HomeMy WebLinkAbout1984-1589.Balderson.85-09-12IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD _*
Between: OPSEU (M. BaAderson)
Before:
The Crown in Right of Ontario
(Ministry of Colleges and Universities)
R. 3. Delisle Vice-Chairman
0. Switzman Member
H. Roberts LMember
For the Grievor: R. Ross Wells
Counsel
Cowling & Henderson
Barristers & Solicitors
For the Employer: A. Warner McChesney
Staff Relations Officer
Staff Relaticns Branch
Civil Service Commission
Hearing: June 4.1985
Grievor
Employer
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<- .: INTERIM AWARD --_-__-_-
The grievor was appointed to the probationary staff of
the Ministry of Colleges and Universities as a Clerk 4 General,
effective January 9, 1984. In a letter dated October 31, 1984,
Exhibit 1, the grievor was advised by E.L. Kerridge; Director,
Planning and Development Branch, Skills Development Division that
she was being released. Mr. Kerridge had been delegated the
authority to release by the Deputy Minister pursuant to a memo
dated October 31, 1984 (also Exhibit 1). The meno purported to
I., ?.elegate under s. 23(2) of the .Public Service Act, R.S.O. 1980,
C. 418, though the legislation would actually seem to contemplate
such delegation being made under s. 23(l); no issue was taken
however with respect to the manner of delegation. Section 22(S)
of the Public Service Act provides:
A deputy minister may release from employment any
public servant during the first year of his employment
for failure to meet the requirements of his position.
Mr. Kerridge advised the grievor that she was being released
because she had been absent 91.5 days since joining the Ministry
.~ and since attendance was regarded an essential component of the
'. job she had failed to meet the required job standards. It is
common ground between the parties that there is no fault to be
found in the grievor for the absences incurred but that a medical
treatment program entered into by the grievor had not proved to
be as successful as she had anticipated, The grievance (also
Exhibit 1) complains that "I have been dismissed without just
cause."
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The Ministry's short answer to this grievance is that
this Board lacks jurisdiction to deal with the matter since the
grievor was not dismissed but rather was released during her
probationary period as not suitable to the task.
The Collective Agreement between the parties provides:
Article 27.6.1: Any probationary employee who is dismissed or released shall not be
entitled to file a grievance.
The Crown Employees Collective Bargaining Act, R.S.O. 1980, c.
108, provides:
S. 18(2)(c): In addition to any other rights of
grievance under a collective agreement, an employee claiming, that he has been
disciplined or dismissed or suspended
from his employment without just cause, may process such matter in accordance
with the grievance procedure provided in
the collective agreement, and failing final determination under such
procedure, the matter may be processed
in accordance with the procedure for final determination applicable under
section 19.
Section 19 of course provides for reference for arbitration to
this Board.
This Board in Leslie, 80/77, considered the Supreme
Court of Canada's decision in Jacmain v A.G. Canada and Public
Service Staff Relations Board (19781 2 S.C.R. 15, and pursuant
thereto changed its practice with respect to the release of
"probationary employees" in their first year of employment. The
Board there noted that s. 22(3) of the public Service Act
provides:
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A deputy minister may for cause dismiss from
employment in accordance with the regulations any public servant in his ministry.
The Board therefore reasoned:
We 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 his position cannot be considered
to be a dism'issal as that term is used in both the public Service Act and the Crown Employees Collective
Bargaining Act. If this were not the case, there
would have been no reason for the legislative draftsman to insert section 22(5) into section 22
3 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
requirements 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 CollectiveBarqaining Act. The
two statutes are closely related and, indeed, the
Crown Employees Collective Bargaining Act makes a number of explicit references to the Public Service
Act. Accordingly, the absence of the term "release"
rsection 17(2)(c) (now 18(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 good 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 legislation or understood in the
industrial relations community.
Helmut Zisser, Banager of the Planning and Development
Branch, testified before us concerning his unit's function and
the grievor's duties. He had participated in the grievor's
recruitment and noted that through informal assessments her
performance, while on the job, was satisfactory; there had been
no formal assessments due to the limited time at work. The
grievor advised him of a voluntary treatment Program which she
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wished to enter at Toronto General Hospital. The program as
described would last some six weeks but would actually involve
only half of that time away 'from the job. The program did not go
as well as either had anticipated and lengthy absences occurred.
On October 31, 1984, Zisser spoke with the grievor's physician,
Dr. Kennedy, and was advised that the short-term prospects for
recovery were limited, although in the long-term, over a period
-‘pf several years, her prospects were good. Zisser that day
' advised Kerridge. '(Exhibit 3 records that advice.) Zisser noted
that the grievor had been absent about half the time that she was
employed while the Ministry average was approximately nine days
per year. In the grievor's absence they'd had to make other
arrangements including sub-contracting ~some of the grievor's
clerical work. Her absence disrupted the work of the unit and
delayed other personnel moves.
Gerry Wright, General Manager, Planning and Evaluation,
testified. He noted that he took over Zisser's functions from
i May 18 to September 8. He received a letter from Dr. Kennedy
dated May 14, 1984 (Exhibit 4) which suggested a leave of absence
for the griever until October. Wright was concerned about the
length of time the griever would be away, contacted personnel and
discussed release. Wright telephoned Dr. Kennedy, discussed the
possibility of release and received a letter dated June 12, 1984
(Kxhibit 5) which stated the grievor would be medically fit to
return to work at the beginning of July.
At the close of the Ministry's evidence, counsel for
.+he grievor stated that they were satisfied with the bona fides <- I'
nature of the release and would not be calling any evidence in
that regard. He accepted that if the jurisprudence of .this
Board, set out in Leslie, supra, continued in full force then the
Board had no jurisdiction to deal with the matter and the
grievance should be dismissed. He argued however that the Leslie
interpretation of the applicable legislation, and the provision
in the Collective Agreement which denies to a probationer who has
been dismissed or released the right to grieve, are inconsistent
with s. 15 of the Canadian Charter of Rights and Freedoms, which
brovides:
15.(l) Every individual is equal before and under the law and has the right to the equal protection
and equal benefit of the law without
discrimination and, in particular, without
discrimination based on race, national or
ethnic origin, colour, religion, sex, age or
mental or physical disability.
We turn first to Article 27.6.1 of the Collective
Agreement which purports to deny a probationer a right to grieve
a dismissal or a release. If the grievor has a valid claim under
s. 15 of the Charter that she is being discriminated against, iS
she foreclosed from pursuing the same by the parties' agreement?
Clearly not. In Ontario Human Riqhts Commission et al. v Borough
of Etobicoke, (1982) 132 D.L.R. (3d) 14 (S.C.C.) the Court upheld
a board of inquiry's finding of discrimination. The respondent
municipality argued that the parties had agreed to mandatory
retirement at age sixty in their collective agreement. For the
court, McIntyre, J. wrote:
While this submission ir. that the condition,
being in a collective agreement, should be considered
a bona fide occupational qualification and
requirement, in my opinion to give it effect would be
to permit the parties to contract out of the provisions of the Ontario Human Rights Code.
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Although the Code contains no explicit
restriction on such contracting out, it is
nevertheless a public statute and it constitutes
public policy in Ontario as appears from a reading of
. the statute itself and as declared in the preamble.
It is clear from the authorities, both in Canada and
in England, that parties are not competent to contract
themselves out of the provisions of ,such enactments
and that contracts having such effect are void, as
contrary to public policy. . . . The Ontario Human
Rights Code has been enacted by the Legislature of the
Province of Ontario for the benefit of the community
at large and of its individual members and clearly
falls within that category of enactment which may not
I be waived or varied by private contract; therefore
this argument cannot receive effect.
With respect to our task of interpreting the
legislation to be consistent with the Charter the Ministry argues
that to embark on such a task in this case would be giving the
Charter retrospective effect. The grievor was released October
31, 1984 with such release to be effective November 1; 1984.
Section 15 of the Charter did not come into full force and effect
untii April 17, 1985. Clearly academic and judicial opinion is
against retrospectivity: Hogg, Canada Act, 1982, Annotated, PP.
~110-111, R. v Longtin, (1983) 41 O.R. (2d) 545 (Ont. C.A.),'
Blackwoods Beveraqes Ltd. v R., (1985) 43 C.R. (3d) 254~ (Man.
C.A.). Counsel for the grievor however maintains that to insist
on a right of review today does not give the Charter
retrospective effect. He argues that to deny a hearing to the
grievor today discriminates against her at the present time. I
am inclined to agree. In Re Chapman and The Queen, (1984) 12
C.C.C. (3d) 1 (Ont. C.A.) the Crown appealed part of an order
quashing a search warrant. In quashing the order Reid, J.
directed that all objects seized under the warrant should be
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returned forthwith. The Crown argued that, even though the
quashing of the search warrant was proper, there was no
discretion in the Court to order the return of any articles which
the Crown alleged were required as evidence in a criminal
proceeding. The Court of Appeal held that prior to the enactment
of the Charter there was a discretion in the Court to determine
-whether the articles should be retained. The Court went on
) however:
I conclude that prior to the passage of the
Canadian Charter of Rights and Freedoms there was a
discretion in the court 'to determine, once a search
warrant was quashed, whether articles illegally seized
should be retained. Usually it was a sufficient
"justification" for the court to exercise its
discretion in favour of the Crown's retention of the
articles if they were said to be needed for the
prosecution of an offence charged.
There is now, with the passage of the Charter, a
.new player in this particular game and additional
support, if needed, for that part of the order now
challenged. The relevant sections of the Charter
read:
, 8. Everyone has the right to be secure against
unreasonable search or seizure.
. . .
24(l) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed
or denied may apply to a court of competent
jurisdiction to obtain such remedy as the court
considers appropriate and just in the
circumstances.
(2) Where, in proceedings under subsection
(l), a court concludes that evidence was obtained
in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the
evidence shall be excluded if it is established
that, having regard to all the circumstances, the admission of it in the proceedings would bring
the administration of justice into disrepute.
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It is true, _-.- in the instant case,-that-the-article
in issue was seized&x-to-the-enactment-of the_ __-- - -- -- ~fiarce_r_.aowe_ve_r.L~- _____ ---- -___ - as the Crown seeks to useit now as
evidence ____ -___ the invocation of ss. 8 and 24, in light= L __. __-__-_--r-_-- all_t_he_c_fr_c_ums_t.a_n_c_es, is not-t_o_si_v_e-the-Charter or
the sections retrospective effect. --- To consider,~ in
relation to s. 24, th~-circums_tan_cp_s_s_u;;odnding the_ -_---- executkqn of the search warrant, and the subsequent condemned activities-cited by the motions court judqe _ -- - @I&I& tookplace ~,af;z_the enactment of the Charter, is not' 1.n m?' .----L view&o give retrospective effect to - the Charter. -- ---- -
“ The order made by Reid J. could be considered to
have been made under s. . 24(l) although his inherent
jurisdiction to order the return of the article has not been taken away by the Charter. Under either
approach, he had the grounds and the power to make the
order he did.
In my view, although s. 24(l) could be invoked,
s. 24(2) has no application to the present facts of
this case. It is not a question, at this stage of the
proceedings, of excluding evidence. The Court cannot
have "regard to all the circumstances" because all the
circumstances are clearly not before the Court. At the trial, an argument might be raised under e. 24(2)
for the exclusion of evidence relating to the
transmitter/receiver when "all the circumstances",
including the circumstances of the offence, are before
the court.
(Emphasis added.)
.'To the same effect see Blackwoods Beveraqes v R., supra.
Counsel for the griev0.r argues that the Flinistry seeks today to
deny reviewability of the justness of the decision taken earlier
by the Ministry. If the Courts can determine admissibility into
evidence under s. 24(2) of articles illegally seized, and order
pursuant to s. 24(l) the return of goods illegally seized, though
the seizure was made prior to the passage of the Charter, SO too
a claim of discrimination under s. 15 of the Charter, claiming
equal entitlement to review of the justness of termination, can
.3e maintained though the termination occurred prior to the
Article's coming into force.
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Is there, on the face of it, discrimination in this
case. Section 15 lists a number of prohibited grounds of
discrimination but by the wording these grounds are obviously not
exhaustive. The grievor is an individual who is denied equal
treatment under the law because she is a probationer, not a
seniority rated employee and therefore not entitled to our
review. Counsel for the grievor does not of course argue that a
probationer is entitled to all the rights of a seniority-rated
employee. He recognizes that a probationer deserves to be
evaluated differently. In dealing with the review of a discharge
of a probationary employee, Mr. Reattie in Re Porcupine Area
Ambulance Service and C.U.P.E., (1974) 7 L.A.C. (Zd) 182, wrote:
It appears accurate to say that an emerging trend of
awards is to the effect that although an onus does lie
on management to prove there is cause for the
discharge of a probationary employee, that cause need
not be of the same form or weight which would be
required to justify the discharge of a seniority-rated
employee. . . . Specifically, it appears this school
holds to the view that an employer is entitled "to
examine the suitability of probationary employees on
the broadest of grounds. . . . Suitability would
appear to encompass such notions as the character and
compatibility of the probationary employee . . . as well
as a determination that such an employee is not likely
to meet either the present or future standards and
requirements demanded by the company . ..I' (citations
Arbitrators recognize the employer's need of a trial period of
employment to evaluate the employee and accordingly show
"substantial deference to the judgment of the employer in the
decision to terminate or continue a probationary employee"; see
Be Board of Education for Scarborough and O.S.S.T.F., (1980) 26
L.A.C. (2d) 160 (Picker). Counsel for the grievor notes however
that by our jurisprudence the Board does not just show
"substantial deferance" to the employer's judgment but rather
forecloses itself from even looking at' it save from the
perspective of good faith. On a plain meaning of the word the,
grievor is discriminated against.
IS the discrimination supportable, justifiable? In &
/ v Bryant, (1984) 48 O.R. (2d) 732, 737 (C.A.), Blair, J.A. wrote:
In Charter cases it ins now well established that it
must first be determined whether the impugned statutory provision infringes the Charter right asserted. If so, it must then be ascertained whether
the infringement of the Charter right can nevertheless be justified under s. 1 of the Charter. . . . The
standard by which the reasonableness of the limitation
of the Charter right must be assessed is that the
court must be satisfied that a valid legal, social or
other objective is served by the limitation of the
right and that the limitation is restricted to that
which is necessary for the attainment of the desired
objective.
In MacKay v The Queen, [1980] 2 S.C.R. 370, 408, McIntyre, J.
dealt with the right to equality,before the law under the
'~. Canadian Bill of tiqhts, 1960 (Can.), c. 44.
i3e wrote:
. . . since the principle of equality before the law is
to be maintained, departures should be countenanced
only where necessary for the attainment of desirable
social objectives, and then only to the extent
necessary in the circumstances to make possible the
attainment of such objectives.
We were not advised of any valid reason why it is necessary to
completely foreclose the reviewability of the justness of a
probationer's release. While it is obvious that such a review
would be according to a different standard than another
:employee's discharge we cannbt say that denial of review is
L. demonstrably justified. Accordingly it is necessary to depart
.’
from the Leslie interpretation of s. 18(2)(c) of the -Crown
Employees Collective Bargaining Act and to hold that,
interpreting that provision consistently with the Charter,
"dismissal" includes "release" and a probationer is entitled to
have the justness of his termination reviewed.
At the hearing counsel for the grievor led no evidence
since it would be futile unless his Charter argument proved
successful. The matter was adjourned pending the resolution of
that matter with this Board remaining seized should it prove
necessary to reconvene. The Board will accordingly reconvene at
a time to be decided by the Registrar to hear additional evidence
and argument.
Dated this .12th day of September, 1985
g; Stiitmnan, Member
"tj. Rob$rt:"
YB.W_ssent!_(_see attached) H. Roberts, Member
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DISSENT --
Re: 1589/84 OPSEU (M. Balderson) and Crown/Ontario
(Ministry of Colleges and Universities)
This Interim Award of the Board arises from acceptance of the
Charter of Rights argument by counsel for the Grievor.
I regret that I am in total dis:;greement with this argument and
accordingly with the Interim Award as proposed.
The grievance arose because the Grievor, a probationary employee,
was released on October 31, 1981i. Section 15 of the Charter of Rights did not
come into effect until April 17, 1985.
Surely, if the architects of the Charter of Rights had intended
Section 15 to be applicable in time prior to the 17th of April, 1985, they would
not have deliberately set an effective date three years after the effective date
of the Charter proper:
Similar in principle ls a recenr ruling of the Ontario Court of Appeal
(reported in the Toronto Star, 8 August 1985) which ordained that persons over
16 but under 18 years of age, against whom criminal charges had been laid prior
to April 1, 1985, when the Young Offenders Act became law, must be tried in
adult court since their offences occurred prior to the effective date of the new
Act; in keeping with the law that was in effect at the time of the crime of which
they had been accused.
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The following .cases provided for reference further support our
contention that the Charter has no retroactive effect.
Regina V. Dickson and Corman (1982) 145 DLR (3rd) 164~
Minister of Fisheries and Oceans et al v. Curbera (1983) 1 DLR
(4th) 599 at 603 per Laskin C.J.C. (S.C.C.), and
Regina v. Longtin (1983) 41 O.R. (2nd) 545 (Ont. C.A.)
As counsel for the Ministry argued, the Employer’s action in
releasing the Grievor on October 31, 1984, was an act that was started and
finished on that day. There is therefore, not even a “continuing wrong” here
which might give the Board the power to review now, the justness of the
termination that took place before Section 15 of the Charter became effective.
The Interim Award however, suggests that, in view of the Charter,
the termination of the Crievor’s employment should be reviewed on the merits.
This could, potentially, result in the Grievor being reinstated. In my view this
course was simply not open to this Crievor, absent the Charter, since the Union
has already conceded that the termination was a bona fide release and not a
dismissal.
Despite all of the above, if the Board decided to reinstate this
Crievor it would be reaching back in time to restore an employment relationship
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which was ended on October 31, 1984;. clearly a retroactive application of
Section 15 of the Charter of Rights.
Since I believe that the Charter doesn’t apply in this case, I would
have dismissed the grievance on the grounds that the termination of the
Griever’s employment was a bona fide release and not a dismissal.
Moreover, even if the Charter did apply, I don’t -think the Union has
proved diicriminaticn within the meaning of Section 15.
The award suggests that probationary employees are discriminated
against because they are treated differently than regular employees when their
employment is terminated. It seems to me that discrimination, in the sense
implied, must require something more than different treatment.
Every employer treats individuals differently; hiring some, rejecting
others; promoting some employees but not others; classifying or assigning
employees to different work; etc., it was surely not the intention of the drafters
of the Charter in Section 15, to make employers justify proper and valid business
decisions.
In any event, there are established and accepted reasons why an
employer treats probationary employees differently. It is common agreement
that a trial period is necessary to assess the suitability of, a new employee.
Accordingly; an employer should be able to release an employee within the trial
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period who cannot do the work to the employer’s requirements. As long as it was
a bona fide release the employer should not have to justify its decision against
some standard of just cause applicable to dismissal.
If probationary employees are to enjoy the same job securiry as
regular employees with seniority, then the trial period is in effect, eliminated.
Finally, Section 22 of the Public Service Act clearly tiakes dis-
tinctions between regul$ and probationary employees.
Section 22 (3) says, “A deputy minister may for cause dismiss from
employment in accordance with the regulations any public servant in his
ministry.?
Section 22 (5) says, “A deputy minister may release from employ-
ment any public servant during the first year of his employment for failure to
meet the requirements of his position” (my underlining).
The Union didn’t ask the Board to find that this legislation was
invalid; and clearly we don’t have that authority.
Instead, it asked the Board to interpret the word “dismissed” in
Section 18 (2) (c) of the Crown Employees Collective Bargaining Act so as to
include the word “released .‘I If we were to interpret Section 18 (2) (c) in this way
we are really eliminating the distinctions set out in the wording of Section 22 (3)
and Section 22 (5) of the Public Service Act, as noted above.
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..,
We must, after ail, take the law as we find it. If the Legislature had
intended that a probationary employee could grieve his or her release, it would
have said so.
In my view, giving probationary employees a suixtative right they
didn’t have before would require specific changes to the legislation. By
interpreting Section 18 (2) (c)of the Crown Employees Collective Bargaining Act
as including “released”, the Board has effectively changed the legislation on its . ..~
own; something it does not have the power to do.
H. Roberts