physical symptoms she had reported in the fall. Second, Ms. Shallow was aware that the probation was stressful for the grievor. Thus, she felt that it would not be beneficial for the grievor to work extra hours. Third, it was important for the employer to know whether the grievor had the ability to complete the assigned work within regular work hours. [16] Ms. Shallow testified that on March 12th she met with Ms. Anne Bisson from Human Resources and signed documentation for recommending the grievor’s termination. She explained that her recommendation had to be supported by “upper management” to be effective. The document was circulated and the upper management approved her recommendation. The last required signature was obtained on March 29th. She testified - 8 - that although she signed off on March 12th recommending the grievor’s termination, she continued to coach and mentor the grievor until her termination on April 6, 2010. On March 17th, 2010 the grievor approached her and expressed concern about the manner in which her probation had been handled. The grievor informed her that she had informed the Ontario Human Rights Commission that she felt that Ms. Shallow had discriminated against her and the Commission had advised her that she should raise her concerns with Ms. Shallow. Asked what the grievor specifically said about discrimination, Ms. Shallow testified, “That I had discriminated against her and had been unfair” and that “she felt that since she disclosed her longstanding mental health issues to me on December 1st, I had used that to move towards terminating her”. The conversation ended with Ms. Shallow requesting that the grievor put down her concerns in writing. Ms. Shallow testified that she was surprised and “kind of blindsided” by the grievor’s allegation of discrimination, and that she expressed her disagreement with that allegation. [17] Ms. Shallow testified that while the grievor had mentioned on December 1, 2009 that she had a long history of depression, as of March 17, 2010 she had not provided any supporting medical evidence. The first such evidence was a medical certificate from the grievor’s family physician, Dr. Meena Sharma, dated March 25, 2010, which was provided to Ms. Bisson, Human Resources Specialist, through the union. It authorized the grievor to be absent from work from March 25 to April 23, 2010 and stated “Alana has been having mental health issues since 2006 and has been on treatment since then. Has been having difficulty concentrating at work recently and treatments have been modified. She has been referred for counselling and psychiatric referral has been made”. [18] Ms. Shallow testified that on December 1, 2009 the grievor came in to her office said that she was “feeling really overwhelmed”, and that she had overheard another EA say that he was bored because he had nothing to do and had no work in the AECL. She told Ms. Shallow that she had been absent for a few days the previous week and that on her return work had piled up. Ms. Shallow explained that it was not uncommon that EA’s have to catch-up after returning from an absence. Then the grievor informed that “she has a long history of depression”. Ms. Shallow asked what she had done about her - 9 - depression. The grievor replied that she was taking medication and that medication worked best for her. Ms. Shallow told the grievor that she herself had a similar experience around the grievor’s age and suggested that the grievor try the coping methods she had used, dieting and exercising. Ms. Shallow testified that the grievor made it clear to her that she did not want to continue that discussion and that she had everything under control. Asked what words the grievor used, Ms. Shallow recalled that she said she was “overwhelmed” and may have also used the word “stressed”. Ms. Shallow testified that the grievor did not request any specific assistance to cope with her feeling overwhelmed. Asked whether the grievor told her that she had “everything under control”, she replied, “That was the sense I got from her tone and her saying that medication works best for her. I took it as the topic is closed, that she did not want to talk about it any further “. She testified that while the grievor had told her that she had a long history of depression, she provided no other details. Ms. Shallow testified that after December 1, 2009, until March 17th the grievor did not say anything further about her depression or seek any assistance in that regard, and did not attribute any of the performance short-comings to her depression. [19] In cross-examination, Ms. Shallow agreed that in September 2008 the Ottawa Office was the first to implement a new service delivery model and that following that there were workload issues. She agreed that staff on her team worked extra hours to keep up, often coming in early and working through breaks and lunch. However, she added that she did not encourage that. Ms. Shallow agreed that she also worked extra hours. She explained that she needed to do that because she had to review decisions of many new trainees. She agreed that she had not issued a written direction to any of the other probationary EA’s that they were not allowed to work extra time without prior approval. Ms. Shallow agreed that her comments in the January 11, 2010 report, about the grievor’s habit of working extra time suggested that “it was a good thing”. Asked why just 8 days later the grievor was asked to stop that good practice, Ms. Shallow replied that she had the grievor’s best interest in mind, that she was aware that the grievor experienced some physical problems in the fall and felt that she should err on the side of caution. She stated that she did not inquire from the grievor before issuing the January - 10 - 11th direction whether she still had physical problems, but assumed that to be the case. It was only late in January that she became aware the physical issues had been resolved. [20] Ms. Shallow agreed that while she did not encourage employees to work extra hours, that happened regularly. Asked “Working extra is a noticeable culture in your office?” she replied affirmatively. Counsel suggested that when the grievor is prohibited from working extra while everyone else was doing that, it put the grievor in a disadvantageous position, Ms. Shallow disagreed. She replied “An argument can be made that employees become less productive if they work extra hours repeatedly. I am not persuaded that those who do that are more efficient or get more work done”. Counsel suggested that before prohibiting extra work in order to prevent exacerbation of the grievor’s physical ailments, Ms. Shallow should have asked her whether she still had any physical health issues. Ms. Shallow replied that that was only one reason for her decision. It was also important for her to be able to assess whether the grievor had the ability to complete her work within the regular work hours. She agreed that it was important to assess every employee for that ability. Counsel suggested that she could not have assessed that ability with regard to any other EA because they were allowed to, and did work extra hours regularly. Her reply was that the extra work other employees did was not for hours, just 10-15 minutes, and even that did not happen daily. Counsel put it to Ms. Shallow that the union’s evidence would be that EAs regularly performed extra time in order to keep up with the workload and that they did that for “a lot longer than 10 to 15 minutes”. She agreed that it can happen, but added that it was “not the norm”. [21] Union counsel put to Ms. Shallow that on December 1, 2009 when the grievor informed that she was overwhelmed with work that had piled up during her absence, she requested that the engine that assigns new files to her be turned off for one day, so that she would be able to catch up. Ms. Shallow recalled a discussion about shutting the engine down for a day, but believed that she may have been the one who suggested that. She agreed that in any event the engine was not shut down for a day as discussed. [22] Turning to the complaint from the printing company, counsel asked whether complaints from employers about fines levied are rare. Ms. Shallow replied that they happen - 11 - occasionally. She disagreed that it was more than occasional. She agreed that no employer would like fines, but explained that as long as a rationale for the fine is provided and it is fair, they understand. Asked why the fine the grievor had levied on the printing company on November 10, 2009 for late filing of the Form 7 was inappropriate, Ms. Shallow testified that the Form 7 was also received on November 10th, the date the fine was levied. She said, “If it comes in by the end of the business day, typically we don’t levy the fine”. Asked whether it is possible that the form came in after the grievor had levied the fine, she replied that “usually EA’s give till the end of the business day”. She agreed that she did not know at what time the Form 7 was received on November 10, 2009, whether it was before or after the grievor levied the fine. Ms. Shallow testified that the company’s letter was “quite scathing”. She discussed the letter with the grievor and she and the grievor “agreed that the late filing fine could be reversed, but the incomplete filing fine should be upheld”. Ms. Shallow called the printing company, explained the decision and advised that the grievor would be rescinding the late filing fine. [23] Counsel suggested to Ms. Shallow that she decided to rescind one fine only because she wanted to calm the printing company employer who was angry. She disagreed, and commented that she was more concerned about the grievor’s failure to rescind the find as agreed to, than with the imposition of the fine itself. On December 22nd, the company wrote to Ms. Shallow complaining that the fine had not yet been rescinded. She had to remind the grievor again before it was done. Counsel suggested that the grievor would testify that there had been a misunderstanding, that the grievor believed that Ms. Shallow would inform the company of the decision to rescind one fine and would also rescind that fine herself. Ms. Shallow disagreed that she undertook to rescind the fine. She pointed out that levying and rescinding of fines was bargaining unit activity and that she could get into trouble with the union for performing bargaining unit work. [24] Ms. Shallow agreed that she did not witness the telephone conversation between the grievor and the worker who had complained about the grievor’s tone of voice. She added, however, that on more than one occasion during December 2009, the grievor had told her that she had a difficult telephone conversation which had ended abruptly and - 12 - that Ms. Shallow may get a call about it. About the other call, counsel suggested that after the individual is already awakened by the call, asking “is this a good time to call”, would not help, and that the person would still be angry. Ms. Shallow replied, “that at least shows some concern and may help to diffuse some anger”. Counsel suggested that whether shift worker or not, the grievor has no way of knowing when someone is up or is sleeping. Ms. Shallow said, “True, But you can still use some judgement. If I know someone works night shift, I’d call late afternoon”. Asked how the grievor would know whether a worker had worked a night shift the previous night, she insisted that “most of the time you can figure it out”. Ms. Shallow agreed that other members of her EA team including probationary employees, also have had complaints made against them, and that while she talked to them about the complaints, she did not undertake an audit of their work as she did with the grievor. She agreed that until the complaints, i.e. the employer letter and calls from two workers, she had no concern about the grievor`s work performance, and that it was those complaints which caused her to audit the grievor’s work closely. [25] Counsel asked Ms. Shallow, given that the grievor had changed from “doing very well” to “having difficulty”, whether it ever crossed her mind that the change may be a result of the grievor’s depression, which had been disclosed to her on December 1, 2009. Ms. Shallow replied that it did, but that it had been made clear to her that the grievor did not wish to discuss that any further. While the grievor did not expressly say she did not want to discuss her depression, Ms. Shallow inferred that from the grievor’s reaction to her advice on what to do about the depression, that is, that the grievor should diet and exercise. [26] Union counsel pointed out that in his opening statement employer counsel had stated that the decision to terminate the grievor was made on March 12, 2010, and asked Ms. Shallow whether she agreed with that. She replied that she did. Counsel asked Ms. Shallow why she wrote in her memorandum dated March 10, 2010 to the effect, “Given what I have observed up to this point, I am not confident that you can sustain the required behaviours and performance expectations required of this position”, if as she testified she was coaching and providing feedback to the grievor right up to April 6, - 13 - 2010. Ms. Shallow replied that the grievor had asked and was entitled to know the status of her probation. “Therefore in fairness to her and to the people we serve, I thought it was appropriate to be direct about it.” [27] Counsel suggested to Ms. Shallow, that given her earlier testimony that the decision to terminate was made on March 12th, she was not truthful in her probation update report dated March 18th where she wrote as follows: Alana, we have discussed the status of your probation in light of my comments in my last report of March 10, 2010. A decision regarding your probationary status has not been made, and it is not mine solely to make. At this point in time, I am continuing in my efforts to coach and assist you in every way possible. I encourage you to continue with your efforts as well. (emphasis added) Ms. Shallow disagreed and pointed out that as of March 18th the termination document had not been signed off by all of the required signatories. Counsel suggested “it was just a formality of getting the signatures on paper”. Ms. Shallow agreed that she expected that to be the case, but again reiterated that the last required signature was not obtained until March 29. Counsel suggested that she was misleading the grievor and giving her false hope by saying that she would continue to coach and assist and by encouraging the grievor also to continue her efforts. Ms. Shallow disagreed. She stated that “it was a difficult situation”, but insisted that the memorandum really reflected the truth because the documentation had not yet been signed off by everyone. [28] Union counsel referred Ms. Shallow to an e-mail she sent to Mr. Robert Dean on March 9, 2010, where she says that Ms. Bisson from Human Resources was preparing the documentation to terminate the grievor “a few weeks ago”, and suggested that that indicates that in mid-February steps were being taken to terminate the grievor. Ms. Shallow replied that it “does not necessarily mean that”. She testified that as her reports document, the grievor had shown improvement in some areas which had been a concern. She explained that the release process takes several weeks because several levels of approvals are required. She continued, “So it is a matter of being prepared with the documentation in the event we proceed to terminate, if we need it to be able to act quickly. It does not indicate that I was planning to terminate four weeks earlier”. When - 14 - counsel asked whether she should not have been concentrating on assisting the grievor improve her performance rather than prepare paperwork for her termination, she replied “I also have a responsibility to injured workers. In the weeks leading up to this I had concluded that she was not a good fit. If she isn’t doing a good job, the responsibility falls on me”. [29] Reviewing the documentary evidence, union counsel observed that in the audit she conducted, except for one file, Ms. Shallow had only reviewed work the grievor had performed in the fall of the previous year. She was asked why she did not look at new files worked on by the grievor after she was notified of the areas in which her performance fell short and a plan was implemented to assist her improve. Ms. Shallow replied that she had not reviewed those files in the fall and found that work still had to be done on those files. When counsel asked again why she did that, Ms. Shallow’s response was “There was no particular reason”, but added, “Any file whether new or months old, is still current if work still needs to be done on them. That work has to be done”. Counsel asked Ms. Shallow what areas the grievor was not showing improvement as of her February 18, 2010 update report. Ms. Shallow replied, “In letter writing, while she was improving she still needed to present the rationale for the decision more consistently.” [30] Ms. Shallow was asked why she decided to terminate the grievor while she was “still off on disability”. She replied, “The actual decision to terminate her had already been in the works and her probation was expiring April 9th. So it was determined that the termination should happen before that date”. She testified that she was aware that the reason the grievor went off work for a month on March 25th was due to “stress”, although she had not seen the medical certificate. [31] In re-direct, Ms. Shallow reiterated that the extent of the information she was provided by the grievor on December 1, 2009 and March 17, 2010 was to the effect that she had a long history of depression and that she was receiving treatment. No further particulars were provided. - 15 - [32] The employer’s only other witness was Mr. Robert Dean, Assistant Director Initial Entitlement Branch. Ms. Shallow reported to him. In chief, Mr. Dean confirmed that based on Ms. Shallow’s recommendation that the grievor be terminated and the reasons she had documented, he signed the termination document on March 12, 2010. In cross- examination, Mr. Dean was asked who made the decision to terminate the grievor. He replied “I believe the Director, on recommendation by the manager and myself”. He agreed that he did not see any of the work performed by the grievor and that he based his decision on Ms. Shallow’s recommendation. He stated that he had not personally seen any of the grievor’s performance evaluations, but added that he may have been advised about them. Mr. Dean also insisted that the fact that Ms. Bisson was preparing the termination document as early as February 2010 did not indicate that a decision had been made at the time. He agreed that the decision to terminate was made on March 12, 2010, but insisted that Ms. Shallow’s e-mail dated March 18th to the grievor stating explicitly that a decision had not yet been made was not misleading because the document had not been completely signed off at the time. [33] Mr. Dean testified that in late 2009 or early 2010 Ms. Shallow informed him that the grievor had disclosed that she had a history of depression. Asked whether he “looked into that”, Mr. Dean replied that he asked Ms. Shallow whether the grievor needed any accommodation or whether there was anything management needed to do, and Ms. Shallow replied that the grievor informed her that she was not requesting any accommodation and that she was managing with rest and medication. He testified that he did not know whether any of the other signatories on the termination were made aware about the grievor’s history of depression. [34] Mr. Dean agreed with union counsel that in assessing work the same standards should be applied to all probationary EAs. He testified that he was aware that the grievor was directed by Ms. Shallow not to work any extra time without approval, but was not aware that a similar direction was not issued to the other probationary EAs. He testified, however, that generally probationary employees are told to not work extra because management has to assess the employees’ ability complete assigned work during regular work hours. Asked whether he agreed that those EAs who are allowed to work extra - 16 - time have a much better chance of completing their work in a timely manner, he replied, “Maybe in the short run. But we have the Employment Standards Act requiring breaks. Under health and safety we have to ensure they don’t burn themselves out. That’s the idea”. When pointed out that Ms. Shallow herself regularly worked extra time, Mr. Dean replied that as a manager Ms. Shallow is given more flexibility because “We have more faith that she would do things appropriately than a probationary employee”. UNION EVIDENCE [35] Dr. Meena Sharma has been the grievor’s family physician since 2006. She testified that she first saw the grievor on February 3, 2006 when she was treated for depression. She testified that the grievor came to her with a history of depression from her teen years. She complained of being tearful, low energy and feeling tired all the time, sleeping a lot and she had some suicidal ideas. She referred the grievor to the psychology team at the Royal Ottawa Hospital. Since then the grievor has been receiving treatment with anti- depressant medication and psychotherapy. She testified that the grievor did not respond to medications easily and the medication had to be changed several times. From April 2009, the grievor was also receiving treatment from a psychiatrist. [36] Dr. Sharma testified that on March 25, 2010, the grievor met with her and advised that she was struggling with her depression. She told her that there was a lot of stress at work, that she felt she is mistreated at work, and told her that she was unable to work anymore. At the time she was taking two anti-depressants. Dr. Sharma testified that the grievor was referred again to a psychiatrist and a medical certificate was provided putting her off work for a month. Dr. Sharma was of the opinion that at the time the grievor was suffering from major depression, and that she did not come out of that episode of depression until January 2011. Dr. Sharma testified that the type of depression the grievor was suffering from is called dysthymia – a form of mild depression combined with episodes of major depression in between. Dr. Sharma was of the opinion that on March 25, 2010 the grievor was going through a major episode and was experiencing symptoms, including depressed mood, reduced interest, reduced pleasure, sleep disturbance, lack of energy, difficulty concentrating or holding a - 17 - conversation. Union counsel asked Dr. Sharma whether being overwhelmed at work could trigger such an episode of depression. She replied “absolutely”. [37] Under cross-examination, Dr. Sharma reiterated that since February 2006, she saw the grievor on and off for depression and had also made referrals to other medical professionals for treatment. Counsel reviewed with Dr. Sharma her clinical notes from appointments with the grievor. She agreed with counsel that she would record anything of significance in the notes. Dr. Sharma was cross-examined in detail, with counsel pointing out that some of her testimony was not reflected in her notes. Dr. Sharma’s response was that she did not record everything that was said during an appointment in her notes. She also agreed that there is no objective test to diagnose depression and that diagnosis is based on the patient’s subjective feelings. In re-direct, when asked whether in her opinion the grievor was suffering from depression on March 25, 2010, Dr. Sharma replied that from the first appointment in February 2006 she had been suffering from depression and under treatment. [38] Mr. Bill Howard had 26 years of service with the WSIB. Employed as a long-term case manager, he held the union office of Regional Director of Local 1750. He testified that following the introduction in September 2008 of the new service model in the Ottawa office, the EAs had great difficulty meeting the standard set under the new model. Mr. Howard testified that in his capacity as Regional Director he served on the Joint Workload Committee which was set up to address the workload concerns. He received numerous calls and e-mails from staff at the Ottawa office and other offices to the effect that the workload was too high, that they were unable to take their breaks and that they were unable to keep up with the engine that kept allocating files. As a result, in April 2009 a meeting took place between senior management and union officials. A decision was made that the committee would meet bi-weekly to discuss and address workload issues. He testified that these meetings occurred from April 2009 to 2011 when the employer decided that there would no longer be joint committee meetings. Reviewing statistical evidence, Mr. Howard identified three major causes of the workload problem. First, there was no coverage during an employee’s absence. As a result during the absence work continued to pile up. Second, during absences new - 18 - claims continued to be allocated, adding to the first problem. Third, staff leaving was not replaced. Mr. Howard testified that recently the first two concerns have improved. [39] Mr. Howard testified that working through lunch and breaks is “quite common”. He testified that as long as overtime pay is not claimed, no approval was required to work extra hours and that managers turn a blind eye. He testified that the union advised employees not to work through lunch and breaks and requested management to ensure that employees do not do that. Yet, the practice continues. Mr. Howard testified that it was not unusual for the WSIB to get complaints from employers and workers about decisions made by EAs. [40] In cross-examination, Mr. Howard conceded that the employer had taken a number of steps to address but insisted that despite that, workload continued to be a matter of contention. He acknowledged that in 2006/2007 the union carried out a campaign called “Take your break” and had discussions with management about the issue. He testified that the union requested that a direction be issued to all managers that they should ensure that employees do not work through lunch or breaks. He recalled that the CEO once issued a broadcast to employees asking employees to take their scheduled breaks. The union always gave the same advice. He testified that when the grievor approached him, he specifically told her that she should take her breaks and if she had difficulty coping with the workload she should speak to her manager. [41] The grievor testified that following the training period, in September 2009 she joined Ms. Shallow’s team and started to build up a caseload. She worked extra time as needed and generally was able to manage the caseload. She testified, however, that on December 1, 2009, she met with Ms. Shallow and told her that she had overheard a colleague say that he had no work and was bored, while she was “overwhelmed and struggling to keep up”, and that she “asked for assistance”. Since she felt she had a good relationship with Ms. Shallow, she disclosed to Ms. Shallow that she had a history of depression, that her husband’s grand-father had recently passed away and that around the same time her husband had been sent to the war-zone in Afghanistan as a member of the Canadian Armed Forces, and that she had been “struggling to manage my - 19 - depression”. Ms. Shallow said that the grievor’s engine could be closed for a day to allow her to catch up with her work. She also recommended that the grievor diet and exercise. The grievor testified that she was “a little shocked and upset” about Ms. Shallow’s suggestion that she diet and exercise, because she had her own strategies to deal with her depression. She took antidepressant medication daily, walked her dogs and relaxed after work. [42] The grievor testified that on January 5, 2010, Ms. Shallow advised her that she was not meeting some of the performance standards and that since her probation was expiring on February 9th, she wanted to work with her to help her. The grievor testified that Ms. Shallow did not inform her her short-comings were, other than mention two complaints she had received. Ms. Shallow told her that she would be meeting with her twice weekly, to help her. The grievor testified that after a few of these review meetings, Ms. Shallow recommended that the grievor’s probationary period be extended. She testified that she felt that was unnecessary since the feedback she had been receiving from the review meetings was to the effect that she was improving. She felt that the extension was done to enable Ms. Shallow to build a case to terminate her. She testified that during the 60 day extension period also, the feedback was that she was improving. According to the grievor, then Ms. Shallow started to raise “new problems” with her work, and the feedback “got worse and worse”. The grievor testified that in this period the work Ms. Shallow reviewed was limited to work performed between September and December 2009. Until mid-March Ms. Shallow did not review her current work. [43] The evidence is that following a review meeting on January 5, 2010, Ms. Shallow wrote a memorandum to the grievor. In it she wrote that as of that date the grievor was not meeting some performance objectives, and that to complete probation she must meet all performance objectives. In a similar memorandum following the review meeting held on January 8, 2010 Ms. Shallow referred to the meeting on December 1, 2009 and wrote in part: Then on January 4, 2010 I conducted an audit of your caseload choosing random cases throughout the fall of 2009 and into December 2009. It was apparent from this review that beginning in early December 2009 you were not managing your caseload as effective as you had been up to this point. - 20 - In addition to this, I want to refer you back to my initial memo of January 6, 2010 in which I outlined the difficulties you were having specifically with caseload management. Alana, you asked me to provide you with a list of cases in which I had received letters and calls concerning your customer service. I have discussed those cases with you. I want to clearly state that my actions are not solely due to calls and the letter I received. In my assessment of the overall situation, I felt that your current performance was not meeting expectations. By taking immediate action we could work together to improve this and you could return to providing a high level of customer service. [44] A memorandum following a review meeting on January 13, 2010 does not include any negative comments about the grievor’s work. To the contrary, Ms. Shallow wrote, “I am noticing an improvement in the timeliness of your decisions and I want to encourage you to continue your efforts”. In a memorandum following a review meeting on January 15, 2010, Ms. Shallow made positive comments about two telephones calls by the grievor which she had monitored, and wrote that the grievor was improving on her decision- making timeliness, that she was “using the case load management tool effectively” and “demonstrating that you can provide excellent customer service”. [45] In a memorandum dated January 26, 2010, Ms. Shallow concluded as follows OUTCOME Alana, you have agreed to the two month extension of your probationary period. Your probationary period now ends on April 9, 2010. The purpose of this extension is to allow you to demonstrate that you are able to meet and sustain the required improvements in your performance. Over the next ten weeks we will meet each Friday (defaulting to Thursday where there is a Statutory holiday) to review your progress in each of the areas identified in the plan. I will review 15 cases each week, conduct Service Excellence Calls and continue to monitor your telephone calls. The dates of these meetings are January 29, February 5, 12, 19, 26, March 5, 12, 19, 26, April 1, 2010. At that time, I will be in a better position to make my final recommendation regarding your continued employment with the Workplace Safety and Insurance Board. CLOSE - 21 - Alana, I am available to assist you as you participate in this process. It is my expectation that you will be able to meet all of the stated performance objectives and I encourage you to continue your efforts in both case management and customer service. During this period, it is important that you maintain your scheduled hours of work 8:30 am to 4:30 pm. This will allow me to assess your ability to meet the job expectations within the scheduled timeframe. [46] In a memorandum dated March 4, 2010, Ms. Shallow reviewed the five performance objectives which had been areas of concern. Her feedback was generally to the effect that the grievor’s performance was improving, but required further improvement. She concluded the memorandum as follows: Alana, up to now I have been reviewing cases in which decisions had made between November 2009 and January 2010. Going forward, I will be reviewing current cases and making additional Service Excellence Calls in a wider sample of your cases. This will allow me to assess whether you can sustain the changes that you have been demonstrating in your case load management skills. [47] The grievor testified that given the feedback that her performance was continuing to improve, she was devastated and totally discouraged when in the memorandum dated March 10, 2010 Ms. Shallow wrote “Given what I have observed to this point, I am not confident that you can sustain the required behaviours and performance expectations required of this position”. The grievor testified that after she spoke to Ms. Shallow on March 17, 2010 about her concern about discrimination, Ms. Shallow did not ask her anything about her depression. The grievor testified that at the time she gave the medical certificate dated March 25, 2010 to Ms. Bisson of Human Resources, she asked Ms. Bisson what impact her one month medical absence would have on her probation, and that Ms. Bisson assured that on her return to work the grievor could continue the reminder of the probationary period. [48] The grievor testified that following her termination on April 6, 2010 she continued with her medical treatment and counselling, and was presently medically fit to work. She wanted to return to the WSIB because she knows that, given a fair opportunity and training, she can do the job. She had spent her career making decisions with regard to claims by injured workers at insurance companies and the WSIB. She liked that work and had the skills to do it. - 22 - [49] In cross-examination, the grievor stated that while she could not recall the exact words she used at the December 1, 2009 meeting, she did recall telling Ms. Shallow that she has been suffering from depression for a number of years, that she was on medication, that she felt overwhelmed because she had quite a few files on her desk, and that she asked for assistance. She stated that she did not specify what assistance she needed nor did Ms. Shallow ask. Asked whether she had told anyone at the WSIB about her depression prior to December 1, 2009, the grievor said that it was unlikely because that was not something anyone would like to talk about. She agreed that she did not tell Ms. Shallow that she needed any specific accommodation with regard to her depression. [50] Employer counsel reviewed the memoranda from Ms. Shallow following review meetings and suggested that while she felt she was doing well, from January right up to March Ms. Shallow had noted some concerns with her work. The grievor agreed, but added that Ms. Shallow’s review was based solely on files she had done from September to December, and that Ms. Shallow had also noted improvement in many areas. She agreed that the concerns expressed by Ms. Shallow were legitimate, but commented that all of a sudden in March Ms. Shallow “began raising new problems”. [51] Counsel put to the grievor that complaints about her work performance caused Ms. Shallow to audit her past work and that she found deficiencies in those files, and suggested that it was reasonable for a manager to do that. The grievor agreed. When counsel suggested that Ms. Shallow’s concern about the grievor’s demeanor was legitimate, the grievor replied that Ms. Shallow did not give her any specifics about what she had done wrong and had merely said that a colleague had told her something. She said that without specifics she was not in a position to agree or disagree with the allegation. [52] Counsel suggested that Ms. Shallow did not undertake the audit of the grievor’s work because of the disclosure of her mental health history, but because of the complaints, although the timing coincided. The grievor replied that she did not believe it was coincidence. She said, “I was performing fine. Then I had two complaints and all of a - 23 - sudden I was not performing no matter how I tried and worked hard. Why was I not allowed to work extra when everyone else was.” SUBMISSIONS AND DECISION [53] The union submitted that the employer violated article 3.03 by failing to provide “regular performance feedback” to the grievor. The essence of its argument was that while the grievor was on probation and working on Ms. Shallow’s team from September 2009, no short-comings in her work were brought to her attention until December. The Board is satisfied that the employer provided a reasonable explanation for that. The evidence is that it was the complaints received in November and December that caused Ms. Shallow to audit the grievor’s past work, and that it was only during the audit that the deficiencies in her work came to light. The evidence is that the employer provided the grievor feedback to the extent of its knowledge at the time. Therefore that allegation by the union is unsubstantiated. [54] The union’s allegation of bad faith stems from an allegation of direct discrimination because of the grievor’s mental health issues. The union’s position is that as soon as the grievor disclosed her history of depression on December 1, 2009, Ms. Shallow set about building a case to terminate the grievor’s employment by finding performance deficiencies. The only objective evidence that can possibly support that position is the fact that Ms. Shallow started to audit the grievor’s past work around the same time of the grievor’s disclosure of depression. However, the evidence indicates that despite the coincidence in timing, the audit was prompted by the receipt of complaints about her work. Despite the grievor’s belief that it was no coincidence, the evidence falls far short of establishing on a balance of probabilities any ill-will or malice or that Ms. Shallow acted out of an improper motive. Therefore, the allegation of bad faith is not substantiated. [55] That leaves for consideration the union’s allegation that the grievor’s termination was arbitrary and discriminatory. The union acknowledged that under article 12.08(a) the employer had a broad discretion to judge and assess the ability and suitability of an employee during the probationary period. However, it was submitted that the - 24 - assessment must be done in a fair and non-discriminatory manner. If that is not done the employer decision is reviewable under article 12.08(a). [56] In a proceeding between these same parties in Re Devera, 2007-0352 (Briggs), the Board examined the principles that govern the review of the employer`s assessment of the suitability of a probationary employee. At pp. 27-28 the Board wrote as follows: 144 Before turning to the facts at hand, it is useful to note that arbitrators have tended to apply a more limited and deferential standard of review in cases involving the termination of probationary employees. It has often been noted by Boards of Arbitration that there is an arbitral reluctance to interfere with managerial assessments of a probationary employee’s suitability, so long as the assessment was fair and relevant to the employment relationship. Having said that, it is trite law that an employer cannot release a probationary employee for reasons that are arbitrary, discriminatory or in bad faith. 145 Boards of Arbitration have generally accepted that employers have a broad discretion to assess and determine suitability of new employees. As noted by Arbitrator McPhillips in Re Canadian Forest products (supra) at page 411: The concept of ‘unsuitability’ is more comprehensive than what is ordinarily considered by the phrase “just and proper cause” as applied to seniority-rated employees. For example, the suitability of a probationer would include his character, compatibility with fellow employees, potentiality for advancement within the company and so forth, which are not ordinarily supportive of a discharge of a seniority-rated employee. On the other hand, more common grounds for discipline such as insubordination, theft, absenteeism, or sabotage of company property would also seem to come within the rubric of the idea of “unsuitability”. 146 The probationary period is the opportunity for an employer to evaluate and assess a newly hired employee. An employer is entitled to make a bona fide determination as to whether the probationary employee is suited to its workplace. The standards expected of a new employee should be reasonable and made known to the employee. In the event the Employer is of the view that the probationary employee is falling short of expectations, those concerns and criticisms should be made known to allow for improvement. 147 The union contended that the Employer acted arbitrarily because it failed to meet its Collective Agreement obligations to train, supervise and provide feedback to the grievor. - 25 - 148 Many Boards of Arbitration have been asked to consider the matter of arbitrariness as it applies to the termination of probationary employees. In Re Marycrest (supra), Arbitrator Starkman reviewed the jurisprudence. At page 10 he noted comments of Arbitrator M. Picher in Re Board of Education of Scarborough and Ontario Secondary School Teachers’ Federation District 16, (1980) 26 L.A.C. (2nd ) 160: Was the Board arbitrary in its discharge of Mr. Woznica? The term “arbitrary” has been considered and interpreted in a number of cases by the Courts. It is generally accepted to mean “capricious”, “without reasonable cause” and “without reason”. It is not necessary for this board to exhaustively canvas the possible meanings of arbitrariness as that term relates to the duty of an employer not to discharge a probationary employee except for just cause. For the purposes of this award we accept that it means, at a minimum, that in considering the discharge of a probationary employee an employer must not demonstrate an attitude of not caring or of failing to turn his mind to the merits of the issue. 149 I agree with those comments. An employer cannot discharge probationary employees “on a whim” or in a perfunctory fashion. Consideration must be given to relevant and applicable factors. 150 I also agree with Arbitrator McPhillips in Re Canadian Forest Products (supra) that “the term ‘arbitrary’ connotes a standard of reasonableness in the sense that it must be established the employee was reasonably evaluated based on the facts of the situation” and that “there is a positive obligation on the employer to assess suitability in a fair manner; which would include communicating any standards and giving the employee a fair opportunity to meet them.” It is with these principles in mind that I consider the facts at hand. The Board in the instant matter agrees with those principles and must therefore apply them in determining whether the termination of the grievor`s employment was a proper exercise of the employer`s discretion under article 12.08(a). [57] In Re Devera (supra) at para. 144, the Board recognized that according to arbitral jurisprudence, an arbitrator should be reluctant to interfere with the employer’s assessment of suitability “so long as the assessment was fair”. That observation in my view does not stand as authority to the effect that this Board can carry out its own assessment of suitability and substitute its view to that of the employer’s, if it concludes - 26 - that the employer’s assessment was unfair. In Re IKO Industries Ltd. (2000), 88 L.A.C. (4th) 348 (Starkman), the collective agreement only required that the employer assessment be not arbitrary or in bad faith. At p. 357, the arbitrator wrote: The words arbitrary, discriminatory, bad faith, unfair and unreasonable have been used by arbitrators and Courts for a considerable number of years to discuss the exercise of managerial discretion and particularly as it relates to the discharge of probationary employees. The parties to this collective agreement chose to give management a broad discretion in its review of the suitability of probationary employees, and to restrict the review of that discretion in the grievance and arbitration procedure to instances where the Union could demonstrate that the Employer acted arbitrarily or in bad faith. To accept the Union’s submission that the Employer acted arbitrarily or in bad faith because it failed to advise the grievor that he should work more quickly would have the effect of reading the words “unfair” or “unreasonable” into article 8.03B) of the collective agreement. It would also have the effect of elevating the standard of review of the Employer’s actions from one based on arbitrariness or bad faith to one more analogous to the just cause standard with its requirements for warnings and other forms of progressive discipline which apply to seniority employees. This is not what the parties bargained for. At p. 358 he went on to observe: Such a conclusion should only be reached if there is some indication that the Employer drew its conclusions about the suitability of the grievor for an improper motive or based on totally unreliable evidence. Such is not the case in this instance where there was evidence from which the Employer could conclude that the grievor was unsuitable for long-term employment. This latter observation is consistent with the observation by arbitrator M. Picher in Re Board of Education of Scarborough, cited by Vice-Chair Briggs in Re Devera (supra), who held that “arbitrary” “means, at a minimum, that in considering the discharge of a probationary employee an employer must not demonstrate an attitude of not caring or of failing to turn its mind to the merits of the issue”. [58] Based on the grievor’s evidence and more significantly the evidence of Dr. Sharma, the Board has no difficulty concluding that at least from February 2006 the grievor has been - 27 - afflicted with dysthymia, a form of mild depression combined with episodes of major depression in between, and that she had been under treatment continuously. Dr. Sharma’s evidence is uncontradicted that when the grievor visited her on March 25, 2010 the grievor was going through an episode of major depression, that symptoms of a major depression included depressed mood, reduced interest, lack of energy, and difficulty concentrating, and that the grievor was experiencing all of those symptoms at the time. [59] Employer counsel submitted that the grievor had not provided any objective medical evidence substantiating that she had s mental health disability until March 25, 2010 and further that she had not sought specific accommodation with regard to her disability. Therefore, the employer would not have had reason to believe that the grievor had a disability at the time the decision to terminate was made on March 12th. Thus, submitted counsel, the allegation that the grievor’s disability was a reason for the termination cannot be accepted. Moreover, the employer had no obligation to accommodate the grievor until her disability was medically substantiated. Counsel pointed out that the grievor had conceded that the deficiencies in her work raised by Ms. Shallow were legitimate. Therefore, the Board was urged to find that the decision was not tainted by any discriminatory reasons. The Board has already determined in this decision that the union’s allegation that the grievor was terminated because of her disability is not substantiated. That aspect of the grievance has been dismissed. The Board is now concerned with the union’s allegation that the termination was arbitrary. That requires an examination of the assessment of the grievor’s suitability for long-term employment undertaken by the employer. [60] In this regard some of the above noted principles arbitrators have applied in deciding whether employer assessments were arbitrary come into play. Thus, Vice-Chair Briggs in Re Devera (supra) observed that “Consideration must be given to relevant and applicable factors”. She further quoted with approval the observation by arbitrator McPhillips in Re Canadian Forest Products to the effect that “the term ‘arbitrary’ connotes a standard of reasonableness in the sense that it must be established the employee was reasonably evaluated based on the facts of the situation.” In Re IKO - 28 - Industries Ltd. (supra) arbitrator Starkman held that an employer’s assessment of unsuitability, even if found to be unfair or unreasonable, would not be “arbitrary”, unless the employer’s assessment of unsuitability was “based on totally unreliable evidence”. [61] Applying these principles to the evidence before me, I conclude that the employer’s decision to terminate the grievor’s employment was arbitrary. The Board agrees that based on the audit of the grievor’s work Ms. Shallow undertook, there were deficiencies in the grievor’s work, and that Ms. Shallow’s concerns about those deficiencies were legitimate. However, that review and the conclusion drawn therefrom is not a true reflection of the grievor’s suitability for two reasons. First, the evidence is that throughout the period of the audit, the period when the employer received complaints about the grievor’s work from a company and two injured workers, and the period when Ms. Shallow observed the grievor exhibiting negativity and frustration about her work, the grievor was struggling with her depression following two traumatic events in her life. It may well be that the grievor had not provided sufficient objective medical evidence to demonstrate to the employer that she was handicapped within the legal meaning of that term and that a duty to accommodate had not arisen as of the date the termination. That issue need not be determined here since this is not a grievance alleging failure to accommodate a disability. The issue presently under consideration is whether the employer’s assessment of the grievor’s suitability and the decision to terminate were arbitrary. While Ms. Shallow did review the grievor’s work and found legitimate concerns, she completely failed to consider the possibility that the grievor’s depression may have affected her ability to perform her duties. The grievor had disclosed on December 1, 2009 that she suffered from depression, that she had a long history of depression, that she had recently experienced two stressful events in her personal life in late November and that she was feeling overwhelmed with her work . The evidence is that it was during this same period that the grievor’s performance began to deteriorate. Ms. Shallow herself recognized this when she wrote on January 8, 2010 that it was apparent from her review of the grievor’s work from the fall of 2009 “that beginning in early December 2009 you were not managing your caseload as efficient as you had up to this point”. In other words, on December 1, 2009, Ms. Shallow was made aware that the grievor had a long history of depression, that she was taking medication, that she had - 29 - recently experienced two traumatic events in her personal life and that she was feeling overwhelmed at work. Ms. Shallow had herself noticed that beginning in December 2009, the grievor’s work performance had taken a turn for the worse. Ms. Shallow chose to completely ignore that information merely because she inferred or had a sense that the grievor did not wish to discuss her depression any further and because the grievor did not explicitly seek specific accommodation for her depression. In the circumstances, Ms. Shallow’s failure to consider that fundamental information she had was arbitrary. The conclusion to terminate without considering that information was also arbitrary. [62] Additionally, the evidence is that until March 4, 2010, except one file, the only work audited by Ms. Shallow was work performed by the grievor from September and through the fall of 2009. The evidence is that deficiency in her work was brought to the attention of the grievor for the first time in January 2010. The evidence is also that through January and February, with coaching and mentoring by Ms. Shallow, the grievor showed improvement in many of the areas of concern. As noted, in answer to a direct question as to what the short-comings were as of February 18, 2010, Ms. Shallow’s reply was that the grievor still needed improvement in letter writing. In her memorandum dated March 4, 2010 (see para. 55 supra), Ms. Shallow advised, that “going forward” she would be reviewing the grievor’s current cases, which she said “would allow me to assess whether you can sustain the changes that you have been demonstrating in your caseload management skills”. Yet, just over a week later the decision was made to terminate the grievor’s employment. This, the Board finds, would not have allowed the grievor to show that she could sustain the improvements she had demonstrated or for Ms. Shallow to make an assessment in that regard. The employer thus has not met the requirement as set out in Re Canadian Forest products (supra), that “there is a positive obligation on the employer to assess suitability in a fair manner, which would include … giving the employee a fair opportunity to meet them”. To the contrary the decision was made in a perfunctory manner. [63] Moreover, the evidence is that following Ms. Shallow’s audit and her conclusion that the grievor was not meeting some of the standards, on January 15, 2010 the employer sought - 30 - and obtained the union’s agreement to extend the grievor’s probationary period by 60 days. The stated purpose was to allow Ms. Shallow to coach and mentor the grievor in that extended period and thereby assist the grievor to meet the standards. However, the evidence is that as early as mid-February, within days of the extension period, Ms. Bisson was preparing the documentation to terminate the grievor. In addition, despite the fact that on March 12, 2010, the decision was made to terminate, on March 18 Ms. Shallow explicitly and gratuitously represented to the grievor in an e-mail that the decision to terminate had not yet been made. Ms. Shallow testified that right up until April 6, 2010, she continued to coach and mentor the grievor. The Board finds that evidence to be not credible. Employer counsel explicitly represented in his opening statement that the decision to terminate was made on March 12th and each of the employer’s two witnesses agreed with that. The Board is convinced that at least the effective decision to terminate was made on March 12, 2010 and that obtaining of the signatures of the others was a mere formality. There is no evidence that any of those signatories made any independent assessment or decision with regard to the grievor. The only signatory to testify, other than Ms. Shallow, was Mr. Dean. His evidence was clear that he did not personally see any of the grievor’s work and that he signed off on the basis of Ms. Shallow’s recommendation. Despite Ms. Shallow’s insistence that her representation on March 18th was not misleading to the grievor, the Board finds that she was misleading not only the grievor but also the union, which had agreed to an extension of the grievor’s probationary period in good faith, believing that the grievor would get the benefit of her manager’s coaching and assistance through the extension period to address any remaining areas of deficiency. The evidence indicates that unknown to the grievor and the union, within mere days of the extension, action was underway to terminate the grievor. In the circumstances, Ms. Shallow clearly misled both the union and the grievor. The Board is also satisfied that no meaningful coaching or mentoring could have occurred after March 12, 2010, because by then a decision had been made to terminate the grievor’s employment. Therefore, the grievor was deceived into believing in the period post March 12, 2010, that she was still being coached and being assessed and that she may be able to demonstrate improvement and complete her probation successfully. This misrepresentation and deception contributes to the arbitrariness of the employer`s decision to terminate itself. - 31 - [64] The Board is convinced that even if each of the several areas of unacceptable employer conduct reviewed does not justify a finding of arbitrariness on its own, the cumulative effect of such conduct leads the Board to conclude that the decision to terminate the grievor’s employment was arbitrary. [65] It is not disputed that, the grievor was the only probationary employee in the office to receive a direction that she was not to perform any work outside regular work hours or during scheduled breaks or lunch without prior approval. The evidence is that the employer, as well as the union, had encouraged and even urged all employees to not work extra time. However, only the grievor received a management direction. This prohibition was issued mere days after Ms. Shallow had commended the grievor for “working extra hours each day since our discussions began” and commenting that it demonstrated a commitment on the grievor’s part to improve in the areas discussed. Ms. Shallow could not explain that sudden change of position. The Board does not find that any of the three reasons Ms. Shallow offered for issuing the directive to be reasonable. Her own testimony was that while the grievor had mentioned physical problems in October 2009, she advised that they were short-term issues for which she was receiving medical treatment. Ms. Shallow also testified that she did not believe that those problems had any impact on the grievor’s ability to perform her duties. Yet, without ever inquiring from the grievor, Ms. Shallow assumed that in late January 2010 those problems still persisted. The grievor had complained to her that she was overwhelmed due to the volume of work. This was despite the fact that the grievor, like other EAs, was working extra time. It simply is baffling, if Ms. Shallow was concerned about the stress the grievor was experiencing as she claims, how she was being helpful by directing that the grievor perform the same volume of work in even a lesser amount of time. [66] Ms. Shallows’ third reason, that she was entitled to assess the grievor’s ability to complete her work within regular work hours, is not credible either. Under cross- examination she agreed that all probationary employees should be assessed by the same standards, but could not explain why the ability to complete work within regular work hours was not assessed for any employee other than the grievor. Mr. Dean’s concern - 32 - about compliance with employment standards and health and safety legislation is not credible either because that legislation applies to all employees, not the grievor only. The Board finds that this singling out of the grievor to be subjected to a more onerous standard constituted discrimination with the meaning of article 12.08(a). Article 23.01 defines discrimination as follows: This includes but is not limited to reasons of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed or religion, sex sexual orientation, age, marital status, same sex partnership, family status, record of offences, physical or mental disability, or any other reason as outlined in the Ontario Human Rights Code, as amended from time to time. (emphasis added) This definition means that for purposes of the collective agreement between these parties “discrimination” does not necessarily have to be based on a prohibited ground specified in the Human Rights Code. The singling out of one individual among equals for adverse treatment without any explanation is discriminatory for purposes of article 12.08(a). [67] For all of the foregoing reasons, the Board finds that the termination of the grievor’s employment was arbitrary and discriminatory. In the circumstances, having regard to article 12.08(a) the Board is not required to, and does not, defer to the employer’s decision. It finds that the termination was contrary to the collective agreement. [68] On the issue of remedy, the union’s primary position was that the Board should order that the employer appoint the grievor as a permanent employee, with compensation for all losses. The Board does not consider that to be an appropriate remedy in the circumstances of this case. The employer conduct that led to the finding of violation was its failure to appropriately assess the grievor’s suitability, taking into account relevant information within its possession, and its discriminatory treatment of the grievor by prohibiting her from working extra time. The Board is not in a position to conclude what the outcome might have been had the assessment been done appropriately. Therefore, the appropriate remedy is to provide the grievor with that opportunity to prove her suitability and ability, and provide the employer the opportunity make its assessment in accordance with the collective agreement. - 33 - [69] The Board was advised that as of the time of the hearing, the grievor was fit to return to work. In the circumstances the Board orders as follows: (a) The grievor shall provide to the employer medical certification that she is fit to resume work in the position she held. (b) Upon receipt of that certification, the employer shall reinstate the grievor in her position of bilingual EA for a probationary period of 90 days, not including absences. During this period the employer shall be entitled to assess the grievor’s ability and suitability for the position based on the performance during that period and to make a decision in accordance with its rights and obligations under the collective agreement and applicable laws. (c) The grievor’s entitlement to compensation depends on whether she suffered losses as a result of the employer’s violation. If, and only if, the grievor successfully completes her probationary period following the employer’s assessment pursuant to (b) above, the parties are directed to attempt to resolve any claims by the grievor for monetary compensation. If the parties are unable to resolve any remedial issues, either party may refer them for determination by the Board. [70] For clarity, subject to the orders made herein, nothing in this decision in anyway affects the rights the employer and the grievor otherwise have under the collective agreement. [71] The Board remains seized with jurisdiction with respect to any disputes relating to implementation of this decision, including specifically any issues that may remain unresolved under para(c) of the order. Dated at Toronto this 30th day of January 2013. Nimal Dissanayake, Vice-Chair