HomeMy WebLinkAbout1988-0971.Cotter.89-03-13.
ONTARIO EMPLOY~S DE LA CO”RONNE
CRCJWNEMPLOYEES DE L’CJNTARIO
GRIEVANCE C$lMMISSION DE
SE-ITLEMENT REGLEMENT
BOARD DES GRIEFS
Between: OLBEU (Casey Cotter)
Before:
OSi'l/88
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
- and -
Grievor
For the Grievor:
The Crown in R;ght of Ontario
(Liquor Control Board of Ontario) Employer
For the EmDlover:
,D. Fraser
I. Thomson
E. Orsini
Vice-Chairperson
Member Member
Craig Flood Cnunsel
Roskie and Minsky
Barristers and Solicitors
Janice Baker
Counsel
Hicks Morley Kamilton Stewart Storie
Barristers and Solicitors
Hearinq:
2 i+
The kievor, Mr. Casey Cotter, was discharged on SeptembeK 3oLh, 1988
from his position as a permanent part-time employee on probation. He is
grieving that discharge and requests to be reinstated and made whole in all
respects.
~This decision deals with a preliminary matter respecting the appropriate
standard of review for such a discharge. Counsel for the union-has submitted
that the appropriate standard is that of just cause, or in the alternative, one
of reasonableness and fairness. Counsel for the employer has proposed that the
appropriate standard is whether the decision to discharge was arbitrary,
discriminatory, or in bad faith. The choice of standard will have important
procedural consequences, including the question of onus and which side proceeds
first, and the question of the application of progressive discipline
principles.
during argument on this preliminary matter we were advised by counsel
that Mr. Cotter has been employed with the Liquor Control Board since 1980. He
became a permanent part-time employee on September 19th, 1988, with a
probationary period due to endon August 19th, 1489, after eleven months. This
evidence came in from counsel and was not disputed. We will accordingly accept
it as background evidence at this time, but would note that it will be subject
to proof in the normal way when the case proceeds on the merits.
The issue involves the following situation. There is no standard of
review in the collective agreement expressly relating to the discharge of
probationary employees. Nor are there any express limitations on the right of
such an employee to process a grievance in that respect through adjudication.
Is the appropriate standard then one of just cause, which is admittedly the
standard applying to an employee who has completed a probationary period, or is
it some lesser standard such as the "arbitrary, discrimination, or bad faith"
standard which has been applied elsewhere to probationary employees under
certain circumstances? .The question of the appropriate standard of review
under such circumstances has been a complex one, with differing results
depending on the content of the applicable collective agreement, and the public
or private nature of the sector in vhich the issue appeared.
.We will first consider waueenht of New Brunswick v. Lee-
cu.., a judgment of the.Supreme Court of Canada reported in 118 D.L.R. (MI 202.
That case dealt with the discharge of a probationary employee under the
provisions of the &&J& Servp, R.S.N.B. 1973, c. P-25,
and a collective agreement under that Act.
In that case, relevant provisions of the Act read as follows:
65. A collective agreement is, subject to and for the
purposes of this Act, binding on the employer, on the
bargaining agent that is a party thereto and its
constituent,elements, and on the employees in the
bargaining unit in respect of which the bargaining agent
has been certified, effective on and from the day on and
from which it has effect pursuant to subsection 64(l).
. . . . . .
91(l) Where any employee feels himself to be aggrieved
(a) by the interpretation OK application in
respect of him of
Ii) a provision of a statute, or a
regulation, by-law, direction or
other instrument made OK issued
by the employer, dealing with
terms and conditions of
employment, or
(ii) a provision of a collective
agreement or an arbitral*avard;
OK
4
(b) as a result of any occurrence or matter
affecting his terms and conditions of
employment, other than a provision
described in subparagraph (a)(i) or (ii),
in respect of which no administrative
procedure for redress is provided in or
under an Act of the Legislature, he is
entitled, subject to subsection (2), to
present, the grievance at each of the
levels, up to and including the final
level, in the grievance process provided
for by this Act.
92(l) Where an emplOy-?ze has presented a grievance Up t0
and including the final level in the grievance process
with respect to
(a) the interpretation or application in :
respect of him of a provision of a
collective agreement or an arbitral award,
OK
(b) disciplinary action resulting in discharge,
suspension or a financial penalty,
and his grievance has not been dealt with to his
satisfaction, he may, subject to subsection (21, refer
the grievance to adjudication.
. . . . . .
96(2) No adjudication shall, in respect of any
grievance, render any decision thereon the effect of
which vould be to require the amendment of a collective
agreement OK an arbitral award.
And relevant provisions of the collective agreement read:
1.04 Application of Agreement
(a) This Agreement applies to and is binding on the
Union, each employee, the Employer and its agents.
. . . . . .
8.01 Application of Public Service Labour Relations Act
The Parties agree that the adjudication provisions of the
Public Service Labour Relations Act shall apply.
*
5
8.02 Decision of Adjudicator or Board of Adjudication
An adjudicator or a‘board of adjudication shall not have
the power to alter OK change any of the provisions of
this Agreement OK to substitute any new PKOViSiOn, for
any existing provision nor to give any decision
inconsistent vith the terms thereof.
. . . . . .
10.01 Discharge Procedure
No employee vho has COIIIpleted his probationary period
shall be suspended or discharged except for just cause.
Where an employee is suspended or discharged, the
Fmployer wlthln flve working days of the suspension or
dfscharge shall notify the employee in writing by
registered mail or personal service stating the reason
for the suspension OK discharge, and a copy of such
notice of suspension OK discharge vi11 be fOKMKded to
the Secretary of the Local Union.
. . . . . .
22.01 (e) A "probationary" employee may be employed
either fUll;tilEe OK pE4Kt-tiIEe. Newly hired elUplOyeeS
shall be considered on a pKObatioMry basis fOK a period
of one hundred (100) WOKking days. During the
pKObatiOMKy PSKiCd, employees shall be entitled to all
rights and privileges of the Agreement, except wlth
respect to discharge. The employment of such employees
may be terminated at any time during the probationary
period without IecoUKse to the Grievance Procedure.
The headnote of that case sums up the result as follows:
Section 92(l)(b) of the WC Service v
&&, R.S.N.B. 1973, c. P-25, which states that an
employee may refer a grievance concerning discharge to
adjudication, does not confer substantive rights upon an
employee in addition to rights defined in the collective
agreement. The grievance must be determined in
accordance with the provisions of the collective
agreement. Therefore, where a collective agreement
recognizes the right of the employer to termlnate the
employment of a probationary employee without shoving
just cause, an adjudicator errs in finding that the
employer failed to show just cause for dismissal.
.6
In the body of the ~judgment Mr. Justice Martland said at p.206:
In my opinion, ss. 91 and 92 of the Act do not purport
to confer substantive rights upon employees in addition
to their rights as defined in the collective agreement.
They define the circumstances in which an employee who
feels himself to be aggrieved may present his grievance
at each level up to the final level in the grievance
procedure (5. 91) and in which after having presented his
grievance up to that level, he may refer it to
adjudication (s. 92). Hovever, the grievance submitted
must be determined in accordance with the provisions of
the collective agreement.
In my opinion, since the employer had the right, under
the provisions of the collective agreement, to terminate
the respondent's employment without showing just cause,
there was an error of law on the face of the KecOKd vhen
the adjudicator decided that the respondent's grievance
was established because the employer failed to establish
fault on her part as a prerequisite for her dismissal.
Ry taking this course, the adjudicator put the
respondent into the same position as that of an employee
who has completed the probationary period and has become
a permanent employee.. A permanent employee, if suspended
OK discharged, is given by art. 10.02, the express right
to invoke the grievance procedure. A permanent employee
who has presented a grievance up to the final level could
invoke the adjudication procedure provided in s. 92(l) of
the Act, and the adjudicator could then review the matter
and determine whether there was just cause for the
suspension OK discharge. The application of s. 92(l) in
such a situation was Considered by this Court in Huestis
v. N Brunswick Electric PO e timIn (19791, 98 D.L.R.
C3dle122 at DD. 630-l. [I9797 ; S.C.R. 768 at DD. 779-80.
i5 N.B.R. (2;lj- 613. ‘in putting the respondent-into the .
same position as that of a permanent employee, the
adjudicator ignored the express provisions of arts.
10.01 and 2201.(e) of the collective agreement, since the
provisions of art. 10 do not apply to probationary
employees, and art. 22.01(e) enables the employer to
terminate the employment of a probationary employee
without recourse to the grievance procedure.
I vould allow the appeal; dismiss the cross-appeal, set
aside the judgment of the Court of Appeal and quash the
decision of the adjudicator. There should be no order as
to costs.
Thus we are accordingly directed to the appropriate collective agreement
to determine the substantive rights of the griqor in this public sector case,
I
and ve are cautioned that a provislon such as that found in s. 92(l) of the
public Service Labour Relations Act of Nev Brunsvick does not confer
substantive rights in addition to those found in the collective agreement.
Furthermore, where the collective agreement m takes avay a right vith
respect to discharge from a probationary employee, the “just cause” standard is
inapplicable and an adjudication based on that standard will be quashed.
Section 92(l) of the Nev Brunswick Act bears a number of similarities to
Section 18(Z) of the g, nov before us.
That latter section reads:
M(2) In addition to any other rights of grievance under
a collective agreement, an employee claiming,
(a) that his position has been improperly
classified;
(b) that he has been appraised contrary to the
governing principles and standards; or
Cc) that he has been disciplined or dismissed
or suspended from his employment without
Wst 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.
R.S.O. 1980, c. 108, s. 18.
It may be, on comparing the two, that s. M(2) of the Ontario Act goes
further and purports to confer a substantive right in that it refers to “just
cause”, a phrase not found in s. 92(l) of the New Brunswick Act. However, s.
D(2) largely defines the “circumstances”, as Mr. Justice Martland commented in
respect of the New Brunswick section, under vhich a grievance may be processed.
The notion of “just cause” in the legislation may become important if no
:. substantive right to that effect is found in the relevant collective agreement,
but that is not the~case here, as ve shall see later. We viev the emphasis in
the Nev Brunsvick case on finding substantive rights in the collective
agreement as an important one, which we shall refer to again.
As WC have noted, there is no case law involving the employer herein and
the language of the current collective agreement.
Johnson 0372/87 involved the Liquor Control Board of Ontario, but it
dealt with a prior agreement vith different language, and a temporary, rather
than a probationary employee.
The Johnson case referred to the standard espoused to by Professor
McLaren in &&&&t’s v (19821, 5 L.A.C. (3d) 32 McLaren),
*
where he had commented as follows:
Arbitrators have much debated the t;o extreme
positions of cause involving probationary employees.
Unions have argued that the standard for such employees
vas to be identical with that of pernranent employees
while companies have argued it was a matter entirely
within their discretion. A middle ground appears to be
emerging in,the arbitral jurisprudence in the case of
probationary employees and has been articulated in &
pacific Western Aj&U.nes Ltd. nd Canadian Air Line
aht Attenda ts Assoc. (1981: 30 L A C (2d) 69 Fli
(Sychuck) at p: 76, wherein it &s s&d’that:
My reviev of the arbitral decisions leads me to the
conclusion that the following principles and standards
are applicable.vhen the parties have and expressly set
out in the collective agreement the standard of arbitral
review for the termination of a probationary employee
namely:
1. Where a collective agreement expressly provides
for a probationary period does not contain an
express provision setting the standard of
review for the termination of a probationary
employee, the decision of the employer to
terminate the probationary employee shall not
be set aside unless the said depision is
arbitrary, discriminatory or in bad faith.
9
However, the Board in the Johnson case did not come to any conclusion as
to whether it should apply that private sector principle, applicable to
probationary employees under certain circumstances, to temporary employees of
the LCBO under the old collective agreement. We viev the J’ohnson case as
inconclusive, except that it sets out the “arbitrary, discrimination, or bad
faith” standard for probationers in the private sector vhere the collective
agreement provides for probation, but provides no standard of review for
termination of such an employee. Nor does it adopt that standard for the
public sector, and the employer herein. Of more importance is the direction to
reviev the collective agreement for substantive rights, and we consider that
that must be done carefully.
It is also quite clear that where a collective agreement refers to an
m right to discharge probationary employees, the “just cause” standard
is notapplicable, and the onus rest on the employee to prove the,discharge was
arbitrary, discriminatory, or in bad faith (see, for example, s
nf (1984), 18 L.A.C. (33) 52 (O’Shea)).
We vould sum up the. above’ in the folloving way.
In the public sector; one should look to the collective agreement for a
substantive right of a probationer respecting discharge, and be careful about
implying such rights from the enabling legislation, which may only contain
procedural rights.
Where there is a restriction on the rights of a probationer respecting
discharge (such as management having the exclusive right), or where the
collective agreement is clearly silent on such>ights, but otherwise determines
10
I ’ a probationer’s terms of employment, a standard less restrictive on management
than just cause, may be appropriate in respect of probationer’s rights on
grieving a discharge; in the private or quasi-public sector. This is not
I necessarily true for the public sector.
Thus there appears to be a consensus that, absent any express right to be
discharged only for just cause, a probationer is in a period of employment
vhere his or.her suitability for the greater security of tenure of a permanent
employee is assessed.
As has been seen above, that assessment, and the less-secure position of
the probationer, is usually recognized by the provision of specific language in
the collective agreement which normally restricts the probationer’s right to
grieve, or gives the employer an exclusive right to discharge a probationer, or
some combination of those two approaches. Such language is recognized as
providing a standard which is something less than just cause, by which the
propriety of a discharge will be measured.
These principles direct us first to examine the collective agreement in
this case (in the context-of the legislation) to see vhether it provides
I standards or is silent, in respect of discharge of a probationary employee.
The relevant section of the Crown Emolovees Collective Earaainina Act has
been noted above. The applicable position of s. 18(2)(l) may be extracted to
read-as follows:
“18(2) In addition to any other rights of grievance
under a collective agreement, an employee claiming,
. . . . . .
;I.
11
(c) that he has been . . . dismissed . . . 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 describes the situation of disputes by the Grievance
Settlement Board, but does not deal further with the standard of just cause
referred to in section 18(2).
.Articles 34 and 35 of the collective agreement provide for the
application certain terms to permanent part-time~employees; Article 36 defines
the positions, and Article 37 deals 'with seniority of such employees, including
the probationary period. Those articles effectively set the stage, and read as
follows:
11
Permanent Part-Time EInployees - Appllcatlon
34.1 The only terms of this Collective Agreement
that apply to permanent part-time employees are
those that are set out in Articles 34 to 49 and
those listed in Article 35 - Other Applicable
Articles - Permanent Part-Time Esaployees. No
provision in this Mllective Agreement other
than those included In these articles shall
apply to permanent employees in permanent part-
time positions.
_
Other Applicable Articles -
Permanent Part-Time Employees
35.1 The following articles of the Collective
Aqeement shall also apply to permanent port-
time employees: 2.
Article 1 - Recognition
Article 2 - Relationships
12
36.1
*
*
36.2
36.3
36.4
Article 3
Article 4
Article 14
Article 15
Article 16
Article 21
Article 23
Article 25
Article 26
Article 27
Article 29
Article 30
Article 33
Article 50
Article 52
- ,Dues and Information
- Seniority
- Military Leave
- Leave Without Pay
- Court Witness
- Assignments & Job Postings
- Statutory Provisions
- Salaries
- Employee Files and Discipline
- Grievance Procedure
- Stock and Cash Shortages
- Utillzation of Permanent Part-Time
Employees & Casuals
- Safety Committee
- Technological Change
- Term of Agreement
Definltlons - Permanent Part-Time Positions
The regularly scheduled hours of work for a
permanent part-time position shall be as
determined by the Boards, provided they are:
(a) less than thirty six and one quarter
(36 l/4), thirty seven and one half (37
l/2) or forty (40) hours per week, as
applicable to the classification to
which the permanent part-time position
is assigned, but not less than 15 hours
per week; or
(b) less than twenty (20) full days over a
period of four (41 consecutive weeks,
but not less than nine (9) full days of
seven and one quarter (7 l/4), seven
and one half (7 l/2) or eight (8)
hours, as applicable to the
classification to which the permanent
part-time position is assigned.
The "basic hourly rate" of pay for permanent
part-time employees is the basic hourly rate
for the class.
The "weekly salary" of a permanent part-time
employee is the basic hourly rate times the
applicable weekly hours of work.
"Weekly hours of work" shall be the average of
the regularly scheduled weekly hours of a
position calculated over a period of four (41
consecutive weeks. :I
-13
36.5 “Annual salary” shall be the weekly salary
multiplied by 52.17857.
Bmlozlty - Peraanant Part-Time Fm@oyeee
37.1 (a) The Seniority of a permanent part-time
employee will accumulate upon
completion of a probationary period or
not less than one half (l/2) year and
not more than one (1) year.
The probationary period will be
calculated to nearest whole month in
accordance with the following formula:
Full Time Hours of Work No. of months of probationary
dQs the s x .5 x 12 = period to be served (rounded)
Weekly Hours of Work as a to the nearest full month,
Permanent Part-Time Fmployee not exceeding 12 months)
(b) For the purpose of seniority based
rights under the Collective Agreement,
seniority for Permanent Part-Time
employees will be calculated on hours
worked which Includes weekly hours of
work for a permanent part-time posltlon
plus any additional hours worked, and
where applicable the provisions of
Article 37.11~). A seniority list (by
total hours) will be posted for the
employees at each work place two (2)
tl,mes per year.
(c) Notwithstanding Article 37.1(a), where
a casual covered by Article 32, becomes
a permanent part-time employee, his
seniority as a casual from July 1, 1985
will form part of his unbroken service,
and shall be transferred to the
permanent part-time staff.
Article 27 contains the grievance procedure, and It is a lengthy article.
It does not expressly refer to Drobationarv employees at any point.
Article 27.7 reads in full as follows:
“27.7 An employee claiming he has &en dismissed
without just cause shall be entitled to
file a grievance commencing at STAGE 3
provided he does so within ten (10) days of
the date of the dismissal.”
We would note the following about the above. First, that Article applies
specifically to permanent part-time employees by virtue of Article 35, and the
Grievor Is a pernranent part-time employee. However, the phrase “permanent
part-time employee V contains a semantic mine trap. The word “permanent” in
that phrase does not exclude the notion of a probationary employee, as
probationary permanent part-time employees are contemplated by Article 37 of
the collective agreement. The Grievor is clearly probationary, but in a
“permanent part-time” position, which position Is Included by Article 35 In the
notion of “employee” found in Article 27.7.
Thus the Grievor may claim a substantive right to grieve for dismissal
without just cause as an “employee ” under Article 27.7, except that he is a
special type of employee, on probation. -
Do we then give effect to the principle alluded to by Professor McLaren
in & Lab&t’s Ontario Rreweries, (supra), where he adopted the principle found
in . . RePaclfrc .I stated by Arbitrator Sychuck to the effect
that (1) where there is a probationary period, and (2) there is no provision
setting $he standard of review for the termination of a probationary employee,
then the “arbitrary, discriminatory, or bad faith” standard Is applied?
. We have some reluctance to reach that result, for the following reasons.
In The Queen in Riaht of Nev Brunswick v. Leemino et al., the Supreme Court of
Canada rejected the just cause standard in what may be termed a public sector
case, but in that case, Article 22.01(e) (cited ~1 exoressly withheld :.
15
probationary employees’ rights with respect to discharge, and said their
employment “may be terminated at any time during the probationary period
without recourse to the Grievance Procedure” (as noted at p. 203 of the case).
. . Similarly, in the quasi-public sector case of Re
Toranto (supra), Arbitrator O’Shea rejected the just cause standard, and with
It, the requirement that the employer bore the onus to prove just cause, for a
probationary employee. However, in that case also, there was w
restrictions on the right of a probationary employee to grieve a discharge. As
is noted at p.55,
Qrtlcle 2.02(a) of the current collective Agreement
Y provides that the Metropolitan corporation has the
exclusive right to discharge employees during their
probationary period. This matter is not arbitrable under
the terms of the Collective Agreement.”
Our case Is different, in the collective agreement language where the
substantive rights must be found. Article 27.7 is the only source of any
substantive right In the collective agreement to grieve a dismissal without
just cause. That right is expressly given an employee (Including a permanent
part-time employee), and that grant of a right is not restricted by any other
express or direct language In the agreement.
Do we then derogate from an express right in order to give effect to an
implied provision? Because there is a probationary period, may we imply the
intent In view of the purpose of such a period, that there Is a sub-class of
probationary employees included in Article 27.7, with a lower standard of
review than the express standard of just cause found there?
In revieving this matter, we accept in principle that a probationary 2.
period has a special purpose related to the assessment of an employees’
16
sultabllity for a permnent position, and we also accept that, all other things
being equal, it is appropriate that management be able to terminate such an
employee by different standards than those applied to a permanent employee,
when the probationary employee Is unsuitable for some reason.
That has been accomplished by the cases we have cited above, by express
language, and the resulting different standards have been sanctioned by the
Supreme Court of Canada. In our case, however, there is no express language to
such effect. The only express language, found in Article 27.7 refers to an
employee, without restriction, and it refers to a standard of just cause. To
Import a lesser standard for probationary employees, would require that we in
effect alter, modify, or amend that part of the agreement. We are forbidden to
do that, by the provisions of Article 27.10(a), which reads as follows:
27.10 (a) The Crown Employees Grievance
Settlement Board shall not be
authorized to alter, modify or
amend any part of this Agreement
nor shall the Crown I3nployees
Grievance Settlement Board give
any decision Inconsistent with
the provisions of this Agreement.
We would be amending a substantive right in a collective agreement by
adding an express new standkwhich would derogate from that right. In view
of the.fact that such lesser standards, or absence of any standard at all, have
been provided for in many other collective agreements by clear language
representing the intent of the parties (such as the removal of the right to
grieve from probationary employees, or the addition of a management right to
have the “exclusive right” to discuss such employees), and in view of the fact
that that was not done here by the parties, we would exceed our jurisdiction in
doing so.
. ?
1.7
we conclude, for.these reasons, that the standard of review for a
probationary part-time employee is that of just cause, found in Article 27.7,
and vould note that if the parties wish a different result, they may achieve
that in the future by adopting some of the restrictive language respecting
probationary employees, found in the cases we have referred to.
It follows that where a standard of just cause is appropriate, the
employer then bears the onus of establishing just cause for discharge (see, for
example, & . . Q (supra)), and we would note
that counsel for the employer herein did not dispute such a result.
We therefore declare that the standard of just cause found In Article
27.7 of the collective agreement Is the appropriate standard of review, and
that the employer bears the onus for establishing such just cause.
There is one further matter we would refer to. The standard of just
cause we have found applicable, results from express language to that affect in
the collective agreement, and the absence of any express’prohibitlon or
restrictive language. Notwithstanding that result, we have also recognlzed
that in principle, a probationary employee is a special case.
These two matters may be reconciled in vlew of the broad scope of a just
cause provision. Although the onus remains on the employer, a probationary
status is clearly a relevant factor in assesslng in any case whether just cause
existed. Arbitral awards are replete with the adoption of various forms of
status as relevant factors in assessing just cause for discipline or discharge.
1.0
If, for example, one is a teller or cashier, the resulting fiduciary
relationship has long been an important factor in assessing just cause in many
past cases involving the current employer. If, for another example, a
probationary employee is essentially off the street, and has never worked for
the employer or otherwise before, then a review for just cause would take
account of that probationary relationship, including the lack of any employment
record of the employee,and the risk the employer has accepted in embarking on
that relationship. For a further example, if the probationary employee has had
some eight years service with the employer in another capacity, prior to
entering a formal probationary period (as we understand the situation to be in
the case before us), then the factor of probation may be given a different
weight in reviewing for just cause, than in the first case.
In sum, then, notwithstanding the adoption of the standard of just cause
from the collective agreement, the recognition of the probationary relationship
as a factor, will ,lead to the “middle ground” of review in such cases, referred
to by Brown and Beatty at p. I-114 of Canadian Labour Arbitration 3rd ed.;
(Canada Law Book, 1988). Under the general heading “7:5020 Standard of review
of disciplinary action”, ,the authors reviewed the complex case law respecting
standards of reviev for termination of probationary employees, and have noted
that it ranged from no need to give any reason for the termination, to a
standard essentially similar to that applied to a seniority rated employee.
The authors then note at p. 7-174, that there is a middle ground, involving
“the principle that although the employer is obliged to prove some cause for
the‘discharqe of a probationary employee, it need not be of the same form or
weight as that required to justify the discharge of a seniority rate employee.”
We believe our reference to the probationary relationship as an important
factor in assessing just cause for the discharge of a probationary employee,
not only reflects that principle, but it also directs attention to the
underlying factor or reason for giving a different form or weight, and that
factor is the circumstances of the probationary relationship in any given case.
It also gives some guidance respecting other matters arising out of the
just cause standard. For example, in a brief probationary relationship of a
matter of veeks, prcqressiw discipline may have little or no relevance,
whereas it may have weight against the background of a probationary
relationship following on some eight years of employment in another capacity,
as is the case here. Finally, a proliferation of aribtral standards in this
area is avoided. One either has to meet the arbitrary, discrimination or bad
falth standard resulting from the language of some collective agreements, or a
standard of just cause In which the probationary period may be an important
factor.
Thus, to conclude: the standard of review in this case is that of just
cause, as found ‘in the collective agreement; the nature and circumstances of
the probationary relationship form an important factor in assessing whether
just cause existed; and the usual onus is on the employer to prove just cause.
Dated at Ottawa,
this-13th day of March , 1989
D. hama Vice-Chairperson
/
11 Ttvhdn, Member
E. Orsini, Member