GOODHUE, D. (OPSEU) v. CENTENNIAL COLLEGE (Samuels) December 8, 1988

Transcription

1 HEADNOTE Board of Arbitration OPSEU #88A629 Dismissal GOODHUE, D. (OPSEU) v. CENTENNIAL COLLEGE (Samuels) December 8, 1988 The grievor was a probationary employee who grieved he had been terminated in bad faith. The college raised a preliminary objection that there was no requirement in the collective agreement that probationary employees could only be terminated in good faith. OBJECTION DENIED. The Board of Arbitration accepted the Union's argument that there was an implied term in the contract that probationary employees would not be terminated in bad faith. There was a lengthy dissent from the College Nominee.

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3 Concerning an arbitration Between: Centennial College and Ontario Public Service Employees Union Grievance of D. Goodhue, release of a probationary employee Preliminary award concerning the Board's jurisdiction Board of Arbitration J. W. Samuels, Chairman R. J. Gallivan, College Nominee L. Robbins, Union Nominee For the Parties Union L. Trachuk, Counsel D. Goodhue, Grievor G. Rejminiak, Student-at-law H. King College D. K. Gray, Counsel H. Carson, Director of Personnel S. Ciuciura, Associate Dean, Administration K. Y. Cheng, Chairman Hearing in Toronto, November 21, 1988

4 1 The grievor was released after serving four months of his two-year probationary period as a teaching master. He grieves that the College acted in bad faith in releasing him. At the outset of our hearing, the College raised a preliminary objection. It is argued that we do not have jurisdiction to hear the grievor's complaint on its merits. Article 8.01(a)(i) of the collective agreement provides for a probationary period of two years' continuous employment. Article 8.01(c) says that an employee may be released during the first five months of such employment with thirty calendar days' written notice. Article 8.02(a) then says: It being understood that the release of an employee during the probationary period shall not be the subject of a grievance under the Grievance Procedure, an employee who has completed the probationary period and is discharged for cause may lodge a grievance in the manner and to the extent provided in the Grievance Procedure. Article 11 sets out the grievance procedure. Here the language in 8.02(a) is echoed in Article 11.06, which provides: It being understood that the dismissal of an employee during the probationary period shall not be the subject of a grievance, an employee who has completed the probationary period may lodge a grievance... It is now established that, at least in a case which does not involve bad faith, this contract language is to be read exactly as it speaks a probationary employee simply cannot grieve dismissal { see Seneca College and Ontario Public Service Employees Union (grievance of Moran, unreported decision of Samuels, dated September 18, 1985), which was

5 2 followed in Algonquin College and Ontario Public Service Employees Union (grievance of Hobbs, unreported decision of Brown, dated November 21, 1985); Mohawk College and Ontario Public Service Employees Union (grievance of Ennis, unreported decision of Samuels, dated March 26, 1986); Seneca College and Ontario Public Service Employees Union (grievance of Hacker, unreported decision of Swan, dated September 17, 1986); and Northern College and Ontario Public Service Employees Union (grievance of Laurin, unreported decision of Samuels, dated October 10, 1986), which was upheld by the Ontario Divisional Court in an unreported decision by Mr. Justice Campbell, dated February 12, 1988). In essence, the argument of this jurisprudence is as follows: a. Article 8.02(a) and are unambiguous. A probationary employee has no right to grieve a "release" or "dismissal". b. The probationary employee has no substantive right to grieve a release or dismissal. This employee's only substantive right is to receive proper notice. c. There is no implied term which imposes on management an obligation to. be "fair" when it dismisses a probationary employee. d. The Charter of Rights and Freedoms does not assist the probationary employee in this situation. (The relevance of the Charter here is a complex matter and the reader is referred to the lengthy analysis in the Northern College case cited above, at pages 4-21). Does this line of argument govern the situation even where there has been bad faith on the part of the College? In the Mohawk College case cited above, the Board commented (at page 4):

6 Several arbitrators have said that an employee cannot be dismissed in bad faith, in the sense that the decision to dismiss cannot be motivated by unlawful considerations or result from management actions which precluded the probationary employee from doing his best (Re Consolidated-Bathurst Packaging. Ltd. (St. Thomas Division) and International Woodworkers of America, Local (1981), 1 L.A.C. (3d) 10 (Adams), at pages 21-2; followed in Sudbury Memorial Hospital and Ontario Nurses' Association (Brent, April 21, 1983, unreported), at pages 15-17). But there is no allegation of bad faith in our case. The relevance of bad faith was first raised in an unreported decision of the Ontario Divisional Court in the appeal of the decision of a board of arbitration in a matter between the Municipality of Metropolitan Toronto and the Canadian Union of Public Employees, Local 43 (Mr. Justice Callaghan, July 3, 1981). The board of arbitration had assumed for the purposes of its decision that the grievor was a probationary employee. Article 3.03 of the collective agreement gave management the "exclusive right to discharge probationary employees notwithstanding any other provision of this agreement". The issue before the board of arbitration was the standard by which management's decision would be judged. The board decided that the Municipality had to establish that the grievor's work performance was unsatisfactory. The Divisional Court overruled the board of arbitration, holding that the board's decision was tantamount to imposing a just cause standard, when the collective agreement clearly gave management the exclusive right to discharge probationary employees without showing cause. Having determined the issue before it, the Court went on to say that (at page 8): A probationary employee would be entitled to succeed on a grievance in relation to discharge only if he were able to affirmatively establish that

7 the action of the employer was taken in bad faith in the sense that the decision was motivated by unlawful considerations or resulted from management actions which precluded the probationary employee from doing his best. 4 These are the words which were the springboard for many arbitration decisions which followed. Counsel for the College now argues that this statement of the Divisional Court was only obiter dicta and therefore is not binding and should not be followed. We agree with him in part. Within the context of the Municipality of Metropolitan Toronto case, it was unnecessary for the Court to consider the situation where management has acted in bad faith. However, one can accept this statement by the Court as having persuasive value. Clearly, the panel of the Divisional Court thought that it was important to express an opinion on the situation where management has acted in bad faith. There is no hesitation in the Court's statement. It appears that, in the Court's view, it is inarguable that a probationary employee could grieve a decision to dismiss which was made in bad faith. The persuasive value of the Divisional Court's statement had its effect on arbitrators. In Re Consolidated-Bathurst Packaging Ltd. (St. Thomas Division) and International Woodworkers of America, Local (1981), 1 LAC (3d) 10 (Adams), the board of arbitration decided that the collective agreement could not prevent a probationary employee from grieving a discharge on the basis of bad faith, and cited the Municipality of Metropolitan Toronto decision (at page 21-22). In Re Algonquin College and Ontario Public Service Employees Union (1986), 22 LAC (3d) 129 (Brent), the board of arbitration adopted this approach, citing both the Municipality of Metropolitan Toronto and the Consolidated-Bathurst decisions (at pages ), and found additional

8 5 support for its position in the collective labour relations context. The board said (at page 140): It is also reasonable and consistent with both the general purpose of collective bargaining and good labour relations to expect that the college will not act so as to treat individual probationary, employees in an unlawful manner or to obstruct their progress so as to make it impossible for the probationer to be evaluated on his performance or other valid work-related criteria. Indeed, if the college acted in such a manner, and I were to decline jurisdiction, then the probationer would, usually have no recourse against the college, even where he could show that the college had acted in bad faith. Such a result would not be advantageous to good labour relations, and for that reason I cannot accept the argument that the decision of the Divisional Court was intended to be specific to the collective agreement that was before it rather than to be a general statement of the limitation on management's right to discharge probationary employees. In Seneca College and Ontario Public Service Employees Union (grievance of Hacker, unreported decision of Swan, dated September 17, 1986), the board concluded that a probationary employee could grieve that dismissal by the College was done in bad faith, relying upon Consolidated- Bathurst (at pages 17-23). In Cambrian College and Ontario Public Service Employees Union (grievance of Best, unreported decision of Brent, dated April 7, 1986), the parties agreed that, for the purposes of the case, the Union could proceed with the grievance against dismissal of a probationary employee if it could prove bad faith on the part of the College. In Re St. Lawrence College and. Ontario Public-Service Employees Union (1987), 32 LAC (3d) 322 (Brent), again there was no dispute between the parties that a probationary employee could grieve a dismissal which was done in bad faith. The parties did differ on the meaning of bad faith. The Union suggested that the College's obligation extended to treating the grievor "fairly", whereas the College took the position that bad

9 6 faith is confined to illegality or obstruction, which is the definition originally given, by Mr. Justice Callaghan in the Municipality of Metropolitan Toronto case (at pages of the Brent award). The board of arbitration held that the test was the limited one suggested by the College (at page 331 1/2). In sum, whenever the issue of bad faith has been considered expressly in the context of a grievance by a probationary employee under the collective agreement which concerns us, it has been decided that the restrictions set out in Articles 8.02(a) and do not prevent a probationary employee from grieving a dismissal done in bad faith. And the definition of bad faith which has been used is the definition first suggested by Mr. Justice Callaghan in the Municipality of Metropolitan Toronto case "in the sense that the decision was motivated by unlawful considerations or resulted from management actions which precluded the probationary employee from doing his best". Counsel for the College now argues that we should not follow this jurisprudence. Firstly, he says, that, in the collective agreement before us, when the parties have intended to impose a standard of conduct on decision-making, they have said so expressly. For example, in a number of clauses, the consent of one of the parties is required before certain action can take place, and it is provided that this consent "shall not be unreasonably withheld" Article 4.01(4)(b), consent by a teacher to more than four different course preparations or six different sections in a given week; 4.01(8)(c), agreement by a teacher and supervisor for professional development time; Article 4.01(10)(c), voluntary overtime agreements; Article 4.08 (which was not in force at the time of this grievance), nonteaching periods used for activities; Article 13.01, release from duty for Union business; Article 18.02(1), professional development leave; Article

10 (c), requests to participate in the prepaid leave plan. And, in Article 28.01, the College is obligated to make "reasonable provision" for the safety and health of its employees. Counsel for the College argues that there is nothing in the collective agreement about good faith,,and therefore the parties must have intended to leave it out of the agreement. Articles 8.02(a) and are clear and complete the probationary employee may not grieve release or dismissal under any circumstances. Secondly, he argues that the Municipality of Metropolitan decision is inconsistent with two _other decisions of the Supreme Court of Ontario. In Re Metropolitan Toronto Board of Commissioners of Police and Metropolitan Toronto Police Association et al. (1981), 33 OR (2d) 476, the Ontario Court of Appeal considered the case of three grievors who alleged that they had been denied the opportunity to work overtime in the annual taking of inventory and that the denial was arbitrary, discriminatory, unfair, and in bad faith (see at page 477 2/3). The decision has been quoted widely for the statement that (at page 478-9): In our opinion, the management rights clause gives management the exclusive right to determine how it shall exercise the powers conferred on it by that clause, unless those powers are otherwise circumscribed by express provisions of the collective agreement. The power to challenge a decision of management must be found in some provision of the collective agreement. Ms. Kenny submitted that we should imply a term in the collective agreement that the management rights clause would be applied fairly and without discrimination. With respect, we do not agree. Article of the collective agreement provides: 17:06 The Arbitrator shall not have any power to add to, subtract from, alter, modify or amend in any way, any part of this Agreement nor otherwise make any decision inconsistent with this Agreement, which expresses the full and complete understanding of the parties on remuneration, benefits and working conditions.

11 Moreover, as can be seen, art. 3.01(b) specifically refers to discrimination in promotion, demotion or transfer, and to disciplining a member without. reasonable cause and permits these matters to be the subject of a grievance. The collective agreement is a detailed document covering some 40 pages. Having regard to the nature of the agreement, and to its provisions, we see no necessity in this case to imply a term that the management rights clause will be applied fairly and without discrimination. If such a term were to be implied, it would mean that every decision of management made under the exclusive authority of the management rights clause would be liable to challenge on the grounds that it was exercised unfairly or discriminatively. In our opinion, this would be contrary to the spirit and intent of the collective -agreement. Counsel for the College argues that the Court's sweeping refusal to find an implied term included any consideration of bad faith. However, it is interesting to note that, in the passage quoted above, the Court does not expressly include bad faith in its statement. Rather, the Court deals particularly with possible implied terms concerning "fairness" and "nondiscrimination". Do these concepts include "bad faith"? Are they synonymous? The Court said clearly that, in the absence of a limitation in the collective agreement, the employer is not obligated to exercise its management rights "fairly and without discrimination". Does this mean that the employer is not obligated to exercise its management rights in good faith? Counsel for the College argues that it does. Then, in an unreported decision of the Divisional Court dated June 12, 1986, involving a matter between The Corporation of the City of Toronto and Metropolitan Toronto Civic Employees Union, Local 43, the Court considered a grievance against discharge where the governing clause in the collective agreement provided that "the City shall have the exclusive

12 9 and unlimited right to discharge any employee...". The board of arbitration had decided that the employer had not made out the grounds for discharge and had reinstated the employee. The Divisional Court overturned this award. The Court said (at page 3): Mr. Richmond interprets the board's decision as amounting to an interpretation of the agreement that the employer's apparently unlimited right to discharge was not unlimited. While the board did not say so, Mr. Richmond submits that they interpreted the agreement to mean that the employer's right to discharge was limited by two requirements. The first was that the right be exercised reasonably, and secondly, that it be exercised in good faith. We, are unable to find- anything in the context to support an interpretation that clause: 4 should be read contrary to its apparent and plain meaning. We find no basis for the submission that the parties did not mean what they said. In our view, the proper interpretation of the term "unlimited" is "unlimited", i.e. exactly what it says. We find, no basis in the agreement or elsewhere for the interpretation the board gave to that term. In the result, we are of the view that the board's interpretation was patently unreasonable. Thus, Counsel for the College argues that the obiter dicta in the 1981 decision of the Divisional Court in the Municipality of Metropolitan

13 10 Toronto case has been effectively overruled by the Ontario Court of Appeal in Re Metropolitan Toronto Board of Commissioners of Police (in 1981), and by the Divisional Court in. The Corporation of the City of Toronto (in 1986). In our view, with all due respect to the very able and forceful argument made by counsel for the College, we ought to follow the consistent jurisprudence concerning the collective agreement before us, that a probationary employee may grieve a dismissal or release which is done in bad faith. This jurisprudence flows out of the obiter dicta expressed by Mr. Justice Callaghan in the Municipality of Metropolitan Toronto case in Though the jurisprudential basis of this line of cases has not always been entirely clear, it appears to be rooted in the idea that the parties must have intended their contract to be administered in good faith. Good faith is the foundation of any contractual relationship. Parties do not enter a contract intending to violate it. The meeting of the minds which creates the contractual agreement must involve the shared understanding that the mutual relationship will be undertaken in good faith. In other words, there is an implied term that the parties will act in good faith. In Mohawk College and Ontario Public Service Employees Union (grievance of Ennis, unreported decision of Samuels, dated March 26, 1986), the board of arbitration said (at page 4): The essence of the "implied term" argument is that the parties must have intended the suggested term, though they did not include it in their written agreement And the board refers to an extended discussion of implied terms in Da Costa (Ontario Crown Employees Grievance Settlement Board, , Samuels, January 15, 1985, unreported), and refers to the "officious

14 11 bystander" test suggested by the English Court of Appeal in the classic case on implied terms in the the law of contracts generally, Shirlaw v. Southern Foundries (1926) Ltd., [1939] 2 KB 206, at 227. This test involves asking oneself what would the parties have responded if, when they were making their contract, an officious bystander had asked whether the particular unstated term was part of their contract. If the parties would have said "Of course, that term is included, though unstated", then the Court will say that the term is implied. In our case, the parties would have said that their contract was based on good faith. Furthermore, in our view, this position is not inconsistent with the two cases referred to by counsel for the College. In Re Metropolitan Toronto Board of Commissioners of Police and Metropolitan Toronto Police Association et al. (1981), 33 OR (2d) 476, the Court said at the outset that the grievance alleged that the denial of overtime was arbitrary, discriminatory, unfair, and in bad faith.. These alleged defects were not listed as synonyms. There were four separate alleged defects. In its final determination, which is quoted above, the Court appears to have dealt with only two of these defects lack of fairness and discrimination. The reason for this limitation in the Court's reasoning is not clear. But, in our view, the Court did not dispose of the issue of bad faith. In The Corporation of the City of Toronto and Metropolitan Toronto Civic Employees Union, Local 43, the Divisional Court does not consider the question of bad faith expressly. The board of arbitration had effectively imposed a just cause standard on the employer in face of very clear contract language that "the City shall have the exclusive and unlimited right to discharge any employee". The Divisional Court was at pains to make it clear that there was no such standard in this language. But, in our view, this decision of the Divisional Court does not rule out the possibility

15 12 that the employer cannot act in bad faith. If the Divisional Court had intended to sweep away the much-followed dicta of Mr. Justice Callaghan in the Municipality of Metropolitan Toronto case, one would have expected a specific reference to this case and an explicit statement that Mr. Justice Callaghan was wrong. Articles 8.02(a) and of the collective agreement are very clear. Probationary employees do not have the right to grieve their "release" or "dismissal". Management does not have to be "fair" or "reasonable" in the exercise of its decision to release or dismiss a probationary employee. Management does not have to show just cause or any satisfactory reason for the release or dismissal. But all of this only applies if management has acted in good faith. There is an implied term that the parties to the collective agreement will act in good faith. There may be circumstances which are so egregious that one can say that management is not meeting its core obligations under the collective agreement. Management is not acting entirely in a vacuum. There is a contractual relationship which must be abided by. In the Municipality of Metropolitan Toronto case, Mr. Justice Callaghan said that the employer's decision could not stand if it "was motivated by unlawful considerations or resulted from management actions which precluded the probationary employee form doing his best". This has been referred to as the "illegality or obstruction" definition of "bad faith". We appreciate the College's concern that, if probationary employees can grieve dismissal on the grounds of bad faith, this may simply invite employees and the Union to characterize the situation as one involving bad faith, though in reality the situation is not nearly so serious. It does not appear that there have in fact been many cases where bad faith was alleged by a probationary employee who had been dismissed, though boards of arbitration have been accepting jurisdiction in such cases for some time

16 13 now. We note that, in the two cases to which we have referred in this award where the merits of the allegation of bad faith were considered, the grievors were not successful in proving bad faith [Cambrian College (grievance of Best, unreported decision of Brent, dated April 7, 1986); and St. Lawrence College (1987), 32 LAC (3d) 322 (Brent)). "Bad faith" is not simply "unfairness" or "unreasonableness", but is conduct which goes beyond these two circumstances. Bad faith involves conduct which is inimical to the contractual relationship itself. It involves illegality or obstruction. Finally, we should say a word concerning onus. Pursuant to the collective agreement, the College does not have to show just cause for the release or dismissal of a probationary employee. If the employee alleges bad faith, the onus is on the grievor to prove the allegation.

17 14 In conclusion, we find that we do have jurisdiction to hear and determine the grievor's allegation that the College acted in bad faith in its decision to dismiss him. We will set a date and reconvene. Done at London, Ontario, this day of Lk, amue s Chairman R. J. Gallivan, College Nominee e O''"16., C,... %. S L Robbins, Union Nominee

18 DECISI nn OF R. J. GALLIVI.N With res pect, I have come to a different conclusion than that reached by my colleagues. I find that on the issue before us the Courts have spoken clearly that, unless the collective agreement expressly circumscribes the em ployer's exclusive right to decision-making, management's acts are not subject to some unsnecified but imnlied term or standard of conduct. I find that nrinciple at the core of the Ontario Court of Anneal decision in Re Metropolitan Toronto Board of Commissioners of Police and Metropolitan Toronto Police Association et al (1981) 330R (2d) 476, where the Court said (at 478-9):..In our oninion, the management rights clause gives management the exclusive right to determine how it shall exercize the powers conferred on it by that clause, unless those powers are otherwise circumscribed by express provisions of the collective agreement. The power to challenge a decision of management must be found in some provision of the collective agreement... Are there "ex press provisions of the collective agreement" before us which circumscribe management's right to terminate an employee during the probationary period, or which empower a challenge to that decision? The management rights clause of this collective agreement says, in part, at Article 7.01 that: It is the exclusive function of the Colleges to...discharge...employees subject to the right to lodge a grievance in the manner and to the extent provided in this Agreement... Thus in this contract the College's right to discharge clearly is circumscribed by the em ployee's right to grieve but, again equally clearly, that right is available only "to the extent provided" in the agreement. The "extent provided" is specified in the grievance procedure found at Article 11.06: It being understood that the dismissal

19 of an em ployee during the probationary Period shall not be the subject of a grievance, an employee who has completed the probationary period may lodge a grievance... In the face of that clear and unambiguous language, I conclude that the intent of the parties is clear, that a probationer has no right to grieve. Where the language is so clear, I believe that it is incorrect to imply or infer some added term which the narties themselves have not agreed to, and that for us to do so is inconsistent with the Ap p eal Court's decision in the Metropolitan m oronto Board of Commissioners of Police case quoted above. My colleagues argue that in that case the Court had before it an issue alleging that the employer had acted in a manner which was "arbitrary, discriminatory, unfair, and in had faith", that those were four separate defects, that the decision dealt only with two of them - lack of fairness and discrimination - and therefore that the Court did not dispose of the issue of bad faith. With res pect, I believe that to b e an incorrect reading of the Court's decision. My colleagues come to their conclusion by observing that the Court specifically referred only to fairness and discrimination. However, in careful reading of the Court's decision, I note that that reference by the Appeal Court is to two other cases (the Stinson and the Marsh cases) referred to it by the Divisional Court. In summing up its opinion of those two cases the Anneal Court said (at p. 478): The Stinson and Marsh cases were decided on different factual situations and on different collective agreements from the present one. If, however, the majority of the Divisional Court in the Marsh case were purporting to lay down a general rule, that all decisions of management pursuant to a management rights clause which do not contravene any other provisions of the agreement must stand the further test whether in the opinion of an arbitrator they were made fairly and without discrimination, then with respect we do not agree. The Court then goes on to deal with another matter not germane to

20 3 our issue, and then says: In our opinion, the management rights clause gives management the exclusive right to determine how it shall exercize the powers conferred on it by that clause, unless those powers are otherwise circumscribed by express provisions of the collective agreement. The power to, challenge a decision of management must be found in some provision of the collective agreement. I find, that statement of general principle compelling and binding on me. As I read the decision, that is the Court's whole answer to all four elements of the grievance in the case before it, not just to two of them. The general Princi ple enunciated by the Court seems clear, that in a comprehensive collective agreement of the nature of the one before it, there is no necessity for a court or authority for an arbitrator to imp ly terms which do not exist in the agreement itself. I conclude that that principle is equally a pp licable to the com prehensive and sophisticated collective agreement before our Board. That agreement also specifically. constrains the power of our Board where, in Article 11.04(d), it says: The arbitration board shall not be authorized to alter, modify or amend any part of the terms of this Agreement nor to make any decision inconsistent therewith nor to deal with any matter that is not a proper matter for grievance under this Agreement. Obviously, when read in conjuction with Article 8.02(a) and (both of which preclude access to the grievance procedure by a terminated probationer) the discharge of a probationer "is not a proper matter for grievance under this Agreement". Our Board cannot add words to the agreement to make it so. Returning briefly to the Metropolitan Toronto Board of Commissioners of Police case quoted above, it seems obvious that the Court viewed the collective agreement before it as a self-sufficient contract which should be inter preted as restricting the exercize of management's rights only to the extent ex pressly provided for in the contract itself. Applying that principle to the collective

21 4 agreement before us, numerous management acts or decisions are subject to restrictions or tests of one kind or another. My colleagues list a number of such instances which were pointed out to us by counsel where the College is restrained by the obligation to ensure its decisions meet tests such as "reasonableness". Thus I conclude that when the parties have intended in some way to restrict management's freedom to act they have very specifically done so. There is no such constraint or imposed standard of conduct on the College's freedom to terminate a probationary employee. That particular act is unrestrained by any provision in the collective agreement, so that the College is exem pt from later having to justify its decision as having been made in good faith or otherwise. In my judgement, the absence of such constraint is precisely what the Court of A ppeal had in mind when, as quoted earlier, it said: "The rower to challenge a decision of management must be found in some provision of the collective agreement". I am reinforced in that conclusion by the much more recent Divisional Court decision involving The Corporation of the City of Toronto and Metropolitan Toronto Civic Employees Union, Local 43 (unre ported), auoted by my colleagues, dismissing a union's argument that the employer's "unlimited right to discharge" must be exercized reasonably and in good faith. It is worth repeating part of that Court's decision: We are unable to find anything in the context to support an interpretation that clause 4 should be read contrary to its apparent and plain meaning. We find no basis for the submission that the parties did not mean what they said. In our view the proper interpretation of the term "unlimited" is "unlimited", i.e. exactly what it says... Thus, although asked to do so, the Court specifically refused to imply or read into the collective agreement a "good faith" test of the employer's decision-making where the collective agreement itself did not s pecifically set such a standard. I conclude that the Court would find similarly in our case where the management

22 5 rights clause is clear and the probationer's lack of right to grieve dismissal unambiguous. Given those higher authorities, the arbitral jurisprudence between the Colleges and the union on this issue is not compelling, narticularly as it is evident from those decisions that all the Court cases brought to our attention were not considered by those other Boards. Nor do I find compelling the "officious bystander" reasoning of my colleagues. Using that test I think it equally likely that if, when the parties first agreed to Articles 8.02(a) and 11.06, the question had been posed to them:"does that mean that only employees who have completed their probationary period may grieve regardless of the reason for their dismissal?" the answer from both the College and the union would then unequivocably have been "yes". In any event I find it unnecessary to apply such a test to the clear words of the collective agreement before us in view of the Court decisions which I find binding. I conclude, therefore, that our Board lacks jurisdiction to hear a grievance from a Probationary employee on the issue of his discharge.