Probationary U.S. Steel employee fired for performance, not pregnancy: Arbitrator (Legal View)

Concerns with worker’s attitude, performance dated back to start of employment
By Jeffrey R. Smith
|Canadian HR Reporter|Last Updated: 11/17/2012

A probationary employee’s poor performance was the reason for her dismissal, not her pregnancy, an Ontario arbitrator has ruled.

Amanda Ragis was hired by Stelco as a trainee furnace operator in the steelmaking department of the company’s Hamilton plant on Sept. 7, 2010. She was transferred to general labour one month later and the plant was sold to U.S. Steel.

Ragis, as with all new employees, had a probationary period that would last until 520 hours of work were completed.

Concerns about employee from beginning

Ragis and other new hires were assigned a mentor when they first started work and they were also evaluated after 30, 60 and 90 days. Early on, Ragis’ mentor said her work attitude was “questionable” and she should be watched closely.

Her shift supervisor conducted the 30-day evaluation and rated her as “meets job requirements” in four categories and “not meeting job requirements” in three categories. In particular, the evaluation listed concerns about Ragis’ attitude, effort, lack of initiative and lack of co-operation.

There were also incidents where Ragis had to be told to clean her work area and she had an altercation with a co-worker. On one occasion, supervisors were telling employees who had been caught lounging around they needed to get to work, and Ragis was seen smirking at the supervisors while other new employees seemed ashamed and nervous.

On Nov. 7, 2010, there was a labour dispute and the company locked out employees. The steelmaking department was shut down and the managers and supervisors were assigned to other areas. The lockout lasted for 11 months so Ragis did not receive a 60- or 90-day evaluation.

The lockout ended on Oct. 15, 2011, and it was agreed the lockout period would not affect the probationary period of Ragis and other newer employees.

Shortly after employees returned to work, the shift supervisor advised the staff supervisor and HR director that one of the probationary employees wasn’t working out and should be terminated.

After a review of Ragis’ 30-day evaluation and a discussion of the concerns about her, a decision was made to terminate Ragis’ employment since the company didn’t see any indication of improvement.

When the shop co-ordinator was contacted about Ragis, he indicated she might be pregnant.At that point, the HR director felt this had no bearing on the decision because the issue was Ragis’ performance, which dated back to September and October 2010 — having three negative ratings in the 30-day evaluation was considered unusual and particularly bad.

Poor performance or pregnancy?

U.S. Steel terminated Ragis’ employment on Dec. 2, 2011, with Ragis 28 hours short of completing her probationary period. The union grieved the dismissal, claiming Ragis’ pregnancy was a reason for the dismissal because the company didn’t want to face paying increased benefits to Ragis when her probation ended and she was on maternity leave.

It argued Ragis’ pregnancy had come up in a planning meeting between management and the union shortly before the lockout ended, where the company asked if anyone needed special assistance. However, the company claimed the issue wasn’t discussed and the focus of the meeting was the protocol for the return to work, not any specific individuals.

Ragis also claimed she told someone in HR, who had called to advise her of her return-to-work date, that she was pregnant and provided a note from her doctor to the company doctor.

The arbitrator found it was unlikely the union brought up Ragis’ pregnancy in the return-to-work planning meeting. The union members’ notes included a mention of Ragis and her pregnancy, but they seemed to be related to internal union discussions.

Also, the notes of management didn’t have any reference to Ragis and the purpose of the meeting was to make preparations, not discuss individual situations, said the arbitrator. This lent credence to the company’s assertion it wasn’t notified of Ragis’ pregnancy.

Ragis’ account of informing “someone” in HR about her pregnancy was also too vague, found the arbitrator, and the medical documentation she provided would have been confidential and kept in the medical department.

This would not have been available to the supervisors who made the termination decision.

The decision came out of a discussion with department managers and supervisors, not senior management, who would be even less likely to be privy to information from the planning meeting and medical files, said the arbitrator.

“The decision-maker (the HR director) was not aware of the pregnancy at the time the decision was made,” said the arbitrator.

“The absence of such knowledge is fatal to the union’s submission that the reason for the termination was (Ragis’) pregnancy.”

The record of concerns with Ragis’ attitude and work performance dated back almost to the start of her employment and supported the company’s claimed reason for dismissal, particularly the weak 30-day evaluation, said the arbitrator.

There was no indication of bad faith by the company — the evaluation rated Ragis as satisfactory on some things and there was no evidence of any animosity or arbitrary decisions.

Though the lockout prevented 60-day and 90-day evaluations, this was the company’s practice, not a requirement in the collective agreement. Since Ragis was still on probation, there were no further obligations to continue employing her, said the arbitrator.

For more information see:

U.S. Steel — Hamilton Works and USWA (Ragis), Re, 2012 Carswell 11391 (Ont. Arb. Bd.).

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. For more information, visit www.employmentlawtoday.com.

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