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HomeMy WebLinkAbout1978-0206.Tucker.90-05-29.- &’ \ ON~AFtlO CROWN EMPLO”EES GRIEVANCE SETTLEMENT BOARD L'nc?er the CROWN EMPLOYEES COLLECTIVE EARGAFNING ACT Between : and Before: Before THEN GRIEVANCE SF,TTLP>lENT SOARD GPSELI (Wzs. C.E. Tucker), Griever The Crown in Right of Ontario (Ministry of the Attorney General), Employer J.F.W. Weatherill, Chairman / K.W. Preston Member S.R. Hennessy Member For the Grievor: G. Richards, 'Grievance Officer, OPSZU - For the EmDlover: J. 2arudny, Counsel, Ministry of the Attorney General Heard zt Toronto, I+arch 17, l?en. - ..’ I’ -2- DECISION The grievance in this matter, dated November 10, 1978, is as follows: I grieve unjust dismissal as per notice dated October 16, 1978, which took,effect November 6, 1978. I request reinstatement with full compensation of lost wages and benefits. The grievor began her employment with the Ministry in April, 1977, or thereabouts, as a "contract" employee. She was appointed to the public service on November 14, 1977. Her classification was that of Clerical Typist 3, and she worked in the ,office of the Assessment Review Court in Sault Ste. Marie. The griever, would be, for the year following her appointment, a "probationary" employee, and there is no doubt that she was aware of this status, In February, 1978, the grievor received an "employee appraisal report" following three months'. service and the appraisal is, clearly, a very good one. By letter.dated October 16, 1978, the grievor was advised, that she was released from employement, in accordance with Section 22(5) of The Public Service Act, effective November 6, 197s. i -3- Section 22(5) of The.Public Service Act is as follows: 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. The purported release of the grievor took place during the first year of her employment. In the instant case, the employer ra ises the ob jection that the matter is not arbitrable before this Board. Refer- ence is made to article 27.6.1 of the collective agreement, which provides as follotis: 27.6.1 Dismissal -- Any probationary employee who is dismissed or released on probation shall not be en- titled to file a grievance. It is the union's contention that the grievor was not properly or validly released on probation, but that she : was dismissed from her employment without just cause, and . .: ,. . t . . that the Board therefore has jurisdiction in the matter under Section 17(21 (c) of The Crown Employees Collective Bargaining Act. That provision allows an employee who'claims that he has been disciplined or disnissedor suspended from employment without just cause to file a qrievance in accordance with the grievance procedure provided in the collective agreement and, ultimately, to proceed to arbitration before this Board. To the extent that article 27.6.1 may limit the right of grievance and arbitration given employees by The Crown Employees Collective Bargaining Act, then itwould in our view, be beyond the powers of the parties to the agreement. We would add, however, that we do not consider article 27.6.1 of the collective agreement to be in necessary contradiction of Section 17 of The Crown Employees Collective Bargaining Act. Further, we do not consider thatthelatter Act limits the power of a deputy minister under Section 22 of The Public Service Act. In this respect, reference may be made to what is said by the Board in the Leslie case, ,80/77. Whether or not this board has jurisdiction to hear the instant case depends on whether or not it is a claim coming either within the scope of article 17(2) of The Crown Employees Collective Bargaining Act, or within the scope of any relevant ‘i, _. .,., ..)I 1: : :.. provision of the collective agreement. As we have seen, the collective agreement itself would appear to foreclose any right of grievance. As to the Act, Section 17(2) sets out three sorts of matters which may be processed to arbitration, The first of these relates to improper classification and is not material to this case. The second relates to a claim of improper "appraisal". In our view '(contrary to that expressed'in the dissenting opinion in Leslie), there was not involved here the sort of appraisal contemplated by Section 17 (2) lb). What is contemplated there is, we think, an appraisal of work performance according to, a formal procedure. The grievor was appraised, in this sense, in February, 1978, as we have seen, and it will be remembered that the appraisal was very good, The third sort of arbitrable matter is, as noted~ earlier, the claim of discipline, dismissal or suspension without just cause. The threshold issue - that on which jurisdiction de- pends -his whether there Gas in fact discipline, dismissal or suspension. In the circumstances of the instant case, the question is whether or not the termination of the grievor's employment, effected while she was still a "probationary" employee, constituted a "dismissal". In n -6- the private sector that term may be loosely used so as to include, in some contexts, the non-disciplinary term: ination of a probationary employee. In the public sector, however, it is used with more precision. It is to be con- trasted, in particular, with the term "release". An employee who has been released pursuant to Section 22 of The Public Service Act cannot (with respect to the same action) be said to be one who has been dismissed within the meaning of Section 17(2) of ,The Crown Employees Col,lective Bargaining Act. Where the claim is made, as here, that a person has been dismissed, and where the employer, as here, answer.s that she has not been dismissed but rather released, then it will be.the task of the Board to characterize the employer's action as one or the other. In this respect, although the governing legislation is not identical, the task of the Grievance Settlement Board is analogous to that described by the Supreme Court of Canada as appropriate to the Public Service Staff Relations Board in the Jacmain case (19771, 78 C.L.L.C. '14,117. This conclusion was reached by the Board in the Leslie case 80/77, and we are, with respect, in agreement with it. The union's contention in the instant case is, essentially, that the purported release of the griever as a probationary' employee was not valid, in that it was said not to comply with / ” -7- certain standards of fairness. There is no real allegation that the grievor was disciplined, and cer- tainly no ground or motive for any disciplinary action against the grievor is suggested, nor does any appear / in any "way from the evidence. Everything Suggests; rather, that the griever was a good and well-regarded employee, It is. said, however, that the grievor was not notified of.any actioncontemplated with respect to her employment, nor advised of any standards she was expected to meet. In fact, the grievor was away from work, on medical leave of absence, from and after May of 1978. She was at,work, then, for about one-half of the "probationary period". During this time, she submitted medical certi- ficates as required, and these were accepted. There is no question as to the bona fides of the grievor's absence. -- At the time of the notification of her release from employment, the.~grievor, on her own testimony, would not have been able to go back to her old job. Nothing in these circumstances permits the conclusion that the employer's action was based on an imaroper motive or that it was intended as some sort of'disciFlir.arymeasure. r _:’ :-, ,,:,,. -8- We cannot, therefore, properly characterize the~matter before us as one involving dismissalwithout just Cause within the meaning of Section 17(2) of The Crown Employees Collective Bargaining Act. Certainly, as we have seen, the matter is not one with respect to which the collective agreement gives us jurkdiction. It follows that the grievance is not one which this Board has jurisdiction to hear. With respect to the argument that the release was not a valid one, that question would properly ‘come hefore ~another forum.. As the Board pointed out in Haladav, 94/78, "Where we have no jurisdiction to review the merits of a rejection, we would certainly not assert a right to review the procedure whereby it was carried out. If the rejection was contrary to statute, a remedy must be found elsewhere. . .I'. In Haladay, the, Board also dealt with the Nicholson case (1978) C.L.L.C. 14, 181, a decision of the Supreme Court of Canada, which was also referred to in the instant case. The effect of what this Board said was, briefly, <that while the exercise of discretion under Section 22 of The Public Service Act may be subject tc judicial review in circum- stances to which the Nicholson case might.apply, it is not subject to review of that sort by this Board. The role of this. Board, in "characterizing" the action taken by the employer with .-. I: ,: .~.. 1.: : :. ,. -9- respect to the qrieVor;is simply to determine whether or not such action may be the subject of an arbitrable grievance by reason of the provisions of The~Crown Employees Collective Bargaining Act or of the collective agreement. In, the circumstances of the instant case the termin- ation of the grievor's employment is not a matter which this. board has jurisdiction to consider. The grievance must there- fore be dismissed. DATED AT TORONTO, this day of May, 1980. Chbirman Member Member IX THE :IAJJER OF AN ARFITXATJO,\ Undelk the CRWWN E!,iPLr)YEES COLLECTIVE BAXGAINING ACT D I s s E N T I# . . . Such an aAneboment neceuah,i& us&35 Rhe prsbationu k&U be given a hu~&ioient petiad 06 &me to dem.zttiMe kin pzc jitienq and capabi&tg, .that h.2 dtiu and he5polzlibiWe5 have been cleahey ahticulated to him, tilo.2 ua,5onabLe h.bdaJd5 a$ behav.i.owr and pe&~omnance cMe expected 06 kim, &at kin pnoghah .& n&&tern- tic&y mviaced and, no.t ir~5ignijicantQ, 2ho.t .the etnpeoyti ha5 wade ,teieanonabee ej$oti to coach, ititict and indohm tie empi3yee tihoughout .the phabo&ionahy pehiod. Such ptinciph5, ~wL7mental 20 a phobu%noJy ptid in o.ng beotok 06 empby- me&, cyie even mo,?e &nc!imental in the public AenhvLce, tih:hete fhe p/LobtionaJuk pehiod in ubuai.& 06 a longti and mohe pmtonged dwuztion”, .Lt .ih impenkztive .&z-t, given the language 06 .the ChoWn EmpZcqeei CoUective BwtgoAting AC.& tiLin Board adopt an intequa%%on utich be5.t 6tiven .to advance ,thtlze nemedj and nupptun Xhe rr&ciiied con- tempted by &e eeg.i5&tion. In my opin.ian .the eegi&ticLte, by P~C- viding the h.ta.tutoi*~j hedw55, in .5 e&on 17( 2 I , .5 unelg intended Xo enwmpab the &Jpe 06 problem utich -tJme ca6e5 have’nai,ed. ,.. 5