Employer exercised reasonable discretion, but had to allow union to review
Canadian National Railway (CN) has been ordered by an arbitrator to reinstate a worker it determined wasn’t suitable for a position before training ended because it breached a requirement to allow the union a chance to review the worker’s case.
The worker was hired by Canadian National Railway (CN) in August 2021 to be a conductor. She didn’t have the skills for the job at the time, so CN placed her into its training program. In the program, she was supervised by a designated trainer and also evaluated by four other trainers, as well as an “on-the-job” trainer (OJT).
The collective agreement stipulated that employees had to have the appropriate qualifications in order to maintain their employment, as required by the railway employee qualifications standards regulations. They were also required to successfully complete CN training programs and, if CN deemed someone not suitable for employment, the training would be discontinued with both CN and the union reviewing the case for “final disposition.”
The worker’s performance logs generally noted her to be a good learner with a strong work ethic and a positive attitude. She was given regular feedback about areas of improvement, both verbal and by text.
The standard to terminate a probationary employee in a unionized environment is “suitability” rather than just cause, says an employment lawyer.
Areas for improvement
However, In November, the OJT told the worker that she needed to work on her confidence and focus after a “near miss” incident. He later sent an informal email updating her on what was going well and what needed improvement.
In December, the worker received some negative feedback from the OJT about her physical struggles with switches and locks, issues with her knowledge of territory, and her tendency to confirm a plan too many times. A short time later, she was seen crying on the lead. Both the worker and the trainer contacted the OJT about the incident.
The worker said that she was overwhelmed because she had recently left a job of 15 years, the conductor job involved long hours, and she didn’t feel like she was catching onto to all the material she had to learn.
On Dec. 22, the worker went on medical leave due to contracting COVID-19, returning on Jan. 12. The next day, she acknowledged the OJT’s recommendations and said that she was trying hard to improve.
An arbitrator awarded a probationary worker one month’s pay after he was fired after eight days of work.
Worker determined not suitable
On Jan. 22, the worker completed training trip number 33 out of 45 required. The same day, CN determined that she was not suitable for the position of conductor, removed her from the training program, and dismissed her.
On Jan. 24, the worker wrote a letter stating that she believed that her dismissal was arbitrary and discriminatory, saying that there were “different rules for women” depending on where the training was being done.
The union filed a grievance alleging that the worker was harassed and abused on the job, and the abuse was the reason she was crying at work.
CN maintained that the dismissal was disciplinary and did not require an investigation under the collective agreement, as successful completion of training was a precondition to employment and it retained discretion to determine if successful completion of training had occurred. It added that it was an appropriate exercise of discretion to release an “underperforming and unsafe trainee” and the training was similar to a probationary period.
The union argued that the collective agreement did not cover training, length of training, when the probationary period ended, or when training was successfully completed, so the Canada Labour Code should be the authority establishing the probationary period. Under the code, any probationary period had elapsed and the worker was subject to the full protection of the agreement and therefore entitled to an investigation prior to dismissal, said the union.
Employers in Ontario can establish probationary periods longer than three months, but they still have to provide statutory minimum notice of termination after three months of service.
Arbitrary decision, says union
The union also suggested that CN acted in an “arbitrary, bad faith and discriminatory manner” by dismissing the worker, as she hadn’t been told of any serious concerns with her performance or safety issues and had been given positive evaluations by the OJT contact and the trainer. It also argued that it was arbitrary to judge the worker when she had only performed two-thirds of the training trips and hadn’t given her a chance to explain herself so soon after returning from medical leave.
The arbitrator noted that the collective agreement did not define a probationary employee or period, but found that it wasn’t silent on the worker’s status that required the code to be the authority. The agreement stipulated that employees must have the appropriate qualifications to maintain their employment and had to successfully complete CN’s training programs. This meant that the worker had to have the qualifications for the job and complete the training to CN’s satisfaction – the use of the words “must” and “successfully” were key to the context of the agreement’s wording, the arbitrator said.
The arbitrator disagreed with the union’s contention that the passage of time pointed to the end of any probationary period, as the collective agreement did not provide for that. Otherwise, there would be no need for CN to determined the suitability of the worker for employment, said the arbitrator.
The arbitrator also found that the worker’s reason for dismissal was a failure to obtain qualifications rather than any disciplinary reason, so the collective agreement’s provision for an investigation for culpable conduct was not triggered.
If an employer wants to extend a probationary period, it must specifically advise the employee during the probation, says an employment lawyer.
Reasonable discretion
The arbitrator noted that CN was exercising a discretion under the collective agreement, so the decision could not be made in an arbitrary, bad-faith manner. However, this didn’t require CN to wait until a set time or until the end of training to make a decision on suitability – the worker completed 33 of 45 training trips, which was a substantial and reasonable amount upon which to base its evaluation, said the arbitrator, noting that an early evaluation could have been more questionable.
In addition, CN had multiple trainers contribute to the worker’s performance logs, which all demonstrated common issues with the worker’s performance and that the worker was receiving regular feedback that made her aware of the concerns with her performance, said the arbitrator in determining that CN’s assessment of the worker’s suitability was based on a reasonable assessment of performance and aptitude with no evidence of bad faith or discriminatory factors.
However, there was an important factor that blocked the dismissal.
The collective agreement provided that if CN found someone not suitable for employment, both CN and the union were to review the case for “final disposition.” Although the union did not have a role in deciding suitability, the collective agreement allowed it an opportunity to represent the worker’s interested before dismissal. Because CN did not provide this opportunity, it breached the collective agreement, the arbitrator said.
CN was ordered to reinstate the worker and provide her with another opportunity to establish her suitability for the conductor position, and to compensate her for lost wages that she would have earned had she completed her training and worked as a conductor up to the date of reinstatement – reduced by two-thirds for the contingency that she would not have been found suitable in January 2022. See Canadian National Railway v. Teamsters Canada Rail Conference, 2023 CanLII 55322.
