P/0012/93, P/0029/93
IN THE MATTER OF AN ARBITRATION
Under
THE PUBLIC SERVICE ACT
Before
THE PUBLIC SERVICE GRIEVANCE BOARD
BETWEEN
Garcia
Grievor
- and -
The Crown in Right of Ontario (Premier’s Council on Economic Renewal)
Employer
BEFORE
D. Leighton N. Agarwal
Panel Chair Member
FOR THE GRIEVOR
J. McDonald, Counsel Sack, Goldblatt, Mitchell Barristers & Solicitors
FOR THE EMPLOYER
N. Gillespie Counsel Genest, Murray, DesBrisay, Lamek, Barristers & Solicitors
HEARING
October 8, 1993
Decision
The Grievor, Mr. Garcia, held the position of Coordinator, Research and Policy with the Premier's Council on Economic Renewal from June 1, 1992 to May 31, 1993. The offer of employment dated February 12, 1992 in a letter from Anne P. Catherall, states that “all new employees serve a one year probationary period during which their suitability for continued employment is assessed.” The Grievor was informed by letter dated May 17, 1993, from Thomas A. Brzustowski, that he was being released from employment in accordance with section 22(5) of the Public Service Act, R.S.O. 1990, c.P. 47, (the Act). According to this letter, the decision to release the Grievor was based on his inability to perform the duties of his position. (See Appendix 1-see original decision).
Mr. Garcia filed a grievance with the Public Service Grievance Board on June 7, 1993 on the basis that he was dismissed contrary to section 22 of the Act. He filed another grievance on July 2, 1993, based on working conditions, that certain Management Board Directives had not been followed in releasing him from his employment. At the hearing on October 8, 1993, the Employer made a preliminary motion to the Board to dismiss these grievances for lack of jurisdiction.
Section 22 of the Act provides:
A deputy minister may, pending an investigation, suspend from employment any public servant in his or her ministry for such period as the regulations prescribe, and during any such period of suspension may withhold the salary of the public servant.
A deputy minister may for cause remove from employment without salary any public servant in his or her ministry for a period not exceeding one month or such lesser period as the regulations prescribe.
A deputy minister may for cause dismiss from employment in accordance with the regulations any public servant in his or her ministry.
A deputy minister may release from employment in accordance with the regulations any public servant where he or she considers it necessary by reason of shortage of work or funds or the abolition of a position or other material change in organization.
A deputy minister may release from employment any public servant during the first year of employment for failure to meet the requirements of his or her position. R.S.O. 1980-, c.418, s 22.
The Employer argued that section 22 (5) permitted release of the Grievor for failure to meet the requirement of his job. The Board had no jurisdiction to hear a grievance as to whether the release was proper. The Employer argued further that section 22(5) of the Act does not provide a released employee with a right to a hearing on the merits of the release. In fact section 22(5) gives the Employer the right to dismiss at will. The Board only has jurisdiction under Regulation 977 to hear a grievance on dismissal pursuant to section 22 (3) of the Act. The Employer complied with the requirements of section 22(5) of the Act by releasing the Grievor on the last day of his one year probation - that is on May 31, 1993.
The Grievor’s Counsel agreed with the argument that a release within the first year of probation was not grievable. He conceded that if the release was within the first year, as a probationer Mr. Garcia would not be entitled to a hearing for wrongful dismissal. However, Counsel argued that the Grievor had not been released within the year because he had completed his first year of employment, by working a whole day on the last day of the year. He stated that we should interpret the statute liberally so as not to deny the grievor his rights.
Thus, in the first grievance, the issue for this Board to decide is whether if by completing work on May 31, 1993, the Grievor’s probationary period ended, he became a permanent employee entitled to a hearing for a dismissal for cause.
The Grievor's Counsel cited arbitration cases, including Madame Vanier Children's Services V. OPSEU, February 14, 1984, to support this Board finding that the Grievor had completed his probationary year. In Madame Vanier one of the issues considered by the tribunal was whether or not the grievor had satisfied his probationary period. In this case a grievor had been given notice that he would be terminated at the end of his shift on the last day of his probationary period. A majority of the tribunal held that the grievor had finished his probationary period and was therefore entitled to a full hearing pursuant to the provisions of the collective agreement.
The tribunal relied on a provision in the collective agreement regarding seniority which stated:
An employee shall be on probation until he has completed six (6) months continuous employment. Upon completion of such a probationary period, the employee's name shall be placed on the respective seniority list and credited with seniority as of the date of the commencement of the successful probationary period. The employment of an employee may be terminated during his probationary period and in this event, there shall be no recourse to the grievance for arbitration procedure provided by this agreement, and the termination shall not be the subject matter of the grievance.
In Madame Vanier the provision in the collective agreement refers to the probationary period of six months. In contrast, Section 22(5) the Act refers to a right of the Crown to release the employee within the first year of employment. We think there is a significant difference between the focus of section 22 (5) of the Act which gives the employer the right to terminate an employee within a year, and the collective agreement in Madame Vanier which is written to give the employee seniority rights as soon as the work period is satisfied. The focus in Madame Vanier is on a work period as opposed to a calendar year. In any event we are not bound to follow this case, nor are we persuaded that Madame Vanier is helpful in deciding whether Mr. Garcia became a permanent employee by working on May 31.
Although there are no Board cases right on point, Counsel for the Employer cited several decisions that have dealt with the issue whether a probationer is entitled to a hearing: King v. Hansard Reporting Service, 901/80; Lakner v, the Ministry of Health, 874/76; Taylor v. Ministry of the Attorney General, 919/83; Jackson v. Ministry of Health, 923/84; Downey v. the Ministry of Tourism and Recreation, 22/88. In each of these cases the Board held that there is no authority in the Act or in the Regulation that gives the Board jurisdiction to review a release under section 22 (5) of the Act on the merits. As Professor Willes pointed out in Downey the Supreme Court of Ontario (Divisional Court) approved the decision in the Jackson case, to dismiss the application on the basis that the Grievor was terminated before her probationary period expired and was therefore not entitled to a grievance on the merits before the Board. Leave to appeal to the Court of Appeal was also dismissed.
However, the cases noted above do not answer the argument made by the Grievor's Counsel that the Grievor satisfied the probationary period by working on the last day of the year.
Counsel for the Employer also cited a Grievance Settlement Board case, OPSEU (Mrs. M. Steltzer) v. the Ministry of Transportation and Communications, 311/82. In this case the Grievor was hired on March 16, 1981 and March 11, 1982 she was notified that she was being terminated "effective” March 15, 1982. She was actually paid beyond the termination date. The board in this case stated:
It is now settled jurisprudence that with regard to the relationship of the provisions of the Crown Employees' Collective Bargaining Act and the Public Service Act, that the bona fide release of an employee from employment made in good faith during the first year of his employment for failure to meet the requirements of the position, cannot be considered to be a dismissal and this board accordingly would not have jurisdiction to review the merits (at page 23).
Although the argument that Mrs. Steltzer had satisfied her probationary period by finishing the year, does not appear to have been made to the panel in this case, the issue was certainly before them as evidenced in the response by the Director at the first level of the grievance quoted in the decision (at page 3-4). The Board concluded that the Grievor was in the first year of employment when her employment ceased even though she finished 365 days of employment. This was so despite the fact that she was paid beyond the one year of probation.
It is clear in Mr. Garcia's case that the Employer acted within what it considered to be the time prescribed for releasing a probationary employee. He was notified by letter dated May 17,1993, that he was terminated "effective” May 31,1993. Counsel for the Employer pointed out that if we agreed with the Grievor's position, then the result was that the Employer would have to terminate probationary employees by the 364th day.
We are of the view that a common sense approach suggests that the statute be interpreted in plain meaning. Since the Employer is given one year--365days--to terminate, as long as the employment ceases on the last day, the 365th, then the statutory requirements are satisfied. Work ends at 5.00pm; employment, at 5.01pm, and none of the rights of being a permanent employee vest. There are no rights for us to protect because the Grievor never had them.
Therefore we conclude that we are without jurisdiction to proceed with the dismissal grievance.
We are also of the view that the Grievor is not entitled to a hearing for a grievance on working conditions. Section 43, Regulation 977 provides that a probationer may bring a grievance after six months of employment if he or she has a complaint about working conditions or terms of employment. However, no evidence was provided here of a grievance on working conditions. There is nothing regarding working conditions in Mr., Garcia's original letter notifying the Deputy Minister of his grievance (see Appendix 2 -see original decision). While purporting to bring a grievance pursuant to section 43 of Regulation 977, he further states his release was not proper. His argument is that the Directives of Management Board of Cabinet were not followed. This is essentially a wrongful dismissal argument. Two earlier cases by this Board have held that release from employment, pursuant to section 22(5) of the Act, does not fall within the Board’s jurisdiction to hear grievances on working conditions or terms of employment. (See Taylor and Lakner, Supra). We agree.
In conclusion, then, after considering the submissions of the Employer and the Grievor we find that this Board has no jurisdiction to hear the grievances, of Mr. Garcia on the merits, and we therefore dismiss these grievances.
Dated at Toronto, Ontario this 14th day of February, 1994.