HomeMy WebLinkAbout1975-0012.Erikson.76-01-19ontano i- '12/75
CROWN EMPLOYEES 416/965/1410 O”eJ”‘S Path
GRIEVANCE SETTLEMENT T0rcm0. ontmo
BOARD M7A 125
Between:
IN THE M4TTER OF AN ARBITRATION
Under The
CR@k!N EMPLOYEES COLLECTIVE 'BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Mr. P. Eriksen
And
(Grievor)
The Ministry of Correctional Services
(Kitchener Jail, Kitchener, Ontario) .
(Employer)
- .- -~- -_ Before: D.M. Beatty Chairman
E.J. Orsini Member
P.A. Sigurdson Member
For the Grievor
A. Millard - Ontario Public Service Employees Union
For the Employer
A. Schaefer - Ministry of Correctional Services
Hearing Sutton Place Hotel, Toronto Ontario, January 16, 1976
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1.
In the grievance brought before this Board, Mr. P. Eriksen
alleges that he was dismissed without just cause and seeks by this
grievance to be reinstated with full benefits to the position .of
Correctional Officer 2 at the Ministry's Kitchener Jail. At the outset
of the hearing into Mr. Eriksen's grievance, Mr. Schaefer, for the
Ministry, advised this Board that it was the position of the Ninistry
that, because at the time he was released from his employment Mr. Eriksen
was a probationary employee who had less than one year~'s continuous
service in the public service, he had no .right to bring a grievance
before this Board. Put succinctly, it was Mr. Schaefer's position that
by virtue of certain sections in The Public Service Act R.S.O. 1970 ~386
as amended and the Regulations, 0. Reg. 749, as amended, passed under
that legislation, the Deputy Minister has an absolute and unfettered
right to release from employment "any public servant during the first
year of his employment for failure to meet the requirements of his
position".
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2.
More particularly by'way of introduction to and in support of the
Ministry's po<ition Mr. Schaefer noted that both the relevant legislation
and operative provisions of the various appendices to the collective
agreement were replete with sections which distinguished between the
probationary and permanent staff. In this regard Mr. Schaefer first
drew our attention to various arbitration awards between the Crown in
Right of Ontario (as represented by The Management Board, of Cabinet)
and the Civil Service Association of Ontario (Inc.)(operating presently
under the title Ontario Public Service Employees Union) and as well to
certain portions of the regulations passed under The Public Serviz
Act. From these provisions, t!r. Schaefer argued that it was manifest
that employees who have not completed one year's continuous service were
expressly denied certain benefits and rights enjoyed by other employees,
including entitlement to certain fringe benefits such as severance pay,
maternity and other leave benefits, as well as certain lay off and
recall rights. In addition and of more particular relevance to the
grievance before us, Mr. Schaefer next directed our attention to sections
6 and 22 of The Public Service Act and section 49 of the regulations
passed under that Act as conclusively supporting the Ministry's contention
that employees with less than one year's continuous service are expressly
denied the right to grieve their' termination from the public service.
Those latter sections provide:
B.S. Act
S.6(1) When a vacancy exists in the classified service,
the deputy minister of the ministry in which the
vacancy exists shall nominate in writing from the
list of eligibles of the Commission a person to
fill the vacancy.
P
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(2) The Commission shall aoooint the oerson nominated
s.22(1)
(2)
(3)
(4)
15)
under subsection 1 to a position on the brobation-
dry staff of the classified service for not more
” than one year at a tire. R.S.O. 1970, C.386.s.6;
1972,C.l‘S.Z.
A deputy minister may, pending an investigation,
suspend from employment any public servant in his
ministry for such period as the requlations pre-
scribe, and during any such period of suspension
may withhold the salary of the public servant.
A deputy minister may for cause remove from
employment without salary any public servant in
his ministry for a period not exceeding one nvnth
or such lesser period as the regulations prescribe.
A deputy minister may for cease dismiss from
employment in accordance with the regulations any
public servant in his ministry.
A deputy minister may release from employment in
accordance with the regulations any public servant
where he considers it necessary by reason of short-
age of wurk or funds or the abolition of a position
of other materiel change in organization.
A deputy minister may release from employment any
public servant during the first,year of his employ-
ment for failure to meet the requirements of his
position. R.S.O. 1970, c.386, s.22; 1972,c.l, S.2.
0. Req. 749
s.49(1) Sections 50 to 54 apply to persons who are employed
in the public service under the jurisdiction of a
deputy minister and who have been so employed
continuously for at least the preceding twelve,
‘TOI?thS.
S. 50. A person why has received a notice under
subsection 13 of section 31 and who believes
he is being dismissed unjustly nay, within
twenty-one days of the receipt of the notice,
apply to the Board for a hearing by deliver-
ing to the Chairman of the Board an applicat-
ion for a hearing including his grievance.
O.Req.156/74, s.4.
s.51. The determination by the Board of a grievance
under section 50 is final, subject to the
authority of the Lieutenant Governor in COUnCil
R.R.O. 1970, Req. 749, s.51.
A.
s.5?(1) A recomendation to t*e Lieutenant Governor in
Council for the dismissal of a person who is a f av11 servant shali be accompanied 6y the report
of the Board.
(ZJ The dismissal of a person who is not a civil
servant is not final until after the lapse of
time limited for delivery of the application
Or, where the application has been delivered,
until after the report of the Board has been
considered by the minister concerned. R.R.O.
1970, Req. 749, 5.52.
s.53. When an application to the Board is filed,
(a) the Chairman of the Board shall deliver
a copy thereof to the deputy minister
concerned:
(bJ the deputy minister concerned shall
deliver a copy of the notice of the
dismissal to the Chainnan of the Board;
and
(cl the Chairman of Board shall fix a time,
which shall be not later than fourteen
days after the delivery of the notice of
application, and a place for the hearing
and shall deliver notice thereof to the
qriewr and the deputy minister concerned.
R.R.O. 1970, Reg. 749, s.53.
s.54. When amapplication has been heard, the Board
shall make a report of its findings to the
minister concerned and shall deliver a copy of
the report to the qrievot, the employee
representative and the deputy minister concerned.
R.R.O. 1970, Req. 749, 5. 54.
Suffice it to say, for purposes of this award, that s.ections 50-54 of the
regulations, to which s.49 refers, generally provide that,an employee with
more than twelve months continuous service who is dismissed may apply to
the "aoard" for a hearing of his grievance with respect to his dismissal.
By section 46 of those same regulations, "Board" is defined to mean
"+he Public Service Grievance Roard".
Based on the above provisions it was Mr. Schaefer's position that,
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although employees who have completed more than 6ne year's continuous
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service may only be dismissed under s.22(3) of the Act and accordingly
are entitled to a hearing before the Deputy Minister or his delegate
under s.31 of the regulations and ultimately to a hearing before the
"Public Service Grievance Board" under s.49 of the same regulations,
nevertheless employees who have been appointed as probationers under
s.6(2) of the Act and who have not completed their first year of
employment, may be sunnnarily released pursuant to s.22(5) of the Act.
Noting that, in contrast to s.22(3), s.22(5) does not require the
deputy minister to release "in accordance with the regulations", and
that s.49 of those regulations specifically denies to such employees
the right to bring their grievances before the Public Service Grievance
Board, Mr..Schaefer took the position that this Board had no jurisdiction
to hear Mr. Eriksen's grievance, given the union's concession that he
was a probationary employee with less than one year's continuous service.
To substantiate his position, Mr. Schaefer referred this Board to two
earlier decisions of The Public Service Grievance Board which.had
substantially incorporated the same reasoning in its disposition of
certain grievances brought by, or on behalf of, persons whose employment
status was in all relevant respects identical to that of the grievor
in this case Re: C.S.A.O. (Mr. R. Bisson) and Ministry of Correctional
Services 829/74; Re: Mrs. E. McDonnell and Ministry of Community and
Social Services 821/74.
Mr. Millard, for the Union, not unexpectedly, rejected the emoloyer's
reasoning and countered with two arguments of his own as to why this Board
had jurisdiction to hear Mr. Eriksen's grievance. In the first place,
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and the argument on which the Union primarily relied, Mr. Fillard
contended tha'i by virtue of s.17(2) of The Crown Employees Collective
Baroainino Act S.O. 1972 c.67 as amended, all employees were given
the statutory riqht to present any grievance with respect to the subjects
described therein to this Board. That section provides:
s.17(2) In addition to any other rights of grievance
under a collective agreement, an employee
claiming,
(a) that his position has been improperly
classified;
(b) that he has been appraised contrary to
the governing principles and standards; or
Cc) that he has been disciplined or dismissed
or suspended from his employment without
just cause,
may process such matter in accordance with the
grievance procedure provided in the collective
agreement, and failing final determination under
such procedure, the matter my be processed in
accordance with the procedure for final deter-
mination applicable under section 18. 1974,,c.
135, 5. 3, part.
It was his position that because there are not now any provisions in any
collective agreement or regulations under that Act specifying the route
through which an individual employee's grievance must be processed, it
was open for any employee, claiming under any of the specified heads of
s.17(2). to come directly before this Board to have his grievance resolved.
Alternatively and at the very least, it was the Union's position that if
someone such as Mr. Eriksen was not in fact discharged from his employment,
but 'rather was released pursuant to s.22(5) of The Public 5ervice Act,
that such a person could grieve his release and that the employer would be
required to prove that the gri,evor did in fact have less than one year
of employment and, secondly, that he or she had failed to meet the
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requirements of the position. To that extent at least, the grievance a_
o,f Mr. Eriksen would, according to Vr. Millard, biarbitrable before
this Board.
After receiving the submissions of the respective parties with
regard to this preliminary issue concerning our jurisdiction, this Board
adjourned to consider whether we should either reserve on this preliminary
issue and proceed to hear the merits of the case or, alternatively, whether
we should adjourn our hearing at the conclusion of the arguments on this
jurisdictional matter and issue a written interim award as to our jurisdiction
to hear the merits of this grievance. In the latter case, necessarily,
this Board would only then be required to reconvene to hear the merits
of the case if we were to conclude that we were properly seized of this
matter. In the course of our deliberations as to whether or not we
should, as the employer-requested. bifurcate the hearing and issue an
interim award on the jurisdictional issue, this Board came to the con-
clusion, for the reasons that follow, that we did.have jurisdictfon to
hear the merits of Mr. Eriksen's grievance. Accordingly, in the
circumstances of this case, there was no need for us to issue a formal
ruling as to the appropriate procedure this Board should follow when
confronted with a challenge as to our jurisdiction to hear the merits
of a grievance and with a request that we adjourn the hearing pending
the release of an interim award with respect to that issue of arbitrability.
However for the future reference of the parties we think it
advisable for us to outline the procedure we expect to follow in future
cases when similar issues of arbitrability and jurisdiction are raised.
in the first place, it should be noted that the issue of the proper
procedure to be followed in such circumstances has been considered by
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arbitrators with some frequency in the private sector. Further, a
review of the& awards reveals that although historfcally there has
been some division of arbitral opinion, many arbitrators have taken
the view that, when faced with a challenge to its jurisdiction, boards
of arbitration should adjourn the hearing at the close of arguments
presented with respect to the jurisdictional issue and only if it
determines, in a written interim award, that it has jurisdiction should
it reconvene to hear the merits of the case. Re: Ottawa Newspaper
Guild, Local 205 and Ottawa.Citizen (1965), 16 L.A.C. 147 (Reville):
Re: United Steelworkers of America and Construction Products Inc.,
Canadian Division (1970). 22 L.A.C. 125(Brown). The rationale
supporting such procedure is manifested in the following passage:
It is true that many distinguished arbitrators, who
are entitled to the qreatest respect, have adopted
a contrary course. Thus, despite a preliminary
objection as to arbitribilitzj; these arbitrators
have considered grievances on their merits, only to
rule that the grievance is otherwise inarbitrable.
This course of action is open to objection on several
grounds. If, of course, the grievance is untenable
on its merits, then it hardly matters whether the
arbitrator has held the grievance to be inarbitrable
or not. If, on the other hand, the grievance is
meritorious on its merits and is dismissed because
the arbitrator reluctantly cones to the conclusion
that he hes no jurisdiction to entertain it, then
the griever's hopes are alternately fired and ex-
tinguished in the same document. There is, of
course, a third alternative equally unpalatable,
in which the arbitrator finds that he has juris-
diction to entertain the grievance and allows it,
only w be overruled on a motion by way of
certiorari, in whici? caee the successful griewr
is then frustrated by the action of the Courts,
which leaves the latter open to the familiar
jibe that they are not qualified to deal with
labour-management relations.
For all these reasons, the board prefers to rest
its decision on the grounds of jurisdiction and,
if it is 'wrong in its findings, then the matter
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can be put right on a nvtion by way of certiorari
~wittqut the respective positions of the parties
beirig jeopardized or prejudiced by its ofiter
dicta.
RE OTTAWA NEWSPAPER GUILD, LOCAL 205, AND OTTAWA CITIZEN (supra)
However, in later awards other.arbitrators have begun .to
question the rationale, need and utility of bifurcating a hearing in
such a manner. As stated in one of the awards:
These. later awards appear to be much more sensitive to
the ramifications of so dividing the hearing. They note
such a bifurcation could in some instances operate to
the prejudice of one of the parties and necessarily in
all cases will result in further delay in the resolution
of the real issue between the parties: Re Int'l Union of
Electrical Workers, Local 549, and Sylvania Electric
(Canada) Ltd. (19721, 24 L.A.C. 361 (Simmons); Re Hiram
Walker & Sons Ltd. and Distillery Workers, Local 61.(1973),
3 L.A.C. (Zd) 203 Adams). In that latter award Professor
Adams considered the premises underlying historical
approach taken by arbitrators to this issue and finding
them wanting, offered specific guidelines that arbitrators
should'consider before acceding to such a request to split
the hearing. He stated (at pp. 205-6);
Arbitration hearings, in themselves, quite apart
from the.outcome, can be quite therapeutic in
the sense of "speaking one‘s mind" and "revealing
the facts". Furtheznvre, it may be more frustrat-
ing for a griewr to be denied this "experience"
and forced to listen to a very technical presen-
tation on the issue of arbitrability. Thirdly,
many issues of arbitrability cannot be resolved
without considering the merits (this obser-
vation has become very relevant to the case at
hsnd) . For these reasons, I find both Ottawa
Citizen, supra, and Construction Products Inc.,
supra, insufficient justification for elon-
gating the period between the conduct grieved
and final resolution.
One important function of arbitration is to
suPply~"speedy relief" to the parties, and
this function should not be overridden by
mere speculation, in fact, it is cornnon
knowledge that this speculation is not the
reason why a party will ask for a separate
hearino on the issue of arbitrability.
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Parties normally make this request in order
:that the hearing take on a structure:?bat
will insure that the arbitrator does not
let the merits of the grievance affect his
decision on its arbitrability - and there
is nothing improper in this motivation.
Arbitrators are only human and can be af-
fected by the merits of d grievance in
dealing with a technical argument concern-
ing the availability of relief. An
arbitrator's approach to the issue of
arbitrability may, therefore, be little more
than e "sham" and this affects the integrity
of the entire process. Consequently, if a
bifurcation of the hearing will strengthen
the integrity of the arbitral process with-
out unduly impinging upon its function of
providing "speedy relief", requests that
thi.s be done should be yiven serious con-
sideration. But, they should not be acceded
to unless:
(1) the party requesting the adjournment
made this fact known to the other
party before the hearing date to
enable the other party an opportunity
to refrain from having his witnesses
in attendance:
(2) the merits appear to be severable
from the issue of arbitrability;
(3) the delay will not seriously affect
the availability of witnesses; and
(4) no other serious prejudicial effect,
uncompensabla by money, will be
experienced.
RE FABRICATED METALS AND STAMPING LTD. AND UNITED
AUTOMOBILE WORKERS, LOCAL 222 (1975), 9 L.A.C.
(2d) 161 (seattyl
Although, as noted, because of our determination as to our jurisdiction
to hear the merits of the grievance before us, we did not have to determine
whether we should bifurcate the hearing, in future cases, unless ex-
ceptional circumstances prevail, we would expect to conform to the
11.
procedure outlined by Professor Adams in the passage ouoted above. '. -.
Returning then to the substance of the employer's objection
as to our jurisdiction to hear the merits of this grievance, this
Board, as noted, determined that we were properly seized of it and
consequently proceeded to hear evidence on the merits of the grievance
after advising the parties of our ruling on the preliminary issue.
Essentially our decision as to our jurisdiction is founded upon two
quite distinct but equally compelling reasons. In the first
place and most obviously the jurisdiction of this Grievance Settlement
Board must be founded in The Crown Employees Collective Bargaining Act
and more particularly in the amendments to that statute which were'
proclaimed on July 21, 1975, in S.O. 1974 c.135. By virtue of s.17(2)
of that Act, the Legislature has purported to grant to "employees",
"in addition to any other-rights of-grievance under a collective agreement",
the right to grieve those matters delinated in paragraphs (a) through (c)
and, failing a final determination of that grievance in such a grievance
procedure. to have their grievances brought before this Grievance
Settlement Board pursuant to s.18 of the Act. Necessarily then, when
such grievances could not be finally determined by means of a grievance
procedure, owing to the fact that no such procedure presently exists, it
would appear that s.17(2) of the Act would allow such "employees" to
bring their grievances directly before this Board'as Mr. Eriksen has done
in the case before us.
In bestowing such a sweeping and broad right of access to the
Grievance Settlement Board in section 17(2), the Legislature has made no
distinction between various categories or classifications of employees.
Rather, by its terms, section 17(Z) purports to apply to all emplovees
without restriction. Indeed in s,l(l)(g) of the same statute, “emPlOYe@
12.
is subject to certain-exceptions not material to the dispostion of
this grievance: simply defined to mean "a crown employee" as defined
in The Public Service Act. In turn "crown employee" is defined in
s.l(e) of The Public Service Act to mean:
"Crown employee" means d person employed in the
service of the Crown or any agency of the Crown,
but does.not include an employee of The fiydro-
Electric Power Commission of Ontario, or the
Ontario Northland Transportation Commission.
In short, for purposes of s.17(2) of The Crown Employees Collective
Bargaininq Act no distinction is drawn as between an employee having
more than one year's service and an employee with less than one year's
employment in the public service. To the contrary, on its face, it
purports to apply to all such employees regardless of their length
of service and regardless of their probationary status. The
issue that remains to be determined then is whether there is any valid,
enforceable, and existing provision which purports to cut down what
would otherwise be the absolute right of any "employee" to bring his
grievance before this Grievance Settlement Board with respect to the
..matters described in s.17(2) of The Crown Employees Collective
eargaining Act.
In the first place it is apparent that, while perhaps differ-
entiating between employees who have more or less than.one year's
employment with respect to their employment security, ss.22(3) and
22(5) of The Public Service Act themselves do-not circumscribe the
right of either group. of employees to bring their grievances before
the Grievance Settlement Board. That is, while it is true that an
employee with more than one year's service may only be dismissed
pursuant to s.22(3) of the Act while an employee with less than one
services of the persons described therein without any apparent regard
for "the regulations" that are mentioned in s.22(3), nowhere in s.22(5)
is it suggested that he may release such person without regard for any
other rights, including those specified in s.17(2) of The Crown Employees
Collective Bargaining Act which are possessed by such persons. Quite
apart from the operative and substantive standards that are to be applied
under these two sections, the only practical distinction between being
"dismissed" under s.22(3) and being "released" under s.22(5) is that in ,:
the former circumstance, an employee would be entitled to the procedural
protections offered in ss.31 and 49 of the regulations under that Act.
Turning then to the regulations passed under s.29 of
The Public Service' Act, it is clear,that s.31 of those regulations,
providing for a pre-dismissal hearing by the deputy minister
or his delegate, does not and can not assume the character of a condition
precedent to an employee's right to come before this Grievance Settlement
Board. However, Mr. Schaefer argued, that s.49 of the regulations, by
its plain terms does deny to persons such as the grievor, who have less than
one year's continuous service in the public service, access to the "Board".
That is, by its terms s.49 purports to identify a group of persons, being
those "who are employed in the public service continuously for at least
the preceding twelve months", and to grant to those persons certain riohts
13.
year's service may be presumably terminated under either s.22(3) or
s.22(5), there"is nothing on the face of those two ,kections which
would negate the statutory rights which are bestowed on employees
by s.17(2) of The Crown Employees Collective Bat-paining Act. Although
it is true that under s.22(5) the deputy minister may terminate the
14.
to apply to "the Board" for a hearing with respect to their ,dismissal.
Necessarily then, according to the ministry, 5.49 of the regulations
would deny this Board jurisdiction to hear the grievances of persons
such as F?r. Eriksen who have less than one year's continuous service
in the public service.
After a careful consideration of the matter we can not subscribe \.
to the ministry's contention for at least two reasons. In the first
place, and perhaps mot-e obviously, a close reading of s.49 of the
regulations reveals that the ministry's interpretation of that provision
is simply not supported by the language employed in it. On their plain
terms ss.49-54 of the regulations passed under The Public Service Act,
merely describe the right of certain persons, who believe they have
been dismissed unjustly, to have the grievances finally adjudicated by "
the "Board". As noted earlier that "Board" as defined in s.46 of the
reaulations, is the Public Service Grievance Board, being .the tribunal .-
which was superseded by our own. Very simply, ss.49-54 of the
regulations make no reference and can have no application to the rights
described in s.17(2) of The Crown Employees Collective Bargaining Act.
Those sections being irrelevant to the jurisdiction of the new Grievance
Settlement Board, and there being no regulations yet promulgated under
s.l8(a)(8) of that Act, it necessarily follows that an employee's rights
under s.17(2) remain absolute and unfettered. Against the clear and
'absolute rights bestowed by the Legislature in s.17(2) of The Crown --
Employees Collective Barqainina Act,(which could well, had the Legislature
so intended, have been made subject to The Public Service Act or any other
statutory enactments) we are doubtful that the delineation of certain
rights for one group of employees in ss.49-54 of the regulations,
15.
should be construed to mean that all other‘groups are to be denied i-
similar rights: The suggestion that every employek who has less than
one year of continuous employment in the public service has no rights
to challenge or appeal his severance from the public service is to
this Board quite offensive, at odds with our system of jurisprudence
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and requiring the Clearest language to supoort it. At the very
least, and without intending to restrict our interpretation of s.49
to this point, it would seem to this Board that by its terms s.49 has
applica~tion only to the "dismissal" of one group of employees and is
simply silent on and irrelevant to the rights of other groups of
employees to grieve their "release" under s.22(5). So construed, the
fact that s.22(5) does not require the deputy minister to release "in
accordance with the regulations" is simply a recognition of the fact
that there are no regulations which dictate the procedure by which a
deputy minister must release such persons. At the risk oft
repetition,,it would seem to this Board that one cannot conclude from
the mere fact that there are no regulations describing the manner in
which such employees are to be released, that such persons have thereby
been denied their statutory right to have their grievances finally
resolved by this Board.
There is,however, a second and in some
senses a much more compelling reason why this Board could not give effect
to ss.49-50 of the regulations passed under The Public Service Act even
if by their terms they did refer to the Grievance Settlement Roard, and
even if they could be construed so asto deny to all persons with less
than one year of continuous employment the rights that are described
therein. Put at its simplest, it is a fundamental and basic proposition
of our common law that in a democratic state, such subordinate 1eqisTation
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as by-l~aws and regulations are prima facie ultra vires if they are
inconsistent with or derogate from either the substantive provisions
of the statute by which the power to enact such regulations is conferred
or indeed if they conflict and subvert substantive provisions of any
other statute. (See E. A. Driedger "Subordinate Legislation" (1960)
38 Can. Bar Rev. 1, 18, 22.) Although we need not concern ourselves with
the question of whether ss.49-54 of the regulations go beyond the power
conferred in s.29 of The Public Service Act, it is manifest that if we were
to accede to and adopt the employer's contention, that those regulations
would be in direct conflict with the statutory rights bestowed on
employees by s-17(.2) of The Crown Employees Collective Eargaininq Act.
To the extent such regulations sought to abrogate the statutory rights
conferred by s.17(2) of The Crown Employees Collective Baraaininq Act,
and in the absence of any language in the enabling legislation
conferring on the regulations passed under it the status of legislative
pronouncements or the status by which they would supersede zany other
relevant legislation. the Board is of the view that such regulations are
ultra vires and of no validity. See Hackling v Lee (1860) E & E 906,
911 per Crompton J.,Irving v Asken (1870) L.R. 5 8.6. 208, 211 per
Hannen II. In the result one is necessarily and inexorably led back to
the overriding and absolute right bestowed upon employees generally
to bring their grievances with respect to matters delineated in s.17(2)
before this Board, either directly when there is no operative and valid
grievance procedure existing in a collective agreement or in- the
regulations, or pursuant to such grievance procedures as are in existence.
In either case however, s.17(2) of The Crown Employees
Collective 8aroaininq Act must be taken to allow employees, includinq
employees durinq the first year of their employment, to brinq before this
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Board any grievance with respect to the matters described in s.17(2)
for final and binding adjudication.
Recognizing that our decision is a departure from the policy
articulated by the Public Service Grievance Board and in order that
the immediate parties, as well as those who may follow them, fully
understand the nature of our award as to our jurisdiction, it is perhaps
appropriate at this juncture to describe more particularly the effect
of our seizing jurisdiction to hear the merits of Mr. Eriksen's grievance.
In the first place it is manifest both from The Public Service Act
itself, as well as from the respective positions of the parties, that in
cases such as Mr. Eriksen's there may'be some dispute between the parties
as to the precise nature of the grievance before us. That is, in cases
where an employee who in his first year of employment is terminated. an
issue may arise as to whether or not such an employee was "dismissed"
for cause(s.Z2(3))or "released" from employment under s.22(5) of The -
Public Service Act. In either case it follows from our earlier remarks
with respect to our jurisdiction to hear such grievances that an employee
could bring his grievance before this Board. In the former case he
would, necessarily. be-invoking his rights under s.l7(2)(c) while in the
latter he would be grieving under s.l7(2)(b). Apart from his right to
come before this Board however, it may in certain instances be of
importance to determine precisely which of these sections the employer
did invoke in terminating the services of such an employee.
That is it may well be, although we need not definitively decide
this issue in the case before us, that the two sections were intended to
18.
apply to quite distinct Sets of circumstances and that
different sta<dards of review would be appropriate'for each.For
example,it may be that certain conduct engaged in bv an employee durinp
his first year of employment might merit his "release" but not his
"dismissal for cause" while other behaviour might justify his dismissal
but not his "release". Indeed in certain instances it might be that
an employee's conduct would merit either his release or his dismissal.
To illustrate the possible distinctions between these two sections,
if an employee had less than one year's service and
by virtue of such failings or deficiencies as involuntary in-
competence or incapacity, (whether physical or mental) was
unable to meet the requirements of his position and he might properly
be released under s.22(5). By way of'contrast such behaviour of an
involuntary character, might not support a disciplinary dismissal under
s.22(3). Similarly, although it has been held that an employer may not
dismiss an employee who is unable to perform all of the tasks associated
with his job (RE U.A.W. LOCAL 35 and Libby, McNeil1 & Libby of Canada
Ltd.)(lg72), 23 L.A.C. 257 Palmer); RE U.A.W. & Oe Havilland Aircraft
of Canada Ltd. (1964) 15 L.A.C.~284 (Laskin), such grounds may
in the proper circumstances, support the "release" of an employee under
s.22(5). Conversely certain acts of misconduct, while meriting
severe disciplinary sanctions and perhaps even discharge
might not support the conclusion, for reasons which we will elaborate on
later. in this award, that the employee failed to meet the requirements
of his job. (See for a more thorough discussion distinguishing between
"release" for incompetence and a "dismissal" for culpable misconduct in
the Federal Public Service, Re Robertson 166-2-454). For
purposes of this award, it is sufficient for this Board to note that
ultimately it is for this Board to determine whether in fact, and regard-
,
i i 19.
less of the employer's characterization of the termination, the griever
was "dismissed" or "released". If as we have suggested s. Z(3) and
s.22(5) pertain not only to different groups of employees, but as well
may on occasion refer to substantially different grounds for termination
and if the standards to be applied under each provision are in fact
uniaue, then necessarily it is this Board which must ultimately determine
whether the grievor or the employer is correct in their characterization
of the termination. Support for our authority to ultimately determine
which of the above sections actually motivated the employee's
termination may again be found in the federal public service where ad-
judicators have asserted and the Courts have affirmed the jurisdiction
of the arbitrator to make such a determination. Re R. Jacmain 166-2-1510,
affirmed 168-2-87. Re Norman C. Wripht v. Public Service Staff Relations :
Board (1973) F.C. 765. Re Joseph A. Fardella v. the Oueen (1974)
2 F.C. 465. .
Following from our decision to seize jurisdiction in
cases s&h as these an issue may also arise as to the proper order of
proceeding and the burden of proof that must be discharged. It is now
beyond dispute that in matters of discipline and discharge alike. arbitrators
have asserted that the employer bears the onus of proving it had just cause
for the action it took, and except when such issues as the employment status,
or the fact of termination etc. are in dispute, would be required to lead
its evidence first to substantiate the sanction it imposed. Re United
Steelworkers and international Nickel Co. of Canada Ltd. (1969), 20 L.A.C.
5 (l!.D. Brown). This general consensus of arbitral ooinion has been
generated by the widespread feeling that because of the potential gravity
inherent in the resolution of such grievances and because the employer
initiated the termination and accordingly alone knows the reasons for
the action it took, it should be obliged to assume the onus of justifying
its conduct. Similarly, in cases where an employer terminates an employee
under s.22(5) for failing to meet the requirements of his position, it
would seem to this Board that the same pragmatic considerations would
dictate that the employer carry the onus of proving that in fact the
griever was unable to meet those standards. That such a standard is
also applied by arbitrators in the private sector in "non disciplinary"
dismissals, confirms us in our view that there is neither any logic nor
rationale which would support any other rule. Re Atlas Steel Co. and
Canadian Steelworkers Union (1975) 8 L.A.&.(2d) 350 (Weatherill).
Finally and in asserting our jurisdiction over grievances brought ..:
by probationary employees, whether terminated under s-22(5) or s.22(3) of
The Public Service Act, it is essential that our determination on this
jurisdictional issue not be confused With the grounds on which pro-
bationary employees who have less than one year's continuous employment
may be terminated under either s.22(3) or s.22(5) nor with the standard
of review that this Board will assert aver the termination of such em-
ployees. The two are completely distinct and severable issues. Having
articulated the grounds on which we have assumed jurisdiction over the
termination of employees who have less than one year's continuous service,
it remains only then to describe the substantive grounds on which such
employees who are probationers may be terminated whether under s.22(3)
or s.22(5). In the .first place it was we believe, beyond dispute (and
the parties were agreed on this) that the grounds on which a probationary
employee may be dismissed (and necessarily released) under either s.22(3)
or s.22(5) must be different than those which would support the dismissal
21
of one who has passed through his or her probationary period. The
rationale foCsuch a distinction necessarily is founded in the character
and purpose of the probationary period. That probationary period, is to
use the words of another board of arbitration designed to recognize
. . . the legitimate interests of the employer in
attempting to secure the most competent, com-
patible and suitable wrk force it can acquire.
One cannot reasonably expect an employer to be
able to assess the full capabilities and pc-
tentiality of a job applicant from a brief inter-
view, an application form, references and the
like. Rather he must be entitled to an op-
portunity to view the new hire in the particular
context of his own work environment. That is
the sole purpose of the probationary period.
It is, as we have said, a legitimate purpose.
Re Porcupine Area Ambulance Service and C.U.P.E. Local 1484 (1974),
. . . ) 182 (Beatty)
However in recognizing the valid concerns of an employer to be able to
select the most able, proficient and congenial work force we would not
subscribe to the notion that the employer has a completely unfettered
right to terminate the services of a probationer at will. To the con-
trary and again to advert to the decision in Re Porcupine Area Ambulance
Service, (supra) we believe:
. ..that in any case involving the discharge of a
probationary employee the employer must not
only prove the acts complained of which pre-
cipitated the discharge, but in addition he
must demonstrate that this reasonably supports
his conclusion that the discharge wes ap-
propriate. Were it otherwise an employer
might well be justified in asserting that a
probationary employee who was late on one oc-
casion (with or without justifiable excuse)
had fallen below the standards of punctuality
thereby demxlstratiny his unsuitability as a
future employee. In short, the employer must
not only prove the facts upon which he based
his action, but in addition that the em-
ployee's conduct demonstrates that it is
reasonable to conclude such an employee will
i
22.
likely prove unsuitable as a seniority-rated
C2@byee. This will necessarily entail a
board of arbitration assessing both the
reasonableness of the standards imposed by
the company against which the employee’s
conduct is to be measured, as well as the
conclusion that the conduct complained of
reasonably supports the conclusion that the
probationary employee is likely to prove
unsuitable.
However and as the same board cautioned:
One should add that in our view this
review by a board of arbitration should
not take on the nature of an appeal as to
the correctness of the company's proy-
nostication a* to the future prospects
of the probationary employee. We have
already stated tlxt some of the
legitimate concerns of an employer in
assessing the future employment relation-
ship of a new employee, viz. his
character, compatibility, potentiality
for advancement and general suitability
are necessarily vague. Further the
judgment of the company is necessarily
in the nature of a prognostication.
Arbitrators should therefore be re-
luctant to interfere with that
prognosis unless it is plain that the
employer’s assessment or standards are
palpably unreasonable. However, should
the employer fail to establish any basis
for the termination of the probationary
employee, or should it be demonstrated
that his assessment or the standards
against which the assessment is made are
unreasonable, boards of arbitration must
not sanction such disciplinary action
simply on the basis that it was invoked
against a probetionary employee. I” sum
we huuld assert that although the proper
basis for'discharge of a probationary
employee may be somewhat broader than
that justifyin? the termination of a
senfority-ratted employee, and although
the standards of review by boards of
arbitration will be somewhat less
riyorous, nevertheless the employer must
i
i ,
23.
affipnatively establish that his termination
of a probationary employee was reasonable'
in the circumstances.
Implicit in these remarks is the recognition, particularly
with respect to a "release" effected under s.22(5) of The Public
Service Act, that although the employer is entitled and indeed has a
legitimate interest in assessing the overall suitability of persons
who seek to join its permanent staff, the probationary employee is
entitled to a fair and proper assessment. Such an assessment
necessarily assumes the probationer will be given a sufficient period
of time to demonstrate his proficiency and capability, that his duties
and responsibilities have been clearly articulated to him, that reason-
able standards of behaviour and performance are expected of him, that
his progress is systematically reviewed and,not insignificantly.that
the employer has made reasonable efforts to coach, instruct and inform
the employee throughout the probationary period. Such principles,
fundamental to a probationary period in any sector of employment,
are even more fundamental in the public service, where
the probationary period is usually of a lonaer and more
prolonged duration. Having attempted to exhaustively describe the reasons
for our assuming jurisdiction over the grievances of employees having less
than one year's service, the procedural and evidential consequences that
flow therefrom and having articulated the standards against which we expect
to test the propriety of the termination of a probationary employee, it
remains for this board to apply this reasoning to the facts of this case.
The complexity of these preliminary issues notwithstanding.the circum-
stances surrounding the "release" of Mr. Eriksen are relatively straight-
forward and not in dispute. It is a matter of record that after some ten
years' service in related employment, f!r. Eriksen joined the Ministry on
24.
November 6, 1974 as a Correctional Officer 1 at the Kitchener Jail.
. .
At the very least, and by the employer's own accounts Mr. Eriksen
was an average and satisfactory employee. Indeed OR Mr. Eriksen's own
evidence, pertaining to two appraisals which he underwent in February
and May of 1975 as well as to his standing on the Staff Training Course
which he completed in June, 1975 and which was not substantially con-
tradicted by the witnesses of the Ministry, it would appear that Mr.
Eriksen was in fact a somewhat hetter than average Correctional Officer.
Indeed Mr. Nash, the Superintendent of the Kitchener Jail, conceded
that a high performance rating on the staff training course, such as
that attained by Mr. Eriksen, would be important and would stand him in
good stead for future promotional opportunities. In short, and again as
conceded by Mr. Nash, apart from the single incident described below,
there was nothing in the grievor's performance'as a Correctional Officer,
nor in his attitude towards his work, his fellow staff members or to the
inmates, which could be characterized as deficient or which was found to
be wanting by the employer. Very simply. it was as a result of a single
incident which occurred in the late evening of August 9 and the early
morning of August 10th that the employer has drawn the conclusion that
the grievor failed to meet the requirements of his position.
That incident occurred when at approximately 11:OO p.m. Mr.
Eriksen picked up a Mr. R. Holbrook who was also a member of the staff
of. the Kitchener Jail at the conclusion of the latter's shift and
proceeded with him to the City Hotel at Waterloo Ontario where they
arrived at approximately II:30 p.m. and ordered several glasses of beer.
It is a matter of agreement that after a few moments in the tavern
"lessrs. Holbrook and Eriksen were approached by a Mr. F., a person who,
, 25.
at the very least, was known to be an ex-inmate of the Kitchener Jail
and who accord+no to t!r. Nash was known (althouoh apparently not to
the griever) to be involved in criminal activities. Althouoh Mr. F.
sat with them for anywhere from thirty to fifty minutes, according
to Mr. Eriksen, and this was not disputed by the Ministry, Mr. F.
apparently spent the bulk of his time equirino of Mr. Holbrook as to the
latter's knowledae of the mechanics and details associated 1;fit.h settinn un a
crivate investigating agency. Furth,er, accordinp to Mr. Eriksen, durinq a
good portion of this time, there was little or no conversation even as between
Mr. Holbrook and Mr. F. because of the noise that was generated by the band
which was playing throughout the evening. In any event, when a disturbance
erupted in the hotel some time between 12:15 and 12:30 a.m. on August 10,
Messrs. Holbrook and Eriksen decided to leave the City Hotel and proceeded
to the Station Hotel. It was Mr. Eriksen's contention, which again was t
not disputed, that the two of them left independently of F?r. F. and indeed
had no expectation that they would see him again that night. However
shortly after they arrived at the Station Hotel, Mr. F..along with several
other persons, some of whom Mr. Eriksen knew, and others including other
ex-inmates of the Kitchener Jail who he did not know, also arrived at the
Station Hotel and again sat with Messrs. Holbrook and Eriksen. Again
there is no dispute that during this second contact with Mr. F., which
was shorter in duration than their meeting at the City Hotel, Mr.
Holbrook had much rrrore contact with Mr. F. and Mr. Eriksen was never
more than on the periphery of the conversation. Indeed it apoears that
during this second brief encounter with Mr. F., a Mr. Armstrong, who
is also a Correctional Officer employed at the Kitchener Jail, came
into the tavern with his wife and sat beside the prievor.
26.
Wheni'this bar closed, which would have been short1.y after their
arrival, Mr. Holbrook, who until that time had been chauffered by Mr.
Eriksen, invited the grievor back to his house for a night cap. In
agreeing to this arrangement, Mr. Eriksen was not aware, until Mr.
Holbrook got into his car, that the latter had again been approached
by Mr. F; who asked if he could come along and continue their dis-
cussion about the private investigation field. As a result Mr.
t!olbrook, Mr. Eriksen and Mr. F. proceeded to Mr. Holbrook's home
where they continued their conversation until 4:00 a.m. According
to the grievor, again the majority of the conversation was taken up
by Mr. F.'s enouiries into private investigation work and at no time
either at Mr. Holbrook's home or at either of the two hotels was there
any discussion about any aspect of the Kitchener Jail.
Until August 14, 1975 the grievor thought little if anything
about the events of the evening of August 9-10 described above.
However on August 14, Messrs. Eriksen. Holbrook and.Armstrong were
contacted bythe Waterloo Regional Police in order to supply them with
any information of which they were in possession with respect to the
whereabouts of Mr. F. on the evening in Question. Apparently and
unknown to anyone at the time, it later transpired that Mr. F. was
being considered by the Waterloo Regional Police as a possible suspect
in certain criminal investigations they were carrying out with respect
to an incident which occurred on the evening of Aupust 9-10, 1975. We
need not describe in any detail the subseouent activities of Mr. Eriksen
in reporting all of this information to his superiors on August 15 im-
mediately after he had been interviewed by the Waterloo Regional Police
27.
and the subsequent investigation made by I?. PI. Jones, an Inspector
:
employed by this Ministry other.than to note our serious concern with
the latter's behaviour in refusing to allow the grievor to be repre-
sented during the course of his interview. Very simply, it is our
view that such unilateral and inquisitorial type of investigations,
in which all Union representation is foreclosed, will effectively and
completely preclude any mature and viable collective relationship
from ever being established between these parties and may well result
in unnecessary anguish and prejudice being occasioned to the persons
under investigation.
We need not, however, concern ourselves in any detail with
the events which transpired after the Ministry became aware of the
events of Auqust 9-10, 1975 in that it was solely because of his
behaviour on that evening that the Ministry has determined that
Mr. Eriksen has failed to meet the requirements of his position.
For purposes of thjs award, it Is sufficient to note
that upon the completion of their investigations, the Ministry, in
addition to "releasing" Mr. Eriksen, invoked a five day suspension,
without pay against Mr. Holbrook and ultimately determined not to
take any action against Mr. Armstrong for their participation in
the events on the evening in question.
In assessing the propriety of the action the Ministry took
with respect to Mr. Eriksen, this Board wishes to record its agreement
with the Ministry's real and legitimate concern that members of its
staff scruoulously avoid socializing with ex-inmates in the manner
which Pessrs. holbrook and Eriksen did on the evening of August 9-10.
As both Mr. Jones and Mr. I!ash repeatedly stated, socializing with
28.
persons who are ex-inmates and who by their repeated incarcerations i: \
have shown that they are unable to remain free of criminal activity,
in such circumsta~nces as those which prevailed on August 0 - 10, can
seriously prejudice and undermine the integrity and effectiveness of
their staff, may compromise the security of the institution, and
must accordingly be scrupulously avoided. That is not to say, nor
did the Ministry suggest, that all forms of social contact between
staff and ex-inmates are forbidden. Mr. Nash and Mr. Jones readily
conceded that in certain circumstances socializing between such
persons would be perfectly. proper. In conceding that some social
contact might be permitted between the staff and someone who was once
an inmate of the Kitchener Jail it must be recongnized that the delin-
eation of what might be legitimate and proper social actfvities can
not be the subject of specific and all-encompassing rules. Rather
the propriety of any socializing.or contact between members of the
Ministry's staff and ex-inmates must turn on the particular circum-
stances which then Prevail. Thus,for example, although everyone might
concede the propriety of associating in the context of some church,
school or community activity with someone who, although once incarc-
erated, has long since shown himself to be a respected and valuable
member of the corranunlty, it is equally manifest that drinking alcoholic
beverages in the late evening and early.morning hours in a public
house or in one's home with a person who by his record of criminal
activity must be viewed with considerable suspicion, is obviously
beyond the pale. Very simply then, such considerations as the period of
time since the person was incarcerated, his record since release, the
criminal records of other persons in his company at the time of the
I ,:
29.
meeting, the social setting of the contact, the duration of the
contact and who initiated the meeting all will bear'on the propriety
of the relationship. Obviously, in each case, to use Mr. Nash's
expression the Correctional Officer must be expected to exercise
sound judgement and common sense in assessing the propriety of the
meeting. In exercising such judgement however and given the delicate
function performed by the Correctional Officer such members of the
Ministry's staff must be advised to be scrupulously vigilant to
conduct themselves in a manner which will ensure that their integrity
and character is safeguarded, and beyond any possible reproach, that
their own position is not unwittingly compromised or manipulated and
that the security of the institution is not jeopardized. In drinking
with Mr. F. over the course of some five hours and particularly in
returning to Mr. Holbrook's home with him, Mr. Eriksen simply did not
exercise that degree of judgement which the Ministry was entitled to
expect of him.
In reaching this conclusion we might add that we were not
unimpressed with the logic of the grievor's philosophy by which he
defended such an association with ex-inmates (who he distinguished
from "known criminals") as being both consistent with the theory that once
released from an institution a man is entitled to consider that he has
paid his debt to society and with his ability to be able to fully discharge
whatever rehabilitative function he performs as a staff member of this
Ministry. Indeed it was our impression that there are many CirCUInStanCeS
in which Mr. Eriksen's philosophy could well coincide with the Ministry's
policies. That is to say, it may ,Lell be, given the legitimate and
proper associations that a member of
f
the institution's staff could have ex-inmates, that the purported
differences b?tween Mr. Eriksen's philosophy and the Ministry's policies
:
are more apparent than real. In fact, if there is a lesson to be
learned by IV. Eriksen and other members of the Ministry's staff it
would be that in exercising the vigilant caution of which we spoke
earlier, if they are ever in any doubt as to the propriety of a social
contact between themselves and an ex-inmate, the contact should ouietly
and congenially be brought to a conclusion and advice sought from a
member of the supervisory staff.
In these latter remarks, we are clearly doing no more than
.articulating what most assuredly common sense would mandate. As we
have noted,Mr. Eriksen's activities on the evening in auestion
demonstrate either that.he failed to exercise that good .judgement or
that he was incredibly naive. It is simply so obvious that those
persons who are charged with the care and custody of those who have
transgressed the laws of this country must not only be above reproach
and suspicion but as well that they must be seen.to be above reproach
and suspicion, that however laudable or indeed valid the grievor's
philosophy, for persons in his position it must be exercised with the
utmost care and caution. For having demonstrably failed to exercise
that degree of caution and judpement which the Ministry is entitled
to expect of its staff, v::e believe that Ministry had
good cause to imoose some discipline on the grievor. !Ihat we must
ultimately decide is whether, for that single incident he may either
be discharged for cause or released for having failed to meet the
requirements of.his job. After careful consideration, but without
hesitation we have determined that he can not be so terminated.
3i
Whether one characterizes the employer's action as a release
under s.22(51-or a dismissal under s.22(3) it is manifest the ter-
mination is unreasonable and improper. Regardless of how one defines
the ourpose and scope of s.22(5) it simply can not be said, in the
face of the grievor's employment record, that this isolated and
solitary act of poor judgement demonstrates that he has failed to meet
the requirements of his position. Although it is conceivable that
certain more serious and extreme acts of misconduct, even if committed
on only one occasion might well justify the conclusion that an employee
has failed to meet the Ministry's requirements, in the circumstances of
this case we do not believe that conclusion is warranted. In the first
place against his record of employment it is not unreason-
able to expect that Mr. Eriksen is likely to have a promising and re-
warding career with this Ministry. His appraisal evaluations, his
record at the Staff Training Course and his assignments during the
nine months he worked in this Ministry all attest.to that fact.
Further although it is true that his behaviour on the evening in ouestion
did not meet the standards that the Ministry is entitled to expect from
its.staff, it must be recalled, as the Ministry conceded, that there
were not, nor could there be, any firmly and clearly established rules of
conduct with respect to the behaviour it expected of its staff when
they came in contact with ex-inmates. Although we have found
the grievor's conduct wanting on the evening in question surely this
is precisely the kind of grey area on which probationers should be
receiving instruction and direction in the nature of the general guidelines
we have described above, from the supervisory staff. Given the vague and
indefinite nature of the employer's own policies in this area, and the
orievor's own lack of experience and knowledge in this regard, we simply can
not endorse the Vinistry's conclusion that this one error in judgement was
so serious as to warrant the appraisal that he had failed to meet the
standards of his position.
c
2
32.
From our earlier remarks it should be manifest that we do not
conceive the probationary p'eriod to be a perid during whi,ch employee
competence, compatibility, suitabil,ity, character and work performance
is tested in such a manner that the slightest deviation from the expected
norms will merit "release". To the contrary,as noted earlier in our
award, an employer's decision to terminate a probationer or to release
for failing to meet the requirements of the job must be made on the
basis of a fair assessment and against reasonable standards which are
known tothe employee. Although as noted this Board should ex-
ercise its discretion carefully and with some caution in the case of a
probationer, where as here, all of the employee's record, excepting one
isolated incident, attests to his suitability, it simply can not be said
an employer may justifiably terminate a probationer under 5.22(S). There
is no evidence that the grievor's behaviour waspremeditated, was likely
to repeat itself and was other than a single and isolated error in
judgement. In such circumstances it would be to demand complete perfect-
.ion of probationary employees If we are to uphold their "release" for
a single deviation from the expected norms. To adopt such a position
would make a mockery of the employee's right to expect a fair and proper
assessment during his probationary period. It would expose the probation-
er to the slightest whim of his employer, It would subvert the standards
described earlier in this award which we believe the employer must meet
if it is to justify its release of a probationer under s.22(5). It would
be to allow the employer to focus and rely on a single act of unacceptable
behaviour in complete disregard to the employee's performance over the
previous nine months. In short it would be to sanction a principle Of
33.
arbitral jurisprudence long since rendered to historical footnotes even
in the private sector. Put positively we believe that a fair assessment I
of the qrievor's ability to meet the requirements of his oosition would
have mandated that his performance have been given its due and proper
consideration, that he have received some particular "coaching" as to
the expectations of the Ministry in what all conceded to be a neces-
sarily vague and uncertain area, and'that he have been qiven some op-
portunity to,demonstrate that any shortcomings in his abilities and,
character that were manifested by this incident were momentary or
innocent abberations which could be corrected by him. Put succinctly
against all of this evidence it simply can not be said that the grievor
has demonstrated that he has so grievously failed or is incapable of
meeting the requirements of his position so as to warrant his release.
In the result we must conclude that the Ministry improperly exercised
its authority to "release" Mr. Eriksen pursuant to s.22(5) of The Public
Service Act in the circumstances of this case.
In the alternative we are of the opinion that it is more accurate,
given the evidence described above and particularly given the employer's
own initial response, on learning of this incident of suspending Mr.
Eriksen on August 20 and again on August 22 pursuant to ss.31(1) and (2)
of the regulations promulgated under The Public Service Act to conclude
that the Ministry's actions were more properly in the nature of a
disciplinary sanction imposed for a serious error in judgement on the
part of the grievor. rather than in the nature of a negative assessment
of his ability to meet the requirements of his job. Very simply, by
initially processing this matter as a disciplinary offence under s.31 of
the regulations, ev,en and althouah it purported to prematurely terminate
that process and effect a release of the grievor under another section
of The Public Service Act, the employer itself has‘affirnatively
demonstrated that it perceived this entire matter as one of discipline
rather than a failure to meet the requirements of the position. So
characterized it follows from what we have said above, as well as from
the discipline imposed by this Ministry on the other two members of its
staff, at least one of whom was clearly more culpable, that the discipline
imposed on Mr. Eriksen is palpably unjust and unreasonable. In the first
place and most evidently the fact that the Ministry has retained Mr.
Armstrong and particularly Mr. Holbrook on its staff conclusively rebuts
any suggestion that the termination of Mr. Eriksen was a necessary
response to safeguard the security and viability of the institution.
Had the security of the Kitchener Jail been seriously jeopardized by
the incident on August 9-10, most certainly Mr. Holbrook would not have
received a mere five day suspension. In short it simply does not lie
in the mouth of the Ministry to now suggest, having allowed Mr. Holbrook
to return to his employment, that the termination of Mr. Eriksen, was a
justified and appropriate response to preserve the integrity of the
institution. Nor against the treatment meted out to the other two
employees, can it be said that the termination of Mr. Eriksen is justifiable
simply on the basis that he is a probationary employee. Although it is
true, as we have described above, that the employment security of a
probationer is necessarily less than that enjoyed by a seniority rated
employee and although such a probationer might well be dismissed for
conduct which would not support the termination of some one who had
completed their probationary period, nevertheless it remains a cardinal
principle of our system of justice that equal cases be treated in an
equal fashion. Although it is true that Messrs. Holbrook and Eriksen
ma,y prooerly be reoarded as different cases by virtue of their employment
.
” 35.
status, nevertheless it follows as a necessary corollary of the principle
enunciated above that the difference in treatment.afforded to each of them,
must reasonably be related to the differences in their circumstances. "Y
this we mean that although it is true that both Messrs. Holbrook and
Armstrong who, as described, also had some involvement with Mr. F. on the
evening in question were not probationary employees, that fact standing
alone does not.necessarily and inexorably lead to the conclusion that
the employer may treat the grievor in a manner which is completely at
odds with the manner in which the others were treated. Although there
may be circumstances, when for example in the case of the theft of the
employer's property, an employee with a long record of blameless or
exemplary work performance might be retained in his employment after
suffering some period of suspension, while a probationer might be summarily
dismissed or "released", that conclusion need not and may not prevail in
every circumstance. To the contrary, it might well be argued that where,
as in the present case, the transgress~ion of the probationer and seniority
rated employee, involved the breach of a necessarily vague, indefinite
and inarticulate policy, about which the probationer had never been
adequately instructed, and where the probationer's involvement was much
more peripheral, such considerations could well support the conclusion
that the probationer and not the seniority rated employee was deserving
of lesser sanction. In short and even recognizing the difference in
employment status between the grievor and particularly Mr. Holbrook,
piven the latter's longer service, his presumably greater knuwledge of
the emoloyer's policies, his areater sensitivity to the requirements
of his position and his admittedly oreater involvement with Kr. F., it
would seem to this Board that any disciplinary sanction imposed on the
I -
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5
36.
griever should of necessity have been less than that imposed on
Mr. Holbrook. i:
In any event and regardless of the motives or rationale of the
employer in invoking a five day suspension against Mr. Holbrook, this
Roard,in the exercise of broad statutory mandate in s.18(3) of The -
Crown Emoloyees Collective eat-gaining Act to fashion such other penalty
as we consider just and reasonable in the circumstances, has determined
that we can not be circumscribed solely by the penalty invoked by the
Ministry aqainst Mr. Holbrook in our determination of what we believe to
be the appropriate sanction to be imposed on. the grievor. We have
determined that the grievor's error was a serious one. We have noted
that repeated occurrences involving such a lack of judgement could well
prejudice the effectiveness with which the Ministry is able to discharge
its statutory duty. Further we believe that regardless of the penalty
imposed on Mr. t!olbrook one must not lose sight of the fact.that Mr.
Eriksen is still 'a probationary employee. was such we believe that this
Ministry is entitled to assure itself that his conduct on the evening
of August 9-10 was a momentary aberration, that it was the result of his
inexperience rather than some congenital defect in his judqemental abilities
that he will be able to conform to the Ministry's ooTicies and that such
behaviour is not likely to repeat itself. In the result and in order to
impress upon Mr. Eriksen and the other staff of this Ministry of our
aeneral support for the Ministry's policies in these matters, we would
hold that Kr. Eriksen be susnended from service for a period of.five
weeks without pay (dating from September 25 being the first day after
the period for which he received severance nay) and that he should be
;i.
reouired, on his return to employment, on the release of this award,
to serve the next six months of his employment with the status of a
probationar)r.employee. In this latter resoect w have determined that,
while it is beyond dispute that this Board has the authority to simply
reinstate the prievor, there may be some issue as to whether it is
within our prerogative to order that the grievor be placed on a further
six month period of probation. Accordingly, and in full confidence
and assurance that our determination will be acted upon by the Civil
Service Commission, we have come to the conclusion that in the circum-
stances of this case, there is no need for this Board to finally settle
our jurisdiction on this point and that this portion of our award may
properly be put in the nature of a recommendation to the Commission.
In the result it is the decision of this Board and we would order that
Mr. P. Eriksen be immediately reinstated as of the date of this award,
to the position of Correctional Officer 2 at the Kitchener Jail, with
full compensation and seniority to accumulate from November 1, 1975,
less any monies he has received since that date to which he would not
otherwise have been entitled but for his termination and with the
recommendation that from the date of his actually returning to work
he be reappointed by the Civil Service Commission to the probationary
staff and that he be required to serve an additional period of probation
of six months' duration. In the unlikely event that there should prove
to be any difficulties in the implementation of this award, and/or in
the compensation due to the grievor, the Board shall remain seized of
those matters. In conclusion and by way of postscript this Board wishes
to acknowledge both,the patience and able presentation that was exhibited
both by Mr. Schaefer and Mr. Millard during what was, given the comolexity
and novelty of the jurisdict:onal issue which was oresented to t+is
Soard, a necessarily prolonged hearins.
Oated at Toronto this 19th day of January 1976.
0. t!. Beatty
Chairman
I concur
E. J. Orsini
Member
I c0IICU.r
P. A. Sigurdson
Member