GSB#2007-0353

UNION#07-18

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 (Allan)

Union

• and -

The Crown in Right of Ontario (Workplace Safety and Insurance Board)

Employer

BEFORE

Nimal Dissanayake

Vice-Chair

FOR THE UNION

Ian Thompson National Staff Representative Canadian Union of Public Employees

FOR THE EMPLOYER

Gurjit Brar Counsel Workplace Safety and Insurance Board

HEARING

September 14, 2007, January 21, September 2, November 27, 2008.

Decision

1The grievor, Mr. Phil Allan, is employed with the Workers Safety Insurance Board (“the WSIB”) as a return-to-work-mediator (RTWM). He has grieved that the employer violated article 16.06 of the collective agreement by denying his request for a leave of absence in order to accept an offer of a temporary assignment made by the Office of the Employer Advisor (“OEA”), in the position of Employer Specialist.

2Article 16.06 titled “General Unpaid Leave, reads:

An employee may be granted leave of absence without pay when they present a written request, in advance, providing reasonable cause. Such request is subject to approval by the Employer. Seniority will only accrue for the first sixty (60) working days of the leave.

3It is common ground that while article 16.06 grants the WSIB a broad discretion whether or not to approve a request for leave, that discretion is subject to review on certain limited grounds. The union took the position that the WSIB’s particular exercise of discretion on the grievor’s request was unreasonable. Counsel for the WSIB disagreed.

4I adopt as correct, the following description of this Board’s role in reviewing an employer’s exercise of discretion under provisions such as article 16.06:

An arbitration board, in subsequently assessing what the employer has done in reaching its decision, then plays a restricted role. It must decide whether the employer has acted reasonably and without discrimination and has turned its mind to the merits of the particular request. If satisfied that these criteria have been met, the board must deny the grievance, even if it disagrees with the result reached by the employer or if it might have reached a decision other than that reached by the employer. The board’s concern is the reasonableness of the decision, not its ‘correctness’ in the board’s view. Such an approach is the proper one to adopt in situations such as leave of absence cases, where the collective agreement gives the employer a broad discretion and where the board has less familiarity than has the employer with the needs of the work place. Unlike the disciplinary area, where employee interests in job security require active arbitral review, it is unwise for an arbitration board to second guess management in the structuring of the work-load. (Re Young, 220/79, (1979), 1979 CanLII 3955 (ON LA), 24 L.A.C. (2d) 145 (Swinton) at pp. 147-148).

5In Re Kuyntjes, 513/84 (Verity), the Board at p. 16, set out the appropriate approach when reviewing exercise of managerial discretion for the minimum standards to be met, as follows:

In cases involving the exercise of managerial discretion, Boards of Arbitration generally hesitate to substitute their view for that of the decision-maker, which is a recognition of the fact that Boards have less familiarity than does the Employer with the exigencies of the work place. However, Arbitrators must ensure that decisions are made within the confines of certain minimum standards of administrative justice. Those administrative law concepts relating to the proper exercise of discretion include the following considerations:

1. The decision must be made in good faith and without discrimination.

2. It must be a genuine exercise of discretionary power, as opposed to rigid policy adherence.

3. Consideration must be given to the merits of the individual application under review.

4. All relevant facts must be considered and conversely irrelevant consideration must be rejected.

6The WSIB takes the position that its decision was reasonable for two reasons. First, it is submitted that the grievor’s position as RTWM with the WSIB required him to be a neutral. The position at the OEA he wished to accept on a temporary assignment was directly in conflict, in that as Employer Specialist the grievor would be advocating on behalf of employers. Therefore, when the grievor returns to the WSIB as RTWM following six months as Employer Specialist at the OEA, the worker community, i.e. workers and their representatives, would entertain a reasonable apprehension that the grievor is biased in favour of employers. Secondly, the WSIB contends that approval of the request would have caused staffing and operational issues, resulting in service disruption.

7In considering the reasonableness of the WSIB’s exercise of discretion, regard must be had to its “Learning & Development Policy”. That policy includes the following:

The WSIB is committed to providing employees with skills enhancement and developmental opportunities, both within the organization and within other organizations. The temporary assignment of employees to jobs other than their permanent jobs provides opportunities for employees to gain experience and develop skills. Selection for temporary assignments are made in a fair, reasonable and transparent manner, taking into account the business needs of the WSIB as well as the development needs of employees.

8It is also uncontradicted that in practice, the WSIB has a history of supporting temporary assignments under this policy for both management staff and bargaining unit employees, in order to accept positions within the WSIB, and outside.

9The grievor testified that he applied for a full-time permanent position as Employer Specialist at the OEA, because he saw it as an opportunity to develop new skills. Following a selection process, he was declared the successful candidate. However, the OEA had a concern whether the grievor had advocacy skills to the required level. After some discussion, it was agreed that the grievor would perform in the position on the basis of a 6 month secondment, so that both the OEA and the grievor would be able to assess at the end of the secondment whether or not to continue in the position on a permanent basis. If either party was uncomfortable, the grievor would return to his RTWM position at the WSIB.

10Having secured the offer of the secondment, the grievor verbally spoke to his manager, Mr. Greg Hessian, Manager of Specialist & Advisory Services. He followed up with the following written request addressed to Mr. Hessian and HR Consultant, Ms. Anne Bisson:

As I noted, I have been offered a six month secondment with the Office of the Employer Advisor of the Ministry of Labour as a Bilingual Employer Specialist. There is no start date set yet, but they are looking to have me on board as soon as possible. Recognizing my current caseload and responsibilities, I wanted to bring this to your attention as soon as possible to put the wheels in motion so that everyone’s needs and interests can be met.

There is, apparently, an interorganizational agreement for such secondments. Most recently, a Claims Adjudicator from the Windsor Office, Stephanie Savoni, went to the OEA on a secondment.

There should be no direct costs to the SAS budget. While I would continue to be paid by the WSIB, the compensation costs would be paid by the OEA who would be invoiced for them on a monthly basis. Other benefits and pension would continue to accrue during that time as well.

If there is anything that I could do to assist you in this matter, please let me know.

Anne; could you please look into what the details are in terms of setting up such a secondment between the two organizations? I will also be making some enquiries and will share my findings with you.

11Mr. Hessian verbally advised that the leave of absence is denied, and at the grievor’s request, the decision was confirmed in writing as follows:

Further to your voice mail and email messages, I wish to confirm the recent decision regarding your request for a leave of absence to attend to a 6 month secondment opportunity with the Office of the Employer Advisor (OEA).

Further to our telephone conversation this week, I cannot approve your request for a leave of absence for this secondment opportunity at the OEA for the following reasons:

. The perception of bias from workers and the worker community considering the need for the RTW Mediator to be seen and act as a neutral third party.

. Considering you are the only incumbent in the RTW Mediator position in Ottawa, there are logistical issues both during the secondment period and upon your return, in order to avoid any (my emphasis)potential conflict of interest situations.

. The overall risk of poor stakeholders’ perception of the WSIB and the RTW Mediation program of not being impartial is too great to accept.

. The service disruption to the Ottawa office and its clients is too significant.

If you need to discuss this issue further with me, please let me know.

12The grievor approached Mr. Hessian’s superior, Ms. Susan Fuciarelli, Acting Director of Specialist and Advisory Services, and attempted to convince her unsuccessfully that the concerns about apprehension of bias and service disruption were unfounded. He then submitted a detailed written request for reconsideration to Ms. Fuciarelli. In that he did, inter alia, the following: Drew attention to the WSIB Leaning & Development Policy to the effect that “the WSIB is committed to providing employees with skills enhancement and developmental opportunities”; Referred to the existence of an inter-organizational agreement to provide for temporary assignments or secondments between various agencies within the Ministry; Referred to the past precedent relating to Ms. Savoni’s secondment as OEA Employer Specialist; Noted that in applying for the temporary position as Employer Specialist, he had used as references, one person from the Ottawa Office of Worker Advisor and one from the Ottawa OEA, neither of whom had raised any concern about bias; Offered to provide written testaments from persons within the worker community including representatives from the OWA, law firms that represent workers before the WSIB and representatives from numerous unions, to the effect that his secondment would not lead to any diminution of his capacity to be and to be seen to be independent; Noted that there were at least 3 named individuals at the Ottawa office, who had either had formal training or experience in mediation and had previously expressed interest in a temporary assignment as RTWM; Noted the file sharing arrangement with the Kingston RTWM and that in 2006 he had transferred approximately 35 files to Kingston; Noted that upon his return to the WSIB, he would recuse himself from any files with a potential conflict and that those files could be switched without difficulty to the Kingston RTWM; Noted that the possibility of files with potential conflict was very minimal since the vast majority of referrals he did as RTWM came from employers with over 100 employees, who would be outside the jurisdiction of the OEA. Ms. Fuciarelli’s brief response did not address any of the foregoing points raised by the grievor, but reiterated that due to her concern about conflict and service disruption, the secondment request could not be granted.

13The grievor next raised the matter with Mr. Steve Jackson, Vice-President/Human Resources and Chief Ethics Officer. Mr. Jackson responded as follows:

Having now read your note to me, I would assume that you will be having further discussions with Susan to gain a better understanding of her rationale. Having said this, whenever one is looking at a possible Conflict of Interest scenario, it is reasonable to think through a “Reasonable Person Test” as envisioned in the Code of Business Ethics handbook (page 6). In doing so and looking at the situation that presents itself, one needs to ask themselves, would a “reasonable person” conclude that a conflict of interest exists (real or perceived). On the matter at hand, your opinion on this matter differs from the decision that you’ve been provided with.

Phil, I don’t believe that this is about you as an individual or person. As you have shared previously, it may very well be that some external stakeholders would not see you as being in conflict in that they know your and your work habits etc.. However, it is equally possible that when someone looks at the 2 roles being discussed/performed that indeed they do arrive at the conclusion that a conflict exists. Again, this would be based on the roles, not the person or incumbent.

To answer your question, there does not need to be “any possibility” or an absolute, rather a “reasonable” expectation would be the threshold.

14The grievor wrote a detailed response in rebuttal, but it did not result in a reversal of Mr. Hessian’s decision.

15Ms. Fuciarelli also submitted the following Conflict of Interest statement to Mr. Jackson for his opinion in his capacity of Chief Ethics Officer:

CONFLICT OF INTEREST CATEGORY: Directorships or Other Employment

Phil Allan, RTW Mediator, notified his manager, who in turn has advised me of a request for a secondment with the Office of the Employer Advisor (OEA) for a position as an Employer Specialist. Both I and the Associate HR Business Partner feel that such a secondment would represent a conflict of interest with the duties inherent to be position occupied by the incumbent – that of a return to work mediator.

DESCRIPTION OF POTENTIAL CONFLICT:

Phil Allan occupies the only mediator position in the Ottawa office. He applied for an advertised position with the Office of the Employer Advisor. Although the position was posted as permanent, he has been offered the position on a secondment basis for six months and as such would maintain his employment with the WSIB. This has been confirmed through a conversation held on October 24^th between me and Heather Carmichael, Manager from the Office of the Employer Advisor. The OEA has a sight reservation about Mr. Allan’s skill set as he has not demonstrated the paralegal requirements necessary in the Employer Specialist position. As a result, Ms. Carmichael suggested that a secondment opportunity would be appropriate to afford Mr. Allan the security to return to the WSIB as a mediator, and for the OEA if he is unable to demonstrate the necessary skill set. I did outline my concerns regarding the potential for conflict with his duties as a mediator for the WSIB. Ms. Carmichael understands our concerns and indicated that if a secondment is not possible, she is prepared to offer Mr. Allan the Employer specialist position on a permanent basis, with the understanding that there will be a probation period involved. This would require Mr. Allan to resign his position at the WSIB.

At issue is the fact that as a WSIB mediator, Mr. Allan could quite likely find himself in a conflict of interest, working on the same cases while at the Office of the Employer Advisor as when he would eventually return. It would be necessary for him to declare a conflict of interest as a return to work mediator in any case that he had been involved in as an Employer Specialist while working at the OEA.

Furthermore, the potential to have the WSIB seen in a bad light increases, as there would be potential for representatives from the Office of the Worker Advisor to have dealt with Mr. Allan as a representative for the OEA and then six months down the road, as a mediator between an employer and a worker. He could potentially be seen as biased towards the employer in such cases despite his requirement to be a neutral and objective third party.

Although a similar secondment has recently been granted to an employee from the Windsor office, the circumstances differ in that the employee in question occupies an adjudicator position. As such, the employer has greater flexibility in returning this employee to a caseload where no direct conflict would occur. Involvement with cases in which she worked while at the Office of the Employer Advisor could be reassigned to other adjudicators. Such flexibility does not exist with the incumbent of the bilingual mediator position as this is the only position of its kind in the Ottawa District Office. Our department would be hard pressed logistically and financially to reassign claims requiring mediator services in which Mr. Allan acted as an employer representative while at the OEA.

For the above reasons, I am seeking your counsel in determining whether a conflict of interest exists in order to determine whether to allow or deny this secondment opportunity.

16Mr. Jackson replied to Ms. Fuciarelli as follows:

I have reviewed the COI Disclosure Statement referred to above and based on the information available, I believe that a COI would exist if Mr. Allan, Return to work Mediator, were to accept the temporary position with the Office of Employer Advisor (OEA).

It would appear from the submission content that based on the RTW Mediator job being a single incumbent position, accommodating Mr. Allan’s return to the WSIB would not be possible without significant disruption to the Ottawa office and its clients. It is based on this apparent inability accommodate Mr. Allan’s return to the WSIB that leads me to my conclusion of a COI existing.

I trust that this addresses your question?

17The grievor finally telephoned Mr. Joe Sgro, Vice-President, in an attempt to have the decision reconsidered, but had no success. He filed the instant grievance on March 29, 2007.

18The decision to deny the leave was made by Mr. Hessian. The subsequent interaction between the grievor and the other managers came about as a result of the grievor’s attempt to have Mr. Hessian’s decision reversed. Mr. Hessian testified that when he received the grievor’s request, he wanted to look at the benefit of the leave of absence to the grievor and its impact on the service delivery. He started “fact-finding”. When asked what he did, Mr. Hessian replied that he spoke to Ms. Bisson from Human Resources, and to Mr. Jeff Farwell, co-lead of the RTWM program, and had several discussions with Ms. Fuciarelli. Mr. Hessian testified that following these consultations the consensus was that the leave of absence could not be granted.

19In cross-examination, Mr. Hessian was asked what he did as part of his “fact-finding”, besides talking to the three individuals. He replied that he looked at the Conflict & Ethics Policy and other documents such as the Practice & Methodology, and the Law Society Guidelines on conflict of interest. He also received from Ms. Bisson, information about the process the grievor had gone through to obtain the offer of the secondment from the OEA.

20Mr. Hessian testified that following the fact-finding, his conclusion was that the leave could not be allowed. He explained that considering the duties the grievor would be performing as Employer Specialist at the OEA for 6 months, if he returned to the WSIB, “the resulting perception of bias could not be mitigated”. He elaborated that his whole focus was on the fact that a RTWM must be neutral. He testified, “He will be seen as representing employers in that job. Neutrality is a principle of mediation. So the perception of bias cannot be overcome. We looked at isolating those files he was involved in and giving him other work. However, the internal and external stakeholders’ perceptions will be too difficult to overcome. It leaves the WSIB at risk for appeals against the grievor’s decisions on the grounds of perception of bias, in my opinion”.

21Mr. Hessian stated that he would have had to post the grievor’s position for the duration of the leave of absence. That would involve obtaining approval for posting the 6 month vacancy, post for two weeks, carry out the job competitions and negotiate a release date for the successful candidate. Mr. Hessian was of the view that it could take at least 4 weeks, and possibly 8 weeks, to fill the position.

22Mr. Hessian testified that he considered the possibility of having the RTWM in Kingston pick up the grievor’s case load. He concluded that it was not workable because it would involve a 3 to 3½ hour drive. He also ruled out the option of bringing in a RTWM from somewhere else like Sudbury. That mediator would have to be scheduled in Ottawa, around his own caseload and schedule. That would disrupt that RTWM’s own caseload. Moreover, different mediators have unique styles. A new mediator, whether an appointee pursuant to a posting or filling in from another location, may not have “a connect” with the service delivery area. The types of referrals, the nature of the industries in Ottawa could be different. The mediator filling in may not be familiar with these. Therefore, if a mediator is brought in from another area, “it adds another level of complexity”.

23Mr. Hessian stated that during his decision-making process, he kept coming back to the issue of bias. He had particular concerns about adjudications by the grievor upon his return. He explained that if a worker did not get the desired decision, he/she could claim that the mediator had worked with the OEA, and was therefore biased. It could result in an appeal of the grievor’s decision, during which the credibility of the WSIB would be attacked. With regard to service disruption, Mr. Hessian testified that while the grievor’s position is posted and filled, and the new appointee brought up to speed, a backlog of work is inevitable.

24Under cross-examination, Mr. Hessian conceded that temporary assignments are common at the WSIB, and that if an employee competes successfully for a temporary position elsewhere, the management cannot prevent that employee from leaving. It can only negotiate a release date. He also agreed that in every such case, the WSIB has to go through the posting and backfilling process he had described.

25Mr. Hessian testified that he “got the impression” that the OEA wanted the grievor to start as soon as possible. He agreed that if his start date could have been delayed by two or three months, a lot of the logistical problems could have been mitigated. However, he did not make inquire whether the start date could be delayed. He testified that the grievor’s testimony that he transferred 35 files in 2006 to the Kingston RTWM seemed “a bit high”, but conceded that he had not verified that.

26Counsel put to Mr. Hessian, the grievor’s testimony that the Kingston RTWM travelled to Ottawa regularly, and historically did at least 20 Ottawa files yearly. He was asked why in those circumstances, she cannot be assigned any files the grievor recuses himself from following his return to the WSIB. Mr. Hessian replied that the Kingston RTWM did Ottawa files only if there was a valid reason. When asked whether it was not a “valid reason” if the grievor recuses himself from a file due to possibility of an apprehension of bias, Mr. Hessian replied, “yes, but it will add another reason”.

27Mr. Hessian was referred to the evidence that there were 3 bilingual RTWMs in Ontario, and that they cover off for each other as required. Mr. Hessian replied that theoretically that was so, but added that he was not aware of having to call in a RTWM from another area to cover off for a French language file. Mr. Hessian also agreed that if a RTWM in one area is over-burdened, and another RTWM has little work, the work is re-distributed.

28Mr. Hessian agreed that at the time the grievor won the RTWM position in 2001, there were at least 3 other applicants from the Ottawa office. He testified that he did not inquire whether any of them were interested in filling in for the grievor or whether they had met the threshold qualifications for RTWM. Under further cross-examination, Mr. Hessian agreed that there was no doubt that the grievor could have been replaced without the need to go external. However, he added that it was in the back of his mind that there may be difficulty getting the release for that employee. He said that he did not discuss with Ms. Fuciarelli whether the release can be expedited.

29Mr. Hessian agreed that the grievor had brought to his attention the existence of an inter-organizational agreement. He was not familiar with it and he did not make any inquiry about it either. He agreed that he was aware of a Claims Adjudicator, Ms. Savoni, accepting the identical position at the OEA, but did not inquire whether any concerns about conflict arose at the time, and if so, how they were dealt with. Mr. Hessian agreed that the grievor had provided references including one person from the OEA and one from the Office of the Worker Advisor. He testified that he did not contact either of them to discuss the perception of bias concern.

30Mr. Hessian was asked whether he gathered any objective information about perception of bias by speaking to anyone in the community. He replied that he did not. When asked whether he relied on any objective evidence at all, Mr. Hessian replied that he looked up the Law Society Guidelines on Conflict and the WSIB Code of Ethics. When asked whether Ms. Savoni’s secondment agreement had any terms that were in conflict with either policy, he replied, “No. But in Phil’s case the magnitude of the conflict made it inappropriate”. Mr. Hessian accepted that all WSIB employees are bound by a conflict policy, and required not to deal with files with a potential conflict. Such files are reassigned to another employee.

31It was pointed out to Mr. Hessian that the WSIB’s own policy requires it to consider the development needs of employees. He was asked how he took into account the grievor’s secondment request in light of that policy. Mr. Hessian replied, “I thought it would’ve been a wonderful opportunity for development for Phil”.

32During re-direct, Mr. Hessian reiterated that his main concern was conflict. He said, “I envisioned that we would have to analyse conflict on every case he receives on work he did while at the OEA, even if no objection is raised. It can be an issue in every case involving the OEA forever. It would be too cumbersome to manage. Then there is the spin-off impact. We will have to reassign this work. It is difficult to manage. Its not only in the WSIB’s interest. Its in his interest too. Also there is an impact on other mediators who have to cover off his files”.

33Ms. Fuciarelli was not the direct decision-maker, but Mr. Hessian sought her opinion. When asked what information she gathered before she gave that opinion, she testified that she spoke to the HR Business Associate Ms. Bisson, and on her advice completed and forwarded a conflict of interest declaration form to Mr. Steve Jackson, the Chief Ethics Officer. Upon receipt of Mr. Jackson’s response, she also spoke to Mr. Sgro, the Vice-President. When asked why she arrived at the opinion that there was a conflict, Ms. Fuciarelli replied “When I compare his duties as RTWM with those of a Employer Specialist at the OEA, I felt they were fundamentally in conflict. A RTWM is required to be a neutral and objective third party. The Employer Specialist is an employer advocate. So my concern was about him returning as a RTWM and the potential for perception of bias.”

34When WSIB counsel asked whether she considered the secondment of Ms. Savoni raised by the grievor, Ms. Fuciarelli replied, “I understood the circumstances were different. She was in a multi-incumbent position. So there is opportunity when she returns, to reallocate the workload without any undue hardship or difficulty.” She testified that her concern was not only about the Office of the Worker Advisor, but a potential apprehension of bias by the broader worker community, and further that she was attempting to protect the integrity of the mediation program itself. She testified that she saw no new information in the request for reconsideration that caused her to change her opinion.

35In cross-examination, Ms. Fuciarelli agreed that a RTWM is empowered to make rulings only with respect to re-employment disputes, and even then only if the two parties agree. She testified that as soon as she became aware of the grievor’s request, her “first reaction” was that there was a potential conflict of interest. At the time, she became aware of Ms. Savoni’s secondment through Ms. Bisson. Ms. Fuciarelli did not request to see Ms. Savoni’s secondment agreement, nor did she speak to any manager in the Windsor office who had been involved in the approval of Ms. Savoni’s request. Ms. Fuciarelli was aware that employees leaving the WSIB were required to sign a conflict of interest declaration, but did not know whether Ms. Savoni did one. She agreed that the grievor had offered to sign such a declaration.

36Ms. Fuciarelli testified that she was not aware that there was a body of case law from the WSIAT on what constitutes apprehension of bias. Union counsel then asked, “so your opinion is strictly based on your subjective view that workers and worker representatives may have a perception of bias if the grievor returned as RTWM?” She replied in the affirmative. She also agreed that she had not heard of any complaint or concern about the possibility of Ms. Savoni returning as an adjudicator following her secondment. When asked whether she heard any concern from anyone in the worker community about the grievor possibly returning as RTWM after a secondment as Employer Specialist at the OEA, Ms. Fuciarelli testified that while on the telephone with a front line employee at the Office of the Worker Advisor in Hamilton about an unrelated matter, she asked her for her opinion on the grievor’s situation, and that the employee told her that she had some discomfort. Ms. Fuciarelli agreed that it was an “off-hand conversation”. She did not speak to anyone in management at the OEA or the OWA. She also testified that she did not contact anyone named by the grievor in his reconsideration request, nor did she take up the grievor’s offer to provide written testimonials from people in the worker community.

37When union counsel put to Ms. Fuciarelli that the grievor had brought to her attention that there were bilingual employees who had indicated interest in doing mediation work in the Ottawa office, she replied, “That’s according to Mr. Allan”. However, she stated that she had not investigated whether the grievor’s assertion was true. When counsel suggested that at least 3 qualified employees from the Ottawa office could have stepped in to replace the grievor during his secondment, Ms. Fuciarelli replied that there was no assurance that one of those employees would have been successful in the job competition. Someone else with more seniority could have won the posting, and he/she may have required some training. In re-examination, Ms. Fuciarelli stated that even if one of the three interested persons won the posting, “we still have to see if he can be released”.

38Mr. Steve Jackson also explained how he formed the opinion that there was the potential for an apprehension of bias. He reviewed the WSIB Ethics Policy, the job descriptions for the positions of RTWM and Employer Specialist, as well as the declaration of conflict form sent by Ms. Fuciarelli. He testified that he spoke to a number of people who were closer to operations than he was, to get their perspective. He spoke to Ms. Fuciarelli, Mr. Sgro, Mr. John Slinger (Chief Operations Officer), Mr. Allan Mikkelson (HR Business Director) and “also briefly ran it by”, Ms. Brenda Abrams (WSIB General Legal Counsel). When union counsel asked what he talked about with these individuals, he replied, “I had only reviewed the RTWM role on paper. I asked them what the role actually is”. With that information, he concluded that because the grievor would have “pushed for employer interests” at the OEA, upon his return any worker, worker representative or trade union representative would perceive a bias.

39Under cross-examination, Mr. Jackson agreed that employees of WSIB run into situations of conflict “all the time”, and that the Ethics policy expects the employee to declare any potential conflict. Mr. Jackson was asked what “independent information” was obtained by him prior to giving his opinion. He replied that he “spoke to several people, who gave their perspective of the RTWM role”. He agreed that he did not talk to anyone in the worker or employer communities. He reiterated that he reached his conclusion through conversations with people. He agreed that he was not aware of any WSIAT or Court decisions on apprehension of bias.

40Mr. Jackson was not sure whether Ms. Savoni had made a declaration of conflict. He testified that when Ms. Savoni’s secondment was raised, he spoke to Ms. Fuciarelli and Mr. Sgro, and was told that Ms. Savoni was in a multi-incumbent Claims Adjudicator position, while the grievor was the only RTWM in the Ottawa office.

41When Mr. Jackson was asked whether he was aware that the grievor was prepared to make an undertaking to recuse himself from files he had worked on at the OEA, he replied, “He was prepared to do whatever is required to avoid conflict”. He was aware that from time to time WSIB employees accept temporary positions with the Ministry of Labour and its agencies. He agreed that in these situations conflict of interest is dealt with by requiring the employees to self -declare potential conflicts. He agreed that where an employee declares a conflict, that file is re-assigned to someone else. He agreed that “this happens all the time”.

42The union called Ms. Stephanie Savoni. She testified that she was employed as a Claims Adjudicator at the WSIB Windsor office from October 2000 until May 2005. In that capacity, she regularly issued decisions based on WSIB policy and legislation on disputes between workers and employers, on various WSIB issues. She testified that when she secured the secondment at the OEA, her superiors were “very happy” for her, and that her manager in fact acted as a reference for her. As Employer Advisor at the OEA, she provided advice and representation on WSIB matters to employers with less than 100 employees. A large component of her job was to help employers understand the cost implications of a worker’s claim, because the amount of entitlement affected the employer’s premium.

43Ms. Savoni stated that representation of employers at hearings was not a big part of her work as Employer Advisor. On average in the previous year, she did one hearing a month. She explained that she decided whether or not to represent an employer at a hearing. She would review the particular case and assess whether the employer had a meritorious case. She would represent the employer only if its case had merit.

44Ms. Savoni testified that at the time she requested the WSIB for a leave of absence to accept the OEA secondment, she discussed with her manager and Ms. Karen Kral (HR Business Partner) about how to handle possible conflict of interest. Those discussions led to the signing of a secondment agreement which included the following:

upon her return to her home position with the WSIB, the secondee shall recuse herself from adjudicating any matter that involves an employer, worker or business involved in a file on which she provided advice and/or representation services in her role as an employer specialist.

45Ms. Savoni testified that she explicitly came to an understanding with her manager at the WSIB that upon her return, she would recuse herself from any files involving any employer she had provided advice to or represented at the OEA. Beyond making these arrangements, no concern about conflict was expressed by anyone at the WSIB. Ms. Savoni testified that during her secondment she recused herself from 5 or 6 files and they were re-assigned.

46Under cross-examination Ms. Savoni testified that she was one of 12 adjudicators in the Windsor office. She agreed that as Employer Specialist at the OEA, she promoted the interests of the employer party, but added that she always gave an objective opinion. She stated that a large part of her work was educating employers by helping them to understand that by complying with the law, employers actually reduce their WSIB related costs. She agreed that she represented employers on worker appeals, but reiterated that she gave an objective opinion to employers on the likely outcome of the appeal, and would not represent the employer, if, in her view, its case had no merit.

47Ms. Savoni testified that the WSIB always had established procedures to deal with files which may potentially raise conflict concerns. If an employee identified a concern, the manager would be notified. The manager would reassign the file to another adjudicator.

48The union’s primary position was that a RTWM is not a true neutral position because a large part of a RTWM’s role is to educate and promote policy and legislation, and adjudication was only a very small part. Therefore, it was submitted that no issue of apprehension of bias should arise at all. The union also relied on the legal test to determine whether there is a reasonable apprehension of bias set out in Committee of Justice and Liberty v. Canada (National Energy Board), (1976), 1976 CanLII 2 (SCC), 68 D.L.R. (3d) 716 at pp. 735-36 as follows:

… the apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the [Federal] Court of Appeal, that test is “what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude. Would he think it more likely than not that Mr. Crowe, whether consciously or unconsciously, would not decide fairly?”

I can see no real difference between the expression found in the decided cases, be they “reasonable apprehension of bias”, “reasonable suspicion of bias”, or “real likelihood of bias”. The grounds for this apprehension must, however, be substantial and I entirely agree with the Federal Court of Appeal which refused to accept the suggestion that the test related to the “very sensitive or scrupulous conscience”.

Union counsel submitted that if I conclude, on an application of this legal test, that no reasonable apprehension of bias would exist upon the grievor’s return to the WSIB following his secondment, the grievance must succeed.

49I disagree with both of the foregoing submissions of the union. One must not lose sight of the fact that the issue for determination before me is not whether there is or is not an apprehension of bias. The issue is about the reasonableness of the employer’s exercise of discretionary authority. It is clear from the evidence, documentary and viva voce, that it was the WSIB’s expectation that a RTWM act and be seen to act, as a neutral. That is a reasonable expectation an employer is entitled to set for a RTWM, whether or not the position meets any legal definition of a neutral.

50Likewise, the WSIB is not sitting as a court, deciding whether or not a reasonable apprehension of bias exists upon the grievor’s return. It is acting as an employer, concerned whether as a factual matter, the community it serves would have an apprehension of bias. As long as the WSIB reached its conclusion in a reasonable manner, I must defer to its conclusion, even if I would have reached a different conclusion in the circumstances. The legal tests are therefore relevant only to the extent they shed light on the reasonableness of the decision, not the correctness of the conclusion (See, Re Young, (1979) 1979 CanLII 3955 (ON LA), 24 L.A.C. (2^nd) 145 (Swinton) (supra) at para 12).

51In reviewing the WSIB’s decision-making process, particular regard must be had to its own “Learning & Development Policy”, whereby it is required to take into account “the business needs of the WSIB as well as the development needs of employees” when decisions are made with regard to temporary assignments. This policy requires the WSIB to draw a fair balance between its own needs and the needs of the employee. Indeed, even apart from the WSIB policy, arbitral jurisprudence requires such a balancing of interest when exercising the employer’s discretion to grant or deny a leave of absence (See Re Canada Valve Ltd., (1995) 1975 CanLII 2172 (ON LA), 9 L.A.C. (2d) 414 (Shime) particularly at p. 415).

52From the WSIB’s evidence, it is clear that its primary concern was about the conflict between the RTWM role and the Employer Specialist role. This concern had two aspects. First, the concern that the secondment could jeopardize the WSIB’s integrity as a neutral agency. Second, the issue of apprehension of bias in regard to the grievor’s work as RTWM upon his return to the WSIB. The second area of concern related to staffing. How to cope with the grievor’s caseload while he is away on secondment, and how to deal with files which the grievor cannot deal with due to conflict, upon his return. The foregoing are the “needs of the WSIB”, which must be balanced with the developmental needs of the grievor. The decision-maker, Mr. Hessian, described the secondment in question as “a wonderful developmental opportunity” for the grievor. It is in this backdrop that the WSIB’s exercise of discretion should be reviewed for reasonableness.

53WSIB counsel conceded that the management’s discretionary authority to approve leaves of absence for developmental opportunities is restricted by its own policy. Counsel agreed that the law also requires that the exercise of discretion be reasonable. He appeared to paraphrase the criteria set out in Re Kuyntjes, (supra), when he submitted that to be reasonable, the WSIB is required to, (1) consider the request for leave on its individual merits, (2) not apply a general policy rigidly to all requests; (3) obtain all information relevant to its decision and not consider irrelevant information; and (4) act consistently in similar cases.

54Upon a review of the evidence, I conclude that the WSIB’s exercise of discretion in relation to the grievor’s request was not reasonable. An employer is not entitled to try to avoid any apprehension of bias. As the Supreme Court of Canada put it, it must be a “reasonable” apprehension of bias, “held by reasonable and right minded persons, applying themselves to the question and obtaining therein the required information” and the test does not relate to the “very sensitive or scrupulous conscience”. (Re National Energy Board, (supra). Moreover, there must appear to be a real likelihood that a reasonable person would perceive bias. Thus, the Court of Appeal of Nova Scotia in R v. R.D.S., [1995] N.S.J. No. 444, at para. 27 adopted the following observation of Lord Denning M.R. in Metropolitan Properties Co. v. Lannon, [1968] 3 All E.R. 304 (C.A.):

Nevertheless, there must appear to be a real likelihood of bias. Surmise or conjecture is not enough … There must be circumstances from which a reasonable man would think it likely or probable that the justice, or chairman, as the case may be, would, or did, favour one side unfairly at the expense of the other.

55On an application of that test, one cannot reasonably conclude, as Mr. Hessian did, that a reasonable and right-minded worker, worker representative, lawyer etc. with knowledge of the conflict policies and practices in place at the WSIB, would have an apprehension “forever”, that because the grievor worked for 6 months as Employer Specialist on a developmental assignment, he is biased in favour of employers, or that it would call into question the neutrality of the WSIB or its mediation programme. No doubt, there could be persons who, as Mr. Hessian noted, who may use the grievor’s secondment as an excuse to question the WSIB’s neutrality, because he/she did not get the result hoped for. However, that person would not be a reasonable or right-minded person, as envisaged by the test. In balancing the interests of the WSIB with that of the grievor, it is not reasonable for the WSIB to accommodate the unreasonable criticism of such persons, at the expense of denying the grievor “a wonderful developmental opportunity”. In this regard I take judicial notice that many lawyers who had practised labour law on the union or management side for years as a career have gone on to become prominent arbitrators in Ontario. The Ministry of Labour regularly admits practising labour lawyers to its arbitrator training program. Upon admission, these lawyers cease their practice, and upon completion of the training, embark on a career as arbitrators. I am not aware of any complaint from the union or management communities about that practice of the Ministry. This example is in clear contrast to Mr. Hessian’s belief that the grievor would have been forever tainted as a result of a 6 month development assignment. Surely, these arbitrators would be expected to avoid situations of reasonable apprehension of bias. Thus, an arbitrator would be expected to recuse him/herself, if he/she had previously represented one of the parties before him/her. However, even that precaution has not been required “forever”. For example, in Re Laurentian University, (1988), 1988 CanLII 9271 (ON LA), 35 L.A.C. (3d) 142 (Craven), the fact that the arbitrator had acted for a party four years previously was not considered sufficient to give rise to a reasonable apprehension of bias.

56I not only conclude that the WSIB’s conclusion as to reasonable apprehension of bias was incorrect, I also find that its decision-making process was extremely inadequate and unreasonable. WSIB counsel repeatedly emphasized that the decision to deny the request was considered at 4 levels of management before the decision was made. It is more accurate to state that Mr. Hessian consulted with the other 3 individuals in making his decision. The evidence, in any event, is that the four individuals simply shared their own subjective opinions that there would be a conflict. None of them sought out any objective information to verify whether their opinions were well-founded. Ms. Fuciarelli candidly admitted under cross-examination that her conclusion was based on her subjective view, except for a casual conversation with a front-line employee at the Hamilton office of the Worker Advisor.

57Mr. Hessian, the decision maker, asserted that he gathered objective information by reviewing the job descriptions and policies on conflict, and by talking to several others at the WSIB. That, however, does not constitute “objective evidence”. The WSIB’s concern was that workers, worker representatives, unions and lawyers would perceive a bias. Objective evidence that such a concern was reasonable must relate to that group. There is absolutely no evidence that Mr. Hessian, or anyone else who had input into the decision, obtained any evidence that any of those persons, with the knowledge of the grievor’s role as RTWM and as Employer Specialist, the WSIB conflict policy, and the safeguards in place to avoid conflict situations, would have a reasonable apprehension of bias. I am satisfied that the decision was based only upon the subjective views of the individuals, without consideration of any objective information. This is despite the fact that the grievor had explicitly offered names of persons in the community he served, including the worker community. The decision was made without any contact with those persons offered by the grievor, or anyone else in the worker community.

58I also find that the WSIB has been inconsistent in the manner it exercised its discretion with regard to the grievor, at least in one respect. Both Mr. Hessian and Ms. Fuciarelli repeatedly testified that their primary concern was about the potential damage that could be caused to the WSIB’s reputation as a neutral body. Ms. Savoni ended up taking a permanent position with the OEA and did not return to the WSIB. However, the evidence is clear that at the time her request was approved, the expectation was that she would be returning. If anything, the need for appearance of being neutral would be far greater for Ms. Savoni. She was an adjudicator who had independent powers to adjudicate on disputes between employers and workers, and routinely did so. In contrast, adjudication is only a very small part of the RTWM position. The grievor testified that in approximately 600 mediations assigned to him over the years, he was called upon to make a ruling only once. Even then he could adjudicate only with the parties’ consent. The evidence is clear that in Ms. Savoni’s case, besides discussing how best potential for conflict can be minimized upon her return, her managers were very supportive of her request. There is no evidence of any concern being expressed by anyone about damage to the WSIB reputation as a result of her return to the adjudicator position. While the WSIB is not required to approve the grievor’s request merely because it had approved Ms. Savoni’s, given its concern about possible conflict and bias, it had to at least turn its mind to how and why that request was approved. It did not do that at all. The grievor explicitly brought to the WSIB’s attention the fact that Ms. Savoni was granted a leave of absence. If her managers at the Windsor office were contacted, and based on the information received the WSIB came to the conclusion that Ms. Savoni’s managers’ approval of her leave was improper, the WSIB may have reasonably decided not to follow that precedent. However, here the grievor’s managers did not even bother to inquire. All of this buttresses the conclusion that they acted solely out of their own subjective opinions, and nothing more.

59The evidence leads to the conclusion that with regard to the staffing issues, the WSIB did not consider relevant information in concluding that the requested leave of absence could not be approved. The uncontradicted evidence is that the vast majority of employers the grievor dealt with as RTWM were large employers with more than 100 employees. Therefore the potential for conflict was minimal. In Ms. Savoni’s case the WSIB dealt with the potential for conflict through a secondment agreement, wherein it was agreed that Ms. Savoni was to identify any file she came across with a potential conflict, and the WSIB undertook to reassign those. The grievor’s managers did not even attempt to review that secondment agreement.

60The explanation given was that since Ms. Savoni was one of 12 adjudicators, re-assignment of files was easily accomplished. It was repeatedly stated by the WSIB witnesses that, in contrast, the grievor was the only RTWM in the Ottawa office and that his position was bilingual. Therefore, reassignment of files was not an option. As noted, the WSIB is explicitly required by its policy to draw a fair balance between its own interests and those of the grievor. While it is true technically that the grievor was the sole RTWM at the Ottawa office, the evidence is that there was an arrangement in place for files to be shared between the grievor and the RTWM in the Kingston office. The grievor testified that since the Ottawa office was much busier than Kingston, he annually transferred approximately 35 files to the Kingston RTWM. The evidence is also uncontradicted that the Kingston RTWM regularly came to the Ottawa office anyway, so that the additional costs resulting from reassignment of files with potential conflict would be minimal. There is evidence also that it is not uncommon for RTWM’s from one office in Ontario to pick-up files from another office, in situations of work-overload, sickness etc. The evidence was that besides the grievor, there were bilingual RTWM’s in Toronto and Sudbury. When asked why this practice of sharing files would not provide an option, Mr. Hessian’s reply was that those practices of reassigning files was only where there is a “valid reason”. When asked whether accommodating the grievor’s interest in career development was not a valid reason, he responded “Yes. But it adds another reason”. The evidence was that this “disruption” was no different than when any employee wins a temporary posting elsewhere in the OPS. There is no doubt that when a position has to be back-filled for a short period, and where files have to be reassigned, there would be some disruption, and perhaps even some additional costs. However, a reasonable exercise of discretion, particularly in light of the explicit policy on development opportunities, does not permit an employer to deny a request for leave merely because approval would entail some disruption or costs. The balancing of interests contemplated by its policy, allows the WSIB to take that position only where the disruption and/or costs are unusual or substantial. The evidence indicates that the WSIB did not even seriously assess the extent of the disruption/costs, and what steps may be taken to minimize those consequences.

62All of the evidence leads me to conclude that Mr. Hessian and the others who had input, formed a very strong subjective opinion that there was an inherent conflict between the RTWM and Employer Specialist positions, which would prejudice the integrity of the WSIB as a neutral body. The concerns about staffing were only secondary. They did not seriously investigate the possibility of finding ways to deal with the staffing issues, because in their minds it did not matter. That is the only explanation I can find for the complete lack of investigation of facts relevant to the decision.

63For all of the foregoing reasons, I find that the exercise of discretion by the WSIB in relation to the grievor’s request for leave was not reasonable and contravened article 16.06. The grievance is allowed. As requested by the parties, I remain seized in the event the parties cannot agree upon the appropriate remedy.