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.

Decision

1The 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.

2The 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.

3The 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.

4EMPLOYER 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, 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.

5The griev