) ) WORKPLACE SAFETY v. INSURANCE, 2013 ONSC 4292

CITATION : Workplace Safety and Insurance Board v. Canadian Union of Public Employees, Local 1750, 2013 ONSC 4292 DIVISIONAL COURT FILE NO.: 91/13 DATE: 20130620 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT MOLLOY, MURRAY AND HARVISON YOUNG JJ. BETWEEN: ) ) WORKPLACE SAFETY AND INSURANCE BOARD Applicant – and – CANADIAN UNION OF PUBLIC EMPLOYEES – LOCAL 1750 Respondent )) )) )) )) ))) Frank Cesario and Elisha C. Jamieson , for the Applicant James K.

McDonald , for the Respondent ) ) ) HEARD at Toronto: June 20, 2013 MOLLOY J. (ORALLY) [ 1 ] The applicant, Workplace and Safety Insurance Board (“WSIB”), seeks judicial review of the arbitration decision of the Grievance Settlement Board (“the Board”) dated January 30, 2013, reinstating the grievor’s probationary employment for a period of 90 days. [ 2 ] The standard of review from the Board’s decision is reasonableness as established in Dunsmuir .

In particular, deference is required if the decision falls within a range of acceptable and rational outcomes or if there is a line of analysis within the reasons that could reasonably lead the Board from the evidence to the conclusion it reached. [ 3 ] The grievor began working for the WSIB as an eligibility co-ordinator on May 25, 2009 and was subject to a nine month probationary period. There were concerns about her job performance and on January 19, 2010 her probation period was extended for a further two months to end April 9, 2010. On April 6, her employment was terminated. [ 4 ]

Article 12.08(

a) of the collective agreement between the parties provides that the WSIB has “a broad discretion to judge and assess the ability and suitability of an employee during the probationary period.” [ 5 ] The parties’ collective agreement provides that dismissal of a probationary employee cannot be grieved unless it is “in bad faith, arbitrary or discriminatory.” [ 6 ] The onus is on the union and the grievor to establish that the decision to dismiss the grievor was arbitrary, discriminatory or made in bad faith. [ 7 ] The Board rejected the allegation of bad faith. That aspect of the decision is not challenged.

The Board noted that the allegation “stems from an allegation of direct discrimination because of the grievor’s mental health issues.” The Board concluded that Ms. Shallow, (the grievor’s supervisor) auditing the grievor’s work around the same time of the grievor’s “disclosure of depression” was a “coincidence in timing.” He rejected the grievor’s assertion that it was not a coincidence, and concluded “the evidence falls far short

of establishing…any ill-will or malice or that Ms. Shallow acted out of an improper motive.” [8] The Board also rejected the union’s submission that the WSIB failed to provide the grievor with regular performancefeedback. The Board found that there were deficiencies in the grievor’s work and that the concerns of her supervisor, Ms. Shallow,about those deficiencies were legitimate. [9] However, the Board found that the WSIB’s decision to terminate the grievor was both arbitrary and discriminatory.

We areof the view that both of those findings are unreasonable. [10] With respect to the finding of arbitrariness, the Board correctly identified what the word “arbitrary” meant in this context. Headopted the reasoning from well established precedent that “arbitrary” meant “capricious”, “without cause” and “without reason”: seepara. 56 of the Reasons. He noted (at para. 57) that the issue was not whether the Board considered the employer’s decision to be“unfair” or “unreasonable”.

He also adopted the observation of Arbitrator Picher from Re Board of Education of Scarborough that“arbitrary” means, “at a minimum, that in considering the discharge of a probationary employee an employer must not demonstrate anattitude of not caring or of failing to turn its mind to the merits of the issues.” [11] Likewise, he relied upon Re IKO Industries Ltd. (2000), (ON LA), 88 L.A.C. (4th) 348 (Starkman)quoting the following excerpts at para. 57 of the reasons: The words arbitrary, discriminatory, bad faith, unfair and unreasonable have been used by arbitrators and Courts for a considerablenumber of years to discuss the exercise of managerial discretion and particularly as it relates to the discharge of probationaryemployees.

The parties to this collective agreement chose to give management a broad discretion in its review of the suitability ofprobationary employees, and to restrict the review of that discretion in the grievance and arbitration procedure to instances where theUnion 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 shouldwork more quickly would have the effect of reading the words “unfair” or “unreasonable” in to

article 8.03(

B) of the collectiveagreement. It would also have the effect of elevating the standard of review of the Employer’s actions from one based on arbitrariness orbad faith to one more analogous to the just cause standard with its requirements for warnings and other forms of progressive disciplinewhich apply to seniority employees. This is not what the parties bargained for. Such a conclusion should only be reached if there is some indication that the Employer drew its conclusions about the suitability of thegrievor for an improper motive or based on totally unreliable evidence.

Such is not the case in this instance where there was evidencefrom which the Employer could conclude that the grievor was unsuitable for long-term employment. [12] The WSIB did not draw conclusions about the grievor’s suitability “for an improper motive.” The Board clearly concluded“the evidence falls far short of establishing…any ill-will or malice or that Ms. Shallow acted out of an improper motive.” The WSIBalso did not base its decision on “totally unreliability evidence.” Ms.

Shallow repeatedly reviewed the grievor’s performance andrepeatedly found that she did not meet the majority of those performance standards. The Board and the grievor acknowledged thegrievor’s performance deficiencies and that Ms.

Shallow’s concerns about those performance deficiencies were “legitimate” (see paras.50 and 61 of the Decision). [13] Similarly, there is no way to reasonably conclude that the WSIB “demonstrated an attitude of not caring or failing to turn itsmind to the merits of the issue.” The WSIB gave the grievor every opportunity to demonstrate her ability to perform the requirements ofthe job up to standards. Over a period of many months throughout the probation period, Ms. Shallow explained the performanceexpectations and objectives and how the grievor failed to meet them.

This was especially evident in the key areas of client service andcommunications but it was also evident in almost all performance areas. These were clear objectives that were repeatedlycommunicated, the grievor was simply unable to perform up to the WSIB’s standards. [14] Based on the record, the Board could not reasonably conclude that the decision to terminate was “arbitrary” in any sense ofthe word.

The reasons provided by the Board in support of his decision reveal that his reasoning process and outcome are unreasonable. [15] In his analysis on arbitrariness, the Board held that the employer’s review and decision-making were not a true reflection ofthe grievor’s suitability for three reasons: (

i) Ms. Shallow “completely failed to consider the possibility that the grievor’s depression may have affected her ability to performher duties.” This was based on the Board’s assessment that the grievor was “struggling with her depression” throughout the entire periodwhen there were performance issues. (ii) The Board concluded that, through January and February, “the grievor showed improvement in many of the areas of concern”and that the decision to terminate her employment “was made in a perfunctory manner” without giving her a fair opportunity to meetperformance objectives. (iii) The Board concluded that Ms.

Shallow “misled both the union and the grievor” in that “within mere days of the extension [of theprobationary period] action was underway to terminate the “grievor”, and that Ms. Shallow’s indication to the grievor on March 18 thatthe decision to terminate had not been made was “misleading”. [16] The Board was unreasonable in finding that the manner in which the WSIB did or did not deal with the grievor’s depressionwas a basis upon which it could be said her dismissal was arbitrary. The Board held elsewhere in his Reasons that the grievor was notdismissed because of her disability.

The Board also found at para. 61:

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 of the termination. That issue need not be determined here since this is not a grievance alleging failure to accommodate a disability. [ 17 ] The applicant submits that the Board misapprehended the evidence in concluding that the grievor was “struggling with depression” throughout the relevant period. That may be the case, but we do not need to decide that here.

The point is, that if the grievor was in fact “struggling” in this regard, it was not known to her employer and does not therefore render arbitrary the employer’s decision to terminate for longstanding poor job performance. [ 18 ] Further, the Board’s task was to determine “arbitrariness” which is not the same as “unreasonableness”.

The Board’s focus on whether the WSIB fairly considered what the Board found to be a relevant factor (i.e. the possibility of depression affecting the grievor’s performance) is effectively an application of a reasonableness standard, which is not consistent with the language of the collective agreement. [ 19 ] The Board’s finding that the decision to dismiss the grievor was “perfunctory” is completely at odds with all of the evidence and with the Board’s own findings of the repeated efforts of the employer to monitor and assist the grievor’s job performance. “Perfunctory” means “done superficially, only as a matter of routine; careless or cursory.” The employee’s conduct here was the very antithesis of perfunctory. [ 20 ] The applicant also submits that the Board misapprehended the evidence with respect to the extent to which the grievor’s job performance had improved.

We agree. The record demonstrates that the Board did fail to understand that evidence. However, even if there had been more improvement than the employer had noted, that does not make the employer’s decision arbitrary.

The Board may have found the employer’s decision to be unfair or unreasonable, but that is not the test, as he himself noted earlier in his Reasons. [ 21 ] Finally, the Board’s finding was unreasonable as to the employer misleading the grievor and the union about the probation period extension and misleading the grievor on March 18 that the decision to terminate had not yet been made. [ 22 ] The Board’s statement that “action was underway” to terminate the grievor’s employment “within mere days” of the grievor’s probationary period being extended is wrong. The Board relies on Ms.

Shallow’s email on March 8 stating that an HR colleague was preparing the termination approval paperwork “a few weeks ago”. Even if a “a few weeks” puts the date in mid-February, that is not “mere days” from January 15. But more fundamentally, it was clear that this paperwork was requested proactively in case the WSIB would “need to use it” in future. There was no basis in the record for the Board to conclude that Ms. Shallow obtained the probation extension while knowing that the grievor would be terminated. [ 23 ] Likewise, the finding that Ms.

Shallow made a misrepresentation in her March 18 memo to the grievor is unfair. Ms. Shallow noted in the memo that the decision about the grievor’s probationary status was not made and was not hers alone to make. Those statements were true. The final approval of the proposal to terminate was not given until March 29. The Board’s assessment that the approvals were a “formality” is contrary to the fact that the termination would not, and could not, proceed until fully approved. The Board focused on evidence from Ms. Shallow and Mr. Dean that the termination “decision” was made on March 12.

The recommendation to dismiss may have been made by Ms. Shallow on March 12 and she and Mr. Dean may have agreed in that result, but without final approval that “decision” had no practical effect. [ 24 ] In any event, as of March 18 the grievor was clearly not misled by the March 18 memo as she was under no misapprehension as to how her job performance was being viewed. As early as March 8, the grievor knew she was in serious difficulty. She herself indicated in her March 23 letter of complaint that at the March 8 meeting Ms.

Shallow told her that she was not likely to be retained past the probation period. [ 25 ] Thus, none of the factors relied upon by the Board, whether viewed separately or cumulatively support a finding that the employer’s decision in this case was arbitrary. The Board’s finding in this regard is unreasonable and cannot stand. [ 26 ] Finally, we are also of the view that the Board’s finding that the termination was discriminatory was also unreasonable. I have already dealt with some of those issues in respect of the role of depression in the Board’s analysis of arbitrariness, and will not repeat them here.

In addition, the Board was critical of the fact that the employer gave direction to the grievor that she was not to perform work outside the regular work hours or during scheduled breaks, given that other probationary employees were not subject to the same restrictions. There are two fundamental problems with that line of reasoning: (

i) The employer had valid reasons for giving that direction because of concerns about job performance. It was this grievor that was having difficulty. Identical treatment of individuals is not mandated when those individuals are having different performance issues. Indeed, identical treatment may well be unwarranted in that situation. (ii) In any event, it is the termination that is at issue here.

It is clear that the termination was not for a discriminatory reason. [ 27 ] Accordingly, the Board’s finding with respect to the termination being discriminatory is also unreasonable. [ 28 ] In the result, the Board’s decision is quashed. [ 29 ] I have endorsed on the Application Record, “This application is granted and the decision of the Board is quashed, for oral reasons given today. Costs to the applicant fixed at $5,000.00.”

MOLLOY J. MURRAY J. HARVISON YOUNG J. Date of Reasons for Judgment: June 20, 2013 Date of Release: June 24, 2013 CITATION : Workplace Safety and Insurance Board v. Canadian Union of Public Employees, Local 1750, 2013 ONSC 4292 DIVISIONAL COURT FILE NO.: 91/13 DATE: 20130620 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT MOLLOY, MURRAY AND HARVISON YOUNG JJ. BETWEEN: WORKPLACE SAFETY AND INSURANCE BOARD Applicant – and – CANADIAN UNION OF PUBLIC EMPLOYEES – LOCAL 1750 Respondent ORAL REASONS FOR JUDGMENT MOLLOY J. Date of Reasons for Judgment: June 20, 2013

Date of Release: June 24, 2013