HomeMy WebLinkAboutStewart 16-10-31
IN THE MATTER OF AN ARBITRATION
PURSUANT TO THE COLLEGES COLLECTIVE BARGAINING ACT
BETWEEN:
SAULT COLLEGE
(the “Employer” or “the College”)
- and -
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
(the “Union”)
RE: RELEASE OF RICHARD STEWART
OPSEU # 2015-0613-0009
PRELIMINARY AWARD REGARDING ARBITRABILITY
BOARD OF ARBITRATION
PAULA KNOPF - CHAIR
ANN BURKE - EMPLOYER NOMINEE
SHERRIL MURRAY - UNION NOMINEE
APPEARANCES:
FOR THE EMPLOYER: DAN MICHALUK
FOR THE UNION: CHRIS BRYDEN
The hearing of this Preliminary matter took place in Toronto
on October 17, 2016.
1
The Union filed a grievance on behalf of a probationary employee (the Grievor)
alleging “unjust release/dismissal”. The Union has provided particulars of its
claim, alleging violations of Articles 3, 4,1, 6, 27.02 D, 27.02 E and 32. Those
particulars allege that the “release/dismissal” was arbitrary, made in bad faith,
discriminatory and done in reprisal for Union activity. The Employer has raised a
preliminary objection to arbitrability, asserting that the Collective Agreement
confers no authority for a Board of Arbitration to determine whether the release of
a probationary employee was made in bad faith or in an arbitrary manner. The
Employer also has objections to the other allegations contained in the particulars.
However, the parties have agreed to deal with those after this preliminary
jurisdictional issue concerning the arbitrability of bad faith and unreasonableness
is resolved. It should be noted that this Preliminary Award does not touch upon
issues of jurisdiction over allegations of discrimination or unlawful administration
of a Collective Agreement. That is because the arbitrability of those kinds of
allegations is not disputed.
The Grievor held the status of a probationary employee at the time of his
release.1 He was hired effective June 3, 2013, with a 24-month probationary
period. He was released 22-1/2 months later, on April 17, 2015, by way of a
letter stating: “We regret that you are hereby released from your probationary
employment with the College effective today.” No reasons for the release were
given in that letter. On May 7, 2015, the Union filed a grievance that stated:
Violation: Unjust release/dismissal. The College eliminated my
employment and immediately created support staff positions to circumvent
my academic position. There have also been violations of Article 3, 4, 1, 6,
32 and any other Article, acts or legislation deemed appropriate.
It is also alleged that the College failed to provide the Grievor with periodic
progress reports as mandated by Article 27.02 D. On June 4, 2015, the College
1 Although the Grievor’s status was originally in dispute, the Union conceded (“without prejudice
to any other matter and based on the particular circumstances of this case”) that he was a
probationer at the time of his release.
2
did provide a written rationale for the Grievor’s release stating that it was based
on the College’s decision to “revert to a previous position/staffing model” as
a result of the Union’s cancellation of a staffing agreement that had been in place
at the time of the Grievor’s hire. There was no mention of any performance
concerns.
The objection to the arbitrability of allegations of an arbitrary or bad faith release
of a probationer arises because of recent amendments to the Collective
Agreement. For approximately 30 years, the judicial and arbitral jurisprudence in
this sector established that there was an implied duty upon management to
exercise its right to release probationers without any arbitrariness or bad faith.
The 2014-2017 Collective Agreement introduced new language concerning the
release of probationers. The College asserts that this language removes an
arbitrator’s jurisdiction to review probationers’ releases on the basis of allegations
of bad faith or arbitrariness. The Union asserts that the changes have not
removed arbitrators’ authority to determine whether the release of a probationer
was done in accordance with the previous case law.
To understand the parties’ positions it is necessary to set out how the operative
provisions of the Collective Agreement have been changed. First, the
probationary period itself was shortened from t wo years to one. Secondly, the
period of probation was made extendable as follows:
27.02 A 2 The probationary period of an employee covered by 27.02
A 1 (i) may be extended for up to one additional year where the
College determines that the employee’s performance has not met
expectations. The College shall provide a performance improvement
plan to the employee. The plan shall specify the areas where
improvement is needed and the supports and resources that the
College will provide to the employee. The Union Local will be notified
if an employee’s probationary period is extended .
Third, and most importantly, the language regarding the release of
probationers was changed. The previous language in Articles 27.14 and
32.05 was:
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27.14 It being understood that the release of an employee during
the probationary period shall not be the subject of a grievance
under Article 32, Grievance Procedures, but may be subject to the
internal complaint process as referred to in 7.02(iii). . .
32.05 It being understood that the release 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 32.06 and 32.07.
The changes that were negotiated can be illustrated by showing the new
language with underlining and the old language crossed out :
27.14 B The release or dismissal of a probationary employee
from employment is within the discretion of the College and
is not covered by the provisions of the Agreement and is
therefore not grievable or arbitrable, It being understood that
the dismissal of an employee during the probationary period
shall not be the subject of a grievance but may be subject to
the internal complaint process as referred to in 7.02 (iii), an.
An employee who has completed the probationary period
and is discharged for cause may lodge a grievance in the
manner and to the extent provided in the Grievance and
Arbitration Procedures, or in the Expedited Arbitration
Process.
. . . . .
32.05 The release or dismissal of a probationary employee
from employment is within the discretion of the College and
is not covered by the provisions of the Agreement and is
therefore not grievable or arbitrable. It being understood that
the dismissal of an employee during the probationary period
shall not be the subject of a grievance, an An employee who
has completed the probationary period may lodge a
grievance in the manner set out in 32.06 and 32.07
Accordingly, the critical operative language in both Articles 27.14 B and 32.05
now reads:
The release or dismissal of a probationary employee from
employment is within the discretion of the College and is not
covered by the provisions of the Agreement and is therefore
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not grievable or arbitrable, but may be subject to the internal
complaint process as referred to in 7.02 (iii).
One other relevant amendment was in Article 27.02 E, changing the period of
written notice required for the release of a probationer and allowing for pay in lieu
thereof.
What did not change in the new Collective Agreement was the right of a
probationary teacher to take his/her complaint about their release to the parties’
“internal complaint process”. Further, the provisions dealing with probationers’
progress during the probationary period and receiving reasons for their release
upon request were not altered. They provide:
27.02 D During the probationary period an employee will be
informed in writing of the employee’s progress at intervals of
four months continuous employment or four full months of
accumulated non-continuous employment and a copy given
to the employee.
27.02 E A probationary employee may be released upon at
least 30 calendar days’ written notice or pay in lieu thereof.
If requested by the employee, the reason for such release
will be given in writing.
These two provisions were key to the implication that the releases had to be
based on reason and good faith, see Loyalist College and OPSEU (Swan) below.
The pressing issue in this Preliminary Award is whether the new language in the
parties’ Collective Agreement has removed arbitrators’ jurisdiction to review
probationary releases on the basis of allegations of bad faith or arbitrariness.
The Submissions of the Parties
The Submissions of the Employer
The College relies on the new language to assert that any allegation that a
probationer has been released in bad faith or in an arbitrary manner is no longer
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arbitrable. It was stressed that a Board of Arbitration must “give effect” to the
bargain that the parties reached. It was said that the “text and the context” of the
new language should lead to the conclusion that the parties intended to “depart
from the status quo” by isolating the College from such claims and litigation.
The Employer pointed out that the parties retained many of the probationers’
“substantive rights”, including those under Articles 27.02 D and E, by allowing
them to grieve if they have not received their progress reports or reasons for
release. However, it was submitted that the parties have now “lawfully” denied
probationary employees a right to allege a bad faith or arbitrary release by
agreeing that such releases are not substantive “differences” under their new
Collective Agreement. The Employer places great weight on the words “The
release …. of a probationary employee …. is not covered by the provisions of
the Agreement and is therefore not grievable or arbitrable” [emphasis added].
This Board of Arbitration was urged to “respect parties’ intent” and to refrain from
altering or amending what was said to be the clear language of the Collective
Agreement. However, it was conceded that that the parties could not block the
arbitrability of substantive or statutory rights under the Collective Agreement.
Further, the Employer argued that the phrase “not covered by the provisions of
the Agreement” must be read in light of the Colleges Collective Bargaining Act
which defines the scope of arbitral jurisdiction by reference to differences “arising
from the interpretation, application, administration or alleged contravention of the
agreement.” Simply put, the Employer asserted that the release of a probationer
is no longer a “difference” or “assertible substantive right” under this Collective
Agreement. It was said that the words “not grievable or arbitrable” are therefore
express restrictions on the scope of arbitrable jurisdiction. The College submitted
that these terms negate any room for an implied right to challenge a
probationer’s release on the basis of allegations of arbitrary or bad faith conduct.
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Although neither party introduced any bargaining history evidence, the Employer
asked this Board of Arbitration to infer that the College made a “significant
concession” when it reduced the probationary period from two years to one. This
was said to give context to the proposition that the parties must have agreed to a
shortened period of probation in return for precluding litigation about the good
faith or arbitrary release of probationers. This was said to have “restored”
management’s unreviewable discretion to decide who ought to be continued as a
permanent teacher. It was also argued that since the litigation of probationary
releases has a history of being costly, time consuming and resulting in awards
with “limited remedial potential”, it made sense for the parties to insulate
themselves from such concerns.
The Employer also submitted that the case law recognizes that there is no
“general duty” to exercise all types of managerial discretion in a reasonable or
good faith manner. It was stressed that such a duty only arises from specific
language and cannot be implied as a matter of course. While it was accepted
that the implied duty of reasonableness does apply to employer imposed rules
with disciplinary consequences, it was not accepted that the case law supports
the notion that there is an overall duty of reasonableness that can b e imputed
upon any aspect of contract interpretation, administration or application.
The Employer also accepted that there is an implied duty to exercise
management discretion reasonably when to do so unreasonably would create a
conflict with or undermine the rights conferred by other provisions in the
Collective Agreement. In the case at hand, the Employer submits that the
probationers’ substantive rights to progress appraisals and reasons for release
are maintained discretely and separately through their ability to grieve violations
of Articles 27.02 D and E, as well as their ability to process complaints through
the “internal complaint process” available by virtue of Article 27.14 B. However, it
was argued that there is no scope to imply a duty of reasonability or good faith
into the exercise of management’s discretion to release a probationary
7
employee, because the parties have chosen to explicitly remove probationary
releases from coverage under the Collective Agreement and the realm of arbitral
review.
In support of these submissions the Employer relied upon the following cases:
Markham Hydro Electric Commission v. IBEW, Local 636, 1992 CarswellOnt
6624 (Knopf); Ontario (Alcohol ad Gaming Commission) v. OPSEU, 2001
CarswellOnt 6443 (Whitaker); Greater Essex County District School Board v.
OSSTF, District 9, 2005 CarswellOnt 10082 (Div Ct); Loyalist College of Applied
Arts and Technology v. Ontario Public Service Employees Union (2003), 225
DLR (4th) 123 (Ont CA) [Loyalist College (Bergman)]; Georgian College of
Applied Arts & Technology and OPSEU (Konrad), Re, 2011 CarswellOnt 18573
(MacDowell); Algonquin College (Sumitro), (24 July 2006, Knopf); York Region
District School Board v. OSSTF, District 16, 2005 CarswellOnt 8425 (Knopf);
Fanshawe College v. OPSEU, 2002 CarswellOnt 5407 (Burkett); Fanshawe
College of Applied Arts and Technology and OPSEU, Re, 2015 CarswellOnt 646
(Bendel) [Fanshawe College (Goossens)]; Royal Ottawa Health Care Group and
ONA (Chisholm), Re, 2014 CarswellOnt 9220 (Knopf).
The Submissions of the Union
The Union submitted that the changes to the language in the Collective
Agreement have not eliminated the rights of probationary employees to grieve
that they have been released as the result of an arbitrary or bad faith exercise of
management discretion. The Union acknowledged that probationary employees
do not have a right to the just cause provisions of the Collective Agreement.
However, it was asserted that it is “absurd” to conclude that it agreed to any
language that would now allow Colleges to arbitrarily release probationary
teachers or do so on the basis of bad faith. Therefore, while acknowledging that
management has a discretion with regard to the release of probationers, the
Union stressed that such discretion must still be exercised within the bounds of
reason and good faith. Further, it was said that even where management has a
8
broad discretion, no parties should be deemed to have agreed that the discretion
can be exercised in an arbitrary or bad faith manner. Therefore, it was said that
the release of probationers has to be arbitrable so that there is an enforceable
obligation on management to exercise that discretion reasonably and in good
faith.
The Union also submitted that unless probationers have a substantive right to
good faith and objective reasons for their release, their rights under Articles
27.02 A, D and E would be curtailed. The Union asserts that if the Employer’s
position were to prevail, it would essentially read out any meaningful enforcement
of the substantive rights retained in Article 27.02. It was stressed that if the
parties had intended to wipe out decades of case law that relied on those
provisions as the basis for the implied duty of good faith and reasonability, they
would have adopted much clearer language than what was agreed upon in
Articles 27.14 B and 32.05. This Board of Arbitration was told not to assume that
the change in language “meant something” or that it signaled a “profound sea-
change” with respect to the implied duty to act in good faith. Further, it was said
that the retention of Articles 27.02 D and E indicate a preservation of the very
basis of the implied duties to exercise discretion reasonably and in good faith.
The Union also submitted that Article 27.02 A 2 gave probationary employees a
new and important right to have probation extended and for the College to
provide a “performance improvement plan”. This was said to create a new and
substantive right that must also be enforceable and serves as a further
foundation for the requirement of a reasonable and good faith administration of
probationers’ employment. Accordingly, the Union asserted that the words “not
covered by the provisions of the Agreement” in Articles 27.14 B and 32.05 simply
created an unenforceable procedural bar to the vindication of substantive rights
under the Collective Agreement.
The Union responded to the College’s submissions regarding the length,
expense and “limited remedial” value of probationers’ arbitrations that occurred
9
under the previous Collective Agreement, pointing out that such cases were
about the vindication of rights. It was stressed that probationary teachers are
striving to establish permanent careers, investing time, energy and often their
family’s commitment to communities during the probationary period. It was also
stressed that the denial of a permanent position can have a devastating impact
on the teacher and his/her family. It was said that they ought to be given a fair
chance to succeed and that the cost of arbitration is a necessary price to pay for
protecting them from an arbitrary or bad faith release.
In support of these submissions, the Union relied upon the following cases:
Toronto (Metropolitan) v. C.U.P.E., Local 43, 1981 CarswellOnt 3405, [1981] O.J.
No. 672, 9 A.C.W.S. (2d) 347 (Ont. Div. Ct.); Seneca College (Hacker),
September 17, 1986 (unreported); St. Lawrence College and OPSEU, December
21, 1987(Brent), 32 L.A.C. (3d) 322 [“St. Lawrence (Brent) #1”]; St. Lawrence
College and OPSEU, (1987) 32 L.A.C. (3d) 322; OPSEU v. St. Lawrence College
(Brent), February 17, 1989, (Ont. Div. Ct.); St. Lawrence College v. O.P.S.E.U.,
1989 CarswellOnt 4929, 16 C.L.A.S. 71 (Brent); Summary of OPSEU v. St.
Lawrence College (Brent) JR & Award on Merits, (1989), 41 L.A.C. (4th) 128; St.
Clair College, Unreported decision dated June 17, 1996 (Swan); Algonquin
College and OPSEU, Local 415 (Sumitro), 2006 CarswellOnt 11534, 86 C.L.A.S.
227 (Knopf); Centennial College of Applied Arts & Technology v. O.P.S.E.U.,
Local 558, 2003 CarswellOnt 1766, 72 C.L.A.S. 305 (Knopf); Seneca College v.
O.P.S.E.U., 1998 CarswellOnt 6091, [1998] O.L.A.A. No. 977, 54 C.L.A.S. 340
(Thorne); Metropolitan Toronto (Municipality) v. C.U.P.E., 1990 CarswellOnt
1088, [1990] O.J. No. 537, 20 A.C.W.S. (3d) 512, 39 O.A.C. 82, 69 D.L.R. (4 th)
268, 74 O.R. (2d) 239 (ONCA); Brampton Hydro-Electric Commission v. CAW-
Canada, Local 1285, 1993 CarswellOnt 1084, [1993] O.J. No. 2553, 108 D.L.R.
(4th) 168, 15 O.R. (3d) 773, 43 A.C.W.S. (3d) 571, 67 O.A.C. 289 (Ont. Div. Ct.);
O.P.S.E.U. V. Teranet Land Information Services Inc., 1994 CarswellOnt 1882,
[1994] L.V.I. 2601-5, 35 C.L.A.S. 282, 40 L.A.C. (4th) 418 (Mitchnick); U.N.I.T.E.-
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H.E.R.E., Ontario Council, Local 2347 v. Canadian Niagara Hotels Inc., 91
C.L.A.S. 323, 2007 CarswellOnt 10177, [2007] O.L.A.A. No. 581 (Howe).
The Employer’s Reply Submissions
In response to the Union’s reference to Article 27.02 A 2, the Employer argued
that the “enhanced” rights to have the probationary period extended and receive
a “performance improvement plan” created greater substantive and procedural
protections for probationers, but do not limit management’s discretion regarding
their release. Further, it was said that the retention of Articles 27.02 D or E
demonstrates that the parties did not want to eliminate distinct and narrow
substantive rights that remain arbitrable on their own.
The Employer argued that the words “not covered by the provisions of the
Agreement” indicate that the parties wanted to make clear that no substantive
right to challenge probationary releases arises out of Articles 27.02 D or E or any
other provision of the Collective Agreement. By doing this, it was submitted that
the parties defined that the right to release is now distinct and unfettered.
The Decision
For almost three decades, arbitrators and the reviewing courts enforced an
implied duty of good faith and an obligation on management to refrain from
releasing probationary employees for arbitrary reasons. This was based on the
language in the parties’ previous Collective Agreements, particularly Articles
27.07 D and E, neither of which were amended in this last round of negotiations.
Those provisions give rights to newly hired employees which were designed to
ensure that they could “do their best” during their probationary period. The case
law accepted that those provisions implied a duty of good faith upon the College
to treat probationary employees with good faith and secured them from arbitrary
release. That implied duty was solidified by the Court of Appeal in the case of
Loyalist College, supra:
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[60] . . . . the College did not have an unfettered right to dismiss
probationary employees. Although the collective agreement did not give
probationary employees the right to just cause for dismissal, it did give them
other limited rights. An alleged breach of any of these rights may give rise to
a difference in the interpretation, application or administration of the
collective agreement, and failing resolution, would then be arbitrable. See
Ontario Hydro v. Ontario Hydro Employees' Union, Local 1000 (1983), 1983
CanLII 1868 (ON CA), 41 O.R. (2d) 669, 147 D.L.R. (3d) 210 (C.A.).
[61] So, for example, one right of a probationary employee was the right not
to be discriminated against on the various grounds prescribed in Article
4.01. . . . . Another right was the right not to be dismissed in bad faith. For
many years arbitrators and courts have held that this right is an implied term
of every collective agreement and extends to all employees, including
probationary employees. See Brampton Hydro Electric Commission v.
C.A.W., Local 1285 (1993), 1993 CanLII 8488 (ON SC), 15 O.R. (3d)
773, 108 D.L.R. (4th) 168 (Div. Ct.) and Metropolitan Toronto (Municipality)
v. Canadian Union of Public Employees, Local 43, unreported, July 3, 1981
(Div. Ct.).
That decision was based, in part, on Toronto (Metropolitan) v. CUPE, Local 43,
supra, where the collective agreement gave the employer the “exclusive right” to
discharge probationers. The Divisional Court said:
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.
However, that statement was not made in the context of a collective agreement
that explicitly states that the release of probationers is not covered by the
provisions of the collective agreement and is not arbitrable. Indeed, that was a
case where the arbitrability of the probationer’s release was not preluded by the
collective agreement and so was not in question. The only issue was the
standard to be applied to a probationary release. Given the right to grieve, it was
held that the probationer had a right to assert that the release was motivated by
unlawful considerations or resulted from management actions that prevented the
probationer from “doing his best.” Therefore, the implied duty of good faith was
imposed upon the recognized and substantive right to challenge the release.
Brampton Hydro, supra, was also a case that formed the basis of the Loyalist
12
College decision. The Court addressed the question of whether the parties must
explicitly indicate a requirement to act in good faith or in a reasonable manner.
The Court posited:
It seems to me that the answer to that argument is found in the mere
asking of this rhetorical question: "Can you imagine any party, while
negotiating a collective agreement, bargaining to include an article: the
parties shall have the right, at all times and in all circumstances, to act in
bad faith and/or in an arbitrary manner and/or in a discriminatory way?"
However, that obiter was offered in the context of a collective agreement that
included the phrase: "Both parties recognize a duty to cooperate in good faith,
individually and collectively, for the advancement of these purposes." Therefore,
good faith and reasonability were already written into that collective agreement.
The new language governing the parties at hand says clearly that probationary
releases are not covered by the provisions of the Collective Agreement and are
not grievable or arbitrable. This Collective Agreement also provides that the right
to lodge a grievance is subject to the “extent provided” in the contract [Article
6.01(ii)]. But this contract does not “provide” probationers with the right to grieve
their release. Further, this contract does not have a “harmonious relations”
clause. Nor is there any language committing the parties to act in “good faith.”
There is only an explicit commitment of the College to exercise its management
functions “in a manner consistent with the provisions of the Agreement” [Article
6.02]. The parties have defined the release of probationary employees as a
dispute that is not covered by the provisions of the Collective Agreement.
Therefore, it must be concluded that the parties have clearly circumscribed the
rights of probationary employees to have their releases arbitrated.
However, the Collective Agreement does impose other enforceable rights for
probationers under Article 27.02. For example, there is the right to extend
probation with an improvement plan and necessary supports, the right to
vacations, the right to quarterly progress reports, the right to pay in lieu of notice
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and the right to reasons upon request in the event they are released. There is no
dispute that those rights are enforceable through arbitration.
This still leaves us with the question of whether the new language in the
Collective Agreement eliminated the previously recognized implied right to have
probationary releases arbitrated when there are allegations of bad faith or
arbitrary reasons. Section 14 of the Colleges Collective Bargaining Act dictates
that every collective agreement shall provide for the final and binding settlement
by arbitration of all differences between a College and the Union arising from the
interpretation, application, administration or alleged contravention of the
agreement, including any question as to whether a matter is arbitrable.
Consistent with that, Article 32.03 of this Collective Agreement provides for the
referral to arbitration of “any difference arising from the interpretation, application,
administration or alleged contravention of this Agreement . . . . including any
question as to whether the matter is arbitrable.” Therefore, a critical question to
address is whether the parties’ new contract has made probationary teachers’
release a matter arising from the interpretation, application, administration or
alleged contravention of their agreement.
The new language cannot be ignored. The release of a probationary employee is
now said to be specifically “within the discretion of the College” and “not covered
by the provisions of the Agreement” and not “grievable or arbitrable”.
It is an obvious and important principle of contract interpretation that all words
must be given meaning. Further, it is fundamental to the interpretation of
collective agreements that the bargains that the parties make must be given
effect. This was emphasized in the decision regarding Greater Essex District
School Board and OSSTF, supra, wherein the Court was called upon to consider
the case law that was the basis for the Loyalist College, supra, decision and to
determine whether a contract allowed a probationer to challenge his/her
dismissal on the grounds of arbitrariness. The Court said as follows:
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29 An arbitrator can not "alter, modify or amend" the language of the
collective agreement . . . . While an arbitrator may imply language into a
collective agreement, he or she may do so only if that language is
necessary in order to give effect to the parties' agreement (Hamilton (City)
v. C.U.P.E., Local 167 (1997), 33 O.R. (3d) 5(Ont. C.A.) at p. 10). An
arbitrator can also require an employer to exercise its management rights
reasonably in order not to negate or unduly limit other provisions in the
collective agreement (Metropolitan Toronto (Municipality)
v. C.U.P.E. (1990), 69 D.L.R. (4th) 268 (Ont. C.A.) at p. 286).
30 The current jurisprudence recognizes that the parties to a collective
agreement can deny probationary employees access to the grievance and
arbitration provisions of a collective agreement, provided that they have
done so in clear terms (see, for example, Markham Hydro Electric
Commission v. I.B.E.W., Local 636 (1992), 24 L.A.C. (4th) 412 (Ont. Arb.
Bd.) (Knopf) at pp. 418-19). Here, the parties have clearly stated that
certain . . . probationary employees can challenge their dismissal on the
basis that it was arbitrary, discriminatory or in bad faith . . . . once they have
worked 180 days or after one calendar year. However, the arbitrator has
effectively given the same protection to [those employees] during the
probationary period before they have worked 180 days or before one
calendar year has expired . . . In doing so, he has conferred a substantive
right on those employees that is inconsistent with the language of the
collective agreement.
31 The arbitrator relied on the general language of the purpose clause in
Article 1.01, where there is reference to the desire to maintain harmonious
relationships, as a basis to imply the protection against arbitrary dismissal.
While the arbitrator in Brampton did so, as well, the language of that
collective agreement explicitly made reference to the parties' commitment to
act in good faith and made no reference to arbitral review of the dismissal of
any probationary employee on the basis of arbitrariness.
32 It is true that the passage in Loyalist College quoted above refers to
an implied duty on employers not to dismiss in bad faith. However, that
passage must be read in light of the cases cited for this proposition. The
cases cited by the Court of Appeal in the quotation implied such a duty in
light of the language of the collective agreement as a whole.
Therefore, the current arbitral jurisprudence tells us that parties are within their
rights to negotiate a collective agreement that precludes probationary employees
from grieving their release or discharge. However, even if a contract clearly
indicates that probationary employees do not have recourse to the grievance or
arbitration process, there may be an arbitrable dispute where the complaint or
15
grievance arises from the denial of a substantive or assertible right under the
provisions of the collective agreement or there is an allegation of discrimination
or unlawful conduct. However, if no substantive right exists, then there is no
"difference" between the parties that could give rise to an arbitrable dispute.
Nothing in the Colleges Collective Bargaining Act prohibits parties from agreeing
that probationary employees may not grieve their release or from removing
probationary releases from the scope of the contract. As the cases cited above
illustrate, the situations where it has been concluded that a contract includes an
implied standard of reasonableness or good faith on the release of probationers
have been where the contracts contain language that refer to the concepts of
“harmonious relations”, “good faith”, “cooperation” or where the “good faith” was
defined as creating conflict with the rights that are contained in the collective
agreement. This is consistent with Metro Police (cited in Markham Hydro), which
dealt with a dispute concerning the taking of inventory and the distribution of
overtime. The union had grieved that the denial of overtime work was arbitrary
and done in bad faith. The Court of Appeal held that a duty of good faith should
not be implied or applied to the management rights clause that provided that the
functions could not be exercised in a manner that was inconsistent with the
collective agreement:
Having regard to the nature of the agreement, and to its provisions, we
see no necessity in this case to imply a term that th e management rights
clause will be applied fairly and without discrimination. If such a term were
to be implied, it would mean that every decision of management made
under the exclusive authority of the management rights clause would be
liable to challenge on the grounds that it was exercised unfairly or
discriminatively. In our opinion, this would be contrary to the spirit and
intent of the collective agreement. [at p 479]
Accordingly, the concept of good faith contract administration cannot
automatically be implied or imposed on all aspects of management discretion.
We acknowledge the importance of Metropolitan Toronto and CUPE 43, supra,
where the Court of Appeal said in 1990: “... it is not patently unreasonable for an
arbitrator to oblige management to exercise its discretion reasonably, where to
16
do so unreasonably would be to create a conflict with or undermine the rights
conferred by some other provision in the collective agreeme nt” [emphasis
added]. That was in the context of a contract, like the one before us, that
required management to exercise its rights in a manner that was not inconsistent
with the collective agreement. The Court upheld the notion that management
discretion to make rules with disciplinary consequences must be controlled by
objective standards and be based on the “notion of reasonable contract
administration,” [para. 58]. However, the concept of “reasonable” was defined as
requiring that the exercise of the discretion does not conflict with or abrogate the
existing rights in the collective agreement. That restriction on management
discretion to make reasonable rules with disciplinary consequences is one that is
well recognized and one that the College does not dispute in this case. It does
not necessarily equate to an implied duty of good faith or objectively defendable
conduct on all aspects of management discretion. While the Court of Appeal also
spoke of the principle of “reasonable contract administration”, its decision was
focused on the employer’s right to make rules with disciplinary consequences.
Therefore, the right of probationers to grieve on the basis of bad faith or arbitrary
reasons must be found in the contract itself or have some basis for the
implication or imposition of such a limitation on the Employer’s discretion from
the reading of the Collective Agreement as a whole. In this case the words of a
Collective Agreement include new language that specifically excludes
probationers from grieving or arbitrating their release and there are no
commitments to act in good faith or for the Employer to have objective reasons
before they release a probationer. While the implied duty to treat probationers
fairly on their release was recognized in previous case law as flowing from the
rights in Article 27.02, that was before the parties defined the release of
probationers as something that is not covered by the provisions of the Collective
Agreement. If the Union’s interpretation of Articles 27.14 B and 32.05 were to be
accepted, we would have to ignore the effect of the significant changes made to
those provisions. If there is a substantive right for probationers to grieve and
17
proceed to arbitration to determine if their release was arbitrary or tainted by bad
faith, then we would have to read out the changes to Articles 27.14 B and 32.05.
We could do so if those provisions were unlawful or were inconsistent with other
provisions in the Collective Agreement. But as stated by the Courts in Greater
Essex District School Board and OSSTF, supra, it is within the right of the parties
to deny probationers access to arbitration. That is not inconsistent with any other
portion of this Collective Agreement or its governing statute. Indeed, the
management rights clause specifies that management functions are curtailed
only by specific terms on the contract, and the right to lodge a grievance is
restricted to being “in the manner and to the extent provided in this Agreement”
[emphasis added]. All that this Collective Agreement provides is the right of
probationers to grieve about the way they are being treated during their
probation. The Collective Agreement does not provide that they can grieve or
arbitrate their release. They can seek redress or a reprieve from their release
through the internal complaints process. But the only way they obtain access to
arbitration is if they have been released for discriminatory, unlawful reasons or in
a way that conflicts with another provision of the Collective Agreement .
Accordingly, the parties cannot and have not barred arbitral jurisdiction to enforce
the substantive rights under the Collective Agreement, the Human Rights Code
and/or other labour relations statutes.
We are mindful of the Union’s sensible submission, asserting that the parties
cannot be assumed to have agreed to a Collective Agreement that would allow
this Employer to release any probationer for bad faith or arbitrary reasons.
Assuming that to be true does not equate to saying that this contract allows
probationary employees to arbitrate their releases. The fact is that there is little
security in probationary status. Probation is a time when a College, as an
employer, has an opportunity to discover whether a teacher is suitable to be
taken on as a permanent employee. In the context of these parties, the passing
from probationary status to permanent employment is akin to achieving tenure.
Therefore, a College must have a wide latitude in deciding who shall attain
18
permanent status. At the same time, the probationary period has bee n
recognized as a time when new teachers have a chance to “do their best” to
prove their worth as potential members of the faculty. That is why they have
protections and supports during their probationary period. They can grieve
violations of any of the rights accorded to them under the Collective Agreement,
including but not limited to the provisions of Articles 4 [no
discrimination/bullying/psychological harassment] and 27.02. We acknowledge
that it would be rare for a probationer to have the courage to file such allegations
while s/he is hoping to secure a permanent placement at the College.
Nevertheless, those are the kinds of substantive rights that are clothed with the
implied duty of good faith and reasonableness as recognized by the courts and
arbitrators to apply to the administration of the substantive rights found within a
contract.
Therefore, we must conclude that there is still a duty to treat probationers fairly
during their probation. Nothing in this Preliminary Award diminishes that duty.
However, what has been changed is that management now has a recognized
discretion to release probationers that cannot be challenged in arbitration, unless
that release is alleged to be discriminatory, unlawful or contrary to some other
explicit provision in the Collective Agreement. To make any other conclusion
would require a disregard of the new language in the Collective Agreement. In
short, we cannot imply a duty of good faith or reasonableness upon a right that
does not exist in this Collective Agreement. The new contract language has
clearly curtailed probationers’ access to the grievance and arbitration process,
but it also granted them the significant benefits of a shortened probationary
period and enhanced rights within the period itself.
Accordingly, the Employer’s Preliminary objection to the arbitrability of the
allegations of bad faith and unreasonableness is upheld.
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We remain seized with the other aspects of this case, including the Employer’s
further objections with respect to the scope of the grievance, the scope of the
evidence and the merits themselves. This hearing shall continue as agreed upon
by the parties.
Dated at Toronto this 31st day of October, 2016
__________________________
Paula Knopf - Chair
“Ann Burke”
I concur __________________________
Ann Burke – Employer Nominee
I dissent - On the basis of arguments advanced by Union counsel and the
admitted concessions of the Employer, this member respectfully
dissents from the majority.
“Sherril Murray”
__________________________
Sherril Murray - Union Nominee
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