The Nova Scotia Case of the Unionized Employee Who Didn’t Work a Single Day: Gentleman v. Kings (County)

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Quick Hits

• The Supreme Court of Nova Scotia confirmed that accepting a unionized position makes an individual an employee under the collective bargaining agreement, even if the employee never worked a single day.
• The court ruled that the plaintiff’s dispute over her rescinded job offer falls within the exclusive jurisdiction of labour arbitration, not the court.
• Employers may want to note that the employment relationship and associated rights under a collective agreement may commence as soon as an offer for a unionized position is accepted.

The Offer and the Withdrawal

Beverly Margaret Gentleman had been offered a full-time permanent position as a planner with the Municipality of the County of Kings, with a start date of January 18, 2023. An email was sent to all municipality staff and the union president, announcing that Ms. Gentleman would be joining the team.

Then, just two days before she was set to begin, the municipality rescinded the offer on January 16, 2023, citing that the “match was not appropriate” due to a “different planning approach.” The municipality pointed to a clause in the offer letter stating that

“Offer of employment is conditional upon the completion of all applicable background checks and confirmation of credentials, the results of which must be satisfactory to the employer or will result in termination of your employment.” (Emphasis in the original.)

The Battle Over Jurisdiction

Ms. Gentleman brought a claim against the municipality for wrongful dismissal, breach of contract, breach of the duty of honest and good faith contractual performance, and negligent misrepresentation. She wanted her case to be heard at court and not through a labour arbitrator. Ms. Gentleman argued that the grievance and arbitration process would not provide her with an effective remedy because she was out of time to file a grievance.

The municipality filed a motion to dismiss, arguing the dispute belonged in the exclusive jurisdiction of a labour arbitration, not court.

The court was left to decide the correct avenue for Ms. Gentleman and zeroed in on the language of the collective agreement:

• Article 4.1 defines “Employee” as an employee in the bargaining unit and covered by the collective agreement.
• Article 4.5 defines a probationary employee as “an Employee who has been hired but has not completed the six-month probationary period.” (Emphasis in the original.) Article 4.5 goes on to state that a probationary employee may be dismissed at any time during the probationary period without the employer having to establish just cause, and that a probationary employee is covered by the collective agreement but for certain exceptions.
• Article 7.3 states that “[a] Probationary Employee may be dismissed during the Probationary period without the Employer having to prove just cause, and in such cases, the Probationary Employee may access the grievance and arbitration procedure, but arbitral review shall be restricted to whether the Employer has complied with Article 5 (No Discrimination) of this Agreement.” (Emphasis in the original.)

The Verdict

That language proved decisive. The collective agreement draws a clear distinction between being hired and actually commencing work, suggesting that employment status can exist before the first day on the job.

The court concluded that the essential character of the dispute, the municipality’s decision to terminate Ms. Gentleman’s employment and the manner of termination, falls within the dispute resolution regime.

Ms. Gentleman was hired for the full-time permanent position of planner. The position of planner is in the bargaining unit and is covered by the collective agreement. Ms. Gentleman was an “Employee” within the meaning of the collective agreement as she fell within the definition of “Probationary Employee.”

Once Ms. Gentleman accepted the offer for a unionized position, she became an employee under the collective agreement. Since the collective agreement allowed probationary employees to access grievance and arbitration procedures, the dispute belonged in labour arbitration, not court.

The court emphasized that the fact that a claimant may be out of time to file a grievance does not give jurisdiction to a court to hear a civil claim that would otherwise have been within the exclusive jurisdiction of an arbitrator. Arbitrators do have the ability to extend deadlines when there are reasonable grounds and no substantial prejudice to the parties.

The Takeaway

Employers may want to note that the moment an offer for a unionized position is accepted, the employment relationship and all the rights and obligations under the collective agreement may begin.

Ogletree Deakins’ Canada offices will continue to monitor developments and provide updates on the Cross-Border and Traditional Labor Relations blogs as additional information becomes available.

Perry Yung is an associate in the Toronto office of Ogletree Deakins.

Michelle Do, a law clerk in the Toronto office of Ogletree Deakins, contributed to this article.

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