The company was able to show sufficient reasons to terminate probationary employee. Union was unable to show evidence of a reprisal.
Fired four months into his six-month probationary period, an installation worker was terminated soon after uncovering asbestos insulation during a retrofit. The union alleged that the worker was improperly discharged for raising health and safety concerns. The employer said it was entitled to dismiss an unsuitable worker during the probationary period.
Hired in May 2008, A.J. was put to work with eight other workers on project Firestop. Their job was to insulate a commercial building with fire retardant matting. The workers were told that if they encountered asbestos they were to stop work and notify their manager.
In September 2008, A.J. and his partner came across asbestos in the area where they had been assigned to work. They stopped work, notified their manager and were then reassigned to work in another area.
On September 16, A.J. was fired. The letter of termination stated that the employer had assessed A.J. during the probationary period. The employer had come to the conclusion that A.J.’s “abilities and aptitudes” did not satisfy the requirements of the position. The union grieved. The union said A.J. was terminated for raising concerns about his health and safety related to exposure to asbestos.
The collective agreement contained protections for probationary employees against arbitrary or bad faith terminations and afforded them access to the grievance procedure, albeit according to lower standard of proof.
A terminated probationary employee was entitled to a notice of termination outlining the reasons why he or she was found to be unsuitable.
Argument for just cause standard
The union said that while a lesser standard of proof is generally required to terminate probationary workers, in this case the just cause standard was applicable because A.J. was not fired because of his inability to do the job.
In addition, the termination was in violation of the collective agreement because the employer did not provide reasons for the termination.
The employer did have reasons. Before the Arbitrator, A.J.’s manager presented contemporaneous notes outlining five reasons why A.J. was unsuitable for the job.
A.J. used his company-supplied cell phone excessively and for personal use. He was late and neglected to call in. On three occasions his manager reported smelling alcohol on his breath. He failed to pass a training test and, on one occasion, the manager was unable to find him during the course of a workday.
There was no evidence to substantiate A.J.’s allegation that he was fired for having brought up the asbestos issue. The record showed, the employer said, that once the problem was discovered, it was dealt with according to established policy.
The Arbitrator affirmed that despite the lesser standards involved in the discharge of a probationary employee, it was acknowledged that bad faith and unlawful terminations are not acceptable and that employers are not permitted to act in an arbitrary or discriminatory manner.
Onus on the union
However, the onus is on the union to establish bad faith, arbitrary, unlawful or discriminatory treatment, the Arbitrator said.
“In the instant case, the union argues that, even though the grievor is a probationary employee, the just cause standard is the appropriate one. It makes the submission on the basis that, in its view, unsuitability must mean that the grievor was incapable of doing the job. Unfortunately, the arbitral authority cited by both parties does not support that argument.”
In fact, the Arbitrator said, the employer is entitled to weigh numerous factors when assessing suitability.
“These include, and this list is by no means exhaustive, character, compatibility with fellow employees, potential for advancement, as well as insubordination, theft, absenteeism, or sabotage of company property.”
The manager had reasons to justify her decision with respect to A.J.’s suitability, the Arbitrator said.
“[T]here is no evidence that the motive for the discharge during the probationary period was the result of the grievor raising the asbestos issue as he did. To the contrary, the evidence was clear that when the grievor and his partner raised the concern, it was immediately dealt with by [the manager] without anything being said.”
The reasons supplied on termination could have been more “fulsome,” however, the Arbitrator said, “they were consistent with reasons given in the past and more importantly, I do not find any prejudice to the union for the lack of expanded reasons.”
The union failed to prove that the employer acted unlawfully, arbitrarily, in bad faith or in a discriminatory manner, the Arbitrator said.
The grievance was dismissed.
