GSB#2016-1433

UNION# G-47-14-BOE

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Amalgamated Transit Union - Local 1587 (McCurdy)

Union

• and -

The Crown in Right of Ontario (Metrolinx - GO Transit)

Employer

BEFORE

Randi H. Abramsky

Arbitrator

FOR THE UNION

Dean Ardron Ursel Phillips Fellows Hopkinson LLP Counsel

FOR THE EMPLOYER

Daniel Fogel Hicks Morley Hamilton Stewart Storie LLP Counsel

HEARINGS

January 30, 2017 and October 17, 2017

DECISION

1The Employer has raised a preliminary objection to the jurisdiction of the Grievance Settlement Board (“GSB” or “Board”) to hear this grievance which contests the termination of the Grievor, Raymond McCurdy, who was a probationary employee at the time of his dismissal. The Union opposes that motion, and asserts that the Board has jurisdiction to determine if the Employer’s action was arbitrary, discriminatory or in bad faith.

Facts

2No viva voce evidence was called. A number of documents were admitted into the record for the purposes of this motion. Those documents, and other facts provided at the hearing, are the basis of the facts set out below.

1. The Grievor commenced employment with the GO Transit on or about March 2014 as a Bus Driver.

2. The Grievor received a commendation from his supervisor on or about June 24, 2014 for presenting himself well, being on time, prepared, performing his circle checks and being polite.

3. On or about July 15, 2014 the Grievor’s vehicle was burglarized in front of his home. Shortly thereafter, the Grievor engaged in a verbal discussion with the perpetrator. During the course of the verbal discussion, the Grievor was physically attacked by the perpetrator and was forced to defend himself. As a result of the physical interaction, in which the Grievor defended himself, the perpetrator sustained injuries which resulted in his death.

4. On or about July 16, 2014, the Grievor was charged with manslaughter pursuant to the Criminal Code of Canada. The charges against the Grievor were reported by GTA press outlets, including reference to his Employer as “GO”.

5. On or about July 21, 2014, the Employer discharged the Grievor as it had:

…deemed you are not currently suitable for the role of bus driver.

At the time of his dismissal, the Grievor was a probationary employee.

6. On July 29, 2016, the Union filed a grievance on Mr. McCurdy’s behalf, alleging that his discharge “is without just cause, arbitrary and in bad faith.” The grievance refers to Articles 4.4, 6.1 and 7.2 of the collective agreement “and all other articles, acts or Codes of the Collective Agreement or statutory provisions which are relevant.” However, there is no allegation that the Grievor’s termination violates any statute or law, including the Ontario Human Rights Code.

7. On or about July 29, 2016 the Grievor was found not guilty of manslaughter following a jury trial. The Grievor received a conditional discharge for an associated assault charge. As of January 2018 the Grievor will have no criminal record.

8. The Employer, on January 12, 2017, in response to the Union’s request for particulars with respect to the discharge of the Grievor wrote: “…Mr. McCurdy was terminated for engaging in a violent altercation which resulted in death, criminal charges and media attention. It is the Employer’s position that any of these factors justified termination.”

9. The language contained in Article 4.4(1) has been, with the exception of one change in 1986, in the parties’ collective agreements since at least 1981. The original language read as follows:

Article 4.4(1) It is recognized that a period of probation is a period during which the Employer has the right to assess an employee to determine whether such employee is, in the sole opinion of the Employer, acceptable for employment. It is therefore recognized and agreed that probationary employees may be released or dismissed at the sole discretion of the Employer during the probationary period and that such release or dismissal shall be deemed to be for just cause. Any probationary employee who is released or dismissed shall not be entitled to file a grievance.

10. In 1986, there was an amendment to this provision – the addition of the words “absolute and” to the second sentence, which now reads: “It is therefore recognized and agreed that probationary employees may be released or dismissed at the absolute and sole discretion of the Employer during the probationary period and that such release or dismissal shall be deemed to be for just cause.” The rest of the provision was not changed.

11. There have been no GSB decisions between the parties concerning probationary employee dismissals.

There are several relevant provisions in the parties’ collective agreement:

ARTICLE 1 – PURPOSE

1.1 The general purpose of this agreement between the Employer and the Union is to establish and maintain orderly and harmonious collective bargaining relations at the bargaining table and at the work place; to provide a procedure for the prompt and equitable disposition of grievances; to assist and promote the proper and efficient operation of the Employer’s business in serving the public interest.

ARTICLE 4 – GRIEVANCE PROCEDURE

4.4(1) (emphasis added)

It is recognized that a period of probation is a period during which the Employer has the right to assess an employee to determine whether such employee is, in the sole opinion of the Employer, acceptable for employment. It is therefore recognized and agreed that probationary employees may be released or dismissed at the absolute and sole discretion of the Employer during the probationary period and that such release or dismissal shall be deemed to be for just cause. Any probationary employee who is released or dismissed shall not be entitled to file a grievance.

4.4(2) Any employee, other than a probationary employee, who is dismissed, shall be entitled to file a grievance at Step 2 of the grievance procedure….

4.9 The Grievance Settlement Board or the arbitrator shall not have any jurisdiction to alter or amend in any way the provisions of this agreement; to substitute any new provisions in lieu thereof, to give any decision inconsistent with or contrary to the terms and conditions of this agreement; or in any way to modify, add to or delete from any provision of this agreement. …

ARTICLE 6 – MANAGEMENT RIGHTS

6.1 Except as otherwise abridged by specific provisions in this agreement, the Union acknowledges that the Employer shall be entitled to exercise all the usual rights and functions of management, which rights include, but are not limited to, the right to …discipline and discharge employees (provided that a claim that an employee with seniority has been disciplined or discharged without just cause may be the subject of a grievance and dealt with as provided for in this agreement)…… [to] make and apply reasonable rules and regulations to be observed by employees…

ARTICLE 7 – SENIORITY

7.2(b) Probationary employees will have no seniority rights during this period. After completion of the probationary period, an employee’s seniority shall date back to the date of his last hiring and shall be determined as specified in this Article.

ARTICLE 8 – POSTING AND FILLING OF VACANCIES

8.1(1) … Probationary employees may, at the sole discretion of the Employer, be considered for another position outside their classification after the signing date of this agreement. … The opinion of the Employer shall not be exercised in an arbitrary or discriminatory manner.

8.1(10) Internal Job Posting Procedure

The Employer shall consider all applicants from the bargaining unit before considering external applicants and will only consider external applicants if in the reasonable opinion of the Employer there is no applicant from the bargaining unit who possesses the necessary skill, ability and qualifications to perform the work in question.

The opinion of the Employer hereunder shall not be exercised in an arbitrary or discriminatory manner.

ARTICLE 11- HEALTH AND SAFTEY

11.13

(4) The incumbents hereto adopt these guidelines in good faith and agree to promote and assist the Joint Health and Safety Committee whenever and wherever possible.

LETTER OF AGREEMENT #5

Re: Article 20.2 - Rest Periods

1. The parties agree to refer the issue of rest periods … to a Joint Committee for its review and determination.

2. The parties shall meet and negotiate in good faith and attempt to resolve the issue. …

Positions of the Parties

The Employer

3The Employer asserts that in this collective agreement, the parties clearly and unequivocally gave the Employer the “absolute and sole discretion” to release a probationary employee, and precluded the Union from being able to challenge that decision through the grievance procedure. It asserts that this Board should give full effect to the language negotiated by the parties, which, in plain and clear language, precludes the Grievor and Union from contesting the Grievor’s dismissal as a probationary employee. It submits that under basic principles of contract interpretation, the parties words should be given their “normal and ordinary meaning” notwithstanding that the result may be unfair or oppressive, citing Brown and Beatty, Canadian Labour Arbitration, at 4:2110 and 4:2120.

4The Employer asserts that the parties are sophisticated bargainers, and when they wanted to provide that a decision of the Employer may not be exercised in an arbitrary or discriminatory manner or had to be in “good faith”, they specifically included such language, citing Articles 8.1(10 and 8.1(10) as well as Article 11 and Letter of Agreement #5. It submits that the absence of such a requirement in Article 4.4(1) is significant and demonstrates the parties’ intent that the Employer’s “absolute and sole” discretion is not subject to review on that basis. It further submits that “sole discretion” language has existed since 1981 and was strengthened in 1986, with the addition of “absolute” to “sole discretion”. It argues that the Union had many opportunities over the years to change that language and impose standards such as “arbitrary, discriminatory or in bad faith” but did not. Although no party presented evidence concerning the 1986 negotiations, the Employer asserts that it may be assumed that the parties’ made a trade-off in bargaining to add the word “absolute” into Article 4.4(1). In its view, the word was most probably not included “for free.”

5The Employer submits that the addition of the word “absolute” has meaning. Whereas “sole discretion” means the Employer’s discretion, the addition of the word “absolute” means that the Employer has complete, unlimited, unfettered, unqualified and total discretion. The one exception, the Employer notes, under Section 48(12)(j) of the Labour Relations Act and the decision of the Supreme Court of Canada in Re District of Parry Sound Social Services Administration Board and OPSEU, Local 324, 2003 SCC 42, is where a probationary employee alleges that his discharge violates an employment-related statute. An arbitration board clearly has jurisdiction to hear that claim. That, however, is not the case here as no such allegation was raised.

6The Employer also relies on the words in Article 4.4(1) that “such release or dismissal shall be deemed to be for just cause.” It asserts that this language is not common, and appears in none of the cases cited by either party. In its view, this provision forecloses any question of arbitrability because the Employer’s decision “shall be deemed to be for just cause.” It asserts that it is not possible for a decision to be “arbitrary, discriminatory or in bad faith” yet be for “just cause.” To entertain such a claim, or decide that the Employer’s decision was arbitrary would improperly nullify this negotiated language. Such a decision, it submits, would also be contrary to Article 4(9) as inconsistent with the parties’ collective agreement.

7The Employer also argues that other provisions in the collective agreement support the conclusion that probationary employees may not grieve their dismissal. It refers to Article 4.4(2), Article 6.1, Management Rights, and Article 7.2(1). These provisions, it submits, consistently preclude a probationary employee from using the grievance procedure to contest their dismissal.

8In the Employer’s view, in light of the clear language in the parties’ agreement, there is no basis to imply an obligation not to exercise its discretion in an arbitrary, discriminatory or bad faith manner. Such an obligation, it asserts, must have a “hook” in the collective agreement. It asserts that there is none – not in the purpose clause or anywhere else. This is especially so here, it maintains, because the parties negotiated such specific language concerning probationary dismissals. It submits that the specific provisions in regard to probationary employees overrides any general implied obligation.

9In support of its position, the Employer refers to the following cases: Re U.S. Steel – Hamilton Works and United Steelworkers, Local 1005 (2012), 224 L.A.C. (4th) 150, 2012 CarswellOnt 11391 (Tacon); Re Ontario (Alcohol and Gaming Commission) and OPSEU (Harris), 2001 CarswellOnt 6443 (Whitaker); Re District of Parry Sound Welfare Administration Board and OPSEU, Local 324, 1999 CarswellOnt 1782 (Knopf); Re Markham Hydro Electric Commission and I.B.E.W., Local 636, 1992 CarswellOnt 6624(Knopf); Re Ontario Teachers’ Pension Plan Board and OPSEU (Tran)(1997), 1997 CanLII 25120 (ON LA), 65 L.A.C. (4th) 138, 1997 CarswellOnt 5660 (Davie); Re U.S. Steel Canada- Lake Erie Works and United Steelworkers, Local 8782 (2012), 223 L.A.C. (4th) 380, 2012 CarswellOnt 11194(Barrett); Re Corporation of the City of Toronto and Metropolitan Civic Employees Union, Local 43, 1986 CarswellOnt 1855 (On. Div.Ct.); Re Branford (City) and A.T.LU, Local 685 (Minshall) (2011), 211 L.A.C. (4th) 257, 2011 CarswellOnt 7426 (Rayner).

10In terms of the cases cited by the Union, the Employer asserts that they are distinguishable on the language in the collective agreement.

The Union

11Despite the wording of Article 4.4(1) of the parties’ agreement, the Union asserts that there is an implied obligation that the Employer’s decision to dismiss a probationary employee must not be arbitrary, discriminatory or in bad faith. Referring to Brown and Beatty, Canadian Labour Arbitration at Section 7:5020, it asserts that “[a]lthough in some early cases arbitrators ruled that it was within the sole discretion of the company whether to retain or discharge a probationary employee, it is now accepted that an employer cannot act in ways that are unlawful, or arbitrary, discriminatory, or in bad faith.”

12The Union contends that the implied obligation on the Employer to exercise its discretion in a way that is not arbitrary, discriminatory or in bad faith rests on two bases – the Article 1.1 purpose clause of the parties’ collective agreement and the view, recognized in the case law, that parties’ would not have intended that the Employer’s discretion be exercised in an arbitrary, discriminatory or bad faith manner.

13In the Union’s submission, Article 1.1 suggests that the parties are to act above-board, and in a fair and equitable manner – at the bargaining table, at the work place and in the disposition of grievances. It submits that this creates an implied obligation that the Employer cannot act in an arbitrary or discriminatory manner or in bad faith. It also points to Article 6.1, Management Rights, which permit the Employer to “make and apply reasonable rules and regulations…”, to assert that the Employer must act reasonably. It submits that under an implied obligation to act reasonably, an employer may not act arbitrarily, discriminatorily or in bad faith, even where it has unfettered discretion.

14The Union also submits that, under the relevant case law, the obligation not to act in an arbitrary, discriminatory or in bad faith manner arises from the simple proposition that no parties would agree that discretion may be exercised arbitrarily, discriminatorily or in bad faith. It relies on Re Toronto Transit Commission and A.T.U., Local 113 (Spracklin Grievance) (1999), 1999 CanLII 35942 (ON LA), 82 L.A.C. (4th) 335 (Harris), at par. 16, for the proposition that there is an obligation on an employer not to act in bad faith in discharging a probationary employee irrespective of the degree of protection that is afforded such an employee by the collective agreement.

15That decision, in turn, relies on Re Brampton Hydro Electric Commission v. C.A.W., Local 1285, 1993 CanLII 8488 (ON CTGD), 15 O.R. (3d) 773 (Ont. Div. Ct, 1993), also relied upon by the Union. In that case, the Court upheld the arbitrator’s jurisdiction to hear the grievance of a probationary employee on two bases – an implied obligation based on Article 1.01 of the collective agreement which stated: “Both parties recognize a duty to cooperate in good faith, individually and collectively, for the advancement of these purposes.” It also viewed the obligation to flow generally, stating:

2. It will be said: “If the parties had intended that type of implied article to govern their conduct, it would have been stated so explicitly in the collective agreement.” It seems to me that the answer to that argument is found in the mere asking of this rhetorical question: “Can you imagine any party, while negotiating a collective agreement, bargaining to include an article: ‘the parties shall have the right, at all times and in all circumstances, to act in bad faith and/or an arbitrary manner and/or discriminatory way?’

16The Union also relies on Re Blue Door Shelters and SEIU, Local 1,(2013), 239 L.A.C. (4th) 260, 2013 CarswellOnt 16627 (Harris) and Re UNITE-HERE, Ontario Council Local 23247 and Canadian Niagara Hotels Inc., 2008 CarswellOnt 10177(Howe). It submits that this implied obligation is now “well-settled law” which the Employer is asking this Board to disregard.

17The Union further submits that this implied obligation has been recognized by the GSB in Re C.U.P.E., Local 1750 (Fenwick) and Workplace Safety & Insurance Board, GSB No. 2010-0839 (Dissanayake, 2013); Re C.U.P.E., Local 1750 (Devera) and Workplace Safety & Insurance Board, GSB No. 2007-0352 (Briggs, 2010), and Re AMAPCEO (Bokhari) and Ministry of Economic Development, Employment and Infrastructure, GSB No. 2010-2873 et al. (Dissanayake, 2015). It submits that under the principle that the GSB is “one board”, the conclusions of these cases are binding upon me, Re E. Blake et al. and Amalgamated Transit Union, GSB No. 1276/87 et al. (Shime, 1988).

18The Union acknowledges that the standard is not a “just cause” standard, but rather a lesser standard of “arbitrary, discriminatory or in bad faith.” It submits, however, that it has the right to make that argument and present its evidence. It submits that the GSB should not create a situation where the Employer’s decision in such cases is entirely unchecked and unreviewable.

19The Union disagrees that the language in this collective agreement is “stronger” than in the cases it cites, arguing that they are all “shades of black but still black.” All of the cases, it submits, involve language purporting to give the Employer unfettered discretion. In its view, such language is not enough. Nor, it submits, does the language “shall be deemed to be for just cause” change the result. It submits that provision is part of the Employer’s “unfettered discretion” and does not mean that the decision may be arbitrary, discriminatory or made in bad faith. It submits that the obligation not to act in an arbitrary, discriminatory manner or in bad faith is a narrow, but important, exception to the Employer’s right to dismiss probationary employees.

20The Union also relies on Re Canadian Forest Products Ltd. v. Pulp, Paper and Woodworkers of Canada, Local 25 (Aken Grievance) (2002), 2002 CanLII 79027 (BC LA), 108 L.A.C. (4th) 399 (McPhillips); Re Hydro-Electric Commission of the City of Hamilton and I.B.E.W., Local 138 (198), 1984 CanLII 5158 (ON LA), 13 L.A.C. (3d) 205 (Devlin); Re C.U.P.E., Local 1750 (Carito) and Workplace Safety & Insurance Board, GSB No. 2011-3385 (Brown): Re McRae Waste Management and I.U.O.E., Local 115 (1998), 1998 CanLII 29979 (BC LA), 71 L.A.C. (4th) 197 (Sanderson); Re Fisher Scientific and U.F.C.W., Local 1000a, 1990 CarswellOnt 4203 (Brunner); Re Pacific Western Airlines Ltd. and C.A.L.F.A., 1981 CarswellNat 601 (Sychuck).

Reasons for Decision

21In deciding the Employer’s motion, the Board must interpret the parties’ collective agreement and determine whether the parties’ intended to permit the dismissal of a probationary employees to be challenged on the basis that the dismissal decision was arbitrary, discriminatory or in bad faith. Based on the words in the collective agreement, I am persuaded that such an intention has not been established. My conclusion is based on the language used by the parties, considering not only the directly pertinent sections but the collective agreement as a whole.

22Basic principles of contract interpretation place prime importance on the words used by the parties because it is presumed that the parties mean what they say in a collective agreement. Here, the parties are sophisticated and their bargaining relationship is long-standing. In regard to probationary employees, Article 4.4(1) contains definitive language, giving the employer the right to assess an employee’s acceptability in their “sole opinion.” The parties “recognized and agreed” that probationary employees may be released or dismissed “at the absolute and sole discretion of the Employer during the probationary period” and “that such release or dismissal shall be deemed for just cause.” The parties further agreed that “[a]ny probationary employee who is released or dismissed shall not be entitled to file a grievance.”

23In several other places in the collective agreement, the parties reaffirm that probationary employees may not grieve their dismissal – Article 4.4(2) says “[a]ny employee, other than a probationary employee, who is dismissed, shall be entitled to file a grievance…” Article 6.1, Management Rights, gives the Employer the right to discipline and discharge employees “(provided that a claim that an employee with seniority has been disciplined or discharged without just cause may be the subject of a grievance...)” and Article 7.2(1)(b), Seniority, says “Probationary employees will have no seniority rights during this period.” These provisions reiterate that probationary employees may not utilize the grievance procedure to contest their dismissal.

24The collective agreement further provides, in some situations, that where the Employer has discretion, even “sole discretion” it must not be exercised in “an arbitrary or discriminatory manner” – Article 8, or where “good faith” is required – Article and Letter of Understanding #5. The provisions of the collective agreement are properly read together as a whole and the absence of such requirements in Article 4.4(1) must be given significance.

25In Re Ontario (Alcohol and Gaming Commission of Ontario) and OPSEU, supra, then Arbitrator Whitaker addressed a similar issue. There the collective agreement stated: “The Employer may dismiss a probationary employee for any reason in its sole discretion and probationary employees shall not have any recourse to the grievance or arbitration procedure.” The Union asserted that while the grievor, under this language, was not entitled to grieve his discharge on a “just cause” standard, the union might advance a grievance on the basis that the employer exercised its discretion in a manner which is unfair, arbitrary, unreasonable or discriminatory – which he described as a “lesser standard than just cause.” He rejected that assertion based on the language “for any reason” as follows, at par. 18:

Even if one assumes that the term “sole discretion” may imply a review on a lesser standard, what is the meaning of the phrase “for any reason”? It is a principle of collective agreement interpretation that parties are assumed not to intend language to be redundant. This means that the phrase “for any reason” must be read to mean something other than simply the same thing as “sole discretion”, otherwise there would be no purpose in including it in addition to that phrase. The formula “for any reason” must be given its plain meaning which is quite simply “for any reason.” The word “any” which defines the boundaries of the category of permissible “reasons” for the exercise of the employer’s sole discretion “is unlimited.” “Any” means that all reasons fall within the category of reasons which lie behind the employer’s exercise of its sole discretion… Aside from “reasons” which might be in breach of a statute… how can it be said that any “reason” whether unfair, unreasonable, arbitrary or discriminatory is not a “reason.”

“Any reason”, he concluded at par. 19, did not exclude “reasons which might be unfair, unreasonable, arbitrary or discriminatory.”

26In this case, the parties have agreed that the Employer has the “absolute and sole discretion” to release or dismiss a probationary employee. The word “absolute” was added by the parties in 1986. It therefore must be given meaning. I agree with counsel for the Employer that “absolute” modifies “sole discretion” and means complete, unlimited, unrestricted, or total, and that the Employer’s decision may not be challenged on any basis. The Law Dictionary, based on Black’s Law Dictionary, Online Legal Dictionary, 2nd Edition, defines “absolute” to mean “something that is unconditional, final, complete and without any restrictions or conditions”. (emphasis added).

27I also find that that the clause “and that such release or dismissal shall be deemed to be for just cause” must be given meaning. If the Union’s argument is accepted – that a probationary dismissal may be challenged through arbitration on the basis that the Employer exercised its “absolute and sole discretion” in an arbitrary or discriminatory fashion, or in bad faith, - the words “such release or dismissal shall be deemed to be for just cause” are rendered meaningless. The principles of contract interpretation favour a reading of the collective agreement that gives effect to all the provisions in the collective agreement, as previously noted. These words are unusual. They are not found in any of the decisions cited by the parties. Their intention could not be clearer. The parties agreed that whatever the reason may be for the employer’s decision the “release or dismissal shall be deemed to be for just cause.” It therefore cannot be that a probationary employee may challenge his or her dismissal as being arbitrary, discriminatory or in bad faith when the parties have agreed that the dismissal is “deemed to be for just cause.” Just cause is clearly a higher standard than arbitrary, discriminatory or in bad faith.

28It should be noted that there is nothing unlawful about such an agreement. There is no allegation here that the Employer’s decision violated any statute. Both parties recognize that under Re District of Parry Sound Social Services Administration Board, supra and Section 48(j)(12) of the Labour Relations Act, the parties’ may not contract out of their obligations under employment-related statutes and that such statutes form a part of the collective agreement. The word “discriminatory” in the words “arbitrary, discriminatory or in bad faith” is not the same as discrimination under the Human Rights Code. It refers to non-Code based discrimination in the nature of not treating employees consistently, but not discrimination on a prohibited basis.

29Moreover, the cases recognize that parties may choose to limit or preclude the arbitration of probationary employee dismissals. As recognized by Arbitrator Knopf in Re Markham Hydro Electric Commission, supra at par. 17: “It is easy to see why parties would bargain to restrict access to arbitrations to probationary employees.” The parties did so here, in particularly explicit terms.

30The Union asserts, however, that despite this contractual language, there is an implied obligation on the Employer not to exercise its discretion in an arbitrary, discriminatory or bad faith manner. It submits that this implied obligation is well-settled in the arbitral jurisprudence, irrespective of provisions which give an employer unfettered discretion in regard to probationary employees. Re Toronto Transit Commission, supra; Re UNITE HERE Ontario Council, Local 2347 and Canadian Niagara Hotels Inc., supra; Re Blue Door Shelters, supra.

31In my view, any such implied obligation must be based on the terms of the parties’ collective agreement. This view is supported by the decisions in Re Ontario (Alcohol and Gaming Commission), supra at par. 21; Re District of Parry Sound Welfare Administration Board and OPSEU, 1999 CarswellOnt 1782 (Knopf), at par. 16; Re Markham Hydro Electric Commission, supra at par. 12. The Union relies on the purpose clause in the parties’ collective agreement to argue that an implied obligation should be inferred. That provision states:

The general purpose of this agreement between the Employer and the Union is to establish and maintain orderly and harmonious collective bargaining relations at the bargaining table and at the work place, to provide a procedure for the prompt and equitable disposition of grievances, to assist and promote the proper and efficient operation of the Employer’s business in serving the public interest.

32This argument, however, was rejected by Arbitrator Knopf in Re District of Parry Sound, 1999 CarswellOnt 1782, at par. 17. The purpose clause there, like here, committed the parties to the “prompt and equitable disposition of grievances” yet the parties there, like here, also excluded the discharge of a probationary employee from the grievance procedure. The arbitrator stated: “If there is any obligation to apply this collective agreement in an equitable or good faith manner, this collective agreement has been negotiated not to extend that duty or obligation to probationary employees.” The same is true here.

33Furthermore, I am unable to find an implied obligation based on the Employer’s obligation to make and apply “reasonable rules and regulations”, as set out in the Management’s Rights provision. It simply does not follow that the obligation to make and apply reasonable rules and regulations creates an obligation not to exercise management’s “absolute and sole discretion” in regard to the release of probationary employees in an arbitrary, discriminatory or in bad faith manner.

34However, even if I am wrong and, as a matter of law, there is an implied obligation not to dismiss a probationary employee for an arbitrary or discriminatory reason, or in bad faith, it is my conclusion that this implied obligation has been overridden in this instance by Article 4.4(1). The Union recognizes that this implied obligation may be overridden by contractual language, but submits that the type of words set out by the Ontario Divisional Court in Re Brampton Hydro Electric Commission, supra, would be required. With respect, I do not agree. The parties here did not phrase it in the manner outlined in Re Brampton Hydro Electric Commission, supra. They did so in a more positive manner – they determined that any release or dismissal “shall be deemed to be for just cause.” As noted above, this means that the dismissal of a probationary employee, no matter the reason, “shall be deemed to be for just cause.” This is similar to the “any reason” language reviewed in Re Ontario (Alcohol and Gaming Commission), supra. The parties’ explicit agreement overrides any implied obligation that may be inferred. This clear language would be rendered a nullity if a probationary employee were permitted to assert a claim that their dismissal was arbitrary, discriminatory or in bad faith. Such a claim cannot exist in the context of the explicit agreement that probationary dismissals “shall be deemed to be for just cause.”

35To rule otherwise would offend Article 4.9 of the parties’ collective agreement in that it would “give [a] decision inconsistent with or contrary to the terms and conditions of this agreement…”

36Consequently, based on the language in the parties’ collective agreement, there is no jurisdiction for the Board to hear this grievance. As Arbitrator Knopf stated in her decision in Re District of Parry Sound, supra at par. 13: “The deal the parties make in collective bargaining is their choice to craft. The wisdom or propriety of their arrangement is not a subject area of any concern to a board of arbitration….”

37In so ruling, I find nothing inconsistent with the GSB jurisprudence cited to me. The collective agreements in Re Canadian Union of Public Employees, Local 1750 (Fenwick), supra, Re Canadian Union of Public Employees, Local 1750 (Devera) and Re Canadian Union of Public Employees’, Local 1750 (Carito), supra, all contain a collective agreement provision that provided probationary employees the right to grieve their dismissals based on an assertion that the termination was in “bad faith, arbitrarily, or for reasons that are discriminatory or contrary to legislation.” The case of Re Association of Management, Administrative and Professional Crown Employees of Ontario (Bokhuri), supra, involved the exercise of a management right relating to surplussing. This case is the first time that this Board has addressed the interpretation of Article 4.4(1) in the parties’ collective agreement, even though the language has been in existence since at least 1981. Despite a search by both parties, no GSB decision involving it, or the issue of probationary release under this collective agreement provision, was found. Consequently and in light of the basis of my decision – based on the specific wording of the parties’ agreement - no issue concerning the Blake “one Board” principle arises.

Conclusion:

38For the reasons expressed above, I am persuaded that the Employer’s motion must succeed. The grievance is dismissed.

Issued in Toronto this 14th day of November, 2017.