SB#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

BEFORE

Felicity D. Briggs

Vice-Chair

FOR THE UNION

Ian Thompson Canadian Union of Public Employees – Local 1750 National Staff Representative

FOR THE EMPLOYER

Gurjit Brar Workplace Safety and Insurance Board Counsel

HEARING

April 21, 22, 2008, July 8, 2008, September 17, 2008, November 4, 10, 2008, June 22, 29, 30, 2009 & July 29, 2009.

Decision

1Joseph Devera filed a grievance alleging that the Employer violated the Collective Agreement when his employment was terminated on November 28, 2006. By way of remedy he requested reinstatement with all benefits and compensation.

2Additionally there are allegations that the Employer violated Articles 13.01 and 23.01 of the Collective Agreement by “failing to engage the Union” and by discriminating against the grievor on the basis of his age.

3On November 28, 2006 the grievor received the following letter, which sets out the Employer’s position in this matter:

On March 8, 2006 you joined the Workplace Safety and Insurance Board in the position of Claims Adjudicator. Upon hire you were placed on a probationary period of nine (9) months. The first six (6) months of your probationary period involved a training program to assist you in the learning the job of Claims Adjudicator.

Since commencing your employment I and Rosanna Muia have been reviewing your performance and you have been provided training assistance and regular feedback. We met with you on September 18, September 28, October 5, October 23, November 6, November 14 and November 20, 2006. I have communicated to you on several occasions my concerns regarding your ability to manage you caseload and analyze the information on file to make accurate and correct decisions. To further assist you after each meeting a written account of the file specific actions that need to be taken and what you could do to improve your work was provided. A caseload management workshop was provided November 8, 2006 to augment the caseload management techniques you were taught in training and that I provided you in early October 2006.

It is my assessment you are not suited to the position of Claims Adjudicator. As discussed with you, a review of your claims assigned indicates:

• Concerns regarding your ability to analyze the information on file and make a correct decision

• Inability to manage a caseload and action claims in a timely manner.

As a result, I have determined that it is in the best interest of the Workplace Safety and Insurance Board that you be released from your employment effective immediately.

4It was the Union’s position that the grievor was not provided with sufficient training. Further, Mr. Devera was subjected to comments from managerial personnel that constituted discrimination based on his age. Finally, the grievor was entitled to Union representation in accordance with Article 13.01.

5The provisions of the Collective Agreement relied upon by the parties are as follows:

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