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Court of Appeal reverses Divisional Court ruling on arbitrability of probationary employee's grievance

In a judgment issued on June 19, 2001, the Ontario Court of Appeal has reversed an order of the Divisional Court quashing an interim award by a board of arbitration that it had jurisdiction to hear the grievance of a probationary employee. The case, OPSEU, Local 324 v. Parry Sound Welfare Administration Board, which we reported in January and October 2000 (see "Collective agreement no bar to human rights grievance of probationary employee" and "Divisional Court: arbitrator has no jurisdiction to hear probationary employee's grievance" on our Publications page), concerned a probationary employee discharged a few days after returning from maternity leave. The employee alleged that the discharge constituted discrimination on the basis of her family status.

Article 8.06(a) of the collective agreement provided that the discharge of a probationary employee was "not subject to the [grievance procedures] and does not constitute a difference between the parties". Despite this, a majority of the board held that the grievance could proceed, noting that, under s. 48(12)(j) of the Labour Relations Act, arbitrators have the power "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 interim award was quashed by the Divisional Court, which held that both the collective agreement and the Labour Relations Act provided that it was "differences between the parties arising from the interpretation, application, administration or an alleged violation of the agreement" that were to be arbitrated, and that the collective agreement in this instance clearly stated that the discharge of a probationary employee did not constitute a difference between the parties.

The Court of Appeal ruled that the arbitration board did have jurisdiction to hear the grievance, based not on 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 the following:

"If an employer enters into a collective agreement, the Act is enforceable against the employer with respect to the following matters as if it were part of the collective agreement:

1.A contravention of or failure to comply with the Act that occurs when the collective agreement is in force."

Therefore, the Court held, subsection 64.5(1) makes section 44 "part of the collective agreement" and section 44 prohibits an employer from dismissing an employee because the employee has taken pregnancy or parental leave. These provisions in the Act apply to all employees, including probationary employees, and they prevail over article 8.06(a) of the collective agreement. (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 at (613) 563-7660, Extension 233.