HomeMy WebLinkAbout1976-0021.Joyce.76-08-13 r
r Ontario 2I 176 {
4
r CROWN EMPLOYEES 416/965/ 410 Queen's Park
GRIEYANCF- SETTLEMENT Toronto.Ontario
BOARD M7A 1Z5
IN T::= h1ATTER OF AN ARBiTRATI,
Under The
CROWN SMPLOYELES COLLECTIVE BARGAINING ACT
Before -
TH=- GRIEVANCE SE I i LEMENT BOARD
Between: Miss Agnes Joyce
(The Grievor)
And
Ministry of the Attorney General
(The Employer)
Before: D. M. Beatty Chairman
G. K. Griffin Member
H. C. Weishach Member
For the Grievcr
G. Bruce - Ontario Public Service Emoioyees Onion
For the Ministry
D. W. Brown - Counsel
Ministry of the Attorney General
Hearing: Park Plaza Hotel , Toronto, Ontario, April 29th, 1976 F
- y i
INTERIM AWARD 2•
i
-'iss ;gr.es Joyce grieves that on or about "llarch 5, 1975
s.-e was dismissed without just cause and she seeks by her complaint
t be reinstated 'di=`out loss of salary, benefits or seniority. At
tie outset of the hearing he Ministry advised this Board that it
C.-al l enged �ar to sear Mis. Joyce' s r,r i_ +Gr, _ and having
scJssad _-a matt-r ,Yi_h. her representative, requested this Board
tc rule on its .are! i-inary objection prior �.o receiving evidence
and ^earir: argu,;;enis on the r,^,erits of the grievance. Accordingly,
satisfied that the prDcedures which we have Previously outlined .in
our Re Eriksen 12/75 award had been followed, and given the
complexity of the issue raised by the ,Ministry ,the Board requested
and the parties agreed to submit written argument on the preliminary
issue. Having received and considered those argumen s this Board
in this interim aware has determined, for the reasons that follow ,
t that the ,Ministry's preliminary objection is without foundation and
t�at,to the contrary,we do have jurisdiction to entertain Ms. Joyce' s
grievance on its merits.
in essence, the employer's challenge to the arbitrability
of Ms. Joyce's grievance is founded in and premised upon her pro-
bationary status. In this regard it is conceded by the parties that
Ms. Joyce was appointed to a position on the probationary staff of E
the classified service of the office of the Public Trustee on
M arch 10, 1975 and was released from that position on March 5, 1976.
E-Wential ly . ,
i �y. gas t�--- Ministry' s_ position, and at least. f
or three
d' `ferent, trough necessarily related, reasons that because Ms.
Jc Ica was pro-C_y-;c. er at the time of her release s^e was not
f
3.
r
t1 ed tc, file' z respect'to her fermia pion." In ttze f
first place, Mr. Brc-.,-n, for the Ministry, argued that Ms. Joyce
yuld rot, y reason of and after her termination on March 5, 1976,
have teen covered by a collective agreement which was executed
-a naen he Parties _n "arch 12, 1976 nor have been -art of the
tarcaininc ;nit to w icr, that agreement appl ied and was therefore
r=t enti=lad to file this grievance. In the alternative, Mr. Brown
argued that , even if "s. Ooyce was a member of the bargaining unit
a-. the data the agrement was signed, because she was still a pro-
bationer ationer at that time , she could not, in view of various provisions
i ncl_sded i r: The Public Service Act R.S.0. 1970 c. 386 as amended
and in the Interpretation Act R.S.O. 1970 c. 225 file a grievance
wIt ; respect to her release. Finally it was Mr. Brown ' s contention,
that even if, under The Crown Employees Collective Bar2ai,nin Act
S.O. 1972 c.67,as arnend_d by S.O. 1974 c. 135,Ms. Joyce were found
1
_; ''have the right to grieve, by virtue of article 30.6.1 of the
c lIective agreement between the parties, that right must be deemed '
to have been forfeited.
In one sense, although posited in the alternative, both
i•`.r. 3rown`s first two arguments turn on the scope and coverage of
7^2 Crown Employees Collective Bargainin2 Act and The Public Service
=.L respectively and,more particularly,on the interface between these
NO pieces of legislation as they address themselves to the status
E d rights of probationary employees. However, while the characterization
a7d identification of the ultimate issue is , we believe, a relatively
• I
r
4•
- s r';p!e ore, Acause-these two pieces of I19itIatiA a''_ -anything -
but models of clarity consistency or competent drafting its
resolution can not be so easily articulated_ To the c:ntrar that
_so � e� Y Y :
task requires this Evard to make a careful and considered analysis
Goth t�:= purpose and T ;nguage of each of t4se erac7: ents. That
_-is Bear= ..as the �r?sdiction, and indeed the duty Lc make reference
to and plumb the ,-ea-i ng and purpose of these statutory schemes ill resolving
the grievance tefcre as, is now firmly settled by the decision of the
Supreme Court of MEG it Re Auseod et al v Egan _t a cim) , 46
L.R. (?c) 150.
it seems tc this Board obvious that if we are properly to
seize jurisdiction -over a grievance such as Ms. Joyce' s our mandate
to do so rust, if at all , be founded upon and basto,.,-d by ss. 17 & 18
of The Crown cmcicyees Collective Bargaining_Act. 1; ,ose sections
provide;
4 wa_lQct 7e agreement shall be deemed to provide
tLat it is the exc us ve function of the amoloper to _anage, which
w_tbout 1i=,t nq the generality of ti:e fore a—ing, includes
:--e r_5rt to detsY•;�e,
(z) enp?oLme-rt, ac:o -st,-ert:, complement, org-axsizzt_'cr_,
assi,-=ent, d.isc:pl in_e, dismissal, suspension, work
mat:=ds and a-r-Dcedures, kinds and locations of
equ p meant and =lass--f;catiori of positions, ar_
(b) merit system, training and development, 2ppra-sa
and lmparw=wat on, the governing principles of
Which axe sabf ec= a review by the employer a-t q
E
a.:C: such mz t t°ers W:*= rot= ?;e the Subject of cal?ec tI v a az gain--
no_ come wit-y. __e iL:z .sdiction of a board.
(2,1 in additior. t; ary ot.^.ez rights of gr evanc° =der a
�.,_-.°_�'`_.�.Ta �•- oa---nor:, �: _`"•�Jvij'no clai-ming,
(a) c _:._ his pcs_;on has keen improperly c7assifisd. _ �^
(b) that he 3:as Men appraised contrary to the gCver-
n?-_ DT=.:Cz:7-es and StaIIG73="dS; Or
(c) tr: .-:e as ieen d_scipliz:ed or dismissed or nu
[9eT:ded _rc-- ._s emp ogme t TwithoLiC ,]::s`_ cause,
may i cces s 5=2 .=-at_ax it accordance with the Friar^c
:ccdwre AS Co lecti•J aorseoar_, and fa--n'
final date _.__Er such prnc°dura. the matter MY be
pissed in ;cco?-_? .c? with the procnduxe 500 -=Eal 2e Ter_
L--^aton aco7::cak?e _._per section, 18. 1974, c.135, _ .', part_
?2.-(1) EJez-g CO llative agreement sh ry be reared tc
p-ro-Vide t :at in the ant Dazt=es are ur:az.le to e.=;c:__
a 5ettleme_^.t cr any '_if"brunces between them a ising __OM
the Tntal`nrAt.. ticn 2..;licat.ion, administratio°: c; al eg4,d
_'
cont aven- L:
C= of tie a7rO°meat, i-nc3dL?7g ary question as
to whether a °,_ter is ar3itrable, such matte, may k-e
refez ed for a2"A,zat n to the Grievance Setr?e=wnt Ward
and the Board of ter ^i rg full opportunity to the parties
to presel:t t_-eiw ev,1-2,_a and to hake their SL:..7s ssioP_s,
shall decide tie =atte= and its decision is final and
bi::dln5 upon the _oa t es and the employees c,)-v red by-the
agree=an t.
More oarticularly in a grievance such as the one before ups the grievor
must, if she is to succeed,bring herself within the class of persons
described in s. 17(2) who are entitled to invoke the rights described
in paragraphs (a) through (c). Very simply it is that section together
with any relevant provisions in a collective agreement which by s. IS
of the Act clothes this Board with its jurisdiction. in the result,
ultimately the di;f ererce (between the parties is whether someone
such as Ms. jayce, as a probationary "employee'' , can cl aiM entitlement
to the rights describei in those provisions.
in deter-pining whether a probationary employee falls within
the class of persons cescribed in S. 17(2). of The Crown =.:,oloyees
rv. ective err^_� ;: =r� , one is necessarily led to %fie 7-'e-initian
_ 6.
sec_ti n of that, Iag is' on and in partic_olar s. 1 (l) where
ssVry1 ee" is de fined ..s . t
' F
(g} "enployea" rreans a Crown e-p oyee as def;ned Public-Service
'c} but does not _`-cl3ude,
(_} c' ._em..ez Ow _:a Cnt'Fi_a r`'xov 2C a2 _02_a° !^.rce,
!_w) an a college o= applied ar s ar=
o_cg ,
a :er-son a'"G_'G?:?C ?.': a ,manager?a, Or
7 a :t-zso:r v..0 3 r r
(• _ � *s a .�.e:��e o= tea..c_:�
e..Y? eerjZ.: l gal or ed?cal proles s..cn er_ i L?ed to
practi sa _7 1n taria and emp t dyed i.^.
(7) a student em-ployed Q[L'"?ng the student'. rey c !ar
vacation re-r=od Or on a cc-operative educat or--al
training p zcc` a= or a person;not ordinarily _eqi:ix ed
to :rook more than one-third of the nor-3? Period
for persCr_s ppr=o_ z.-sg similar work excaot a ere
ti:A pe,sor. n-or:ks on a regular and cort�-'-zuinc psis,
(71 a =erson a.^5-aged .rider contract in a _srefass:oral
or other_- sp—zal capacity, or for a project of a !'
nor-rer-..,urr n= 'sired, or on a temporary wort ass_gn -
ment arra.:cpc Ly the Civil Service Carmi,ssie.: in
accozdarca err_`t.h its pragraM for proV_ding tenpora_ry
help,
(•iii) a person enraged and employed outside G:ztzria,
a w arson . 7.c_oyed in the of±±Ics of t.^e ?roV :tc;al
Auditor, or
a =e_son e==Toyed bg or under the Tri t°.-ia? cr _e
Gr_e*rz=ce Settlement ?oard;
(In order. that one may appreciate the difficulties that this Board and
indeed the parties- face, in determining the me ping ard, scope -of this
lec:slation we right rote parenthetically that _ir. s. l(l) (n) , The
Crr,wn :7,11oloy es Collective Bandairin2 Act also purports to' define a
pia i c servant as . . . . .a public servant as defined srr The Public
_ t
_
Service Act . . . . ." Even 2nd although there is , on our raa f ng, not a f..
. III
zing le reference to such a person throughout the operative provisions
_- the legislation) . k-;ever, and this legislative red-herring not-
.-ti;s-aiding, s• 10)(g), W early directs our attention tc -he Public
r 1= -n Act ?r. i" mart; _'�l ar iii s, °) 'r7}]er? a Crc;an ern° _oyee" i s
as ✓el
.? :;erson 07vioyed L, the Service of the CZCW 1 or any apancy
w.s crown, iat does r.__ include an employee of ^e ri,.•d=--E_'ect ?c
__Way cc...: Qs&.... of ..rr__ `a, Cr tie Onta _O To_t.�__.d .. nc=ra4iGn .
_=— son;
As we!I , in that sane section; a civil servant and a public servant
defined in these tars:
0) "CiVA SeWtnt" Means a De_zan appointed to the semice or the
Cz awn by the Lieutenant Governor in Council on the cez L_f'. sate
of the Commission or by the CamOssion, and "W711 service" has
c) "_'_ll is ser7==" mer_a a person anvaznted under this Ac- to the
s`rice of the C:own 3;y the Lieutenant Governor in courcii, by
to a .C.oz-milssion or by a mainIs er, � ° ha
-s"public 5e �c s a
cor,espord:.-g meaning;
n t^esa definitions, i- is clear teat while a `civil servant,' and
a 'public servant purror: to delineate the methcds by which a person
apcoin ted "to the serv-1 ce o s the Crown", the phrase "Cro',an empl oyes"
is defined in more generic tarns and would, as an umbrella provision,
include both public and civil servants. Very .simply, both the civil
s=rvart and the public ser~iant and indeed others (for examapl e those
accoir.:ed by Ministries a7d Crown Agencies by minute or local authority)
e7ornced by throe tarns would, because they are employer in the service
c' the Crown, properly Le characterized as Crown Employees. ;'ore particularly, and
- -^ses o= tK;5 awe r_ , ghat is significant is that a probationary employee,
whc 7ani ,"estly is VOI oyes~ in the Service of the Crown" , would Jalso
` s
pr,c:erly be character.zed as a "Crown Employee", under T^? Puf�lic �
Ss-wi ce Act, and there are necessarily an "employee" under The Crown
EIV-syees Collective Targa• ning Act.
-hat such c conclusion must follow from the plain language
;-
--he defi n s Lions is =on f i T:ed by the fact that nowhere in the eX-
C. _,;cns del •neaced it S. 1(1) (g) of The Crow aWaye_s Goilective
Ba r='a:ni nc Act is any reference made to the probationary employee.
indeed, we are reinfor_ed in this conclusion by the specificity
and particularity with which the Legislature delineated the exclusions
which it intended to be Trade to s. 1(1.)(g). For example, in 1(1)(g)(v)
ant (vi)' the Legislature has in effect excluded, from the coverage of
the legislation only certain persons of the unclassified staff who-
wcu'd,as "persons employed in the service of the Crown" ,Other.4ise be
inclailed in the phrase Crown Employees' . The unclassified staff is €
defined in s. ?(i ) of -he Public Service Act as tieing:
.. . .. . .he part or the public service that is conposed
V pas*OCS tc h-ic7 persons are appointed by a.+
= n.istez- ander _:mss .pct. R.S.O. 1970, c.386, s.l; 1172,
c.96, s.1.
and is described more Darticularly in the Regulations under that Act,
0/;-�_a. 749, as:
}
f
5._Q) T,ne arclass_f i ed service is Ovi ded -nto t^e _oiiowinq-
- i
T. Group 1, ccnsisting of employees who are employed �
onder 02!7id_al contracts in which the terms e
e-�plou,2e::t are set out and wro are employee,
(a) ar a prod ect of a nor.-recu r_i„c lcz::c;
W) in a roe_ssior_aI or other Special
_ (c) on a temporary work assignment arranged
- by Cession in accordance with its
for vrovid-ing, temporazy help;
(d) for zwen y-fb=- hou s OI less &Uriny
a week; O--
r
_._ .-rrs_`y vacation :,eY.;:cd C_ under a
C; lei- ;'7e ed Ica tiona% ..r=OIng
2. Gro_ 2, =::s_st,nr of employees a7ojoyed nn a project
G.' a or _''ecur::-i 2g kind tra_ ;oes not reTu�re
4,-e erpisy a es to be erzploye'ti on a ful-""bale, ,,'ear round
bas-s- R.-R-0. 1370, Rog. 749, s. (1) ; 0. Reg.
38171, s.
In -short, when s. ?(I; `g)(v) and (vi) of'The 'Cro-.M'Er-foyees 'Cal I act ive
Bar�iaininy Act is read together with s. 5Q) and (2) of the Regulations
promulgated under s. :23 or The Pubrl tc Service .Act, it is apparent -that,
in enacting the for-er provision, the Legislature clearly intended to
exclude essentially all of the 'Crown Employees' in Croup 1 of' the
unclassified staff, while including those persons falling within the
second group of that c?ass. That the Legislature has taken such -
obvio:s care in draft;-ig the definition of 'employee' and in excl�;ding only
particular portions o= certain groups of "Crown Employees" who would otherwise
fall under the rubr;c of "Crown Employee" , confirms us in our vied
that in failing to similarly exclude the probationary employee, the
Legislature must have intended them to be a,,.ong the beneficiaries of this
legislation.
In additic.^. to what we believe to be the plain and
unimbigdous language c= these various statutory provisions there is
d e.ealth of artitrai 'In = the private sactcr, which confirms
tha i unless . ;^e co; .s l v e agreement clearly provides otherwise,
i
prc�ationar�l employees are properly characterized as " mJlOy°eS° 1
- and are entitled to all of the rights and benefits stipulated in the
1
aereement as enuring _a the benefit of "employees" . ?e ic�olsOn Fi?e
C.^. of Ca!:aca (1955) , 16 L.A.C. 172 (Re7;7?,) ; Re Ger;e=" Fireguard
Coro (2950) 9 P.A.C. 171 (ranzahanq . Al thouch ',4 is tr,.:e that we are
here :.onszrOnEd to erpret that word, as it ampears in he Crown
EMS Ores CoNective Fargainina Act r rather than in a collective
agreement, we believe that is a distinction wi hcut a t fer'ence.
Moreover we Al i eve that this uniform arbi tra i consensus that the word
'employee' when used without qualification (as in s. 17(2) ) must be
interpreted to incluce probationary "employees is, in light of the
detailed and particular exclusions that are se= out in s. 1(1) (g) ,
confirmatory of the conclusion that the Legisl'a—ure in bestowing
rights on 'employees' =jst similarly have intended that Probationary
employees were to be included within its tern.
This arbitral consensus has manifested itself in a wide
variety of contexts in the private sector. For example, arbitrators
have held that where t'.e agreement provides, without qualification,
that 'employees' are entitled: to grieve, Re =ec nseh P''cducts to f
Ca a-da .Ltd. (1969) , 20 L.A.C. 355 Math ri?1) , e D_*Ld= Paver Co Ltd.
(1964) , 14 .L.A.C. 405 (Lane) ; Re Fittings Ltd. (1956) 6 L.A.C. 300
(Curtis); Re Hate? Men 14101tal (1955) 5 L.A.C. 2091
(Har rana/; 't
o
certain procedural C.,-tara to eS, Re C. Z.P. COnta;�er s Ltd. (1973),), 2 L_A
_C,
(2c) 308 (H. D. 3=WV Y to sick pay; Re Eoroczc:: Of Nor-- fork (2968)
19 Z.A.C. 405 (WAS ; to cost of living allowances; Re yde spring
2:! (Canna) r- (1972j , 24 L.A.C. 246 (Weller) ; e Nat.iona?
I
" "Au=a ?7'd.iatC M' c. Co. (1967)" 18 L.A.C. 326 (Retie,); to statutOC"y
ho i day pay, Re R.ias.'-a_-d :fa-son Co. (1958) , 8 L.A.C. 293 (Harrahan)
Re :Ve"er Co. std (1932) 1 L.A.C. _1 4 (Lard : and to hospital
and. mied.i ca l gene c i ts, =? 31ackstor_e Industrial (1969) ,
1'„�i ._.�. _ (.err.:v.. r 7� Cam_^.�r�7 C�•^�. C.7— '_iiu), C L.r.C.
that ":robat—Icnary employees" %-iere includ4d within the
�_^1Tls
Of "c- ol10yee" Ord 4I`rE, aCCUrdil1C?y, entitled to the benefits.
cascri °d. %-'.creo,ier . ::d perhaps mmore polgr;nt`.y, given the employer' s
initial argu--ent to th:'s Board, arbttrators ha-..,e also consistently held
that where the bargain— ng unit is defined as all "employees" , even where
it also provides for c,rtain classifications of employees, it must be
interpretatad as embracing probationary "employees" as well . Re
Yat_or?? Auto Padiata, 2!' Co. (1967) , 18 r.A.C. 328' (Palmer) Re Weiler
Co_ Ltd. (19321 , 3 L.A.C. 1184 (Lange 'Re 3ozouch of,1 Vorth York
(2968) , 19 L.A.C. 405 ie47e,-) . This basic principle, t;lat unless.
other,4ise specifically stated a probationary employee" is an "employee"
o. the company,has been articulated by one board in this way:
P_obatio na y employees are in fact -PIoyees of
t.e cora .y at i t; Landon plant, and t e ;aMD10yeeSi in
cuestion do rot cis aith*_•n any of the excepted catagozies.
C1aar27ry tCoy cc=e aiaL-La the Zazga=ring =it, and t1:_-
e
u-n ion reprase.nt-i -Ze • with OL a!' erzy oyeas, for
a=1 ;:<aC, -;ax pU .CSeS �Ur. Rant to the 1eboL'?' Pela-
Act, R.S.O. 1960, c.202. WPether or not prol;�,--ticrers are
effecter' by the =_,'on security pratli signs, a_t.6 of the
coi2ecti:'e agree=ez:t, is rot a mattes which it is necesSazy
for me to deCide. There w•ou?d appear to e :zo reason why
probationers sh.cuId not be entitxed gene --11y to the ..
1,sefi is of the c:1lec::i7e acreement. .Zrreed, it is
a^==tted t_kau would be entitled to uresent C-rie-rarces
r.?ati^c to sore titters; if, for example, ±t was alleged
�..at a _ ,o at�c:e_ Was not receiving tre Wage
r,tn, ".`ere car_ no doubt that a grievance over s.,ch a
'_ ze pzope,. ?'r_is. rir o� nrob?_;onarry
e:np oyeras, comLng ithi.n a barsa?_._:!g un-it, :as been
,. L*-.?versa, _ recognized in the rerarL-ed a.r t_a ti,on
e the matter has been rased. T-21S, in
Re U.S.W. , Zcca7 6497, and ^z e Co". o3
Car'ada (7963) , 16 L.A.C. 777 ��) , it was ^Q7d
�-�>;s__ by a board of ar-bite-;cn of _ch His
Re'Jr477- Was Cha,'=c^ �.�c�t J,Cbct?aI2�T�
-Ot
Cal 7 J yp.{d.7_C_4C
Sej•-J;Ce L L'7C!.= EOCa17 210,
:�Ot27 C;Q$?�t?1 17QJ�� , JJ 1.r.4. C'JQ_, it ..
aS absence O_ a r_ _ _ 3y 4.. _ e
to gzieve, and r.0 .^.a:: .'re
Z:ade 77 S _''eSaDeCt 2;--i—Wee:t a LTG t?Cs^ �j
e 7p7Cye_ a=,-; one with seniority.
?e ?'e:--tee: Procac�s of
Canada Lid 96'9) , 29 L.A.C.
35.x, 330 -
In short then, there being simply no ref=erence ir, 'The 'Crcwn Emuloyees
Col 1eCtiye Berint,.c ==t that the Legislature intended to exclude probationary
eFROioyees fr^n the sccce of it ter-ins and,giVE'3 t}'ie overghelming arbitral cOnsenS-
us that unless other'!1-, _? indicated the term 'emiployee I mu s t,, be given its ordinary,
and ccrTOnly enders yoc--'; reaning, which would include probationary
employees, we must conclude that such persons are properly characterized
as "employees" , do facie fall. - w1 thin the meaning o= S. 1(1)(;) of
the Act and accordi r;l,., are entitled to the Sere=its bestowed therein.
Having come to that ccrclusion, it remains for the Board to determine :
whether there are any -valid and existing provisicns which would alter
this other'r415c clear ri-anifeSt-ation of legislative intention.
in essence , the employer's argur,en- raised ti.,o different
sources which it cTa i,,.ed refuted the assertion that probationary
e,m;ployees were entitle_ to claim the rights es-abl ished by s. 17(2) .
Hcwaver it is import-art to recognize that this aspect of the employer' s
- _ ' •"�:st i s i t� Ict ^ro.m its initial u , =;,:. the probationary
I
13. }
- - cad not pron-erly be C"=.r?cterized as -'employees' . Rattle'", 'and to -
f_ the contrary, this arg--ment postulates that even if t. persons
ma•. properly v be characterized zed as 'employees' within the P ni
_ p _ .. ., a ng cr
ss . i 7(2) ar.d 1{?) (g) , "ever h?l ess their ri gh Cs to cIt ai... the benefits
de; ;ribed t -vrsin hav= expressly and unequivocally been zircumsc:^iilea
Mr. Sro'lln, In his ?rgc;=�7-, re err-2d
:h- S ?oard =: rst3y to crrc e;fferert statutory enactments-
atutory . and secondly
to �h� collect ve acre =nt itself as evincing a clear ;mention
cy he Legis'a ura on _r,e one nand and by the parties the othar,
talc even i-2 r)roatior.e"S were 'o be charact�riz?d as e!-�loyees,
they
were no, intended to be the beneficiaries or the rights specified
in Section 17(2) . respect to the forger ,'1r. Brown referred this
Board to several provisions in The Public Service-Act and-The'In`ercretation
A.ct which he claimed supported this assertion. Speci;ic?lly he referred
th i s ?oard to the fol l--wing sections i n The Flubl- c Servi ca ;Act (Supra} ;
6.-- (?1 When a vacancy exists. in the classified s2=vice, =he deput y
,7-1: aster of t.a ran s'F ,'n which ti:? �I�.C�I=CJ E'x-, SP?�.? I:ormin2te
in writing f,or tt:e list of eligibles of the Corn*'ssio^ a person to
f=__ t.e ,r.
Y
.12) The CcLl'"".zssiar•: -ra11 appoint the person nominated under sub-
sea<_cn 1 to a psi mac- on the probationa.xy staff of t a classified
sa :' Ys for :.OL. rx�re ��n ore year at a time. Q.S.O. ?97:, c.386,
S-6; 1972, c.1, s.2.
9. A person Lo Is r_ �o;rted to a position Ln t'e pcz;;l_c seTeica
for a specif_ec Fer_od ceases to be a public servant at _,,e ex-
tion of peTc_. R.5.0. 1970, c.386,s.9.
22.-(3) A d?cuty rsiris tar r, y for cause dis:rc`ss =Torn �^_ Ogm.e*:t
n. =ccoxd�ncs :ait^ _^a ,eyu?atians any public servant h_='s
tzY.
22.- (3) A deputy .^;seer r-,--y release fxon� e.*rp?oyment =7 public
dt:_r_.-:g 11-1-e rxsc ye?= of s employment- for fa_? to
-;e re-- • ;w�e:zas ;L L5 past�"on. R.S.O. 1970, c.3-6, s.22;
?nc =e ir, the r,egU13t10TiS pro ulgated :r�er that Act
14.
g; T
46
(a) "DoaTd" re?ns __e Public Servic-- Gr.:evanca BcarC'
r
`I.j "di---"5s" ; ea'z to a oe sor ezni c?cI==Z?
for ca----s9 n_dex subsection 3 or secticn 22 of _ e pct,
and :as a corrAspordirg
of 219 ,- -
e Act, -,iAars a _son Who _s
7e-rsrn Who has a to -cam
on ._s per?__ -I re5 ect the grie1anc°;
(r1 .�� J
(a) "grievance" 7.°ms a compTa=,7t 7--ad4 __ vr", L ir:g
rTiSTt;SS?? 1Cir'r�n.- ^ond-", ex -
(w) iruaa:,J a pp ex Son who has a Y=i a Vance. R.R.O.
197G, peg. 749, s.46; O. Reg. 156174, 5.2.
49.-(IU 50 tc 54 Coro tding.- for a right to a hearing
before the Pu- ' is Service Grievance 3oar�-] app, to persons
w?o are °7:_?--ye'f ;12 t:.—e pub i c ser'Tice TundW r *ne jr--:.sd ';` ?on of a
de :zt-", z-,inizte aP_'d :-Tie been so emp dyed Gorlt nucrus-Z ;GY at
Ie}s t the orecei:rg —%-*-e3ve
r
Finally and to compl e.e this aspect of his argument ter. "rown rude
refer_nce to t"-- rollc•Ang sections of--Tne interpretation Act (supra):
21. Autr.;4 tj;' to t=ea i f euten.ant Go vezmor to I":a{e arl apco1^t«ei?t to an
office, L-9 '3r ot;'e=visa, shall be deemed a?'tti—c-r ty to appoint
dt��n� areas r�. n.S.o. 2960, c.19I,s.21.
27. (1) words ali t;.o ri��.y the appointment of a _ubl c c. .-i ce, or
f'::.w'ola2y, or CZ d=_C:` , include the rower or rezroV?::G reavoa_nt-
i• Lim, oz z_=ate t_..c arzot::ezr in his stead ax to act his stead,
frc--3 }ire to tiL,e in t=e discretion of the auti,ority the Power
of ap_oint7ent is vested;.
In assess-ng whether any or all of these 1?g'slative
prc rno1jncemer,is purport- or have the effect of 1 ini ti ng the rights
des:.r; ed in s. 17(2) cf The Crown Em lc ees Collective Farcainin Act,
r.ot" � ?� �Jtsct� that the latter TcC2 G- i =g�Sldk. tray
°' ��` s , ny c- the other prov, ;;ns des:. wave. Cn
i
i
that basis alone we lei ieve it can cogently be argued that whatever -
Y•
limitations .lay rava _:?lied or have been placed upon a probationary
t
em; l oyee's right to Val Ienge his termination prior to the enactment
of , he Crown _moloyees Cclle ti t'e 6araainino Act, that Act clearly
pry .i yes, as lescr', ..ed earlier, that probationers. are entitled as
_:. the rf;nvs spec i f0d in _s.17(2) MoreoveAr, The
intereretat i on =,c` itself suggests such a conclusion when it
i.- ;'1} T' e _ o visions _._ '..h._-s r-Gt apply to e'le_y Act Of ---a
LaNslatUTS _nnsai ad �_ these W'P'_W statutes Cr :eras_ _ez
passe, erce t in so =M" as any such provision,
!a} is inconsistent i h he intent or obJect of t e ::ctj or
t13 would g4ve to a acrd, expression or provision of the Act
aI: i.?c°S�ret*�T^s I _'i?!"JP.SY54ent w'.tLI the C^.Tlte ; of
'o} i5 On the Act esC arsd not applicable t:eTeto
and that
N
10. Wery W! stall le: Memad to 3'e ?Cr dQ2, woetlxer its i=_,E'diate
pu':--.r�z't is t_ Erect w.:a doing of anything t!.at t o Leg?s_'atuxe
de°_s to L-e 276r t1:e y:3I�I1c good o= to prevent or 7i:71.'..sh t.--,e doing
of any thing at it deems to be contrary to t±e public good, and
sha_l acco di_:gly we_07P such fair, large and 1i eral ccnstxuction
'y tez r 'mo o as .... ]� a the t -i c r - -a
ar:c _ .. _p_a. r. :.� � st ensu_re �r ate.-... .�� r.� o� t.�.. object
Of _.,e Act accor(iinc 4c Its z=e intent, rearing and spir•_t. R.S.O.
In short while it is ti'-,,e that ss. 6 and 22 of The Publtc Service Act
and ss. 21 and 27 of he Interpretation Act purport to give the Civil
Sere,ice Co mission or t:;e Deputy Minister the auvnority to appoint
and to remove from,, e::plz; ��ert such persons as probationary employees,
nevertheless, as set out in s.1 of The Interpretation Act, those
Powers must r,:w be rea' subJect to s.17(2) of the Crown Employees
CqUective $araakir;, Act which, by its plain terms, allm those
Der to challenge Oy prpprie y of their appra Sal , Vi _missal or
i
sus;erasion before this Board. Indeed it 'is clear from s.22(3) of �
The Public- Service Act itself that the discretion described- in s 27(1 )
of 71re nt..rcr_taL7.,n .-. t is neither ahsal;if.e nor urlf..L4..red. Rather, f
and aursuant to s. 1(a) of The -Interpretation :ct, it is clear that the
d i s-i ssal of any em lo, °e, whether on the re5C ar or- probationary staff,
whether r`^.,y he is in the bargaining unit , ay only to effected
Or "cause". Similarly :..hen, following the er= t7enet of The Crown
FmY Rees Collective Fargaining Act, it is equally apparent that a
gr evagce by _ 'probatf:nary' 'employee' under s. 17(2) in which it
is alleged t„a t he has teen dismissed without "just cause” or that
an appraisal 'Which finds that he has failed " -meet the requirements
of his position" was made "contrary to governing principles and
s tar:-lards" may properly be brought before this Board regardless of
the language of s. 27(13 of The Interpretatior~ Act
Moreover although it may be true, by 'virtue of s. 9 of
The Pudic Service Act that a "public servant" who is appointed for a
specific period may cease to be such at the expiration of that period,
it is manifest on the facts before this Board that the employer did
not ,nvoke this provision at the time it effected the termination of
Ms. Boyce. To the contrary on the stipulated :acts before us it is
clear that the employer purported to effect a 'release' of GIs. Joyce
under s. 22(S) of the Act some five days prior to the expiration of
her probationary period, moreover if, although we do not have any
Spec"T i c evidence before ore us on this matter, Ms. tioyce -eare appointed ,
` f
to per positic n in the service of the Croem by a certificate of
the 707mi ssic^, or was n thered se tr°ated as a'c i v it servant' under
i
f � �
- : s. !(?) of. tr= Qt, it is arguable that s.9 having reference by .its plain
terms to persons erpic_ in the "public service" would simply have no
cr�:e or ef-zc4 with r_sTect to her clam that she was i-. ,properly, ter-
untar s.22Q: of he Azz, ra Y;ier than M , hens it fol ws, as we
have earlier State' ha=.
-n the rrrr= . t aro it 4 ap^3 r?n t :S:I J:_ p perhaps
i e'-" eam 0--pl yees who i_ave mor= or ess. . an one
year's vrp2c_7ent :✓0.. =es e t to their anD o!Ci-err SE""_l'r �� $s.22(3)
and 22(5) of 72e PUMS Cer7ZCe ACS the se ves do not C?z—=sCw1:}e
tie right of el tier group or enplcy es to bring tAniz
je ore Ve Gr=e?Ia_ ci Se:t_°"aTr Ecard. That ?s, while rt is true
that an el plcyee With more Lion one yea_'•is Set zice' imay only -be
dlx.^stied pursuant to s.2e(3J of the Act while an employee with
Tess 4..".4-xn one years $_T2ce 'may Ze presumably terrIna=ed under'
.
eider s.22(3) or s.22!5) , Vere is nothing on t e Lace of those
too sectio:.s :Jr,_c: woul C negate the statutory-rights which 2 are
Nestswed on erployees s.17(2) of-The X201, Go?=ect_Ve
Wr"a' •na AC_ Although it is true that under s.22(5) -A e de uty
nzi: stzz Lay te_,mi-:a e s.:_° sez7Wvs of the persor5 C°SCr_ `?d therein
any _p2. ant rawaod fox "tie regulations" that are =entioned
in s.22(3) ,n: Jrere i^ S.22(5) is it suggested -:a:t he ray reT2a3 a such
erSOP_ without reYar:! for and other rights, including t;:ose specified
in s.17(2) G_ Tie Cr NT: .:•7?C.0 O Collective :?arga;r_it_c Act which
are possessed Ly such farso..s. Qu is apart Xam Se operative and
subs .anti7e s=a:da ds =tar are o be applied L::der these two sections,
the only IJraciica7 CIs"n&=.,.n between being ndiszissed" nda_'• s.22(3)
and .'3'-°_nF "release" [`_°:der 6.22(5) is that in tie form or crrc7. m Lance
I
an employee ::suld 'he en si__°ed to the procedural protectt.o_'_s offered
it ss.31 and 49 of tie _egw7ations under that Act.
Re Eriksen 12/75 G.S.S. (pp, }2-13) .
As wel l in that same decision, -when argument was, as in
this case, addressed tc this 3oard as to the meaning and effect of
Ss. -'.5 and 49 g-" the Regulations promulgated under s.29 of The Public
z
Seel-ce Act, we respcndad and would now of f i rm. tha t:
--insideYaticz: of t::e ._.att'e; we can not
s?.Eso_he t_^ -_e sfnisnop,s contention for at least two reascns.
--e K sr VIEW, an= _ernes s noTa r='-ding O!
._ of F'_'= ?? - - � °__S that the 7?P.1S r?'�S = '_ ' OtafrCI
».. i:: _.. .. •?.... -�_...� sue . T?-54 of L_°
Myer Tie Public Se=i=^'S e'C t r Merely describe he ri _t ^f pertain {
�_Nl have %J°_en dismissed unjustly, to ,.^ave the _ I-
9'r-
'evances finalQ;' by the "Board". As noted earlier
_
.
that -Board" as MOM in s,46 o f the regulations, is the public �
service Grinvance scarf, Ming tie tribunal w mac^ %+TG's Sum erSeded i
ag oi1..'.' c'vn. Very 5- -.r ss.49-54 of the rag-z-T. __ons :-= e no
ra-e'_°e.nce an cam- have no a:plication to- t.':e C-s = ed ill '
C�
s._7(2) or The Collective far ? 1'0 Act. :':OSe
sect-ions bei_.7y ?_'=e_._. a-L tc t_^"e Jvrizdic.]icn C= tie new grievance
se=..;°_=snt soazd, 7.7eze Oeii:; no _egulat_cas yet Ircs2l,ted
and S.?°.3(a. M _d Act , it necessarily &__ :'JS et an
_o ee's =ts undEr s.27 :2; ...^a-'n aksoln=e and ante - rail
gai s: the c==ar a .:a =1 ,l_ze rights L$M wec hy the segislatuxe
in S.17(2) o.= The Www— =�?_'T_✓yaas Collect ve 7a . - Act
c - _ r
(W:-c:: Cou?f. well, nad e L-3g .s. dture a0 in.t -_ems?, :ave -een
Ma a S=Aject to TAO 701221 erw&e or any ==er sta_. c
enactments) we axe of-I that the delineat_. , of Ceres:2n
rights for cne gr^T _ cf e_i_.rS2rJiyee5 in Ss.49--54 Or We _ag-rlatlons,
SI:c'IZld e Co.s r�ed =c --.pan that all otter g c,__s are =o be denied
s-MMar rights. Toe suggestion gestio'! that every employee who has Tess
than one y ear Cr employment in t.:e ^i:r_ic sei Tice LaS
no _ight.s to chal-a=-e or ag peal his severance Nom tie public
serAce is 40 t.^_=s 30az: quite offensive,ensive, a t C dds w t^ o--:z System
of jurisprudence and r e wOrIng the clearesty, langwage =3 support it-
At tie Very least, and :.'ithcut intending to restrict Cur interJreNtion
of S.49 to t^is fir=, it Would see:t to this 3o?n, t<?t y its terns
s.49 As applicat;Cr c: 7,' to t:.-e "dis'-UaSal" of Q 1e Crou'c of employees
and is simply silent cn and irrelevant to the rights of other groups of
employees to gziewe _heir "release" under s.22(5) . So canq trueCa, the
fact that s.22(5) Wes not require the deputy iniStar to release "in
accar ar_Ce t t e rs_ lot ions" ws simply a of t:=A fact
t2-at, Owe are no se aZat ns W1ch dictate tie _rocedure iy shch a
deputy ri °?ste_ G_StreleaSe
such persons. At tie r=S{ of 'repet2t±01n,
it ,could seen to this Board that one cannot cor_c Buda _nor7 tae mere
fact tLat there are no ze'T.ilat.'-ons describ?rg tie -,nor .-er in w-hic
suc h ern"Oyees are to released, that such peTso r :avv tiereby
.+^..Yen de:*'?ed their S=..at=tcr'y right to have the yrievanc s finally
resolved by this 3oa_7d_
There iS, 1CWe7e,, a second and in score Senses a much
lore Compelling reason -why t:a S Boa-z'd could rot Five e=fEct to
Ss.49 0 of the re uje=ic s passed under The Public SerTrCe M-ct
even if by t :?'.r =e'--S to^wV %'id refer to the Orievaz2ce Settle.uarzt
Board, and even if .: ey Could be construed So as to deny to all
persons Atzl less than can year of continuous employment the rights
Oat are dTescriied thei-?-... put at its Simplest, it zs a f_ndau:ental
and USic propos t2cm cf su'r coiiran law that ?'2 a de_ cootie State,
suc^ su-bordinate lec'o=atlon as -by-laws and re-,-ulat-o':s are prim
fa Cie ultra vire-5 'f�t_tey ar° inconsistent with or derogate from
F
either the subsy— ie provisions of the statute by Which the power
to enact suc.7 r° `" 7a- =S -'s ccr e7'red or indeed if t.'.e_y confect
and subvert S'vT^3ta*:r_. � �rOTzts-fo ?s of any 0 the,7 sta.t°uta* (Sae s.
A. Dr-ewger 'Isu crd__a=e Legislation" (7960) 38 Can. Ear Rev. 1,
Ig'
:eed not concern oursel e"s -wi tt woo .,estiori - _
o= ^« er s.5.49-5:' of t^e xegulations go beyond t_e _o::eYV conferred
t
_.. s. 29 or T."° Pub!"- - Act, it is nano_' -°st t a t -- %V° re r? t i
40
a-..__-° to and adoot _.,e e-in oyez+s contention, t.^.at t-se re=lations
roe :;e I*n direct co°f?ict with the statuto-u .;ghts 3astowed on
.aaS DU S.17(2) cf R'^a Crown Employees . arTa_.i ir_g Act.
To _-2 extent s:1.^. ons sought to abrog?ta t^_
rort=erre�' u
s.-'7(2) of n;f,e
?JSSnce OS
or t
y=sla LL n, t!-a card—is Cr e Vie:
S Ultra J.res and or ra 7a1.'G_C- . PP
e (236,`} & E 906, 921 per Crompnor. J. ---. •r s,;:an
a.?. 20E, 211 her Han1_e7' Tr. lz t e
-es--7-7 -z C ° i5
^G ? EY^_?J2y 7°d ruC.i tC the OT°rI_-`'^y G )SOZL to'scC ssar=
:-Stowed
ugcn e- loyees ge ezal y to OZ"=,,^C t2-_'e;- � 4e7ar:ces
.�_ r es_ect- to ratters ;e?ineated in s.17(2) esors _.._s _oard,
air°Ctl y W;;-e!: t-a rO 1.5 no Opera 'Ve and Valid ri e'lance
_rcce�:_re existi;c in A Collective agreement cr In the _=g zilations,
Cr _--sL'ant. to Such '74;?.^t^ DrOC°CcLIr2S••?.$• c3_'$•�3Z existence. In
Casa Iinwerez, s.17(2) of 'The C?cvr. cmv2o*yees C:i.`IeC4;T7e
^.G Act iiZ Sal !�° take--, to allow employees, inclu1-::g employees
^e f--'=s-L- year C_ t,^,°??' employ-,.ent, to brJn5r 1'e C_? th s
-C2ra any gr=eVaz:ce wi h respect to t1he mattes 5.17(2)
zcz z_;al and airdi ad ud cation.
Re- Er4.'.{san (supra) (pp.;4-27)
Our conclusion that none of the legisla4ive provisions
s
or re_ulatorJ instruments rek'erred to a+fect an emplcyEe's rights
to `i l e a grievance wi t-h respect to any oT the matters re f erred to
in =. 17(2) can be tested and confirmea by a sim.ple hypot,etic;al
E'C_:stration. In s.27(2) or The Crown Erolozees Collective
Sarca':ninq Act the Legislature has provided that: .
27.-(-i n! ?^:p7oyar C any Person act_ng or, bel:42 of =<_e employer
(al :efuse to enn ry or to continue to employ or c_scri�*�rate
against a pe zsCn with regard to emploumert or a::u t__-=
or condition- Cr emmloyment cause the person --sl exer-
c2sing anu antler this Act- or is, or is rct a :T.°__iZCBr
of an amnioyee orcanization;
such a provision , if the employer ' s
and if a release or terminat cr: cculd be
20
7 tired under ��r=� c'= `^° Pliblic Service Act cr f the discretion
t __-.cri_wd in s. 2r '_-) In'terpretation Act were -bsolute and could
exercised 'rli ^but .c-rc subject to challenge by' 'rr,y of a grievance
rrc`r Lien I1. 'Mould aisc fcl 14;r
t
C, _ .1i 7-1 or a re' e=s= = r _ was in fact a vlplau �^ s.27(�) o� the 9
Sri ceU Dy the 7 s,-ch an
t;Otl `=s"i an im.-proper and unr=. sc-ab? n r: r Q 4T
t._riace bc_' n i :r-w rMl ogees CO t l 2c' . v_ 1a r,—'r; rlr Act
^:^ �JDI i C ='"i' C is l;:ade Cl Gwr by 5. _^2 i 'Ter =.rl
�e 1
by till tc -,a 'IXt .r C SE rVi C—_.. LatCIJr . =I aril n T f banal
s but;orizea' tc inouir: - to al l egat ions that an '.Ie7ployee" has been
_�-- I nG Lpd contrary Yo _ .%: of the Act. Flo lever, orce it i 5 ccrceded
- _ a probatior,ry cr, any other "employee" may coal l tinge a release
arter x.22(5) or a uisr,s=a1 under s.22(3) of T%.- Duolic Service Act
be=ore the Ontario Puhl :c Service Labour Relations Tribunal cni,the
grounds that his or Y:er r' Yhts under s .27(2) of the Act have been
violated, it necessarily =cllows that that sane "e ployee" ray
S.-milady claim before h=s 3oard under s.17(2) o; _.te Act, either that
e .e'-mi na ti on was C`5."'i 55a1 "without just c_:use" or alternatively
c::at his or her rele>;a T rr ;ailing to Meet the ". ecuireman s o-,:-' his or her
PCs itiCn" was t .? rei SU1 an appraisal that o;fenCed "the governing
'lri'Rci -J1¢s and .. .w r,I4:V-
Simi l arl y _7,d by gray of further exa:rpl e, just as an employee
;h L challenge c dECi s c- e=r"zcted under The Public Service Act or The
�r-erc'retati4n -c-, _s :r, .`act offending the provis4ions of s .27(2) of
r� Cr-',rn °arQainin f Act, a ;src,�atiCnary "employee"
..,- also c . _ a ' release or ..r,� c or
Of lc� ; _ , - �n '?Ct a
11
I(]ca z i s, i t i.. ..- ^pen to he employer
21.
to usurp the urisdic_ion of this Board by uniiataraly characterizing
its decision -as a ter -nation which is other than a dismissal , if in �€€
tact that was the actcai basis for the employer's action. To the contrary,
as this Board has ear _ er stated it is ultimately for this Board to
determine the actual tasis for and the validity c," the E�.r-,oloyer's
characterized its chn actions, Thus as we have _artier stated ir. our
Re irfrsen
7_12a t is' =.Z,4 well ^e, a l though :•/a reed of niti,/el y
Acile t..,.5 -aS:._ in the case sefore CIS, that the t.+io .._. _ 0135 were
mended to a_,I-_7y to C";t8 C_Stz7?es s2tS of Cjy= :S:ar_ns and that
&� f axed-: st?`:cLrSs .-'a- z=7=ew would be a' prcor-?t e for eac!2. For
eXa=nle, it nay be t2-a= c°r-' ain Conduct engaged _n y an employee
duXi,.g his fi st :, near empio�rment ra ght meth his ".release" bur
:'ot Zi s "disz:_.ssa7 Fir '''?'Bair while other behavlo:'... 1'41 lit justify
his 'lisazSssal :but P..^. h's Oe72ase". Zndeed in Carta:. Instances
it ;ght Ge ^.ZW an c _ =Cyee's conduct would merit e?':e'_" is
rel_?se or r_s dis—ssa?. To illustrate the possible distinctions.
betwesn these too s2 W ons, if an imployee had less tian one yearns
sew r_ce and iy rove cf such failings or deficiencies as involuntary
incompetence or ir.capac_ty, (whether physical or =entall was unable
` to _-eet the _e �?re=en s of his position and he ru'g:2t prc;erly �
released under s.22(5) . By -way of contrast such 27e,;7,-_r'ou= of an
Jl'JC i <' terry C .Z_''acI'er, -might not suppo?'t a d?scipli'azy C?S,?.;ssal
under s.22(3) . Slmi_'ar_'y, alt?ouyi: it has been held Vat an enployer
lay not diszols,s an e._p-cyee woo is unable to perform all of the tasks
asscciared arc^ his jo_ '.L u.A.w. LOCAL 35 'arid L=:^h%, uc:TAi1Z &
.rr..i3-u of Car:-2a Lt d.) (;-97 2) , 23 L.A.C. 257 Painer) ; RE U.1.W. & De
:ia=r_ lard Ai _nary c_ Canada Ltd. (1964) 15 L.A.C. 284 (iassin) ,
SL'C C;otlndS U�in :E groper CiyCTSreLStZTIGeS, s Jp=O?"t =hip N7 r- ease"
of G.. employYe under s. 22(5) . Conversely certa_n acts of n sconduct,
while meriting severe d-scip_irary sanctions and y eAspS eie n dischar;E'
+L?gTt not supsC,t for .reasons ah_cz we eleborate
on later in 'rh_'s award, that the employee failed to inset she requi e-
-rer._.; of his job. (See for-a more thorough discussion distinguishing
tet',i=en "release" for .f_Comnet_°nce and a "disrn ssal" for culpable
Miscanduct I= t.'^e FeGa:7-al P,_,bl=c Service, Pe PC 2=CSC? 166-2-454) . t
TV purposes of this a;,rd, it is sufficient for this 'card to note
that ult mately it is for Ws Board to determine aI_'Qt-er in fact,
ar.d _e7ardless of tie c='ployer's characterization of Vi=e tar"i nation,
the _ i e yor was "dam smY..=.7 e".i" or "released". If as we suggested
s. 22(3) and s.22(5) pertain not only to different gro-ps of employees,
.put as well ....=a an „_s_sicr_ refer to substantially d'-fe�:'e^t grounds
i J
. 1
ac� te--minz_iorn ;n J*Z the stanQards 10 Q° applied under~ -
V� IOP.
are Q, fac'-- Syen necessarily it is WIS Mari WA,::-,Ch must Ul t oma t ly
deneSmine whothez the gz=evor or the ez,,Lployer is cc-rx-e t 1,7 their
a zactew a �c:z o �-`a to r.. Support � ` to
- c-: _ z.,. _ � at.or.. �� cu= auta.ar�.�y
al__.rztely -'-LT-cn of the a love sections actwal _ motivated the
arployee's 74u ag i$1 be found in tie fad=_''y! pub1ic serTice
adjuc`ear.._'s asserted and t;ze Cou ia-ve rr.=__'med the
Z. ...sdicticn of the wbi=ra for to make such a deter-:- -G'-'. Re R
165-2-2523, __-__... 102-2--37. -
jerKre - inistions aId (1973; Z.V 765. Ao -c<eph A.
C:Drdingly , =, as 1 s 30ard has had occasion ;o cor._i . ar in the past,
an Smploywe nE--t teen _7-.D�,6yed "ilk the service of the .r`'rin" on the
s nclassl f ice staff r' or to his or her appo i n t,,.en T tc. t,'"_ "probationary
staff of the Classified service" , or if as s. 6(7) of Ne Public Service
Act Clearly cont`:rp a tas, an employee were reappointed to the
probationary staff at the conclusion of his or her first year of service
on the classified staff, it would no longer be ooen nr the employer
to argue that such a person had been "released" under s.2215) of the-
Act after their first year of employment, regardless of the fact that
such a period might fall due prior to the conclusion of :heir .
"probationary year". Aear'y then, In Such C?rc=st?r.CaS an employe e,
whether on the regular or probationary staff, would have the
right to challenge such a release and necessarily this Scard mould have
the cdrrelat ve ailthorlty to characterize the employer's actions as a
dismissal under s.22(,-:) of the Act.
in short _7.en to admit that the provisions of The
Intiraretaticn ACT. an The Public Service Act referred to by the
emVoyer are neither acsolute nor paramount, tut to tr.e contrary midst
be read sub;ecv to =_r.c as subsumed Under certain rights or employees
..s Vey are Enshrirej 0 For example x.27(2) of 7 e V n Emolovees
i ve En -:117V:. - is we te' i eve to ar _ "r^ that
23. ;
=-' must also Le rea_ in light of .those other rights t-:at are set
out in s. I7(2) of the same legislation. Very simply and just as the
Mloyer's rights as they are set out in ss . 22(3) and 22 (6) of The
?u - is ServKe Act and s .21 and 27(i ) of The :nterpretation Act
are fettered oy such ;revisions of The Crown F=7oyees ` 7lective
0c 4 :t as s. 27 '2; , so too any dismiss_ . J _ : _ ntionary
" _ . .ues" Oat was affected without "just cam" cr -& Ease that
was the result of an aura isal which oe i enda! 'the go ing
;r' -.c pl es and standar_s" woul d,as a result of s . 17(2) W beyond the
p47 _. Accordingly and in either case, it rust necass=. i-y Follow that
an employee whether he was on the probationary or regular staff, could
prccerly file a grievance with respect to such terminations to have
the .,utter reviewad :;y this Board.
`he seccnd limitation adverted to by the Emp-:oyes, which
it claimed denied a probationary employee the right to invoke his or
her r hLs urd,er s.!T(2) of the Act, is found in article 34.6.1 of
the collect :e agreement which followed an a•„ar, of a hcard,f
arb .rkion chaired by Mr. H. Q. Orow!4 and which was signed by the
peri ,es on March 12, 1376 and ;jade retroactive to January 28, 1976.
ha- article prove des
.:y p=:Eticnarg emplaVes who is .._missed Z--
released shall not be ent?t?ed tr, file a :
in determining the effect to be given to s: cn a provision,
4t =, we believe, ; pertant to recognize at Ve outset that The Crown
Yves Collective = "NaininQ Act departs fr m she traditional model
latclur rely isn; Ng' slaticn Ccmmonly p vailir; 0 the pri`jate
- _ - - r Tha - is oz .. _ in sharp c ntrast i• itt O us:_ i __tour Relations
Acts by which indl i _._ i rights are made subject to he interests Of
e collect.°:sty, in's . ?7(2) of this leghl'st .or. one WE a clear and
unequivocal recognitic: of certain basic rights .ihich en::re specifically
to he individual . :yee. (.Reference might usef Tly made for
an snalyticG defence :.f such a provision to a s;ries c articles
,:rl =-.en by 7-:1as'4r T which are fno7t K 74 Yorker and
,.^.re_ Phas2s of Mich L.'rev . _- '"Legal ?rotection
ant Critical 30 interests" . . . . ,23 Rutgers L;ev , 3 and in"Employee .
rig 0s, Collective __;''_-'.ning and our Fut;ire _al..r ?rUem" , 25 Labour
L.j . 01 The point _ and regardless cf its ,er i ts , the Legislature
has seen fit to 5estow upon its employees certain
fundamental rights quite apart from and independent of any other rights
secured on their behalf by their bargaining representative. As the
section quite explicitly states the right to grieve the utters
described in paragraphs (a) to (c) is "irr adc;tiorr Lc" any, other
rights of grievance that these employees may have secured under a
collective agreement. Succinctly those rights are personalized
to the individual 'eMpl oyee' . Indeed when reference is made to
ss.017M and 18 of the Crlo,?m Emoloyees, Collect 'Je Bargaining Act
it h?comes apparent that if, as it must have, the Legislature intended
to create a right o f grievance with respect to the matters delineated
.in s . I7(2) , it would of necessity have had to =ersanaliza them
ratter than to bestow them upon their bargaining representative.
i
r
25,
-That -is, .i t i s^ attar n- those -sect10ns ha.+-,, while tled~ Co
negotiate pr ce_`ures ��pl ;ceble to the processing or crievances, the i
parties, (bEirg t^a F7
= : and the union ) are s:pecirically prohibited
frc im necotia--ling. a; c__ such matters as di sci p1 :ne, di si;�'. s sa r and ap
�ra , sal . '1� _�s , . i ���a w5 S. '�� ' f :iiuf_S -2
collective =Y__., ar-, _ ter se�tlad, sima --u1d nc- :-:.iraort to
inc� sce 'ii th, n ;t_ wr—.. an prov;s ion .chic` tc�°cues u- or. and is
rei d 4o t:os= ..___ ,- :c .-iiatters . It also Fol :riz ther_. cre and . indeed expi ins
`riff, when th` L2c- s1 :L'-rn mended to bastow t".�. rich t^ grieve on the
,at=ers desc 'i�,ad i n s . 17;a) (b) and (c) that 'soul d ha-.,e had to make
them "i in add' c:on 'C-o" ri C'nts under a collective agreem=_n t- and as well
Would haV2 had M persCna iZe them to the lemp'oyeel . I- is in that
context then Ithat one .--::s: assess the parties a tempt, by s.30. 6:1 of
their agreement to nullify certain of the rights set out in s.17 (2) for
a -certain se_mult of t `2 'ernployee' complement, In pcsing the issue in
F
such a manner, we ;ni:'n_ add, although the union suggested otherwise,
that is not raLar;al to a determination of the ;crce and of-i'ect to be
given {ri:C1 e •30.60.1 ;1i_at"Sr i t -,,ras t-de product a _i l ateral negotiations
tet een the --?rties Cr to tT2e contrary was the result of the award of
the board o f arbi,ra-I c n cha i red by Mr. H.D.Brown. In either case the
issue 'rerains wohether Suc l a provision, however saL4led, toes or
properly can deny to probationary employees the rights described in
S.17(2) of tre ��c-. V4ry simply and as the Act- itself re'lec is
C
4
(ss. 9 and ? ) board o; arbitration which settles the terms of an F
i
aQr?-efrent rcr "° part':=s is subject 4o the sar-e anstraints as the
Par es in _�. .�s;n;. the matters that may properly be included
i
I
26. �.
with n i;._. For ccnver=i�nce .iowever; and in Yea absence of any - .
evidence to ='?e contrary, we have assumed that by their signatures
to he acre_. ent the parties<es have manifested t`eir Ccr'sen; to all
of ts terms incluAing 'article 30.6. 1 .
Ysuminc '_ . _ ough a cogent arg=. n :cu k to marshalled
to Oe contrary) that _.bole 30.6. 1 ;ails WIT40 hE ;_roes
Cc... _ _anCE as teing a 7atter "pertaining to Oe grievance process''
.,. d not 'a matter V i =cipline, dismissal or a:oraisai , hen we
believe, for at least reasons that ar - „ . a 30.6.1 . can not
effectively strip this grievor of her right to :cme before this Board
with respect to the namners delineated in s . _i ,2 of t^e Act. In
the first place as s.17 (2) provides the ema1 ovee :gay process the
ratters described therein "in accordance with the grievance procedure
provided in he collective agreement Although it is true. that
article 30.6.1 purport_ by its plain terms to _Yny probationary
l employees' t:�e right even file such a grievance, nevertheless
s.17(2) of the Ac= continues by stipulating that "and failing final
det: rmfnatiovunder SLO procedure, the matter lay be processed 'hi
accordance with the- procedure for final deLermfnation tinder MY.
Necessarily Wren ever cn a literal reading of the section when someone,
such Es Ms, Oyce , :iaims a right under p.' 7(2} or the Act
is unable, by virtue of 30.6.1 , "to process such matter" it must
fo i i o;i that "er ccnp a .-:t has not been finally 4e ermined and
accc rr i ugly it may be f rough t directly before _';i s Board pursuant to s KS as
Ms. icyce has done in _re grievance before us . Put screwhat differently
it an he are' _d, as t,7- __ union did, that artk_- � 30.6.1 ait�:ough
_ere --_ a pr___ _a7ary _Mcyee the right tw eve his cr her release
- 1
27,
- ' -_ dr. dismissal does- not 'puroa rt in any way to affict sign a ,-person's
rights, under s.17(2) c the Act, to have the matter o= his ter-
. f
Mination finally resol' .d by this Board,
, breV.r, and much more r uidament. y ,_v en if
we are in
=rrcr in our StarpretWon of article 30. 6. . . 2 =J i she -ri_. ent and o-�
J
s.1171211 of the Ac:, om ze ,ieve that article 3C. 7. , . hcwa,._r it
was settled cr ce_Wr s7`r can net in any way inhibit Ms, Soyce's
or any other probe t icnq is right to grieve, cruse such _ provision
manifestly offends against the statutory provi s ions set lot in
s.I7(2). That is and cor.-rary to the submissicns c= both, o77 tie parties
we believe that in ar , cl a 30.6.1 the parties , (or'the board of
arbitration) , have i,:properly attempted to contract out of the
s t a utcry provisions described in s. 17(2) and that necessarily such a
clause gust be deemed to he null and void. In reaching, this conclusion,
we do not believe it necessary to describe or canvas in t7e abstract,
the principles of law generally applicable to the ability of two
parties to contract out of legislative enactments. Rather these *
principles (which are set out in -Halsbury`s La,,.;s of Enciand Vol .9
4th Edit, paras 407-42= and 'lol .36 3rd Edit pp. 438-44= and
discussed in Laskin, 8 "The Protection of Interasts By Statute ,and
The problem of Contracting Gut" (1938) 16 Can. 3ar Rev.6c3 and in a i[ote
appearing at 23 U.of T. Fac.L.Rev.166) generally pertain to the ability
of two parties to contract out of a legislative provision which has
been enacted =or the tenefit of one of them. =n this case , by way
of contrast, two parties , the union and the ?mplo er, have , by
signing this agreement, = temptad to deny to third
D=rsons (the sr0ha tisr—y mployee5 ) , who in ac sense can to
_hate_. _erizes as v±71- 1 in a principal and _='s= rel . t;:' s,^lp with �
I
28.
e zher one of them '?e L? 5yndi cat Cat�iol i cue des Employes de
t `
'.a asins de Que-ec 1n,: v La Compagnie Pacquey Oil) Q959) 18 D.L. R.
j) 345, MOW per juds n j .) , rights which the L q i s l ature has
bestowed upon them. Very simply to hold that in the circumstances
c'
this case two pare _s could effectively by scntrast deny third
P_�-scns not privy ,a that contract rights which are enshrined in
l,_islation would offend G_ainst centuries of cc::7cn lz�i doctrine.
Cr that basis aicrie Ven, even if such an arrange en. ;;ere valid
ant enforceable as le.ween the parties to the ccntract, it 7s
firmly settled that i t cou i d not, in any way affect the rights of
persons, such as ids. :'oyce, who were not party to it. (Re 8eswick
v 8eswick (1958) A.C. 70 (;:.C.) ; Dunlop -Pneur:at..c lyre -Co. Ltd.
v Selfridge & Co. Ltd. (1915) A.C. 847 (H.C. ) . Nor can it be argued
that by virtue of s.l �(1) or the Act that such a provision: is rude
bi riding upon the empl cyees. To the contrary, as we discuss below,
that section,by which employees are bound by the provisions of an
agreerent,expressly disclaims that such agreements are :`subject
to the Act' . Necessarily then such agreements including a clause
such as 30.5.1 . must .e read as being subject to the paramount
rights that are enshr- ned in s.17(2) .
Moreover, even if that fact were not sufficient to render
ineffective any attempt to contract out of a provision such as s.
1712) , the jurisprude-ca on the ability of unions and employers to
' Y
contract out of mandanory provisions of labour relations legislation,
while sparse, has uniformly held such attempts to be improper, illegal
=T= of no force cr WE= even -as between the parties Q the agreement.
i
I
29.
GEnerally is ur"5..` dente has arisen in two cuito distinct contexts.
Under the -- r5t, `CCi ` _qi�tai ly kTt4'rin as "hot cargo" dgr2eL3'�'nt5 , the A _ -
r
signatories to the c:'lective -agreement consent, inter alia , to permit
t"? employe=s to r°-`;=e c cross certain l a'rii tl , pri-r:ary picket lines
or to handle certa`,n 45tr'lck or "rot" Work. rn the usual case, where
t� :)roprie- / cT S- cr�v' sions , s put in 5s .-, chc" �.r�loyeeS,
ac-ina in cc^cert _; M reliance on the "hot cargo" clause refuse
tG handle 5?z 'nor k i i r is dd"'i fled Onto �� a job si ty.
In`Jari ably, he Sc-=-a. 10 -hat follows is that t,',' °mplayess are
discharged !Cr discf._nl ` ne_d or having eigaged 1n an Ma Ful strike
during - the Larrency o- the agreement, are reinstated by 'an
arbitrator on the s-reng-h, of the clause in tine agreement and that
decision is then taker on rev!,-,,q to the Courts. In that context, .
as in the ore before his Board, the issue arises as to the legality
of the "hot cargo" ci a-iSe in the race of a "deer.ed" no str k ke
provision t :-_t is con-ained in the governing le;islation. In responding
to that issue the Ncv= Scotia Court of Appeal , reversing the decision
of the arbitrator has stated:
i 111 zk a L t�1e azbi Lrator fell into. ezzoz
of Iaa in nog effect to 5.19(Z) of t e
T ade Ur or_ ;c7:- as requ i x-ng that there -7--- To
stoppage of work in he c_rctmstances 'eza
pres=nt and t!_5 error is apparent- ._^. the
face Of t�° y:r�. Tb-is stata'tozg enact-
ment is pa ra__==t to and has the ef?act of
rer.dezi�{qr vo--'d -I-e Cznntzact.♦al ag7'eeiner t _ems -
t'aeen t.,e raztt-.?s expressed in .P )pand?x A.
Re Ctis a1° `r° Co. Ltd. et a? and
Inter 'a., 7--10n of EJC_.ator Const;'.j( t,xs
Loca 225 (115-73) 'v D.L.R. (3rd) 402 (Y.S.C.n.) .
:n different context, ` h� en assessing the
vz'. .f;ty 0 7 ne c; agreement, the Cr t-_r;o Labor Relations
3a. 1
-
Board bas-, respondee
These sec:.'ions set out t nqualif±ed pror'bi t_;ons.
The article appears to us to er=dy an atte=p= by
t~e parties to ne5-otiate the:rsel-Fes out o; e
provisicns c= 3'he Labour Relations j ct and no __ske
a law to thesselves outside its evident sc :7e and
�=eznt. i;_ ;o not t:2in_:c t::e pa_rt"zes cc:-:7-ere at
to enact _ __ a=e leis at?on whic:2 would
tsar Mah 7he Lai-our Relations Act XrOWAs
even though. at the same time, they g-ve lip .
serAce to =he provisions of the Act ycve=n
the con e^: of .:o_?ect i re agreem?:l ys.
We fi:d =..e provisions of Article 2 a. a, ,o W
contrary to the purpose and intent of :he La2;c°�''
Relations Ac-- as CarZQra?zJ• indicated the
sections p re-7ious2y referred and in ^artic^,2'aY
b-y sections 54 and 55 Wi ch it a tt a. pts to
ci_cumvent a_:d render nugawz- insafix as t e
parties to t;,e col rective agreement are
con ce=ned_
e 7izott Corssructicn, aN Ltd. (1959) O.L.R.3. Rep. 399 (June)
To the same effect, reference may also be had to:
r De Hutchison Installations (1973) O.L.R.B. Rea. 241;
Re ro-rer Co,o. of Ca.^?c= (7972) O.L.R.B. Rep. 435;
Re Associated Freezers Co-. Ltd. (1972) O.L.R.B. aeo. 445.
This consensus , that the parties are not, even in a
bilateral context, cc7petent to fashion ad agreement WAS offends
the overriding purpose of the legislative scheme, has also manifested
itself in the private sector in a second and quite distinct context
which is virtually parallel -to the one before us. In these cases,
the issue that has been considered by Labour Boards and boards of
arbitration is the propriety of a provision which, as article 30.6.1 ,
purports to deny probationary employees access to the grievance and
arbitration process 'nits respect to their dismissa15, in these cases,
S
. i
31... = j
the issue raised 0 nether such provisions offend the section in
the legislation which, like s.18 of The Craym E,i,aloyees Collective
Sarpaininc -ct, recu res the parties to settle their disputes
during the life o f _. _ agreement by arbitration. In this context,
again, the -zpens 0 !rbitrators and Labour E,�aruc .,l . ke is
unanimous in holding that such provisions of=end the basic statutory
scheme and are in result null and void. Very s:~p;y, while
conceding, is we do ..elow, that the standards against which the
termination of a prVationer is to be assessed are nct the sage
as those which are ut`lized in reviewing the discharge of an
employee who is on the regalar staff, these decisions all recognize
that the parties (or indeed boards of arbitration) , are sirply
not competent, in the face of an overriding statutory Mandate. such
as s.18, (which as we have noted is, in the circumstances If this case
r strengthened by the unique characteristics of s.17(2)),to attempt to prohibit
the grievances of probationary employees from ever suing the light 'of day at
arbitration. Re Cass= Asbestos'.r�_ :1a~d. (1975) 1 CLY L.R.B.R. 1.12
(197 4) : CW L.B.B-R. 423 (B.C.L.R.B.) For the Same
response by arbitrators across the country, reference may also be
Blade to: rya CentZal Potash Co.. Ltd. (1975) , 10 L.A.C. (2d)
29 (Norman) : Re Cassino asbestos Corp. Ltd. (=975) 10 L.a.C. (2d).
1 (Murphy); Pe Shas`-a- ReTrerages -Ltd. (1975) 9 L.A.C. (2`) 127
{trasar) ; Re io,cnto Eta-- Ltd. L.A.11I. Yanuaz'y 1973
While not strictly binding on this Board, we believe that this
ove�-Mhelmlin= consensus of opinion, reflected in the decisions of
V 3
l
32.
C.-ur,,s, i.a our Boards and arbitrators , is directly,-appl icable- to .~ - - -
' the grievance before s. Quite apart from tfe effect of
article 30. 5.1 on It-he rights of third parties . in each decision
re=erred to a:sove the adjuCicators unepuivocaily held that
l -
a gisIat ,-2 _c^= _ 'efore then, which c,_sely para" le? the one
'Vested ss . 1 i a- s 'S of �
s Act, are � r ,ount to and can
nc- be subv;~ted or .._~oga ted -From by an agre_: tent of the parties.
is Paraphrase LEbcur Relations, '3C;,,,: these parties
are singly rot. conp_telt La enact, private legislation of t�eir
owr which wculd subv?r tie Legislature's intention t^at is
manifested in s. I7(2) of the Act.
Indeed, in --he legislation before us, the Legislature
has made it clear t:$a- the Union and the employer simply are not
permitted to enter into arrangements such as that contained in
4 article 30.06.1 . In ti first place, in s.19 of the Act the
G _
collective agreement ,_hile miade binding upon the employer, the Union
and the employee is expressly made "subject to" the Act. Even more
explicitly, in s .27 2; b) the Legislature has prohibited the employer
frcm "imposing any cor.diticn on an appointment or in a contract of
employment t:n?t seeks to restrain an employee from -. . . . . .exercising
der this 'ct." By its plain terms article 30.5.1 in
any right or
denying a probationary "employee" the right to grieve Che ratters
I
described in s.17(2; c= the Act }gas attempted to do just that.
That attempt- we L•el ieve is, for the reasons given invalid, unlawful
ar,r of no force or of-ect.
_n
article 30.5.1
clic r_z _ . Grid once it is deter �ined t�`a-
33.
is null ane void, it =-_comes apparent that a proaatienGr�+ em log ap � I
PQ s Y.
P !�-
_ W.
r a, process it i s cr hew grievance pursuant to article 30 of the
acreem>ent :re same . canner as any other e7i^l ogee. Thus where a
probationary is 'released' under s,22(5) of The Public
Serv'ce r.c- y a di-E Issal , Mould,
1:1==_" the , es_nt t process his gri nce :).rsunt to
the procedire cescrih,c' in articles 30.1 thrcuch 30,E. In the
case of an alleged di =- issal the grievannce 94c.uldl fo17:)' the procedure
set out in =rticle 3G. S.2, In either event, should t^e parties he
unabie to resolve tse =orplaint, the probaticrier would, pursuant to
s.17(2) of the Act 3rvicess it "in accordance with the procedure for
final deter.:ination acolicable under s.18
-,ro additicnal matters must be addressed -_sore, concluding
this award. In the f rst place, because of our conclusion! that
probationary employees do fall within the words and intent of s.17(2)
and that no-:ping in tie relevant legislaCion cr in the parties'
agreement has or in t=e latier case may afl ect that right, we do
not believe it necessary for us to consider several arguments raised
by the Union including whether, if the situation were o therdi se, the
provisions of articie 30,6.1 would apply rectroactively so as to
affect, this particuicr grievor whose termination was effected prior
to the sicning of 1-1.9 agreement. Rather i t is our view that Ms_
uo;ce's ariavance is, as any probationary employee's grievance
would be, properly before this Board by virtue of s.17(2) of the
Act and there is noth-ng the Legislature has done or that the parties
F
i
34.
or a board o; arbitratifl>7 may do which cart derogate `r^:� t1ia right.
We are, in short, prepared to take jurisdiction of her grievance
cr. t^at basis alone.
oviever, and as arbitrators in the private sector and
as ON Board itself ,as recognized, we' must ac2in _:;= cr the
Parties that in seizing jurisdiction over the Arminwt On - be
it a release or a d i s-,i ssal - of a probationary 'em4 off:ee', we
do not and will not exercise the full appellate rev i_w that would
ordinarily be exercised in the case of an employee w~-o ras completed
their probationary period. To put the matter in the language of
s. 17(2) of the Act, the standard of 'just cause' that is imposed
by statute, must, if the probationary period is to have any meaning,
be different in the case of a 'probationary' employee than WE in
the case of a 'regular' employee. More specifically we would remind
the parties, as we indicated in our earlier Re rrtKs;;n award (pp.20-23) that;
Finally ar_d in asserting our jurisdiction over grievances
brc�g:Zt by probatiora;y eraloyees, whether te—_rated u:--der s.22(5)
or or Tie u-' _c Service Act,it is essenw a? that our deter--
4.__t_'on on tJUs jor_sd ctional issue not be corrused w_th the grounds
or a:^ch probatiorazy employees who have less Van c-e ;ear's con-
., MOC US employment .:a tT ter una ted under -e i thex s.22(3) or s.22(5)
°o. w;t 13 fire standard of review that this Board will assert over the
to"nation of such employees. The t-ao are camplete_y distinct and
seTe_able issues. H07 ag articulated the grounds on w2iich we have
°_ss,=ed juzr sdicticn giver the termination of employees ri ic have .less
t+nn one year's continuous Service, it remains only then to describe
tie substantive groused& on which such amp?oyees who are probationers
=47 ze textr nated whether under s.22(3) or s.22(5) . - =^ -tr:e first
p22ce it was we jelie:e, beyond dispute (and tie parties were agreed
cn Os) that the grcorrds on which•a probaticra*y employee may be
d{ sssed - (and recessari v released) under eit er 5.22(3) or s.22
(5; ='st be di ferenc trap those which would support _ a dismissal
of one who Ms passed through his or her probationary period. The
=a lzvale for suc: a _:=s4inction necessarily is founded it the
-havE=ter and pu Icse of the nro?sationary 'pericd. That probationary
_ --__ is to usz =..� acids of another scar d o� ez=;«a alo-: designed
35.
. . .the lew-=skate interests of the employer in
attemptIng to secuze the most o7mye_ant, com-
P atille ?nd suitable woxk force it can ac-*uire. {
Cre car-ot reasonably expect are e'�loyer to le
le :o assess the full capabilities and ;o_
Dent al__y of a job applicant from a brief
an 2 DD-Z Ca Lion form, , re °rences
_ma the Me. ?a. ar must be w_-_,t?ed tc
a:: ==a=-- -`y •r«w the new ru-- t.:e
:.art_......zz content of is car. wor:c
rent. TO= is _-:e sole uurrose of He pro-
it is, as we ha—/e said, a
Re mraunine `rsa err)'Ce and C.r1.p '' Ca? :484 (2974) ,
r
7 L.A.C. (2) 132
Hcva ler in t.�-,e valid concerns of c ' enployer to be able to
select the -::nst able, sxof-'cient and congenial work force we would not
sz: sczibe to '_- e t• :at t e emplotler has cc:rplet°? unfettered
r__ht to to m na_a the ser7ices of a probationew-Ft: wil To the con-
trazy and acaN to ad7ext to the decision in '?e ?oYwpOe crew
AiT::UZanCe $eW!Cer (Swpra) iwe believe:
. . .that Ln any case in rol ley the dJ schazge of s
probat:.iamwy employee the er*ployer nrst not
cnlg prole the acts complained of which pre-
cipitated t2te discharge, but in addition re
z =ust de--�rs=rate t.;-,at this reasonably supports
his corcl uW on that the dischazge Alas ap-
p ropr.�a__. Were it other-.rise an employer
zn grt we=2 be justified in assez.-Iting t:p-t a
rocaticn__2 e.^ploye4 who was late on orF oc-
casion (with or without justifiable excuse)
*:ad fa1?An ?ew the standards of =u_nctua r_t,
t.herehy dAe=rs z-at ng his un.5uitabil--ty as a
future ,5mployee. in short, the employer must
not only, pzove the facts upon whi.c-a he :cased
his action, but in addition that the no--
loyee's cc:nduct demcn.st_-ates that it is
reascna:.le to conc.Zude such an erip?oyee will
Zikely p_oKe unsuitable as a seniority--rated
employee. This All necessari?y entail a
board or ?-biM ration assessing hot the
OaSOr_ai'�-GSS or the standards !=posed by 1
the ccqcan y against which t7:a employee's
conduct Is to be measz .red, as, we li as the
concluswcr_ _hat the conduct coMplal.ed of `
zeasonal y sup�roris the conclusion_ 4rat tte
pYo a c a_r e7ploUee is likely to oro,re
" 36.
' &caever and as tie sa-e �,ca_Yd cautioned:
one add that in. our view ...fs
_el-ea _ :.oa=d of arbitration s.-o{ ;d
not take c' the nature of an appeal as' to
he ccrre=ess of the ccm Wing's wc-
-.^s-wo2z-1_-_ as _Q tie - -ec
...:_°
-_ready ....gat some of the sgi time to
_crce;rs r_ ash wmp'ot,•er in assess-. - _:e
future e~-_ Agmert relationship-_ cf _ now
- _o flee 7Q. his character, CCM _t_W__-Y,
Yn=_enti___ cement and -^coma_ - -
,5u, .�z_.-= are necessarily vag,•d. tzz,-tr<_;
of the C.^Jmp lid' 75 n eces�azilL
ti---e of a px-ognost_catior:.
i-bitzators should therefore he reluctant
to '_I:t zfJ e with that Prognosis unless it
_s pla ~ t=-at the emplogex's aasessmeyt or
standards are palpably wareasonabl e.
Fove7er, sWuld the employer fail to es-
tablish a=_ ibas_s for the tp=M'na ti or_ o=
tie pro av=om._rjF employee, or. 52"-ould it
de:-.o..st atad that his assessment or
.._._e stal:ia=iS against which the assessment
i•
is raids are c.-.reascnable, bcazds of a,bl-
t;atiori m st not sanc`Ion such dlsc;rlir.azy
action simply or- the basis that it was in
KM - 7'3ked agai_:st a probatianar_i erlp?ocee. ZT:
st= we ;;vul d assert that although the proper
Oasis fc discharge of a probationary em-
ployee ray :e sczewha t brpadex t:2a-! t_'at,
_ustifying tha termination of a senicrity
sated e:pl-yee, and a l hough tre standards
of review a^y boards of axbitration ,/-!I be
sore:✓:_at less rigorous, netrertheless the
e::Dloyer l'=St of 11--wtively establish that
^,*s ter ` :a Ion of a probat. ovary eTM.?oLee
was reascnab-76 _7 the circ•unstarces_
- 4
K.
Z-zpliclt w- these remarks is the rTccgni t^on, particularly
wr4h respec= to a "re-'ease" effected urde?' 5.22(7) of T':e P ub2ic
Sez-rice Act, that a,y.^zocgh the employer is entitled and indeied has a
le-^?tiz-vate L:ter°_st i._ assessing the overall zui tab l&ty of persons
Wf± seek to Join. its l ernanent staff, the proiat_onazy a ployes is
er.= tled to a fair anf proper asSesSmant. Such an asSesz`me.nt neces-
sar;?y assones the _ro.at-oner will oe given a suff clent period
of time to ._S _proficiency and ca✓alility, t 3= his
d __es any =?= ?C �_ _w�e5 have 'men Mea-T-_y to him
t as reasoozWE su-__;:s of hehaviour and ^°_r_.-_.:,ance a e ex-
_ _r _ 'r of --fir th = M3 progress is sy s=enatlral2y °_ay _ wad and,
37.
r ^.s C17'i_=Ca:t13 = �.^.°_ employer„'faS mace reascna-7a efforts
a t� coach, -_s--u—” a.-_ infb=- the em.Dloyee t *'aughout 4=? nrobat?onary
per-4od. S?'O^ prirC'_ 'es, f'.:raaaEntal to a ar;-atzon't— eriod in any i
sact:O, Of e 7 0 rV7 a..-: arry 1 :Tee I :702'e ZI:I7da-merta—? III tl-e public ser'vice'
J:ers se _ -� �_sn?�� =er-od ?s usua77,7 of a longer any More prolonged
W'e wc u i d or- v a, St: ^C?i"G� fli insofar
as the rl=sGi!i:iQ set out in the =_° ?oXu' ^� z-
-ea
y� u_'arce sT�r_cg wat --± Yi 2d therein, has; s ii?� our ra =4
.. riksen
gene-ally F6_-a • aooroved by other arbi . r .,ors as ,nroperly
describing -he nature arid. scope of the arbitral function in such
cYsas. See Re Canada Potash Co. Ltd. (1975) 10 - _-.C. (2d)
29 (:to=–an) i Re Shasta 3--p-rages Ltd. (1975) Q L.A.C. (2d) 117
CIF. R4e 3oard of Education for t:;e Ci:y of Windsor (1975)
10 L.I.C. (2d) 265 (Kr-uty'ar) .
In the result, it is ,our award that the eirploye'r's
prel3-i-.inary abjection to our jurisdiction must, for the reasons
gi-ten, be denied. Accordingly the Registrar is directed to schedule
th i s i otter for a i::r-her hearing, cn the merit's Cf Ms. Joyce's
gr-eaance.
Dated at Toronto this 113th day of August 1970'.
CYO a i rman
k
I
I conctz-
i
H. E. Weisbach
E4e:�ber
r c�SSe:It
V b°r
I