Just cause not needed to fire probationary employee but good faith is: Court
A Saskatchewan company that fired an employee one week after his hire didn’t need to have just cause but its failure to give the employee a reasonable opportunity was bad faith, the Saskatchewan Court of Queen’s bench has ruled.
Sherwood Co-operative Association operated various retail operations in the Regina area, all of which were unionized. On March 16, 2009, Sherwood hired a yard attendant/driver in its Regina lumberyard. However, only a week later, the employee was brought into the manager’s office and terminated for “being very slow and having difficulties with customers.”
The fired employee filed a grievance, claiming he was treated unfairly and fired without just cause. Sherwood argued all employees began their employment with the company with a probationary period of 90 days. Under the collective agreement, employees could be dismissed during the probationary period “without reference to seniority.” Since this particular employee was on probation, it said it didn’t require just cause as long as it gave the employee a reasonable assessment on his ability to do the job.
The union countered that there was no other reference to the lack of rights of probationary employees other than that one article and nowhere did it specify probationary employees could be dismissed without just cause. All other references to dismissal in the agreement referred to just cause, said the union.
The Saskatchewan Labour Relations Board found Sherwood had an obligation under the collective agreement to prove just cause or at least that the employee was unsuitable for the job. It agreed with the union that the collective agreement implied probationary employees had all rights similar to other employees except for the removal of seniority rights.
Given the brief time between the hiring and termination, the board also found Sherwood acted in bad faith in not properly assessing the employee. Sherwood was ordered to reinstate the employee with no loss of pay or benefits.
Sherwood appealed to the Saskatchewan Court of Queen’s Bench, which disagreed with the arbitration board’s interpretation that the collective agreement gave the same rights to both probationary and regular employees. The court found the agreement outlined many seniority rights for regular employees, including sick leave, group dental coverage, long-term disability and health care benefits. Probationary employees didn’t receive these benefits until the conclusion of their 90-day probation.
“Probationary employees do not have the right to apply for promotions or to fill vacancies, to exercise rights of transfer, preferential scheduling, parental leave, other leave of absences, sick leave nor any other benefits outlined (in the agreement). Yet, this board concluded that they did have the right other seniority-rated employees have namely, the right to protection against termination except for ‘just cause,’” said the court.
However, the court agreed with the board that Sherwood acted in bad faith. It found Sherwood didn’t give the employee proper orientation and training during his short tenure and failed to establish he was unsuitable for the job. Both the board and the court agreed the real reason for the termination was related to legal problems the employee had experienced outside of work.
