Pink Larkin’s Dan Leger and Dominic Caron succesfully represented two non-union employees in arbitration proceedings under the Public Service Labour Relations Act. The Province of New Brunswick, as employer, had terminated the employees and took the position that the only appropriate remedies were those available to the private sector at common law. The arbitrator in each case ordered reinstatement to the workplace.
- Verret v. PNB (Vitalite Health Network), July 20, 2015
The Vitalite Health grievance involved the non-disciplinary termination of 47-year-old Vice-President with in excess of 23 years of service, following requests for leaves of absence totaling approximately 8 weeks.
The employee grieved the matter, taking the position that his employer discriminated against his perceived illness contrary to the Human Rights Act. The Employer, denied any discriminatory conduct and took the position that any employee may be terminated at any time on the provision of reasonable notice.
At the hearing of the grievance, the employer’s then Interim CEO, testified that he would not terminate an employee on a leave of absence without legal advice from the human resources department. The employer did not call evidence from the former CEO who had in fact terminated the grievor.
In his findings dated July 20, 2015, Arbitrator Morisset found the employer actions were in violation of the New Brunswick Human Rights Act and ordered the reinstatement of the grievor to his employment with full back pay and general human rights damages of $15,000.
As the employer had filled the grievor’s position prior to the arbitration, the Arbitrator chose to order the reinstatement of the grievor to a similar position with “no loss of pay, benefits, or any other advantage.”
- Ouellette v. WorkSafe NB, April 26, 2016
The WorkSafe NB grievance involved the termination of a 57-year-old Senior Case Manager with 14 years of service, for cause, following allegations of poor performance in the first five months of 2015. Notably, the employer had given a positive performance review in December 2014.
The employee grieved the termination pursuant to the provisions of Public Sector Labour Relations Act and sought a reintegration into the workplace.
The employer maintained allegations of just cause for five months. Then, one week prior to the hearing, it abandoned just cause and unilaterally assessed reasonable notice at 10 months, which it voluntarily paid.
Relying on the 2008 decision of the Supreme Court of Canada in Dunsmuir v. PNB, the employer argued that private sector employment law principles applied to all of its non-unionized public sector employees. Specifically, it took the position that remedial provisions of the Public Sector Labour Relations Act no longer had application.
In rejecting the employer assessment of the Dunsmuir decision, the Arbitrator determined:
In my view, once the Grievor, Jocelyn Ouellette, challenged the grounds for the Employer’s dismissal, by presenting a grievance under section 100.1(2) of the PSLRA, this gesture crystallized the issue. The action triggered or activate his rights under section 100.1, including any flowing from or found at section 97(2.1). The rights were vested in him at that point. The were not subject to, or conditional upon, any subsequent change of heart of the Employer.
The reference to section 97(2.1) above refers to statutory grant of authority for an arbitrator to “…substitute such other penalty for the discharge or discipline as the adjudicator seems just and reasonable in all the circumstances.”
In this matter, the arbitrator ordered a reinstatement of the grievor with a positive obligation on the employer to provide certain training to address the performance issues it unsuccessfully suggested constituted cause for termination.
Lessons:
In both hearings, the employer argued that non-unionized employees are to be treated the same as their private sector counterparts. This argument was rejected.
Notably, in 2014, the New Brunswick Court of Appeal confirmed that the Courts are not permitted to consider claims of non-unionized employees who are subject to the Public Sector Relations Act (See: PNB v. LeBouthillier).
The Court of Appeal’s determination in LeBouthillier that New Brunswick’s non-union public sector employees are precluded from commencing actions for wrongful dismissal in the Courts means that all “discharges, suspensions or financial penalties” must be filed within weeks (not years in contrast with private sector) and the employee is responsible for 50% of the costs of the arbitration (not applicable in the private sector).
As the grievance procedure is now the only process for resolving these disputes, Arbitrators ought to be exceedingly cautious in giving meaning to the provisions of the Public Sector Labour Relations Act and will not simply treat non-bargaining unit employees in the same manner as their private sector counterparts. Private sector counterparts have recourse in the Courts.