Arbitrator responds to union claim employee entitled to full representation during termination meeting, probationary or not
An Ontario arbitrator has ruled that an employer didn’t breach its collective agreement with when it limited a union steward’s participation to that of an observer during a meeting that ended the employment of a probationary employee.
Rideauwood Addiction and Family Services is an addiction treatment centre in Ottawa. The collective agreement between Rideauwood and its union set out management’s right to terminate a probationary employee at its sole discretion and stipulated that a probationary employee could not grieve their release from employment unless it was the result “of an arbitrary, discriminatory, or bad faith action on the part of the employer.” In addition, it clarified that the doctrine of just cause didn’t apply to a probationary employee’s termination.
The collective agreement also stated that a probationary employee could grieve if thye were discharged or disciplined for grounds protected by the Ontario Human Rights Code.
On Nov. 23, 2022, Rideauwood’s executive director informed the union’s unit steward that a probationary worker would be released from their employment later that day, with the meeting at 1:30 p.m. She also said that the union would receive a copy of the release letter after the meeting.
Union representation
The steward said that the worker needed to have a steward present and an opportunity to consult with them in advance of the meeting. She pointed to the collective agreement article covering union representation, which stated that “employees shall have the right to the presence of a union steward at any time formal discipline may be imposed” and they should be made aware of any meeting that may involve discipline in advance.
The executive director clarified that the probationary release was pursuant to the collective agreement article covering management’s right to release a probationary employee at its discretion and asked not to notify the worker prior to the meeting. She also said that “the union is welcome to attend the meeting as an observer.”
The union steward maintained that “labour legislation still protects employees from arbitrary or discriminatory termination even when in a probationary period” and Rideauwood would still have to demonstrate just cause from the worker’s performance, necessitating the presence of a union representative.
The meeting took place via Zoom with management, the worker, and the union steward. The worker was told that she was being released from employment because she wasn’t a suitable fit for the program. The steward interjected to ask questions, but management didn’t answer them. Management then left the meeting to allow the steward to speak with the worker.
Termination of probationary employee
A letter confirming the termination was sent to the worker and copied to the union steward. On Dec. 1, one week after the termination, the union filed a grievance alleging that Rideauwood had breached the collective agreement’s union representation provisions by restricting the steward’s role to that of an observer and declining to answer questions regarding the reasons for the worker’s termination.
The arbitrator noted that both parties acknowledged the importance of union representation. However, the dispute centred on whether the meeting constituted the imposition of “formal discipline,” which would trigger the right to union representation under that provision.
Rideauwood argued that the release of a probationary employee for unsuitability isn’t disciplinary but is a non-disciplinary determination of fitness for the role. The union argued that the right to representation is fundamental and applies to all termination meetings, regardless of an employee’s probationary status.
The arbitrator distinguished this case from others cited by the union, noting that the collective agreement didn’t provide for union representation in all instances and it drew a clear distinction between probationary and non-probationary employees regarding just cause and grievance rights.
Meeting not disciplinary
The arbitrator found that the meeting in question wasn’t an imposition of “formal discipline.” It was a brief meeting in which the worker was informed of Rideauwood’s decision, with no discussion of misconduct or culpability. The worker was advised of the meeting’s purpose and the presence of a union representative at the start, and the steward was permitted to meet with the worker immediately after the meeting, said the arbitrator.
As the meeting didn’t involve formal discipline, the arbitrator determined that the worker didn’t have the right to union representation at the meeting under the collective agreement. As a result, limiting the steward’s role to that of an observer during the probationary worker’s release meeting didn’t breach the collective agreement, the arbitrator said.
