Collective agreement no bar to human rights grievance of probationary employee

Some collective agreements contain provisions barring grievances on behalf of probationary employees. This was the case in OPSEU, Local 324 v. Parry Sound Welfare Administration Board (February 1, 1999) where the grievor, a probationary employee discharged a few days after returning from maternity leave, alleged the discharge was in bad faith and discriminated against her on the basis of her family status.

The employer challenged the arbitration board’s jurisdiction to hear the grievance, relying principally on the provision in the collective agreement stating that “a probationary employee may be discharged at the sole discretion of and for any reason satisfactory to the employer and such action by the employer is not subject to the [grievance procedures] and does not constitute a difference between the parties”. It argued that, if the grievor wanted to pursue a complaint based on alleged discrimination, she was free to do so before the Human Rights Commission.

The majority of the board of arbitration disagreed, noting that arbitrators derive their powers not only from the collective agreement, but from the legislative scheme in which these agreements operate. Part of that scheme is the Labour Relations Act, of which section 48(12)(j) provides that 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 meant, the majority held, that arbitrators are able to apply the provisions of the Human Rights Code to the dispute, despite any conflict with the terms of the agreement. Moreover, parties cannot contract out of their rights and obligations under the Code; in any conflict, the Code will prevail over the agreement. Accordingly, the board held that it had jurisdiction over the merits of the dispute, solely as it pertained to the allegation of discrimination. (For more recent developments, see “Divisional Court: arbitrator has no jurisdiction to hear probationary employee’s grievance”, “Court of Appeal reverses Divisional Court ruling on arbitrability of probationary employee’s grievance” and “Supreme Court of Canada: arbitration board has jurisdiction over human rights grievance of probationary employee” on our Publications page.)

For further information, please contact Colleen Dunlop at (613) 563-7660, Extension 222.

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