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HomeMy WebLinkAboutNabbout 20-07-22 IN THE MATTER OF AN ARBITRATION BETWEEN: PEEL DISTRICT SCHOOL BOARD and OPSEU BEFORE: SUSAN L. STEWART – ARBITRATOR GRIEVANCES OF H. NABBOUT APPEARANCES FOR THE UNION: R. LOSTRACCO, COUNSEL FOR THE EMPLOYER: J. VANDERMEULEN, COUNSEL R. YOUNAN, COUNSEL THIS MATTER PROCEEDED IN WRITING, WITH SUBMISSIONS CONCLUDING ON JUNE 10, 2020 2 AWARD 1. This award addresses the scope of my jurisdiction in connection with two grievances that were filed on behalf of Ms. H. Nabbout. Ms. Nabbout was employed by the Peel District School Board as an Adult Language Instructor and at the time of the termination of her employment, on May 2, 2019, she had not yet completed the probationary period prescribed by the Collective Agreement. The grievances allege unjust discipline and unjust dismissal. The disciplinary grievance arises from a suspension and is dated April 23, 2019. It alleges a breach of Article 4 (management rights) and Article 18 (discrimination). The dismissal grievance is dated May 10, 2019, and alleges a breach of a number of provisions of the Collective Agreement, including Article 4 (management rights), and Article 17, which relates to health and safety. As well, it alleges a breach of Article 8, the grievance procedure, and the grievance makes reference to the “no reprisals” part of that provision. The Employer has raised a preliminary objection to my jurisdiction to determine these grievances. This objection is based, in particular, on Article 4:02 (b) of the Collective Agreement which provides for its authority to: “suspend with or without pay, discharge or otherwise discipline a probationary Employee for any reason at the sole discretion of the Board”. There is no dispute that I do have jurisdiction to determine whether there has been a violation of the Human Rights Code in connection with the discipline and discharge of 3 Ms. Nabbout. The parties disagree, however, as to whether my jurisdiction extends further, to allow consideration of the Union’s allegations that the Employer conducted itself in a manner that was arbitrary, discriminatory (on a non-Code related basis) or in bad faith. It is the Employer’s position that I do not possess such jurisdiction while it is the position of the Union that I do. This award deals only with this issue. 2. The following are the relevant provisions of the Collective Agreement: 1.01 The general purpose of this Agreement is to establish and maintain collective bargaining relations between the Board and its Employees, represented by the Union, and to establish and maintain matters covering working conditions and rates of pay and to provide procedures for the prompt and equitable disposition of grievances. … 4.01 Save and except to the extent modified or curtailed by any provisions of this Agreement, the right to manage and conduct the business of the Board is vested exclusively and without limitation with the Board and its Administration. 4.02 Without limiting the generality of the foregoing, subject only to the specific provisions of this Agreement and the right of any Employee to lodge a grievance under the grievance procedures herein provided for, the Employees and the Union recognize and accept that it is the right of the Board to: … b) suspend with or without pay, discharge or otherwise discipline a non-probationary Employee for just cause, and suspend with or without pay, discharge or otherwise discipline a probationary Employee for any reason at the sole discretion of the Board; … 4 8.06 e) The Arbitrator shall not by the decision rendered, add to, delete from, modify or otherwise amend the provisions of the agreement. … 8.08 The Arbitrator has the powers of an arbitrator under the Ontario Labour Relations Act. … 8.10 There shall be no reprisals of any kind taken against any person because of participation in a grievance or complaint or arbitration procedure under this Agreement. … 9.01 A newly hired Employee shall be on probation and will not have any seniority standing until he/she has worked six (6) months within the bargaining unit, provided the Employee has worked a minimum of six hundred (600) hours. During the probationary period, an Employee shall be considered as being employed on a trial basis and may be discharged at the sole discretion of the Board. No grievance may be submitted concerning the termination of employment, lay-off, or disciplining of a probationary Employee. 3. The statutory powers of an arbitrator referred to supra, are the following: 48(1) Every Collective Agreement shall provide for the final and binding settlement by arbitration, without stoppage of work, of all differences between the parties arising from the interpretation, application, administration or alleged violation of the agreement, including any question as to whether a matter is arbitrable. 4. My jurisdiction to deal with a statutory Code violation is derived from the seminal decision of the Supreme Court of Canada in Parry Sound (District) Social Services Administration Board v. OPSEU, Local 324, 2003 SCC 42. With respect to the issue in dispute, counsel have referred me to the following decisions: Abitibi Consolidated Ltd. and CEP, Local 5 92 (1998), 75 L.A.C. (4th) 414 (Mitchnick); Brampton Hydro-Electric Commission v. C.A.W., Local 1285 (1993), 108 D.L.R. (4th) 168; Blue Door Shelters and S.E.I.U., Local 1 Canada (2013), 239 L.A.C. (4th) 260 (Harris); Blue Door Shelters and SEIU, Local 1 (Randenska) (2014), 118 C.LA.S.109 (Monteith); Scarborough Hospital v CUPE, Local 1487, 2008 CarswellOnt 8801 (Levinson); Sault College and OPSEU (Stewart), [2016] O.L.A.A. No. 418 (Knopf); Greater Essex County District School Board v. O.S.S.T.F., District 9, 2005 CarswellOnt 10082, [2005] O.J. No. 6401; CAW-Canada, Local 127 v. Dajcor Aluminum Ltd., 2011 CarswellOnt 15752 (Watters); Copper River Inn and UFCW, Local 175 (Flamond), 2018 CarswellOnt 7153 (Randall); Ontario (Alcohol & Gaming Commission) v. O.P.S.E.U., 2001 CarswellOnt 6443 (Whitaker); ATU, Local 1587 and Ontario (Metrolinx – GO Transit) (McCurdy), 2017 CarswellOnt 18131 (Abramsky). 5. The Employer emphasizes the plain language of the provisions of the Collective Agreement. In its submission, the parties have made it abundantly clear that the discipline or discharge of a probationary employee can be effected at the Employer’s sole discretion and for any reason. In this regard, it is submitted that there is no difference between the parties as contemplated by the provisions of the Labour Relations Act, as concluded in the Scarborough Hospital and Dajcor Aluminum Ltd. cases. The Employer relies on the Copper River case, where, in 6 considering language that provided that termination was within the “sole discretion” of the arbitrator, it was concluded that there was no basis to imply a duty to act reasonably, without bad faith or without arbitrariness. The Employer notes that in Ontario Alcohol and Gaming Commission, in interpreting language that provided both an ability to terminate a probationary employee at its “sole discretion” for “any reason”, the arbitrator rejected the argument that the Union is advancing here. As well, it is noted that in the Metrolinx case, there was deference to the specific language of the Collective Agreement in the rejection of the submission that there was an implied duty of the kind the Union claims exists in this case. 6. The Union relies on the Brampton and the two Blue Door decisions in support of the proposition that an arbitrator has jurisdiction to review the dismissal of a probationary employee on the basis that it is unfair, discriminatory and/or in bad faith, even where, as here, the collective agreement provides that no grievance could be submitted in relation to the discipline or termination of a probationary employee. Moreover, Ms. Lostracco emphasized the reference to “equitable resolution” of grievances in Article 1.01 and the reference to “no reprisals of any kind taken against any person because of participation in a grievance or complaint or arbitration procedure under this Agreement” contained in Article 8.10. The Union also made reference to the grievor’s right to a 7 healthy workplace, pursuant to Article 17. Paragraph 11 of the Union’s submissions states in part that: It is the Union’s position that the Arbitrator has jurisdiction to consider the grievances on the standard that the Board exercised its right to manage in an unfair, arbitrary or discriminatory manner, including consideration of whether or not the Board reprised against the grievor for exercising her rights under the Collective Agreement. The Arbitrator also has the jurisdiction to consider any substantive rights of the grievor under the terms of the Collective Agreement. With respect to the Blue Door decision of Arbitrator Harris, the Union notes that in the context of collective agreement language that provided for dismissal of a probationary employee at the employer’s “sole discretion”, the arbitrator concluded that there was support for an implied limitation on that discretion contained in Parry Sound, reasoning as follows: 33. The Supreme Court decision does not say that only anti-discrimination terms are implicit in Collective Agreements. Rather, it dealt with that issue. It said nothing about whether the Employer's discretion may not be exercised in a way that was in bad faith, arbitrary or unfair. Those standards were not before it. 34. Central to the Supreme Court's judgment is its conclusion that terms may be implied in a Collective Agreement in certain circumstances. As set out above, the Supreme Court considered the implication of such terms both as a matter of law and as a matter of fact, the latter by way of presumed intent. For many years the thrust of the case law has been that the exercise of a sole discretion to discharge a probationary employee is that the Employer is obliged not to conduct itself or act in any way that is in bad faith, arbitrary, discriminatory or unfair. The arbitral case law reviewed by various Courts well establishes that standard. That case law has been reviewed many times in the cases cited above. 8 That decision goes on to refer to the 1993 Divisional Court decision in Brampton Hydro Electric Commission, in support of the conclusion that there are limits on the employer’s discretion. In that case, in the context of a provision that a probationary employee may be discharged at the employer’s “sole discretion”, the Court concluded as follows: 38. In my view, the Collective Agreement before us has an implied term/article/clause that neither party to the agreement shall conduct themselves or act in any way that is in bad faith, arbitrary, discriminatory or unfair. 39. It will be said: “if the parties had intended that type of implied article to govern their conduct, it would have been said explicitly in the collective agreement”. 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?” 40. It will be recalled that Article 1.01 of the collective agreement states in part: “Both parties recognize a duty to cooperate in good faith individually and collectively for the advancement of these purposes”. 41. In my view, the Arbitrator had jurisdiction to hear the grievance. I so find whether the tests for review be “correctness” or “patently unreasonable”. It was open to the Arbitrator to hear the grievances alleging bad faith and to find arbitrariness on the part of Brampton Hydro. The Blue Door decision was followed and its reasoning endorsed in a decision by Arbitrator Monteith, involving the same parties. 7. Subsequent to the decision in Brampton Hydro, in Greater Essex County District School Board, the Divisional Court considered the ability 9 of parties to a collective agreement to limit the rights of probationary employees. At paragraph 29 of that decision, the Court noted that an arbitrator cannot amend the language of the collective agreement and stated that: 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 (1977), 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. The Court went on to make reference to the fact that it was open to collective agreement parties to limit rights of probationary employees pursuant to “clear terms”. In the case before the Court, it was determined that such clear terms existed and that the arbitrator could not rely on the general language of the purpose clause, where there was reference to a desire to maintain harmonious relationships, as a basis to imply protection against arbitrary dismissal. The Brampton case was distinguished on the basis of the language of the probationary clause and the purpose clause. 8. Greater Essex was relied on in Copper River Inn, one of the authorities referred to by the Employer. In that case, the collective agreement provided that the dismissal of a probationary employee was “within the sole discretion” of the employer. There is no specific reference to a 10 purpose clause in the decision, however the arbitrator concluded that there was neither a procedural nor substantive right to challenge the dismissal. Copper River does not make reference to either of the Blue Door decisions, a point emphasized by Ms. Lostracco. It does, however, make reference to and rely on Sault College & OPSEU, where a similar result was reached. The collective agreement in that case provided that the release of a probationary employee was “within the discretion of the College”. It was noted that there had been a change in the language that made the collective agreement explicit in its denial of a substantive and procedural right for a probationary employee to challenge dismissal and that there was no language suggesting a good faith or similar obligation such as existed in the Brampton case. The arbitrator concluded, at paragraph 37 that: “… 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 from a reading of the collective agreement as a whole”. Accordingly, and subject to a recognition of statutory or other collective agreement rights, it was determined that a probationary employee could not challenge a dismissal on the basis that the Union suggests here. 9. In Ontario Alcohol and Gaming Commission, the collective agreement provided that: “The Employer may dismiss a probationary employee for any reason in its sole discretion and probationary employees shall not 11 have any recourse to the grievance or arbitration procedure. There was no purpose clause similar to that in the Brampton case, however there was a management rights provision that contemplated the right of the employer to discharge employees; “subject to the right of the employees to grieve to the extent and manner provided herein”. In considering the Union’s submission that the employer could not exercise its discretion in a manner that was unfair, unreasonable, arbitrary or discriminatory, the arbitrator wrote as follows: 15. There are authorities which stand for the proposition that language like "sole discretion" may mean that while the employer may be the only party capable of exercising the "discretion" to discharge, the exercise of discretion itself is subject to a "fairness" standard of review. In Brampton Hydro Electric Commission v. C.A.W., Local 1285 (1993), 15 O.R. (3d) 773 (Ont.Div. Ct.), the Ontario Divisional Court interpreted the language of "sole discretion" pertaining to the discharge of a probationary employee to imply a review of such discretion on a fairness type of standard where the collective agreement also provided that the parties recognized a duty to "cooperate in good faith". This is consistent with general arbitral opinion on the question of how an employer's "discretionary" powers are to be exercised (see for example, the discussion by arbitrator Swan in Meadow Park Nursing Home v. S.E.I.U., Local 220 (1983), 9 L.A.C. (3d) 137 (Ont. Arb.). 16. There are other authorities which seem to interpret the phrase, "sole discretion" (as distinct from simply "discretion") to indicate an unreviewable discretion. In Cami Automotive Inc. v. C.A.W., Local 88 (1991), 19 L.A.C. (4th) 49 (Ont. Arb.), arbitrator Brandt at page 54 states: In my opinion the clear and unambiguous intent of art. 10 is to deny to probationary employees the substantive right to subject a decision to terminate their employment to any arbitral review. Thus, CAMI [is to be] the sole judge of "suitability for employment" and termination will be at CAMI's discretion [emphasis added]. I am unable to understand how CAMI can remain to be the sole judge of the 12 suitability of a probationary employee for employment if its decision in that respect is subject to arbitral review. Furthermore if its decision to terminate a probationary employee is capable of being made subject to challenge through the grievance arbitration procedure, it cannot be said to be a decision which it is free to take at its discretion. 17. In my view, the plain language of Article 10.19 makes two points. Firstly, that the employer may dismiss a probationary employee in its "sole discretion". Secondly, that it may do so for any reason. 18. Even if one assumes that the term "sole discretion" may imply a review on a lesser standard, what is the meaning of the phrase "for any reason"? It is a principle of collective agreement interpretation that parties are assumed not to intend language to be redundant. This means that the phrase "for any reason" must be read to mean something other than simply the same thing as "sole discretion", otherwise there would be no purpose in including it in addition to that phrase. The formula "for any reason" must be given its plain meaning which is quite simply "for any reason". The word "any" which defines the boundaries of the category of permissible "reasons" for the exercise of the employer's sole discretion is unlimited. "Any" means that all reasons fall within the category of reasons which may lie behind the employer's exercise of its sole discretion. The word "reason" means the thing, event or understanding on the employer's part which has caused the consequence of the discharge. Aside from "reasons" which might be in breach of a statute (such as the Code if the employer's reasons reveal discrimination on some prohibited grounds), how can it be said that any "reason" whether unfair, unreasonable, arbitrary or discriminatory is not a "reason". If this is the case (as I find it to be), it means that the parties have explicitly agreed that the employer may discharge an employee quite simply "for any reason". 19. On this analysis I interpret the phrase, "for any reason in its sole discretion" to mean on its face, that the employer may exercise its sole discretion to discharge a probationary employee for any reason, not excluding reasons which might be unfair, unreasonable arbitrary or discriminatory. I make no finding that an employer may exercise its sole discretion to discharge a probationary employee for reasons which are contrary to statute as it is not alleged in this case. 13 10. The arbitrator went on to consider whether there was an implicit limitation on the employer’s discretion that would compel the result sought by the union. He noted that there was some authority for that proposition, referring to a decision of Arbitrator Harris in an earlier decision of his that Arbitrator Harris referred to in Blue Door. However, Arbitrator Whitaker stated that: 21. It is certainly the case that collective agreements may be interpreted in a manner which give rise to an implied duty on the part of the employer to act in good faith, fairly, reasonably and without discrimination. In my view, however, such an obligation must be derived from the language of the agreement in question and is not to be found to exist on the basis of first principles. The Ontario Court of Appeal observed in Toronto (Metropolitan) v. C.U.P.E. (1990), 74 O.R. (2d) 239 (Ont. C.A.) at page 256: it is not patently unreasonable for an arbitrator to oblige management to exercise its discretion reasonably where to do so unreasonably would be to create a conflict with or undermine the rights conferred by some other provision in the collective agreement. 22. The question then is whether or not the provisions of this collective agreement read as a whole indicate that there is some implied limit on the range of possible reasons (aside from those that are in breach of a statute) which might lie behind the exercise of the employer's "sole" discretion to discharge a probationary employee. 23. Unlike the collective agreement in Brampton Hydro, supra, there is no provision which obliges the parties to "cooperate in good faith". It is not the case that the discharge of a probationary employee operates to abridge or frustrate the seniority provisions of the collective agreement as seniority under article 12.01 does not accrue until the successful completion of probation. 24. There is little doubt that the explicit provisions of the collective agreement indicate that the parties did not intend that there be any review of the employer's exercise of sole discretion in discharging a probationary employee. This is apparent from 14 Articles 9.01 and 10.05. 11. In the relatively recent decision, Metrolinx (Go Transit), the authorities were reviewed in some detail. The collective agreement language in issue there included a provision describing its purpose as: … to establish and maintain orderly and harmonious collective bargaining relations at the bargaining table and the work place; to provide a procedure for the prompt and equitable disposition of grievances; to assist and promote the proper and efficient operation of the Employer’s business in serving the public interest. The collective agreement further referred to the probation period as a period of assessment as to whether the employee, in “the sole opinion of the Employer” is acceptable for employment and went on to provide that: It is therefore recognized and agreed that probationary employees may be released or dismissed at the absolute and sole discretion of the Employer during the probationary period and that such release or dismissal shall be deemed to be for just cause. Any probationary employee who is released or dismissed shall not be entitled to file a grievance. It was noted that the phrase “absolute and” had been added to the original language in collective bargaining, The collective agreement also provided for the consideration of probationary employees for other positions with the employer’s opinion not to “be exercised in an arbitrary or discriminatory manner” and further in relation to a consideration of internal applicants before external, a provision to the effect that discretion would not be exercised in an “arbitrary or discriminatory manner”. Elsewhere in the collective agreement there was specific reference to “good faith” obligations. 15 12. In her reasons for concluding that she was without jurisdiction to consider a dismissal grievance filed on behalf of a probationary employee, the arbitrator noted that the provisions of the collective agreement must be read together as a whole and that the intention of the parties must be derived from the language employed. It was the arbitrator’s view that the “absolute and sole discretion” of the employer to dismiss a probationary employee had to be given effect in accordance with its clear meaning and could not be subject to arbitral review. With respect to the issue of whether there was an implied obligation on the employer not to exercise its discretion in an arbitrary, discriminatory or bad faith manner, the arbitrator rejected the argument that the purpose clause in that instance could provide a basis for an implied limitation on the employer’s discretion and at paragraph 34 stated as follows: … even if I am wrong and, as a matter of law, there is an implied obligation not to dismiss a probationary employee for an arbitrary or discriminatory reason, or in bad faith, it is my conclusion that this implied obligation has been overridden in this instance by Article 4.4(1). The Union recognizes that this implied obligation may be overridden by contractual language, but submits that the type of words set out by the Ontario Divisional Court in Brampton Hydro-Electric Commission v. CAW-Canada, Local 1285, supra, would be required. With respect, I do not agree. The parties here did not phrase it in the manner outlined in Brampton Hydro-Electric Commission v. CAW-Canada, Local 1285, supra. They did so in a more positive manner - they determined that any release or dismissal "shall be deemed to be for just cause." As noted above, this means that the dismissal of a probationary employee, no matter the reason, "shall be deemed to be 16 for just cause." This is similar to the "any reason" language reviewed in Ontario (Alcohol & Gaming Commission) v. OPSEU, supra. The parties' explicit agreement overrides any implied obligation that may be inferred. This clear language would be rendered a nullity if a probationary employee were permitted to assert a claim that their dismissal was arbitrary, discriminatory or in bad faith. Such a claim cannot exist in the context of the explicit agreement that probationary dismissals "shall be deemed to be for just cause." 13. To the extent that Arbitrator Harris expressed a view to the contrary, it is my view that the analysis expressed by Arbitrators Whitaker and Abramsky is preferable. In any event, the language in the Collective Agreement before me is readily distinguishable from the language under consideration in the Blue Door decisions. The language at issue there was “sole discretion”. Here the language of the Collective Agreement refers to “sole discretion for any reason” [emphasis added]. With respect to the comparability of this case to Brampton Hydro-Electric, the purpose provision here: “to provide procedures for the prompt and equitable disposition of grievances” does not contain the “good faith” reference contained in the Brampton collective agreement. I agree with Ms. VanDerMuelen that the reference to “equitable disposition of grievances” properly refers to grievances contemplated by the Collective Agreement. Grievances alleging suspension or discharge of a probationary employee are not contemplated by the Collective Agreement and thus this provision cannot apply here. In my view, the Court’s decision in Greater Essex County District School Board makes it very 17 clear that it is open to the parties to a collective agreement to determine that a probationary employee has neither a substantive nor procedural right to challenge disciplinary action. 14. Giving meaning and effect to the agreement of the parties as expressed in the written terms of the Collective Agreement is the fundamental duty of the arbitrator. The parties have expressly required me to do so here. The Collective Agreement is properly read subject to statutory provisions, which, in this instance, has resulted in agreement that a breach of the Code is a matter that is properly within my jurisdiction. 15. Article 4 of the Collective Agreement reserves management rights to the Board, subject to specific provisions of the Collective Agreement. Such rights are vested “exclusively and without limitation” in the Employer, except as expressly modified or curtailed. Article 4:02 (b) of the Collective Agreement provides for the explicit right to: “suspend with or without pay, discharge or otherwise discipline a probationary Employee for any reason at the sole discretion of the Board”. This discretionary right is reinforced in Article 9.01, which then goes on to state that: “no grievance may be submitted concerning the termination of employment, lay-off, or disciplining of a probationary Employee.” The purpose provision of this Collective Agreement does not contain 18 “reasonableness” or “good faith” language and the “equitable” reference in that provision is not a general undertaking, but, rather, is a specific undertaking in reference to the disposition of grievances. 16. In considering the interpretation to be given to the critical phrase; “sole discretion for any reason” contained in Article 4.02(b), I note that the phrase is almost identical to the phrase “for any reason in its sole discretion” that was contained in the Ontario Alcohol and Gaming Commission case. I find Arbitrator Whitaker’s conclusion to the effect that this phrase must mean “all reasons” to be compelling and agree with the result in that case. I further agree with Arbitrator Abramsky’s observation in connection with similar language, that such clear language cannot be rendered a nullity. There is no history of language changes here that demonstrates the inevitable interpretation of the language as in other cases, a point emphasized by Ms. Lostracco. However, the Collective Agreement language is abundantly clear on its face and its meaning is readily apparent from the words agreed to by the parties. The language of Article 8.06 (e) prohibits an interpretation of the Collective Agreement that does not accord with its terms. The parties have agreed that the Employer can discipline or dismiss a probationary employee for any reason at its sole discretion. It is my conclusion that the Employer’s discretion to discipline or dismiss a probationary employee is not subject to arbitral review on the basis that the discretion 19 was exercised in a manner that was arbitrary, discriminatory or in bad faith. There is simply no reasonable contextual reading that can lead me to the conclusion that the provisions of the Collective Agreement can be interpreted otherwise. 17. I now turn to the question of whether the reprisal claim and the health and safety claim can be considered on the basis that these are discrete entitlements under the Collective Agreement that can be properly advanced. In considering this matter, I am mindful of the principle that recognition of an employer’s unfettered right to discipline or discharge a probationary employee cannot conflict with or undermine other provisions of the Collective Agreement. With respect to the health and safety claim, the suggestion appears to be that the Employer’s actions giving rise to the dismissal were not in accordance with its obligations to make reasonable provisions for the grievor’s health and safety and were damaging to the her emotional wellbeing. It is difficult to imagine any situation in which a perceived sense of unfairness associated with discipline or dismissal would not raise an issue of emotional health. Arising in the context of a grievance alleging unjust dismissal, it is my view that the prohibition against allowing a challenge to that dismissal must necessarily encompass such a claim. To allow the grievance to proceed on this basis would, in my view, undermine the agreement of the parties that such claims cannot proceed. The claim of 20 reprisal in the discharge grievance, as I understand it, relates to a claim that the grievor’s filing of a suspension grievance played a role in her termination. The difficulty with that position is that the reprisal language must, by its terms, be interpreted in the context of an ability to participate in a grievance complaint or arbitration procedure. Here, the provisions of the Collective Agreement specifically preclude such an ability in relation to the discipline and dismissal grievances that have been filed. 18. For the foregoing reasons, it is my conclusion that the Employer’s preliminary objection to my jurisdiction must be upheld. While the matter may proceed on the basis of the allegation of a Code violation, I am otherwise without jurisdiction to consider the Employer’s decisions to discipline and to discharge Ms. Nabbout. The matter will proceed accordingly. Dated at Toronto, this 22nd day of July, 2020 “S. L. Stewart” S. L. Stewart - Arbitrator