Supreme Court of Canada
Zeller’s (Western) Ltd. v. Retail, Wholesale and Department Store Union, Local 955, et al., [1975] 1 S.C.R. 376
Date: 1973-10-29
Zeller’s (Western) Limited Appellant;
and
Retail, Wholesale and Department Store Union, Local 955, and Dolores Bonsal Respondents.
1973: May 29; 1973: October 29.
Present: Martland, Judson, Ritchie, Laskin and Dickson JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR SASKATCHEWAN
Labour relations—Collective agreement—Dismissal of employee—Board of arbitration deciding no justification for discharge—Proper exercise of board’s powers—Board’s decision conclusive against employer.
Following her dismissal from employment with the appellant company the second respondent filed a grievance report. An arbitration board, by a majority, held that there was no justification for the discharge. On appeal, the award was set aside on the grounds that the board dealt with the matter on the basis of determining whether the employee in question was properly dismissed for cause and as it was apparent on the face of the record that the said respondent’s services were dispensed with by the proper notice stipulated for under the terms of the collective bargaining agreement, the question was not one of cause or no cause and should not have been considered. An appeal from this decision was allowed by the Court of Appeal, from whose judgment the company appealed to this Court.
Held: The appeal should be dismissed.
The dismissal in question was manifestly one for cause and the decision of the arbitration board that no good cause was shown was conclusive against the appellant. It was not the function of this Court to enter upon an assessment as to whether there was error when the board held that the acts of the employee did not constitute just cause for discharge. That was the task of the arbitration board. If the board, upon entering the inquiry, is free of jurisdictional error and, in the course of the inquiry, acts in reasonable consonance with the powers which it may properly exercise under the statute or agreement from which its powers flow, the Court will respect both the autonomy and the conclusions of the board.
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International Association of Machinists and Aerospace Workers, Flin Flon Lodge No. 1848 et al. v. Hudson Bay Mining and Smelting Co. Ltd., [1968] S.C.R. 113, referred to.
APPEAL from a judgment of the Court of Appeal for Saskatchewan, allowing an appeal from a judgment of Bence C.J.Q.B. Appeal dismissed.
R.L. Barclay, for the appellant.
G.J.D. Taylor, Q.C., for the respondents.
The judgment of the Court was delivered by
DICKSON J.—Dismissal for cause or dismissal without cause, that is the question in this appeal. On December 23, 1971, Mr. H.J. Walford, general manager of the retail department store of appellant Zeller’s (Western) Limited located at the City of Yorkton in the Province of Saskatchewan dismissed the respondent, Mrs. Dolores Bonsai, from her employment with Zeller’s. The grievance committee of the respondent union requested Mrs. Bonsai’s reinstatement but Mr. Walford refused and on December 24, 1971, wrote the committee giving the reasons for Mrs. Bonsal’s dismissal. These included such things as her vindictive and antagonistic attitude to Zeller’s and its management, failure to make payments on her personal charge account at Zeller’s, unauthorized absences from her department to discuss union business. On December 30, 1971, Mrs. Bonsal filed a grievance report claiming “unjust dismissal” and requested “reinstatement without loss of seniority, pay and other benefits”. The grievance procedure prescribed by the collective bargaining agreement was followed and in due course an arbitration board was established and a hearing held at which counsel for Zeller’s submitted that the board lacked jurisdiction to deal with the case because the collective bargaining agreement permitted Zeller’s to discharge any employee at any time on one week’s notice and therefore dismissal for cause was not in issue. The relevant provisions of the collective bargaining agreement are as follows:
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Article 5.01—It is understood and agreed that the Company and its duly appointed management of its above referred to store premises shall have the sole direction of its operations and employees, the right to hire, the right to discipline or discharge, the right to decide employee qualifications, the right to discontinue jobs, the right to suspend, promote and demote, the right to maintain efficiency, to require employees to observe reasonable procedures, rules and regulations and methods of the Company, the right to determine reasonable schedules of work hours, lunch, dinner and rest periods. The parties hereto further agree the Company retains all rights not otherwise specifically covered by this Agreement and that Management’s rights as set out above shall not exclude other functions not so specifically stated. The foregoing is subject to the specific terms and conditions of this Agreement.
Article 7.05—The Board of Arbitration, in reaching its decision shall be governed by the provisions of this Agreement. A decision of a majority of the Board shall be taken to be the decision of the Board and shall be final and binding on all parties concerned.
Article 7.06—It is distinctly understood that the Board of Arbitration is not vested with the power to change, modify or alter this Agreement in any of its parts.
Article 8.01—Seniority shall be established from the date an employee first entered the service of the Company subject to Article 8.03.
Article 8.03—Employees excluding supplementary employees, shall be on probation for a period of sixty (60) days during which time they may be laid off or dismissed without reference to seniority.
Article 8.04—Seniority of an employee shall be forfeited when:
(a) He voluntarily leaves the employment of the company;
(b) He is dismissed for cause and not reinstated;
(c) He fails to report for work when recalled after lay-off;
(d) He is absent, without authorization or satisfactory explanation, for a period in excess of five (5) hours.
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Article 8.11—In case of lay-off or discharge, except discharge for just cause, employees who have completed their probationary period shall be given notice of one (1) week or salary for one (1) week instead of notice.
The jurisdictional point taken by counsel for Zeller’s was rejected by the board, the hearing continued and in due course an award was made in which the majority of the board held there was no justification for Mrs. Bonsal’s discharge.
Zeller’s moved to set aside the award for error apparent on the face of the record and Bence C.J.Q.B. granted the motion, stating:
The Board dealt with the matter on the basis of determining whether the employee in question was properly dismissed for cause. It is apparent on the face of the record that this person’s services were dispensed by the proper notice stipulated for under the terms of the Collective Bargaining Agreement.
Consequently, the question was not one of cause or no cause and should not have been considered.
With respect, I believe the reference to “proper notice” to be in error. From the record it appears that Mrs. Bonsal was given one week’s salary at the time of her dismissal but her employment was not terminated by notice.
An appeal to the Court of Appeal for Saskatchewan was successful. Woods J.A., delivering the judgment of the Court, stated:
The learned Judge in Chambers concluded that there was dismissal with proper notice under art. 8.11 of the agreement. The reasons for dismissal set out in the record show dismissal for cause and where dismissal is for cause, there is no provision for notice in art. 8.11. The learned Chambers Judge seemed to be of the view that where dismissal was for cause, the provision for notice still applied. The wording of the article makes it clear that, where dismissal is for cause, the article has no application.
In the result, and with the greatest deference to the learned Judge in Chambers, there was here for deter-
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mination the question as to whether or not there was a dismissal for cause.
Counsel for Zeller’s submits that under the provisions of the collective bargaining agreement Zeller’s has an unrestricted right to terminate the employment of any employee without cause on one week’s notice or one week’s salary. This is not immediately apparent from the muddled language of arts. 8.01, 8.03 and 8.11. It is not clear that an employee with significant seniority can be discharged at the whim of Zeller’s on one week’s notice. I would not, however, think it necessary to decide that point for Mrs. Bonsal’s dismissal was manifestly a dismissal for cause and not a discharge without cause. I think we must approach the case on that footing, directing our attention to what in fact was done and not to what might have been done by Zeller’s in bringing an end to Mrs. Bonsal’s engagement with that company. The evidence is clear beyond doubt that Mr. Walford dismissed Mrs. Bonsai for what he believed to be just cause. His letter to the grievance committee commences with these words: “Subject person was dismissed as an employee of ZELLER’S (WESTERN) LIMITED on December 23, 1971 for good and valid reasons as set forth.” The reasons are then set forth in detail. The arbitration board stated: “There is not the slightest doubt that the Company dismissed Mrs. Bonsal for what it tried to prove was ‘just cause’.” I agree. If the dismissal of Mrs. Bonsal was dismissal for cause, then the decision of the arbitration board that no good cause was shown is conclusive against Zeller’s. Counsel submitted there was error when the board held the acts of Mrs. Bonsal did not constitute just cause for discharge. It is not the function of this Court to enter upon such an assessment. That was the task of the arbitration board. If the board, upon entering the inquiry, is free of jurisdictional error and, in the course of the inquiry, acts in reasonable consonance with the powers which it may properly exercise under the statute or agreement from which its powers flow, the Court will respect both the autonomy and the conclusions of the board: International Association of Machinists and Aerospace Workers, Flin
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Flon Lodge No. 1848 et al. v. Hudson Bay Mining and Smelting Co. Ltd.
I would dismiss the appeal with costs.
Appeal dismissed with costs.
Solicitors for the appellant: MacPherson, Leslie & Tyerman, Regina.
Solicitors for the respondents: Goldenberg, Taylor, Tallis & Goldenberg, Regina.
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