Alberta Health Services v. Alberta Union of Provincial Employees, (2012) 538 A.R. 295 (QB)

Health Services v. AUPE (2012), 538 A.R. 295 (QB)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. MY.007

Alberta Health Services (applicant) v. Alberta Union of Provincial Employees (respondent)

(1103 11412; 2012 ABQB 243)

Indexed As: Alberta Health Services v. Alberta Union of Provincial Employees

Alberta Court of Queen's Bench

Judicial District of Edmonton

Germain, J.

April 13, 2012.

Summary:

A unionized hospital employee was dismissed. Article 11.01 of the collective agreement provided that disciplinary action by the employer, including dismissal, "will be taken within 15 days" of when the employer first became aware of (or should have been aware of) the act that led to the discipline. The employee was dismissed one day beyond that 15 day period. The union grieved the dismissal. An arbitration board ruled that art. 11.01 was mandatory and that the board could not consider the merits of the dismissal where that deadline was missed. The employer sought judicial review.

The Alberta Court of Queen's Bench allowed the application and remitted the matter to the board for determination of the grievance on the merits.

Labour Law - Topic 9122

Public service labour relations - Grievances - Practice and procedure (incl. waiver of irregularities) - A unionized employee was dismissed 16 days after the act giving rise to the dismissal - The collective agreement required that the disciplinary decision be made within 15 days - The union and employer entered into an "agreed statement of facts" in which they agreed that the arbitration board had jurisdiction to hear the employee's grievance - On the second day of the hearing, the union first learned that the discipline was imposed in breach of the 15 day notification period - The employer argued that notwithstanding that lack of knowledge when the agreed statement of facts was entered into, the union had waived any right to challenge the board's jurisdiction on the basis of the 15 day notification period - The Alberta Court of Queen's Bench opined that, although it was unnecessary to decide the issue, "this learned board correctly observed that it would be impossible to conclude that the agreement accepting jurisdiction of the board is also a waiver of the breach of the time period, particularly where the [union] had no knowledge of this breach until the 16 day delay was discovered during the [employer's] evidence at the hearing" - The board was correct to conclude that whatever the relevant paragraph of the agreed statement of facts meant "it could not bar the [union] from raising this Article 11.01 interpretation issue which had effectively fallen into its lap at the hearing" - See paragraphs 42 to 50.

Labour Law - Topic 9163

Public service labour relations - Discipline and dismissal of civil or public servants - Notice of discipline or dismissal (incl. time for) - A unionized hospital employee was dismissed - Article 11.01 of the collective agreement provided that disciplinary action by the employer, including dismissal, "will be taken within 15 days" of when the employer first became aware of (or should have been aware of) the act leading to the discipline - The employee was dismissed one day beyond that 15 day notification period - The union grieved the dismissal - An arbitration board ruled that art. 11.01 was mandatory and that the board could not consider the merits of the dismissal where the notification deadline was missed - The Alberta Court of Queen's Bench, applying a reasonableness standard of review, allowed the employer's judicial review application and remitted the matter for a hearing on the merits - The board's decision that the 15 day notification period was mandatory was unreasonable - The 15 day period was procedural or directory - The board erred in elevating this single contractual term in the collective agreement to a type of limitation barrier or deadline that would preclude the employer from dismissing an employee for cause more than 15 days after the act giving rise to the discipline - The court stated that "I prefer to interpret Article 11.01 in a manner similar to time periods in the Alberta Rules of Court ... That gives the board an opportunity to determine the effect of the breach, the prejudice that flows from it, and to craft an appropriate remedy. An interpretation of Article 11.01 as mandatory is inconsistent with modern dispute resolution which focuses on getting to the substance of the problem and not creating procedural barriers" - See paragraphs 23 to 41.

Labour Law - Topic 9513

Public service labour relations - Collective agreement - General and definitions - Interpretation - General - [See Labour Law - Topic 9163 ].

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 17].

Doré v. Barreau du Québec (2012), 428 N.R. 146; 343 D.L.R.(4th) 193; 2012 SCC 12, refd to. [para. 17].

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201; 160 D.L.R.(4th) 193, refd to. [para. 17].

R. v. Jackpine (R.), [2006] 1 S.C.R. 554; 347 N.R. 201; 210 O.A.C. 200; 2006 SCC 15, refd to. [para. 21].

R. v. Rodgers - see R. v. Jackpine (R.).

R. v. Rose (J.), [1998] 3 S.C.R. 262; 232 N.R. 83; 115 O.A.C. 201; 166 D.L.R.(4th) 385, refd to. [para. 21].

R. v. Lyons, [1987] 2 S.C.R. 309; 80 N.R. 161; 82 N.S.R.(2d) 271; 207 A.P.R. 271; 44 D.L.R.(4th) 193, refd to. [para. 21].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 26].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1; 154 D.L.R.(4th) 193, refd to. [para. 27].

R. v. D.I. (2012), 427 N.R. 4; 288 O.A.C. 1; 2012 SCC 5, refd to. [para. 27].

Alberta Union of Provincial Employees v. Alberta (2010), 482 A.R. 292; 490 W.A.C. 292; 2010 ABCA 216, refd to. [para. 31].

Alberta Health Services (Calgary Area) v. Health Sciences Association of Alberta (Paramedical Professional/Technical Unit) (2011), 515 A.R. 120; 532 W.A.C. 120; 2011 ABCA 306, refd to. [para. 31].

Counsel:

Kevin Feth, Q.C., and Ayla Akgungor (Field LLP), for the applicant;

Sean McManus (McManus & Hubler), for the respondent.

This application was heard on March 7, 2012, before Germain, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on April 13, 2012.