Probationary Employees in the Unionized Context
22 Dec 2015
Collective agreements generally set out that probationary employees do not enjoy the same level of job protection that permanent employees enjoy. For example, probationary employees can be terminated without the employer having to establish a "just cause" for his or her dismissal.
However, the common law has set out that although an employer may terminate a unionized probationary employee for less than "just cause" they still cannot terminate the probationary employee "just because." For example, a unionized probationary employee must not be terminated in an arbitrary or discriminatory fashion nor can the employee be terminated in bad faith.
These issues are exemplified in the case below.
The Case of Jimenez and Jimenez
Mr. Nander Jimenez ("Nander") and Ms. Belkis Jimenez were hired by GDI Service (Canada) LP ("GDI") as unionized probationary employees on December 9 and December 11, 2013, respectively. They were terminated by Gregory Knowlton on February 27, 2014, prior to the conclusion of their ninety (90) day probationary period.
The termination was grieved by their union and the decision was arbitrated as GDI Services (Canada) LP v Labourers’ International Union of North America, Local 183, 2014 CanLII 65200 (ON LA). Evidence was provided by witnesses and amongst the witnesses were the terminated unionized probationary employees, Alejandra Castillo - a supervisor who worked directly with the probationary employees, Susana Tavares - a forelady who worked directly with the probationary employees, Aura Sousa - a forelady who did not work with the probationary employees and Dorothy ‘Brenda’ Brooks - a supervisor who did not work with the probationary employees, and Greg the manager.
The arbitrator provided an acute account of the standard by which to assess such a decision to terminate unionized probationary employees during a probationary period.
The test employed "is whether the termination was effected in an arbitrary, discriminatory or bad faith manner". The union stressed that the onus should be on the employer, GDI, to prove "just cause" because the parties agreed contractually to "exercise their rights in a fair and reasonable manner" (para 73). GDI argued, however, that the test of arbitrariness searches for something that is "flagrant, capricious, totally unreasonable, or grossly negligent". This is to allow the employer wide-berth in governing their affairs with regards to probation workers. GDI relied on Ontario (Ministry of the Attorney General)  OLRB Rep. Jan/Feb 133 to justify its stance and as such stated that the onus should fall on the union to prove arbitrariness.
The arbitrator agreed with GDI in that a disposition naming the termination unfair for lack of cause would elevate the standard of review of the employer’s actions from arbitrariness to "just cause," which would conflict with the precedent established for wide discretion in the termination of unionized probationary employees under a probationary period.
The arbitrator highlighted a case referred to by GDI in their submissions, IKO Industries Ltd. (2000). IKO sets out that in order to demonstrate arbitrariness it is insufficient to simply show that the employer’s calculations or assessments about the terminated employee were incorrect. One must demonstrate that the decision came from improper motives or a wholly unreasonable/unreliable source of information.
However, the arbitrator did note that although the fact that the contract stipulates that the parties agree to "exercise their rights in a fair and reasonable manner" does not raise the standard to one of "just cause" or even analogous to "just cause," it does, however, add something to the issue at hand. That "something" is all the contextual details that colour the case. The arbitrator made this notion clear as he stressed that the decision maker must attend with a keen eye to all "relevant and conflicting considerations".
In the case at hand, the arbitrator made clear that the evidence relied upon by Greg in order to justify the termination was patently unreliable. As such, the arbitrator affirmed that GDI had acted in an unreasonable, unfair and arbitrary manner. The arbitrator ruled in favour of the unionized probationary employees who were reinstated to their positions.
Unionized probationary employees may have less job security than unionized employees who have passed their probation period successfully. However, although the law provides the employer with wide discretion when it comes to terminating the employment of unionized probationary employees, the discretion is not total, as it must not result in a decision that is unfair, unreasonable or arbitrary. In order to assess the quality of such a decision, an arbitrator will look to whether the decision was based on improper motives or rather on a patently unreliable or unreasonable source of information. That’s a big deal because, unlike a non-unionized employee who is terminated within the probation period, a unionized employee may be entitled to reinstatement leaving its non-unionized counterpart entitled to pay in lieu of notice only.
Whether you are an employer seeking advice on a potential termination of a probationary employee, or you are a probationary employee who was recently terminated, it is crucial to remember that the process by which such a decision was reached is vital in determining its legal validity. As such, you should seek the advice of a labour or employment law professional to assess the particularities of your case and apply the most recent case law in protecting your interests and getting you the outcome you deserve.
The above article is for general information purposes only and does not constitute legal advice. If you have concerns with regard to the foregoing issues, please make an appointment with one of our lawyers or a qualified legal practitioner elsewhere.