Parry Sound v OPSEU is about a probationary employee fired shortly after taking maternity leave. She filed a grievance, and the issue was one of jurisdiction. The employer argued that she could not grieve the dismissal due to the collective agreement which held that probationary employees “may be discharged at the sole discretion of and for any reason satisfactory to the Employer and such action by the Employer is not subject to the grievance and arbitration procedures and does not constitute a difference between the parties.”

The Board of Arbitration ruled that it had jurisdiction to hear the case. The Court reversed the ruling of the Board, stating that the board can hear human rights complaints only if it had jurisdiction to hear a grievance, which in this case it did not.  The Court of Appeal reversed the ruling of the Court. Rather than stating that the Court was incorrect, it referred to the Employment Standards Act (ESA) which forbids employers from dismissing employees for pregnancy leave and states that the ESA is enforceable as if it were part of the collective agreement  

The SCC supported the ruling of the Court of Appeal but was split.

Issue

• Does a Board of Arbitration have the jurisdiction to hear a discrimination complaint from a probationary employee who is otherwise unentitled to grieve termination?

Decision

• Yes

Reasons

• The majority ruled that the human rights code and other relevant statutes are written into every collective agreement and that Arbitrators have the jurisdiction to arbitrate claims arising from these statutes. The minority disagreed; it said that the Human Rights Code is NOT implicitly incorporated into all collective agreements, that  employers and unions have the right to define which employees and disputes are covered by a collective agreement and that this employee and her dispute were excluded from the grievance process explicitly by the collective agreement.  It said “absent legislative action, courts should not on their own initiative interfere with the terms of a collective agreement.”   
• The majority ruled that the Court of Appeal properly raised the ESA argument; the minority said that this was improper because the Union/the complainant chose not to raise the issue.
• The majority ruled that the complainant could grieve her human rights complaint through the grievance process.  The minority ruled that she could not - however, she was entitled to file a complaint with the Human Rights Commission.