BETWEEN

(the "Employer")

AND

(the "Union")

SOLE ARBITRATOR: John Kinzie

Hearings in this matter were held in Squamish and Vancouver, B.C. on January 3, 4, 5, 15, 22, 29, February 9, 27, and 28, 1990.

On September 20, 1989, Singh Biln, the Employer’s Mechanical Engineer in Squamish, wrote to Darryl Alexander, the grievor, in the following terms:

This arbitration is concerned with Alexander’s grievance against the termination of his employment as an electrical apprentice with the Employer.

In response to the grievance, the Employer submits that there are two aspects to the termination of the grievor’s employment. First of all, as a result of Biln’s letter of September 20, 1989, the Employer maintains that the apprenticeship agreement between it and the grievor was terminated pursuant to Section 16(2) of the Apprenticeship Act. Relying on the decision of the arbitration board in West Kootenay Power and Light Company Limited (Award dated August 17, 1987, unreported, Richard B. Bird, Q.C.), it says that an arbitrator has no jurisdiction to review its decision to terminate that agreement. That jurisdiction is vested in the Director of Apprenticeship under the Apprenticeship Act.

The second aspect of this matter is the termination of the grievor’s employment with the Employer. The Employer agrees that I have jurisdiction with respect to this matter. However, it maintains that it had just and reasonable cause for its action. Alternatively, should I find against the Employer on this aspect, the Employer submits that I could not order reinstatement of the apprenticeship agreement as that is a matter governed by the Apprenticeship Act. Therefore, as the grievor was only an apprentice without an Employer and consequently had no seniority, he would have to be laid off immediately after his reinstatement because he would not be entitled to bump another employee.

The Union, on the other hand, maintains that the grievor’s apprenticeship agreement was never terminated and that if he is reinstated to employment, the agreement would become active again. In any event, it says that the provisions of the Apprenticeship Act do not exclude an arbitrator’s jurisdiction to review an emplgyer’s termination of an apprenticeship agreementr nor his authority to make any necessary remedial orders should he find that that action was taken without just and reasonable cause.

With respect to the merits of the grievor’s termination, the Union submits that no proper and appropriate occasion existed for the Employer to review the grievor’s work performance history when it did. Further, the Employer’s decision did not satisfy the recognized criteria for a dismissal of an employee for non-culpable deficiencies in job performance. For both of these reasons, the Union maintains, the Employer’s decision to terminate the grievor’s employment should be set aside, and he should be reinstated to his position as an electrical apprentice with compensation.

The background facts to this proceeding are as follows.

The grievor commenced employment with the Employer as an apprentice in the electrical trade on February 16, 1987. They entered into a written apprenticeship agreement which was registered under the provisions of the Apprenticeship Act on March 25, 1987. The term of the grievor’s apprenticeship was set for three and one-half years, expiring on August 15, 1990. Ordinarily, the electrical apprenticeship is four years in length, but the grievor received six months credit for his completion of the TRAC program sponsored by the provincial government.

The Employer operates an extensive apprenticeship program. Before someone is selected for the program, he must successfully complete a set of six aptitude tests and be interviewed and screened by the Mechanical Instructor and the Personnel Planning department. Once enrolled as an apprentice, he must of course take the training programs required by the Director of Apprenticeship. In addition, the Employer’s apprenticeship program requires apprentices to spend one day a week on further theoretical studies and classroom training. These studies are overseen by a Mechanical Instructor and include courses and tests put on by the Railway Educational Bureau.

As part of this program, apprentices are moved through various work areas to give them experience in all the work within their trade that is performed by the Employer. For electrical apprentices, this could involve approximately 12 different areas such as the locomotive rebuild centre, the electronic room, specific repairs, construction, and maintenance.

With respect to each move, the foreman in the area assigns the apprentice to work with a journeyman in the trade. The foreman meets the journeyman and the apprentice in the morning to give them their assignment for that day. Thereafter, the apprentice works under the direction and supervision of the journeyman. The foreman would only occasionally see them at work during the day. At the end of the apprentice’s move through an area, the foreman and the journeyman get together and review the apprentice’s performance. They then submit a written shop report to the Mechanical Instructor on his performance. It is the Mechanical Instructor’s responsibility to review the shop report with the apprentice and to counsel him in those areas where improvements are needed.

The format of the shop reports changed several times during the period of the grievor’s employment. When he commenced his apprenticeship, the form called for the evaluation of an apprentice under seven different headings: ability, initiative and adaptability, dependability, attitude, safety, punctuality, and time lost. With respect to the first four headings described above, they were in turn each broken down into five levels of performance with marks of 0, 5, 10, 15, and 20 assigned to the various levels. The other three headings: safety, punctuality, and time lost were broken down into three levels: excellent, satisfactory, and unsatisfactory. The marks for the three levels in the safety heading were 0, 5, and 10 while for the three levels in headings: punctuality and time lost, they were 0, 3, and 5. An apprentice performing at the top level under all seven headings would achieve a mark of 100. At the bottom of the report there was a space for comments and for signatures by the foreman, journeyman, and cost centre supervisor.

The first shop report done on the grievor covered the period February 16 to April 12, 1987 and involved the locomotive rebuild area. He achieved a mark of 73. In ability, he was rated at the 15 level of performance which reflected that he had performed his assignments during that move "with normal training period". In initiative and adaptability, he was again rated at the 15 level which reflected that he had "adapted himself normally to new environment". On dependability, he was rated at 15 reflecting that he was "generally dependable". With respect to attitude, he was also given a 15 which indicated according to the shop report form that he "cooperated fairly well with Supervisor and fellow employees". Under the headings: safety and punctuality, he was rated satisfactory, receiving marks of 5 and 3 respectively. With respect to the seventh heading, time lost, he was rated at excellent receiving a mark of 5. No written comments were included in this report.

Brian Russell, a machinist by trade, was the Mechanical Instructor at the time the grievor commenced his apprenticeship with the Employer. He testified that in his view the grievor’s first shop report was a satisfactory one.

The grievor’s second shop report again involved the locomotive rebuild area and covered the period April 13 to June 5, 1987. The mark on this shop report was 61. The grievor received 15s under the headings of initiative and adaptability and dependability and satisfactory ratings under the headings of safety, punctuality, and time lost. However, under the heading of ability, he was rated at 10 which reflected an evaluation that he was "slow learning but tried during this assignment". He also received a 10 under the attitude heading which reflected an assessment that he was "occasionally away from job or somewhat disinterested".

In the "comments" section of the report, the foreman, John Gross, stated that:

Russell testified that he did speak with the grievor after receiving this report and the grievor told him he would work to maintain better reports.

The next report covered the period June 8 to August 2, 1987. The mark on this report is 76 and reflected ratings of 15 under the headings of ability, initiative and adaptability, and dependability and ratings of satisfactory under the headings of safety, punctuality, and time lost. However, under the heading of attitude, the grievor was rated a 20 which indicated that he "cooperated with Supervisors and fellow employees at all times". Russell testified that in his view, this report was an acceptable one.

Unlike the first two reports on the grievor’s performance, this third report was not signed by the journeyman to whom the grievor was assigned to work with, i.e., Gary Griffin. Griffin testified in this proceeding that he never saw the report at the time, nor did the foreman who prepared it, Ron Packard, asked him for his opinion on the grievor’s work performance. Seeing the report during the hearing, he said he would have given the grievor a 20 rating on dependability reflecting a "very dependable" assessment, rather than the 15 given by the foreman.

In his evidence, Packard agreed that it was possible that he never discussed the report with Griffin, and that he, Packard, had never actually worked with the grievor. However, he said he always took a keen interest in apprentices in his area. He also testified that he felt the grievor’s mark on this report was an above satisfactory mark.

The grievor’s fourth report covered the period August 3 to September 27, 1987. His foreman at the time was Paul Owen, an electrician by trade. Owen testified that he discussed the grievor’s performance with the three journeymen he had worked with and prepared a report which had a mark of 81 based on that discussion. This report reflected ratings of 20 under the initiative and adaptability and dependability headings. Owen said he was subsequently called into the office of the Cost Centre Supervisor, Darryl Clark, and told that the mark was a little too high. He was asked if he could knock it back. As a result, Owen said he reduced the rating under the dependability heading from 20 to 15. This resulted in the mark on the report going from an 81 to a 76.

Clark was not called to testify in this proceeding.

Russell testified that the grievor’s fourth report was a satisfactory one.

The grievor commenced his fifth move on September 28, 1987. Ordinarily, this move in the governor and contactors work area would have lasted until November 22, 1987. However, it ended early as the grievor commenced his Level 2 course of study at the B.C. Institute of Technology (BCIT) on October 26, 1987. A shop report was prepared on the grievor’s work performance during the month before he commenced his school studies. He was given a mark of 75.

The Level 2 course of study at BCIT continued through until December 18, 1987. The pass mark for this course is 70%. The grievor failed, only achieving a mark of 58%. His school report contained the comment that he needed upgrading in several areas, two of which were electrical math and the Canadian Electrical Code.

At about the same time, a number of other events occurred. On November 30, 1987, David Lonergan succeeded Brian Russell as Mechanical Instructor. On January 8, 1988 Russell wrote the following confidential memorandum to Lonergan,concerning the grievor:

As its confidential nature would suggest, this memorandum was not discussed with the grievor nor was he given a copy of it. Russell was also cross-examined as to his conclusion that the grievor was "below average" when all but one of his first five shop reports were satisfactory according to his evidence. No real explanation was given. Russell agreed that he had made improvements in some areas.

Three days later on January 11, 1988, Lonergan wrote a confidential memorandum to Terry Currie, the Mechanical Engineer at the time, regarding the grievor. In that memorandum, Lonergan stated that:

As of January 11, 1988, the grievor’s "latest shop report" wouldappear to be his fifth one from the governors and contactors workarea. His mark on that report was a 75.

On January 20, 1988, Currie and Lonergan met with the grievor and his shop steward to discuss his performance to that date. During the meeting, Currie referred to the fact that the grievor had failed his Level 2 courses and expressed the opinion that his work performance as reflected in his shop reports was less than adequate as well. Currie testified that he told the grievor he expected him to raise his shop report marks to the level of the other apprentices in his trade.

Currie subsequently confirmed their discussion in a memorandum to the grievor wherein he stated that:

From December 21, 1987 to January 17, 1988 the grievor was on his sixth move in the maintenance work area. Dave Mazzotti was his foreman. Mazzotti testified that he sat down with his journeymen and prepared reports on apprentices in conjunction with them, but the three journeymen concerned would not sign the reports. Such was the case with this report.

The mark on this report was 70 reflecting ratings of 15 in ability, initiative and adaptability, and attitude, and satisfactory in safety, and excellent in punctuality and time lost. However, under the heading of dependability, he only received a 10 which reflected an "occasional lapse in dependability".

The grievor’s next move was in the construction area for the period January 18 to March 13, 1988. Again, Mazzotti was his foreman. Further, this was the grievor’s first shop report covering a full move after his meeting with Currie. The mark on it was 75 reflecting the same ratings as on the previous Mazzotti report, except that the 10 under the heading of dependability had been raised to a 15. Mazzotti also added the following written comment that:

During this period and further to the recommendations of his BCIT instructor after he failed his Level 2 courses, the grievor took a course on the Canadian Electrical Code at BCIT. He finished the course on March 24, 1988 with a mark of 91%. He did this while working full-time for the Employer in Squamish.

The grievor’s next scheduled move was for the period March 14 to May 18, 1988. His foreman was Paul Marlatt and he was assigned to work with a journeyman by the name of Johnny Pilotte.

About five weeks into this move, the grievor left to return to BCIT to redo his Level 2 courses of study. He completed them on June 17, 1988 and achieved an overall mark of 73%, sufficient for a pass. He was assigned to Level 3 set to commence in February, 1989.

As well, Marlatt and Pilotte prepared a shop report on the grievor’s five weeks in their work area. He was given a mark of 71, reflecting ratings of 15 in ability, initiative and adaptability, dependability, and attitude, and satisfactory under the headings of safety, punctuality, and time lost. As well, Marlatt added the comment that:

Two events happened about this time and prior to the grievor commencing his next shop move on July 4, 1988.

First of all, Biln, who had succeeded Currie as Mechanical Engineer on February 22, 1988, met with the grievor in the presence of Lonergan and 2 shop stewards on June 23, 1988. Biln testified that Lonergan had requested the meeting because he was having difficulty with the grievor. Biln summarized the substance of the meeting in a memorandum to the grievor’s file. The grievor was not given a copy of the memorandum at the time, but there was no dispute during the hearing about it accurately summarizing the substance of the meeting. In that memorandum, Biln stated:

Following this meeting, Biln instructed Lonergan to have a shop report done on the grievor’s performance monthly rather than the usual two month period and to report to him after each report was received.

Secondly, the format of the shop reports were changed. Whereas in the earlier format each of the levels within the seven beadings were assigned a specific mark, i.e., 0, 5, 10, 15, and 20 in the case of the first four, 0, 5 and 10 for safety, and 0, 3 and 5 for punctuality and time lost, under the new format, the foreman and journeyman were given the ability to determine the mark within the existing ranges, 0-20, 0-10, and 0-5, and assign it to the level within the headings that they thought appropriate. Lonergan testified that the reason for this change was that the foremen and journeymen felt the existing report form was too rigid and that giving the flexibility of working within a range of marks and of assigning the mark to the level they felt appropriate would be more responsive. Full marks under this report continued to be 100.

The grievor’s next shop report under the new format covered the period July 4 to July 24, 1988. The foreman was Marlatt and the journeyman to whom the grievor was assigned to work with was Peter Lanyi.

The mark on this report was 88. Lanyi testified that he determined the marks for each heading and assigned them to the various levels on the report form. He said that he had not been given any prior instructions about how to fill out the form. He also testified that after he had filled out the form, he discussed it and the marks he had assigned with Marlatt. Marlatt then signed the form. The report also contained the following comment:

The next shop report covered only a seven day period. Mazzotti, the foreman, gave the grievor a mark of 75 with the comment that the "period (was) too short to assess other than average".

Lonergan reported to Biln on these two reports as he had been instructed. He referred to the "arrogant" comment in the first report, and noted that it had been easily dealt with. He concluded his report as follows:

The grievor was not copied on Lonergan’s reports to Biln, but Lonergan testified he showed them to the grievor before he sent them to Biln.

The eleventh shop report on the grievor’s work performance covered the period August 1 to August 28, 1988. Marlatt was the foreman. The mark on the report was 82. In addition, Marlatt commented that:

The grievor’s next shop report covered the period August 29 to September 25, 1988. The foreman was Packard and the journeyman to whom the grievor was assigned was Alexander Kokal. They collaborated on the report and the comments. The overall mark was 70 reflecting 15s under the headings of initiative and adaptability, dependability, and attitude and satisfactory under the last three headings. Under the heading of ability, he was given a 10 indicating "slow learning but tried during this assignment". In the comments section, the following appeared:

Lonergan reported to Biln on this shop report after he had discussed it with Packard and Kokal. In his report dated October 4, 1988, Lonergan commented that:

The grievor was shown a copy of this report before it went to Biln.

Biln subsequently advised Lonergan to continue monitoring the grievor’s work performance and reporting to him.

In fact, the grievor did enrol in one course, not two, at BCIT. The course was Math for Electricians 3 again a course that it was recommended he take after he failed his Level 2 course in the fall of 1987. He took the course at BCIT while working full-time from September 19 to November 23, 1988 and achieved a mark of 82% on it.

The grievor’s thirteenth shop report covered the second month of his move with Packard and Kokal, i.e., September 26 to October 23, 1988. The overall mark and individual heading ratings remained the same as the earlier report. In the comments’ section, Packard observed that:

Kokal commented that:

In his report to Biln concerning this latest shop report, Lonergan stated that:

On October 24, 1988, the grievor commenced an eight week shop move in the maintenance area again with Mazzotti as his foreman. In the first report, Mazzotti and the journeymen involved gave the grievor a mark of 69 with a 12 in both ability and attitude. The 12 in ability was in the "slow learning but tried during this assignment" level. The 12 in attitude was in the "occasionally away from job or somewhat disinterested" level. Mazzotti added the following comment to the report:

Prior to the second shop report being done on the grievor’s work performance in the maintenance area, the shop report format underwent another change. This change was a substantial one, basically involving a complete rewrite of the form. Under the new form, apprentices were evaluated under ten headings: job knowledge, work quantity, work quality, planning and organizing, work habits, attitude, ability to deal with others, initiative, adaptability, and dependability. For each heading, there were five different ratings levels: exceptional, superior, satisfactory, marginal, and not satisfactory, and a space beside each heading for the foreman and/or journeyman to explain the rating given.

The foreman and journeyman filling out the form were no longer responsible for attaching a mark to the report. In fact, the marks that corresponded to the ratings did not appear on the report. The marking was done separately by the Mechanical Instructor after he received the report from the foreman and journeyman.

The marks for the ratings were as follows:

Thus, full marks on this report form were 100. A satisfactory report produced a mark of 80.

In the previous report, Mazzotti and the journeymen had expressed some concern about the grievor’s ability to grasp some of the aspects of the work he had to perform. Thus, in the second part of the grievor’s move in the maintenance shop, they kept him under constant supervision. Because of this fact, the grievor was not given the opportunity to plan and organize his work or to show any initiative. This explanation was given on the report, but at the same time the grievor was rated as not satisfactory under both these headings.

Under the headings work quality and adaptability, Mazzotti and the journeymen rated the grievor as marginal, but at the same time made the comment in the explanation section - "OK". It was suggested to Mazzotti that marginal and OK were contradictions. He responded saying that OK did not mean exceptional or satisfactory.

The overall mark on this report was 44.

From December 19, 1988 to January 15, 1989, the grievor was with Don Dorosh, foreman, and assigned to work with Kokal as his journeyman. In this report, the grievor was rated as satisfactory in six of the headings and as superior in four. In the explanation section, the following comment was made:

This report produced a mark of 84.

In his report to Biln dated February 9, 1989, Lonergan commented on this report that:

The grievor’s next move covered the period January 16 to February 12, 1989. Sam McRae was his foreman and M.L. Smith was the journeyman to whom he was assigned. Their shop report on the grievor included seven satisfactory ratings and three marginal ones. The overall mark on the report was 68. Lonergan observed in his report to Biln that:

On February 27, 1989, the grievor commenced his Level 3 course of study at BCIT. However, in the latter part of March, 1989, the grievor was involved in a car accident which resulted in an injury to his back. Because of the nature of his injury, the Workers’ Compensation Board would not allow him to work in these circumstances or continue his course of study at BCIT. From the end of March to May 30, 1989, the grievor was either off work or undertaking classroom assignments under the supervision of Lonergan.

When the grievor returned to work on May 30, 1989, it was in the middle of an existing shop move for apprentices. As a result, he was assigned to work in various areas with different journeymen. No shop report was prepared on the grievor’s work performance during this period. on July 3, 1989, the grievor was assigned to the Motive Power Shop #1 (Specific Repair) under the direction of Art Sherlaw, foreman, and Kokal as his journeyman.

About the same time the grievor returned to work, more precisely on May 29, 1989, Packard replaced Lonergan as the Mechanical Instructor. Packard testified that on taking over the duties of Mechanical Instructor, he reviewed the files of all of the apprentices employed by the Employer. He said that on looking at the grievor’s shop reports and his BCIT marks and comparing them with those of the other apprentices, he became quite concerned. With respect to shop report marks, he said that the Employer expected its apprentices to have marks in the 80s on a consistent basis. The grievor’s shop report marks did not meet that expectation. Based on this review, Packard testified that he recommended to Biln that the grievor be terminated. He made this recommendation prior to taking his holidays which commenced on July 14, 1989.

Between July 19 and 26, 1989, Biln said he also conducted a similar review of all of the apprentices files, including the grievor’s file. He testified that the Employer expected its apprentices to achieve marks in the high 80s in their vocational courses of study and a minimum of 80 on their shop reports. His review of the grievor’s file satisfied him that the grievor had not performed to the Employer’s standards. He said that he decided to terminate the grievor’s employment. He testified that he made this decision by no later than July 26, 1989.

Biln also said that there was no straw that broke the camel’s back in respect of his decision. The decision was based on his review of the grievor’s file.

Biln testified that he did not communicate his decision to the grievor immediately, because he did not want to undermine the authority of his Mechanical Instructor who was on holidays at the time. Packard did not return from vacation until the middle of August, when Biln went on vacation. Thus, they were both not at work until after Labour Day, 1989. Biln then informed Packard of his decision, discussed the matter with the Employer’s Labour Relations department, and then met with the grievor on September 22, 1989 to advise him of his termination and to give him the letter of termination dated September 20, 1989 which is set out above.

In early September, 1989, the shop report concerning the grievor’s work performance during his move in Motive Power Shop #1 (Specific Repair) from July 3 to August 27, 1989 came in. The mark on that report was 68 made up of seven satisfactory ratings and three marginal ratings.

Sherlaw testified concerning this report. He said that he is a machinist by trade, not an electrician. Consequently, in filling out this report he relied heavily on Kokalls opinions. As well, he did not spend any time working with the grievor. He testified that he did not recall any violent disagreements with the journeyman about the ratings that appeared on the report.

Kokal also testified concerning this report. He said that he and Sherlaw did have a serious disagreement over the ratings that appeared on the report. He told Sherlaw that the true state of affairs regarding the grievor would be reflected by the report if all of the ratings were moved one column to the right. This would have given the grievor seven superiors and three satisfactory ratings and a mark of 87. Kokal testified that he also asked Sherlaw to include comments on the report on his behalf to the effect that the grievor had improved greatly, particularly his problem solving abilities, and that in his opinion the grievor would make a good electrician.

Asked about this shop report in cross-examination, Biln said that it had no bearing on his decision to terminate the grievor’s employment. His decision was made on July 26, 1989 and this report was not available to him at that time. Nor, he said, had he discussed the grievor’s performance with either Sherlaw or Kokal prior to making his decision.

With respect to the shop reports on his work performance, the grievor testified that he felt the marks on some of them were lower than what was justified. He discussed his concerns on occasion with his shop steward and with the mechanical Instructor. He testified that in his view he was performing equivalent to the other apprentices, but was not being recognized for it. He endeavoured to upgrade his school performance by taking additional courses as recommended by his instructors but received only criticism for it. It was his conclusion, he said, that personality had a lot to do with his marks, citing conflicts with certain journeymen as well as with Lonergan.

The grievor testified that at no time during his apprenticeship was he told that the Employer’s expectation of apprentices was that they would score in the 80s on their vocational courses of study and on their shop reports. In his evidence, Biln agreed that he had not specifically stated that expectation to the grievor during the June 23, 1988 meeting or at any other time. He felt that the grievor and other apprentices would be aware of that expectation through their Mechanical Instructor and the feedback he gave to them regarding their reports. However, none of the Mechanical Instructors testified that they told the grievor that he must achieve marks in the 80s on his shop reports on a consistent basis.

Gary Wanless, an Employment Training Counsellor with the Ministry of Advanced Education and Job Training, also testified in this proceeding. He said that he was responsible for the administration of the Apprenticeship Act for employers and apprentices in the West Vancouver and Howe Sound area. This included the Employer’s shop and apprentices in Squamish.

Wanless said that the Employer advised him in writing by letter dated September 25, 1989 of its decision to terminate the grievor’s employment. He testified that in these circumstances if an apprentice is actively seeking employment, the Director of Apprenticeship will not treat the apprenticeship agreement as cancelled. If the apprentice finds employment with another employer, the apprenticeship agreement will be transferred to it.

In cross-examination, Wanless was asked whether the grievor’s apprenticeship agreement had been cancelled. He said it had not been. He agreed that it could be assigned to another employer. He agreed it could also be reinstated with the Employer. Finally, he agreed that the status of the grievor’s agreement at that time was that it was inactive, but that it could be reactivated.

In Wanlesses view, it was the prerogative of the Director of Apprenticeship to cancel an apprenticeship agreement, not that of an employer.

I now turn to address the issues raised in this proceeding.

The first one that arises is whether I have the jurisdiction to review and remedy, if appropriate, the Employer’s termination of its involvement in the apprenticeship agreement with the grievor. It is clear from Wanless’ evidence that the grievor’s apprenticeship itself has not been cancelled as a result of the Employer’s actions in this case. The apprenticeship agreement could be assigned to another employer and, in Wanless’ view, it could also be reinstated with the Employer.

The Employer submits that an arbitration board under a collective agreement does not have jurisdiction to inquire into an employer’s decision to terminate an apprenticeship agreement with one of its apprentices. This jurisdiction, it says, is vested in the Director of Apprenticeship. In support of this submission, counsel for the Employer refers to the following provisions of the Apprenticeship Act, R.S.B.C. 1979, c.17 as amended:

Counsel for the Employer also relies on the decision of the arbitration board in West Kootenay Power and Light Company Limited, supra. In that case, Bruce Byrnell, a lineman apprentice, was on the verge of completing his apprenticeship when the employer decided that he was unlikely to qualify as a journeyman and terminated his registered apprenticeship agreement. Byrnell grieved that decision alleging that the employer had:

Byrnell also launched an appeal under the provisions of the Apprenticeship Act.

The arbitration board concluded that it did not have jurisdiction over all aspects of Byrnell’s grievance. Its reasoning is reflected in the following excerpts from its decision:

In this case, on the other hand, the remedy sought by the grievor and the Union is the grievor’s reinstatement as an electrical apprentice with the Employer. The Employer is a party to this proceeding and this arbitration board has the authority to make the necessary orders, if found to be otherwise appropriate, in respect of the remedies sought pursuant to Section 98 of the Industrial Relations Act. If the Employer is directed to reinstate the grievor and the apprenticeship agreement, based on Wanless’ evidence, the Director of Apprenticeship would agree to that.

Furthermore, the parties’ collective agreement makes considerable reference to the status of apprentices. In particular, Rule 27.6 provides that:

In terminating the grievor’s employment, the Employer relied on this provision and the grievor’s failure, in its view, to meet its requirements. In my view, the Employer’s decision to terminate the grievor’s employment as an apprentice clearly gives rise to arbitrable issues which I have jurisdiction to resolve.

The Employer principally relies on Section 16(2) of the Apprenticeship Act. That provision suggests that an employer, or any other party to the apprenticeship agreement, may terminate it without the consent of the other parties. Then it argues that pursuant to Section 13 (h) of the Act only the Director of Apprenticeship may interpret the rights and duties of the parties under the agreement.

In response to this argument, I would note first of all that absent provisions like those contained in the Apprenticeship Act, arbitrators have reviewed decisions of employers to terminate the employment of apprentices and, where appropriate, have ordered them reinstated as apprentices. In argument, I was referred to a number of decisions of J.F.W. Weatherill dealing with the terminations of apprentices by CP Rail and the Canadian National Railway Company. The national railways’ collective agreements also contain the same provision as Rule 27.6 in these parties’ collective agreement. Mr. Weatherill took jurisdiction over those cases and in one of the cases given to me, ordered that the apprentice be reinstated into his apprenticeship. See CP Rail (Award dated July 17, 1978 - Grievor: S. moguin).

Thus, there is nothing inherent about apprenticeship which preventsarbitral review. Do Sections 16(2) and 13(h) of the Apprenticeship Act exclude such review?

The issue of whether a statutory provision has the effect of removing a subject matter from collective bargaining including the grievance-arbitration dispute resolution procedures has been considered by the courts and arbitration boards. The leading case on this issue is the decision of the Supreme Court of Canada in Durham Regional Police Association v. Durham Regional Board of Commissioners of Police et al. (1982), 140 D.L.R.(3d) 1. Section 24(6) of the Ontario Police Act gave a municipal council the discretionary authority to pay any damages or costs awarded against a member of the police force in any civil or criminal proceeding brought against him. In an interest arbitration award, the arbitrator prescribed Article 17.06 which required a council in mandatory terms to reimburse a member of the force for reasonable legal expenses where he was acquitted of a criminal or statutory charge. The question in the case was whether Article 17.06 was forbidden by the provisions of Section 24(6) of the Police Act.

The Supreme Court of Canada concluded it was not. Laskin, C.J.C., speaking for the Court, stated that:

The Durham Regional Police Association case was recently applied by the B.C. Court of Appeal in British Columbia Government Employees’ Union v. R. in Right of British Columbia Government (Personnel Services Division) (1987), 12 B.C.L.R. ( .2d) 97. In that case, Section 73(2) of the Forest Act, on the one hand, provided that where a regional manager considered it necessary to avoid unreasonable delays or costs, he could order that timber that was required to be scaled by a forest service scaler, a government employee, be scaled by a licensed scaler who was not a government employee. The collective agreement between the parties on the other hand contained a provision prohibiting the contracting out of work where it would result in the laying off of employees.

Hutcheon, J.A., speaking for the Court, stated that:

In Matsqui Police Board, Corporation of the District of Matsqui 1 85 1 22 L.A.C.(3d) 93 (Munroe) the arbitration board faced a similar fact situation to that in Durham Regional Police Association, supra: a statutory provision authorizing a municipal council to indemnify a police officer for costs incurred in respect of a charge arising out of the performance of his duties and a collective agreement provision dealing with the subject matter expressed in mandatory terms.

The majority of the arbitration board found in favour of the union. In doing so, it commented on the jurisdictional question as follows:

Later, the majority stated that:

Applying the principles set out in these decisions to the facts of this case, I am of the view that, first of all, the relationship between employers and apprentices is amenable to collective bargaining. Secondly, Section 16(2) of the Apprenticeship Act is an empowering provision which gives the parties to an apprenticeship agreement the power to terminate the agreement without the consent of all the other parties. Thirdly, the circumstances in which an,employer may exercise its power to terminate its involvement in an apprenticeship agreement are subject to restrictions contained in a collective agreement and the Industrial Relations Act, including the just and reasonable cause requirement. Fourthly, in my view, Sections 16(2) and 13(h) of the Apprenticeship Act do not have the clarity of expression that would be necessary to exclude the application of the collective bargaining regime to the issue of the termination of apprenticeship agreements. Finally, this conclusion still leaves Section 13(h) of the Apprenticeship Act operative for those instances where an employer terminates its involvement in an apprenticeship agreement and the affected apprentice does not have access to the grievance-arbitration procedures under a collective agreement.

I should add that if I am wrong in my interpretation of the arbitration board’s decision in West Kootenay Power and Light Company Limited, supra, and it does stand for the wider proposition that an arbitration board cannot inquire into an employer’s decision to terminate its involvement in an apprenticeship agreement, I respectfully decline to follow it. The board in that case did not address the interpretive principles reflected in Durham Regional Police Association, supra and the other decisions which have followed it. I find those principles persuasive on the issue of my jurisdiction in this case. Applying those principles, Sections 13(h) and 16(2) of the Apprenticeship Act, in my view, do not exclude my jurisdiction in this case.

To summarize, I am of the view that I have the jurisdiction to review the Employer’s decision to terminate the grievor’s employment and its involvement in its apprenticeship agreement with the grievor and grant the appropriate remedies under the collective agreement and the Industrial Relations Act if the circumstances of the case so merit.

In dealing with the termination or discharge of employees, arbitrators have made the distinction between cases involving culpable conduct and those involving non-culpable conduct. In a paper entitled Non-Culpable Employee Conduct prepared for the Continuing Legal Education Labour Arbitration Seminar - 1987, Robert A. Pekeles succinctly described the distinction as follows:

Section 93(1) of the Industrial Relations Act requires that every collective agreement contain a provision that the employer must have just and reasonable cause for the dismissal or discipline of an employee. If a collective agreement does not contain such a provision, it is deemed to do so pursuant to Section 93(3)(a) of the Act.

The application of that standard to dismissals for non-culpable conduct has some similarities with its application to dismissals for culpable conduct. one of those similarities is the requirement for a culminating incident. See City of Vancouver (1983), 11 L.A.C.(3d) 121 (H.A. Hope, Q.C.) where the arbitrator stated that:

The evidence gives rise to a further problem. In the event the conduct of the grievor is to be seen as culpable, there was no evidence of a final incident deserving of some form of discipline which would justify the initiation of proceedings leading to dismissal. It must be remembered that the first test in the Wm. Scott case is an articulation of what was previously described as the doctrine of the culminating incident. What is anticipated in the first aspect of the Wm. Scott case is that an employer will lead evidence of in incident which will sustain dismissal in itself or which will revive the discipline record of the grievor so that the incident and the record, taken together, will disclose just cause for dismissal. The same principle applies to conduct seen as non-culpable. The issue was addressed in Re Victoria Hospital, London, and London & District Building Service Workers’ Union, Local 220 (1979), 24 L.A.C. (2d) 172 (Weatherill). In that case Professor Weatherill was considering non-culpable conduct in the form of innocent absenteeism. On p. 174 he said:

Both counsel argued this case on the basis that the grievor’s employment had been terminated for non-culpable conduct.

Counsel for the Union submits that there was not "some proper and appropriate occasion" for Biln to review the grievor’s work performance and decide to terminate his employment on July 26, 1989. I agree with that submission.

The last shop report submitted on the grievor’s performance in a work situation covered the period January 16 to February 12, 1989, some five and one-half months prior to the grievor’s termination. On February 27, 1989, he commenced his Level 3 course of study at BCIT. After approximately four weeks at BCIT, the grievor was involved in a car accident as a result of which his back was injured. Because of his back injury, he had to stop school and he could not work with the tools. During the intervening period from the end of March to May 30, 1989, the grievor was off work altogether or confined to the classroom.

He returned to work on May 29, 1989 in the middle of a shop move. He commenced his regular shop move on July 3, 1989 with Sherlaw and Kokal. No complaints were registered with Biln or Packard, the new Mechanical Instructor, about his work performance. Sherlaw and Kokal’s shop report was not submitted until early September, 1989 well after Biln had made his decision to terminate. Biln testified that this report had no bearing on his decision as it was not available to him at the time he made his decision.

In my view, to use the words of the arbitrator in City of Vancouver, supra, there was, on the evidence before me, no incident or occasion which called the work performance of the grievor into question during the months of June and July, 1989 which justified Biln reviewing the grievor’s file and making the decision to terminate his employment.

This conclusion, in and of itself, would justify the setting aside of the Employer’s decision to terminate the grievor’s employment and my ordering his reinstatement. However, I have also considered the extensive evidence and argument adduced concerning the grievor’s work and school performance and the Employer’s system for evaluating its apprentices. Having done so, I have also concluded that the termination of the grievor’s employment must be set aside on the merits as well. I now turn to my reasons for reaching that conclusion.

As stated above, there are some similarities in the application of the just and reasonable cause standard to dismissals for non-culpable conduct and dismissals for culpable conduct. One of the differences, though, is in the criteria for review.

Dismissals for culpable conduct are subject to review by arbitrators pursuant to the framework set out in William Scott & Company Ltd., BCLRB No. 46/76, (19771 1 Can LRBR 1. However, the Labour Relations Board has determined that that framework is not applicable to cases of dismissal for non-culpable conduct. See Canadian Liquid Air Ltd., BCLRB No. 2/82, [1982) 1 Can LRBR 355. As a result, arbitrators in British Columbia have developed a separate set of criteria for reviewing employers’ reactions to employees who allegedly are unable to perform their duties through no fault of their own.

These criteria have been described in different ways at different times. However, I am of the view that the description contained in Edith Cavell Private Hospital (1982), 6 L.A.C. (3d) 229 (Hope) provides a useful summary for the purposes of this case. The board there stated that:

I now turn to review the facts of this case against those criteria.

I propose to consider the first two criteria together - the Employer must define the level of job performance required and must establish that that standard was communicated to the grievor.

It is clear from Biln’s evidence that the Employer evaluated the grievor’s work performance as an electrical apprentice prior to making its decision to terminate against a standard of achievement of marks in the high 80s on the vocational courses of study and a minimum of 80 in the shop reports. This standard was used on the basis that it reflected the level of attainment that the Employer’s apprentices had achieved in the past and were continuing to achieve.

However, having considered all the evidence and argument before me, I am satisfied that the Employer never defined or laid down a standard, or level of performance required, at that level. That standard or level of performance may have been what Biln in his own mind expected of his apprentices, but I must conclude on the evidence before me that that expectation was never communicated to the Employer’s apprentices, and most particularly the grievor, with the preciseness and particularity that would justify the dismissal of an employee for the failure to meet it. At times, the grievor was told he must perform to the level of the other apprentices. But he was not told what that level was, and in his own mind, he was performing as well as the others.

On the other hand, the Apprenticeship School Report forms used by the Director of Apprenticeship to record apprentices’ marks in their courses of study clearly defined a passing mark as 70%. Further, the first two formats of shop reports used during the grievor’s apprenticeship, which covered most of his actual working time with the Employer, left the clear impression that 71 represented a satisfactory mark. This conclusion is consistent with Russell’s evidence, who as the grievor’s first Mechanical Instructor testified that his marks of 73, 76, 76, and 75 were acceptable or satisfactory shop report marks.

When all of the evidence is considered, I can only conclude that the Employer had not defined a standard. Biln expected marks in the 80s, while in my view, apprentices, journeymen and foremen could reasonably conclude from the first two shop report formats that a mark of 71 or above represented a satisfactory level of job performance. This inconsistency leads me to the conclusion that the Employer had not met its obligations under the first two criteria set out in Edith Cavell Private Hospital, supra, to "define the level of job performance required" and to "establish that the standard expected was communicated to the employee". If an employee is to be evaluated against a standard, it is only just and reasonable that that standard be clearly laid down and communicated to him beforehand. That, in my view, was not done in this case.

The fourth criteria set out in Edith Cavell Private Hospital, supra requires that the Employer must establish an inability on the part of the grievor to meet the requisite standard to an extent that renders him incapable of performing the job.

I have a number of comments in respect of the application of this criteria to the facts of this case.

To satisfy this criterias the Employer relied principally upon the shop reports done on the grievor’s work performance during his moves through the various areas of the Employer’s operations. In response, the Union raised a number of concerns about the use of the reports for this purpose.

It pointed out that it was the journeyman who worked with the apprentice, assigned him his work, and was there to assess how he performed it. Further, it was the journeyman who had the expertise in the trade. Most of the foremen the grievor worked under were not electricians by trade and for the most part they never observed him actually working at the trade. Yet the evidence was that the foreman generally took the leading role in completing the shop report, filling in the marks and comments. Although the foreman was supposed to consult with the journeyman prior to completing the report, the evidence was in the grievor’s case this did not happen on every occasion. where the foreman and journeyman had differences of opinion on their assessments, there did not appear to be a way to ensure that difference was reflected in the report. In this regard, reference was made to the last report on the grievor and the differences between Sherlaw and Kokal on their assessments.

I share some of these concerns. Additionally, the last form of shop report used in the grievor’s case appeared to be quite complex with five separate ratings under each of ten different headings. Further, the foremen and journeymen using this form were not given hands-on instruction on its use. These factors may explain some of the inconsistent comments on Mazzotti’s report covering the grievor’s performance in his shop during the period November 21 to December 18, 1988. It may also explain the wide variation in marks from that report which was a 44 to the grievor’s next report covering the period December 19, 1988 to January 15, 1989 which was an 84.

Most of the concerns raised by the Union appear to have been answered by the new form of shop report adopted by the Employer after the grievor’s termination. Apprentices continue to be evaluated under the same ten headings as in the last form: job knowledge, work quantity, work quality, planning and organizing, work habits, attitude, ability to deal with others, initiative, adaptability, and dependability. However, there are now only three rating levels: poor, satisfactory, and good. This should make the form simpler to use. Most importantly, though, the form is designed such that the foreman and journeyman now do their own, individual evaluations of the apprentice under each of the headings and make their own individual comments.

It seems to me that the journeyman is in the best position to evaluate an apprentice, based on his expertise in the trade and his exposure to the apprentice at work. A shop report form designed to assess an apprentice’s work performance must make provision for the expression of the journeyman’s evaluation. The new format clearly does. The fact that the earlier formats did not clearly provide for it, leaves the weight to be attached to them open to question.

Secondly, as I concluded above, there was no clearly defined standard against which the grievor’s work performance was being measured. Biln had his expectations. The grievor was not aware of them, and I am satisfied that neither were the foremen and journeymen.

Thirdly, when all the evidence is considered, particularly that of the journeymen who worked with the grievor, I am not persuaded that it establishes that the grievor is incapable of performing as an electrical apprentice and eventually becoming a journeyman. It is true that the grievor has had some difficulties. However, I am satisfied that when concerns about his performance have been identified he has done his best to address them. Additionally, when he failed his Level 2 courses of study and it was recommended that he take some upgrading courses in certain areas, he did so and achieved marks of 82 and 91 on them. More recognition of this effort might have been given by the Employer. If he continues to work on the deficiencies in his performance, learning through the knowledge and experience of his foremen and journeymen, the evidence suggests to me that he has the capability to earn his qualifications as an electrician.

Put another way, I am not persuaded on the evidence that the grievor has not displayed the desire and aptitude to learn the electrical trade within the meaning of Rule 27.6 of the parties’ collective agreement.

The final criteria in Edith Cavell Private Hospital, supra, is that the Employer must disclose that reasonable warnings were given to the grievor that a failure to meet the standard could result in dismissal.

In my view, the Employer did not satisfy this requirement. On January 20, 1988 Currie told the grievor verbally and in writing that the Employer expected an immediate and substantial improvement in his performance. If such did not occur, he would be dismissed immediately. He was not dismissed immediately, and although the Employer was critical of the grievor’s performance thereafter, he was never advised again expressly that it was such that he could be dismissed.

It might be argued that that result was implicit in Biln’s meeting with the grievor on June 23; 1988; but still, Biln’s decision to terminate was taken over a year after that meeting. In the interval, no such similar meeting took place nor a warning that he could be dismissed.

I am of the view that any warnings given to the grievor were not sufficiently contemporaneous with the actual decision to terminate as to satisfy this requirement.

In conclusion, I am satisfied that the Employer did not have just and reasonable cause to terminate the grievor’s employment as an electrical apprentice. Pursuant to Section 98 of the Industrial Relations Act, I direct that the Employer reinstate the grievor to his employment as an electrical apprentice. Specifically, this direction to the Employer includes resuming its obligations under the grievor’s apprenticeship agreement.

In mitigation of his damages, the grievor has been working in the construction industry as a drywaller and carpet installer. He testified that if he was reinstated, he would need a period of time to complete his obligations under any existing contracts he had, before he commenced work again with the Employer.

I request that the parties discuss the timing of the grievor’s reinstatement in light of his current contractual obligations, and the amount of compensation payable to him after taking into account the monies earned by him in his contracting business and any other factors that may be relevant to this issue. I retain jurisdiction to deal with any of these issues in order to complete my Award, should the parties not be able to resolve them on their own.

Dated this 4th day of June, 1990.