Probationary employees grieve dismissal

Four probationary employees — Justin O’Leary, John Barbour, David McCormack and Mark Peddle — were fired from Labatt Breweries Newfoundland on March 5, 2014.

The Newfoundland and Labrador Association of Public and Private Employees (NAPE) Local 7004 filed a grievance on their behalf, arguing the workers were discriminated against on the grounds of union activity. The employer raised a preliminary objection that the grievance was not arbitrable because O’Leary, Barbour, McCormack and Peddle were probationary employees and, therefore, did not have access to the grievance and arbitration procedure.

The objection was denied and arbitrator James Oakley proceeded to review the employer’s decision to dismiss the employees to determine whether the terminations were arbitrary, discriminatory or in bad faith.

On the date of their termination, the employees had each worked less than their probationary period of 1,132 hours. There was a labour dispute during the parties’ most recent round of collective bargaining prior to the signing of the current collective agreement. As a result, employees were on strike for about 11 months before returning to work on Feb. 8, 2014. Soon after, the employees in question were fired.

The union argued the four were terminated so persons employed by Labatt as replacement workers during the strike could be hired. When O’Leary, Barbour, McCormack and Peddle were fired, the union said, they were told only that they were unsuitable to continue working.

During arbitration, the employer submitted the employees in question were unsuitable to continue work with the company because they were untrustworthy. According to the employer, they were stealing promotional bottle crowns, wasting company time looking for promotional crowns and failing to follow management direction to not look for or pick up promotional crowns.

After returning to work following the labour action, the employer reviewed video recordings taken by a security camera in the facility. The employer submitted that O’Leary, Barbour, McCormack and Peddle were all seen on tape as having stolen promotional bottle crowns. It is not the employer’s practice to discipline probationary employees and, as a result, the four workers in question were terminated.

The union, however, argued the video recordings did not prove theft by O’Leary, Barbour, McCormack or Peddle, nor did the recordings prove that any of the employees were untrustworthy. There was no discussion about suspicious activity in the workplace following the strike, the union said, and the employees were allowed to return to work for 20 days before being deemed untrustworthy.

The union submitted the intent behind the firings was instead related to anti-union intent.

The employer submitted there was no evidence of anti-union intent, bad faith or arbitrariness behind the dismissals. The employees were engaged in inappropriate and unauthorized activities in the workplace and the employer did not have to prove just cause to terminate a probationary employee.