HomeMy WebLinkAbout1981-0596.Keane.82-03-18 _ - SETTLEMENT
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IN THE MATTER OF AN ARBITRATION
under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
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Before
THE GRIEVANCE SETTLEMENT BOARD
Between: OPSEU (Mr. Kevin Keane) � Grievor
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- And
The Crown in Right of Ontario
(Ministry or Consumer and
Commercial Relations) Employer
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Before: Prof. R.J. Roberts Vice Chairman
Prof. P. Craver Member -
�"' Mr. G. Griffin Member r
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For the Grievor: Mr. P. Cavalluzzo, Counsel ,
Golden-Levinson
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= For the F.mplover: Mr. M. Fleishman , Esq. �
Ministry of the attorney General "a
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Hearing: January 14 , 1982
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I.. Introduction
The present case raises a number of issues . The first
' of these is whether the grievor, a probationer , has a right
to grieve his "release" because it was, in fact, a "dismissal"
within the meaning of section 22 (3) of the Public Service
Act, 197G R.S.O. c . 386 , as amended, and section 17 (2) (c) of
the, Crown Employees ' Collective Bargaining Act. The second
issue depends upon our reaching a conclusion on the first
issue that the grievor was , in fact, "dismissed" , rather than
"released". This issue is whether the grievance should
succeed because the Employer failed to prove that the relevant
Deputy Minister delegated to the supervisor who terminated
the grievor .the Deputy Minister's statutory right to dismiss
for cause. The third issue depends upon our concluding the
foregoing issue against the Union. This issue is whether the
grievor was , in fact, "dismissed" for just cause within the
meaning of section 17 (2) (c) of the Crown Employees ' Collective
Bargaining Act.
II . Summary of Conclusions
we resolve the foregoing issues in the following way .
First, we conclude that the grievor was , in fact , "dismissed"
rather than "released" , and hence the grievor has the right
to grieve his termination. Secondly, we conclude against
the Union on the procedural issue which it raised, i .e. , that
the Employer had not proven proper delegation of the statutory
authority to dismiss . We do so because this was, in our view,
a mere procedural defect which would , at best, have entitled
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t& Union to an Award requiring the Employer to repeat the
procedure of terminating the grievor in terms of "dismissal" .
This would be a wasteful and inefficient exercise, particulary
in the light of the fact that the Union did not object to going
forward with evidence and argument on the substantive case.
Finally, on the substantive issue of whether the grievor was
dismissed for just cause, we conclude that he was, and hence,
we dismiss his grievance.
111. Release v. Dismissal :
We regard this particular issue as the most important
and sensitive matter raised in the case. The question has to
do with defining the scope of the right of a probationer to
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grieve his or her termination. In turn , this issue raises the
question of the degree to which this Board should fetter the
discretion of the Employer by (1) asserting jurisdiction to
review the termination of probationers ; and (2) formulating
and applying a standard of review against which to measure
the "justness" of the termination of a probationer.
It has become common to phrase in terms of "dismissal"
v. "release" the question whether the Board ought to assert
jurisdiction to review the termination of any particular pro-
bationer. This derives from the decision of this Soard in
Re Leslie and Ministry of Community-& Social Services (August
15 , 1978) , G.S.B. No. 80177 (Adams) , (hereinafter referred to }
as Leslie) . In that case, the majority of the panel concluded, !
"that (the) terms 'dismiss ' and ' release ' found in Section 22
1 -of the Public Service Act involve different concepts and that
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section 17 (2) (c) of the Crown^Employees ' Collective Bargaining
Act does not provide for the processing of a release (through
the grievance procedure] . . . . [w] e are of the opinion that
the bona fides release of an employee from employment made in
good faith during the first year of his employment for failure
to meet the requirements of this position cannot be considered
to be a dismissal as that term is used in both the Public
Service Act and the Crown Em to ees ' Collective Bar ainin Act. "
Id. at 12 . Since this decision, the question whether a proba-
tioner-' s termination may be grieved and dealt with under the
review power of this Board has been cast in terms of whether it
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was a bona fide "release" or "dismissal" .
As might be expected, the Union and Employer were not ad
idem regarding where -the dividing line between release and
dismissal ought to be drawn. The Union submitted that a termina-
tion of a probationer ought to be treated as a grievanle dis-
missal if it is for conduct which is a ground for discipline.
The Union defined "conduct which is a ground for discipline"
as conduct which constitutes voluntary malfeasance rather than
involuntary malfeasance due to , e.g. , illness or incompetence.
Because the grievor was terminated for acts of voluntary mal-
feasance, the Union submitted, he was "dismissed" and hence
had a right to grieve.
The Employer, on the other hand, submitted that the
termination of a probationer may be characterised as a "release"
---and hence not grievable--so long as the
1 specifically intended as discipline. This was the case here ,
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the 'Employer continued, because the termination of the grievor
was based upon a general view held by his supervisors that,
for a multitude of reasons , the grievor simply was not going
to fit into the organizational structure of the Employer.
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In other words , the termination was a non-reviewable release
because it was not specifically intended as discipline.
Yeieri we reviewed the authorities on this issue, it seemed to us that the
position of the Employer found some support in a recent decision
of this Board,. Re Leung and Ministry of Industry and Tourism
(June 10 , 1980) G.S. B. No. 80/78 (Saltman) , (hereinafter referred
to as Leung) . I�i that case the panel concluded that the grievor
was not "dismissed" because there was "no indication that the
termination was ;motivated by an improper purpose or for dis-
ciplinary reasons. There was no evidence of misconduct on the
part of the grievor or of the intent to take disciplinary
action on the part of the employer . " 'Id. at 11 (emphasis
s replied) . Applying this requirement for the termination to
be specifically intended as discipline , the panel in Leung
concluded that the termination of the grievor was a release
even though she was terminated for acts of voluntary malfeasance
w-.ich were within her control. it was stated in the Award that
"the grievor was released because of allegedly poor typing
skills and poor working relations with other employees and
clients and what seems to be a personality clash with her
Supervisor, Mr. Wilson . " Id. at 10. Accordingly , were we to
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apply the broad reasoning of Le- ung, we would be led to
reject the foregoing submission of the Union.
We are not, however, inclined to do so. It seems
to be evident from a review of Leung that the panel based
its "intent" requirement upon certain statements made by
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the Supreme Court of Canada in Re Jacmain and the Attorney-
General of Canada and the Public Service Staff Relations I
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Board (1977) , 78 C,L.L.C. 14 , 117 (S .C.C. ) . We believe
that this aspect of Jacmain ought to be applied with
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caution in cases before the Grievance Settlement Board.
It must be borne in mind that Jacmain was a case involving
the right of a probationer in the Federal Civil Service
to seek adjudication of his "rejection" after being
disappointed in a grievance proceeding. This required
the Supreme Court to determine whether the matter involved
"disciplinary action resulting in discharge" under the
express statutory language of s. 91 (l) (b) of the Public
Service Staff Relations Act, R.S .C. 1970 , c. P-35 . The
Supreme Court viewed the case, then , as one which, if
successful, would provide a probationer with a right
in addition to the right to grieve.
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The entire thrust of Jacmain was toward defining what
was meant by the express statutory language of s .91 (1) (b) , I
"disciplinary action resulting in discharge, suspension or jl
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a financial penalty" . In an earlier case, Fardella v. The
Queen , (19741 2 F .C. 455 , the Federal Court of Appeal held
that "disciplinary action resulting in discharge" as used in
-- s. 91 (1) (b) did not mean the same thing as "discharge for con-
duct which is a ground for discipline" . The Federal Court of
Appeal added an intent element. In order for a discharge to
qualify as "disciplinary action resulting in discharge" , the
Federal Court of Appeal stated, it had to be a discharge
with specific intent to discipline the employee for conduct
which is a ground for discipline. If the intent element was
missing , the employee did not have any _right of adjudication
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under s . 91 (l) (b) --even though his discharge was for conduct
which- is -a ground for discipline .
In Jacmain , the majority of the Supreme Court of Canada
adopted the reasoning of the Federal Court of Appeal in Fardella
supra . De Grandpre, J. said, "Heald J. , speaking for the Court
(of Appeal] , had previously referred to Fardella v. The Queen . . . ,
and written. . . .
I have no hesitation in expressing the view that
the conduct complained of in this case is a classic
example of behaviour which would justify rejection
of an employee during a probation period — It might
also be ground for disciplinary action even during
a probationary period. However, on the facts_ here
resented , it is clear that the employer intended
to reject and did in fact reject during probation
was was , in my view, quite entitled so to do. That
being so , the adjudicator was without jurisdiction
to consider the grievance under section 91 and -erred
in law in so doing. . . .
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I concur with these views of the Court of Appeal . " Jacmain , j
supra , at 15 (emphasis supplied) .
From that point onward, De Grandpre J. addressed the
question whether the rejection of the grievor was for disciplinary
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reasons solely from the standpoint of whether the employer j
specifically intended to impose discipline. The question whether
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the conduct of the grievor was a ground for discipline became '
'irrelevant to this determination. This was a narrow approach
to deciding the issue of accessability to the adjudication
procedure of s . 91 (l) (b) of the Public Service Staff Relations Act.
The reasons of De Grandpre J. for the majority indicate
that the majority favoured this narrow approach because the
Court did not wish to extend to probationers the same job
security as that enjoyed by permanent -employees . De Grandpre
J. quoted the now-familiar arbitration case , Re United Electrical
Workers & Square D Co. Ltd. ' (1956) , 6 L.A.C. 289 , 292 , to the
effect that "'[a] n employee who has status of being 'on probation '
clearly has less job security than an employee who enjoys the
status of a permanent employee. One is undergoing a period of
testing, demonstration or investigation of his qualifications
and suitability for regular employment as a permanent employee,
and the other has satisfactorily met the test. " Id. at 16 .
De Grandpre J. then added, "in the public sector, as in the
private sector, the employee who wants to improve his lot
must stir. , I hope, take certain risks. " Id.
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in Leunq , the panel apparently applied the "intent" element �
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of Jacmain without considering whether there existed similar
reasons for taking a narrow approach toward defining grievability
under s. 17 (2) (c) . The panel merely denied jurisdiction of the
grievance, saying, "There was no evidence of misconduct on the
part of the grievor or of the intent to take disciplinary action
on the part of the employer. Id. at 11. we believe that in
so doing Leung might have applied Jacmain -in too broad a manner.
There do seem to be fewer reasons under the statutory
scheme of our legislation to apply to the question of review-
ability of the termination of a probationer the restrictive
approach adopted in Jacmain. Jacmain involved a different '
question under a much different statutory scheme. In that
case, the question at issue was not whether a probationer had
a right to grieve. The question was whether a probationer,
having grieved his rejection as of right (at least through a
series of administrative steps) , had a further right to take
-the matter to adjudication if dissatified with the result at
the various levels of the grievance procedure. *
In the present case, no such statutory scheme and no such
* . The statutory scheme governing these matters was very
different from the statutory scheme involved here. There
was provision for the "rejection" of a probationer or
cause" (s . 28 (3) of the Public Service Empiloyment Act ,
R. S.C. 1970 c . P-32) . This was followed by a grievance
process invoked by the probationer as of right (s. 90 of
the Public Service Staff Relations Act, R.S .C. 1970 c .
P-35) . Thereafter, there remained the possibility of
adjudication if the matter involved, according to express
statutory language, "disciplinary action resulting in
discharge, suspension or a financial penalty" (S . 91 (1 ) (b)
of the public Service Staff Relations Act, sunra) . '
express statutory language exists. Under our Provincial
statutes there is no express right in a probationer to grieve
his release even through the administrative steps . If the
grievor is- unable to bring his complaint within the scope of
section 17 (2) (c) of the Crown Employees ' Collection Bargaining
Act, no review whatsoever--whether of an administrative or a
adjudicative nature--is possible.
Perhaps this is why the panel. in Leslie, while approving
the part of Jacmain differentiating between "rejection" and
"dismissal" , did not appear to adopt t..he "intent" standard
of Jacmain in determining whether the termination of a pro-
bationer was in fact a "dismissal" which might be grieved.
Putting 'the question in the language of the Public Service
� . Act, the majority in Leslie concluded, "the bona fides release
of 'a probationary employee in the first year of his employment
made in good faith and for failure to meet the requirements
of his position cannot be contested before this Board under
S. 17 (2) (c) . . .The Board must only be satisfied that the employer ,
in good faith, released the employee for 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 not jurisdiction to review the fairness or
correctness of that determination under Section 17 (2) (c) . "
Id. at 13 (emphasis supplied) .
07 — Lander Leslie, the question whether a probationer was
"released" or "dismissed" , and hence whether the probationer
can grieve his termination, depends upon whether he or she was
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terminated for failure to meet the requirements of his or
her position. The definition of what comprises "the require-
meets of the probationer ' s position" must, therefore, be
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treated as crucial . Upon this definition rests the interest
of the Employer in being able to weed out unsatifactory
probationers without confronting the possibility of a full-
blown and expensive process of grievance and arbitration. On
the other side of the coin is the probationer 's interest in
being heard on a matter as important as the loss of his economic
livelihood,
When we balance .these interests--as the drafters of the
legislation must have when they drafted the relevant provision
of the Public Service Act--we conclude that the drafters must
have intended the expression "requirements of his (or her]
position" primarily to mean job requirements such as those
which are set forth in the descriptions the government
generates for positions in the public service (which usually
are referred to at great length- in the context of classifica-
tion grievances) . We do not think that the definition of this
expression was intended to encompass other things such as
the usual requirements to report for work on time , avoid abusing
sick leave, or avoid engaging in acts of insolence to super-
vision .
There are several reasons why we believe that this :.lust
have been the intent of the legislature. First, there is the
unusually long probationary period. A person is a probationer
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with the Provincial Government for a period of up to one
is considerably longer than is usual in the industrial setting,
where probationary periods of 30, 60 or 50 days are common .
Secondly , acts of tardiness, etc ., fall squarely within the range
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of behaviour for which discipline is traditionally administered.
That such acts were not intended to form the basis of a non-
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grievable release seems to be reflected in section 17 (2) (c)
of, the Crown Employees' Collective Bargaining Act, which permits
. all employees , including probationers , to .grieve acts of dis-
cipline falling short of termination . Surely the legislature
.could not have intended to encourage supervisory personnel to
terminate probationers rather than , e.g. , suspend them, in
order to avoid the submission of a grievance that the pro-
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bationer was disciplined without just cause. t
Finally , it seems to us that in Leslie, the majority
applied the same definition of the expression "requirements
of his position" as we adopt here. In Leslie , the grievor
was an occupational therapist involved in an experimental and
evolutionary infant stimulation program. Communication among
the members of the team apparently was very important because
the team had decided to adopt a "transprofessional" format
under which each member of the staff "had to become conversant
and effective in all of the relevant program disciplines. " Id . 20 .
The job requirements for the grievor' s position surely emphasised
the "team" aspects of the job.
The relevant supervisor, in good faith, determined that the
grievor Failed to meet these job requirements. The grievor
failed to fit into the team. Id . at ' 20-21 . Further,. " (slhe
experienced substantial difficulties in comprehending the
tests which were the essence of the program and in contributing
to the development of the program. over time, her fellow
employees came to view her as a drain on their time and energy.
- . Complicating these problems was the grievor' s disagreement
with the objectives of the program. . , . (T]hose responsible for
the program were not happy -with her performance on a number of
fronts and a massive rrorale probler. had set in vri:ich was, in
part, a product of her attitude and capacity to adapt. " Id, at
-- 20 .22. In other words , the attitude and capacity of the grievor
were such that she failed to fulfill the core requirements
pertaining to her job.
We emphasise the words used in Leslie , "attitude and capacity" ,
in conjunction with the failure of the grievor to meet the re-
quirements for her position. The Union in the present case
essentially submitted that acts of voluntary malfeasance
which might be the subject of corrective discipline should not
be the basis for a non-grievable release . he disagree . The
word "failure" as used in section 22 (5) of the Public Service
Act encompasses both voluntary and involuntary deficiencies such
as attitude and capacity. If the legislature had desired
-- to exclude acts of voluntary malfeasance from forming the basis
of a "release" it surely would have used a word like "inability"
or " incapacity" rather than the word "failure" . It seems to us
that failure to meet in an acceptable way the job requirements
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for a particular position can form the basis for a release
whether or not the grievor might have been able to correct
his or her attitude or behaviour.
� We now proceed to determine whether the termination of
the grievor in the present case was , in fact, "for failure to
meet the requirements of his position" and hence cannot be
grieved. We find that while the grievor failed to meet a
number of the requirements of his position, the failing
which triggered his termination involved lack of punctuality.
In the light of this we conclude that the termination of the
grievor cannot be characterised as a non-grievable "release" .
On April 1 , 1481 , the grievor was hired as a Clerk II ,
.s
-Licensing and Filing, by the Ontario Racing Committee. Apparently
the Commission maintains a small Head Office -in Toronto . One
of the functions performed in this office is to maintain and
control the licensee files of the Ontario Racing Conunission .
These files contain the applications and data on all licensees
of the Commission in Ontario. The material is filed by the
licensee name and according to whether the license is for
standard bred , thoroughbred or both types of ho=ses . The
Head Office also functions as a base of operations for
officers of the Commission who must go out into the field_
i In addition, there are hearing rooms in the Head Office where
the Commission holds hearings in matters relating to its
licensees .
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The main duties of the grievor were to maintain and
control the licensee files . All witnesses at the hearing
appeared to agree that this function would take up about 50
to 60 percent of the grievor ' s job . Essentially, this function -
enCails taking applications from the field, putting the ap-
plications in appropriate file folders which are colour coded
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according to the type of licensee involved, and then filing
them manually by licensee name. The remainder of the grievor 's
job involved making certain purchases, processing accounts
payable, requisitioning need office supplies and forms , main-
taining the supply room, assisting iri mass mailings and other
related duties as required.
The grievor was over-qualified for this job. The job
specification required a person with grade 10 to 12 education
or experience. - The grievor had a Bachelor of Arts degree in
Economics from -McMaster University and some supervisory
experience with Radio Shack. In his interview prior to being
hired, the grievor acknowledged his over-qualification but
indicated that he was willing to give the job his best efforts
and that he viewed it as the beginning point for future ad-
vancement within the Government.
Soon after being hired, the grievor' s job performance
and attitude began to belie the enthusiasm he indicated in
his interview. His work production was about 1/3 of what his
supervisor, Mr . G. S . Cahill , considered to be normal . It
was noted that the grievor had a less than smooth relationship
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with his cc-workers ; his attitude toward and his interest in
his job were poor; and his reaction to requests from super-
visors appeared to be unproductive. On F.pril 21 , Mr . Cahill
discussed these matters with the grievor. On April 22 , these
matters were made the subject of a letter from Mr. Cahill to
the grievor.
In the ensuing 3� months there was little sign of im-
provement by the grievor, despite several discussions with
his supervisor and the rendering of two formal performance
appraisals indicating that considerable improvement was necessary.
On August 17, 1981 , the grievor was recommended for a merit
increase; however, it was indicated in a contemporaneous letter
to the grievor that the increase was given with reservation be-
because of the problems that were being encountered with the
grievor, but in light of a somewhat improved effort by him of
late and to encourage him to continue to improve, he would
receive the increase. The letter stressed that the grievor
needed to continue improving if he wished to see his six month
merit increase .
Apparently, this letter had little impact upon the .
grievor. On August 26 , 1981 , Mr. Cahill ' s supervisor, :sir.
F.C. Paradis , wrote to him a letter recommending that the j
grievor be released. Mr. Paradis wrote this letter because
he was forced, in Mr. Cahill ' s absence, to deal with some
incidents involving the grievor which led him to conclude
that the grievor "is not capable of performing his duties
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to the satisfaction of senior administrative staff and is
a disruptive and negative influence on our operation . " The
incidents detailed in this document related to the grievor ' s ,
lack of interest in his job which was indicated by his failure
to listen to and carry out simple instructions issued directly
to him by Mr. Paradis; an irresponsible attitude indicated
-- by a report. from an administrative official of the Ministry
that he noticed the grievor lounging in the foyer of the
Commission at. a time when supervisory staff were not around
to observe him; and verbal abuse by the grievor of a summer
student, indicating continuation of his problem in getting
along with other employees.
On August 28 , 1981 Mr. Cahill issued a letter to the
grievor which was in the form of a final warning that if his
attitude, work performance, abrasiveness with co-workers ,
,etc. continued unabated, "you will face termination with this
- organization. " This letter was given to the grievor in the
course of a meeting with Mr. Cahill and Mr. Paradis which had
been called to discuss the problems that the grievor was
continuing to have. The grievor was asked to go home, consider.
the letter, and think about his job and his goals over the
week ahead, and decide whether he wanted to continue his
employment with the Ontario Racing Commission . On the following
Monday morning, August 31, the grievor met with Mr . Cahill .
They discussed the letter of August 26 . Mr. Cahill stressed
to the grievor that it was imperative for him to devote him--
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self to his work and do what was asked of him, to be punctual
and listen carefully to instructions .
F Soon, however, it became apparent that the grievor was
' not improving. In one instance, he indicated to a supervisor
that he could not find a particular file in the file room.
Mr. Cahill then went to the file roam and immediately found
the file right where it was supposed to be. A few days later,
_ the grievor reported late for work, indicating that he had slept
in. Mr. Cahill testified that he was flabbergasted by this
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because this had occurred only days after the final warning
and the two meetings with the specific instructions to the
grievor to improve, inter alia, in the area of punctuality.
This , apparently, was the straw that broke the camel ' s back.
On September 9 . 1981 , the Employer delivered by hand to
the grievor a letter releasing him from his position. This
letter stated, in pertinent part:
.w,. "Your Supervisor has reported that the quality of
-- your work has proven to be unsatisfactory .
Therefore , as you have not met the requirements
_ of the position , I must advise you that you will
be released from the Ontario Public Service in
accordance with Section 22 (5) of the Public
Service Act (R. S .O. 1970) . The effective date
of your release will be September 23 , 1981 .
It is unfortunate that you have been unable to
meet the standards required of the position . I
wish you success in finding other employment.
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Yours truly,
Leon Dorf ,f ,
Manager, Personnel Services. "
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Thereafter, on September 10, 1981 , the grievor filed the
grievance leading to the present arbitration .
While it is true that the reasons for terminating
the grievor included incidents of irresponsibility , mis-
conduct on the job and failure to carry out his job assignments
with reasonable care, etc . , there also were other reasons which
did not relate to failure to perform adquately the job require-
. ments relating to his position. Included in the reasons for
release were incidents of inability to get along with other
employees , and, of course , the tardiness of the grievor which
ultimately triggered his termination. It seems to be unclear
which of these reasons were deemed by the Employer to be
Controlling; however, given the nature of the case and the '
nature of the conduct which triggered the termination of the
grievor we conclude that- the grievor was not, in fact, "re-
leased" within the meaning of s . 22 (5) of the Public Service
- Act, but rather was "dismissed" within the meaning of s . 22 (3)
of this Act.
IV. The "Delegation" Issue :
The Union submitted that if we were to conclude--as we
have---that the grievor was "dismissed" inztead of "released" ,
the Employer should fail because the Employer did not submit
any proof of proper delegation of the statutory authority to
dismiss ., We disagree. The Employer proceeded on the premise
that the grievor was "released" . In accordance with this
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t premise , the Employer proved authority to release . we do
not think that the .Employer should be penalized for failure
to anticipate the decision we reached above--particularly in
the light of the fact that we reached our conclusion only after
a lengthy analysis of an involved and complex issue.
Moreover, we do not see that the Union has much to gain
` through success on this issue. What is involved is , at best,
a mere procedural defect which might have entitled the Union
to an Award requiring the Employer to repeat the process in
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terms of "dismissal" . This would be a wasteful and inefficient
exercise, and one that we are not inclined to require in view
of the evidence we already have before us regarding the merits !
. of the case. In this regard, we note that the Union did not
object to going forward with evidence and argument regarding
the merits .
We conclude , therefore , that the merits of the case properly
are before us. We have jurisdiction to review the termination
of the grievor under s . 17 (2) (c) of the Crown EmDloye_es ' Col-
lective Bargaining Act.
V. Standard of Review Applicable to Termination o.= Probationers :
our determination, above, brings us to the question of
what standard of "just cause" ought to be applied when the
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Board reviews the merits of a grievance involving the termina-
tion of a probationer. we conclude that the Board ought to
apply a lower standard of "just cause" than that applied in
reviewing the dismissal of a permanent employee.
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r The termination of a probationer implies the application
of a lower standard of review for "just cause" than does the
termination of a permanent employee. We agree with the
relevant part of the Square D award that was quoted by De
Grandpre J. , in Jacmain , and we reproduce it here:
An employee who has status of being "on probation"
clearly has less job security than an employee who
enjoys the status of a permanent employee. One is f
undergoing a period of testing, demonstration or
investigation of his qualifications and suitability I
for reqular employment as a permanent employee, and
the other has satisfactorily met the test. . .Although i
it is apparent that any employee covered by the
agreement can be discharged for cause at anytime,
the employment of a probationer may be terminated
if, in the judgment of the company prior to the g
completion of the probationary period, the pro- }
bationer has failed to meet the standards set by
the company and is considered to be not satisfactory.
It long has been held by the majority of arbitrators that "an
employer is entitled to discharge a probationary employee
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on . . . grounds . . . which might not support the termination of
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a seniority rated employee" . Brown and Beatty , at 341 .
Upon reviewing the merits of the grievor ' s claim under
the lower standard of "just cause" which appropriately is
applied to probationers, we conclude that the Employer had
ample cause to terminate the grievor in the present case .
This was not a case of the grievor being terminated for a j
single incident or even a series of incidents occurring within
the space of a short time. The grievor was involved over a
considerable period of time in a series of similar incidents .
Over the entire period of time , the Employer patiently attempted
to induce the grievor to correct his behaviour by pointing out
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,his deficiencies to him, and even using a form of positive_
re-enforcement (the merit increase) to induce the grievor to
bring his conduct within acceptable limits . In these cir-
cumstances it seems that no amount of corrective discipline
would have been of any assistance to the Employer, and the
Employer was entitled to infer from the conduct of the grievor
that this was the case.
VI . Conclusion
The grievance is dismissed.
DATED AT London , Ontario this { day of
1982.
Ic-
. . R bents , Vice-Chairman
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I concur - see addendum
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G. Griffin , Employer Nominee
I concur with partial dissent (see attached)
P. Craven , Union Nominee
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1 ADDENDUM K . KEANE
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I agree with the Chairman ' s decision to dismiss the grievance
in this case .
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However , in assessing a probationary employee ' s suitability ! �
for full time employment status , it is my opinion that such
employee ' s' suitability should be examined in a broader context
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than - is indicated by the Chairman in this award .
While satisfactorily meeting the job requirements , as described li
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in the specific Job Description , is an integral part of any
such assessment , an employee ' s compatibility , attitude , and
attendance are additional factors on which probationary
employee ' s suitability has historically been examined .
In the instant case , evidence was presented as to the Grievor ' s
failure to satisfactorily complete the mechanical functions
of his position in addition to attitudinal problems , result-
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ing in lateness and a lack of compatibility with his co-workers .
In an effort to improve the Grievor ' s performance and attitude ,
the employer , as is his right, chose to deal with him in a
non-disciplinary manner .
The Grievor ' s performance and attitude did not improve to a
satisfactory level and , accordingly , in my opinion , he was
properly released for failure to meet the requirements of
his position .
G . K . Griffin
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596/81 [Keane j
DISSENT IN FART
M It is only after much consideration, and with some regret, that I find
I am unable to concur in all aspects of Professor Roberts' thoughtfi-U
award. . While I find myself in agreement with much that he has t,_, say, I
have had to conclude that on several important points I would carry the
logic of the award rather further than he has done. Let me begin, then , by
indicating those areas in which I agree with Professor Roberts as far as he
goes, but would want to take the argument -- and the policy of this Board
-- at least one step fLkrther.
First, I wholeheartedly share Professor Roberts' disinclination to
ollow the holding of this board in Leung and import an "intent" require-
ment into the determination whether the termination of a probationer' s
employment is to be characterized as "release" or "dismissal " within the
statutory jurisdiction of the Grievance Settlement Board. As will appear
below, I would go further and raise the question whether the judgment in
Jacmain, which Professor Roberts has determined does not bind us in this
one respect, is binding in any r�-,seect on this Board. In any event, I
- concur in his holding that this Board need not find that the emp1oy_r
intended to discipline an employee in order to determine that what purpor-s
be a release is in fact a disciplinary dismissal .
°3e?ionti, I agree with Professor Roberts that the 5tatutor` i an a e
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which permits release for failure to meet the requirements of the positiln
is trs be interpreted as meaning primarily the " job requirementz such as
those which are set forth in the descriptions the government generates for
positions in the public service, " and not "other things such as the ?usual
require-ments to report for work; on time, avoid abusing sick: leave, or avoid
engaging in acts a+ insolence to supervision. " Similarly, I agree with the
reasoning that leads him to this conclusion: specifically the length of
'7e probationary period for crown employees; the fact that such matters as
absenteeism and tardiness "fall squarely within the range of behaviour for
which discipline is traditionally administered; " and the apparent absurdity
that would follow from the alternative view (that the legislature intended
to permit probationers to grieve only discipline that fell short of dismis-
sal ) which would imply that the legislature intended "to encourage super-
visory personnel to terminate probationers rather than, e. g. , suspend them,
in order to avoid submission of a grievance that the probationer was disci-
plined without just Cause. " Once again, though, as I set out below, I
would have been prepared to go somewhat further than Professor Roberta in
:ploring the full implications of these reasons.
Let me emphasize again that I concur in both these important findings.
I believe they amount to real progress in the recent jurisprudence of this
Board dealing with probationer 5° grievances against their purported release
from employment. To the extent that I dissent, it is on the basis of ,ny
view that it is open to this Board, largely on the reasoning employed by
Professor Roberts, to go a step further. In essence, our disagreement can
b reduced to two issues: the bearing of the Jacmain judgment pr this
rribUn•al ' s jurisdiction , and the proper standard of review applicable t
ur' �b�i_i �n:=rs who arieNe that they have been discharged w:t^,aLtt jusz cause.
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JACMAIN AND THE GS8
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It will be helpful at this point to review briefly the develop sent of
this Boards jurisprudence in matters of this nature, and the effect of the
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Supreme Court of Canada' s decision in Jacmain on it. Essentially, it will '
be seen that before this board adopted the view that its jurisdiction was i
limited by Jacmain it had developed through a line of cases the view that
had under the Ontario, statutes a fairly broad jurisdiction to consider
the claims of probationers that they had been "released" improperly. The
development of this domestic jurisprudence was truncated by the hnldinq in
Leslie (Oo/77, Adams) that Jacmain was binding can this Board. Subsequently
panels of this Board have wrestled, in my view with incomplete sicccess,
with the implications of this holding , and our jurisprudence has taken a
rather different turn. I have arrived at the view -- and in this I should
confess that I have been assisted by Professor Roberts' reasoning if his
award in the present grievance --- that Leslie was wrong; that Jacmain need
not bind this tribunal ; and that the statutory interpretations set out in
the earlier line of cases are to be preferred to the more recent ones.
The board' s former approach is identified with a series of deter-
minations made by Professor Beatty, who developed the approach to pro-
bationers' grievances he had first set out in Porcupine Area Ambulance
Services (7 LAC ( d) le') and applied it to the jurisdiction oaf this
tribunal in Joyce (21/76) . Eriksen ( 12/75) and Mahmood ( 115/76) . He held
that probationers were entitled under our statutes to grieve their "re-
lease. " be it for disciplinary or non-disciplinary reasons, We had the
j isdictian to determine whether what purported to be a release �c.s : n
ct _< disciplinary dic;missal , and i+ we so toured we could ing4Eiru _nt`
cause and into the appropriateness of the penalty. Beyond this, Vic- coulc
determine whether a.nv release, including a non-disciplinary release, w_-t 5
reasonable. This broad jurisdiction, however , was relatively severely
tempered (as Mahmood made clear ) by a standard of just cause that was mere
restrictive for probationers than for employees with seniority, in keeping
with arbitral notions of probationary status and the purposes of the pro-
bationary period. This original phase, then, saw this Board embrace a
fairly broad jurisdiction over grievances by probationers against their
_�rmination, and develop a set of standards appropriate to the statutory
language that governed the Board, and to the nature of the probationary
period in crown employment generally. For what it is worth, I note than
none of these earlier decisions was sent to the courts for review.
Then came the Supreme Court judgment in Jacmain and this Board'
determination in Leslie. It is clear +rpm that decision and from comments
in subsequent awards that this tribunal believed that Jacmain substantially
narrowed its jurisdiction. Leslie and the subsequent cases accordingly.
marked a retreat from the earlier jurisprudence. The Board now believed
' 7at it had no jurisdiction to determine a probationer' s complaint that he
or she had- been released improperly unless it were first satisfied that the
termination was in fact a disciplinary dismissal masquerading as a release:
in essence, that the employer' s claim to have "released" a probationer was
males fides'. Moreover, the current jurisprudence would seem to place an
initial onus on the probationer who contests his or her purported release
to show a course of blameworthy conduct that should have attracted discip-
line (or at least to show that such conduct, real or .merely purported, was
what motivated the "release" ) . And given the very restricted standard o.":
il-tst cause that panels of this Board have from tine to time acCQted .. ,
:, probationer cases, the grievcar in question might often rind th=,t in sans-
. ,
fying this onus and thereby permitting the Board to take jurisdiction, of
i the matter he gains something worse than oven a Pyrrhic victory: that is
to say, the grievance is upheld to the extent of finding that the term-
ination was not a release but a disciplinary dismissal , and then the dis-
missal is upheld on the restricted standard of just cause. In policy terms
" at least, the present situation is an unfortunate one. as it constitutes a
°4 serious disincentive to aggrieved probationers who might otherwise seek __;
zemedy, and sustains what in my view is an unwarranted and outdated prac-
tice of substituting release for discipline, rather analogous to the "gUit
or be fired" scenario which invites the abandonment of employee rights.
In any event, to resume the narrative, this Board has explicitly
recognized that the adoption of Jacmain in Leslie marked a break:: with its
earlier jurisprudence. Thus in Haladay (94/78 at 7) Professor Swa.n stated
that, "Leslie marked a change in the Board' s jurisprudence based on the
decision in Jacmain A decision to alter the Board' s approach to such
cases is not lightly taken, and the Board has taken the view that such a
range should only occur when the previous jurisprudence was manifestly
wrong Similarly Professor Barton said in Atkin (-=�-�8t> at 6) , " In
the now familiar cases of Joyce and Eriksen, some scope was iOUnd fcr a
Board to investigate the merits of a release. This review of the substan-
tive grounds of release of a probationary employee was severely restrictec
by the subsequent cases of Leslie and Haladay As a result of these
cases, which we accept, once a non-colourable goad faith release is faund,
the Board is powerless to consider the merits of it. "
In his award in the present grievance, Professor Roberts has found
c nd I have concurred in this finding) that one aspect at lea-t 0 t..e
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Flaolding in Jacmain does not apply to this Board: the importation of an
" intent" requirement into the determination whether a release was in fact a
disciplinary dismissal . As Professor Roberts states Eat 01 "The entire
thrust of Jacmain was toward defining what was meant by the empress
statutory language of Cthe relevant Federal statute] , ' disciplinary action
resulting in discharge, suspension or a financial penalty. ' In an earlier
case, Fardella v. The Queen, the Federal Court of Appeal held that
'disciplinary action resulting in discharge' as used in s. 91 ( 1 ) (b) did not
van the same thing as 'discharge for conduct which is a ground for dis-
cipline. ' The Federal Court of Appeal added an intent element . . In
Jacmain,, the majority of the Supreme Court of Canada adopted the reasoning
V the Federal ,Coart of Appeal in Fardella sggra. "
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In my viers, Professor Roberts is correct in his assertion that this '
determination constituted the ' "entire thrust" of Jacmain and in finding
that this essential and central element in that judgment is not binding on
this Board because the scheme and language of our statutes differ so can-
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siderably from those upon which the Supreme Court was called to decide.
ghat, then, is left of Jacmain? It is my submission that Professor
.oberts fails to address this question. In my view very little, if any-
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thing, is left. I would find that this Board was in error in determining
in Leslie that its jurisdiction was in any significant way fettered by
Jacmain. Indeed, I would join in the learned, and to my mind persuasive,
dissent Submitted in Leslie by then-Member Pamela Sigurdson. In
particulars the following paragraphs from that dissent deserve quotation
tat
24) :
" In my respectful submission the decision in W acmainl has
MO applicability to the Crown Employees" Collective Bargaining
Act which Qrants. in Section 17 12) , a much broader right cf
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review, Section 91 ( 1 ) of the Public Service Staff Relatio'ns Act
[the Federal statute which was interpreted by the Supreme Court
in Jacmain) only grants the right of adjudication in matters of
' disciplinary action resulting in discharge . . ° Inherent in
that is the ,corollary proposition that a "rejection far. cause"
under Section 28 (• ) of the Public Service Employment Act or a �
release i5 not adjudicable. Under Section 17 (2) the release of
.z probationary employee under Section 22 (5) can be reviewed `
either as a "dismissal " under ss. (c) or under ss. (b) : this is
the cldar statement of Eriksen and Joyce. The concept of "dis--
cipline" in Section 17 (2) (c) encompasses the act of dismissal
for disciplinary reasons. Therefore, the concept of "dismissal "
in the same ,subsection must refer to matters other than discip-
linary action. Whether an employee is dismissed or released the
result is the sane in that her employment is terminated for non-
disciplinary reasons.
"Should I be in error that a release is not encompassed by
the concept of dismissal in (c) then Clearly the action of an 1
employer in evaluating and taking action upon that evaluation
(termination) are subject to review under Section 17
There is no similar concept in federal legislatiror..
"Under either subsection this Board is entitled to assess the �
actions of management in determining whether the probationer has
either been ' dismissed without just cause or has been appraised
correctly according to governing principles and standards. As
stated in Eriksen, a probationer has all the rights of an "em-
ployee" unless clearly and specifically taken away. If a pro-
bationer was not entitled to come before this Board the Legis-
lature would have so provided in wards similar to 99. 49 ( 1 ) of the
Public Service Act Regulations (see Eriksen as to inapplicability
of this provision) . "
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For all these reasons, then, I would have determined that Jacmain is
not binding an this Board and that Leslie was manifestly in error , in
..olding that it did. The consequence, in • my view, should be a return to
the interpretations and standards developed b this Board t �
p P Y prior to the {
change of direction in Leslie.
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THE STANDARD OF REVIEW l`4
The second area of disagreement between Professor Roberts and r:�.seZf I
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is the appropriate standard of review to be adopted by C; is Sna.rd in
;�termiri-nq the grievances of probationers who claim to ha%-e had their
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e,-nplpyment terminated improperly. As already indicated , 1 concur in Prc-
w. fessor Roberts' finding that such matters as the length of the probationary
.x'
,.. period for crown employees must be taken into account in deciding what
construction to place on the term "release" in our statutes. In my view,
the same considerations should apply to devising an appropriate standard or"
review.
On my submissions as to the applicability o+ 3atmain it is clearly my
view that this Board has jurisdiction to determine grievances by pro--
-ationers against their termination whether that termination is a discip-
linary dismissal , a disciplinary dismissal masquerading as a release, or a
bona fide release. As to what standard ought to be applied in the latter
case, much reasoning will be found in the awards of Professor Beatty, cited
above, . and in particular in Mahrnood. I would only say here, by way of
emphasis, that this Board should be prepared to disallow a rele--.se for
failure to meet the requirements of the position when the grievor can show
that he or she has not been given an adequate opportunity to demonstrate
that he or she can meet those requirements. This would include (but is not
t ?stricted to) situations where the grievor' s workload is unreasonable, or-
where Seriously conflicting demands have been placed on the grievor. In my
view it is open to this Board to consider whether there has been a marked
discrepancy, either in type or quantum, between what is specified in the
position description and what the grievor has been required to perform, and
this follows from Professor Roberts' holding that what is of essence in
release is the job specification. Similarly, I would think it open to the
Board to consider whether the employer has clearly communicated its perfor-
mance expectations to the griavar .
In matters involving discipline, It is comi-kion rcund aiToGil4 r�ltrdt]1
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that the concept of probation implies a somewhat lower standard rf a._;st
cause. than would be required in matters involving employees with Seniority.
The difficulty, of course, is in determining just what the difference ought
to be. In Leslie this Board followed what it took to be the decision it
Jacmain and adopted the approach of Square D Company Ltd. , and Professor
Roberts has followed Leslie in this respect. In my view, however , the
rather draconian rule in Square D, a case that is now a quarter--century
old, has been overtaken by developments. both in modern labour-relations
-actices and in the arbitral jurisprudence. The more recent arbitral
view, the view of preference especially in light of the unusual length of
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the probationary .period in Ontario crown employment, is that developed by r
Professor Beatty in the earlier jurisprudence of this tribunal . (Here
again I should acknowledge thatl have been anticipated on this point by Ms. F
Sigurdson' s dissent in Leslie, at 6. )
It would seem to me that in devising a standard of review in discip--
line cases we would be guided by some of the same considerations that bear
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an the release cases. We would want to be certain that the employer ' s
t?xpectations were clearly communicated to the probationer, that they were '
:
reasonable expectations, and that at least some attempt at corrective
discipline was made before a decision to dismiss the employee was taken.
One of the central notions that in my view distinguishes modern under-
standings of probation from that taken in Square D is that there is at
least some onus on the employer to provide a fair opportunity for the
probationer to demonstrate his ability to perform. This is significant as
much in discipline as in release, and in the former I think: it implies a
requirement of progressive discipline. It is not enough to say. with
Square p, th:a.t the probc.tiener is on trial : it is also up to the enplo',er
en=_ure that thc- trial is a fair one and that the emplovee is ofrerea -.n
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opportunity to correct his mistakes.
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In suns,' to say that there is a ldsser standard for probatiQn42rs thErn
for regular employees is trite. It is extremely difficult to determine
just where that difference lies. Few arbitrators would say that it is
permissible to discipline a probationer for something that a regular em-
ployee would not be disciplined for. Perhaps, then, the difference is one
0
of quantum: perhaps a probationer might receive a one--day suspension, say,
for something that in the case of a regular- employee with a good record
would merit nothing more severe than a reprimand. But to say this is
surely to say that the employee' s record o+ appropriate behaviour is to be
taken into account in .assessing the quantum of discipline, and it is di -r'-
ficult to see why, if that is all that is at issue, a probationer in the
tenth month of service ought not to be given the same benefit as against
his counterpart who has been an the job only a few weeks. Fart of the
difficulty, once again, arises out of the very long probationary period in
crown employment, often in jogs identical to private sector equivalents
that have probationary periods as short as thirty days. Again, perhaps the
:.fference lies in the number of "steps" between reprimand and discharge in
the scheme of progressive discipline as it is made to apply to probationers
and employees with seniority, respectively. This view seems to me to have
more to commend it than the others. It should be noted, though, that here
it is not so much the "standard of review" or the "standard or" cause" that
is at issue in determining whether discipline is warranted, as it is the
assessment of the appropriateness of the penalty. And once again the
Policy of the determination would seem to have more to do with length of
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service (and thus the question why probationers with ten months o* szrvica
Ought not to by treated more like employees who have just atta1neC
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s nlority status than li#;e probationers with only a few weeks of service)
than with probationary status gar !,�e-
These difficulties are not sophistical ones: they are serious prac-
tical matters arising out of the requirement that we give due weight to the
statutory provisions respecting probationary status.
In any event, in my view Square D is a rather blunt instrument for the
resolution of these difficulties. I would rather face them squarely on the
facts of the particular cases and in light of the more recent and finely-- '
toned jurisprudence. I dissent from Professor Roberts' award in this
respect for two reasons, then: first, •, -I would determine that this Board
.does have jurisdiction in grievances against the release of probationers
even where the release is not coloured by discipline. and second. I would
reject the adequacy of the Square D standard as an aid to this Board in
determining the circumstances under whicti probationers may be disciplined ,
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and the nature and extent of the discipline that is appropriate. s
I+ A��f
^ _____________
{Prof . ) Paul Craven
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