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HomeMy WebLinkAbout2007-0352.Devera.10-05-13 Decision Commission de Crown Employees Grievance règlement des griefs Settlement Board des employés de la Couronne Suite 600 Bureau 600 180 Dundas St. West 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tél. : (416) 326-1388 Fax (416) 326-1396 Téléc. : (416) 326-1396 GSB#2007-0352 UNION#06-72 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 (Devera) Union - and - The Crown in Right of Ontario (Workplace Safety and Insurance Board) Employer BEFOREVice-Chair Felicity D. Briggs FOR THE UNION Ian Thompson Canadian Union of Public Employees ? Local 1750 National Staff Representative FOR THE EMPLOYERGurjit Brar Workplace Safety and Insurance Board Counsel HEARINGApril 21, 22, 2008, July 8, 2008, September 17, 2008, November 4, 10, 2008, June 22, 29, 30, 2009 & July 29, 2009. - 2 - Decision - 3 - 3.03 Employers Obligation During Probation During the probationary period the Employer will provide training, supervision and regular performance feedback to the employee. 12.08 Dismissal (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 Employee(s) has been terminated in bad faith, arbitrarily or for reasons that are discriminatory or contrary to legislation. 13.01 When the Employer meets with an employee to advise of disciplinary action, the employee will be advised of the nature of the meeting and they have the right to Union representation. In the event of an employee?s impending discharge, the Union will be given advance notice of such action. Prior to and during the process of non-culpable progressive discipline for performance related issues, the Employer, Union and employee will meet to discuss possible alternative courses of action. 23.01 There will be no discrimination or harassment practiced. This includes but is not limited to reasons of race, ancestry, place of origin, citizenship, creed or religion, sex, sexual orientation, age, marital status, same sex partnership, family status, record of offences, physical or mental disability, - 4 - or any other reason as outlined in the Ontario Human Rights Code, as amended from time to time. Harassment is defined as engaging in a course of vexatious comments or conduct that the individual knows or ought reasonably to know to be unwelcome, objectionable or offensive. The behaviour may be on a one-time basis or series of incidents, however minor. Harassment of a sexual nature is unsolicited, one-sided and/or coercive. Both males and females may be victims of such action. - 5 - - 6 - - 7 - - 8 - - 9 - - 10 - - 11 - - 12 - - 13 - - 14 - - 15 - - 16 - - 17 - - 18 - ...Rosanna and I have had the opportunity to review and comment on your final evaluation from Learning and Development. As indicated in your final evaluation, we have concerns in certain areas of your performance as indicated by the Learning and Development Specialist and noted by us in our subsequent independent reviews. These concerns are in case management, caseload management (issue identification) and your analytical skill (specifically attention to detail). As indicated in your final evaluation, we are committed in assisting you through coaching, mentoring and providing you with tools to ensure that you are performing within expectations. ..... These ear the specific areas that we believe you need improvement: - 19 - ..... Joseph, Rosanna and I are here to assist you and we want to work with you to develop your skills to become a competent adjudicator. It is imperative that you take the appropriate action to improve your work and to maintain the improvement. It is only with proper application of all you have learned in training, that you will be successful in the adjudicator role and your employment at the WSIB. We do wish to help and if there is anything you can suggest that you feel will benefit you please let either Rosanna or I know. If you identify a training gap that we have not identified, please speak to us so we can arrange further training for you. We will meet again on Friday October 23, 2006 to discuss the claims that we thth to 13 and to reflect on your progress. have reviewed the week of Oct 10 However, we would be more than pleased to speak to you at any time if it will assist you. Joseph you have shown a commitment to improve and we will be looking for a sustainable and consistent improvement in the next few weeks. - 20 - - 21 - - 22 - - 23 - - 24 - - 25 - - 26 - - 27 - - 28 - - 29 - - 30 - - 31 - - 32 - - 33 - - 34 - - 35 - - 36 - - 37 - - 38 - - 39 - - 40 - - 41 - - 42 - - 43 - EMPLOYER SUBMISSIONS - 44 - - 45 - λͬò????1?¿¬Ú´»³·²¹¿²¼Ý¿²¿¼·¿² ˲·±²±ºÐ«¾´·½Û³°´±§»»­ôÔ±½¿´îîèð - 46 - - 47 - - 48 - UNION SUBMISSIONS - 49 - - 50 - - 51 - λӿ®§½®»­¬¿²¼ÝËÐÛôÔ±½¿´îîèð λݿ²¿¼·¿²Ú±®»­¬Ð®±¼«½¬­Ô¬¼ò ß²¼ÐòÐòÉòÝòôÔ±½¿´îëλޮ·¬·­¸ ݱ´«³¾·¿øÓ·²·­¬®§±ºÚ±®»­¬­¿²¼Î¿²¹»÷¿²¼ÞòÝòÙòÛòËò λλ¹·²¿ ?1??????Ø»¿´¬¸Î»¹·±² ¿²¼Ø»¿´¬¸Í½·»²½»­ß­­²ò±ºÍ¿­µ¿¬½¸»©¿² - 52 - REPLY SUBMISSIONS - 53 - DECISION [143] There are three issues for this Board to determine. The first is whether the termination of the grievor?s employment was contrary to the terms of the Collective Agreement. The second issue is whether the grievor was the - 54 - victim of discrimination because of his age. Finally, was Article 13.01 violated because the Employer failed to advise the grievor of his right to Union representation. [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 Re Canadian Forest Products by Arbitrator McPhillips in (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 - 55 - 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 feed back to the grievor. [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 Re Board of page 10 he noted comments of Arbitrator M. Picher in Education of Scarborough and Ontario Secondary School Teachers? Federation District 16, (1980), 26 L.A.C. (2d) 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 canvass 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. Re Canadian Forest Products [150] I also agree with Arbitrator McPhillips in (supra) that ?the term ?arbitrary? connotes a standard of reasonableness in the sense that it must be established the employee was reasonably evaluated - 56 - 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. [151] Turning now to the issue of whether the Employer met its obligations under Article 3.03 to ?provide training, supervision and regular feedback? to the grievor. The Collective Agreement provides for a probationary period of nine months. The grievor was employed and assessed for more than eight months. The evidence revealed that the training program and the period following that formal training were structured in a fashion that made clear the Employer?s standards and expectations. Trainees, including the grievor, were classroom taught, tested and continually assessed as they attempted to apply the knowledge they have been given to actual case files. There was a high level of teacher and manager involvement. [152] There was no real dispute between the parties that an adequate training program was in place. However, the Union asserted that in this instance, for a variety of reasons the grievor received inadequate training, supervision and regular feedback. [153] With respect, I must disagree. I am of the view that the Employer met its obligations under Article 3.03. A review of the evidence clearly reveals that the grievor received sufficient training, supervision and regular feedback. Unfortunately, Mr. Devera was not able to perform the duties and - 57 - responsibilities of a Claims Adjudicator. He fell short of the Employer?s reasonable expectations and was therefore not suitable for the position. [154] It is apparent that during his probationary period, the grievor?s performance was somewhat inconsistent. At times he appeared able to identify many of the issues involved in his files and he managed his caseload to varying degrees although virtually never to the targeted level. It is not particularly surprising that a probationary employee learning to become a CA would have varying levels of performance. Indeed it makes sense that as time passed the grievor would be assigned files that had an increasing number of issues as well as more complicated fact situations. Accordingly, his ability to handle his caseload would very possibly vary. However, I do not find this to be an indication of an inconsistent teaching or supervising. Accordingly, I find nothing sinister from the fact that some evaluations were more positive than others. Further, while different teachers and managers might have viewed the grievor?s performance somewhat differently, I am of the view that this fact does not lead me to find that Article 3.03 was violated as asserted by the Union. [155] A thorough review of the Bi-Weekly Rollups indicates that while some weeks were better than others, the grievor rarely met the all aspects of the Employer?s expectations. He had files behind in payment almost every week and many files older than twenty-eight days. As noted above, the number of files that he managed was virtually always behind the targeted or expected number. Indeed, there were weeks when his actual caseload size was approximately half of what was expected. The grievor also had an - 58 - increasing worklist that would suggest that he was either unwilling or unable to perform the very work he was expected to do. [156] I accept that there were times when the grievor may have been performing at a level that did not cause alarm with his teachers. However, there can be no doubt that he did not sustain a sufficient level of performance. I am of the view that this failure was not the fault of the Employer. [157] In accordance with Article 3.03 the Employer is to provide training, supervision and regular feedback. This Board received documents and evidence that substantiate that Employer met each aspect those obligations. Simply put, he was trained, he was supervised and he received extensive feedback. He was given the tools needed to do the job and he was continually assessed and notified of the results of the Employer?s evaluation. [158] Given all of the evidence I cannot find that the Employer?s decision to terminate the grievor was perfunctory or capricious. [159] The grievor?s lack of insight regarding his performance was disturbing. His evidence was that when he graduated from the training program he felt he was ?on a par? with his classmates and that there were no ?huge concerns?. It is difficult to reconcile that comment with the evidence that he was below the class average on every test given and his own testimony that he knew before he graduated that his manager was sufficiently concerned about his work and intended to give him a PIP. At one point in his evidence, Mr. Devera stated that well into October he still thought his performance was acceptable. Yet he testified that he had heard ?rumours? that if you are given - 59 - a PIP, termination of employment is a likely outcome and so he was worried about his continued employment. Again, those comments seem incompatible. More disconcerting was the fact that when confronted during his cross examination with the considerable documentary evidence that made clear he struggled with his cases and caseload management, Mr. Devera would not acknowledge that his work was wanting. [160] Instead, the grievor blamed other circumstances for his failing. The lack of a peer mentor, multiple trainers and managers, various caseload management tools and lack of access to policy manuals were but a few of the reasons that the grievor proffered in his effort to prove the Employer was the cause of his probationary period was unsuccessful. [161] I disagree with the grievor?s view of these circumstances and in my view, the evidence did not substantiate the grievor?s assertions. I will address each of these complaints briefly. While the grievor had a peer mentor for only a short period, I accept the evidence that he rarely spoke to his mentor. Further, the fact that a manager wanted to mentor a struggling probationary employee and made every effort to do so can hardly be seen to be an Employer failure. I heard evidence from both Ms. Muia and Ms. Davis that they consistently offered to discuss any matter with the grievor at any time. Further, his various evaluations revealed he was told he could ask whatever questions he needed. I do not think that having a manager assigned as a mentor was harmful to the grievor. Further, such an assignment does not constitute a violation of Collective Agreement. - 60 - [162] It is true that the grievor was assigned more than one teacher and more than manager during this time. He would have this Board find that this circumstance and the facts that unfolded as a result, rendered his probationary period unfair and inadequate. Again, I think not. Assignment changes are an operational reality. There was no evidence to substantiate that the Employer lost sight of its obligations to train and supervise the grievor with those managerial changes. Indeed, the evidence was to the contrary. There was an overlap of teachers and managers to facilitate the handing over of assignments and there was discussion between the various teachers and managers to ensure continuity. It might have been ideal to have one teacher and one manager throughout the entire period of the grievor?s probationary period. I am not convinced of this. However in any event, the fact the Employer assigned more than one teacher and more than one manager is not determinative. - 61 - - 62 - λһ´­±²ªòÔ¿µ»¸»¿¼Ë²·ª»®­·¬§ - 63 - - 64 -