Loading...
HomeMy WebLinkAboutOBrien 99-02-01 - I I , I IN THE l\'IATIER OF AN ARBITRATION - BETWEEN - / I DISTRlCI' OF PARRY SOUND WELFARE ADMINISTRA nON BOARD, (the "Employer') I - and - ~ I ONTARIO PUBUC SERVICE EMPLOYEES UNION, LOCAL 324, (the "Union") I I AND IN THE MA TI'ER OF THE GRIEVANCE OF JOANNE O'BRIEN I BOARD OF ARBITRATION Paula Knopf, Chair Brian O'Byrne, Employer Nominee I Pamela Munt Madill, Union Nominee APPEARANCES: I For the Employer Robert Budd, Counsel Mark FISher I For the Union Peggy E. Smith, Counsel DaD Stewart I I A hearing in this matter was held on December 3, 1998 in Toronto I I I m I INTERIM A WARD I This is a case about the discharge of a probationary employee. The I Employer has raIsed two prelimiIwy objections concerning the jurisdiction of this Board I of Arbitration to hear and consider the merits of the matter After some Initial reluctance by the Union, it was ultimately agreed that the Board of Arbitration would deal with the ~ preliminary objection before any attempt was made to begin hearing the evidence on the merits of the matter I I The grievance states: I I grieve that I have been discbJTged from my position without justification and that the decision was arbitrary, discriminatory, in bad faith and unfair l The Umon does not ask that this Board of Arbitration to apply standards of "just cause" ~ to the grievor's discharge. Through its counsel, the Union has clarified that it takes the posinon that the discharge was discrinunatory and done in bad faith. The discrimination I has been particularized as being based on the grievor's family status, I.e. resultmg from I her matermty leave. I The Employer's pOSItion IS that nothing In the collective agreement gIves this Board of Arbitration jurisdiction over the discharge of a probationary employee. I Secondly, the Employer asserts that the grievance fails to comply WIth Article 8.06 and I that It should fail on that account alone. I I -2- The relevant proVisions of the collective agreement are: 1 01 The general purpose of the Agreement is to establish and mamtaIn collective bargaining relations between the Employer and Its employees, to provide mar.ninery for the prompt 'and equitable disposition of grievances, and efficient operation of the Employer SOl The Union recop'7~ that the management of the operations and the direction of the employees are fixed exclusively in the Employer and shall remain solely with the Employer except as expressly limited by the clear and explicit language of some other provision of this Agreement and, without restricting the generality of the foregoing. the Union acknowledges that it is the exclusive function , of the Employer to: (a) maintain order, discipline and efficiency, (b) hire, assign. retire, promote, demote, classify, transfer, direct, lay oft; recaJI and to suspend, discipline or discharge employees who have successfu1ly completed their probationary period for just cause provided that a claim by an employee who bas successfu1ly completed hislher probationary period that shelhe has been disciplined, suspended or discharged without just cause may be the subject of a grievance and dealt with as hereinafter provided, (d) determine the nature and kind of business conducted by the Employer, the kinds and locations of operations, equipment and materials to be usecL the methods and techniques of work, the number of employees to be employed, the extension, limitation, curtailment or ces"tton of operations or my part thereof: and to determine and exercise all other fimctions and prerogatives which shall remain solely with the Employer except as specifically lim1ted by the express provisions of this Agreement; 8.03 The grievance of an employee properly arising under this Ag:J eement should be adjusted and settled as follows: - 3 - Step No 1 I The employee must submIt a wntten gnevance, SIgned and dated by the employee, to hIs immediate supel'Vlsor The nature of the gnevance, the remedy sought, and the sectIon or sections of the Agreement which are alleged to have been violated shall be set out in the grievance. The immediate supervisor will deliver hislher deCISIon m writing Wltlun three (3) working days after receipt of the grievance in I writing. Failing settlement, the next step of the grievance I procedure may be taken. ~ 8.06 Disc:ha'ie Grievance (a) A grievance involving the discharge of an employee I who has successfully completed his probationary penod must be reduced to writing and originated under Step No.2 within five (5) worldng days of the employee being notified orhis discharge. The nature of the grievance., the remedy sought and the section or sections of the Agreement which are alleged to have been violated must be set out in the grievance which sha1I be signed by the employee. I Notwithrtandini =t"Yfh;ni in this Ai I ~f!nt, a probationary employee ml\Y be dischm:aed at the ~ole di~~et1on nf and for af\Y reason ~atimctn1Y to the Emplqyer and such action by the Enwloyer is not subiect to the i:rieVHnc:e and arbitration pmc:edure!; and dne~ not c:onmtute a differenc:e between the parties. [Emphasis added] 903 No matter may be submitted to arbitration which has not been properly carried through all requisite steps of the grievance procedure. 904 The Board of Arbitration shall not have any power to amend, alter, modify or add to any proVIsions of this Agreement or to substitute any new provision for any existIng provisions, nor to render any decisions mconsistent WIth the terms and proviSIOns of tlus Agreement. I -4- ] I; The Submi~!ion! of the Parti~ I Counsel for the Employer stresses that the parties have negouated a I collective agreement which gives specific rights to management to discharge a probationary employee .at the sole discretion of and for any reason satisfactory to the I Employer" Further, this right has not been limited in any way by other provisIOns of the ~ collective agreement. It was emphnized that the parties have gone so far as to define the discharge of a probationary employee as being something that is not subject to the I grievance and arbitration process and that it would not "constitute a difference between the parties" which could be litigated before a board of arbitratIon. Counsel for the - Employer submitted that the collective agreement could not be more clear in expressing the parties' intention to keep the discharge of probationary employees away from the arbitration process. It was argued that the parties have the right to make such a bargain - and that it would be a jurisdictional error for a board of arbitration to hear the merits of the matter : \ In addition, counsel for the Employer submitted that even though the grievance purports to raise the allegations of discrimination and bad faith, nothing in the collective agreement fetters management's rights to a.dmini~er the coDective agreement in 1 a discriminatory or bad faith way Even if the Employer were to administer the collective agreement in such a way, which is ,nSllmSllntly denied in this case, it was argued that ArtIcle 8.06 defined such conduct as being something that would not constitute a .difference" which would be arbitrable in the case of a probationary employee. Instead, it was said that allegations of discrimination could be litigated bcfcrc the Human Rights COmmisSIOn. However, my question about the "good faith" admuustration of the I -5- ~ collectIve agreement WIth regard to the discharge of probatIonary employees could not be I: submitted to an arbitration board. I Counsel for the Employer referred to the Labour Relations Act of Ontano, I Section 48(1), winch deems every coIlective agreement shall proVIde for binding arbitration of "all differences betWeen the partIes arising from the implementatIon, I application or adnumstratlon [of the agreement] ., including any question Including any question as to whether a matter is arbitrable." The position of the Employer is that the l parties have exercised their rights under this collective agreement to define the discharge I of a probatIonary employee as being somethmgother than "a difference" that would be subj ect to arbitration. The Employer relies on the following cases as supporting Its position. Treasury Board re Leeming, unreponed decision of the Supreme Court of Canada dated January 27, 1981, Metropolitan Toronto Board o/Commissioners of Police and Metropolitan Toronto Police Association et a/. (1981), 124 D.L.R. (3d) 684 (Ont. C.A.), Consumers' Gas Co. and Independent Gas Workers' Union, Local S}3 (1982),4 L.AC. (3d) 25 (Kennedy), HydroElectric Commission o/the City a/North York and Canadian Union o/Puhlic Employees, Local 11 (1983), 10 L.A.C. (3d) 193 (Knopt), Ontario Hydro and Hydro Employees' Union, Local 1000 et aL (1983),41 O.R. (2d) 669 (Ont. C.A), Norfo//c Association for Mentally IUtoTded and O.P.s.E. U. (1990), 10 L.A.C. (4th) 252 (Verity), Cami Automotive Inc. and Canadian Automobile Workers, Local 88 (1991), 19 L.A.C. (4th) 49 (Brandt), Markham Hydro Electric Commission and International Brotherhood a/Electrical Workers, Local 636 (1992),24 L.A.C. (4th) 412 (Knopf) md The Boys' Home and Canadian Union of Public Employees Local 3501, unreported decision of Anne Barrett dated November 27, 1997 The Employers secondary argument is that the gnevance has failed to comply with Aniele 8 06 in that It does not set out the provisions of the collective -6- ~ agreement which are alleged to have been violated. It was argued that ArtIcle 8.06 IS a substantive requirement in the collective agreement that has not been honoured. On thIs basis, it was said that the grievance should fail. In support of this propoSItion the Employer relics on the following cases: IntemaJiD1ZDl Union, United Automobile, Aerospace & Agricultural Implement Workers of America et aI, and Massey-Ferguson LId. et aJ. (1979). 94 DL.R. (Jd) 743 (ant. C.A) and Ontario Public Service Employees Union, Local 585 and Kennedy H~ Youth Services Inc. (Ajax) Rotherglen Centre, 1 unreported decision oflan A Hunter dated June 10, 1996. The Union began its submissions by responding first to the Employer's argmnent that the grievance bas Wled to comply with Article 8.06. It was pointed out that the primary basis for the Employer's jurisdictional argument is that there is no clause in the collective agreement that the Union can rely upon to protest the discharge of the grievor Accordingly. the Union says that it was impossible for it to cite a provision of the collective agreement in the grievance itself: Instead, it was stressed that the gnevance specifies the allegation that the discharge was done in a discriminatory manner It was streSSed that section 48(12)0) of the Labour &ltztions Act gIVeS boards of arbitration the power to "interpret and apply human rights and other employment-related statutes despIte any conflict between those statutes and the terms of the collective agreement." I Accordingly. it was stated that the reference to discrimination and the incorporation by I reference of the Human Rights COIk to the collective agreement are a full answer to the r Employer's argument that the grievance has failed to comply with Article 8 03. Step 1 I f Turning to the JUrisdictional argt:ment, the Union submits that its case is based on allegations of discrimination and bad faith as a result of the discharge of the grievor a few days after her return from matermty leave. It was admitted that the collectIVe agreement between the parties in this case gIVes management a great deal of I I -7- I nghts and discretIon. However, It was submrttcd that nothIng m the cases crted by the I Employer and nothing m the collective agreement can deprive the gnevor of her nght to have the collectIve agreement admJni~crcd in accordance with the Human Rights Code I It was stressed that the scheme of the Labour Relations Act of Ontario is such that matters involvmg discnmination in employment should be litigated in the forum of an arbItratIOn, I rather than the Human Rights COmmISSIOn. Further, it was argued that the "general I purpose clause" of the ccllectJve agreement articulates that the purpose of the Agreement IS to "provide machinery for the prompt and equitable disposition of grievances" and I cre:1tes an implied duty to act in good faith, even in the case of a probationary employee. It was argued that if the Employers argument is taken to its logical conclusion, then a I probatIonary employee would have no protection from diSCI"lmin,bon or VIolations of the Human Rights Code. The Union relies on the following cases in support of its assertIon - that this Board of Arbitration has jurisdiction over the grievance, as framed: Brampton Hydro Electric Commission v. C..A..W, Local 1285 (1983), 150.R. (3d) ro, Teranet Land Information Services Inc. O.P.s.E. U (1994), 40 L.A C. (4th) 418 (Mitchnick) and f HoteJ-Dieu Grace Hospital and O.N.A. (1995), 47L.AC. (4th) 66 (Watters). : In reply to the Union's argument, the Employer stressed that the collectIve agreement betWeen these parties should be honoured. It was said that the "integrity of the deal" made in conective bargaining was to exclude boards of arbitratIon from consldenng the merits of a discharge case of a probationary employee. Further, it was argued that the attempt to use the purpose clause in the collective agreement as a basis of jurisdiction is "preposterous", and further, that the clause implies no duty to adnnmster the collective agreement in good faith. Further, it was stressed that this colleCtIve agreement does not attempt to contract out of the responsibilitIes under the Human Rights Code Instead, It was said that any complamt the grievor may have that concerns her nghts under the I -8- I I Human Rights Code should properly be litigated before the Human Rights COmmisSIOn, not a board of arbitration. I The Deddon I I A board of arbitration has no independent jurisdiction. It has no inherent powers. All the power and authority is specified in the collective agreement created by the I .1'arties and the legislative scheme in which they operate. Therefore, the question of wnCtlIer tnD Boara or JUormwun Ji8S jurisdiction over this grievance must be decided I strictly within the confines of this collective agreement and the laws of Ontano. I This collective agreement is very specific. The parties have agreed that a I probationary employee can be discharged at the .sole discretion and for any reason ~tis&ctory to the Empieyet' (Article 8.06). A!J the Union admitted, this language removes the protections of just cause from the reach ofa probationary employee. Further, ArtIcle 8:06 specifies that the disclwge of a probationary employee "is not subject to the grievance and arbitration process and does not constitute the difference between the parties.. Tlus is clear and explicit language restricting the rights of probationary employees and preventing 8(X~ to arbitration over the discharge of a probationary employee. The deal the parties make in collective bargaining is their choice to craft. The wisdom or the propriety of their arnngement is not a subject area of any concern to a board of arbitration. In the case at hand, the wording of the collectIve agreement suggestS that the parties have agreed to give no jurisdiction over the discharge of probationary employees to a board of aa'bitwion. The only way the Umon can succeed in the Junsdictional argument IS to establish an implied duty to act in good faith and/or In a non-discriminatory manner or to I ~'~""'."""'.v"..lI."""~"-'~"~_ ,,~""':""'-lro.. ~ X_..... "".....~..... ~ _ .....' ..aJ~ ......~ __ ........L.~........~-LJI_.~ _______... \ - II -9- I establish that the statutory scheme in Ontario gives junsdiction over the substance of the I gncvance. For purposes of this analysis, the case law gives some assistance. I In the Leeming case, supra, a probationary employee grieved that her discharge was without just cause. The collective agreement only gave employees who had I completed their probationary period the right to grieve for discipline or discharge that was I imposed without just cause. However, the applicable legislation gave employees the right to grieve matters involving the "interpretation or application" of their collective agreement I and the "disciplinary action resulting in discharge." The Supreme Court of Canada concluded that the legislation did not "confer substantive rights upon employees in I addition to their rights as defined in the collective agreement." Instead the legislation only I conferred the procedures for the presentation of a grievance. It was held that the merits of the grievance "must be determined in accordance with the provisions of the collective I agreement. " I Whether a collective agreement contains substantive rights that can be I arbitrated has been canvassed in the evolving case law concerning whether management rights must be exercised fairly and/or without discrinunation. This case law has been ably I canvassed by several of the arbitrators in the cases cited by both parties. Essentially the I cases establish that there may be no absolute duty to apply a conective agreement in good faith. However, the duty to administer a collective agreement in a certain manner may be I implied from the collective agreement read as whole. Accordingly, in contracts that can be read to unpose no duty offairness, none will be applied: SeeMerropo/itan Toronto I Police. supra, Consumers Gas. supra, North York Hydro. supra. Noifo/Ie, supra. I Markham Hydro. supra and Boys' Home. supra. Conversely, where a collective ~ bmlent has an implied duty to act in good faith and to act WIthout discrimination or I arbttranness, the contract is read to give jurisdiction to a board of arbitration to enquire as I I - 10- I to whether a probatIonary employee has been accorded those rights even If a collective agreement provides that the discharge of a probationary employee 1$ not subject to I arbitration. See Brampton Hydro, SIlpTCl, and Hotel Dieu, supra. In those cases, while I the probationary employee did not have the protections of "just cause", a board of arbitration was empowered to determine whether the employee had been accorded the l right to have the collective agreement applied in good fiuth. 1 Therefore, we must look closely at the collective agreement between the I parties in this case. The purpose ~IU!e of this collective agreement commits the parties to the "prompt and equitable disposition of grievances. II Yet it defines a discharge of a I probationary employee as not being a diiference between the parties. If there is any I obligation to apply tbjg collective ~ent in an eqwtable or good faith manner, this - collective agreement has been negotiated not to extend that duty or obligation to . I probationary employees. While it is. surprising to have an employer assert ffieright to a~ply a collective agreement in anything other than a good Wth manner, it cannot be I, concluded that anything in the language of this collective agreement implies an oblipnon "- . ------.- I to act in good faith regarding the discharge ofprobatioaary employees. Put in a more-' .- --- positive manner, this collective agreetUent clearly imposes no fetters on management.s i right to terminate a probationary employee for any reason that it feels fit. Therefore, this Board of Arbitration has no jurisdiction over the allegation that the grievor, as a probationary employee, was treated in bad faith with regard to her discharge. I I I , - 11 - I I This still leaves open that the griever was treated in a disCI1minatory I manner TheHumanRightsCodeR.S.O 1990 Chapter 19 section 5(1) proVIdes: I 1 Every person has a right to equal treatment with respect to employment without discrimination because of ~ ancestry, place I of origin, colour, ethnic origin, citi%e'1Ship, creed, sex, sexual orientation, age, record of offences, manta! status, family status or I handicap. ~ I Section 48(12)0) of the Labour Relations Act provides: An arbitrator or the chair of an arbitration board as the case may be, has power, .... to interpret and apply human rights and other employment-related statutes, despite any conflict between those statutes and the terms of the coDectIve agreement Read together, the Labour Relations Act comers power on a board of arbitration to interpret and apply the Human Rights Code despite any conflict that may arise or appear to exist with the collective agreement. This means that even if the panics to a collective agreement craft provisions which conflict with the Human Rights Code, the Code will prevail and the board of arbitration has the power or the jurisdiction to interpret I and apply that agreement in a manner that would comply with the Code. Further, the parties cannot contract out of their rights and obligations under the Code. In the case at band, the Employer asserts that the collective agreement does not conflict WIth or purport to contract out of the right to be free of discrimination. - - 12- 0 - Instead, the Employer stresses that the griever can simply assert her rights or complaints before the Human Rights Commi~sion, not a board of arbitration. But for i section 48(12)0) of the Labour Relations Act, there may be some merit to the Employer's position. However, section 48(12)(j) of the Labour Relations Act obligates and I empowers a board of arbitration to interpret a collective agreement in a manner COnsIstent II with the Fllm~" Rights legislanon in this pnnince. The Human Rights Code prohibits discrimination on the basis offamiIy status. This collective agreement must be interpreted I and applied in a manner that is consistent with the statutory rights available to aD r"' employees, including probationary employees. I I This collective agreement does not give a probationary employee the right to grieve the justness- or the bonaftdu of a discharge. Nor does the collectIve agreement - allow a board of arbitration to interfere with the discretion of the Employer in deciding to - release a probationary employee. The parties have agreed to leave such matters to the sole prerogative of' mR"~gement. But the Labour Rs/ations Act imposes an overriding I requirement upon the parties and their coDective agreement that ensures it will be applied in a manner consistent with the Human Rights Code. Further, the power to interpret and - apply that duty resides with a board of arbitration constituted under the collective I agreement. I The case at hand is distingni~hlble from all the other cases cited by the Employer in that we have a specific allegation of cliscrimination in this case. In the I Leeming case, supra, the Supreme Court of C""Rda was able to conclude that the I legislative scheme reprding arbitration did not confer any substantive rights upon employees. Therefore, a board of arbitration could not apply or enforce substantive I rights. However, in the case at hand, the Labour Relations Act does import the substantive rights under the Human Rights Code Into a collective agreement over winch a I I - - 13 - ~ I board of arbitration has jurisdiction. Further, in none of the cases cited by the Employer was there an allegation that the griever had been treated in a discriminatory manner I Therefore, this case is distinguishable from the case law cited above. I For all these reasons, we have concluded that this Board of Arbitration has I the power and the responsibility to hear and determine the narrow question of whether discrimination was a factor in the discharge of the griever J I The second argtm'Ient of the Employer can be dealt with more easily Article 8.03 Step 1 does require that the "nature of the grievance, the remedy sought and I the section or sections of the collective agreement which arc alleged to have been violated I shall be set out m the gnevance." This is a practical provision in the collective agreement that allows an employer to identify the nature of the grievance which is being brought - forward by the griever and the union. The language of this collective agreement does specify that the allegations "shall be set out" and sha1I specify the provisions in the I conective agleetnent which are alleged to have been violated. The grievance in this case I does not allege the violation of any specific provisions of the coUective agreement.. Indeed, it could not do so b~t1J2'! there arc no specific provisions in the collective I agt eement which the Union could point to as the basis for the grievance. However, the grievance does specify that the discharge is being challenged because of the allegations of I arbitrariness, discrimination, bad ~ unfairness and "without justification." The only I part of the gnevance which is arbitrable is the allegation of discrimination. That has been specified. It is clear. It meets the substance of the requirements of Article 8.03 Because I oftbis, the grievance must be read as being in compliance with Article 8.03 of the collective AgI eement. Therefore, the Employers submission that the fonn of the grievance I tails to comply with the collective agreement is. not accepted. I - .. 14 - I Cnn~lu!C:;nn I I nus Board of ArbItratIon has concluded that It has JurisdictIon to determIne whether discrunination was a factor in the discharge of the griever We have I further concluded that the grievance itself complies with the provisions of the collectIve agreement. Accordingly, we shaIl reconvene to hear the merits of the dispute, solely as it I pertains to the allegatioD of discrimination, on the dates agreed upon by the parties. In I order to facilitate the litigation and in the spirit of Article 1 01 of the collective agreement we expect the parties to o:C!hstnge particulars prior to the commencement of the I proceedings. Further, we expect the parties to exchange copies of all the documentation I that they intend to rely upon at the hearing. I DATED at Toronto, Ontario, this 1st day ofFebruary, 1999 0 - - I I dissent. See attached "Brian O'Byme" I Employer Nommee - 1 concur "Pamela Mum Madill" I Union Nominee I I DISSENT OF BRIAN O'BYRNE. EMPLOYER NOMINEE I do not agree WIth the Clwts decisIon that our Board has Junsdictton to detenmne whether discrimination on the basis of family status, was a factor in the discharge of the Grievor It is hard to think of any clearer wording that the parties could have used in their agreement to proclaim their mutual desire that the discharge of a probationary employee was not to be subject to arbitration in any manner, shape or form. In tact, the parties even put a further excJ~mKtion point OD this by stating in their agreement that the discharge of a I probationary employee "does not constitute a difference between the parties. i I I i DespIte tlus very clear admonition to Arbitrators that they were to have nothing to do with the discharge ofa probationary employee, the majority of the Board in this case, has chosen to take jurisdiction albeit over the limited issue, as to whether discrimInation on the basis of family status, was a factor in the dDr.f1arge. Both the Labour Relations Act (section 48) as well as the collective agreement between the parties, stipulate that what gets arbitrated is a: II difference between the panics arising from the interpretation, application, administration or alleged violation of the agreement" It is fundal11l!!nt~1. therefore, to the jurisdiction of an Arbitration Board that there be such a difference between the parties. In our case, the parties have told us clearly in their I, agreement that the discharge of a probationary employee, for whatever reason, does mtt constitute a difference between them. In light of that clear statement, I simply do not see how our Board has anywhere to go or put more properly. has any Junsdict10n to go anywhere. The ChaIr In finding jurisdiction, relies on section 48(12)0) of the Labour Relations Act winch provides that an Arbitration Board has power to Interpret and apply human rights and other employment related statutes, despite any conflict between those statutes and the terms of the collective agreement. The Chair says at page 11 that: I i · this means that even if the parties to a collective agreement craft I ! provisions which conflict with the Human Rights C0d6. the Code will i prevail and the Board of Arbitration has the power or the jurisdiction to interpret and apply that agreement in a manner that would comply with the Code. Funher, the parties cannot contract out of their rights and obligations under the Code. If In general, I would agree with those statements. Taking the last statement first, no one would disagree with the Chair that parties cannot contract out of their rights and obligations under the Human Rights Code. However, no one is purporting to do that in this case. The Employer made it clear that the Grievor was free to file a complaint WIth the Ontario Human Rights COmnUssJOD if she felt that her rights under the Code bad been violated. With respect to the Chairs first statement quoted above, I would agree that if the parties crafted provisions which conflicted with the Code, the Code would prevail. However, the forum for detennining such matters is not necessarily arbitration and it is WIth respect to this issue that I have a fundamental disagreement with the Chair Had our I I I collective agreement not contained the provision that provided that the discharge of a , probationary employee was not to be arbitrated and would not constitute a difference between the parties, I wouJd have agreed with the Chair's decision. However, in my view, I the parties are free to detenmne what constitute:s a difference between them, which can I then be arbitrated. I This is not a case where the parties or the Employer are seeking to deprive the Grievor of I her right to be free from discrimination. Rather, it is a case where the forum she has chosen to litigate her claIm, is simply not available to her by virtue of the agreement r between the Employer and the Union I There is nothing at all illegal or wrong in the Employer and the Union agreeing that they , will not arbitrate the discharge of a probationary employee. If any statutory rights of the probationary employee were infringed by the termination, then she is perfectly free to , pursue her rights in the particular fonun provided under the statute m issue. I In my VIew, the majonty of the Board has exceeded their jurisdiction by takingjunsdiction I in this case when the parties have clearly told us that an Arbitration Board was not to deal With the discharge of a probationary employee. Section 48(12)0) of the Labour Relations I Act could only be utilized if a Board of Arbiuation had junsdict10n in the first mstance to deal with a particular dispute between the parties. In our case, since there was no J difference between the parties, that should have been the end of the matter Our Board ~ I g I bas no Junsdictlon to deal with this case and section 48(12)(j) of the Labour Relations Act I should not even come Into play I DATED at Toronto, Ontano this 1st day ofFebnwy 1999 I I "Brian O'Byrne" I I I I I I I I I I I I