HomeMy WebLinkAbout1978-0094.Haladay.79-06-05I
CNTA/IFI,D \
CROWN EMPLOYEES
GRIEVANCE
;;W&EMENT
Between:
Before:
For the Grievor:
THE
MS.
GRIEVANCE SETTLEMENT BOARD
Shannon Haiaday
And
The Ministry of Industry &
Before
Professor K. P.
Mr. A. Fortier
Mr..R. Cochrane
Swan
Grievor
Tourism Employer
Vice-Chairman '
Member
Member
-
Mr. S. Goudge, Counsel
Cameron, Brewin & Scott
Suite 402
181 University Avenue
Toronto, Ontario
MBH 586
For the Employer:
Mr. C. G. Riggs
Hicks, Morley, Hamilton
12th Floor
Royal Trust Tower
Sox 37i, Toronto Dominion Centre 1~'~'
Toronto, Ontario
M5K lK8
Hearing: December 14th, 1978
&anuary 15th, 1979
Suite 2100, 180 Dundas St.
Toronto, Ontario
M5G 128
West
._ I
IN THE MATTER OF AN ARBITRATION
Under The
,' /
CROWN EMPLOYEES COLLECTIVE BARGAINING ACT’
.!>
. ” 1
9’
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This grievance raises important questions about the present
state of the jurisprudence of this @oard in respect of rejection of
probationary employees. Shannon Haladay was hired by the Government
of Ontario as a member of the unclassified civil service on July 29,
1977. On March 1, 1978, she was re-appointed as a probationary
employee. During that period from the first hiring until her release
by letter dated May 5, 1978, she worked in the Communications Area
of the Ministry cf Industry and Tourism as a receptionist/typist.
Her release letter is in the following tens (Exhibit 1):
To: Ms. Shannon lialaday
Cormrmnications Services
May 5, 1978
SVSJECT: Release from Employment
This is to advise you that pursuant to Sections
22(S) and 2311) and (2) of the Public Sfftice AC: you are
hereby released from employment with *&s,Ministry. Your
release will be effective Friday, May 5, 1978 and you will
be given two weeks saiary in lieu of rxxfce.
This action has been t&en b&h because of yoz
failure to meet the requirements of your position, a matter
which has been discussed repeatedly with you, and because
of your continued failure to comply wit5 the Hinistry's
request that you provide documentary evidence L'zat you are
eligible for employment with the Ontazio Goverment, e.g.
birth certificate, affidavit, proof of Landed immigrant
stdtus, passport, etc.
The letter is signed by Mr. F. T. Marshall, Director of the Cormnunica-
tions Services Branch.
The Ministry took the position before us that, under s. 22(5)
and 23(2) of the Public service Act, there was ample authority for the
action taken, and that we lacked jurisdiction to determine the present
case. Section 22(j) provides:
A deputy minister nray release from employment
any public servant during the first year of his
employment for failure to meet the requiremene
of his position.
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Section 23 of the Act merely provides for delegation of the Deputy
Minister's authority; there is no allegation that Mr. Marshall
lacked delegated authority to take the action he did.
The collective agreement in operation between the parties at the
material time is the 1978 Working Conditions agreement. In that agreement,
the parties have severely limited the access of probationary employees to
the grievance procedure. Article 27.6.1 provides:
Any probationary employee who is dismissed
or released shall not be entitled to file a
grievance.
On the other hand, all employees have an independent right to come
before this Board in certain cases. That right is set out in the crown
Employees Collective Bargaining Act, s.17(2):
(2) In addition to any othe r rights of grievance under
a collective agreement, an employee claiming,
(al +ht his position has been improperly classified;
(bl that he has been appraised contrary to the gover-
ning principles and standards; or
(c) that he has been disciplined or dismissed or sus-
pended from his employment without just cause,
may process such matter in accordance with the grievance
procedure provided in the collective agreement, and fail-
ing final determination under such proce&re, the matter
may be processed in accordance with the procedure for
final determination applicable under section 18. ..1974,
c. 135, s.9 part.
This Board has dealt, over the years since its creation, with a
number of cases involving probationary employees within the statutory,
regulatory and contractual structure which binds these parties and this
grievor. We should note that our jurisdiction is statutory only, and has .-
two main branches. First, we are vested with jurisdiction to hear and {,,
determine disputes about the interpretation, application, administration or,;
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alleged contravention of the collective agreement; this jurisdiction
arises under s.18 of the crown employees collective Bargaining act.
Second, beyond that jurisdiction and independent of it. we have the
jurisdiction set out in s.17(2). quoted above. We have no other
authority to intercede between the parties; we do not have any inherent
jurisdiction to do justice - or what we may conceive to be justice -
or to provide remedies, no matter how desperately a particular case
may cry out for relief. The Board is a creature of the statute, and
derives its jurisdiction solely from the statute. The only exception
to that rule is that the parties may provide for certain matters in a
collective agreement, and our jurisdiction is thus broadened to the
extent that they have done so. Beyond thfs circumscribed jurisdiction,
the 8oard's legal authority is non-existent, and any decision rendered
beyond those limfts would be a nullity and liable to be quashed before
a court.
On behalf of the Union, Mr. Goudge advanced five main bases upon
which he invited us to found our jurisdiction in this case. Because
these rely upon alternative assumptions of fact, it is desirable to
group them into two categories. The first category, under which four
alternative argwDants are advanced, accepts for the purpose of argument
the Employer's assertion that it acted to release the grievor under
S.22(5) Of the Public~Service Act. The remaining argument challenges
that assertion, and postulates that the action taken against Ms. Haladay
was in fact a colourable device, a discharge founded on disciplinary
grounds masquerading as a release on probation.
We turn first to the arguments based on a review of the rejection.
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These arguments must be dealt with in light of the decision of this
Board in Re Leslie and Ministry of~community and Social Sereces, 80/77.
Although that decision is'well known, it will be helpful to set out the
few paragraphs which relate to the matter before us <pp. u-13):
We agree with the employer's counsel that these two
statutes should be interpreted to ~give full effect to their
respective provisions and that this Board should not lightly
conclude that the Leuislature intended. bu the nassaoe of
the Crown Employees Collective'Bargaining'Act, b repeal by
inference, provisions found in the'Public'Service Act.
Approaching the respective provisions of these two statutes
from this viemint; we fina that terms "dismiss" and
"release" found in Section 22 of the'PubZic Service Act
involve different concepts and that section 17(2)(c) of the
Czown Employees ColZective.Bargaining Act does not provide
for the processing of a release "in accordance with the pro-
cedure for final detenzinaticn applicable under section 18."
However, we would Quickly add that section 17(2ICc) simply
provides an employee with rights "in addition to any other
rights of grievance under a collective agreement" and we
see nothzing in this statute or the'Public Service'Act pre-
ciuding the parties, in their collective agreement, from
giving this Board..jurisdiction to review the release of an
employee under Section 22C5) of the'Public Service tact. But
the parties have explicitly decided against t?Qs, as witnessed
by art. 27.6.2 of their collective agreement.
To restate our understanding of the relationship
between these two statutes, we are of the opinion that
the bona fides release of an employee from empioyment made in
good faith during the first year o f his empioyment for failure
to meet the requirements of his position cannot be considered
to be a dismissal as that term is used in both the'Public Service
Act and the Crow2'Employees Collective Bargaining Act. If this
were not the case, there would have been no reason for the leqis-
lative draftsman to insert section 22(S) into section 22 because
by section 22(3) the deputy minister had already been granted the
power to dismiss any public servant in his ministry for cause.
The distinction between a release (for failure'to meet the
requiremen'fi of a position in the first year of employment)
and a dismissal having therefore been made in the Public Service
Act, it must be concluded that the distinction was appreciated by
the draftsmen of the Crown Employees Collective Bargaining iAct>.
The twostatutes are closely related and, indeed, the Crown Employees
Collective Bargaining Act nukes a number of explicit references to the
Public Service Act. Accordingly, the absence of the terr "release"
in section 17(2)(c) must be construed and interpreted to be a,
significant and intentional omission. Thus, it follows that the
bona fides release of a probationary employee in the first year of
his employment made in qood faith and for failure to meet the
requirements of his position cannot be contested before this Board
under S.17(2) (c). We observe that this result is not contrary to
any policy either expressed in leqislation or understood in the
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industrial relations colmmvlity. Indeed, the purpose of draft-
ing the statute ifi this way is likely found in the reasonina
of Re United Electrical Workers s Square D Co. Ltd., (1956) 6
L.A.C. 289 at page 292, a viewpoint given the explicit approval
of the SUpretIE Court of Canada in Jacmain.
A few gualifications should, however, be noted.
Until the Supreme Court of Canada has said otherwise, this
Board is of the opinion that the employer cannot camouflage
either discipline or the termina'&ion of an employee for a
reason other than employee's failure to meet the requirements
of his position, as that phrase is explained in the Square D.
Co. Ltd. case, by the guise of a "release" under section 22(S)
of the Public Service Act. This Board, therefore, has juris-
diction to review a contested release to insure that it is
what it purports to be. But in the adjudication of such a
grievance, this Board is without jurisdiction to evaluate and
weigh the reasons of the employer unless the collective agree-
ment provides otherwise. The Board must only be satisfied
that the employer, in good faith, released the employee for
a failure to meet the requirements of his position. As long
as the Board can be satisfied that the employer has made an
evaluation of that kind, it has no jurisdiction to review the
fairness or correctness of that determination under Section
17 (2) Cc) .
It mey be, as was suggested in Joyce, that the Board
has jurisdiction under s.l7(2)Ib) in cases of this kind and
unfortunately this issue was not as fuLly argued before *he
Boardas we would have liked. However, if this jurisdiction
exists, the application of s.17/2) Cbl must be in light of the
purpose of d probationary period as that purpose is expressed
in Square'D. 'Co. Ltd., Supra.
We see no sound reason to depart from the decision in the Leslie
case for the present, as far as that decision goes. We have reviewed
carefully the majority decision as well as the thoughtful dissent of
Ms. Sigurdson, and while we agree with Ms. Sigurdson that, in order to
make a preliminary judgment on our jurisdiction we must review each
case presented to us on its facts, we think that the majority decision
is correct when ft finds that, given the present state of the collective
agreement, unless that review dfscloses a base of jurisdiction founded
in s.17(2) of the crown mployeas Collective 8argaining Act, we are
without authority to grant a remedy where the Employer acts properly
under s. 22(6) of the Public Service Act. There is a difference here,
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of course, between a review of a grievance on its facts and a review on the merits.
A review on the facts may well reveal that, no matter how clearly the merits favour the
grievor, the Board is simply unable to award any remedy,
To the extent that Mr. Goudge's arguments urged us to depart from the Leslie
decision, we decline to do so. ~seslie marked a change in the Board's.jurisprudence
based on the decision in Jacmain v:Attorney Genera2 for Canada (19771, 78 C.L.L.C.
psra 14, 117 6s.C.C.). A d&cision~to alter the Board's approach to such cases is
not lightly taken, and the Board has, taken the view that such a change should only
occur when the previous jurisprudence was manifestly wrong. Leslie, in effect,
found such a need to alter the jurisprudence. We have reviewed the authorities
advanced by Mr. Goudge, but we are unable to find similar fault with Leslie.
The first of the four "rejection" arguments put forward by the Union dealt
with the form of rejection letter issued. Conceding that the Employer acted under
SeCtiOn 22(s) of the Public Service Act, the Union argues that the rejection was in-
valid and ought to be set aside since, on the face of the letter of May 5, 1578, it
added to the statutory formulation for rejection by basjng the action taken not only
on a failure to meet the requirements of the position but also on a failure to supply
certain documentation.
Given the decision insesJie, it appears that the concession, for the sake of
argument, that this was a rejection is a final answer to the proposition advanced. We -
have no general authority to supervise the administration of the Public Service Act,
although a breach of its provisions is occasionally relevant to other determinations
within our jurisdiction. Here, where we have no jurisdiction to review the merits of
a rejection, we could certainly not assert a right to review the procedure whereby it
was carried out. If the rejection was contrary to statute, a remedy must be found
elsewhere; we only remark that if the Employer had the statutory grounds adequate to
justify a rejection, it hardly matters that it found other fault with the grievor, unless
that fact raises the possibility that it acted colourably or in bad faith. We shall
return to that possibility below.
The second argument based on the "rejection" assumption is that, based on
Article 24(2) of the Collective Agreement, the "release" of
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the grievor was a breach of the agreement and thus clearly arbitrable.
Article 24 (2) must, in our view, be read in context. The entirety of
Article 24 provides:
ARTICLE 24-JOB SEC'JRI!l'Y
24.1.1 Where it is proposed to release an em$oyee
by reason of shortage of work or funds or
the abolftion of a pxltion or other material change in
organization, the empLoyee shall, where possible, be
transferred to another vacancy or work assignment in the
Mfnfstry having the same classification or, with the
cmzsent of the employee, having a classification with
a lower IIlaximum salary as per section 5 of Article 5.
24.1.2 Failing placement in section 24.1.1, the
Hfnlstry shall make every reasonable
attempt to arrange a transfer of the employee to a
position for which he is gualified in any Ministry in
the same work area at the same classification or with t.?e
consent of the employee, .to a classification having d
lower mximum salary as per section 5 of Article 5.
24.2 Ai employee shall not be released while
there is an empioyee:
(a) who is i.7 the same classifica+ior: or
position or in another classificatior? or
position in which the employee has served
during his current term of continuous
employment, and for which he is qualified
and,
(b) who is employed in the same adainistra-
tlve &strict or urzit, institution or other
such work area in the same Ministry; and,
(c) who has simil&- qualifications; and
(d) who has a shorter length of continuous
service .
24.;3 Notice of release, with copies to the Civil
Serrrice Cosmission and the Union, shall be
sent to an employee who is to be released in accordance
with the following:
(a) twu weeks' notice if his period of
employment is less than five years;
(b) four weeks' notice if his period of
employment is five years or more but less
than ten years; and
(c) eight weeks' notice if his period of
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employment is ten yearsor more.
24.4.1 Where an employee who has had at least
one year of continuous service is
released and his former position or another posi-
tion for which he is qualified becomes vacant in his
Ministry within one year after release, notice of the
vacancy shall be forwarded to the employee at least
fourteen (141 days prior to its being filled and he
shall be appointed to the vacancy if,
(a) he applies therefor within the four-
teen 114) days and,
(b) no other employee who has similar
qualifications and a greater length of
continuous service applies.
24.4.2 Where an employee who has been released
is reappointed under this Article to tbe
same position or a position having *he same classifi-
cation as the position which he occupied immediately
prior to his release, he shall be reappointed at a
rate within the salary range applicable to the position
equivalent to the rate at which he was paid immediately
prior to his release.
, 24.4.3 Where an employee who has been released is
reappointed under this Article to Q position
in a classificath that is not the same as the classifi-
cation of the position which he occupied immediately prior
to his release, he shall be reap@nted at a rate witkin
the salary range applicable to the position commensurate
with his qualifications and experience, including previous
relevant publi~c service.
24.5.1 Where it is necessary to release an employee,
who has completed his probationary period,
because of the introduction of technological change in equip-
ment or methods of operation , at least two (2) months
notice in advance of the change shall be given to the
employee affected and to the Union.
24.5.2 The matter will then be referred to the
joint consultation co&tree of the parties
to discuss and to attempt to resolve the problem with
relation to the reallocation and retraining of the
affected employees with a view to minimising the effects
of the Employer action required to be taken.
The use of the word 'release" here would normally interact with the
use of the same word in s. 22(5) of the public service xct; the Board has
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regularly used the legislation as a helpful tool in interpreting specific
words. Here, however, the Union's argument runs up against two obstacles;
The first is Article 27.6.1, quoted above, which prohibits a probationary
employee from filing a grievance when "released". That would be fatal
to any right of the grievor to raise Article 24. although it might not
preclude the Union from doing so. However, even assuming that this is
a Union grievance, which is not specifically advanced, the argument has
another problem. In context, Article 24 clearly refers to releases for
certain reasons, namely "shortcge of work or funds or the abolition of
a position or other material change in organizatfon". In context,
Article 24.2 must be read to refer to releases for these reasons alone,
and.not to releases "fcr failure to meet the requirements of the position".
To construe Article 24.2 as the Union proposes would require that employees
could only be released, for whatever reason, on the basis of a modified
"departmenta. seniority" clause, and would wipe the entire Concept of
rejection on probation out of the pubJic Service Act. The parties may
be able to achieve such a radical result by agreement, but to do so would
require clear wording and a plain manifestation of such an intention.
We do not accept this argument, and we find no breach of Article 24.
The third argument advanced by the Union based on rejection is
related to the decision of the Supreme Court of Canada in Nicholson Y.
Raldinwnd-Norfolk Regional Board of Comissioners of Police et al.,
dated October 3, 1978 and now reported at ff%W C.L.L.C. para. 14, 181.
In our view it is rare that this case will have direct application before
this Board. In its judgment, the majority of the Court held that, in
the exercise of a non-reviewable statutory discretion, the exerciser must
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act fairly.~' We do not quarrel with the,general proposition that fairness
in the exercise of discretion is essential, nor with the laudable deter-
tive agreement. Where we do have jurisdiction, we can require a full
hearing on the merits, not merely order reasons to be given. Where
.~ we have no jurisdiction, an employee who is aggrieved must pursue,"like
Constable Nicholson, a remedy in the Courts;
mination of the Court to intervene. But our jurisdictional basis
differs from the inherent constitutional authority vested in the Courts.
Where we have jurisdiction to determine a dispute, we have full authority
to grant a remedy on the merits, including a statutory remedial authority
(such as reinstatement in unjust dismissal cases) which sometimes far
exceeds that available to the Courts. Where we have no jurisdiction,
we can grant no remedy at all; we do not have an inherent jurisdiction
to right all wrongs, or to try to. We can right only those wrongs
which fall within the jurisdiction given to us by statute or by a collec-
Having said all of that, we should observe that, to the extent
that Nicholson requires reasons to be given for a rejection on probation,
the requirement appears to have been satisfied in this case. At a meet-
ing on March 1, 1978 and at another meeting at the time of the delivery of
the rejection letter, it appears from the evidence,before us that the grievor
wasmade fully aware of the reasons advanced for her release. If those
reasons were indeed the real reasons, a matter to be canvassed below, we do
not think that the spirit of the Nicholson decision was offended by a fail-
Jre to reduce those reasons to writing.
We now turn to the two arguments which appear to us to have real
substance as distinct from the basically technical arguments discussed
: .“.
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above. The first of these is the final "rejection" argument, that
the grievor was appraised contrary to the governing principles and
standards, pursuant to which we would find jurisdiction under
s.l7(2)(b) of the crown ~mp~~yaes collective mrqaininq Act. The
final argument is that the so-called "rdease" of the grievor was
in fact a dismissal on disciplinary grounds, and that therefore we can
found jurisdiction on s. 17(2)(c). Both of these arguments require
a brief review of the substantive evidence presented to us.
Two of the griever's co-workers were called by the Employer to
testify as to the performance of her job. Neither of them had any
supervisory authority over her, but they both worked in the same
iaanediate area, one as a Promotion Officer and one as a Cormnunications
Planner. !t was clear that neither of these witnesses was particularly
comfortable in testifying against the grievor. Both expressed some liking
for her as a person, and both had enjoyed a;reasonable working reiationshi?
with her.
Both of them, however, found her performance in her job, to
the extent that they observed her, lacking. The grievor was the recep-
tionist for the Communications Services Branch of the Ministry of
Industry and Tourism. The Ministry is responsible for the promotion
of the Province of Ontario to the travel and tourist industry
and to the public at large. The Branch is the public relations agency
of the Ministry. The grievor was the receptionist for the Branch.
She was therefore often the first point of contact for callers and visitors
to the Ministry; she was on the front lines, as it were, of the Govern-
ment's effort to promote Ontario as a good place to visit. Thus, although
the qualifications required of her were relatively simple clertcal skjlls.
her position was vital to the "image" of the Province.
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Unfortunately, both of her co-workers found her to be brusque
and occasionally almost abusive.to callers in person and on the tele-
phone. From time to time; she had been overheard to use impolite,
even profane words to address callers. Her efficiency at relaying
messages and her attention to her workplace were also called into
question. None of the specific instances described by these two wit-
nesses could be related to actual inquiries from clients or from the
public; none of them could be related to a specific date and time.
Rather, what was put forward was an impressionistic account of the
grievor at work by two people who had no reason to supervise her, and
no reason to be other than sympathetic to her. One co-worker des-
cribed her quite simply as having more "rough days" than most people,
and as using more Profane lajIgU!ge than appropriate in such a “high
profile" job. As he put it, "it just wasn't good PR" with so many
clients around.
There were only two specific incidents which could be directly
related to a caller and to an approximate time and date. One involved
a phone call from the wife of another employee, during the course of
which the caller and the grievor became engaged in an altercation.
The result of this incident was that the grievor was called in to see
Mr. Marshall, the Director of the Branch. There is a conflict of evi-
dence about the precise content of that interview, but we accept that
the grievor was told, among other things, that even when callers become
abusive to ~her, she should not return the abuse. Rather, she should
remain calm and inform her supervisor. Whatever else may or not have
been said, that appears to us to have been the central theme of the
interview.
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When the grievor was given the letter of release on May 5, she
was once again called in to see Mr. Marshall. Again, there is conflict
in the testimony about what happened, and we cannot abstract a clear
picture of the events. We accept, however, that Mr. Marshall informed
the grievor that he had had further complaints related to brusque or
abusive conduct, including one in writing from another Ministry. It
was on the basis of a continuing failure to rectify shortcomings that
the grievor was then released.
On these facts, was the grievor "appraised contrary to the
governfng principles and standards”? There are not, apparently, any
'governing principles and standards" by which we can judge the present
case, nor was there any “apprd~al” in any formal sense. If we have
any jurisdiction to review the present release,under s.l7(2)(b), we shall
have to infer both an appraisal-and governing'principles and standards
against which to measure that appraisai. The Board left open the
question of a review under s.l7(2)(b) in Leslie, stating that it had
not been argued as fully as that panel of the Board would have liked.
Frankly, despite the earnest efforts of counsel, the argument was not
as fully dealt with before us as we would have liked, either. We do
not think counsel need carry any of the blame; the difficulty is that,
as the Board has seen in other cases, "appraisal" in parts of the Public
Service is an elusive concept. Here no formal appraisal process was
initiated in respect of the grievor; she was simply set to work,
trained for a few hours, checked on a few occasions and called in for
two interviews when matters had reached a crisis stage. In Re Scott and
Ministry of Transportation and Commni Cat-ions, 23/76r
the Board set a standard of reasonableness for appraisals where no
governing standards existed, on the grounds that apprdfsal standards,
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subject to review with the Union, are an exclusive function of the
Employer by s.l7(l)(b) of the crown .Employees~Cdlective Bargaining
s. The Employer'may not, by failure to set standards under s.l7(l)(b),
render void rights guaranteed to employees under s.l7(B)(b).
We shall, without proof, assume that the process by which the
grievor's release was decided constituted an appraisal, and apply.the
Scott decision to it. The question to be answered then becomes: was
it improper for the Employer to make an appraisal that the grievor had
not met the reasonable requirements of her position? With regret, and
with some sympathy for the grievor, we cannot find that either the
standards set or the judgment that the grievor did not meet them were
unreasonable or wrong. The position occupied by the grievor was a very
sensitive one. The technical qualifications required were not particularly
exacting, and the grievor appears to have been technically capable, but
the grievor was required to act in such a way as to bring credit to the
Province of Ontario, something which she was in a unique position to do -
or to fail very conspicuously to do. She was required, in short, to
suppress her natural reactions to other people, to deal with both difficult
and amiable people with equanimity and to exude an ~image of friendliness.
This, the evidence convinces us, she did not do. One of her co-
workers, who was sympathetic to her, was prepared to praise her other
attributes but stated flatly that, were he running a company, he would
not hire her as a receptionist. The Board, on the basis of the evidence
which we have heard and accepted, would not either. It is not necessarily
a condemnation of the.grievor to make this finding, and one could argue
that it shows considerable independence of spirit that she refused to
accept abuse and discourtesy without a fight. Unfortunately, courtesy
I
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was a part of the job she was required to perform and, however un-
pleasant that job may have been, it was the job for which she was being
'8ppr8iSed". In our view, if what the Employer did was an "appraisal",
that appraisal was not unreasonable.
Before leaving this discussion, we wish to observe expressly that
we have not determined that we have a jurisdiction to review releases
of probation automatically under s.l7(2)(b) by invoking the fiction of
an "8ppr8is.31". Because we have still not seen a case in which an
improper appraisal clearly raises the jurisdictional question, we prefer
to leave a final determination until such a case arises. We should
observe, however, that the Union's version of the s.l7(2)(b) argument
would have us determine that the "governing principles and standards"
fir the appraisal of probationary employees are the criteria set out in
Re Joyce and Ministry of the Attorney General, 21/76 and Re Eriksen and
nlnistrg of Correctioti Services, 12/75. Such a conclusion would be
an "end run" on the Leslie-case, and it would also ignore the Board's
jurisprudence on appraisals, which is based upon the Scott case and
requires that the Employer set standards or be subject to a test of
reasonableness. Moreover, we are in some doubt whether much remedial
authority would accrue to the Board under section 17(2)(b). The only
remedy the Board has ever granted for an improper appraisal is to strike
out the appraisal itself. If an improper appraisal had resulted in the
grievor's release, striking it out would hardly entitle the grievor to
her job back unless the Board were prepared to do yet another "end run"
on Leslie by expanding our perception of our remedial authority. Although
these comments are unnecessary to our decision, we feel we owe the Union,
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which has presented a careful and well-reasoned case, some expression
of our serious misgivings about the efficacy of s.l7(2)(b) in such cases
as the present.
The final argument to be addressed is whether the release of
the grievor was in fact a colourable device concealing a dismissal on
disciplinary grounds, which would be arbitrable under s.l7(2)(c).
Although the Employer advanced a strong argument that the .import of
Jacmin Y. Attorney General for Canada (1977), 78 C.L.L.C. para.
14,117 ;s.c.c.) is to take all releases on probation beyond the scope
of arbitral review, we have decided, on the basis of a review of that
case, that the ieslle decision more accurately summarizes the present
.position when it concludes that a release which camouflages a disciplin-
ary,dismissal will' be subject to arbitration under s.l7(2)(c).
Is the present case such an incidence of colourable release?
The evidence presented to us is not of~much~ assistance, and that is
perhaps understandable when one considers the tactical limitations
placed on counsel by the demands of'the jurisdictional dichotomy
between release and dismissal. Counsel for the Employer must convince
the Board that the grievor did not measure up to her job, but must
minimize evidence of bl,ameworthy conduct which would give rise to an
inference of disciplinary action. Counsel for the Union must convince
the Board that there were allegations of blameworthy conduct which
might attract discipline,without permitting the inference that any of
those allegations were sound. Such pressures tend naturally to present
an evidentiary vacuum.even where, as here, both counsel are scrupulous
in meeting their obligations to the Board as well as to their clients.
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In the result, of course, the Board can only decide on the
balance of probabilities based on the evidence before us. On that
evidence, we are satisfied that some of the griever's conduct had
a distinct tinge of blameworthiness, and that it constituted
"voluntary malfeasance". We accept the Union's argument that,
based On Leslie, Jacmin and Re Robertson and Treasky Board,
Public Service Staff Relations Board file 166-2-454, the hallmark of
dismissal is punishment for voluntary malfeasance, and that the
Employer's characterization of the reasons for release must be tested
against the objective evidence. We also agree that, on the sort of
evidence presented, the Employer could not successfuliy maintain a
case of dismissal for cause.
West of the events of which the Employer complained were incidents
where, as,in the altercation between the grievor and another employee's
wife, different perspectives might produce different assignments of
blame. As Mr. Goudge pointed out in cross-examination over and over
again, neither of the two co-workers could possibly have known whether
the grievor had lost her composure on the telephone with a client or
with a friend or relative who had made a personal call, nor whose "fault"
the altercation might have been. We accept that the Employer's reason for
tetminatlng the grievor's employment was not a list of specific instances
in which she could be found specifically at fault. Rather it was the
totality of her dealings with other people, a record marked with alter-
cations, language and expressions out of place where the public is being
received,and a continued brusque and unhelpful attitude towards those
whom it was her main function to serve and assist.
I,2
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The line between dismissal and release is a fine one, and in
the end the Board must decide on which side of that line a particular case
belongs. In this case, we are satisfied that the grievor was released for
failure to meet the requirements of her position and that that release did
not camouflage a dismissal on disciplinary grounds.
In the final result, the grievance is dismissed., We wish to
thank Mr. Goudge and Mr. Riggs for their helpful argument and courtesy
in this matter.
Dated at Toronto this 5th day of June 1979.
Professor K. P. Swan Vice-Chairman
I concur
Mr. A. Fortier Member
fcotmnents to follow1
Mr. R. Cochrane Member