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Supreme Court of Canada to hear employer's appeal of probationary employee grievance decision

On February 14, 2002, the Supreme Court of Canada granted the employer leave to appeal the Ontario Court of Appeal's decision in OPSEU, Local 324 v. Parry Sound Welfare Administration Board. This case, which we reported in January 2000, October 2000 and January 2002 (see "Collective agreement no bar to human rights grievance of probationary employee", "Divisional Court: arbitrator has no jurisdiction to hear probationary employee's grievance" and "Court of Appeal reverses Divisional Court ruling on arbitrability of probationary employee's grievance" on our Publications page), concerned the grievance of a probationary employee who was discharged a few days after returning to work from maternity leave.

The issue in the case is whether a board of arbitration had jurisdiction to hear the employee's grievance, despite the fact that the collective agreement stipulated that the discharge of a probationary employee was not subject to the grievance procedure. The arbitration board held that it did have jurisdiction, based on its power under the Labour Relations Act "to interpret and apply human rights and other employment-related statutes, despite any conflict between those statutes and the terms of the collective agreement".

This ruling was quashed by the Divisional Court, but then reinstated by the Court of Appeal. However, the Court of Appeal based its ruling, not on the provisions of the Labour Relations Act but rather, on two provisions of the Employment Standards Act: section 44, which bars reprisals against employees taking pregnancy or parental leave, and subsection 64.5(1), which provides that the Employment Standards Act is enforceable against the employer with respect to contraventions of the Act occurring when the collective agreement is in force, as if the Act were part of the collective agreement.

Therefore, the Court held, subsection 64.5(1) makes the prohibition of reprisals against employees who have taken pregnancy or parental leave a part of the collective agreement. These provisions in the Act apply to probationary employees, and they prevail over provisions of the collective agreement which make discharge grievances by probationary employees inarbitrable.

We will keep readers informed of the results of this appeal. (For more recent developments, see "Supreme Court of Canada: arbitration board has jurisdiction over human rights grievance of probationary employee" on our What's New page.)

For further information, please contact J.D. Sharp (613) 563-7660, Extension 233.