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HomeMy WebLinkAbout1980-0366.Ekholm.81-08-03SETTLEMENT .ci 366180 IN THE MATTER OF AN ARBITRATION Linder The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Mr . Robert Ekhoim Grievor - And - The Crown in Right of Ontario (IMinistry of Northern Affairs) Employer Before: Mr. R. L. Verity, Q.C. Vice Chairman Mr. A. Reistetter Member Mr. J. McManus Kember For the Grievor: Mr. I. Rolland, Counsel Cameron, Brewin & Scott For the Employer:, Mr. D. Brown, Q.C., Counsel Ministry of the Attorney General Mr. J. Zarudny, Counsel IMinistry of the Attorney General Hearing: April 16, 1981 .-. ,T _ -2- INTERIM AWARD All Parties appeared before the Board on Thursday, April 16th, 1981, regarding the matter of Robert Douglas Ekholm who grieved that his employment was "unjustly terminated" pursuant to Section 17(2)(c) of the Crown Employees Collective Bargaining Act, 1972. No evidence was heard on April 16th. ~ The Employer presented a preliminary jurisdictional issue on the burden of proof. Briefly, the Employer's motion was that%he Board had no jurisdiction to consider the merits of the Grievance of what appeared initially to be a release of a probationary Employee pursuant to,Section 22(5) of the Public Service Act until the Grievor had introduced "some evidence" that his termination was contrary to Section 17(2) (c) of the Crown Employees Collective Bargaining Act. In essence, the Employer alleged that the Board had no jurisdiction to entertain the merits of the Grievance .;without a shifting of the traditional onus of proof to the Grievor to satisfy the Board that the matter before it constituted a "discharge" rather than a "release". The Board requested written argument on the jurisdictional issue; subsequently very complete and able written submissions were presented by Counsel. -3- In a determination of the issue, the Board sets forth the relevant Sections of the legislation, and the relevant Collec.zive Agreement. "Release" is set forth in Section 22(5) of the Public Service Act, 1970 R.S.O. Chapter 386 and all amendments thereto: "A Deputy Minister may release from employment any public servant during the first year of his employment for failure to meet the require- ments of his position." "Dismissal" is set out in the relevant Collective Agreement in Article 27.6.1 as follows: "Any probationary employee who is dismissed or released shall not be entitled to file a grievance." Section 17(2)(c) of the Crown Employees Collective Bargaining Act states as follows: "In addition to any other rights of grievance under a collective agreement, an employee claiming, . . . . (c) that he has been disciplined or di,smissed or suspended from his employment without just cause, may process such matter in accordance with the grievance procedure provided in the collective agreement, and failing final determination under such procedure, the matter may be processed in accordance with the procedure for final determination applicable under section 18." % .- -4- The Grievor's Counsel's written argument'on the issue contains an excellent summary of the Grievance Settlement Board's jurisprudence concerning dismissal and release beginning with the Leslie case (G. S. B. 80/77) and is worthy of repetition by the Board: " (a) A probationary employee, that is,a person in the first year of employment in the classified service, as well as seniority rated employees, have the protection of subsection 17(2)(c) of the Act and therefore cannot be dismissed without just cause. They have access to arbitration before this Board, ~~ and the Collective Agreement may not dercgate from the employee's right to access to grievance and arbitration proceedings. (5) Cc) (d) There is a factual distinction between. "release" (termination for ,non-disciplinary reasons) and "dismissal" (termination for disciplinary reasons). The Collective Agreement specifically disentitles a probationary employee from filing a grievance and, unlike the situation of a "dismissal", Section 17(2) of the Act does not override the prohibition in the Collective Agreement so that a probationary employee does not have the right to grieve or have his "release" arbitrated. Consequently the Board does not have the authority to review the merits of a release, it may only review the merits of a dismissal. Importantly, the Board does have the jurisdiction to review the merits of what purports to be a release if it was in reality a dismissal. 'The Board's job, therefore, is to examine the facts to determine if what is in form a release was in substance a dismissal'. (Leung G.S.B. 00/7B at p. 6) " - 5 - In the instant case, the Grievor claims that he has been dismissed, and the Employer argues that the Grievor was not dismissed but simply released. Therefore, the obligation upon the Board is to characterize the Employer's action as a dismissal or as a release. The Board cannot accept the Employer's argument that the burden of proof shifts to the Grievor in the circumstances. '.: Having considered the numerous precedents cited, the Board is of the view that the onus rests with the Employer to demonstrate that what in form purports to be a release, in substance is a release. The Employer who terminates an Employee's services by referring to it as a release does so forreasons known only to the Employer. The Grievance Settlement Board has established the fact,beginning with the Leslie decision referred to above,that the Board has power "to review a contested release to insure that it is what it proports to be" and the Board has a duty to satisfy itself "that the Employer, in good faith, released the Employee for a failure to meet the requirements of his position". It follows therefore, that such an evaluation required by the Board cannot be made on the evidence of the Grievor as it is surely.the Employer alone who is aware of the reasons for the release. Therefore the Board must be presented with evidence from the Employer to demonstrate that the subject matter before the Board was a release and not a dismissal. To determine the merits of the Grievance, the Board must be placed in a position to have heard all of the evidence of the circumstances s&rounding the termination of the employment relationship. The Beard does not agree that the doctrine of "presumption of regularity" is applicable to this case. Accordingly, the Hearing will be reconvened and the Employer shall be called upon to present its case. DATED at Brantford, Ontario, this 3rd day of September A.D., 1981. ,>-4 L .4c- 7 R1CBARD.L. VERITY,.Q.C. - CBAIRMA?J A. RBISTETTER - MBMEER