HomeMy WebLinkAboutGerson 87-09-08 cA
IN THE MATTER OF AN ARBITRATION
BETWEEN SHERIDAN COLLEGE OF APPLIE~ ~ ~
ARTS AND TECHNOLOGY
(The Employer
AND ONTARIO PUBLIC SERVICE
EHPLOYEES UNION, LOCAL 244
(The Union)
AND IN THE MATTER OF THE GRIEVANCE OF RICHARD GERSON
BOARD OF ARBITRATION HoDo BROWN, CHAIRMAN
R° NABI, UNION MONINEE
GoI. CAMPBELL, EMPLOYER NOMINEE
APPEARANCES FOR
THE EMPLOYER D.K. GRAY, COUNSEL
P.M. MATTHEWS, DIR. H,R.
D. COLE, DEAN
APPEARANCES FOR
THE UNION I. ROLAND, COUNSEL
R. MARTIN
R. GERSON, GRIEVOR
A HEARING IN THIS MATTER WAS HELD AT OAKVILLE
ON APRIL 24, 1987
AWARD
The grievance dated May 12, 1986,.is a claim
that the grievor, a teaching master at the College, was
released without Just cause. At the time of his ~--'
discharge, the grievor was a probationary faculty member
at the College. A preliminary objection was raised by
the College, as to the Board's Jurisdiction to determine
this case, which w~s the issue dealt with by the parties
at this hearing. The Board reserved its decision on the
preliminary objection to which this award is restricted.
It is agreed by the parties that the grievor
did not complete his probationary period at the itime of
his dismissal. The right of a probationary employee to
grieve a discharge', under the provisions of the
collective agreement applicable to community colleges
and the union throughout the Province, has been the
subject of considerable litigation and a number of
arbitration awards. By Article 7.01, it is recognized
that it is the exclusive function of the Employer, to
among other things, discharge employees "subject to the
right to lodge a grievance in the manner and to the
extent provided in this agreement." By Article 8.01 '(a)
"a full-time employee will be on probation until the
completion of the probationary period which shall be two
years continuous employment."
Article 8.02 (a) t$ the key clause to the issue under
the agreement and is as follow;
1.0~ (~) It Ix~tng unclemloocl that the release of an employee
during the probat,onary periocl shall not be the subject of a
griev-nce under the Grievance Procecture. an employee who has
completed the probationary perio<l and is discharge<l for cause
may lodge & grievance in the mlnner Incl Io tl~e extent proviclecl i~
the Grievance Procedure.
Under that clause, the discharge shall not be subject to
the grievance procedure. Therefore it has been held at
arbitration that there is not a substantive right to a
probationary employee to grieve his termination of
employment and it is only an employee who has completed
the probationary period who may grieve, which is set out'
in Article 11.06;
It il I~ing un~lefstood that the dismissal of In emWoyve
during the probationa~/ periO<l Shall not I~ the lubject of ·
grievance, an employee who has completed the I~Obatio~p/
~ may I~ a.grtevance in the manner ~ out J~ Secti(ms
11.07 ~n(3 11.08.
Article 11.12 (c) defines "grievance" as
'a complaint in writing arising from the interpretation,
application, administrati~n or alleged contravention of
this agreement." By Article 11.04 (d), the Arbitration
Board is not authorized to amend or alter any of the
terms of the agreement. Those are the contYactual
underpinnings of the objection to this form
grievance.
It is the Employer's position that unless the
right to grieve such discharge is found in the terms of
the collective agreement, no such right exists and the
contrary, regardless of an allegation of bad faith,
cannot be supported. A further allegation such as bad
faith, would expand the grievance which cannot be
permitted, although it would make no difference as under
the applicable Jurisprudence in this area. It was
argued that there being no substantive right to grieve
under the agreement, the grievance cannot be dealt with
by the Board, where the grievance on its face does not
allege bad faith, nor did the Employer give consent to
the expansion of the cause of action. The Employer
argued that the Union was proceeding with an indirect
complaint concerning its administration of Article 8.01
(c) which provides for progress reports at 4 month
intervals during the probation period, which is not an
issue raised in the grievance and cannot now he"raised
by the employee who does not have the right to grieve.
There is a lengthy list of cases referred to the Board
by the Employer in support of its position, that the
grievance is not arbitrable as applied to a probationary
employee, nor on the basis that the dismissal was
motivated or acted upon by the Employer in bad faith.
As there is no substantive right to grieve, the Union ~'.
cannot in its submission, either expand the grievance to
add an issue, or in any event without clear language in
the collective agreement, to allege a breach of an
implied duty of the Employer to proceed fairly and
without bad faith in the dismissal of a probationary
employee. Re: the Queen in Right of New Brunswick and
Leeming et al, 118 D.L.R. (3d) 202, Re: Ontario Hydro
and Ontario Hydro Employee Union, Local 1000, 41 O.R.
(2d) 669; Re: The Municipality of Hetropolitan Toronto
and C.U.P.E., Local 43, (Division Court S.C.O. July
1981); Re: Algonquin College and C.S.A.O. (Rayner -
Harch, 1976); Re: C*S.A.O. and Ontario Council of
Regents (Weatherill - July, 1976) and the decision of
S.C.O., Harch 7, 1977; Re: George Brown College and
C.S.A.O. (Rayner - Harch, 1976); Re: Durham College and
O.P.S.E.U. (Weatherill - December 1982); Re: Sheridan
College and O.P.S.E.U. (O'Shea - Jsnaury, 1982); Re:
Georgian College and O.P.S.E.U., 10 L.A.C. (3) 359
(Brown); Re: Algonquin College and O.P.S.E.U. (Kates -
October, 1984); Re: Seneca College and O.P.S.E;U.
(Samuels - September, 1985); Re: Sault Ste. Harie
College and O.P.S.E.U. (Palmer - October, 1985);
Re: Sheridan College and O.P.S.E.U. (Brunner - Hay,
1985); . Re: Algonquin College and O.P.S.E.U. (Brown -
November, 1985);
Re: Algonquin College and O.P.S.E,U. (Brent - January,
1986); Re: Cambrian College and O.P.S.E.U. (Brent - ~ ·
April, 1986); Re: Mowhawk College and O.P,S.E,U,
(Samuels - March, 1986); Re: Northern College and
O.P.S.E,U. (Samuels - October 10, 1986); Re: Seneca
College and O,P.S,E.U. (Swan - September, 1986); Re:
Humber College and O.P,S.E,U,. (Brown - February, 1987);
Re: 1.C.W.U. and Dupont of Canada, 21 L.A.C. 376
(Brown); Re: Town of Kapuskasing, 14 L.A.C. 60
(Reville): Re: Atlas Steels and Cauadian Steel Workers
Union, 18 L.A.C. (2d) 363 (Weatherill).
It was the allegation of the Union that the
College was in breach of the collective agreement, in
that the release of the grievor resulted from bad faith
actions of the representatives of the Employers. The
issues therefore arising from the grievance are
two-fold, whether the grievance encompasses an
allegation of bad faith, or should the Board permit the
amendment of the grievance to that effect. The Union
does not argue in this case that probationary elployees
have the right to grieve their dismissal for cause, or
on a reasonable or fair basis, as the previous cases
referred to have dealt completely with that issue and
consistently upheld that probationary employees were not
entitled to have their release from employment
adjudicated. The issue in this case is different in its
submission, in that there is a challege to the
fundamental reasons for the release which was brought
about by bad faith action, which heading can be
distinguished from others. It referred in that regard
to The Hunicipality of Hetropolitan Toronto set out in
the Seneca College case (Swan) at page 19.
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. As a probationary employee, the
grievor had no right to grieve his discharge under
Article 18.7.2, however the collective agreement does
not say he has no right to grieve under any other
provisions if the College acted contrary to the
anti-discrimination provisions in Article 2, or if the
College acted in bad faith, as defined by the Divisional
Court." At page 17 of that award the Board said;
"It is also reasonable and
consistent with both the
general purpose of collective
bargaining and good labour
relations to expect that the
College will not act so as to
treat individual probationary
employees in an unlawful
manner, or to obstruct their
progress, so as Co make it
impossible for a probationary
employee to be evaluated on his
performance or other valid
work-related criteria. Indeed
if the College acted in such a
manner and I were to decline
Jurisdiction, then the
probationary would usually have
no recourse against the
College, even where he could
show that the College had acted
in bad faith. Such a result
would noC be advantageous to
good labour relations. For
thaC reason ! cannot accept the
argument thac the decision of
the Divisional Court vas
intended to be specific to the
collective agreement that was
before it rather than to be a
general statement of the
limitation on management's
right to discharge probationary
employees..."
./
That Board followed the Hetro Toronto case and found
that there vas au obligation on the College not to act
in bad faith in the dismissal of a probationary employee
and stated at page 18, "! consider that the breach of
such an obligs~ion represents a difference between the
parties which must be settled by arbitration pursuant to
Section &6 (1) of the College's Collective Bargaining
Act',, and found that the Board had Jurisdiction to
consider the allegation of bad faith. .- ~"
It was argued that where there was an alleged
intention to do something improper in the process of
dismissal of an employee, then there is a distinction in
the collective agreement from the general rule as to the
exclusion of grievances of probationary employees, but
the onus is on the grievor to prove that allegation. It
was submitted that it would be overly technical to deny
the grievor the opportunity to put his case before the
Board, based on a release which has been challeged on
the basis of bad faith actions and where there is no
evidence of prejudice by the College in the discharge.
Secondly, the Union's position was that the
allegation of bad faith does not make ~he grievance
different or totally opposed in issue, but rather
narrows the issue of the challege to ~he grievor's
release and is included in the grievance filed,.- There
is an obligation in Article 8.01 (c) for the College to
proceed in good faith to assess the progress of the
probationary employee in ~he review procedure, to
determine whether that e_~ployee's e~ploy~ent would
continue past the probationary period. If tha~ is
administered in the manner of a sham, the fntent of the
parties in that article has not been carried out. That ~
is bad faith in the administration of the collective 7---
agreement which can be challenged through the grievance
procedure by an probationary employee who has been
released through alleged dishonest acts. Reference was
made to the Seneca College award at page 22 where the
Board, after reviewing the Municipality of Metropolitan
Toronto, Consolidated Bathurst and Council of Printing
Industries cases stated,
"it is the function and
obligation of Boards of
Arbitration to inquire where
the issue is raised where a
particular set of facts
establishing bad faith, or the
absence of good faith,
constitutes a breach of a
particular clause in the
collective agreement. As it
happens, it is not here that
the management right's 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). Vhile matters of
this nature ought not to be ...
decided in the abstract, in the
absence of the facts we think
it is a reasonable
interpretation of this
provision that conduct in bad
faith intended to subvert the
protections given to
probationary employees by this
clause, or to avoid the obvious
obligations of the Employer
under this clause~ could be a
breach of the clause. Since
the grievor has alleged in her
grievance, bad faith in respect
of her release on probation,
and her counsel has identified
in the course of argument that
the bad faith was in relation
to the Employer's obligations
under Article 8.01 (c), we
think that the grievor is
entitled to offer her proof of
this allegation so that we can
assess, in light of all the
evidence and in light of the
clear words of that clause,
whether or not there has been a -.
breach of that clause...As a
matter of contractual
interpretation therefore, we
have found that the grievor's
is entitled to pursue her
grievance to the extent that it
alleges bad faith in the
administration of her
probationary employment and to
the extent that it alleges
discrimination."
That this grievance does not include an
allegation of bad faith, the issue is put in the context
of reasonableness and Just cause and shovld be related
to Article 8.01 (c), which is a substantive right to ~he
probationary employee to have an honest evaluation. In
the Union's position, there is at least a limited right
to proceed with the allegation of bad faith by t~e
College in the dismissal of the grievor, as well, with
the obligation under the Act for the Employer to bargain
an administer the agreement in good faith. The remedy
requested by the Union in this case is a proper
assessment to reinstate the grievor as a probationary
employee, or in the discretion of the Board, as a
full-time teaching master, with the appropriate monetary
compensation,
It is now well established through the
majority of the cases referred to above, that a
probationary employee under Chis collective agreement
does not have a right to lodge a grievance concerning
his release during the probationary period, with
reference co Articles 7.01 (b), 8.01 (a), 8.02 (a) and
11.06. It is not necessary for chis Board Co repeat the
conclusions of other Boards which dealt with this issue
as indeed, that is not the thrust of the Union's
submission to this Board on this grievance. In essence
what the Union has argued in support of the .
arbitrability of this grievance, is that a release of
employment obtained through bad faith applications by
the Employer, of substantive rights in the collective
agreement, can be dealt with as a fundamental dispute
concerning the very act of dismissal. Secondly, that the
grievance is broad enough to cover that form of
allegation and therefore the Board should hear t~e
merits of the grievance.
.e 12
A probationary employee does have the right to
the information required from the Employer under Article
8.01 (c);
(c) During the probationary IX.~OCl In employee will be
informed in writing of the employee's progress at intervals of four
(4) months continuous employment or four (4) lull months of
accumulated non-continuous employment and a copy given to the
employee. Also, it is understood tha! an employee may be re~eased
cluring the first five (.5) months of continuous or non-continuous
accumulated employment following the commencement date of
the employee's employment upc~ at least thirty (30) calendar clays'
writlen notice and during the remainder of the employee's
probationary periocl upon at least ninety (cJ0) calendar days' written
nottce. If reclueatecl by the employee, the rea~o~ for t4JCh release
w~ll be 9*ven m writing
As we understand the argument, there is an allegation of
difficiency on the basis of dishonesty in that
information system, as it was applied to the grievor by
the Employer, which then affected or caused the
grievorts release from employment. Therefore the Union
ought to be allowed to put in its evidence in support of
its allegation that there was bad faith in the
Employer's dealings with the grievorts substantive
right~ which is a claim within the statement of the
grievance, that he was released with "without Just or
sufficient cause." In any event, the Board in the
Union's submission should in the alternative, allow an
amendment to the grievance to permit a hearing on that
issue.
The end result, assuming that the Union's
allegation was proven and we accept that the onus would
lie with the Union to establish that claim and would be
required to lead evidence first in that regard in these
proceedings, would be a finding that a substantive
clause applicable to the probationary employee was
violated, with appropriate directions for remedy to
properly apply that term of the agreement. That
conclusion might affect the Employer's decision to
terminate the grievor's employment, when forced with
gathering and administering proper information under
Article 8.01 (c), but if the discharge was not amended,
the grievor would not have any further right to grieve
his release from employment, for the reasons stated
above and referred to the Algonquin College award
(Brown).
The Union seeks to litigate the grievor's
release on the basis of the allegation that is was
brought about by bad faith action of the Employe~.
Reliance is placed on the Municipality of M'etropolitan
Toronto case referred to in the Seneca College award.
Tha~ the statement of the Court, relied on by that
award was obiter, as argued by the Employer in this
case, means that the statement of the Court, not being
part of the ratio of the case, does not have
precedential value, but was not in fact repudiated in
the context of the City of Toronto case. However, as an
opinion of a Court, that the statement can be persuasive
in subsequent matters which deal with that particular
issue. In that regard we concur with the findings of
arbitrators' Brent and Swan, that if the Employerts
motivation in the release of a probationary employee was
made in bad faith or by unlawful considerations, which
may have had a direct effect on the ability of that
employee to complete the probationary period under the
terms of the collective agreement, that is an issue
concerning a probationary employee which is arbitrable.
It is separate and distinct heading of complaint from
that of unfairness or unreasonableness, as it relates to'
a dishonest application of a term of a contract
affecting a right given to the complainant in that
agreement. As indicated in the Cambrian award, if there
was no intention on the part of the Employer to give the
employee a chance to complete the probationary period
and that the application of the information requirements
of Article 8.01 (c) was a sham, the Employer's a~tions
can be challenged by such employee through the grievance
procedure to arbitration as a separate issue.
Consequently, ye find that an allegation of bad faith or
unlawful conduct of the Employer, in its dealing with a
probationary employee during the probationary employment
which ted to his release of employment, concerning the
application of Article 8.01 (c), is an arbitrable issue.
In thac regard, we have specific reference to the
definition of grievance and reference to the "complaint"
set out in Articles 11.02 and 11.03. At Step 1, the
employee "shall present a signed grievance in writing to
the employee's immediate supervisor, setting forth the
nature of the grievance, the surrounding circumstances
and the remedy sought." These provisions setting out
the procedure for grievance actions, must be followed
and impact on the Union's alternative argument :
concerning the amendment of the grievance.
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 gri~vors in
the grievances which is made particularly clear by
Arbitrator Swan in the paragraph of that award cited
above and in the Cambrian College, the parties had
agreed to proceed with the bad faith argument. Rere 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 meetings 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 referenc~ as above to Articles 11.01
11.02 and 11.03.
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 13 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 lncI~ded in
the claim of the grievance to be given effect by a Board
of Arbitration.
In the Algonquin ColleRe award (Brown), there
was not an allegation of improper or bad faith actions
of the Employer in the release of the probationary
employee. The Board in that case however did indicate
that,
"whatever occurred in the
application of Article 8.01
(c), cannot condition the right
of the College to apply its
general right to discharge
employees under Article 7.01
with regard to probationary
employees. During the
employment of a probationary
employee, a difference could
arise between the parties as to
the application of Article 8.01
(c) which could proceed to
arbitration, but that could not
affect the'right of the College
to dismiss, under Article 7.01,
which for a probationary
employee, is not under the Just
cause test and shall not be the
subject of grievance. There
cannot be a difference between
the parties on the release of a
probationary employee in the
terms of this agreement, under
which this Board must find its
Jurisdiction in order to act on
the grievance."
The same conclusion may be applicable in the
present circumstance, although we have not heard any
evidence on the issue raised, but that case and others
in that. context, do not deal with the specific
allegation now brought before this Board by the Union.
The complaint in writing, within the definl~ion of the
grievance in Chis collective agreement, is as stated on
the grievance form, which binds the parties and this
Board as to the issue to be determined.
It is obvious from the above comment8 that the
8tared issue on the grievance is not arbitrable. The
Board, although invited to do. so by the Union, is not
authorized under the agreement to alter or amend the
grievance, or the collective agreement to provide the
expansion or amendment of a grievance to permit the
litigation of another separate issue arising at the time
of the hearing, without consent of the other party to
the agreement, Apart from any other consideration,
there are time limit provisions in the collective
agreeaent which are ~andatory and therefore being a
separate issue which should have been, if at all,
alleged separately and dealt with by the parties prior
to arbitration as a separate issue, would be out of ti~e
under Article 11, even accepting the conclusion that
such an issue could be raised by a probationary employee
during his probationary period, The bad faith C/lai~ was
not brought by the grievance and was not an amendment
agreed by the parties and there is no basis for this
Board under the agreement to take Jurisdiction, so as to
deal with that issue. It is our conclusion that the
allegation of bad faith would convert this grievance
into a different form of grievance which would require
an expansion or an amendment to the grievance which is
outside of the Board's authority. That conclusion is
consistent with the Atlas Steel and Orenda Engines cases
(supra). If the employee alleges that he has been
prevented from completing his probationary period
because of unlawful or other forms of improper conduct,
that is a singular issue and different than a claim for
unjust release as a probationary employee, which claim
must be made, if at all, as part of the grievance which
can be dealt with by the parties through the grievance
procedure prior to arbitration. The avoidance of that
procedure and the lack of timeliness of the Claim, is
contrary to provisions of the collective agreement and
indicates the necessity for such a claim to be made in
order for a Board of Arbitration to have Jurisdiction to
deal with such serious allegations.
For these reasons, the Board-finds that in the
circumstances of this case, the grievance cannot be
amended or expanded to allow the inclusion of the claim
of bad faith claim submitted by the Union and t~%refore
lacks Jurisdiction in that regard. Acknowledged in this
case is that a probationary employee cannot grieve the
release from employment during the probationary period
under the agreement and therefore it follows that this
grievance is not arbitrable. Therefore it is the
Board's award that the grievance must be dismissed.
DATED AT OAKVILLE THIS ~ DAY OF SEPTEMBER 1987.
H.D, BROWN, CHAIRMAN
R, NABI, ONION NOMINEE
G.I. CAMPBELL, EMPLOYER NOMINEE
In the mat%er'o~ an &rbitratio~
BE"THEENs ,
ONTARIO COUNCIL OF RE~-NTB FOR COI.L~IgEB
OF i~PPLIED P. RT~ J~ND TECHNOLOI;Y .
SHERI DAN COLLEIIE
(The Employer)
ONTP. RIO PUBLIC SERVICE EI'IPLOYEES UNION,
LOCAL 244
(The Union)
AND IN THE HATTER OF THE ~IEYANCE OF' RICHARD GERSON
DISSENT OF RI CHARD A. NAB I
It is with the 9reatest repect that I dissent from the
majority's view in this case. IIy colleagues Ire very
experienced in labour relations I&tters ~nd quite learned in
the law. One cannot help but have respect for their views.
Hc~ever, it is my conside4'ed opinion that they su~.ely expect
too much with this &~&rd~ from those ~ho h&vl not spent their
entire lives practising the Irt they have so ¢Irefully .
m~st~red.
. .~ ,.--~~: .~-..' :.. : :.:~ =_,:~ .. .,:...~ .~,-,.::-' .,:.,.~ =~:.~.~,:.~....
. The aaJ'~lty dwcisi~ turns ~ the ~act that the
-, .. _ _
fail~ to distingui~ t~ the. ~loymr~ at thea~i~ first
~ote ~t ~nd 'ii]ed his griev~nce~ that he ~s not ~lleging
that he h~d been dtscharg~ ~tthout just cluse~ but
N~s ill.lng thlt the ~loy~ ~s f~tling to. ~11~ hii to
~ '" ' ' ~k: "' -~ ::. "~'~
c~lete his pr~lti~ry p~i~ .thr~gh ~n Ici of b~d
It seems incredible to me that an ordinary lin should be
expected to complete his grievance with such precision.
A prisoner in the dock~ even one accused of the most
minor of crimes is given a siiple choice. Plead 'guilty' or
'not guilty'. The trial judge or clerk of the court goes so
far as to provide the prisoner with the exact ~ords from
~hich to choose. N° accused ever has to face the Court
without having a journeyean ]a~yer at his side and so~ when
the time arrives for a choice to be made between those
tmmorta! three words~ the prisoner ts additionally entitled
to receive the coaching of his counsel. Once the words "not
guilty"- have been uttered from the accused's mouth the
Judicial process takes over and the true combatants are
released from their restraints. These gladiators of the
Courts know that ~ords are their weapons and.~they spend many
years in study end apprenticeship to hone their skills in
~li ldtng them.
~-~ . · .~ . :'~'"...
~ is nDt required to expliin'~"the Judg~ ~j~s" th~.
reas~ f~ his innocence. Hts~la~er will do'"~l] -'that ~nd
~e. For the ~e d~ftcu]t plels such Is lutref~ls, IcguXt
him.
cfi Mi
di scharge.
The courts don't expect a layman to know precisev legal
terminology and 'thusly allow proceedings to get underway with
simple words. The most cDmplicated and lengthy criminal
t~ials in the ~orld all started with the .prisoner's
expression of innocence regardlesu of how emotional 1 y,
quietly or angrily the words leave the prisoner's lips. The
same should be true at an arbitration hearing, d~bitration
bo~rds are administrative tribunals created as ·n extension
of the CDUrtS because of their expertise in a specialized
~rea. It is ly viam~ that they ·re under the same obligation
as the courts to safeguard fundamammt·l rights of 'the parties
~nd allow proceedings to commence with simple ~o~ds.
/abDur arbitration hearings &ren't cDiiin·l trials,
though. "They ire -civi I attars.--'~ ' '{h~iego~s ~, ire '- real ly
p]·lnti{fs. They ·re required to set 'out in thlir ri·il' ·
prKite
c~.dra~ u~'. ~!n many cases th~ law.~p~i~tt the~?)~y~s ~n~
~der to do so...~e prec~.s~ cequ~red by. !Y, ~colZeagues ~n..,
the framing of a grievance ~ld ~rely. re~i~e the- sam
thing. ~is_~]d ~eM th~gh~ to ~duly c~licate and
administratively overburden ~ syste~ that Nas designed
si~ltcity and ~e~. It ts In My ~ini~ silly t~ ~ch to
ask that ~ grtevor be expected to retain a ~ltcit~ tn
~der to have a grievance prepared f~ his ~ her signature.
Hhy Must the plea Dr claim be so exact for a grtevDr? i4h¥
is the grievDr faced Nith such an onerous responsibility ~hen
his job and his livelihoDd are at stake? If the employer is
caught unprepared fDr an unexpected argument at arbitration
Nhy isn't the Just and _equitable remedy an adjournment, at
the grievor's expense If necessary? Indeed~ the grtevor's
inability to frmme the issue cDrrectly Nas not a bar to
arbitration of the case In CahadXah MestX~ghouse ¢o. Ltd.
(19~4), ~4 L.A.C. 279 (Rey~le). Direction that particulars
be provi ded has been a cure to many Yaguel y )~rded
grievances. See generally, Ca~adXa~ General Electric ¢o. Ltd.
(~950), 2 L.'A.¢..573 (LaskX&) mhd cases referred to thereLn.
.~. ; He kn~ nothing or-:the facts '~n th~s:=a~ ~cept that the
grtevoF has been discharged. We nothing About the grte¥o~
of the circumstances that lead to his termtnat~
~'~h~
~oy~ent. Ne kn~ ~iy thlt griev~ Jotn~ ~Y his
~t~, allege that this ts a ma~ fXdes dtKh~ge. I Jo~n with
the majority in finding that w are ent~tl~ to inquire ab~t
~ether there h~s been tn f~ct~ In act of bid faith c~itted
~ the p~rt of the e~p]oyer~ but Z cannot ~gr~ that such an
inquiry ~ou]d broaden the scope o~ the grievance ~nd infringe
~ the pr~b~ted grounds of ~t~cie J~.04 (d)~ ~lch
prevents us fr~ a]tering~ ~dtfy~ng ~ a~ending the
prDviSi~S of the collective agreement. TD s~y ~ the
grievance ~ ,hat the ~J~ity ~]d re~tre the griev~ to
say, and what was actually said se~ to me, to be the same
thing. The 9rievoro in an honest and straightf~ward manner
said he was reIeased 'without ~USt and sufftcJen~ cause'. The
Mj~ity wanted the ortev~ to say 'I was not all.ed to
c~lete my pr~atl~ary peri~ because of an act of bad
faith ~ the part of the e~loyer'. Frankly, I fail to see
~e di fference.
If An employee 'MhD'hAd c~c~oleted the probationary period
discharged' 'bY virtue of his Alleged theft" of company
grievance ~°uld be' ar6[t~Able if' he
oerel~' scrawled '"~scharged ~ith~(~ut ;'~' '"'- '
· ~,~ .
, -~:.;- ....~..T~ ~. ~'~ '~' .... .....~ .... .~ .~,,,-..._ ._.. .... .. ~ ....... :.- ...,, .~ -.~ .
,,:~: ... .. ~. ~.~. ~.~-~,~.-~-. ~ . :..'-...~. - . .
::. /' _ · ,~: ~.. - . . . .' -.- .'..;~..;.,~.~,.. - . . ...... ~,.. ~}~:.~- ~:'~:. · ..... ~:..~,~,
the issue was 'theft
niceties Df. di'Sctp]lne,had been lettcul~sly roll.ed. The
griev~ ~Id ~t'"bi' Put to the b~d~n o~ pl,ctng ~ his
theft ind his c~ ~]d not go unhemrd sJ~y becmuse the
~. ..... ~",~..- ' - '. .',2' ..~'
IIplOy~ Cia ~prIparId
theft as ~pDs~ to proving that dJscharQl gs ~ appropriate
l~tt~r c~s~ th~
th~ cmld ~ ~dequat~l~ pr~p~r~ th~ir ~vi~ence ~n~
buttr~s~ their ~rgum~nt. ~o~ ~h~ t~ tht~ c~se ~ny diff~r~nt~
Here we have a situation ~here the end result is that the
griever is discharged. Because he is a probationary employee,
the employer does not need to prove that the discharge Nas
for cause Dr even that there Nas any reason for discharge at
a] 1. Ho~eve?, the elpl Dyer lUSt, by DpIratton of the
principles of taN, come to the hearing prepared to prove that
they operated at all times in a proper and legal lanner. The
allqation ia'de by the grievDr is that they did not. In the
case of the employee MhD iS accused Df thIft, there is no
expansion of the griivance by allo~ing thI union insist that
the employer prove that the employee actually stole. In fact,
it ~ould be inconceivable that an eIployir ~ould come to ·
hearing .,unp%mp..~r~.ed to do . ID. I II IOIeidlat cDnfuiId
the£~.efDre,.. 1.&~.-~ th~e~ suggestt on ..... th. at in thts~ =:case--~ there uould be
...~..;~ ~ .'
. ~ ~' . . ,:.~ Z .
'. .'" .::%"'~';~ z ~ '-"- ...... ' ~"' ~"~'
~' ~ _~~ ' . '~-',~'-'~ ...~.. ,,:~ ~,: ...... . ..
o'
· " · ~c~'F~ -- %x% ~.¢.'. . ..
had been b~'d ~'~atth ex~cl sed 'by t~'e .
E~p~oyees ~ho have been ftred bastcl~ly hlvl t,o ~tui]ly
exciusive de,encee. ~ the ~e hand they c~n ldiit that ev~y
act of ~gdotng of ~ch they are accused ts true. in that
case they hope to persuade the ~rbttr~tors that discharge
~t the appr~ate remedy. ~ the othe~ hand, the g~lev~ can
deny the truth of the accusative against hi,. in that case,
he hopes to sho~ that the ~p~oyer had no prier and
re~s~ab~e gr~ds ~on ~tch to base. the dtsch~rge.
vbitrat~ board is going tO sit b~ck ~nd i~]~ the
to put ~n a case they stlp~y ~ss~t ts true. Every
~st prove ~at they say ts true~ ~ the bl~a~ce
'probabX~XtXes. ~e result ts that no e~pioyer tin silply
f~ard Jnd lille the e~p]Dyee etd]e lnd then ~th~t
~ther pr~f~ ~rgue that dtsch~rge ts the only
r~edy. So, ~at ~s the di~fer~ce tn this case? Th~
~s c~ f~rd and sa~d w have re]eased the ~]oy~
~rtng hJs pr~lti~lry p~tM.- Y~ (~~s M the
~b~tratJ~ b~d) ~st be~L~e thlt H loth tn 'g~
~t l~] tJm.-~Y~"'~St not're~re us to pr~ t~t w d~d
b~tnd i-~releaue ~en there is'~"ellegati~ of bad
in Iy ~ini~ it is I f~damentll mistake not to
Firstly bKauue I am C.~vinc.ed..)hat such in expl.~ati~.~ld
be wll within ~r luth~ity ~der the IOreemt ~d within
the waning and int~t of the grievance as it is c~r~tly
~ded. Sec~dly, becau~ ~r role iu n~ limit~ to strictly
c~strutng the terms of the aoree~t ~ the parties.
ProfessDr Paul #eiler discusses the parametL~S of the
'add, delete or ·mend' clause in his noted work REI:ONCILABLE
DIFFERENCES (191K), the Carswell Company Limited, Toronto, at
pp. 101). He points out that the fallacy of the argument that
the arbitrator's job is to simply interpret the contract was
revealed in. Professor L·skin's decision in lie Polymer
(X959), 10 L.A.C. 51 (upheld in the S.C.C. see £19625
338 (sub =om. Re PoZ¥mer Corp~)° a~d O.C.AoMo Loc. 16 -1,t) 33
D.L.R. (2d) 124 ($.'C.C.). Professor Healer's view (at page
102) is th·ti
'. · · · Iabour ·fbi trator mJst be ·
rut l~fledged adjudicator of contract
grtevance~t not simply ~, &n., &uthoritative
re·der of contr·ct provisions'.
points out~ labour 'arbitration l~ the quid pro quo t~ the
b~ ~ self-help and if ~ is arbitrates Vail to ill~
~loyees to obtain even a hearing of their dtVf~c~ thenv
~tety should expect e~loy~s and their rep~eu~ative
~ganizatt~s to revert to ~e tradltt~al and less peaceful
eth~s of dispute resoluti~. I Vully rK~nize
~]oyer*s argument and I morea that they should ~t have to
defend themselves at avery tMlst and turn and Vrom every
allegation regardless of ho~ spuri~s. Houev~v tn
cases such au [hisv they must at all times be prepared
prove they acted lakYullyv Nithin the parent.s M the
collective agreement and in g~ ~aith. This Is espKJally
true for an employer ~o relies totally ~ the the public
p~ue ~Dr its funding. They must not ~]y appear tO have h~gh
r~ard f~ these principles. They must be beyond reproach.
For all these reasDns I would have dismissed the
prelimin&ry ob~ection, instructed the union to provide
particulars to the employer and set the matter dD~n for
further hearings.
Re= Sheridan College and O.P.S.E.U.
Grievance of lt. Gerson, ~86 O 40
ADDgNDUM
I have read the award prepared by the Chairman, and I agree with him
that the grievance does not raise a matter that is arbitrable under
this collective agEeement. ! also agree that the grievance cannot be
amended now to raise a new matter and that, accordingly, the
9£ievance must be dismissed.
However, this should not be construed as an agreement on my part that
the mere addition of the words 'bad faith' can convert a matter that
is not arbitrable into one that is arbitrable. It is obviously
unnecessary to determine that question in this case, and ! would
,eserve my opinion on that question until it is necessary to decide
it.
· Camp
Au~Just 10, 1987