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HomeMy WebLinkAboutEllis 90-11-14 90A938 Caat A Local 556 IN THE MATTER OF AN ARBITRATION BETWEEN ONTARIO PUBLIC SERVICE EMPLOYEES UNION - and - GEORGE BROWN COLLEGE Grievance of Tre¥or Ellis INTERIM AWARD Before: M.G. Mitchnick - Chairman J. Herbert - Union Nominee D. W. Guptill - Employer Nominee Appearances: For the Union: C.G. Paliare, Counsel T. Ellis For the Employer: F.G. Hamilton, Counsel Sally Layton Hearing held in Toronto on September 5, 1990 INTERIM ]%WARD This grievance arises out of the termination by the College of Trevor. Ellis, hired as a Teaching Master September 1, 1988, during the term of his probationary contract. The College takes the position before the board that the matter is not arbitrable. On December 7th, 1989, the College sent to Mr. Ellis a letter of termination as follows: Dear Mr. Ellis, I have received two evaluation reports from the Dean of the Technology and Science Division in this academic year. I have also received a Probationary Teacher Report which reflects deficiencies in your-teaching ability and in your interpersonal skills. In accordance with our agreement, as signed by you on July 31, 1989, this constitutes the immediate termination of your employment with the College. Your termination is effective Friday, December 8, 1989. We will prepare a final cheque for you which includes your outstanding vacation balance. Please pick up your cheque on Friday from Bill Houghton, Chairperson of the Electrical Department. Mary Hofweller, Manager of Benefits, will be contacting you, by mail, to arrange for termination of your benefit package. We regret that our extension to yoUr employment did not have a more positive outcome. Yours truly, "S. Layton" Sally Layton, Director, Human Resources Mr. Ellis responded by "grieving" the said dismissal in a letter dated December 19, 1989, which read: - 2 - December 19, 1989 Mr. D. E. Light President George Brown College Casa Loma Campus P.O. Box 1015, Station B Toronto, Ontario M5T 2T9 Dear Mr. Light, My employment with the college was terminated on the 8th of December, 1989. I am hereby making a formal complaint to you with respect to my dismissal. I grieve unjust dismissal. I am, yours truly, "Trevor Ellis" Trevor Ellis cc. Amy Thornton, President, local 556, OPSEU Tom Tomassi Marilyn Youden Raj Anand, Scott & Aylen Paul Cavalluzzo The College's response to that letter was to list the matter of Mr. Ellis's termination on the "Agenda" published for the Union/College committee Meeting scheduled for January 10, 1990. The grievor, however, was unhappy with the Union representation available to him for that meeting, and the College re-scheduled the discussion of Mr. Ellis to the next meeting, setting that out to Mr. Ellis in a letter dated January 12, 1990: - 3 - January 12, 1990 Mr. Trevor Ellis 1 Massey Street Brama!ea, Ontario L6S 2V5 Dear Mr. 'Ellis: We are writing in response, to your letter to Mr. Light of December 19, 1989. A meeting of the Union/College Committee has been scheduled to discuss the concerns you raised about your termination of employment. The meeting has been scheduled as follows: Date: Tuesday, February 6, 1990 Time: 3:00 p.m. Place: Room C318, 160 Kendal Avenue We look forward to seeing you at this meeting. Yours truly, Sally Layton Director, Human Resources cc. M. Youden A. Thornton That meeting did take place as planned, and the discussion thereat involving Mr. Ellis is highlighted in the Minutes as follows: Ontario Public Service Employees Union, Local 556 2-329 St. George St., Toronto, Ontario. M5R 2R2 Telephone 968-2155 / Fax 968-3978 MINUTES OF THE COLLEGE/UNION COMMITTEE MEETING TUESDAY FEBRUARY 6TH.. 1990 - 146 KENDAL AVENUE PRESENT: S. Layton, M. Kerman, S. Donovan A. Thornton, P. Chiasson, T. Tomassi GUESTS: Shirley Holloway, Dean, Technology Bill Houghton, Chairperson, Electrical Trevor Ellis, Marilyn Youden, O.P.S.E.U. Rep. - 4 - TREVOR ELLIS The Committee advised that since this is a dismissal case, presentations will be as follows: management, then Mr. Ellis and/or OPSEU Staff Rep. Ms. Youden, followed by a rebuttal by management. Time limit of 15 minutes per presentation was set. Staff Rep. Ms. Youden asked if it would be alright for a short caucus after management presented theircase. The Committee had no objection to this request. It was agreed that questions woul~ be limited to fact finding questions. Shirley Holloway introduced herself as Dean of Technology and advised that she has been the Dean of Technology for the duration of Mr. Ellis's probation and that there has been two Chairs, George Danac who is now retired and Bill Houghton. Management presented their reasons for the termination of Mr. Ellis' probationary contract. Ms..Youden asked the question: "Who has the authority to terminate an employee of George Brown College"? The College responded that the President, the two Vice- Presidents and the Director of Human Resources have the authority to terminate a full-time employee of George Brown College. O.P.S.E.U. Staff Rep. Ms. Youden assisted Mr. Ellis in presenting his case giving reasons why they felt Mr. Ellis' termination was not justified. The members of the Committee then proceeded to ask questions of the presenters for clarification. Management gave a rebuttal. Marilyn Youden, Trevor Ellis, Shirley Holloway and Bill Houghton were thanked for attending and excused from the meeting. Discussion by the Committee ensued with respect to the presentations which were made. The College members of the Committee took a short caucus to discuss the matter and returned with the following decision: The College advised that after careful consideration of the facts, they are not prepared to reverse their decision, therefore the termination of Mr. Ellis' probationary contract stands and the Union is requested to advise Mr. Ellis of this decision. - 5 - That decision was confirmed in writing at the grievor's request, the next correspondence after which has the Union writing to the College on the grievor's behalf as follows: Ontario Public Service Employees Union February 28, 1990 Sally Layton Director of Personnel George Brown College P.O. Box 1015, Station B Toronto, Ontario M5T 2T9 TREVOR ELLIS - UNJUST DISMISSAL GRIEV~NCE DATED DECEI~ER 19, ~989 Dear Ms. Layton: This will confirm that the parties have agreed to waive Step Two in the above captioned grievance. We will be proceeding to arbitration. Yours truly, "Marilyn Youden" Marilyn Youden Staff Representative MY/lrf cc-- T. Ellis A. Thornton, L556 J. Ford, Griev. Dept.. And again subsequent to that: -- '6 -- Ontario l~blic Service Employees Union 12 March 1990 OPSEU File No: 90A938 The President George Brown College (A) P,O. Box 1015, Station "B" Toronto, Ontario M5T 2T9 ~ Dear Sir/Madam: Re: Grievance(s) of ELLIS, Trevor, Local 556 Dismissal Grievance(s) Dated December 19, 1989 This is to advise that your reply to the captioned grievance(s) is not satisfactory. We are, therefore, referring the matter to a Board of Arbitration. By copy of this letter, we are bringing this matter to the attention of The College Affairs Branch, Ministry of Colleges and Universities so that the selection of a Chairman and a date for a hearing may be arranged. If further information is required, please contact Jo~n For4 in the Grievance Department. Yours truly, "Kevin Park" Kevin Park Coordinator of Grievances KP/tm cc. C. Pascal, Chairperson Council of Regents R. Spargo, Staff Relations Co-ordinator S. Kehimkar, College Affairs Branch R. H. Field, College Relations Commission W. Krawczyk Trevor Ellis Marilyn Youden, Staff Representative Amy Thornton, Local President - 7 - And finally, in the week prior to the hearing of this matter, with both parties by that time having retained counsel to represent them, Mr. Paliare on behalf of OPSEU wrote to Mr. Hamilton concerning this matter as follows: September 4, 1990 DELIVERED BY FAX - 362-9680 Mr. Fred Hamilton, Q.C. Messrs. Hicks, Morley, Hamilton Barristers and Solicitors 30th Floor, Box 371, Toronto-Dominion Tower Toronto-Dominion Centre Toronto, Ontario M5K 1KS Dear Mr. Hamilton: Re: OPSEU & George Brown College Grievance of Trevor Ellis - Dismissal As I indicated to you last week, we have been retained on behalf of the Union to act on behalf of Mr. Ellis with respect to his arbitration scheduled for September 5th. As I further indicated in my telephone conversation, we will be alleging bad faith on the part of the College with respect to this termination. In that regard, for the purposes of this hearing, we are prepared to proceed first in calling the evidence with respect to bad faith. We will be asserting the following: 1. The parties entered into an agreement concerning Mr. Ellis in July 1989. 2. The employer undertook that it would not rely upon any previous allegations concerning Mr. Ellis in evaluating him during the fall 1989 academic year. .3. In the July 1989 agreement the employer undertook to evaluate Mr. Ellis twice during the fall 1989 semester. The employer failed to provide copies of any evaluations to Mr. Ellis with respect to that semester until December 1989. At no time was he given either a copy of the evaluations which may have been done during that time frame nor was he provided with~any feedback, orally, from any of his supervisors. - 8 - 4. If the employer had evaluations which were less than satisfactory and did not provide either the evaluations or the information to Mr. Ellis, we .will asserting [sic] that such conduct constitutes a violation of the July, 1989 agreement and bad faith. 5. In the letter of termination, the employer relies upon.Mr. Ellis' alleged deficiencies in his teaching ability and in his "inter-personal" skills". No where in any of the evaluations in the academic year 1989, nor in any other memorandum, is there reference made to any real or perceived problem with respect to Mr. Ellis' "inter-personal skills". It would appear that the employer has relied upon alleged conduct that occurred long before the July, 1989 agreement and thereby again, violated the July agreement and acted in bad faith. I trust that the above will further assist you with respect to the position we will be taking at the hearing. Yours very truly, GOWLING, STRATHY & HENDERSON "C. G. Paliare" Chris G. Paliare CGP/ajm cc: Ms. Amy Thornton cc: Mr. Trevor Ellis There has, of course, been a great deal of litigation over recent years on the question of the right of a probationary employee to challenge a discharge, and these particular parties (in the sense of OPSEU and the Community Colleges in general) appear to have had more than their share. One would expect that by now the parties would be approaching a certain level of common - 9 - understanding over the-"rules" surrounding this issue, and indeed, the submissions made to us by counsel for both sides reflected this. Mr. Paliare, for his part, acknowledged that the. grievor is limited by the jurisprudence to challenging his discharge on the basis of "bad faith". Here, however,. Mr. -Paiiare submits, the grievor signed an agreement with the College in July of 1989 setting out the expectation of how the remainder of his probationary period would be administered, and the College then subsequently failed to honour those commitments. It is those "broken promises", Mr. Paliare asserts, that establishes the right of the grievor to be at arbitration in the present case. And in any event, argues Mr. Paliare, there is a long line of cases establishing that a party who waits until the last minute before arbitration to object to the arbitrability must be taken to have "waived" the objection. Mr. Hamilton also acknowledges the state of the case law but argues that this collective agreement makes a clear distinction between matters that can be dealt with through the grievance/arbitration procedure, and those that are restricted to discussion at the Union/Management Committee. The discharge of a probationary employee, Mr. Hamilton submits, because it is specifically stated not to be grievable is one of those matters -which fall under the latter category, as indeed both parties' handling of the matter in its earlier stages (including the failure to use even the OPSEU standard grievance form) clearly reflected. Mr. Hamilton acknowledges that the courts have - 10 - determined that a probationary employee, though otherwise barred from grieving his discharge, may nonetheless retain a right to challenge that discharge on the basis of bad faith; but to do so, Mr. Hamilton submits, the cases have made it clear that the allegation of bad faith must be asserted on the face of the -grievance itself. Further, that distinction has been recognized as one involving substantive rights of the parties and, therefore, Mr. Hamilton submits, cannot be waived by the conduct of the parties. In any event, adds Mr. Hamilton, the appointment of nominees and chairpersons under this particular collective' 'agreement is handled on a centralized basis, and there has been no "fresh step", in the language of the cases, on the part of George Brown College which would now cause that "waiver" principle to be applied against the College at the hearing. The provisions of the collective agreement to which the parties make reference in this matter are as follows: Article 7 MANAGEMENT FUNCTIONS 7.01 It is the exclusive function of the Colleges to: (a) maintain order, discipline and efficiency; (b) hire, discharge, transfer, classify, assign, appoint, promote, demote, lay-off, recall and suspend or otherwise discipline employees subject to the right to lodge a grievance in the manner and to the extent provided in this Agreement; (c) to manage the College and, without restricting the generality of the foregoing, the right to plan, direct and control operations, facilities, programs, courses, systems and procedures, direct its personnel, determine complement, organization, methods and the number, location and classification of personne~ required from time to time, the number and location of campuses and facilities, services to be performed, the scheduling of assignments and work, the extension, limitation, curtailment, or cessation of operations and all other rights and responsibilities not specifically modified elsewhere in this Agreement. 7.02 The Colleges agree that these functions Will be exercised in a manner.consistent with the provisions of this Agreement. Article 8 SENIORITY 8.01(a)(i) A full-time employee will be on probation until the completion of the probationary period. This shall be two (2) years' continuous employment except as described hereafter. 8.01(c) On successful completion of the probationary period, a full-time employee shall then be appointed to regular status and be credited with seniority equal to the probationary period served. 8.01(d) During the probationary period an employee will be informed in writing of the employee's progress at intervals of four (4) months continuous employment or four (4) full months of accUmulated non-continuous accUmulated employment following the commencement date of the employee's employment upon at least thirty (30) calendar days' written notice and~during the remainder of the employee's probationary period upon at least ninety (90) calendar days' written notice. If requested by the employee, the reason for such release will be given in writing. $.02(a) It being understood that the release of an employee during the probationary period shall not be the subject of a grievance under the Grievance Procedure but may be subject to the internal complaint process as referred to in Article 14.02(iv), an employee who has completed the probationary period and is discharge for cause may lodge a grievance in the manner and to the extent provided in the Grievance Procedure. - 12 - Article 11 GRIEVANCE PROCEDURES 11.01 Articles 11.01 to 11.05 inclusive apply to an employee covered by this Agreement who has been employed continuously for at least the preceding four (4) months. 11.02 Complaints It is the mutual desire of the parties hereto that complaints of employees be adjusted as quickly as possible and it is understood that if an employee has a complaint, the employee shall discuss it with the employee's immediate Supervisor within twenty (20) days after the circumstances giving rise to the complaint have occurred or have come or ought reasonably to have come to the attention of the employee in order to give the immediate Supervisor an opportunity of adjusting the complaint. The discussion shall be between the employee and the immediate Supervisor unless mutually agreed to have other persons in attendance. The immediate Supervisor's response to the complaint shall be given within seven (7) days after discussion with the employee. 11.03 Grievances Failing settlement of a complaint, it shall be taken up as a grievance (if it falls within the definition under Article 11.12(c) in the following manner and sequence provided it is presented within seven (7) days of the immediate Supervisor's reply to the complaint. It is the intention of the parties that reasons supporting the grievance and for its referral to a succeeding Step be set out in the grievance and on the document referring it to the next Step. Similarly, the College written decisions at each step shall Contain reasons supporting the decision. Step No. 1 An employee shall present a signed grievance in writing to the employees immediate Supervisor setting forth the nature of the grievance, the surrounding circumstances and. the remedy sought. The immediate Supervisor shall arrange a meeting Within seven (7) days of the receipt of' the .grievance at which the employee, a Union Steward designated by the Union Local, if the Union Local so. requests, the Dean of the Division and the immediate SUpervisor shall attend and discuss the grievance. The - 13 - immediate Supervisor and Dean will give the grievor and the Union Steward their decision in writing within seven (7) days following the meeting. If the grievor is not satisfied with the decision of the immediate Supervisor and Dean, the grievor shall present the grievance in writing at Step 2 within fifteen (15) days of the day the grievor received such decision. Step No. 2 The grievor shall present the grievance to the President of the college concerned. The President or the President's designee shall convene a meeting concerning the grievance, at which the grievor shall have an opportunity to be present, within twenty (20) days of the presentation, and shall give the grievor and a Union Steward designated by the Union Local the President's decision in writing within fifteen (15) days following the meeting. In addition to the Union Steward,.a representative designated by the Union Local shall be present at the meeting herein if requested by the employee, the Union Local or the College. The President or the President's designee may have such persons or counsel attend as the President or the President's designee deems necessary. In the event any difference arising from the interpretation, application, administration or alleged contravention of this Agreement has not been satisfactorily settled under the foregoing Grievance Procedure, the matter shall then, by notice in writing given to the other party within fifteen (15) days of the date of receipt by the grievor of the decision of the College official at Step No. 2, be referred to arbitration as hereinafter provided. ll.04(a) Any matter so referred to arbitration, including any question as to whether a matter is arbitrable, shall be heard by a Board of three (3) arbitrators composed of an arbitration appointed by each of the College. and the Union and a third arbitrator who shall be Chair. The Chair shall be selected from the following panel: Representatives of the Council and the Union shall meet monthly to review the matters referred to arbitration and agree to the assignment of a chair to hear each of the grievances. The Chair shall be assigned either by agreement or, failing agreement, by lot. The parties may - 14 - from time to time by mutual agreement add further names to such panel. Also the parties may agree to a supplementary list of persons to act on a single or number of occasions. following selection of a Chair, the College and the Union shall each appoint its arbitrator within ten (10) days thereafter and forthwith notify the other party and the Chair. However, if the College and Union mutually agree prior to selection of a Chair to arbitration by a sole arbitrator, the sole arbitrator shall be selected from the panel as in the case of a chair and the other provisions referring to an arbitration board shall appropriately apply; (d) The arbitration board shall not be authorized to alter, modify or amend any part of the terms of this Agreement nor to make any decision inconsistent therewith nor to deal with any matter that is not a proper matter for grievance under this Agreement; 11.06 Dismissal It being understood that the dismissal of an employee during the probationary period shall not be the subject of a grievance, an employee who has completed the probationary period may lodge a grievance in the manner set out in Articles 11.07 and 11.08. 11.07 An employee who claims to have been dismissed without just cause shall, within twenty (20) days of the date of receipt of the written notification of the dismissal, present a grievance in writing to the President, or in the absence of the President, the Acting President commencing at Step No. 2 and the President shall convene'a meeting and give the grievor and the Union Steward the President's decision in accordance with the provisions of Step No. 2 of Article 11.03. 11.08 If the grievor is not satisfied with the decision of. the PreSident, the grievor shall, within fifteen (15) days of receipt of the decision of the President or in the absence of the President, the Acting President, by notice in writing to the College refer the matter to arbitration, as provided in this Agreement. - 15 - 11.12 Definitions (c) "grievance" means a complaint in writing arising from the interpretation, application, administration or alleged contravention of this Agreement. Article 14 COLLEGE MEETINGS 14.02 A Committee of three (3) members appointed by the College or Campus officials will meet with the Union' College or Campus Committee at a mutually agreed time and place provided that either party requests and gives at least seven (7) days prior notice accompanied bY an agenda of matters proposed to be discussed. It is agreed that matters to be the subject of discussion at meetings include: (i) the local application of this Memorandum of Agreement; (ii) clarification of procedures or conditions causing misunderstanding or grievances; (iii) local initiatives to enhance employment equity including matters relating to child care; (iv) an internal complaint process to facilitate the resolution of employee complaints that do not fall 'within the provisions of Article 4.01, 4.02 or Article 11; (v) other matters which are mutually agreed upon; (vi) if requested by the Union Local, the rationale for a sessional appointment by the College shall be the subject of discussion; and (vi) if' requested by the Union Local, the College shall explain its rationale for its application of Article 8.04(c), Appendix II(6) or Appendix III(2), and in particular, will consider any representations which the Union Local may make with respect to the assigning of work on a full-time or a sessional, partial-load or part-time basis, and with respect to the feasibility of assigning work on a full-time basis rather than on a sessional, partial-load or part-time basis. It is understood that the College will continue to make reasonable provision for the environmental conditions of air, light, space and temperature of employees' work areas in the College. A complaint of an employee concerning the environment conditions mentioned above, shall be discussed at a meeting under this Article and not under the provisions of the Grievance Procedure. It is agreed that meetings under this Article shall not concern or entertain matters that are properly the subject of meetings as provided in Article 30.02. Before focusing on the specific positions taken by the parties on the facts before us, itwould be appropriate to briefly review the case law around this issue of probationers' discharge, particularly in light of the most recent commentary on it by the Court in the Colleges' own St. Lawrence College case. The commencement of the line, for present purposes, can be taken as the decision of the Ontario Divisional Court in the Municipality of Metropolitan Toronto, an °ral decision of Mr. Justice Callaghan rendered July 3, 1981. There the collective agreement contained no specific restrictions on the right of a probationary employee to.grieve his or her discharge, but on the other hand the "Management Rights" clause included provisions which stated: 3.01 Local 43 and employees coming within the 43 Unit recognize and acknowledge that it is the exclusive function of the Metropolitan Corporation to: (i) maintain order, discipline and efficiency; (ii) hire, discharge, direct, classify, transfer, promote, demote and suspend or otherwise discipline any employee coming within the 43 Unit provided that a claim for discriminatory promotion, demotion or transfer or a claim that an employee has been discharged or disciplined without reasonable cause, may be the subject of a grievance and dealt with as hereinafter provided; and - 17 - (iii) generally to manage the operation and undertakings of the Metropolitan Corporation and without restricting the generality of the foregoing to select, install and require the operation of any equipment, plant and machinery which the Metropolitan Corporation in its uncontrolled discretion deems necessary for the efficient and economical carrying out of the operations and undertakings of the Metropolitan Corporation. 3.03 Ail employees shall be.designated as probationary employees during the first six (6) months of their employment and notwithstanding any other provision of this agreement, the Metropolitan Corporation shall have the exclusive right to discharge probationary employees within the first six (6) months of their employment. The board of arbitration looked at the "common law" of labour arbitration, and concluded that: Ail that is required is for the employer to establish that the probationer is unsatisfactory. In the language of the Court, the Board then considered the evidence of work performance and found that the Municipality had failed ... to convince us, using the most lenient standards, that his performance was unsatisfactory ... (Record, p. 16) and in the result concluded that the grievor ought to 'be reinstated in his employment. The board, in other words, placed an onus upon the Municipality to establish that the grievor's work performance was unsatisfactory. The Court on review stated: - 18 - By taking this course the Board put the grievor into the same position as that of an employee who had completed the probationary period and in so doing erred. A distinction must be drawn between the scope of the review of the board in the case of the discharge of an employee who has acquired seniority and in the case of the discharge of a probationary employee. In the case of an employee who has acquired seniority, the collective agreement allows the Board to look at the reasonableness of the cause of the discharge. In the case of the.probationary employee, for the Board to look at the reasonableness of the cause of the discharge which it has done here, is to put the probationer into the same poSition as that of an employee who had acquired seniority and thereby ignored the provisions of Article 3.01 and Article 3.03. (see Her Majesty the Oueen in Right of the Province of New Brunswick v. Mary Leeming, Supreme Court of Canada, unreported, January 28, 1981). The Municipality is not required to justify the dismissal by affirmatively establishing reasonable or any cause. Rather, the Court went on to say: A probationary employee would be entitled to succeed on a grievance in relation to discharge only if he were able to affirmatively establish that the action of the employer was taken in bad faith in the sense that the decision was motivated by unlawful considerations or resulted from management actions which precluded the probationary employee from doing his best. It should also be noted, as later cases do, that the Court made the following additional point before closing: It is significant that in this agreement the right to discharge a probationary employee has been reserved to the Management Rights' clause. - 19 - The development of the case law from there is accurately tracked, as far as it goes, by arbitrator Samuels sitting on a College case for Centennial College, in a decision dated December 8, 1988. After reviewing the language of the Municipality of Metropolitan Toronto case, Mr. Samuels wrote, 'commencing at page 4: ... It appears that, in the Court's view, it is inarguable that a probationary employee could grieve a decision to dismiss which was made in bad faith. The persuasive value of the Divisional Court's statement had its effect on arbitrators. In Re Consolidated-Bathurst Packaging Ld. (St. Thomas division) and International Woodworkers'of America, Local 2-337 (1981), 1 LAC (3d) 10 (Adams), the board of arbitration decided that the collective agreement could not prevent a probationary employee from grieving a discharge on the basis of bad faith, and cited the Municipality of Metropolitan Toronto decision (at page 21-22) . In Re Algonquin College and Ontario Public Service Employees Union (1986), 22 LAC (3d) 129 (Brent), the board of arbitration adopted this approach, citing both the Municipality of Metropolitan Toronto and the Consolidated-Bathurst decisions (at pages 138-141), and found additional support for its position in the collective labour relations context ... In Seneca College and Ontario Public Service Employees Union (grievance of Hacker, unreported decision of Swan, dated September 17, 1986), the board concluded that a probationary employee could grieve that dismissal by the College was done in bad faith, relying upon Consolidated- Bathurst.(at pages 17-23). In Cambrian College and Ontario.Public Service Employes Union (grievance of Best, unreported decision of Brent, dated April 7, 1986), the parties agreed that, for the purposes of the case, the Union could proceed with the grievance against dismissal of a probationary employee if it could prove bad faith on the part of the College. - 20 - In Re St. Lawrence College and OntariO Public Service Employees Union (1987), 32 LAC (3d) 322 (Brent), again there was no dispute between the parties that a probationary employee could grieve a dismissal which was done in bad faith. The parties did differ on the meaning of bad faith. The Union suggested that the College's obligation extended to treating the grievor "fairly", whereas the College took the position that bad faith is confined to illegality or obstruction, which is the definition originally given by Mr. Justice Callaghan in the Municipality of Metropolitan Toronto case (at pages- 326-7 of the Brent award). The board of arbitration held that the test was the limited one suggested by the College (at page 331 1/2). In sum, whenever the issue of bad faith has been considered expressly in the context of a grievance by a probationary employee under the collective agreement which concerns us, it has been decided that the restrictions set out in Articles 8.02(a) and 11.06 do not prevent a probationary employee from grieving a dismissal done in bad faith. And the definition of bad faith which has been used is the definition first suggested by Mr. Justice Callaghan in the MuniCipality of Metropolitan Toronto case - "in the sense that the decision was motivated by unlawful considerations Or resulted from management actions which precluded the probationary employee from doing his best". That indeed was the test articulated in the Metropolitan Toronto case, and in the last-mentioned St. Lawrence College case, arbitrator Brent sought to dutifully apply it. At page 13 of the majority award (now reported without the Dissent (1987), 32 L.A.C. (3d) 322), the board wrote: In our view, the test to be applied when determining if a probationary employee was properly dismissed is still that set out by the Divisional Court, that is, illegality or obstruction, when the court's decision is read, it is clear that it determined that the board of arbitration whose decision was before it had erred in law when it decided that an employer must show unsatisfactory performance in order to justify the dismissal of a probationary employee in the same position as the. employee with seniority and therefore exceeding its jurisdiction under the collective agreement. The court also refused to imply a term that the managements rights' clause must be interpreted reasonably and fairly in connection with the exercise of discretion to dismiss'employees during their probationary period. Accepting then that there is an onus on the Union to demonstrate that there was bad faith by the College in the decision to dismiss the grievor, and that bad faith is defined as being "motivated by unlawful considerations" or as 'having "resulted from~management actions which precluded the probationary employee from doing his best", what does the evidence disclose? In the first place, it discloses that on balance, given the evidence before us, the grievdr can be said to have been performing satisfactorily without any serious problems with his work. It can also be concluded that, whatever the long term plans for the department were, they were never communicated either to the grievor or to the Chairperson in such a way as to lead them to believe that the grievor did not fit into them until April, 1987, after the grievor's workload for the next term had been established and after his latest student evaluations had been received. There is no evidence to suggest that there was any reason operating in the dean's mind other than the ones put forward in various conversations, that is, (1) the grievor not fitting into the long term plans of the department, (2) the grievor being deficient in formal education, and (3) dissatisfaction with the student evaluations. There is no suggestion that the dismissal was motivated by anti- union animus, by considerations of race, religion, sex, or any other illegal ground of that sort. There is no allegation before us that the College made it impossible for the grievor to perform his job, or that the whole probationary relationship was a sham from the beginning. The problem that we are faced with, given the Court's definition of bad faith in this context, is that if we evaluate the merits of the reasons for the dismissal, other than to say that they were offered and no others were suggested, then we are in effect holding the College to a standard of reasonable cause. If we hold the College to that standard, then according to the Divisional Court we will have erred in law. - 22 - Significantly, as it turns out, the Union nominee to the board, R. M. Cochrane, issued a Dissent from the majority view the ratio of which appears to be set out commencing at page 7 as follows: Article 8.01(c) requires the College, if requested by the employee, to state the reasons for the release. One can hardly call exhibit 10 "reasons". This~document simply sets out a general'proposition, and in no way speaks to the reasons for releasing the grievor. In my view, the proper inference to be drawn from this failure to give reasons, absent .an explanation by the employer, is that the decision was motivated by improper considerations. I hasten to point out that no explanation was provided by the employer at the hearing of this matter as it elected not to call any evidence. In various places in the decision Of the majority, it makes reference to "reasons" for the release. In my view, the evidence shows absolutely no reason for the release. While it is true that the grievor testified that Mr. Charlebois told him that the Dean had indicated that the grievor did not fit into the long-term plans of the College, there was absolutely no evidence as to what the long-term plans were and why the grievor did not fit these plans. Moreover, it is incredulous that less than one month after signing the grievor's S.W.F. for the fall semester, when he obviously must have fit into the long-term plans, that the College could then turn around and suggest that the grievor did not fit. There was also evidence at the Step 2 hearing in the grievance procedure, that the College took the position that the release was due to the second term student evaluations. What was said at the Step 2 meeting must carry little weight in determining the issues in this case. In any event, the evidence led by the Union, through Ms. McFadden-Dunn and Mr. Mackey, indicated that based-on these student evaluations, both witnesses would rank the grievor as satisfactory or more than satisfactory. Thus, the suggestion of the College is absolutely erroneous. - 23 - Finally, there was the evidence of Ms. McFadden- Dunn wherein, based on a conversation she had with Dean Atchinson, she gathered an impression that the grievor was dismissed because he did not have the academic background. This is not evidence of the College. Rather it is simply an impression formed by Ms. McFadden-Dunn based on a conversation. There was no evidence that the grievor was released because he did not have the academic background. Even if it could be argued that this was a reason for the dismissal, the grievor was never put on notice that this was an expectation and hence he was afforded no opportunity to try to satisfy that expectation. While I agree with the majority decisiOn wherein it concludes that the standard of review for the release or dismissal of a probationary employee is not the "just cause" standard, I do not agree with the majority's conclusion that the decision of the College in this case was not taken in bad faith. The majority has set out in some length the Divisional Court decision of Metro Toronto and C.U.P.E.. Local 79 and I don't propose to repeat it here. Suffice to say that the Divisional Court found that a probationary employee could only succeed in a discharge case if he was able to establish that the employer had acted in bad faith, in the sense of the decision being motivated by "unlawful considerations or resulted from management actions which precluded the probationary employee from doing his best." This finding was made in light of a provision in the governing Collective Agreement giving management the exclusive right to discharge a probationary employee. The Court found that the exercise of management's right could not be reviewed for fairness, but only for "bad faith." As pointed out in Cambrian College and OPSEU (File 85k 31), (1986) unreported (G. Brent) it would be difficult, if not impossible, to set out a comprehensive catalogue of those considerations which could be called unlawful. I would agree with Arbitrator Brent in that case wherein she found that the "common feature of all of these elements is some action or actively pursued intention on the part of the employer which is inconsistent with the prime purpose of the probationary period, which is to give the employer an opportunity to assess the newly-hired employee in a working environment to see if he/she is really an appropriate candidate for permanent employment." Equally so, the probationary period provides the employee an opportunity to - 24 - demonstrate his ability to do the job. It is the expectation of all parties that if the employee satisfactorily demonstrates his ability to performthe duties of the position, then the employment relationship will continue. In this respect, probationary employment differs fundamentally from an appointment for a fixed term, such as a sessional or partial-load appointment. In an appointment for a fixed term, there is not the same'expectation for the continuation of the employment relationship. It is precisely this difference which resulted in the grievor rejecting the sessional appointment which the. College offered to him. In assessing the abilities of the employee the employer is required to do so based upon valid work-related criterion and not upon erroneous considerations. Moreover, the employee is entitled to be assessed against the same standard as other new employees. These requirements flow from the nature of the probationary period itself. In addition, the College is required to administer the probationary period in accordance with the provisions of the Collective Agreement. In my view, in considering the question of whether or not the termination of the grievor was made in bad faith, one must address the question of whether the probationary period was administered in good faith. In my view, it has not been. The grievor did not receive progress reports on four month intervals, as is required by Article 8.01(c). He was given work assignments that exceeded the maximum allowed under the Collective Agreement. He was charged with the responsibility along with others, of developing courses for a new program. In short, the College placed a number of obstacles in the path of accomplishment, yet despite these, the evidence suggests that the grievor performed more than satisfactorily. The one progress report which he did receive revealed not a single complaint or concern about his performance. If there were complaints, (and as pointed out above there was no evidence of any), it was the obligation of the College to draw those to the attention of the grievor to give him an opportunity to demonstrate his ability in response to those particular complaints. It would clearly be bad faith on the part of the employer to hid its co~plaints or concerns about the grievor until too late in the day for the grievor to address such complaints or concerns. - 25 - In my view, the facts of this case even more clearly demonstrate bad faith. The College had provided absolutely no reasons for the termination of the grievor, even though required to do so under Article 8.03(c). As no reasons have been provided., one must assume that the College was entirely satisfied with his performance up to and including the date of his termination. The inference must be drawn that the grievor has not been evaluated on his performance or on valid work-related criteria. I would agree with the majority where at page 10 it concludes that ,it would appear that he [the grievor] was not judged on his performance...". The majority also concludes that the grievor's performance was satisfactory. In my view, this alone constitutes sufficient evidence of bad faith. In addition, I would find the different treatment accorded to Mr. Roughton and the grievor, to constitute bad faith. Mr. Roughton and the grievor commenced their. full-time employment in the spring of 1986. On the completion of their first semester of teaching, the performance appraisals of the two men were almost identical -- if anything, the grievor's performance appraisal was slightly better than Mr. Roughton's. Mr. Roughton also testified that his student appraisals in second term were fairly similar to those the grievor [sic]. Mr. Roughton's employment with the College was not terminated. In my view, this must lead one to a conclusion that the College has applied a different standard in Mr. Roughton's case than in the grievor's. Finally, and most importantly in my view, the conduct of the College is totally inconsistent with the very concept of a probationary period. The College induced the grievor into its employ upon representations of continued employment if he performed satisfactorily. As pointed out earlier, the very basis of probationary employment carried with it this expectation of continued employment. The grievor worked very hard to meet the expectations of his employer and as the majority points out, it must be concluded that his work was satisfactory. Yet the College terminated his employment without any explanation. Surely such conduct has rendered the entire probationary period a sham. Accordingly, for the reasons set out above, I would have allowed the grievance and ordered the grievor to be reinstated with full back pay. The case went to the Divisional Court on judicial review, and the award of the majority was quashed in the following brief Reasons given by Mr. Justice Campbell, concurred in by Mr. Justice Reid and Mr. Justice O'Brien: In its decision the board considered the Divisional Court decision in Re Metro Toronto .and CUPE Local 43. At p. 16 of its decision the Board stated: ...to find in favour of the Union in this~case would be to make a finding which is irresponsible because it would be without jurisdiction in view of our reading of the Divisional Court decision. We think the board thereby declined jurisdiction. The Board's jurisdiction was not limited by the Metropolitan Toronto decision, which turned very narrowly on its own unique facts, including the specific language of management rights clause 3.03 in the context of that agreement which apparently lacked a code of positive obligations governing the probationary period such as clause 8.01(c) of this agreement. It is clear from Council of Printing Industries (1983) 42 O.R. (2d) 404 that different language in a different agreement read as a whole might properly be interpreted as giving a Board jurisdiction to consider good faith, in a sense broader than that used in Metropolitan Toronto, as the subject of a grievance. Having regard to the language of this agreement we think this is such a case. As another board said in Seneca College and OPSEU (Hacker Grievance), 1986 unreported (Swan): at p. 22: It is not here the management rights clause that is asserted to connote a requirement not to act in bad faith, but a provision setting out affirmative obligations upon the Employer in respect of its conduct in relation to probationary employees, clause 8.01 (c). - 27 - Instead of fettering its jurisdiction as it did the Board in this case should have gone on to consider the employer's good faith or lack thereof in discharging its positive obligations in article 8.01 (c), a code for the administration of the probationary period which was apparently not before the court in Metropolitan Toronto. Had it not so fettered its jurisdiction the Board would have gone on to decide whether or not it was satisfied in the circumstances of this case that the employer's overall administration of the code governing probationary employees involved the kind of bad faith found by the dissenting.union nominee. By applying to this case too narrow a test taken from a case which turned on a very different management rights clause and no code of positive obligation such as clause 8.01 (c), and by considering its jurisdiction fettered by that inapplicable test, the Board committed jurisdictional error. Despite Mr. Gray's able argument we therefore allow the application with costs, quash the award of the board of arbitration, and remit the matter to the Board to determine whether or not in the circumstances of this case the conduct of the employer involved the kind of bad faith found in the dissent of the union nominee. The College'.s application for leave to appeal that decision was denied by the Court of APpeal, again with costs.~ The state of the law currently is, therefore, that with provisions of the kind that exist for probationary employees under the collective agreement for academic staff between the Ontario Council of Regents. for the Colleges of Applied Arts and Technology and the Ontario Public Service Employees' Union, the termination of a probationary contract continues to be reversible at grievance arbitration if the board of arbitration finds that - 28 - the employer has acted in "bad faith". And "bad faith" means not simply "that the decision was motivated by unlawful considerations or resulted from management actions which · precluded the probationary employee from doing his best", but includes as well "the kind of bad faith found in the dissent of -the union nominee" in the St. Lawrence College case. What is the basis then upon which the College argues in this case that the board is without jurisdiction to inquire into the allegations of "bad faith" put forward by Mr. Paliare? That basis essentially is that the grievance as written by the grievor does not on its face specifically raise the allegation of "bad faith", but rather relies on the fact that the grievor perceived his dismissal to be "unjust". A claim of "bad faith" is entirely distinct from that, counsel submits, and for the board to now hear the matter on the basis of allegations of "bad faith" is to allow the Union to put a very different grievance before the board, and to.attempt to get a "just cause" case before the board under the guise of "bad faith". A similar argument to that made by the employer here was in fact accepted by a majority of the board in Sheridan ColleGe (grievance of Richard Gerson), an unreported decision of H. D. Brown issued September 8, 1987. Mr. Brown in his award proceeded through an examination of the College cases previous to his, noting that the issue of ."just cause" for the termination of a probationary employee was not, under the Colleges' collective - 29 - agreement, an arbitrable matter, but that (speaking pre- St. Lawrence) an allegation that "the Employer's motivation in the release of a probationary employee was made in bad faith or by unlawful considerations", was. Mr. Brown then wrote, Commencing~at page 15: In order in this.case for the Union to be allowed to proceed with that arbitrable issue, it must be found by the. Board that there was such an allegation by the grievor, or that he should be allowed to amend his grievance to include that issue, so as to have it determined by this Board. The Employer has objected to the expansion of the grievance. In both the Cambrian College and Seneca College awards referred to above, there was an allegation of bad faith by the grievors in the grievances which is made particularly clear by Arbitrator Swan in the paragraph of that award cited above and in the Cambrian College [sic], the parties had agreed to proceed with the bad faith argument. Here the grievance statement is, "release without just or sufficient cause" with a claim for reinstatement with compensation and no reference in the agreement is made to any allegation of bad faith or unlawful conduct by the Employer in that release. We must conclude, having considered the seriousness of the allegation itself and of the consequence should it be proven by the Union, that it is a separate and distinct issue from the release of a probationary employee, which is not referable to the grievance procedure under the agreement and which is not part of the general terms of release for lack of just or sufficient cause. To'permit the allegation to be heard Under that claim as set out in this grievance, would in our opinion, expand the grievance by requiring the Board to hear and decide an issue which has not been made an allegation by the employee when the grievance was filed. Whether there were any meeting of the parties following the grievance, because of the objections to the arbitrability of the grievance under the collective agreement, there is in our view, an obvious prejudice to the Employer in preparing a defence to the action when that action has not been precisely or completely given in the grievance as defined by Article 11.12 in this agreement and in reference as above to Articles 11.01 11.02 and 11.03. - 30 - The concept of the application of bad faith with regard to the probationary sections of this agreement and particularly Article 8.01 (c), is different than the issue dealt with in Re: City of Toronto and Civic Employees Union. Local 43 in the decision of the S.C.O., June 12, 1986 referred to the Board. In our view, in the context of these provisions, a bad faith issue could arise, as the reason for probationary employment is to provide a period of assessment by the Employer to determine whether that employee should become full-time and if that assessment is based on improperly obtained - information, or other dishonest activities which could have a substantive effect on the-employee's entitlement and requirement to establish his suitability for the job, the terms are broad enough to bring into consideration that form of allegation. In our opinion, on that conclusion, it is clearly a separate issue arising from a separate allegation of wrong doing, as opposed to insufficient cause for the release and therefore must be included in the claim of the grievance to be given effect by a Board of Arbitration. We agree with Mr. Brown that (as the cases make clear) the issue of just cause for the release of a probationary employee and the issue of such release having been grounded in bad faith are distinct and different issues. Whether that premise would cause us to come to the same conclusion as the Brown board had the case before us been initiated by the Union using, as in the Sheridan case, the specific (and, one would have thought, clearly understood) term "just cause", we do not have to decide. The case here was initiated in a letter by Mr. Ellis to the College, in which Mr. Ellis stated simply: "I grieve unjust dismissal". It seems to us that a number of things could 'arguably make a dismissal appear "unjust" - certainly in the eyes of an employee - but in particular it seems clear that such things could readily be said to include the employee's view that the employer had acted both without proper cause and in bad faith. In that regard we agree with the reasoning of arbitrator Brent in Algonquin College, a decision dated January 1986 and referred to by Mr. Brown at page 6 of the Sheridan ColleGe award -as foll'ows: In the Algonquin-College award (Brent), the grievance alleged unfair dismissal and the college raised an objection concerning the jurisdiction to hear a grievance of a probationary employee, including the question, "if there is no substantive right incorporating just cause, then does the arbitrator have jurisdiction to consider an allegation that the dismissal was in bad faith." The College in that case as here, took the position that there was no reference to bad faith allegation in the grievance and that it had not been characterized that way. The Board found that it was possible within the allegation of "unfair dismissal" to read the grievance "as alleging something other than just cause .... We so find here as well. The most. critical application, it seems to us, of the "just cause/bad faith" distinction is a clear recognition by the Union, before any case is endorsed for arbitration, of what it is that has to be established, in order for the board of arbitration to come to the conclusion at the end of the case that it has the jurisdiction to interfere. As the cases have noted without exception, the discharge of a probationary employee is not the same as the discharge of a seniority employee, and that exact point made by the Divisional Court in the Municipality of Metropolitan Toronto - 32 - case is as clearly the law today (the St. Lawrence College case notwithstanding) as it was back then. And to reinforce that point arbitrators have indicated that in the case of the termination of a probationary employee, there is an onus upon the Union to proceed first, and to demonstrate that it is able, °beyond the mere allegation of "bad faith", to make out a prima facie case in support (see, for example, Centennial Colleqe, decision of Mr. Samuels, supra, at page 13; St. Lawrence Colleg9 (Brent), and the agreement of the UniOn therein). Apart from all of that, the Union in the present case has raised the matter of the College's "waiver" as an alternate ground for proceeding to hear this case on its "merits" in any event. And in that regard the Union relies on the line of cases emanating from the decision of Stewart, J., in Regina v. Lane et al, ex parte Green, 66 CLLC ~14,137. There the grievance had been incorrectly filed as a "policy" grievance, but the employer had let the matter proceed to' arbitration before raising it. The Court wrote: ... The Board found that management approved the filing of the grievance at Step 3 and it seems to me that either the company intended to lure the union and grievor into a false sense of security or to waive any irregularity or impropriety or procedure. Had an earlier objection been made to the form of grievance by .management it could have been immediately remedied without prejudicing the position of the grievor. At the hearing the company for the first time took the view that the grievance was a personal one under 11.08 and - 33 - that this therefore required the signature of the grievor upon the grievance papers. The grievance was in fact and with the consent of all commenced at Step 3 and no settlement was arrived at. The matter therefore moved into Step 4 in which the unit Committee and the Refinery manager could not reach accord and therefore arbitration was had. I am of opinion that the company was right in regarding the grievance as being a personal one for I cannot see how by any stretch of the imagination it could be a policy.agreement. However I do not have to decide whether or not a personal agreement must be, as the Board put it, "personalized" (presumably by being signed) by or on behalf of the employee. The company by agreeing to Process the grievance commencing at Step 3 and by failing to raise the issue during the time when any possible error could have been corrected has waived its right to complain .... There is of course a long line of arbitration cases dealing with this "waiver" issue, but on the facts here it seems to us that the language of Stewart, J. in the initial case of Re Green itself covers the situation as precisely as the matter can be put. Whatever'objection the College might have been entitled to raise concerning the processing of the December 19, 1989 "grievance" beyond the Union-Management Committee stage, the fact is that it did not. Rather, it explicitly "agreed to waive Step Two" in the normal grievance/arbitration procedure, and raised no objection when the Union advised that it was referring the matter to the central processors for the appointment and scheduling of a board of arbitration. That would suggest either that the College was well aware'of the kind of "bad faith" that the grievor was alleging in connection with his dismissal, or that it was content to allow the matter to proceed in any event. Either way, by - 34 - waiting until the week prior to the arbitration to object to the grievance proceeding on the basis of how it was drafted, the College must, on the principles articulated by Stewart, J., be taken to have "waived" their objection. Or putting it differently, were we to consider it appropriate to hold the -grievor to as high a standard in the drafting of his "grievance" as the employer now urges upon us, we would have to find it equally appropriate to hold the employer to a standard of clearly articulating in a timely way any objection it might have had to the nature of the grievance on its face, or be deemed to have waived it. The matter is accordingly to be scheduled to be heard on its "merits", with the Union being given the opportunity it seeks to establish "bad faith" in connection with the December 7th dismissal of Mr. Ellis. Dated at Toronto this 14th day of November, 1990. "J. Herbert" I CONCUR: UNION NOMINEE "D. Guptill" I CONCUR: EMPLOYER NOMINEE