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Supreme Court of Canada

Labour relations—Grievances—Probationary employee—Dismissal on probation—Grievance procedure under collective agreement not available to employees while on probation—Adjudicator dismissed grievance submitted under collective agreement, allowed the grievance under s. 91(1) of New Brunswick’s Public Service Labour Relations Act and awarded reinstatement—On application for certiorari, adjudicator’s decision upheld, with the exception of the award—Appellant appealed and respondent cross-appealed variation of award—Public Service Labour Relations Act, R.S.N.B. 1973, c. P-25, ss. 65, 91(1), 92(1), 96(2).

The respondent, an employee dismissed while on probation, submitted two grievances in respect of her dismissal, the first under subs. 91(1) of New Brunswick’s Public Service Labour Relations Act and the second under the collective agreement. Both grievances, after being denied by Treasury Board, were referred to an adjudicator. The adjudicator decided that he had no jurisdiction to hear the grievance filed under the collective agreement. The collective agreement granted probationary employees all the rights and privileges of the agreement with the exception of recourse to the grievance procedure on dismissal. Respondent could not rely on Article 10.01 requiring just cause for dismissal. The

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adjudicator, however, decided that respondent had a right to grieve under subs. 92(1)(b) of the Act which gave her statutory rights outside the collective agreement. In the absence of proven fault and because the dismissal was not justified in the circumstances, respondent was awarded reinstatement to the date of dismissal with full pay and benefits from that date. On an application for certiorari by the Treasury Board, the Court of Appeal upheld the adjudicator’s decision, except for the award which was referred back to the adjudicator to be assessed in accordance with its reasons for judgment. The Treasury Board appealed to this Court and the respondent cross-appealed with respect to the variation of the adjudicator’s award by the Court of Appeal.

Held: The appeal should be allowed and the cross-appeal dismissed.

With respect to the meaning and effect of Articles 10.01 and 22.01(e) of the collective agreement, the employer was entitled to terminate the respondent’s employment without cause.

Section 65 of the Act provided that a collective agreement was “subject to and for the purposes of this Act” binding upon the employees in the bargaining unit. The respondent therefore was bound by the provisions of Articles 10.01 and 22.01(e) unless provision that diminished their impact on her could be found in the Act. Sections 91 and 92 of the Act, upon which the adjudicator and the Court of Appeal founded their decisions, did not purport to confer substantive rights upon employees in addition to their rights as defined in the collective agreement. They defined the circumstances in which an employee who felt himself to be aggrieved could present his grievance at each level up to the final level in the grievance procedure (s. 91) and in which, after having presented his grievance up to that level, he could refer it to adjudication (s. 92). The grievance submitted, however, had to be determined in accordance with the provisions of the collective agreement. 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 on the face of the record when the adjudicator decided that the respondent’s grievance had been established because the employer had failed to establish fault on her part as a prerequisite for her dismissal. In putting the respondent in the same position as a permanent employee, the adjudicator ignored the express provisions of Articles 10.01 and 22.01(e) of the collective agreement, since Article 10.01 did not apply to probationary employees and Article 22.01(c) enabled the employer to terminate

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the employment of a probationary employee without recourse to the grievance procedure.

Re Paasche (1979), 26 N.B.R. (2d) 199, considered; Heustis v. The New Brunswick Electric Power Commission, [1979] 2 S.C.R. 768, referred to.

APPEAL from a judgment of the Court of Appeal for New Brunswick[1], supporting the adjudicator’s decision, except for the award. Appeal allowed and cross-appeal dismissed.

David M. Norman, Q.C., for the applicant, appellant.

Robert D. Breen, for the respondents, respondents.

The judgment of the Court was delivered by

MARTLAND J.—The respondent was hired by the Board of School Trustees, District 20, as a School Secretary, commencing November 1, 1978. She was a probationary employee. While still a probationary employee, her employment was terminated on February 9, 1979, by a letter dated January 26, 1979.

The conditions of her employment were contained in a collective agreement dated December 9, 1977, between the appellant (“Treasury Board”) and the Canadian Union of Public Employees.

The provisions of the agreement relevant to this appeal are as follows:

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.

8.02 Decision of Adjudicator or Board of Adjudication

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An adjudicator or a board of adjudication shall not have the power to alter or change any of the provisions of this Agreement or to substitute any new provision for any existing provision nor to give any decision inconsistent with the terms thereof.

10.01 Discharge Procedure

No employee who has completed his probationary period shall be suspended or discharged except for just cause. Where an employee is suspended or discharged, the Employer within five working days of the suspension or discharge shall notify the employee in writing by registered mail or personal service stating the reason for the suspension or discharge, and a copy of such notice of suspension or discharge will be forwarded to the Secretary of the Local Union.

22.01 …

(e) A “probationary” employee may be employed either full-time or part-time. Newly hired employees shall be considered on a probationary basis for a period of one hundred (100) working days. During the probationary period, employees shall be entitled to all rights and privileges of the Agreement, except with respect to discharge. The employment of such employees may be terminated at any time during the probationary period without recourse to the Grievance Procedure.

The respondent submitted two grievances in respect of her dismissal. The first, dated February 8, 1979, was stated to be under subs. 91(1) of the Public Service Labour Relations Act (“the Act”), R.S.N.B. 1973, c. P-25. The second, dated February 9, 1979, was a grievance under the terms of the collective agreement alleging a violation of Article 10.01 of that agreement because she did not receive written reasons for her discharge.

Both grievances were denied by the Treasury Board and were referred to an adjudicator. He decided that he had no jurisdiction to hear the grievance filed under the provisions of the collective agreement because, as the respondent was a probationary employee, she could not rely upon the provisions of Article 10.01 of the collective agreement requiring just cause for dismissal.

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However, he proceeded to consider the grievance filed under the provisions of the Act because, even though she was a probationary employee, in his opinion the respondent had a right to grieve under para. (b) of subs. 92(1) of the Act which gave her statutory rights outside the collective agreement. His conclusions were stated as follows:

1. The grievor was a probationary employee for certain purposes of the collective agreement.

2. That by the terms of the collective agreement the collective agreement did not apply to her with respect to discharge.

3. That her dismissal was a disciplinary action imposed for an alleged fault by the grievor.

4. That no fault was established and her dismissal was not justified in the circumstances.

I order the grievor reinstated to the date of her dismissal with full benefits and pay from that date.

The Treasury Board applied for an order of certiorari to quash the decision of the adjudicator, which application was referred to the Court of Appeal. The Court of Appeal supported the decision of the adjudicator except that his award, requiring the Treasury Board to reinstate the respondent to the date of dismissal with full benefits and pay from that date, was quashed and the matter was referred back to the adjudicator to assess such compensation as he might deem payable in accord with the reasons for judgment of the Court of Appeal.

With leave, the Treasury Board has appealed to this Court and the respondent has cross‑appealed in respect of the variation of the adjudicator’s award made by the Court of Appeal.

The provisions of the Act, relevant to this appeal, are 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(1).

91 (1) Where any employee feels himself to be aggrieved

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(a) by the interpretation or application in respect of him of

(i) a provision of a statute, or a regulation, by-law, direction or other instrument made or issued by the employer, dealing with terms and conditions of employment, or

(ii) a provision of a collective agreement or an arbitral award; or

(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 (1) Where an employee has presented a grievance up to 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, or

(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 (2), refer the grievance to adjudication.

96 (2) No adjudicator shall, in respect of any grievance, render any decision thereon the effect of which would be to require the amendment of a collective agreement or an arbitral award.

Both the adjudicator and the Court of Appeal were of the opinion that the collective agreement did not contain all of the terms and conditions governing the respondent’s employment, but that the Act had created statutory rights in addition to those provided in the collective agreement. It was their view that, notwithstanding the right of the Treasury Board to dismiss a probationary employee without just cause, recognized by Article 10.01 of the collective agreement, subs. 92(1) of the Act required that just cause be shown where the dismissal was the result of disciplinary action.

The position taken by the Court of Appeal is stated in the following paragraph of the judgment:

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I can find no merit in the contention of counsel that the collective agreement contains all the provisions relating to employment to the exclusion of the common law or statutory provisions applicable thereto. As stated in Re: Paasche (supra) the collective agreement does not provide that a probationary employee may be dismissed without cause but merely denies a right of grievance for a dismissal. The agreement is silent as to what cause, if any, must exist to justify the dismissal of a probationary employee. In such a case we must look to the common law right of dismissal and not to the agreement.

With respect to the meaning and effect of the relevant provisions of the collective agreement, it is my opinion that the employer was entitled to terminate the respondent’s employment without cause. At the time of the termination of her employment, the respondent was a probationary employee. The requirement contained in Article 10.01 for the employer to show just cause for the suspension or discharge of an employee applied only to an employee who had completed his probationary period. Article 22.01(e) goes on to provide that: “During the probationary period, employees shall be entitled to all rights and privileges of the Agreement, except with respect to discharge. The employment of such employees may be terminated at any time during the probationary period without recourse to the Grievance Procedure.”

The case of Re Paasche[2] to which reference is made in the passage from the judgment of the Court of Appeal above quoted, does not alter my opinion. The issue to be determined in that case was as to the power of the Chairman of the Public Service Labour Relations Board to enlarge the time for the presentation of a grievance. The Court of Appeal, in the course of the judgment, did consider the meaning of certain provisions of the collective agreement relating to probationary employees, but the wording of those provisions differed from the wording of Articles 10.01 and 22.01(e), and so it is unnecessary for me to express any opinion as to the Court’s interpretation of the provisions which it was considering in that case.

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Section 65 of the Act provides that a collective agreement is “subject to and for the purposes of this Act” binding upon the employees in the bargaining unit. The respondent was therefore bound by the provisions of Articles 10.01 and 22.01(e) unless there can be found in the Act some provision which diminished their impact upon her. The adjudicator and the Court of Appeal founded their decisions in her favour upon para. (b) of subs. 92(1) of the Act, which they appear to interpret as providing her with substantive rights outside the provisions of the collective agreement.

For purposes of convenience, I will cite that subsection again:

92 (1) Where an employee has presented a grievance up to 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, or

(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 (2), refer the grievance to adjudication.

The adjudicator and the Court of Appeal were of the view that because the adjudicator found that the respondent’s dismissal was a disciplinary action, the adjudicator, under para. (b), had power to adjudicate on the grievance and that he then had the right to determine whether or not the dismissal was justified.

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 (s. 91) and in which, after having presented his grievance up to that level, he may refer it to adjudication (s. 92). However, 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

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showing just cause, there was an error of law on the face of the record when 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.

By 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 or discharged, is given, by Article 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 subs. 92(1) of the Act, and the adjudicator could then review the matter and determine whether there was just cause for the suspension or discharge. The application of subs. 92(1) in such a situation was considered by this Court in Heustis v. The New Brunswick Electric Power Commission[3], at pp. 779-80.

In putting the respondent into the same position as that of a permanent employee, the adjudicator ignored the express provisions of Articles 10.01 and 22.01(e) of the collective agreement, since the provisions of Article 10 do not apply to probationary employees, and Article 22.01(e) enables the employer to terminate the employment of a probationary employee without recourse to the grievance procedure.

I would 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.

Appeal allowed and cross-appeal dismissed.

Solicitor for the applicant, appellant: David M. Norman, Fredericton.

Solicitors for the respondents, respondents: Bryden, DiPaolo & Breen, Fredericton.

 



[1] (1979), 27 N.B.R. 578, (1979), 60 A.P.R. 578.

[2] (1979), 26 N.B.R. (2d) 199.

[3] [1979] 2 S.C.R. 768.

 

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