HomeMy WebLinkAbout1997-2196.Turcotte.99-08-11 Decision
i\~AFLI EUEL 'E LA .'E
rill'f EUE L "TE.c E L i\~AFLI
GRIEVANCE COMMISSION DE
.. SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 1Z8 TELEPHONEITELEPHONE (416) 326-1388
180 RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 128 FACSIMILEfTELECOPIE. (416) 326-1396
GSB # 2196/97
OPSEU # 98A198
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontano Pubhc ServIce Employees Umon
(Renee Turcotte)
Grievor
- and -
The Crown m RIght ofOntano
(Mimstry of the SohcItor General &
CorrectIOnal ServIces)
Employer
BEFORE Eva E. MarszewskI Vice ChaIr
FOR THE Lily I. Harmer
GRIEVOR Gowhng, Strathy & Henderson
FOR THE Roslyn BaIchoo
EMPLOYER Legal ServIces Branch
Management Board Secretanat
HEARING October 28 1998
2
The grievor Renee Turcotte is a probationary employee who grieves
that she has been dismissed without just cause contrary to Article 21 1 of the
Collective Agreement She seeks reinstatement with full retroactivity and benefits
The parties are in agreement as follows
1 The grievor was at all material times a probationary employee
2 There are no allegations of discrimination which would invoke the
application of the Human Rights Code
3 The grievor was terminated on November 25 1997 pursuant to
Section 22(5) of the Public Service Act The reasons given by the
Ministry were that pursuant to Section 22(5) of the Public Service
Act the grievor was released for failure to meet the requirements of
her position
Section 22 (5) of the Public Service Act reads as follows
22(5) A deputy minister may release from employment any
public servant during the first year of employment for failure to
meet the requirements of his or her position R S 0 1980
c 418 s 22(5)
It was common ground between the parties that prior to the
amendments to the Crown Employees Collective Bargaining Act R.S 0 1993, c
3
38, "e E e B.A." this Board had the jurisdiction to examine the release of a
probationary employee and determine whether or not it was a bona fide release or
a release masquerading as an unjust or disciplinary dismissal The parties were in
agreement that at the time of their submissions herein this issue had not been
canvassed by any Board decisions subsequent to the amendments to e E e B.A
However pre-amendment decisions were reviewed by both counsel in order to
provide a fuller perspective on the instant issue
The relevant portions of the old Section 18 (2) of e E e B.A read as
follows
(2) In addition to any other rights of grievance under a collective agreement
an employee claiming
(c) that he or she has been disciplined or dismissed or suspended from
his or her 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 R S 0 1 980
c 1 08 s 1 8
Section 18(2) no longer exists and has not been replaced by an equivalent
provIsion However Section 7(3) of e E e B.A still provides as follows
Deemed provision relating to arbitration - Every collective agreement
relating to Crown employees shall be deemed to provide for the final and
binding settlement by arbitration by the Grievance Settlement Board
without stoppage of work of all differences between the parties arising
4
from the interpretation application administration or alleged violation of the
agreement including any question as to whether a matter is arbitrable
The relevant provisions of the collective agreement read as follows
ARTICLE 21 - DISCIPLINE and DISMISSAL
21 1 It is understood that the right of the Employer to discipline or dismiss
employees shall be for just cause The Employer's right to discipline or
dismiss is subject to the right of an employee to grieve such action
21 2 For greater certainty it is understood that nothing in Article 21 1
confers on a probationary employee any right to grieve or arbitrate his
or her dismissal
ARTICLE 22 8 - DISMISSAL
22 8 1 Any probationary employee who is dismissed or released shall not be
entitled to file a grievance
22 8 2 Any employee other than a probationary employee who is dismissed
shall be entitled to file a grievance at the second stage of the grievance
procedure provided he or she does so within thirty (30) days of the date of
the dismissal
1 Employer Submissions
The employer raised the preliminary objection that the Board lacks the
jurisdiction to deal with the grievance due to the 1994/1995 amendments to
C E C B.A which removed the 'Just cause" provision from the statute In addition
the employer relied upon various provisions of the collective agreement which
preclude probationary employees from grieving or taking to arbitration their release
from employment
5
Counsel for the Employer submitted that since the Leslie case a
termination characterized as a release fell under the ambit of Section 2 of the
Collective Agreement and therefore could not be dealt with in the arbitration
process
Article 2 of the collective agreement contains the Management Rights clause
which specifies inter alia that
the right and authority to manage the business and direct the
workforce including the right to hire and lay-off discipline dismiss or
suspend employees for just cause shall be vested in the Employer It
is agreed that these rights are subject only to the provisions of this
Agreement and any other Collective Agreement to which the parties are
subject
It was contended that in the past Section 18(2) had been used as the
source of the entitlement of probationary employees to access the grievance and
arbitration procedure in order to establish whether or not they had in fact been
dismissed without 'Just cause" or whether they had been released for failure to
meet the requirements of their position It was submitted that the removal of the
'Just cause" provision from C E C B.A precluded probationary employees from
grieving their termination and having the Board review the termination to
determine whether it was a disciplinary measure or a bona fide release
Furthermore Counsel for the Employer also referred to Article 22 8 of
6
the Collective Agreement which seeks to prevent probationary employees from
grieving their dismissal or release and Article 21 2 which re-iterates an intention to
prevent probationary employees from grieving or arbitrating dismissal
In conjunction with Articles 22 8 and Article 21 2, the employer has
also relied upon Article 22 14 6 which reads as follows
The GSB shall have no jurisdiction to alter change amend or enlarge any
provision of the collective agreements
In conclusion it was submitted on behalf of the Employer that the
provisions of the current collective agreement reflect the exact intentions of the
parties in that the union clearly gave up the right of probationary employees to
grieve their termination Any attempts to include such a right would be equivalent
to a change amendment or enlargement of the collective agreement each of
which is specifically prohibited by Article 22 14 6 It was thus submitted that in
this instance the Board has no jurisdiction to consider the grievance that is the
subject matter of the issues in question Counsel for the employer relied upon the
following decisions in support of her submissions The Queen in right of Ontario
(Ministry of Correctional Services) v Ontario Public Service Employees Union and
The Grievance Settlement Board (1990) 74 0 R (2d) page 700 (ant Div Ct)
Jacmain v Attorney General of Canada et al (1977) 81 DLR (3d) 1 (S C C)
Haladay and the Crown in Right of Ontario (Ministry of Industry & Tourism) (1979)
7
22 LAC (2d) 145 (K P Swan) and Maureen Leslie and Ministry of Community &
Social Services (GSB No 80/77)(G W Adams)
2 Union Submissions
In its submissions the Union relied upon the combined effect of
Section 7(3) of C E C B.A. quoted above and Article 21 1 of the Collective
Agreement dealing with Discipline and Dismissal
The Union's argument can be summarized as follows By virtue of
Article 21 1, the collective agreement contains a 'Just cause" provision which
confers a substantive right upon all employees subject only to any restrictions set
out in Article 21 1 Furthermore it was submitted that Article 21 2 of the
Collective Agreement only deals with procedural rights Since it is well established
by the caselaw in Ontario that procedural rights cannot defeat substantive rights
it was submitted that the Board retains the jurisdiction to review the dismissal of
probationary employees in order to determine whether or not the dismissal was a
bona fide release or a disciplinary measure masquerading as a release
Consequently the issue as framed by Counsel for the Union is whether or not
despite the C E C B.A amendments Article 21 1 contains a 'Just cause" provision
which constitutes a substantive right available to probationary employees to grieve
8
their termination from employment and proceed to an arbitration hearing It was
submitted that the Board may hear evidence with respect to the facts and
circumstances of the case in order to determine whether or not there was 'Just
cause" for the dismissal or whether the termination was a bona fide release
Counsel for the Union relied inter alia upon decisions of this Board in the
followi ng cases Re Shaw and the Ministry of Community and Social Services A
Barrett (410/88) Re Ambrey and the Ministry of the Attorney General P Knopf
(429/84) Re Leslie and the Ministry of Community and Social Services
G W Adams (80/77)
In the alternative Counsel for the Union submitted that even if the
Board were to find that Article 21 1 did not contain a substantive 'Just cause"
provision which could be relied upon by probationary employees there is a line of
cases which has concluded that there is an implied term in a collective agreement
that management cannot act in a manner which is arbitrary discriminatory or in
bad faith If so then in the Union's submission there is a difference between the
parties with respect to whether or not such standards can be implied in the instant
collective agreement vis a vis probationary employees and if so whether
management's actions with respect to this grievor therefore met these implied
standards The following cases were cited inter alia in support of the Union's
alternative submissions Re Maritime Telegraph & Telephone Co ltd and Atlantic
9
Communication & Technical Workers' Union (1990) 11 LAC (4th) 172 Re
Mcintosh and the Ministry of Government Services July 22 1993 (N Dissanayake)
(3027/92) and Re Brampton Hydro Electric Commission and National Automobile,
Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada),
local 1285 et al (1993) 15 0 R (3d) 773
3 The Decision
The Board's jurisdiction stems from the legislative will as expressed in
the applicable legislation The parties' Collective Agreement cannot supersede the
legislative will In this case this Board'sjurisdiction is rooted in Section 7(3) of
C E C B.A which provides that
every collective agreement relating to Crown employees shall be deemed to
provide for the final and binding settlement by arbitration by the Grievance
Settlement Board of all differences between the parties arising from the
interpretation application administration or alleged violation of the
agreement " [emphasis added]
The [Board's] decision in Haladay, supra at page 152 stated as
follows
Where we have jurisdiction to determine a dispute we have full
authority to grant a remedy on the merits including a statutory
remedial authority (such as reinstatement in non just dismissal cases)
would sometimes far exceed that which is available to the court
Where we have no jurisdiction we can grant no remedy at all we do
10
not have inherent jurisdiction to right all wrongs or to try to We can
right only those wrongs which fall within the jurisdiction given us by
statute or by collective agreement Where we do have jurisdiction
we can require a full hearing on the merits not merely order reasons
to be given Where we have no jurisdiction an employee who has
grieved must pursue like Constable Nicholson a remedy in the
courts
The applicability of these principles was confirmed in the decision of
the Divisional Court in the case of Ontario (Minister of Correctional Services),
supra at page 711 The relevant portion of the Court's decision reads as follows
The court must be careful not to confuse the agreement of the parties
limiting or taking away an employee's right to grieve with the
question of the jurisdiction given to the Board by the legislature The
Board has as I have already stated the jurisdiction given to it by the
legislature no more and no less The parties cannot tamper with that
jurisdiction The parties can agree as they have done here that a
probationary employee cannot grieve and that an employee can only
grieve if she commences her grievance in a timely fashion That
agreement does not change in any way the jurisdiction of the Board
It simply takes away the right to grieve in certain circumstances The
jurisdiction given to the Board by s 19 (1) of the Act to settle or
decide all "differences between (the parties) arising from the
interpretation application or alleged contravention of the
agreement including whether a matter is arbitrable" remains
intact The Board in deciding whether an employee cannot grieve
because she is probationary or because she has not grieved within
the time prescribed by the agreement must of course do so in light of
the facts and the words used by the parties in the agreement But in
so deciding it will be making the very decision that by the Act it has
the sole jurisdiction to make and its decision will only be subject to
judicial review if it is patently unreasonable
Over the years many cases have dealt with questions relating to the
jurisdiction of the Grievance Settlement Board to consider issues related to the
11
termination of probationary employees The state of the applicable law prior to
the amendments to Section 18 was summarized in Re Haladay, supra at page
146 where arbitrator Swan quoted Section 17(2) [equivalent to s 18(2) of
C E C B.A prior to the amendments in question] and then concluded as follows
The collective agreement in operation between the parties at the
material time is the 1978 Working Conditions agreement In that
agreement the parties have severely limited the access of probationary
employees to the grievance procedure Article 27 6 1 provides "Any
probationary employee who is dismissed or released shall not be entitled to
file a grievance"
On the other hand all employees have an independent right to come
before this Board in certain cases That right is set out in the Crown
Employees Collective Bargaining Act 1972 (Ont) c 67 s 17(2) [s 17 and
18 repealed and re-enacted 1974 c 135 s 9 am 1978 c 79 s 1]
17(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
(c) 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 18
This Board has dealt over the years since its creation with a number of
cases involving probationary employees within the statutory regulatory and
contractual structure which binds these parties and this grievor We should
note that our jurisdiction is statutory only and has two main branches
First we are vested with jurisdiction to hear and determine disputes about
the interpretation application administration or alleged contravention of the
collective agreement this jurisdiction arises under s 18 of the Crown
Employees Collective Bargaining Act, 1972 Second beyond that
jurisdiction and independent of it we have the jurisdiction set out in s 17(2)
quoted above We have no other authority to intercede between the parties
we do not have any inherent jurisdiction to do justice - or what we may
conceive to be justice - or to provide remedies no matter how desperately a
12
particu lar case may cry out for rei ief The Board is a creature of the
statute and derives its jurisdiction solely from the statute
In the Ambrey case supra Arbitrator Knopf stated as follows
the Crown Employees Collective Bargaining Act gives employees claiming
unjust dismissal the right to grieve that matter before the Grievance
Settlement Board in addition to any right that may be contained in the
Collective Agreement [emphasis added]
In the instant case due to the amendments to C E C B.A which
resulted in the removal of the Just cause' provision from Section 18(2) the second
of the two above-mentioned branches is no longer available to the Board as a basis
for taking jurisdiction Prior to the amendments in question CECBA imposed a
limitation on management rights regardless of the specific Collective Agreement
provisions negotiated by the parties By removing the statutory limitation of Just
cause' upon management rights the legislature took away from employees the
overriding protection of a statutory Just cause' provision Obviously it still left
the door open to the parties to negotiate such a provision Presently in the event
that the parties omit or qualify a Just cause' provision the legislation no longer
contains a saving provision giving employees the protection of a 'Just cause"
clause
Today the Board's remaining jurisdiction is thus rooted in Section 7(3)
of C E C B.A which provides for the "final and binding settlement by arbitration"
"of all differences between the parties arising from the interpretation
13
application administration or alleged violation of the agreement " (Emphasis
added) Section 7 had previously existed essentially in the same form in the old
Section 18 and thus the cases decided under Section 18 of C E C B.A., such as Re
Haladay Supra still apply
Prior to the C E C B.A amendments in question it was well
established that the Board was entitled to examine the termination of a
probationary employee to determine whether or not the termination could properly
be characterized as a bona fide release or whether it was a disciplinary
termination masquerading as a release If it was found that the termination was a
bona fide release the jurisdiction of the Board was exhausted However if the
termination of the probationer took place as the result of disciplinary action against
that employee then the Board had the jurisdiction to examine the circumstances
of the termination The Toronto Hydro (supra) and Ontario Hydro (supra) cases set
out the rationale which has been followed consistently since then
In April 1980 in the Re Toronto Hydro case Supra Mr Justice
Linden as he then was characterized the issue before him as follows
The issue raised in this application is whether a collective agreement can
deny probationary employees access to arbitration in order to contest their
dismissal in the light of s 37 [am 1975 c 76 s 10 of the Ontario Labour
Relations Act R S 0 1970 c 232
14
The sole legislative context for Mr Justice Linden's decision was Section 37 of the
Ontario labour Relations Act which is identical in its relevant portions to the
wording of Section 7(3) of C E C B.A It should also be noted that the Court did
not have before it a further legislative provision similar to that contained in the
former Section 18(2) of C E C B.A The court considered the identified issue in
light of a provision in the collective agreement which provided inter alia that" no
employee shall be disciplined or discharged without just and sufficient cause"
Mr Justice Linden thus quoted from Arbitrator Barton's award which
was under review at p 20 and 21 as follows
The next question is whether Art 36 02 [denying probationers
access to arbitration to contest dismissal] has any effect
Fundamental to this question is the question of whether or not Art
36 02 is a substantive or procedural provision It seems to me that
the right to lodge a grievance as distinguished from the procedures
that must be followed during the course of pursuing that grievance is
a substantive right What this agreement seems to do is confer upon
the employees the right not to be discharged without just cause
confer on the employees the right to initiate grievances and then take
away the right to grieve dismissal from a group of those employees
particularly new employees during the first three months of their
probationary period Thus what we have is an agreement which
confers the right confers a right to enforce the first mentioned right
and then takes away the power to do so from a small group of
employees in the unit In my view art 36 02 is void as contrary to s
3 of the labour Relations Act because it does this
In our view the arbitrator correctly read the provisions of Arts
36 02 and 55 01 together The language used in the agreement is clear and
unambiguous A general substantive right to have their employment
terminated only for just and sufficient cause was conferred by Art 55 01 on
all employees including probationary employees Access to the grievance
procedure however was purportedly withdrawn from probationary
15
employees by art 36 02 Thus the probationary employees were given a
substantive right but the machinery of enforcing that right should they
differ with their employer about the substantive right was denied them
If the withdrawal of the substantive right given in Art 55 01 to all
employees is to be taken away from probationary employees that intention
should be expressed in clear language Nowhere in the agreement is there a
provision which says in express terms that probationary employees may be
dismissed without cause Consequently in our view the interpretation
adopted by the arbitrator here was the only one that the language could
reasonably bear
Almost three years to the day later in 1983 in the Re Ontario
Hydro case Supra the Ontario Court of Appeal considered the question of
whether or not there was a difference between the parties where the
collective agreement gave probationary employees the right to grieve a
dismissal but appeared not to give them the right to go to arbitration The
court found that there was a difference between the parties where an
arbitrator interpreted a collective agreement as conferring on a probationary
employee a right assertible in the circumstances against the employer
notwithstanding a term in the collective agreement barring the resort to
arbitration on behalf of a probationary employee Article 2A 1 of the
Collective Agreement in the Ontario Hydro case arguably provided a lesser
substantive right to probationary employees than the provision contained in
Article 21 1 of the instant case and read as follows
Any allegation that an employee other than a probationary employee
has been demoted suspended discharged or otherwise disciplined
without just cause shall be a fit matter for the Grievance and
Arbitration procedures as provided for in this Collective Agreement
16
The court quoted from the decision of the majority of the Board of
Arbitration as follows
In an industrial relations context the purpose of a grievance
procedure is to resolve differences between the parties and in our
view the correct construction of Art a 2 is that in the event the
union considers that a probationary employee has been discharged
without just cause this constitutes a difference between the parties
which the collective agreement provides is a fit matter for the
grievance procedure only
Writing on behalf of the majority In the Ontario Hydro case
supra at p 682-3 Morden J A (as he then was) described the manner in
which provisions in the collective agreement could give rise to an "arbitrable
difference"
In my view unless the "matter" which is included in the
collective agreement is capable on the facts of the case of
giving rise to ajusticiable issue and in this respect it would not
be so capable unless (in the present context) it involved the
conferral of a right on the employee against the employer then
I do not see how it could give rise to any arbitrable difference
Morden J A then set out a two-step process which an arbitrator must
follow in order to determine whether or not there is a 'difference' between the
parties for the purposes of s 37 (1) as follows
First the facts have to be determined which in this context means
that the collective agreement must be interpreted and then the statutory
17
provision has to be interpreted with a view to deciding whether it is
applicable to the facts as determined In the first stage if the arbitrator
interprets the agreement as conferring on the complaining employee a right
assertible in the circumstances against the employer then there is a
difference within the meaning of this word (more accurately the word is
"differences") in s 37(1) In the present case the board of arbitration
interpreted the agreement as creating a right in a probationary employee
based on an allegation of discharge without just cause which could give rise
to a "difference" The difference was one relating to the interpretation
application or administration of the collective agreement If this is the
conclusion on the interpretation of the agreement then any provision in the
agreement which blocks the resort to arbitration to determine the right
would be void as contrary to s 37(1)
Of course if the process takes a different turn during the first stage
then it may be that no "difference" will emerge which would entitle the
union or employee to proceed to arbitration An arbitrator may interpret the
agreement as conferring no right on an employee which could give rise to a
difference capable of being adjudicated by arbitration
I do not suggest that the two steps are mutually exclusive and in this
respect I refer to the relevance of the principle which favours that
interpretation which makes the agreement valid in preference to that having
the opposite effect This principle reflects a factor which should be taken
into account in the process
I think that the adjective "substantive" affords a reasonable
description of the nature of the rights with which we are now concerned
which can give rise to a "difference" Broadly speaking collective
agreements confer on the parties including employees certain rights which
may be asserted against the other party I n the present case the board of
arbitration in one of its descriptions of what the agreement provided said
that the agreement conferred on probationary employees "certain protection
based on the principle of just cause" These protection I think embody
substantive rights The other kind of rights which will be found in collective
agreements relate to the machinery for enforcing these substantive rights or
protection and a convenient description of them is "procedural" If the
impediment to arbitration is an absolute procedural bar as opposed to an
absence of a substantive right to be submitted to arbitration then there is
an arbitrable difference
As a consequence of the logic in the above cases if it is found by the
Board that a probationary employee has a right assertible against the employer
18
then there is a difference between the parties and such a difference is to be
resolved in a final and binding manner by arbitration by the Grievance Settlement
Board
Does the probationary employee in this case have a right assertible against the
employer?
Further to the analysis of Mr Justice Morden in the Ontario Hydro
case it is of critical importance to analyze the relevant provisions of the collective
agreement in order to answer the question of whether the grievor has a "right"
which is "assertible in the circumstances against the employer " If so then
there can be a "difference" between the parties arising from the "interpretation
application administration or alleged violation" of the agreement If there is a
difference' between the parties then Section 7(3) of C E C B.A provides that
such a difference must be resolved in a final and binding manner by arbitration by
the Grievance Settlement Board
The specific articles of the collective agreement in question contain a
complex web of apparently conflicting provisions They can be summarized as
follows
On the one hand the following provisions confer rights or by their
19
silence do not take away rights granted elsewhere in the collective agreement
a) Sub-section 1 of Article 21 (which is entitled "Discipline and Dismissal")
contains the 'Just cause" provision and applies both to discipline and to
dismissals
b) Sub-Section 2 of Article 21 does not take away from probationers the
right to access the grievance or arbitration procedure in disciplinary matters
c) Article 22 8 does not specifically preclude probationers from grieving
matters of discipline
On the other hand the following provisions limit the rights of
probationers
a) Article 21 2 re-iterates the fact that probationary employees do not
have the right to grieve or arbitrate dismissal
b) Article 22 8, entitled" Dismissal" states that probationary
employees who are "dismissed or released" shall not be entitled to file grievances
When all of the relevant provisions of the collective agreement are
taken together I find that they can be summarized de minimis by the following
two propositions
1 Since the Collective Agreement does not prohibit probationary employees
from grieving or arbitrating disciplinary measures taken against them by the
20
Employer probationers are entitled to have access to the grievance and arbitration
procedure with respect to matters of discipline on the basis that the discipline has
been imposed without just cause
2 Probationary employees cannot grieve or take to arbitration a release or a
non-d isci pi i nary term i nation
These two propositions reflect the parties' mutual interest in two
competing principles the protection of employees' right to work and the protection
of management's discretion to manage the work-place The resolution of the
issues in this case depends upon the point of intersection of the two principles as
established by the provisions in the collective agreement
In a matter between these same parties in Re Leslie and the Crown in
Right of Ontario (Ministry of Community and Social Services) (1978) 22 LAC
(2d) 126 (Adams) determined that because the language in Section 18 (2) of
CECBA did not contemplate the concept of release the question of whether a
matter could be heard by the Board depended upon whether or not the grievor had
been released or dismissed as the result of disciplinary action I n the Leslie case
it was found that
" this Board is of the opinion that the employer cannot camouflage either
discipline or the termination of an employee for a reason other than the
employee's failure to meet the requirements of his position as that phrase is
explained in the Square D Co ltd case by the guise of a 'release' under
21
Section 22(5) of the Public Service Act This Board therefore has
jurisdiction to review a contested release to insure that it is what it purports
to be The Board must only be satisfied that the employer in good faith
released the employee for a failure to meet the requirements of his position
As long as the Board can be satisfied that the employer has made an
evaluation of that kind it has no jurisdiction to review the fairness or
correctness of that termination under Section 17(2)(c) (Now 18(2)(c) of the
Crown Employees Collective Bargaining Act)
The question raised in this case can therefore be narrowed and re-
stated as follows Can a probationary employee grieve a termination which he or
she alleges is in fact a disciplinary measure? Did the parties intend to give a
probationer the right to access the grievance and arbitration process only in the
event that the discipline is minor but not if the discipline is dismissal the 'capital
punishment' of disciplinary measures? One of the most important purposes of the
grievance and arbitration procedure is to provide impartial neutral third party
review of the facts and circumstances leading up to the imposition of discipline
Setting aside issues of arbitrariness bad faith or discrimination which would
trigger the application of a separate line of cases what if the evidence were to
disclose a misapprehension of facts a miscommunication a mistake or other
circumstances which would lead to the conclusion that a disciplinary dismissal
was totally unwarranted and the appropriate discipline only merited a written
warning a one-day suspension or exoneration instead of dismissal?
22
Therefore the question in this case is whether Article 21 1 goes so
far as to confer upon probationary employees a substantive right assertible against
the employer not to be dismissed without 'just cause" Article 21 1 provides that
the Employer has the right to discipline or dismiss employees for 'just cause"
subject to the employees' right to grieve In my view Article 21 1 does not
distinguish between different types of employees and confers upon all employees
an unqualified substantive right not to be dismissed without just cause' Article
21 2 sets out the procedural right of access to the grievance and arbitration
process The cases are many and they are all in agreement and confirmed by the
Ontario Court of Appeal that a procedural provision cannot constitute a bar to and
defeat a substantive right Consequently it follows that neither Article 21 2 nor
Article 22 8 cannot defeat the substantive right set out in Article 21 1 I thus find
that the question of whether a disciplinary measure up to and including
termination taken by an employer against a probationer is or is not an appropriate
disciplinary measure taken with 'just cause" in the specific circumstances of a
case constitutes a "difference" between the parties which entitles them to
proceed to have that "difference" resolved by arbitration pursuant to Section 7(3)
of C E C B.A
I find that this Board has the jurisdiction to engage in the process of
determining whether or not the release is a bona fide release "for failure to meet
23
the requirements of his or her position" or whether the release constitutes de facto
camouflage for disciplinary action taken by the employer against the probationary
employee In the latter case the disciplinary action may be examined and
reviewed in order to establish whether the discipline up to and including
termination was warranted at all pursuant to all the considerations that normally
apply in Board reviews which involve the application of the 'just cause" standard
My conclusion is consistent with the one and only interpretation
which is able to reconcile the various provisions of the collective agreement and
give effect to both Article 21 and Article 22 8 that being the interpretation that
finds that probationary employees cannot grieve a non-disciplinary termination but
may grieve a termination which has been made for disciplinary reasons
Of course this conclusion leaves both the parties and the Board in
the usual conundrum that in those cases where there is a "difference" between
the parties with respect to whether or not the measure taken against the
employee is disciplinary and whether or not the discipline imposed ought to have
been less than discharge the Board must take jurisdiction in order to determine
whether or not the termination was a disciplinary dismissal or a bona fide release
and there must be a hearing with evidence and submissions The parties must
adduce all the necessary evidence with respect to the facts and circumstances
24
and the Board must take jurisdiction at least initially in order to determine whether
or not the termination was the result of a disciplinary measure or whether it
constituted a bona fide release If the Board finds that the termination was a bona
fide release then that is the end of the matter However if the Board fi nds that
the termination was a disciplinary dismissal then the Board may hear evidence
with respect to 'just cause" Depending on the specific facts and circumstances
of a case it may be practical for the parties to adduce call all the evidence and
have the Board reserve its decision until the end of the hearing on the preliminary
question of whether or not a particular termination of a probationer is a disciplinary
dismissal or a non-disciplinary release
For all of the reasons and considerations set out above I deny the
preliminary objection raised on behalf of the employer and find that this Board has
the jurisdiction to proceed with a hearing with respect to the grievance in order to
determine whether on the one hand the grievor was simply released or whether
on the other hand the grievor was dismissed for disciplinary reasons I n the latter
case the Board may hear evidence and submissions to determine whether it
should exercise its discretion to vary or nullify the discipline imposed
Dated at Toronto this 11 th day of August 1999
Eva E Marszewski - Vice-Chair