Individual Negotiations with Employees Forbidden, Rules Court of Appeal

In a recent case that will affect the way all unionized employers deal with employees, the Ontario Court of Appeal has held that employers may not negotiate individual terms of employment with employees outside those in the collective agreement.

Sherri Bergman was hired by Loyalist College as a teacher in their early childhood education program on the understanding that she would pursue graduate studies in her field. Near the end of her one-year probation, Ms Bergman was fired for failing to register in a graduate program. On her behalf, the Ontario Public Service Employees Union brought a grievance, claiming the employer had no right to negotiate individual terms of work with an employee and, secondly, that the requirement to attend a graduate program was not part of the working conditions in the collective agreement.

The board of arbitration agreed, and the employer sought judicial review which was rejected at the Divisional Court. On appeal of this decision, Justice Laskin ruled on behalf of a unanimous Court of Appeal that the employer had no case. Its attempt to impose a condition of employment was unlawful in that it contradicted the provisions of the collective agreement, which did not make mention of a requirement to pursue graduate studies in order to maintain employment, wrote Laskin. He writes [para. 39 of the judgment],

In the case before us, the condition of Ms. Bergman's hiring was not sanctioned by the collective agreement and was not ancillary to the routine administration of the agreement. Nor, in my view, was it a term outside the scope of the agreement that might be individually bargained. Instead, it was a term that went to the core of Ms. Bergman's continued employment. Based on the Supreme Court of Canada's case law, the Board correctly held that the condition of Ms. Bergman's employment was invalid.

The Court went on to rule that the board of arbitration had the jurisdiction to hear Bergman's grievance. The employer's power to dismiss a probationary employee was not completely unfettered, wrote Justice Laskin, even though a clause of the collective agreement provided that a dismissal of a probationary employee cannot form the subject of a grievance [para. 64]:

The College could have properly dismissed Ms. Bergman for reasons related to her suitability for the job. What the College could not do was rely on its own prohibited conduct to dismiss her. The College's reliance on a condition that was either unlawful or in conflict with the collective agreement entitled Ms. Bergman to grieve her dismissal. Accordingly, the Board of Arbitration had jurisdiction to entertain the grievance under the arbitration provisions of the collective agreement and s. 46 of the Act. I would therefore not give effect to this ground of appeal.

The employer's appeal was dismissed, and the grievor reinstated.