GSB#2011-3386
UNION#11-150
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 (Carito)
Union
- and -
The Crown in Right of Ontario (Workplace Safety and Insurance Board)
Employer
BEFORE
Richard M. Brown
Vice-Chair
FOR THE UNION
Jim Morrison Canadian Union of Public Employees – Local 1750 National Staff Representative
FOR THE EMPLOYER
Eric Kupka Workplace Safety and Insurance Board Counsel
HEARING
October 25, November 6 and 13, 2012; May 21, September 5, October 7, November 8 and 25, 2013; April 16, 2014
DECISION
1Silvana Barbieri Carito began working for the WSIB as a work transition specialist on November 8, 2010. Her initial probationary period of 180 working days ended on July 28, 2011. Shortly before this date, the employer proposed a three-month extension of the grievor’s probation, with her reporting to a new manager, and the union agreed. In late October the employer proposed a second extension to which the union did not consent. The grievor was terminated on October 28, 2011. The union contends the termination contravened not only the collective agreement but also promises made to the grievor when her probation was extended. The union also contends the grievor was harassed by her first manager.
I
2The hearing is this matter lasted nine days and hundreds of pages of documents were entered as exhibits. Having reviewed all of this evidence, I will summarize the salient facts.
3The job of a work transition specialist (WTS) is to facilitate the return to work of individuals who have been injured on the job, either with the pre-injury employer or somewhere else.
4Ms. Barbieri Carito is a certified vocational professional registered with the College of Vocational Rehabilitation Professionals. When hired in November of 2010, she had extensive experience related to the WTS job. She had been employed by the WSIB from 1989 to 1997, for much of the time as either a vocational rehabilitation caseworker or an acting vocational rehabilitation technical advisor. She left the WSIB in 1997, when it was in the process of contracting out this sort of service. Between 1997 and 2005, she worked in the insurance industry as a claims specialist or acting supervisor. From 2005 to 2010, she worked as a vocational rehabilitation specialist for two contractors engaged by the WSIB to assist injured individuals to re-enter the labour market.
5This type of work was brought back into the WSIB in November of 2010 and the grievor was among the first wave of employees hired to staff the new program. She and her colleagues underwent 13 days of in-class training followed by two months of on-the-job training ending in mid-January of 2011.
6Sherri Kofsky was Ms. Barbieri Carito’s manager during her initial probationary period. The two of them met on a weekly basis to discuss the grievor’s work. Ms. Kofsky also reviewed documentation prepared by the grievor.
7Ms. Kofsky first documented her performance concerns in a four-page memo to the grievor, dated May 5, 2011. The manager described a number of deficiencies including: (1) delays in making contacts with workplace parties; (2) delays in reporting tasks completed; (3) spelling errors, grammatical mistakes, lack of clarity and poor formatting in documents; (4) errors in making payment-related entries in the PBAS system; (5) failure to identify and address relevant issues; and (6) failure to properly manage cases and prioritize work.
8In another memo to the grievor, dated June 30, Ms. Kofsky reported continuing problems relating to: (1) delays in making initial contacts; (2) delays in reporting the completion of tasks; (3) delays in making PBAS entries; (4) failure to address issues; (4) poor caseload management and establishment of priorities. Ms. Kofsky did note an improvement in the preparation of documents.
9In a letter also dated June 30, 2011, Ms. Kofsky warned the grievor she would have “to show significant and consistent improvement” before the end of her probationary period.
10On July 14, Ms. Kofsky prepared a summary of the number of outstanding items on the work list of each of the six employees under her supervision. Three of them had no items outstanding. One had three items. Another had eight items, six of which had been entered during the last few days while she was on vacation. The grievor had 19 items outstanding, the oldest dating back to June 16.
11Also on July 14, Ms. Barbieri Carito met with John Mutch, the assistant director of work transition. Mr. Mutch testified he had reviewed a sample of the grievor’s cases and his findings “mirrored” those of Ms. Kofsky. Mr. Mutch decided to meet with the grievor because he was having trouble understanding why someone with so much experience was not doing better. During this meeting, the grievor raised issues about Ms. Kofsky’s style of management. Mr. Mutch subsequently decided to extend the grievor’s probation with a different manager.
12The grievor’s notes of her meeting with Mr. Mutch contain 14 pages outlining her complaints about Ms. Kofsky. These pages end with the following summary:
constantly being told to be quiet and hand in face;
scolded like a child in the presence of others;
constant badgering; and
aggressive towards me, belittled in public and private.
These notes also record the grievor’s complaint about her manager “monopolizing” her time.
13Ms. Barberi Carito testified about being kept waiting in meetings while Ms. Kofsky attended to emails or talked on the phone. The grievor also testified their meetings often continued after 4:30 p.m., the official end of her work day. In cross-examination, she conceded regularly working later than 4:30 on her own initiative.
14Joanne Webb, director of work transition, subsequently sought the union’s approval for an extension of the grievor’s probation. In an email dated July 26, Jim Braund replied on behalf the union:
[A]s I understand it, the alternative to the extension is termination. This being the case it is our practice to work with the employer to try and help the situation by agreeing to the extension so a plan can be developed to see if this person is able to meet the threshold that is expected of the position.
15Later the same day Mr. Mutch made a written offer of extension to grievor. The relevant part of his letter states:
I am prepared to offer you an extension of your probationary period for an additional three months, up to October 28, 2011, During this extension you will be assigned to a new manager, Rhonda Farrell-Lloyd, who will work closely with you to address the gaps and areas of improvement that would allow you to demonstrate that you can manage your caseload and effectively complete the required job duties of a Work Transition Specialist. You will also be provided with a mentor to provide guidance in report writing and caseload management.
As discussed, we have outlined specific objectives to be able to measure your performance and ensure you are meeting your expectations on a continuous basis. Specific goals will be implemented and identified weekly which should allow both you and Rhonda to work together and increase your rate of success in completing all the duties of a Work Transition Specialist.
Rhonda will be working with you on the details of goals and timelines that are to be achieved and will confirm this in writing.
Silvana, I am hopeful that you can be successful in your role; however, I need for you to demonstrate an independent ability to manage the demands of the job. Rhonda will meet with you weekly to review your progress and address any concerns that you may have. Throughout this extension, you will continue to receive training, supervision and regular performance feedback.
16The grievor countersigned this letter to indicate her acceptance of the proposed extension. The letter itself does not indicate a copy was provided to the union and there is no evidence it was seen at the time by Mr. Braund or any other union official.
17The grievor had a brief introductory meeting with her new manager on Tuesday, August 2.
18They next met on August 5. In an email bearing the same date, Ms. Farrell-Lloyd thanked the grievor for providing an update of her high profile cases and reviewing her scheduled appointments with workers. The email directed the grievor to: (1) ensure reports and memos “not yet on file” are “put to file”; and (2) review and prioritize her caseload. The email indicated they would next meet on August 16 at which time the grievor was expected to report on the status of all of her cases and to outline a strategy for caseload management.
19The email of August 5 also confirmed the grievor’s two days weekly for working in the office would change to Monday and Tuesday. As the grievor was normally on the road or working from home on other days, Monday and Tuesday were typically the only days when she could have met face-to-face with her manager. Of the Mondays and Tuesdays falling during the months of August to October of 2011, Ms. Farrell Lloyd was on vacation on August 29 and on bereavement leave on September 12, 13, 19 and 20. The grievor was on vacation on September 12, 13 and 19.
20The grievor and her manager did meet as scheduled on Tuesday August 16. Their meeting was scheduled to last two hours but Ms. Farrell Lloyd’s notes indicate it actually ran a quarter hour longer than expected. The manager’s notes of this meeting contain the following summary of her findings in relation to the state of the grievor’s 49 cases:
18 with no contact in over a month
7 reports outstanding
PBAS not updated appropriately
Incorrect information in a couple of reports
Next steps not followed through
21Ms. Farrell Lloyd notes also indicate she made the following suggestions about how the grievor could better manager her cases:
Breaking it down to looking at 3-4 cases a day
Book time to do follow up
Book phone calls in calendar
Book time in calendar to write reports
Use calendar for dues dates so will not forget
Get mentoring on how to use To Do list on Lotus Notes from Melissa
I reviewed with Silvana how to plan her contacts with her workers to ensure that she makes contact on average once a month
22According to Ms. Farrell-Lloyd notes, the manager’s next general review of the grievor’s cases occurred at a meeting with her on Tuesday, September 6. The grievor made no record of this meeting in her diary and has no recollection of it. Asked in cross-examination if it occurred, she replied “I don’t know.” Based on this evidence, I conclude there was a meeting on September 6. I note it was scheduled to last 1.5 hours.
23When Ms. Farrell Lloyd was absent, the grievor reported to Sherry Kofsky. The employer produced an entry from Ms. Kofsky’s calendar showing she met with the grievor on Friday, September 16. Ms. Kofsky could not recall the details of this meeting but testified it would have been to review the grievor’s cases. The grievor’s dairy indicates she met with Ms. Kofsky on Thursday September 15, to discuss a specific case, but contains no reference a meeting to review her work in general on September 16. Asked in cross-examination whether such a meeting occurred, she replied: “I don’t know.” Considering all of this evidence, I conclude the grievor did meet with Ms. Kofsky for a review of her cases on September 16. The grievor’s two days in the office that week appear to have been Thursday and Friday, perhaps because she had been on vacation for Monday and Tuesday.
24Ms. Farrell-Lloyd’s next general review of the grievor’s work occurred at a meeting on Tuesday, October 4. The manager’s notes of that meeting indicate she expressed concerns about: (1) delayed reports; (2) the content of reports including repetition, formatting and grammatical errors and accuracy; and (3) caseload management.
25Also on October 4 Ms. Barbieri Carito was told Sharlene Olde Weghuis would act as her mentor. The grievor testified she asked Ms. Olde Weghuis for some of her reports but never received them. Asked in cross-examination if she had reported this to her manager, the grievor said she reported asking for the reports.
26According to Ms. Farrell Lloyd’s notes, she met with the grievor on Tuesday October 11 to review several cases. The grievor did not record this meeting in her diary but she did not deny that it occurred. I conclude they did meet on this occasion.
27The grievor’s diary also indicates she met with her manager on Monday, October 24 for a review of several cases.
28In addition to the meetings reviewed above, Ms. Farrell Lloyd sent numerous emails to the grievor addressing concerns about her work. Fifteen such emails were entered in evidence. No purpose would be served by recounting the details of this correspondence.
29On October 25, Ms. Farrell Lloyd summarized her assessment of the grievor in an email to Joanne Webb, Director of Work Transition:
Silvana in my opinion will always be a below average performer. She has not demonstrated consistency in her work which of course made it difficult to assess her.
To sum up Silvana’s performance:
Inconsistent with her performance
Inconsistent with quality of her reports—involving grammatical errors, incorrect information and poorly articulated information
Not being thorough resulting in issues being escalated sometimes unnecessarily as she did not take the step to advise the appropriate party of actions taken
Does not return calls on a timely basis
Does not respond to WLST request on a timely basis
Has not effectively managed her caseload despite the fact it has been kept at a reasonable level since July
Conducts a lot of unnecessary activity on cases and does not focus on the correct priorities.
All of the complaints I have received currently as a manager for WTS are on Silvana’s work.
30Ms. Farrell Lloyd received complaints about the grievor from WSIB case managers, the Fair Practices Commission and the Ombudsman.
31The employer sought the union’s consent to a second extension of the grievor’s probation but consent was denied. The grievor subsequently received a termination letter dated October 28.
II
32I begin my analysis by considering the union’s allegation that the grievor was harassed by her first manager.
33A prohibition against harassment is found in article 23.01 of the collective agreement. The same article contains the following definition:
Harassment is defined as engaging in a course of vexatious comments or conduct that is known, or ought reasonably be known, to be unwelcome.
34The Oxford Dictionary defines vexatious as “causing or tending to cause annoyance, frustration, or worry.”
35Treating any course of conduct or comment that causes foreseeable annoyance, frustration or worry, no matter how minor, as grounds for complaint would encourage unwarranted grievances, because friction and conflict are inevitable byproducts of human interaction. Only significant misconduct that leads to serious harm should be viewed as harassment within the meaning of the collective agreement.
36In this respect, I concur with the sentiments expressed in S. v. M, G, Z (1995), 1995 CanLII 18346 (BC LA), 49 L.A.C. (4th) 193 (Laing), where the arbitrator wrote:
For example, every act by which a person causes some form of anxiety to another could be labelled as harassment. But if this is so, there can be no safe interaction between human beings. Sadly, we are not perfect. All of us, on occasion, are stupid, heedless, thoughtless or insensitive. The question then is when are we guilty of harassment?
I do not think every act of workplace foolishness was intended to be captured by the word harassment. This is a serious word, to be used seriously and applied vigorously when the occasion warrants its use. It should not be trivialized, cheapened or devalued by using it as a loose label to cover petty acts of foolish words, where the harm, by any objective standard, is fleeting. (para. 230 and 231)
37There is additional reason for caution when determining whether a manager has engaged in harassment in the course of supervising an employee. It would not be unusual for an under-performing employee to be worried by a manager’s efforts to correct the problem. Labelling all such efforts as harassment would make no sense, because doing so would completely undermine managerial authority.
38In Professional Institute of the Public Service of Canada and Communications, Energy and Paperworkers of Canada, [2014] O.L.A.A. No. 106 (Starkman), the arbitrator concluded “the legitimate use of managerial authority” does not amount to harassment. Mr. Starkman cited with approval two earlier decisions asserting even an “unpolished” or “less than optimal” managerial style, exercised in good faith, did not constitute harassment: see respectively Lanark County and Ontario Public Service Employees Union, [2006] O.L.A.A. No. 389 (Briggs); and St. Boniface General Hospital and Manitoba Association of Health Care Professionals, [2010] M.G.A.D. No. 31 (Peltz).
39In the case at hand, there is no evidence indicating Ms. Kofsky was not acting in good faith. There is nothing to suggest she was motivated by personal animosity or any other illegitimate factor.
40The grievor complained of being “badgered”, “belittled”, “scolded like a child” and treated “aggressively” by her manager. The words used by the grievor merely convey her characterization of Ms. Kofsky’s behaviour. These words do not describe what the manager actually said or did. Just as beauty is in the eye of the beholder, the same can be true of badgering, belittling, scolding and aggression. Without a detailed description of the impugned comments or conduct, I am unable to conclude harassment occurred.
41Ms. Barbieri Carito did complain of some specific conduct by Ms. Kofsky during their meetings: repeatedly raising her hand to stop the grievor from talking; and dealing with emails and talking on the phone. While such conduct on the part of a manger might be unpolished or less than optimal, I do not view it as rising to the level of harassment.
III
42The union contends the employer contravened article 3.02 of the collective agreement. This article states:
During the probationary period the employer will provide training supervision and regular performance feedback to the employee.
43The union argues the employer did not provide regular performance feedback. In particular, the union contends the grievor should have received regular feedback in written form throughout her employment and should have met more frequently with her manager during the extension of her probation.
44During her initial probationary period, the grievor received feedback on her work during weekly meetings with Ms. Kofsky. The probationary extension ran from July 28 to October 28, 2011. During this period, the grievor received feedback at six one-on-one meetings with Ms. Farrell-Lloyd and one such meeting with Ms. Kofsky. In other words, there was an average of approximately one such meeting every two weeks during the extension of the grievor’s probation.
45Most of the feedback provided to the grievor was delivered at meetings with her manager. Only a few of these meetings resulted in a written memo summarizing what had been discussed.
46The collective agreement does not require that feedback be provided in writing. Nor does the agreement require weekly meetings with a manager. In my view, the employer fulfilled its contractual obligation by providing feedback at weekly meetings during the initial probationary period and at biweekly meetings thereafter.
III
47The union also submits the employer did not fulfill the promises made to the grievor in the letter extending her probation. In this regard, special emphasis is placed on the promise of weekly meetings with her new manager.
48This promise was not kept. As I have already noted, face-to-face meetings between the grievor and her manager occurred biweekly during August, September and October of 2011. I reject the employer’s argument that communication by telephone calls or email should be counted as a meeting for this purpose.
49As the employer notes, its promise of weekly meetings was made to the grievor in the letter advising her of the extension of her probation. This promise was not part of the earlier agreement between the employer and the union extending her probationary period. The employer contends an employee is not entitled to any legal relief based on an unfulfilled promise made to her as an individual.
50I reviewed the relevant legal framework in Ministry of Attorney General and Association of Law Officers of the Crown (2006), 2006 CanLII 93268 (ON LA), 151 L.A.C. (4th) 409:
16It is trite law there cannot be an individual contract, post-hiring, between an employee and employer governed by a collective agreement. A recent decision of the Supreme Court of Canada on this point is Ainscough v. McGavin Toastmaster Ltd., 1975 CanLII 9 (SCC), [1976] 1 S.C.R. 718. Many of the cases cited by the employer are examples of this proposition being applied.
17Notwithstanding the legal prohibition against individual contracts, the courts have acknowledged the jurisdiction of arbitrators to apply the doctrine of estoppel, in appropriate circumstances, to grant relief to an employee based upon a representation made to that person by an employer. In Re Ontario Public Service Employees Union and the Queen in Right of Ontario (Ministry of Community and Social Services) (1995), 1995 CanLII 10660 (ON CTGD), 27 O.R. (3d) 135 (Div. Ct), the court quashed a decision of the Grievance Settlement Board dismissing a grievance on the sole ground that estoppel could not apply to a representation made by an employer to an employee covered by a collective agreement. Speaking for the court, Adams J. wrote:
There is a significant body of arbitral jurisprudence on the topic of detrimental reliance, albeit arbitrators have not always agreed on how grievances similar to the one before the Board ought to be resolved. ... The development of a sensitive approach to the competing issues underlying these types of claims must fall within the jurisdiction of the only dispute resolution mechanism available to resolve them.
It must be remembered that our courts lack original jurisdiction with respect to the enforcement of collective agreements and in regard to lawsuits brought by or against trade unions: see the Rights of Labour Act, R.S.O. 1990, c. R.33. There is therefore little acquired experience in our courts to assist them in resolving these kinds of cases. For this same reason, recourse to the courts by unsuccessful grievors is problematic. Indeed, it is doubtful that any other forum is available should boards of arbitration reject these employee claims. On the other hand, labour arbitrators are mutually chosen by the parties because of their particular labour relations expertise and more permanent grievance tribunals, such as the Grievance Settlement Board, build up an impressive similar expertise. The Board, therefore, is in the best position to work out and assess the important policy implications of permitting access to the doctrine of estoppel by individual employees governed by this particular statutory framework. While there may be strong labour relations policy considerations which support the dismissal of the grievance, there was no superintending jurisdictional constraint which "bound" the Board to decide as it did. The Grievor's treatment was obviously unfair. The Board must take responsibility for the determination of her grievance, whatever that outcome may be.
22The prevailing arbitral approach to estoppel falls far short of allowing unions to fully enforce all individual contracts. A deal has no legal consequence unless it entails all of the common law elements of an estoppel, including detrimental reliance on the part of the employee concerned. Detrimental reliance is not a normal requirement for enforcing a contract. When an estoppel remedy is granted to an employee, it is designed to undo the harm associated with detrimental reliance on an undertaking by management, not to put the aggrieved person in the position she would have occupied if a promise had been fulfilled, the normal form of contractual relief. The former type of remedy may be more limited than the latter in some circumstances.
51In short, the grievor is not entitled to any relief for the employer’s breach of promise unless she relied on it to her detriment. To prove detrimental reliance, the union must show she incurred some detriment, as a result of relying on the employer’s promise that would not have been suffered if the promise had not been made. As there is no evidence suggesting the grievor did anything detrimental that she would not have done but for the promise in question, she is not entitled to any legal remedy flowing from the breach of that undertaking.
IV
52I now turn to consider whether the termination of the grievor’s employment contravened article 12.08(a) of the collective agreement. The relevant portion of that article states:
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 employee(s) has been terminated in bad faith, arbitrarily or for reasons that are discriminatory or contrary to legislation.
53The union contends the employer’s decision to terminate the grievor’s employment was arbitrary within the meaning of this article.
54Article 12.08(a) is a codification of the arbitral jurisprudence relating to the dismissal of an employee on probation. As recognized by the case law, probation is meant to serve as a trial period during which an employer can assess an employee’s performance in order to determine whether the individual is suited to the job in question. An employer has wide latitude in deciding whether to retain an employee upon the completion of probation. Accordingly, probationary employees have far less protection against dismissal than do their permanent counterparts who have successfully passed probation and may be terminated only for just cause. The nature of probation is elaborated in two cases cited by the employer: Canadian Union of Public Employees and Workplace Safety and Insurance Board, [2010] O.G.S.B.A. No. 115 (Briggs); and McRae Waste Management and International Union of Operating Engineers (1998), 1998 CanLII 29979 (BC LA), 71 L.A.C. (4th) 197 (Sanderson).
55The purpose of probation should inform both the application of article 12.08(a) in general and the meaning attributed to the word “arbitrarily” in particular.
56In the case at hand, Ms. Barbieri Carito was given extensive classroom and on-the-job training in the first few months of her employment. She received feedback at weekly meetings with her first manager during the initial probationary period of 180 working days. After the first manager concluded the grievor had not demonstrated suitability for the job, her probation was extended for three calendar months under a second manager. The grievor received feedback at biweekly meetings during this extension. The second manager also concluded the grievor had not demonstrated her suitability. Both managers identified the same sorts of deficiencies, including delays in completing tasks, errors in spelling and grammar and data entry, and a failure to prioritize work properly. At the end of the three-month extension, the employer offered to extend the probationary period again, but the union rejected this offer. Considering all that transpired during the grievor’s probation, I conclude the employer’s decision to terminate her employment was not arbitrary.
57The grievance is dismissed.
Dated at Toronto, Ontario this 6th day of May 2014.