In Ontario Public Service Employees Union (Renee Turcotte)
and Ministry of the Solicitor General & Correctional Services (Eva E.
Marszewski, Vice-Chair), decision dated August 1999, the GSB deals again with
the right of a probationary employee to grieve dismissal.
The GSB finds that the Crown Employees Collective
Bargaining Act makes "all differences" under a collective
agreement arbitrable (CECBA, s. 7(3). A probationary employee has a
difference with the employer because the general right to be
dismissed/disciplined only for cause does apply, (Article 21.1). The collective
agreement does state that the right to grieve dismissal/discipline does not
apply to probationers (Article 21.2). However, that limitation is overruled by
the CECBA right to have all differences arbitrated.
The GSB ruled as follows about the termination of a
probationary employee.
…the Board must take jurisdiction in order to determine
whether or not the termination was a disciplinary dismissal or a bona fide
release and there must be a hearing with evidence and submissions. The
parties must adduce all the necessary evidence with respect to the facts and
circumstances and the Board must take jurisdiction at least initially in order
to determine whether or not the termination was the result of a disciplinary
measure or whether it constituted a bona fide release. If the Board finds
that the termination was a bona fide release, then that is the end of the
matter. However, if the Board finds that the termination was a disciplinary
dismissal then the Board may hear evidence with respect to "just
cause". Depending on the specific facts and circumstances of a case,
it may be practical for the parties to adduce all the evidence and have the
Board reserve its decision until the end of the hearing on the preliminary
question of whether or not a particular termination of a probationer is a
disciplinary dismissal or a non-disciplinary release.
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