GSB#2013-3295

UNION#2013-0701-0015

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Caza)

Union

• and -

The Crown in Right of Ontario (Ministry of Labour)

Employer

BEFORE

Ian Anderson

Vice-Chair

FOR THE UNION

Alison Nielsen-Jones Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Jonathan Rabinovitch Treasury Board Secretariat Legal Services Branch Counsel

HEARING

October 24, November 19 & 28, 2014; April 9 & 30, May 11, June 3 & 16, 2015

Decision

1Michel Caza (the Grievor) was hired by the Ministry of Labour to be a Mining Inspector for the Occupational Health and Safety Branch. His employment commenced on February 25, 2013 and he began an extensive period of training. The Employer terminated his employment on November 15, 2013, ten days before his probationary period was to end, ostensibly as a probationary release pursuant to section 37(2) of the Public Service of Ontario Act, 2006, S.O. 2006, c. 35, Sched. A (“PSOA”). A grievance was filed. The Union asserts that the Employer did not meet the requirements for a probationary release. In the alternative, the Union asserts that the release of the Grievor constitutes a reprisal contrary to the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (“OHSA”). In either event, the Union asserts that the release cannot stand. For the reasons which follow, I disagree with the Union and dismiss the grievance.

The Legal Framework

2Both parties agree that the Board has jurisdiction to hear a grievance with respect to probationary release. The parties, however, disagree as to the requirements for a probationary release.

3The Employer argues that it need not establish just cause in order to release a probationary employee. Rather it is entitled to release a probationary employee in the absence of the Union establishing that its decision to do so was arbitrary, discriminatory or in bad faith. The Employer referred to the following decisions: OPSEU (Blanchette) v. Ministry of Natural Resources, GSB No. 2005-0798, 2005-2105, March 2, 2007 (Dissanayake); OPSEU (Fox) v. Ministry of Correctional Services, GSB No. 739/91, November 19, 1992 (Dissanayake); CUPE, Local 1750 Fenwick) v. Workplace Safety and Insurance Board (, GSB No. 2010-0839, January 30, 2013 (Dissanayake); Workplace Safety and Insurance Board v. CUPE, Local 1750, 2013 ONSC 4292; OPSEU Local 278 (Collucci) v. Complex Services Inc., c. o. b. as Casino Niagara and, 2005 CanLII 40169 (ON LA), February 21, 2005 (Gray); Toronto Civic Employees Union, Local 416-CUPE (Parris) v. Toronto (City), [2015] O.L.A.A. No. 116, (Misra); and United Steelworkers of America, Local 8580 (Crooks) v. IKO Industries Ltd., [2000] O.L.A.A. No. 355 (Starkman)

4The Union concedes that the Employer need not establish just cause in order to release a probationary employee. However, the Union argues that there are five “principles” which apply to probationary releases:

1. The Employer must have communicated to the employee the standards by which he or she will be measured and those standards must be reasonable.

2. Should the employee fail to meet those standards, the Employer must advise the employee in order to give him or her the opportunity to improve.

3. The employee must be given a fair opportunity to perform in the position.

4. The employee must be given a fair assessment.

5. The release must not be arbitrary, discriminatory or in bad faith.

The Union referred to the following cases: Ontario Public Service Employees Union (Niyonkuru) v Ontario (Transportation), 2013 CanLII 56964 (ON GSB) (Devins); Ontario Liquor Board Employees’ Union (Bell) v. Ontario (LCBO), GSB# 683/01 (Dissanayake); Ontario Liquor Board Employees’ Union (Filho) v. Ontario (LCBO), GSB# 1728/01 (Abramsky); Ontario Public Service Employees Union (Devara) v. Ontario (Workplace Safety and Insurance Board), 2010 CanLII 38779 (ON GSB) (Briggs); Pulp, Paper and Woodworkers of Canada, Local 25 (Aken Grievance) v. Canadian Forest Products Ltd., 2002 CanLII 79027 (BC LA), [2002] B.C.C.A.A.A. No. 198, 108 L.A.C. (4th) 399 (McPhillips); Canadian Brotherhood of Railway, Transport and General Workers v. Hotel Fort Garry, 1993 CanLII 16628 (MB LA), [1993] M.G.A.D. No. 96, 38 L.A.C. (4th) 320, 33 C.L.A.S. 544 (Peltz); CUPE Local 1750 v. Workplace Safety and Insurance Board (Carito), 2014 CanLII 30248 (ON GSB); OPSEU (Agboka) v. Ontario (Revenue), GSB # 729/90 (Fisher); and United Steelworkers, Local 5046 v. Construction Aggregates Corp., (1958) 9 LAC 187 (Robinson).

5I agree with the greater part of the argument for the Employer and have adopted large portions of it as the appropriate framework for analysis without direct attribution. I will specifically address the arguments of the Union and the Employer which are materially at odds with this legal framework.

6Section 37 of the PSOA provides:

(1) Where the Public Service Commission appoints a public servant to employment for a term that is not fixed, the Commission may direct that the public servant be on probation for a period of not more than one year.

(2) While on probation under subsection (1), the public servant may be dismissed for failure to meet the requirements of his or her position.

7Pursuant to Article 18.1 of the collective agreement, the parties have agreed to a nine month probationary period. Articles 21.2 and 22.8 make it clear that a probationary employee has no right to grieve his or her release on the basis of just cause.

8The onus of proving the release was done in accordance with section 37(2) of the PSOA lies upon the employer; Niyonkuru at para. 35 and 38. This includes “proving that the Grievor was given a fair assessment, that it was done in good faith and that there was a rational connection between the facts and the decision”: Agboka. This is not the same as an affirmative obligation to prove cause: see Metropolitan Toronto v. CUPE, Toronto Civic Employees’ Union, Local 434, OJ No. 672 (Div. Ct.) cited at para. 29 of IKO Industries. Rather, what the Employer must prove is that it put its “mind to the issue and engaged in a process of rational decision making; that it took “a reasonable view of the problem” and arrived “at a thoughtful judgement about what to do after considering the various relevant and conflicting considerations”: Borough of Scarborough v. OSSTF, (1980) 1980 CanLII 4039 (ON LA), 26 LAC (2d) 160 (M.G. Picher) cited at para. 29 of IKO Industries. Put differently, the Employer must establish that the probationary release “is bona fide, in that it was non disciplinary, made in good faith, the reasons for release were reasonable and there was a rational relationship between the facts and the release”: Niyonkuru at para. 28.

9The purpose of the probationary period is to determine an individual’s long term suitability for employment. Accordingly, relevant considerations for the purposes of the Employer’s determination include not only technical competence but whether “the person’s work habits are appropriate and if they can work effectively with their co-workers and supervisors”: Syed, GSB No. 1329/92 (Fisher) cited at p. 14 of Blanchette. Put differently, the employer is entitled to consider compatibility and suitability of the probationary employee: Eriksen, GSB No. 12/75 (Beatty) cited at p. 14 of Blanchette.

10The Employer’s assessment should not be interfered with unless it is “palpably unreasonable”: Porcupine Area Ambulance Service, (1974) 1974 CanLII 2347 (ON LA), 7 LAC (2nd) 182 (Beatty) cited at p. 16 of Blanchette and applied at p. 27. To conclude otherwise would have the effect of elevating a standard of review based on bad faith and arbitrariness to one analogous to just cause: IKO Industries at para. 37. The meaning to be attributed to the Employer’s obligations to act in good faith, take a reasonable view of the issue and establish a rational basis for its decision must be understood in this context. As stated in Sheppard, GSB No. 2492/86 (Slone) reproduced at p. 15 of Blanchette:

It can be argued with some logical force that this Board does not sit as an appeal tribunal from the decision by a Deputy Minister to release a probationary employee for failure to meet the requirements of the position. We are not entitled to substitute our assessment of the probationer’s job performance for that of the Deputy Minister. However, the jurisprudence of this Board entitles us to review certain aspects of the release. The considerations fall within three somewhat overlapping categories:

A. Lack of Good Faith:

If the Employer lacked good faith in releasing the probationary employee, then the ostensible “release” will be considered actually to have been a dismissal, which can be grieved under Section 18(2)(c) of the Crown Employees Collective Bargaining Act. Clearly the bad faith, if found, must be relatively serious.

B. Unreasonable:

While this term is utilized in the earlier decisions we do not take it to mean that we can review the merits of the employee’s job performance and reinstate him if we find that the assessment was “unreasonable” that the employee had not met the job requirements. Reasonableness in this context is a species of good faith. Whereas the phrase “bad faith” could encompass a release improperly motivated or maliciously intended, “unreasonableness” speaks more to an objective assessment that the release did not flow logically or rationally from the facts. If for example, there was simply no evidence that probationary employee had not fulfilled or could not fulfil the job requirements, then no matter how well meaning were the actions of his superiors, the release would have been an unreasonable exercise of authority.

C. Rational Relationship between the Facts and the Release:

This factor is nearly, synonymous with “reasonableness”. If the Employer’s assessment that a certain set of facts justifies release is “irrational” on any half-intelligent view of the matter, then the release becomes a discharge and can be reviewed. The ‘rational relationship” test should not be placed too high. It is easy to brand as “irrational” any thought process or decision with which one does not agree. The Deputy Minister must be free to make decisions, without being found to have acted irrationally merely because a Board of arbitration might have come to a different conclusion.

11It follows that the mere fact that the Employer was incorrect in its assessment of the facts on which its decision was based, even if proven, is not sufficient in itself to disturb the decision. Arbitrator Starkman makes this point at para. 38 of IKO Industries:

Similarly, even if I were to conclude that the Employer was incorrect in its assessment of the speed with which the grievor was performing the assigned tasks, or incorrect in its assessment of the grievor's attitude and long term suitability for the workplace, this in itself would not, without a further factual basis, be sufficient to demonstrate arbitrariness or bad faith on the part of the Employer. Such a conclusion should only be reached if there is some indication that the Employer drew its conclusions about the suitability of the grievor for an improper motive or based on totally unreliable evidence. Such is not the case in this instance where there was evidence from which the Employer could conclude that the grievor was unsuitable for long term employment.

Put differently, the Employer is not required to prove the underlying facts upon which its decision was based.

12I would add one caveat to the above analysis. Older decisions of this Board suggest a distinction between probationary release and termination for disciplinary reasons: broadly stated a probationary release was subject to review on the basis of a rational relationship test, unless the conduct was culpable in which case the employer was required to meet the higher standard of just cause. In this respect, I note that section 18(2)(c) of the Crown Employees Collective Bargaining Act, R.S.O. 1980, c. 108 (“old CECBA”) provided:

In addition to any other rights of grievance under a collective agreement, an employee claiming,

(c) that he has been disciplined or dismissed or suspended from his employment without just cause,

may process such matter in accordance with the grievance procedure provided in the collective agreement ...

However, old CECBA was repealed and replaced by the Crown Employees Collective Bargaining Act, 1993, S.O. 1993, c. 38 as amended (“CECBA, 1993”). There is no equivalent of section 18(2)(c) of old CECBA in CECBA, 1993.

13Decisions of this Board decided since the repeal of the old CECBA have followed the older decisions in suggesting a distinction between probationary release and termination for cause. I am unaware, however, of any decision which considers the effect of the repeal of old CECBA and the interaction between Articles 21.2 and 22.8 of the collective agreement, section 48(12)(j) of the Labour Relations Act, 1995 (applicable to this Board by virtue of sections 2 and 7 of CECBA, 1993) and sections 34 and 37 of the PSOA. It is not clear, therefore, that the distinction made in cases decided under old CECBA between probationary release and disciplinary release of a probationary employee remains relevant. Put differently, it is not clear that the Employer is required to meet a different standard with respect to any disciplinary reasons relied upon in arriving at a decision to release a probationary employee.

14However, I need not determine that issue in this case. The Union did not argue that the Grievor’s probationary release was actually disciplinary. Further, for reasons stated below, notwithstanding the infelicitous use of of the words “insubordinate behaviour” in the letter of release, I find that the release was for non-disciplinary reasons.

15As noted, the Union asserts that five principles apply to probationary releases. Those principles are taken from Bell, where they are set out at p. 31. They were adopted by Filho at p. 33. The Employer cautions against reliance on Bell and Filho. It notes that they were not concerned with a probationary release under the OPSEU OPS collective agreement and section 37 of the PSOA. Rather they were concerned with a probationary release under a collective agreement applicable to certain employees of the Liquor Control Board of Ontario. At the time that collective agreement, unlike some (and in particular unlike the collective agreement before me), afforded just cause protection to any release of probationary employees: see page 18 of Bell. The Employer argues that the five principles relied upon by the Union are derivative from the Board’s application of a just cause standard to the release of probationary employees.

16I agree with the Employer that great caution must be exercised in importing principles from cases decided on the basis of a just cause to probationary releases under this collective agreement. The Employer is not required to prove just cause for a probationary release under this collective agreement. Rather, as stated above, the Employer’s obligation is to establish that the probationary release “is bona fide, in that it was non disciplinary, made in good faith, the reasons for release were reasonable and there was a rational relationship between the facts and the release”. It is in this sense that the Employer is required to be fair. While consideration of the “five principles” might provide sufficient basis for the release, failure to consider them does not necessarily mean that there was not some other reasonable basis for the release. Simply put, exercise of the Employer’s discretion with respect to probationary release under the OPSEU OPS collective agreement does not attract the exactitude suggested by the five principles. But of greater significance, a just cause standard requires that an employer prove the correctness of the facts on which its decision was based. For the reasons stated above, there is no parallel obligation in this case.

17The Union suggests that the five principles were adopted in Devara. Devara was decided under the collective agreement between CUPE Local 1750 and the Workplace Safety and Insurance Board. It more closely parallels the OPS collective agreement in that it expressly provides that probationary employees may not grieve dismissal on a just cause standard. However, there is no reference to Bell, Filho or the “five principles” in Devara. Thus I do not agree that this Board has adopted the “five principles” set out in Bell as a necessary framework for analysis of probationary releases under the OPSEU OPS collective agreement.

18With this legal framework in mind, I turn to the facts of this case. In doing so, I do not attempt to recount all of the evidence heard. Rather, I address only the evidence relevant to factual issues arising from the legal framework I have described.

Application to the Case At Hand

19The Employer called one witness: Don Jewitt, the District Manager for the Thunder Bay District of the Ministry of Labour. The Grievor was hired to work out of the Thunder Bay District, and served his probationary period there. He reported to Mr. Jewitt.

20Inspectors enforce the OHSA and regulations thereto. There are approximately 400 inspectors in the province; about 40 to 50 of those are based in the northern region of the province. Approximately 25 new inspectors are hired across the province each year. They undergo a six to seven month training program. It costs approximately $100,000 to train a new inspector.

21As a practical matter, there are three types of inspectors: construction, industrial and mining. It is very difficult to find individuals with the right combination of skills and experience to be mining inspectors. The Grievor was hired to be a mining inspector.

22The duties in the job specification for a mining inspector refer to “maintaining effective communication”. Mr. Jewitt emphasized the importance of this skill. In his view, in order to be effective at ensuring compliance with the OHSA and regulations, an inspector needs the ability to communicate and develop rapport in a meaningful way, without adversity and without coming across as heavy handed. This is reflected in the skills listed in the job description for inspectors, which includes “interpersonal and dispute/conflict resolution skills”. In stressful situations, such a work refusals, an inspector must be able to view the matter in an unbiased manner.

23The OHSA and regulations also grant inspectors broad investigatory powers. Individual inspectors must be accountable, transparent and beyond reproach in the exercise of those powers.

24Inspectors also have the authority to lay charges under the Provincial Offences Act. Inspectors’ duties include “assist attorneys in legal actions and act as an agent of the Ministry in court proceedings”. At the point there is the prospect of charges being laid, it is particularly important that an inspector act in a fair and unbiased manner. The role of an inspector is not to advocate for a position but to assist the Crown.

25Inspectors work with a great deal of autonomy. Much of their work is performed outside of the office. They set up their vehicles as essentially mobile offices. Mr. Jewitt testified that there were some inspectors he would see in the office only once per week. Accordingly, from Mr. Jewitt’s perspective it is critical that he be able to have complete trust in the honesty and integrity of an inspector in order to have the necessary level of confidence. It is also critical that he know where they are so that he can contact them as required.

26Individuals hired to be inspectors come from a variety of backgrounds and what Mr. Jewitt described as “mindsets”. They receive 18 weeks of class room training and 12 weeks of field training in which they are teamed up with senior inspectors. Mr. Jewitt described a key goal of the training as ensuring that the new inspectors come out of it with the mindset which the Ministry of Labour wishes them to have. While inspectors work with a great deal of autonomy they are members of a broader Ministry of Labour team. In order to do the job effectively they must be able to work with various specialists, such as ergonomists, doctors and engineers, and they must be able to work with the Ministry’s lawyers.

27Mr. Jewitt made the initial decision to hire the Grievor. He was particularly struck by the Grievor’s technical skills: the Grievor is a mining engineer.

28The Grievor was sent off on the training program for inspectors.

29The policies and practices of the Ministry are also reviewed with new inspectors during the training. These include the Travel, Meals and Hospitality Expenses Directive.

30Mr. Jewitt was asked to describe the purpose of the probationary period. He described it as an opportunity for the employee to demonstrate to the employer that: they are suitable for the position; they fit in; and they will make their manager’s life easier. At the end of the probationary period, his job as manager is to assess whether the employee is suitable. Prior to the Grievor, Mr. Jewitt had assessed five or six other probationary employees. He had never previously decided that a probationary employee be released as not suitable.

31Mr. Jewitt decided upon the probationary release of the Grievor. The letter release dated November 15, 2013, sets out in essence two groups of concerns:

… I advised you that I received a number of complaints from the facilitators of the Inspector Training regarding your behaviour during such training sessions. As I mentioned, your behaviour was described as arrogant, confrontational, argumentative and unwilling to receive constructive criticisms. It was suggested that your actions showed a lack of respect for those involved in the exercises and lack of commitment to learning.

We also discussed the instances when you showed insubordinate behaviour during your probation by not following directions either from me or my delegate. Specifically, you refused to ride with two other inspectors in a ministry issued truck and to participate in field visits as part of your training. We have also previously discussed my concerns regarding travel bookings and your use of the telephone card, notification regarding your whereabouts during work hours when training ended early, and the job expectations and your work commitment.

32Mr. Jewitt testified that while he was on vacation he received a call from Jerry Shipsides. Mr. Shipsides had been tasked with being the manager of the new construction and mining inspectors during their classroom training in Mississauga. Mr. Shipsides told Mr. Jewitt that his director had asked him to call Mr. Jewitt and make him aware of concerns with respect to the Grievor’s behaviour during the training, and in particular the mock investigation training which took place the week of August 12-16, 2013. Mr. Shipsides described the Grievor’s behaviour as being unwilling to listen, combative and argumentative. Mr. Jewitt advised Mr. Shipsides that he would look into it.

33The mock investigation is the culmination of the training process. For the purpose of the exercise, the new inspectors are divided into teams. They are given a fact scenario. They interview “witnesses” and gather evidence. Ultimately they compile a brief which is presented to Ministry lawyers, as inspectors would do in the case of a real investigation where charges may be laid. The lawyers critique the brief and presentation and provide feedback as to what they need. The Grievor had acted as the leader of his team and had presented his team’s brief to the Ministry’s lawyers.

34Mr. Jewitt’s returned to work on August 19, 2013. Over the next two months, in addition to performing his other duties, Mr. Jewitt investigated the Grievor’s conduct during the training in Mississauga.

35In the course of his investigation, Mr. Jewitt contacted at least 13 individuals who had direct contact with the Grievor. These individuals included managers, lawyers from the Ministry’s legal department and senior inspectors who had acted as instructors. The senior inspectors and some others contacted by Mr. Jewitt are members of the the bargaining unit represented by the Union. Generally Mr. Jewitt would contact each individual by phone to ask about their observations. He would conclude the phone call by asking the individual to provide an email describing the concerns which they had.

36The emails received by Mr. Jewitt were filed in evidence. The picture which emerges of the Grievor is not flattering. The tenor of the comments was accurately reflected in an “allegation letter” from Mr. Jewitt to the Grievor dated October 15, 2013:

Managers and lawyers in attendance have described your behaviour as inappropriate, arrogant, confrontational, defensive, combative, argumentative and unwilling to receive constructive criticism. It was suggested that your actions showed a lack of respect for the people involved in the exercise and a lack of commitment to learning. Concern was voiced about your apparent lack of interpersonal skills, tact and professionalism with respect to your ability to represent the Ministry of Labour and to develop the necessary relationships with colleagues and workplace parties.

37A similar view was expressed by almost everyone contacted by Mr. Jewitt, including three managers and three Ministry lawyers. Mr. Jewitt testified as to his past working relationships, often longstanding, with the various individuals who had made these statements and his high degree of trust and respect for each of them. (There was one individual involved in the training who provided feedback whom Mr. Jewitt did not know personally. That individual’s comments were consistent with those of the others.) He testified that he was shocked by what he was being told but had no reason to doubt its accuracy.

38The October 15, 2013 allegation letter advised the Grievor that a meeting had been scheduled for October 18, 2013 to discuss his behaviour. The Grievor provided a written response to the October 15, 2013 allegation letter. He also attended the October 18, 2013 meeting. The Grievor’s position in his written response and during the meeting (and, I would note, in his evidence during the hearing) were essentially the same. That position was stated in his written response as follows:

As leader and spokesperson of our working group it was incumbent on me to vigorously advocate for and defend the work and positions of our working group which had been incorporated into its Investigation Brief for discussion and learning purposes at the training session.

The review and evaluation group provided many constructive criticisms which our working group either accepted or debated after canvassing the working group for direction. Give the considerable time and effort our working group expended in preparing its final Investigation Brief, the group fully supported me in advocating for the merit and appropriateness of the positions in the Brief which the group had tabled and prepared.

Further, I suggest the tenacity shown by our Group in vigorously advocating for, and defending its Investigation Brief, at the training session, is an important quality inspectors should strive for in order to exercise statutory responsibilities at workplaces.

In summary based on the above considerations, I respectfully find the concerns raised related to the August training to be limited to a one hour session, personal and subjective opinions in the extreme, unfounded, unfair, unwarranted and lacking merit. Further the concerns appear to disregard or minimize that it was my role and responsibility as Team Investigation Leader and spokesperson for our working group to vigorously defend our group’s work and positions in the workshop.

39Following the meeting Mr. Jewitt prepared a document which combined the allegations and the Grievor’s response. Mr. Jewitt also testified as to his view of the Grievor’s response. Fundamentally there were two problems. First, contrary to the assertion by the Grievor, the concerns about the Grievor’s behaviour were not restricted to the one hour session during which Ministry of Labour lawyers provided feedback on the Investigation Brief. Rather, Mr. Jewitt had received reports of concerns with respect to the Grievor’s conduct during three separate weeks of in classroom training. Second, and more fundamentally, from Mr. Jewitt’s perspective the Grievor’s response demonstrated that he “just didn’t get it”. In particular, Mr. Jewitt noted the role of an inspector is not to “defend” his or her investigation. Rather an inspector is a “gatherer of the facts, plain and simple”. Once the brief is turned over to the Legal Branch, the case is theirs, not the inspectors. Mr. Jewitt testified that all of this explained in the training. He noted the consequences of adopting the Grievor’s view could constitute regulatory negligence, abuse of process and result in the case being thrown out of court. Further, the Grievor’s approach was contrary to the Regulator’s Code of Practice on which he had been instructed. During the meeting, Mr. Jewitt had asked the Grievor why he thought these comments about his conduct had been made. The Grievor responded that he did not know. Mr. Jewitt testified that this also suggested to him that the Grievor did not get it.

40Mr. Jewitt noted that not all of the comments he received about the Grievor were negative. In particular, he received emails, copied to the Grievor, from an inspector and a regional program coordinator which commented positively on the Grievor’s professionalism during his field visit test in or about October 17, 2013 (which I note was after the Grievor received the allegation letter). Mr. Jewitt was also copied on an email to the Grievor from another inspector with respect to a field visit in September 2013 on which the Grievor had accompanied the inspector. Mr. Jewitt expressed the view that these emails spoke to the fact that the Grievor was more comfortable at the technical aspects of the job. He stated he considered this, but noted that there was more to the job than that and the positive comments did not take away from the other concerns which he had.

41Mr. Jewitt noted that there are 12 to 15 inspectors in his region. They sometimes work in pairs, for example with respect to fatality investigations. Mr. Jewitt had assigned the Grievor, and another new inspector, Bruce Marcinyshyn, to work on occasion with other inspectors in order to obtain the benefit of their experience. One of the more experienced inspectors, Andy Johannesson, eventually informed Mr. Jewitt that he was so frustrated by his interactions with the Grievor that he did not want to work with him anymore.

42Mr. Jewitt was asked to comment on the suggestion that discussions among inspectors were sometimes “lively”. He testified that from what he had heard, the Grievor’s conduct went far beyond normal lively discussions. He noted once again that he had no reason to doubt what he had been told. He also testified that overall the Grievor’s attitude seemed to be one of fighting with his employer. Mr. Jewitt testified that he found this to be audacious conduct from a new, probationary employee.

43The probationary release letter also refers to “insubordinate behaviour”. In the letter, Mr. Jewitt notes: “We have previously discussed my concerns regarding travel bookings and use of travel card, use of telephone card, notification regarding your whereabouts during work hours when training ended early, and the job expectations and your work commitment.” These constituted instances in which the Grievor did not comply with standard practices or procedures or sought some form of accommodation. Mr. Jewitt testified that these were small matters, not significant enough to address during the Grievor’s probationary period. He noted, however, that he had already accommodated the Grievor more than any other probationary employee, in acceding to requests that would permit the Grievor to participate in triathlons. In a probationary period, Mr. Jewitt expected probationary employees to put their best foot forward during their probationary period. The Grievor’s conduct was, therefore, troubling. The reason for Mr. Jewitt’s decision to release the Grievor during his probation however was his interpersonal skills.

44The other instance of “insubordinate behaviour” referenced in the probationary release letter is that the Grievor “refused to ride wth two other inspectors in a ministry issued truck”. This instance relates to the Union’s assertion that the Grievor was released from employment as a reprisal for exercising rights under the OHSA. Accordingly, I will address this instance in greater detail.

45During the course of his training the Grievor and Mr. Marcinyshyn were sometimes assigned to work with Mr. Johannesson. Mr. Johannesson drove a Ministry supplied crew cab truck. In the front passenger seat area Mr. Johannesson had installed a stand to support his notebook computer.

46The Grievor is of smaller stature than Mr. Marcinyshyn. He felt some expectation that he would be the person who would ride in the back seat of the crew cab. In his view, there was insufficient room in the back seat to ride for long distances.

47The Grievor first raised this issue with Mr. Jewitt in an email dated May 28, 2013, responding to an email from Mr. Jewitt advising him and Mr. Marcinyshyn that they had been assigned to travel with Mr. Johannesson the week of July 2-5 to conduct field visits of workplaces. The Grievor’s email stated: “We will need a second truck of this trip. There is not much room in the back of Andy’s truck for such a long trip.” Ultimately, the scheduled field visits for the weeks of July 2-5 did not occur.

48At the beginning of August, there was a series of emails with respect to another field visit trip which the Grievor and Mr. Marcinyshyn were to take with Mr. Johannesson. Mr. Jewitt was on vacation at the time, but he was ultimately included in the email thread by the Grievor. On his return, Mr. Jewitt asked Doug Cettina, an inspector who had been appointed acting manager in Mr. Jewitt’s absence, to provide him with a memo describing what had happened. In the email thread, the Grievor had sent an email dated August 2, 2013 to Mr. Cettina in which he stated “… there are three of us in his truck and the back seat does not have enough room for the travelling we will be doing together”. In his memo, Mr. Cettina, a bargaining unit member, advised Mr. Jewitt that “not wanting to get in a confrontational situation as the acting Manager I arranged a pool vehicle for Michael”. Ultimately, Mr. Cettina assigned the Grievor to another task rather than having him accompany Mr. Johannesson and Mr. Marcinyshyn on the field visit.

49Neither the Grievor’s May 28 nor August 2, 2013 email expressly identified the question of riding in the back seat of the truck as a health and safety issue. The evidence, however establishes that it was treated as being at least potentially a health and safety issue by Mr. Jewitt. A Ministry of Labour ergonomist was scheduled to be in Thunder Bay for other reasons the week of June 24, 2013. In an email dated June 3, 2013 Mr. Jewitt asked her to look at the work stations of some employment standards officers and concluded by stating: “In addition there may be some inspectors who would like to discuss their truck set up??” Mr. Jewitt testified in cross-examination that this included any concerns which the Grievor might have (although as it turned out the Grievor did not ask the ergonomist to examine Mr. Johannesson’s truck set up). Mr. Jewitt met with the Grievor on August 19, 2013 to discuss reports that Mr. Jewitt had received that the Grievor had requested a second vehicle in relation to the August field visit. The focus of Mr. Jewitt’s concern was that the Grievor had been unable to make it work with the other two individuals. (The Grievor responded that it was too cramped back there for anyone. This was not consistent with Mr. Jewitt’s experience and knowledge of other, larger, inspectors riding in that seat without concern.) Mr. Jewitt also noted to the Grievor that he had previously discussed the value of riding along with other inspectors, as that is when he would have an opportunity to pick up on their knowledge and experience.

50The issue also came up when Mr. Jewitt met with the Grievor on October 18, 2013. The October 15, 2013 allegation letter stated in part:

In addition, you refused to ride with two other inspectors in a ministry issued truck, to participate in filed visits, as part of your field work training.

During the discussion, the Grievor told Mr. Jewitt that the backseat was too cramped. Mr. Jewitt responded that the backseat was made for sitting on and that he expected that those in the truck would change places from time to time. He also noted that the front seat could be moved forward. The Grievor replied that it was not possible to move the front seat forward because of the stand Mr. Johannesson had installed for his computer. This was the first time that particular concern had been raised with Mr. Jewitt. The Grievor took the position that he had not refused to ride in the backseat of the truck. Rather he had simply said that he wouldn’t expect anyone to ride in the backseat of the truck.

51Following the October 18, 2013 meeting, Mr. Jewitt investigated the Grievor’s concern about the amount of legroom in the back seat. He contacted one of the Ministry’s ergonomists by phone (she was not located in Thunder Bay). She examined a similar truck and advised Mr. Jewitt that the backseat was appropriately designed for sitting and had a lumbar support. Mr. Jewitt examined Mr. Johannesson’s truck. He checked the distances in the front and back seats. He ascertained that the computer stand, although not its base, could be removed by turning one knob and that the front seat went back and forth to accommodate people of different size in the back seat.

52I note that the Grievor’s evidence on these matters differed somewhat from that of Mr. Jewitt. These differences, however, were explicable by the fact that the Grievor and Mr. Jewitt were considering different things. For example Mr. Jewitt measured the space from the forward edge of the seat to the dashboard for the front seat and to the back of the front seat for the back seat; the Grievor’s evidence referred to the fact that a person’s feet can be placed in the space under the dash. They do not cause me to question the sincerity of Mr. Jewitt’s belief that there was sufficient leg room in the backseat of the truck.

53The Union argues that the evidence does not support the allegation made in the release letter that the Grievor refused to ride in a truck with two other inspectors. Rather, the Grievor raised a concern about riding in the backseat of the truck with respect to upcoming field visits. In one instance the field visit did not occur. In the other the field visit took place, but before it did the Grievor was assigned other duties. In neither instance, therefore, did the Grievor refuse to ride in a truck with two other inspectors. This is technically correct. However, it misses the point. Notwithstanding the use of the words in the release letter, the Employer is not required to prove “insubordinate behaviour” for probationary release for non-disciplinary reasons. It is only required to prove a rational basis for its decision that the Grievor was not suitable for employment as an Inspector. It is clear from Mr. Jewitt’s evidence that he saw the Grievor’s insistent request for a second truck as yet another instance of a probationary employee pushing the limits. He also saw it as another instance of the Grievor not taking advantage of the training he was being offered, in that he was effectively refusing an opportunity to travel with and learn from a more experienced inspector. Accordingly, the Grievor’s approach to the issue of riding in the back seat of the truck was relevant to Mr. Jewitt’s determination of whether the Grievor was suitable for employment as an inspector.

54Both parties provided several cases on the principles applicable to reprisal cases. While I have reviewed them, I have not included them as the principles applicable to this case are simple and not really in dispute. The Union argues that in raising the issue of riding in the back seat of the truck the Grievor was raising a health and safety issue. The Employer, it argues, failed to adequately investigate and fulfill its obligations under section 25(2) (h) of the OHSA to take every reasonable precaution in the circumstances for the protection of a worker. The Employer argues that the Grievor, an inspector under the OHSA, failed to properly advance any health and safety concern he might have had, noting that he did not approach a health and safety representative or seek an investigation by another inspector. In my view, it is not necessary to address the accuracy of either of these arguments. The issue before me is not whether the Employer fulfilled its obligations under section 25(2)(h) or whether the Grievor properly advanced any concerns he may have had. The issue is whether the Grievor was terminated because he raised a health and safety concern. There is no real question that the Grievor raised a health and safety concern. There is also no question that the Grievor’s employment was subsequently terminated. The question is whether the Employer has established that there was no causal nexus between the two.

55Mr. Jewitt denied any connection. The Union relies upon the fact that the probationary release letter repeats the allegation contained in the October 15, 2013 and describes it as insubordinate behaviour. Therefore, the Union argues, the letter clearly indicates that the decision to terminate the Grievor was made in part because he had raised a health and safety concern. Accordingly, the Union argues that the Board must find that there was a reprisal.

56I do not agree. The probationary release letter states the Grievor had “refused to ride with two other inspectors in a ministry issued truck and to participate in field visits as part of your training”. It may be that the reason that the Grievor did not want to ride in the backseat of the truck was because he saw it as a health and safety concern. But that was not the reason it was of concern to Mr. Jewitt. Based on his experience and investigations, Mr. Jewitt did not believe there was a safety issue with riding in the backseat of the truck. The effect of the Grievor’s concern was that he did not end up going on field visits with a more experienced inspector. For the reasons stated above, this caused Mr. Jewitt to be concerned about the Grievor’s suitability for permanent employment as an inspector.

57The Union argues that the Grievor in his evidence provided satisfactory explanations for his behaviour throughout the training. Having thoroughly reviewed that evidence, I have no doubt that the Grievor’s perspective on his behaviour differs from that of Mr. Jewitt (and that which was reported to Mr. Jewitt by numerous individuals). Whether the Griever has provided a satisfactory explanation, however, is irrelevant to the issue before me. The Grievor’s release was not discipline for this behaviour. The issue before me is whether the release is bona fide, in that it was made by Mr. Jewitt in good faith, the reasons for release were reasonable and there was a rational relationship between the facts, as understood by Mr. Jewitt, and the release.

58The Union argues that the Employer failed to communicate to the Grievor the standards by which he was to be measured. I do not agree. One of the initial topics addressed in the training is the Regulator’s Code of Practice. The Code highlights certain key values including the importance of trust, respect, fairness, honesty, objectivity and integrity. There was some dispute about the extent to which the Code was reviewed with the Grievor during the training. There was also some suggestion that the Grievor did not have access to a copy of the Code until several months into his employment. There was no suggestion, however, that the Grievor did not understand the key values described in the Code. On the contrary, the Grievor testified that he was aware of the standards and behaviour expected of an inspector. The difference between the parties is that the Grievor believes he complied with them while Mr. Jewitt does not.

59In any event, I agree with the observation of Arbitrator McPhillips at para 38 of Canadian Forest Products Ltd. v. Pulp, Paper and Woodworkers of Canada, Local 25:

… there is no necessity for an employer to state expectations concerning general characteristics which one would obviously expect of any employee: C.A.T. Communications Ltd., supra; Corporation of District of Maple Ridge, supra; Westar Timber, supra. In Corporation of the District of Maple Ridge, supra, Arbitrator McColl stated, at p.14:

Even if we accept the argument that the Grievor was not informed of the standards expected, this case raises the question of whether or not the Employer is required to inform probationary employees of standards which do not specifically relate to the job in question. We think not. An Employer is not obligated to advise probationary employees that they are expected to demonstrate a positive attitude towards their employment or that they are expected to get along with their fellow employees under the terms of this agreement every person who accepts employment enters knowingly into a probationary period. Such a person, by necessity, must be aware that during this period he or she is being scrutinized by the employer to assess his or her "suitability". Common sense suggests, in those situations, that a prospective candidate for tenured employment must not only perform according to the production standards of the job but must not be found to be wanting in such matters as general conduct, attitude and ability to get along well with other employees. In these circumstances there is no duty imposed upon the employer to so advise probationary employees.

60The Union argues that when the Grievor failed to meet the standard of professionalism, he was not afforded an opportunity to improve and thus was not given a fair opportunity to perform in the position. The Union relies upon para. 146 of Devara:

The probationary period is the opportunity for an employer to evaluate and assess a newly hired employee. An employer is entitled to make a bona fide determination as to whether the probationary employee is suited to its workplace. The standards expected of a new employee should be reasonable and made known to the employee. In the event the Employer is of the view that the probationary employee is falling short of expectations, those concerns and criticisms should be made known to allow for improvement.

61The Union relies upon Carito as a specific illustration of the type of assistance which must be afforded when there are concerns with the performance of a probationary employee.

62The Employer notes that both Devara and Carito arose under the collective agreement between CUPE and the WSIB. Article 3.03 of that collective agreement expressly imposes a positive obligation on the employer to “provide training, supervision and regular performance feedback to the employee”: see para. 5 of Devara. There is no parallel obligation under the OPSEU OPS collective agreement. It argues that the obligation to make concerns known to the probationary employee referenced in para. 146 is derivative from Article 3.03. I disagree. A careful reading of Devara shows that at para. 146 Vice Chair Briggs was articulating a general principle derivative from the purpose of a probationary period. She went on to consider the specific obligation created by Article 3.03 in subsequent paragraphs of the decision. Further, the general obligation she articulated is simply a different formulation of the duty of fairness described above. It does not follow, however, that the Employer was required to bring concerns of every sort to the attention of a probationary employee for the reasons stated in Forest Products Ltd. supra.

63There are in any event several subcomponents to this part of the Union’s argument.

64First, the Union argues that Mr. Jewitt was obliged to advise the Grievor immediately when he learned of the concerns expressed about his professionalism during the August training. I do not agree. Mr. Jewitt’s testimony that it took him those two months to complete his investigation into Grievor’s conduct during the training sessions and that he wanted to do so before advising the Grievor about those concerns was not seriously challenged. It was not unreasonable for Mr. Jewitt to have adopted this approach.

65Second, the Union argues that there was an obligation on the part of the Employer to offer the Grievor training in order to address those concerns. I disagree. As Mr. Jewitt testified (discussed further below) it was not apparent what kind of training could be offered to the Grievor.

66Third, the Union argues in the alternative the probationary period should have been extended by two months to compensate for the time it took Mr. Jewitt to complete his investigation. Reference was made to Carito. In Carito, the employer proposed and the union accepted an extension of the probationary period. The decision does not suggest that there was any obligation on the employer to have made this proposal. Further, on the facts of that case the extension may well have made sense as the employee raised specific concerns with the manger who had been supervising her during her probationary period. There is no parallel to this case.

67The Union also relies upon Hotel Fort Garry. In that case an individual was hired as a chamber maid subject to two month probationary period. She was fired after 50 days, ostensibly because of concerns with the performance of her duties on days 49 and 50: allegedly, beds were not made properly, dusting and vacuuming were poor, the rooms were cluttered and personal amenities in the bathrooms were not carefully laid out. There had been no concerns with the performance of her duties on the preceding 48 days. In that context, Arbitrator Peltz stated that assuming the concerns were valid (and he went on to say that he was prepared to find that they were not) the employee should have been advised of those concerns and given an opportunity to address them in the time remaining in her probationary period. There is no parallel to this case. Here the concerns relate not to the performance of specific tasks. Rather they relate, in the words of Arbitrator McColl, to general conduct, attitude and ability to get along well with other employees.

68The Union argues that the Grievor did not receive a “fair assessment” in that a supervisor exaggerated the Grievor’s faults. Reliance was placed upon Agboka. In Agboka a supervisor was responsible for providing training and performance reviews to a probationary employee. While the supervisor did not have the authority to direct a probationary release of the employee, the supervisor had effective power of recommendation. The Board found on the evidence that the supervisor exaggerated the employee’s faults and acted in bad faith in the discharge of these functions. In this case, Mr. Jewitt had the authority and did in fact direct the probationary release of the Grievor. The Union points to the statement in the release letter that the Grievor had refused to ride with two other inspectors as evidence of exaggeration by Mr. Jewitt. While the choice of the words in the letter was not strictly accurate, I am satisfied on the evidence that the concern which Mr. Jewitt was attempting to express was the effective failure of the Grievor to avail himself of a learning opportunity with the two other inspectors. This concern was real, not exaggerated, and reasonable within the context of the determination which Mr. Jewitt had to make.

69In this context, the Union also suggests that the statements made by others about the Grievor’s behaviour in training were inaccurate and thus argues the assessment was not fair. This argument is at odds with the principle, stated at the outset, that the Employer is not required to prove the correctness of the facts underlying its decision. It is enough that Mr. Jewitt had no reason to doubt the accuracy of the concerns which were being expressed to him about the Grievor’s conduct and relied upon them in good faith.

70The Union also argues that the decision to release the Grievor was arbitrary, discriminatory or made in bad faith for many of the reasons stated, and addressed above. In addition, the Union argues that the Grievor was treated in a discriminatory manner, in that he was subjected to a higher standard of behaviour than other inspectors. I do not accept this argument. Once again, what matters for the purposes of this decision is not whether the Grievor’s behaviour was more aggressive and argumentative than that of other inspectors. What matters is whether Mr. Jewitt, acting in good faith, believed that it was. On the evidence, I am satisfied that he did.

71Finally, the Union made a number of other arguments which I will briefly address.

72The Union argues that there were no concerns with the Grievor’s behaviour subsequent to the August training session. I disagree. As Mr. Jewitt testified, the fact that the Grievor did not “get it” during the meeting of October 18, 2013 was fresh cause for concern about his suitability for the job.

73The Union argues that the Employer offered the Grievor training during the October 18, 2013 meeting. It argues that bad faith should be inferred from the fact that having made this offer, training was not provided.

74Mr. Jewitt testified that the meeting on October 18, 2013 took approximately 15 minutes. In attendance on behalf of the employer were himself, Stephanie Snyder, a Human Resources consultant. The Grievor attended with Francis Bell, a Union steward. During the last thirty seconds or so, Mr. Jewitt asked what could be done to make this work. Ms. Snyder asked the Grievor if he would be prepared to take courses. No specific courses were identified. The Grievor nodded yes. The evidence of the Grievor and Mr. Bell was not inconsistent with that of Mr. Jewitt. Mr. Bell described the reference as being to the idea of training.

75No training was in fact offered. Mr. Jewitt testified that following the meeting, he had discussions with his Director and with the Human Resources department. He testified that they could not think of any training that would correct the behaviour and make the Grievor suitable for the job. Mr. Jewitt testified: “He could not accept criticism. How do you train for that?”

76On this evidence, I am unable to find that a specific offer of training was made and then rescinded. Rather, the possibility of training was raised at the end of the meeting and the Grievor indicated that he would be willing to participate in training if it was offered. Further, Mr. Jewitt’s explanation as to why training was not offered is plausible and was essentially unchallenged. In the result, in my view the exchange with respect to training does not support an inference of bad faith on Mr. Jewitt’s part.

77The Union argues that Mr. Jewitt did an inadequate investigation into the Grievor’s conduct during the training in that he failed to interview Gerald Allan, who had positive things to say about the Grievor in his evidence. I am not persuaded by this argument. Mr. Jewitt was not required to interview every conceivable witness to the Grievor’s behaviour. There was no suggestion that he deliberately chose not to interview Mr. Allan. No inference of bad faith can be drawn.

78On September 25, 2013 the Grievor was “badged” (i.e. designated as a Provincial Offences Officer under the Provincial Offences Act with the authority to enforce the OHSA and regulations thereto). The Union argues that this shows that Mr. Jewitt had no concerns with the Grievor and that bad faith should be inferred from his decision in November to release the Grievor from probationary employment.

79Mr. Jewitt testified that he had significant concerns about badging the Grievor at that time. However as he was in still investigating the allegations arising from the Grievor’s behaviour during the August training sessions, he was in an awkward spot. He discussed the matter with his superiors. It was decided to let the badging of the Grievor proceed. However, in a departure from normal practice, because he was in the middle of the investigation Mr. Jewitt did not sign off on the badging, rather a superior did. For his part, Mr. Jewitt ensured, however, that even though the Grievor was badged he was never permitted to conduct a field visit on his own. There was no suggestion that this explanation was inaccurate. I am unable to infer bad faith from the fact that Grievor was badged in these circumstances.

80In summary, the evidence does not support a finding of bad faith on the part of Mr. Jewitt. Further, his reasons for releasing the Grievor related to what generically may be referred to as lack of professionalism. The need for professionalism on the part of an inspector is both a matter of common sense and clearly expressed in the job specification. Thus the reasons for release were reasonable and there was a rational relationship between the facts and the release.

81For all of the foregoing reasons, the grievance is dismissed.