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HomeMy WebLinkAbout1978-0218.Boucher and Trumbley.80-11-17IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Befcre THE GRIEVANCE SETTLEMENT BOARD Between: Ms. Sharon Boucher & Ms. Doreen Trumbley (Grievers) And The Crown fin Right of Ontario Ministry of Correctional Services (Employer) Before: Prof. J. R. S: Prichard Vice-Chairman Mr. G. Peckham Member Mr. B. Switzman Member For the Grievor: Mr. M. Pratt, Grievance Officer Ontario Public-Service Employees Union For the Employer: Mr. C. G. Riggs> Hicks Morley Hamiiton Toronto, Ontario Hearing: February 19th, 1980 March 20th, 1980 April 17th, 19BO In this case, Ms.~Doreen Trumbley al.leges that she;‘was unjustly dismissed. She seeks reinstatement and full back pay. Prior to her termination, the grievor was a Correctional Officer (casual) with the Ministry of Correctional Services. There have been two interim awards in this case. The first dealt with a preliminary objection to our jurisdiction. The second, dated March ZOth, 1980, dealt solely with a request by the Ministry for an adjournment and did not deal with the legal issues at stake in the grievances. Since the final disposition of the issues before us is integrally linked to the interim award dated March 19th, 1980, we have reproduced it below as part of this award. It read: (Please see Pgs. 3 to 11) - J - f "This case involves two independent grievances, one by Ms. Sharon Boucher and one by Ms. Doreen Trumbley. However, since both cases raise a similar jurisdictional issue and some common facts, the parties agreed that the cases should be heard together by the Board. Each of the grievors all.eges that she has been "unjustly terminated" and seeks that she "be rehired in my position and .that I receive full back pay according to the posted schedule". Prior to their termination on September 26; 1978 and October 13, 1978 respectively, Ms., Boucher and .Ms,.- Trumbley were Correctional Officers (casual) with the Ministry of Correctional Services, working at the ~Windsor Jail. As Correctional Officers (casual) the grievors are members of the unclassified service and are governed by Article 3 of the collective agreement. Public servants who are members of the unclassified service are hired on fixed term contracts. In this case, each grievor had been hired on a one year contract running from April 1, 1978 to March 31, 1979. Each of the grievors had been employed at the Ministry prior to April I, 7978 on earlier similar contracts. At the outset of the hearing in this matter, counsel for the Ministry made a preliminary objection to the Board's jurisdiction to hear the two grievances. In essence, the Ministry's position is that Article 3.3 of the collective agreement permits the Ministry to terminate a member of the unclassified service on one week's - 4 - notice; that the grievors were terminated on one weekls notice in compliance with Article 3.3; and that the grievors therefore cannot come to the Board complaining of being dismissed without just cause. Counsel for the Union, not surprisingly, took a different view of the Board's jurisdiction in thismatter. He argued that the provision in Article 3.3 dealing with termination on one week's notice must be reconciled with the grievance procedure set out in Article 27 of the.collective agreement and with the statutory protection against unjust dismissal accorded all employees by section 17 (2)(C) Of the Crown Employees Collective Bargaining Act, 5.0. 1,072, c.67 as amen+d 5.0. 1974, c-135. In his view, the proper reconcilia- tion of these provisions is to distinguish a termination from a disciplinary dismissal, . applying Article 3.3 to the former and section 17(2)(c)to the latter.In his submission, therefore, the Board's jurisdiction extends at least to characterizing the Ministry's actions regarding the grievors as either a termination Or an unjust dismissal and, in the event that the latter characterization is applied, going on to consider the merits of the cases. At the request of the parties, we agreed to rule on the Ministry's preliminary objection prior to'heari.ng evidence in the two cases. In retrospect, that may have been a mistake since, as will become evident below,.a final ruling concerning our jurisdiction is, in our view, dependent on the factual circumstances of each of the cases. As a result, this interim award provides only a preliminary direction on the jurisdictional question; our ultimate conclusion on this point will be dealt with in our final award. III - The reconciliation of the competing submissions concerning the Board's jurisdiction depends.on an assessment of the relevant provisions ,^. of the collective agreement, the crdwn employees Collective Bargaining Act, the Public Service Act. R.S.O. 1970, c.386, a.s amended and VaPiOUS - judicial and arbitral awards dealing directly and indirectly with this problem. We were assisted in this task by the-thorough and helpful arguments of both counsel. In addition, we are acutely aware of the fact that this issue.is one of considerable concern to both parties as we were advised by counsel that there are approximately 6000 employees in the unclassified service, all of whom share a potential interest, in the resolution of this case. AS was stated above, Article 3 of the collective agreement governs the grievors. It states in part: SEASONAL OR PART-TIME EMPLOYEES 3.1 The only terms of this Agreement that apply to employees who are not civil servants are those that are set out in this Article. ;.3 Employment may be terminated by the employer at any time with one (1) week's notice, or pay~in lieu thereof. 3.6 The following Articles shall also apply to seasonal or part-time employees: dqticles 1, 9, 11, 12, 15, 16, 17, 21, 22, 23,. 25, 27, 32, 36 and 38. The articles incorporated by Article 3.6 deal with the following matters union recognition (Art. l), shift definition (Art. 9), shift premiums (Art. ll), rest periods (Art. 12), stand-by pay (Art. 15), on-call duty (Art. 16), meal allowances (Art. 17), pyramiding of premium payments (Art. Zl), mileage allowances (Art. 22), travelling credits (Art. 23), (Art. 23), seniority (Art. 25), the grievance procedure (Art. 27), leave for jury duty (Art. 32), provision of i,nformation to new employees (Art. 36) and the duration of the agreement (Art. 38). SeCtiOn 17(2) of the Crown Employees Coll&tive Bargaining Act provides: In addition to any other rights of grievance under ~a CdleCtiVe aTEement, an ‘2mplOyee Cbimii?g, (a) that his position has been improperly classified; (b) that he has been appraised contrary to the gover- ning 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 proc- edure for final determination applicable wider section 18. 1974, c. 135, 5. 9, part. Further, section 18(l) of the same statute provides: Every collective agree&& shall be deemed to provide that in the event the parties are unable to effect a settlement of any.differences between them arising from the interpretation, application, adminis- tration or alleged contravention of the agreement, including any question as to whether a mat&r is arbitrable, such matter may be referred for arbitration to the Grievance Settlement Board and the Board after giving full opportunity to the parties to present their evidence and to make their submissions, shall decide the matter and its decision is final and binding upon the parties and the employees covered by the agreement. As a result of the combined effect of subsections l(a) and l(g) of the Public Service dct, the grievors are "public servants" who are not "civil servants". Further, under the crown hnployees Collective Bargaining Act, the grievors are "employees" as defined in subsection l(i)(g) since none of the exclusions in that subsection apply. As employees~, the grievors clearly fall within the terms of section 17(2) of the crown Employees Collective Bargaining dct and are entitled to the rights therein. As public servants who are not civi.1 servants, the grievors clearly fall within Article 3 of the collective agreement. Furthermore, since the ~grievors are employees for purposes of the C dct, the recognition clause in Article 1 of the collective agreement - encompasses the grievers:' In turning to the jurisdictional issue itself, we are aware of and~~we accept the statement of the limited jurisdi,ction of this Board which is foundin me .%&dey (94/78) at pages 3 - 4: 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 -5.18 of the - Bargaihing Act. 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 - oz what we may conceive to be justice - 01 to provide remedies, no matter how desperately a partictilar case may cry out for relief. The Board is a creature of the statute, and derives its jurisdiction solely from the statute. The only exception to that rule is that the parties may provide for certain matters in a collective agreemen.t, and our jurisdiction is thus broadened to the extent that they have done so. Thus, if we are 'to assume jurisdiction in this case, we derive it from the statutes and the collective agreement referred to above. In our view, the question central to the resolution of the Ministry's preliminary objection is whether or not the Ministry may claim the exclusive authority to characterize the ending of an employee's contract-as a "termination" or an "unjust dismissal". That is, counsel for the Ministry conceded that if a members of the unclassified.service were dismissed as that term ii used in section 17(2)(c) of the crown Employees Collective'Bargaining dct, then the employee would have the right to bring his grievance to this Board alleging unjust dismissal despite the provision of Article 3.3 allowing termination on one week's notice. (W e might note that the full implications of that concession were not explored at the hearing and that further consideration might usefully be directed to this point during the continuation of this matter.) However, if the employee were terminated with proper notice as that term is used in Article 3.3, then, so counsel for the Ministry~argued, the employee would be unable to come to the Board seeking relief since section 17(2)(c) would not apply. As to who should decide whether the facts amounted to a dismissal or a termination, the Ministry took the position that it had the sole authority to make this determination. Going further, the Ministry took the position that if it gave one week's notice, that characterized the matter as a termination and not a dismissal for cause. In summary, the Ministry's position is that it - and not the Board - has the authority and responsibility to characterize a particular case as a termination or a dismissal for cause.. After due consideration, we are unable to accept ~this submission as it is~, in Our view,.inconsistent with ourunderstanding of the Board's .duty under section 17(Z), with.previous decisions of this Board and with the Supreme Court of Canada's decision in Jacmainv xtorney-General of Canada ,(1978) 81 DLR (3d) 2. In our view, the Board's jurisdiction extends at a minimum to characterizing any particular set of facts surrounding the ending of an unclassified employee's employment relationship as a I i dismissal for cause within the meaning of section lzG')(c~ or a "termination" within the meaning of Articles 3.3 of the collective agreement. To decide otherwise would be to abdicate our statutory responsibilities under sections 17 and 18 of the Crown Employees Collective Barqaininq Act which charges g with the duty to decide a claim by an employee that he or she has been dismissed without just cause. Implicit in that duty is a duty to delineate our jurisdiction by determining in each case brought before us .__. >*I whether or not the facts amount to a dismissal or not. The Ministry may not deprive an employee of his section 17(2)(c) rights by calling a disciplinary dismissal a termination within the meaning of Article 3.3. Similarly, an employee cannot gain greater rights by calling a bona fide termination a -- disciplinary dismissal in order to~come within the~terms of section 17(2)(c). Rather, after hearing the evidence of all the circumstances surrounding the.severing of the employment relationship this Board must decide upon the proper characterization of each case. For those cases characterized as a termination, the~.employee will be limited to the protection offered by Article 3.3. For those cases, characterized as dismissals, the Ministry must be prepared to meet the requirements of section I7 (2). This conclusion is consistent with the Board's jurisprudence concerning section 17 of the Crown Employees Collective Barsaininq Act. The Board has consistently held that nothing in the collective agreement can derogate from the statutory rights stated in section 17(Z) (see - I” - (me Erj&a.(12/75), Re Joyce /21/76) and Re Keeling /45/78) lappl. 'for judicial review denied, unreported deci~sion of the Ontario Divisional Court dated March 14, 1980). Further;the Board has consistently stated that it and not the employer mustassume the.task of-delineating .the.Board's jurisdiction by determining whether or not a particular set of facts .come within the tetTE of section 17(2)(c) (see Re Leslie (80/77) and ie Xaladay (94/78)). Our decision follows directly from these earlier cases. Furthermore, our decision is in our view consistent with the Supreme Court of Canada's decision in ~~.racmain , supra. While it is acknowledged that Mr. Justice De Grandpre writing for the majority of the Court in that case did not expressly deal with this question, the concurring opinion of Mr. Justice Pigeon and even the dissenting opinionof Mr. Justice Dickson., concurred in, by Chief Justice Laskin, certainly support the proposition that a Board such~as ours has the jurisdiction to inquire into and to characterize a particular set of facts concerning the severing of the employment relationship to determine whether or not it amounted to a disciplinary dismissal. In conclusion, we have determined that our jurisdiction under Section 17 and 18 of the Crown,,Employees Collective Bargaining Act extends at a minimum to hear and then characterize the facts surrounding the severing of the employment relationship of a member of the unclassified service as either a termination within the meaning of Article 3.3 of the collective agreement or a dismissal for cause within the meaning of section 17(2)(c) of the statute. If the latter characterization is applied, our jurisdiction will then extend to determining the merits of the claim that the dismissal was without just cause. If the former applies, our jurisdiction will be at an end assuming the requirements of Article 3.3 were met. This interim award purposely leaves a number of unanswered questions. We wish to give counsel a further opportunity to make submissions on these' and any other matters relevant to the final disposition of those cases. Without limiting the matters we invite submissions on, we are particularly : concerned with the following questions: (i) What is the appropriate dividing line between termination and disciplinary dismissal? How should the term "termination" be defined? How broad are the permissible grounds for a termination? When, if.'ever, is.inadequate perfotmance'a disciplinary matter in this:~context? What factors should guide our process of characterization? (ii) Assuming the matter is characterized as a disciplinary dismissal, what constitutes "just cause' for an unclassified employee? Is it a lesser standard than that for classified‘employees? IS it related to the standard for probationary employees? (iii) Assuming the matter is a disciplinary dismissal and that just cause is .lacking what is the effect of Article 3, the Public Service Act and the limited term of the contracts on the appropriate remedy to be granted to the employee? We recognize that the second and third questions will be irrelevant in the bent that the matter is characterized as a termination. However, we do wish to put counsel on notice that these are all matters on which we seek assistance. II Following the release of our interim award and a subsequent adjournment at the request of the Ministry, we reconvened to hear the merits of the case and further argument on the points raised in our interim award: At that time it was agreed that we should proceed to hear the case.of Ms. Trumbley only, even though the interim award dealt with both Ms. Trumbley and Ms. Boucher. It was agreed that the Boucher case would be scheduled, if necessary, following,the final disposition of the Trumbley case. At each of the three separate days of hearings in this entire proceeding, the Ministry was represented by a different agent or counsel. Perhaps not surprisingly, the representations made to us on the final day by Mr. Riggs for the Ministry differed somewhat from those made on the previous occasions. While we have, of course, considered these arguments on their merits, we do wish to note that the evolution of our decision in this case through the interim awards and this final award may be influenced by the changing positions assumed by the Ministry. It barely requires stating that if at all possible the Board ~prefers to see a single counsel take the carriage of a particular case in order to avoid possible misunderstanding, and/or inconsistencies. At the hearing the Ministry elected to call no evidence relating to the circumstances surrounding the termination of Ms. Trumbley. Counsel for the Ministry indicated that the Ministry was eager to get - a determination of the status of unclassified employees for purposes of~termination and that the Ministry was prepared for these.purposes to accept any characterization of the facts that the Union wished to adduce. Furthermore, counsel for the Ministry accepted that the Board I - 13 - was entitled to draw adverse inferences from the Ministry's failure to call evidence. Counsel for the Union elected to call evidence. The grievor, Ms. Trumbley, testified that she first joined the Ministry on September 15, 1971 and continued to be employed on contracts of varying length until her termination in 1978. On October 13, 1978, she received a letter from the Superintendent of the Windsor Jail stating in full: Please be advised that effective October 20, 1978 your casual contract with the Ministry of:.- : ..~ Correctional Services is cancelled. Six days later she received the following memorandum: Further to our letter of October 13, 1978, in which you were advised that, effective October 20, your Casual Contract with the Ministry was cancelled; this is to advise the reason for the cancellation of the said contract, and that being your inability to meet the requirements, through your unavailability on numerous occasions, when attempts had been made to contact you, without success. Since this effected our requirements for staff coverage, and ultimately lead to overtime having to be utilized, which in turn effected our budgetary constraints, we therefore reviewed our casuals, as it effected this matter, and ultimately decided to resolve the problem by obtaining the services of someone mxe compatible to our needs. J. G. Hildebrandt - superintendent Since the Ministry called no evidence it is difficult to know the full circumstances.leading to the decision to terminate the grievor. It appears .from the griever's evidence that the deci'sion derived f&i some differ- ence of opinion as to the extent to which the grievor should be avail- able to be called upon to report to work on short notice. Suffice it to say that the only reasonable inference we are able to draw is that the termination decision reflected the Ministry's dissatisfaction with the grievor's work performance, broadly defined. Furthermore, it must be stressed that there is no evidence to support this dissatisfaction as the grievor denied any impropriety on her part and the Ministry called no evidence. - 14 - 1n sum, as counsel for the Ministry frankly acknowledged, the Board must conclude that the grievor was terminated for cause and that the Ministry has failed to provide any evidence to support that cause. On the evidence before us, therefore, the Ministry has failed to prove just cause for the termination, a termination which must be characterized as a dismissal for cause. The difficult legal issue that confronts us is the determination of -,he consequences of this :~ conclusion. In our interim award we gave certain preliminary indications as to our views on the legal issues before us. However, On Page-3 of that award we stressed-that our "ultimate conclusion" must be dealt with in this award in light of the facts of the case and the final arguments of counsel. Upon hearing both the evidence and the arguments the issue has been clarified and crystallized and we are in a,position to dispose of it. To the extent that certain of the language in the interim award is suggestive of a somewhat different interpretation of the relevant statutes and collective agreement, the interpretation offered in the award is, of course, our authoritative statement. As we stated in our interim award, the grievors, pursuant to subsection 1 (T)(g) of the Crown Employees Collective Bargaining Act, are employees and are thus entitled to the protection stated in section 17(2)(c) of the Act. At the same time, they are "public servants" who are not "civil secants" and thus subject to Article 3 of the collective agreement. Article'3.3 states that "employment may be - 15 - terminated by the employer at any time with one (1) week's notice,, or 'spay in lieu thereof". At the outset,.it appears clear that the mutual intention of the Ministry and the Union as reflected in the collective agreement. is that casual employees such as the griever can be terminated on one week's notice. Furthermore, the actual contract signed by the grievor includes a termI that "serv+es my be terminated On one (1) week's notice by either party", a term which clearly reflects and incorporates Article 3.3 of the collective agreement. The Union urged that a more limited intention should be ascribed to Article 3.3, arguing that since the article refers to "employmm&', not "employees" it should only be taken as dealing with.cases involving the elimination of a particular function or work situation. However, in our view, such a narrow read- ing is not warranted. Reading the article as a whole and considering the reference to the one week notice period in the individual contract (whatever its legal significance) which'the griever acknowledged ~she was aware Of, it seems that it is only reasonable to assume that the parties intended to permit the termination of casual employees on one week's notice. ;I.~. We stated in our interim award that despite any intent on the part of-the parties to the contrary, nothing in the collective agreement can derogate from the statutory rights accorded all employees by section 17(Z) of the CKJWII Employees Collective Bargaining Act. That reflects a position taken consistently by various panels of this Board (see R= Eriksen (12/75), R= Joyce (21/761, Re Keeling (45/78) (application for judicial review denied, unreported decision of the Ontario Divisional Court dated March 14, 1980, leave to appeal denied by the Ontario Court of Appeal)). At the same time, however, it is incumbent upon us in - 16 - interpreting the relevant statutes to attempt to .do so as consis- tently as possible with the intentions of the parties as expressed in the collective agreement. That is, although we are a statutory board of arbitration, our duty to the parties is to attempt to adjudicate disputes between them by applying the terms of the, " collective agreement, constrained only by the mandatory requirements of the relevant statutes. We wish to make clear that to recognize that we should strive to give effect to the parties' intentions as expressed in the collec- tive agreement is not to accept either of the first two arguments made by counsel for the Ministry. He argued that section 17(2) should be displaced altogether from any application to casual employees, either as a result of estoppelor the provisions of the Ptilic service A&. With respect to eStOppe1, if the argument were accepted we would - be permitting indirectly what cannot be done directly: the derogation by contract of rights established by the Legislature. With respect to sections 8 and 9 of the'public Service~dct, we do not accept the proposition that section 17(2) of the crown Employees Collective Bargain- ing Act cannot be given effect simultaneously; there is no necessary inconsistency between the two which would fo.rce us to nullify the effect Of the-crown Employ&es Collective Bargaining Act. In his third argument, counsel for the Ministry accepted the applicability of section 17(2) to casual employees but suggested that - 17 - on the facts of this case the grievor failed to fall within~its terms; However, as we-stated earlier in this award, that argument must fail. The Ministry's failure to call evidence and the inferences drawn from that failure combined with the grievor's own evidence must lead to the conclusion that this was a disciplinary dismissal and that it was without just cause. As such, the grievor must succeed in her claim that she was discharged without just cause contrary to subsection 17(2)(c) of the Crown~Emp1oyee.s Collective Bargaining Act. This will not always be the case with the terminationof casual employees since only if the termination is properly characterized as being a dismissal without just cause does it fall within 17(2)(c). If the circumstances are those of a release or other non-disciplinary act, then they would not appear to fall within the ambit of 17(2)(c). Given that the grievor was dismissed without just cause, the only remaining issue is the appropriate remedy. Under section 18 of the crown Employees Collective Bargaining Act we have the discretion to determine the appropriate remedy. As a remedy for the grievor, counsel for the Union sought (i) back pay for the duration of the grievor's one-year contract, (ii) reinstatement in employment with the Ministry on a six month contract in order to grant her an opportunity for renewal, and (iii) exemplary damages. We indicated at the hearing that we considered a claim for punitive damages inappropriate; even if we have the authority to award such damages (a point on which we express no opinion), there was - 18 i nothing in the Ministry's conduct of such a wrongful nature that it would warrant punitive damages. .While we have found the Ministry in breach of its obligations, there is no evidence of malice, wanton conduct, or other similar behaviour warranting an extraordinary expression of public reprimand. The suggestion that the back pay be limited to the time remaining on the grievor's contract reflects the fact that she had no entitlement to have her contract renewed. Thus, if we were to find that back pay should be awarded, we would concur in this limitation. In doing so, however, we would also be cognizant of the Union's argu-, ment that this would not make the grievor "whole" in that she also lost the opportunity to be renewed, an opportunity that must be viewed as bei.ng of value given her seven year history of repeated renewals. Whether reinstatement or'some monetary compensation would be the most appropriate remedy for this loss of opportunity, we do not wish to decide in this case. Pursuant to our statutory mandate to determine what remedy would be just and reasonable in the circumstances, we feel compelled to give primary weight to the parties' actions.and intentions. As we stated above, our function is to serve the parties by interpreting and giving effect to their coilective agreement in so far as it is possible within the confines of the relevant statutes. In this case we are confronted with the bold language of Article 3.3 of the collective agreement which, as we have interpreted it, provides for only one week's notice or one - 19 - week's pay in lieu of notice when a casual employee is terminated. Whatever our personal views as to the substantive adequacy of such a provision as a form of job protection, particularly as it applies to an employee who has in effect served for seven years, it would, in our view, be inappropriate for us to disregard the parties' intentions as expressed in Article 3.3 in con- sidering the appropriate remedy. On the face of the collective agreement, the parties have turned their minds to the degree of job protection to be afforded casual employees and have reached agreement on the question. The term "termination" is given no limit in Article 3.3; it is not limited to situations in which there is no longer work to be performed. In normal usage it should be taken as including a dismissal .and there is nothing in the collective agreement to oust the normal interpretation. Thus, on its face, Article 3.3 specifies the scope of protection to be accorded casual employees. When read with section 17(2)(c) and section 18 of the crown Employees Collective Bargaining Act, it must be taken to mean that the parties, after considering the situation of casual employees, saw fit to agree that they could be terminated upon one week's notice. Thus, in attempt- ing to pay heed to the parties' expressed intentions while at the same time / fulfilling our statutory mandate, we find that Article 3.3 should guide us in determining the just and reasonable remedy. We therefore find that the just and reasonable remedy in all the circumstances (including the terms of the collective agreement) is one week's notice or one week's pay in lieu thereof. In this case;the grievor received the requisite notice and she is therefore not entitled to any further remedy in this respect. That does not, however, conclude a consideration of the grievor's position. If it did, our conclusion that the grievor is entitled to - 20 - exercise the rights under subsection 17(2)(c) would be a totally empty one since she would be put in exactly the same position as if she had no such right: she would be left with nothjng more than her contractual (and undisputed) right to one week's notice.J Casual employees who are dismissed for allegedly disciplin- ary reasons may have an interest. in adjudicating their cases apart from monetary relief and/or reinstatement. Also at stake are their work records and reputations. That is, if a discharged casual employee were not able to come to this Board, he or she would lack a forum within which to challenge the veracity of any allegations concern- ing his or her work performance. The grievor's situation is a case in point. She testified that she had been seeking new employment since her dismissal but had done so without success. She testified that she had learned that she was receiving a "bad reference" from her former employer, the Ministry. This reference'presumably reflected the conclusions that the Ministry had drawn concerning her the work, performance which led to her dismissal. The Ministry in the case before us utterly failed to substantiate its conclusions and thus " they must be found to be devoid of merit as all allegations of inadequacy and impropriety were denied by the grievor. The grievor is therefore entitled to a remedy in the form of an order that the Ministry correct.the grievor!s personnel file and employment record so as to eliminate any conclusion that the grievor's conduct warranted dismissal~in October, 1978. We will remain seized of this matter in the event there is any difficulty in implementing this aspect of our award. G 21 - -. Before closing, in order to avoid confusion, we wish to acknowledge a certain change in emphasis between our interpretation ..~ of Article 3.3 in this award and in our,interim award. In the interim award,the issue properly before us was whether or not the termination of the grievor fell within our'jurisdiction under section 17(2) Of the crown Employees collective Bargaining Act. Our conclusion was that only the Board and not the employer could .decide that question and that it could only,be decided in light of the evidence. That is the characterization issue. In this award, in light of the evidence, we have characterized the circumstances as a disciplinary dismissal and thus within section 17(2) and thus within our jurisdiction. We have then gone on to inquire as to the consequences of the absence of just cause and in this context have found Article 3.3 to be of continuing relevance in specifying the appropriate remedy. To this extent we may be differing from the language we used in part of the interim award which can be taken to suggest that Article 3.3 is relevant only to non-disciplinary dismissals. That was a proposition suggested by counsel for the Ministry at the first hearing which, upon reflection, does not appear to have merit. It was not adopted by the Ministry's subsequent counsel. In the result, the "characterization" step does not, in our view, dispose of the relevance of Article 3.3. - 22 - . ' z In sum, the grievance is allowed in-part. The Board finds that the grievor was dismissed without just cause. The grievor's employment record and personnel file should be modified accordingly so as to eliminate any suggestion that the grievor's conduct warranted dismissal in October, 1978. The grievor is not, however, entitled to either reinstatement or back pay. The-provisions of Article 3.3 of the collective agreement disentitle her to any such remedy. Before closing, we wish to emphasize that our decision is based exclusively on the rights of the grievor under the collective agreement and sections I7 and 18 of the crmm employees Collective Bargaining'dct. In some cases, depending on the facts, members~ of the unclassified service may be able to obtain a remedy under some other provision of the crown Employees Collective Bargaining Act (for example section 27) or under some other statute.(for example, the Ontario XUZIW Rights code). These, of course, are not matters properly before us, but they may represent an avenue of recourse in some cases. Finally, we wish to thank Mr. Pratt and Mr. Riggs for their assistance in this matter. Dated at Toronto, this 17th day of November, 1980. hL,J s&J-ti Prof. J. R. S. Prichard Vice-Chairman I concur Mr. G. Peckham Member "I dissent" (Dissent to follow- Feb. 25, 1981) Mr. B. Switzman Member /t