Just cause needed to fire probationary worker but standards lowered in previous arbitrations

Lack of suitability for job was enough to terminate truck driver

Just cause needed to fire probationary worker but standards lowered in previous arbitrations

Unsuitability for the job was just cause to dismiss a probationary employee even if the collective agreement didn’t exempt him from the just-cause standard in place for regular employees, according to an arbitrator.

Sadek Baza started work with Aecon Mining on Jan. 11, 2017, to operate large Caterpillar trucks at an open-pit mining operation in Alberta. He began on a probationary period — defined in the collective agreement as 400 hours with possible extensions — during which he was required to take training and site orientation before working on his own.

On Jan. 24, Baza had some issues backing up his large-haul truck into a spot among several other trucks. A senior trainer started directing Baza via radio.

However, Baza reversed the turning directions and the trainer had to tell him to stop and get out of the cab. They discussed what the trainer wanted him to do, but when Baza climbed back in, he continued to do the opposite. The trainer expressed the importance of following directions, but Baza was worried about moving into the space in his blind spot. The trainer finally moved within Baza’s eyesight and motioned him into the parking spot, but later filed a trainer-observation statement about Baza’s problem with backing up the truck and failing to follow directions.

Two days later, Baza was assigned to drive an articulated rock truck — used to compact the ground for other vehicles — but for which Baza hadn’t been trained. Baza got stuck three times over the first few hours and was able to extricate himself twice. However, on the third occasion the environmental health and safety supervisor on site saw him and asked him to come discuss the situation.

They reached an agreement on the process, but when Baza got back in the truck, he didn’t follow the discussed solution and began to aggressively move the truck back and forth. He didn’t respond to the supervisor’s attempts to signal him, so the supervisor jumped out of his vehicle to get his attention.

Baza said the radio was having issues, but the supervisor tested it and it was working. He repeated his instructions but Baza continued trying to power the truck forward. After another discussion, Baza followed the supervisor’s instructions and was able to move the truck.

The supervisor filed a report outlining his concern over the fact Baza hadn’t followed protocol, contacted his supervisor, or radioed in the incident, nor had he followed instructions. Baza also didn’t seem to have understood the directions and had operated the truck in an unsafe manner.

The training supervisor discussed Baza with the superintendent of operations and, based on Baza’s difficulty operating vehicles and failure to follow directions, they decided to terminate Baza for safety issues and a lack of suitability for employment with Aecon.

The union grieved the termination, arguing that Aecon didn’t have just cause to dismiss Baza as there had been no progressive discipline as required by the collective agreement, which didn’t exempt probationary employees from this requirement.

The arbitrator agreed with the union that the collective agreement didn’t preclude probationary employees from the just cause provisions since it was silent on the issue. However, it had been established in jurisprudence that the just cause standard for probationary employees was lower “in recognition of the purpose of the probationary period.” As a result, the judgment of the employer in the decision to terminate a probationary employee carried considerable weight and the standard for just cause for probationary employees was one of “suitability,” the arbitrator said.

The arbitrator found that Aecon had legitimate concerns over Baza’s inability to follow directions, his trouble with operating large trucks, and the safety concerns that came with both. This gave Aecon just cause to find Baza unsuitable for his position and the company acted reasonably in terminating his employment.

Reference: IUOE, Local 955 and Aecon Mining. Mark Asbell — arbitrator. Hugh McPhail for employer. Murray McGown for employee. March 27, 2020. 2020 CarswellAlta 587

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