‘Probationary’ not in collective agreement

Employer remains entitled to evaluate, discharge new hires

‘Probationary’ not in collective agreement

An Ontario company was entitled to dismiss a worker during an “establishment period” under the collective agreement without evidence the worker had a disability, an arbitrator has found.

Algoma Steel is a steel manufacturing company operating a steel mill in Sault Ste. Marie, Ont. The collective agreement with its union states that employees become “established” after working 1,040 hours for the company, and “the purpose of the establishment period is to allow the company to decide whether it wished to retain an employee in the plant, the department, or the job concerned.”

Algoma hired a new worker in 2018 to be a production operator. The worker’s duties involved operating a crane in the mill’s plate and strip department, where there was heavy machinery in a safety-sensitive industrial environment.

About two months into the worker’s employment, on Nov. 22, a coworker whose job was to assist him in loading cut material for transfer wasn’t able to contact him over the radio. A supervisor overheard the coworker’s efforts and went to see what was going on.

The supervisor observed the worker with his feet up and his seat tilted back. He tried to rouse the worker on the radio and by whistling but the worker only stirred when the supervisor blasted an air horn. The worker said he was fine and “keen to return to work,” so the supervisor told him to resume work through the end of his shift. The supervisor gave the worker a “record-keeping” slip but discipline was beyond his authority.

Four days later, the worker attended a meeting with Algoma’s labour relations manager and HR advisor, where he admitted to falling asleep in his crane, saying it was because of how hot the crane cab was. He was asked if he had any substance abuse issues because coworkers had mentioned he had smelled of alcohol at times. The worker said no and thought the smell may have been from beer he’d had the night before.

After the meeting, the worker spoke privately with the labour relations manager and said he would seek treatment in order to get his job back. The manager said that wasn’t the right reason to seek treatment and the worker said she had misunderstood him.

Algoma Steel terminated the worker’s employment for falling asleep on the job only two months into his employment. The union grieved the dismissal, arguing Algoma didn’t follow the proper discharge process requiring union representation and there was no such thing as a probationary employee under its terms. It also said the dismissal was discriminatory because Algoma should have been aware the worker may have had a problem with alcohol.

The arbitrator disagreed with the union on all counts. Though the collective agreement didn’t use the specific term “probationary employee,” it set out an “establishment period” for new hires that was intended to allow Algoma to determine whether it wished to retain an employee. Therefore, it was within the company’s rights to decide if the worker was fit for continued employment. There was no requirement to follow normal discharge procedure or provide union representation in the meeting, said the arbitrator.

“The employer has complete discretion to end an employee’s probationary employment subject only to the requirement that the decision is not arbitrary, discriminatory or made in bad faith,” said the arbitrator.

The arbitrator also found there was no discrimination, as the worker denied having a substance abuse problem and his conversation with the labour relations manager added more doubt to the issue. He did enter a residential treatment program for a substance abuse disorder in January 2019 and declared he had a disability, but this was all after the fact and not something Algoma should have considered without medical evidence, the arbitrator said in dismissing the grievance.

Reference: Algoma Steel and USW. Dana Randall — arbitrator. Jennifer Hodgins for employer. Marino DeGregorio for union. May 21, 2020. 2020 CarswellOnt 7244

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