Collective agreement stipulated employer had sole discretion to dismiss for specified part of probation period
An Ontario worker was too far into his probationary period to be terminated without notice under a collective agreement, an arbitrator has ruled.
Jeff Hawkins was hired in April 2012 to refurbish diesel engines for Motor Coils MFG in Brockville, Ont. The company’s collective agreement stipulated new employees would have no seniority for a probationary period of 24 weeks. During the first 16 weeks, the company had sole discretion to dismiss the employee.
Over the next several weeks, Hawkins’ production fell off and he had difficulty meeting quotas. He said his shift had more difficult projects to work with. The foreman also found damage to a hood that left jagged pieces of metal that could injure someone, though no-one saw Hawkins cause the damage and it was on the side where another employee worked.
On Aug. 17, 2012, Hawkins was dismissed for substandard performance, not following instructions, damaging company property and poor attendance. He was given one week’s notice.
The union grieved the dismissal as Motor Coil had not attempted progressive discipline and it argued the company did not have just cause for dismissal. Motor Coil argued it was free to dismiss him since he was still a probationary employee.
The arbitrator found Hawkins had completed more than 16 weeks of his probationary period, but not the full 24 weeks. However, the collective agreement indicated Motor Coil only had the right to dismiss employees at its sole discretion during those first 16 weeks. After that period, the just cause standard would apply to discipline or discharge, even though the probationary period wasn’t over, and the onus was on the company to prove just cause, said the arbitrator.
“There is nothing in this collective agreement which suggests that the parties contemplated a standard other than just cause for the discharge of an employee during the last eight weeks of their probationary period,” said the arbitrator. “If the parties intended for there to be a change after 16 weeks of the probationary period in the employer’s ability to discharge a probationary employee and if they had intended a standard other than just cause to apply they would have used some clear words to indicate that intention.”
The arbitrator found there was insufficient evidence to prove Hawkins was solely responsible for the damage to the hood or refused to follow instructions. In addition, though there were quotas, they were poorly enforced and Hawkins was never warned his failure to meet them would result in his dismissal. Also, Hawkins’ official sick day total was two full days since he started work.