A prospective mill worker was fired during his probationary period after a number of incidents caused the employer to believe the worker was unsuitable.
A prospective mill worker was fired during his probationary period after a number of incidents caused the employer to believe the worker was unsuitable.
B.C. started as a probationary employee at Catalyst Paper on Aug. 20, 2012. B.C. was let go on Sept. 18, 2012, after completing 22 working days of his 30-day probationary period.
The employer said that four incidents during that period caused the employer to conclude that B.C. would not be a suitable employee.
Following two weeks of training and orientation, B.C. began on-the-job training at the paper mill on Sept. 3.
On Sept. 5, B.C. was suffering from a cold and his supervisor gave him permission to leave work early. Two days later, the same supervisor gave B.C. the OK to leave work early again, that time to sort out some banking issues.
On Sept. 17, B.C. was late for his 5:30 a.m. shift. He arrived at the mill on time, however, as he arrived, he discovered that he forgot his security swipe card at home. He retrieved his card and logged in at the mill at 6:05 a.m.
The fourth incident relied upon by the employer occurred later that same morning after B.C.’s trainer reported that she detected alcohol on B.C.’s breath.
B.C.’s supervisor was aware of the trainer’s concerns when B.C. came into his office that morning and asked for permission to take time off during the day to attend his brother’s court appearance.
Alcohol breath
The supervisor was standing two feet away from B.C. when he requested the time off. The supervisor also detected alcohol on B.C.’s breath. The supervisor granted B.C.’s request. The supervisor then arranged for a meeting with shop stewards for later that morning. B.C. was called to the meeting. He denied drinking but said that he had been drinking the night before. B.C. was sent home.
On Sept. 18, B.C. was fired. The only cause cited in the termination letter said that B.C. had not successfully met expectations during the probation period.
The union grieved.
The employer conceded that the first two incidents — when B.C. left work early — were non-culpable. However, the employer said, even if they were non-culpable, B.C.’s actions raised questions about his ability to be available for shifts as necessary. The employer said showing up late for work smelling of alcohol on Sept. 17 counted as two culpable incidents against B.C. These incidents provided the additional basis for discipline.
The employer was aware that it had a duty of fairness towards B.C. as a probationary employee and it was obliged to warn him when he failed to meet performance standards.
However, the employer said, recognizing the need to show up for work on time was common sense. There was no need for reference to a particular standard. Similarly, benchmarks for a positive attitude and the ability to get along with others are not specifically identified for probationary employees but the employer is nevertheless entitled to note a failure in either regard in order to determine a probationary employee’s suitability.
The union agreed that a different standard applied for assessing the performance of probationary employees.
In this case, the union said, the employer had not made a fair assessment of B.C.’s performance.
The Arbitrator agreed.
Duty to warn
As the collective agreement provided no guidance on the standards for terminating a probationary employee, the Arbitrator referenced the applicable case law outlining the employer’s duty to warn, including Skeena Cellulose Inc. and Pulp, Paper and Woodworkers of Canada.
In that decision Arbitrator Bird said: “Where a company decides a probationary employee is unsuitable by drawing inferences from a number of minor incidents and then discharges the employee, the company must be prepared to prove that the probationary employee was properly made aware of the performance standards set by the employer, that the incidents were drawn to the employee’s attention promptly, that he was made aware his performance in each incident was unsatisfactory in relation to the employer’s standard, and that the employee was given a reasonable opportunity, subject to the limitations of the probation period, to improve his performance.”
That did not happen in this case.
Leaving work early with permission did not provide evidence of B.C.’s unsuitability based on an assessment of his attendance or his general attitude, the Arbitrator said.
B.C. had an explanation for his lateness on Sept. 17.
The Arbitrator acknowledged the employer’s argument that B.C. should have done more when he realized he was going to be late. However, the Arbitrator said, the employer was unable to show that it had told B.C. that he could get a temporary pass from the guard shack in those circumstances or that the employer had given B.C. a phone number to contact his supervisor.
There was no evidence that B.C. drank alcohol on the morning of Sept. 17. While his trainer and his supervisor testified that they smelled alcohol on his breath, others who worked with B.C. that morning did not detect alcohol. There was no evidence or testimony to assert that B.C. appeared or acted in any way that indicated impairment.
“The real problem with the Employer’s case is the failure to warn. The Grievor was not given the opportunity to understand and respond to the Employer’s concerns before he was terminated. In my view, the Grievor was not provided with a fair assessment in all of the circumstances of this matter due to the employer’s failure to warn and to provide an opportunity for the Grievor to remedy his deficiencies or to correct any misapprehensions or misunderstandings.”
B.C. was ordered reinstated to his probationary period.
Mark Rogers is a writer and editor who specializes in labour relations and occupational health and safety.
