Collective agreements usually contain a clause preventing probationary employees from contesting the termination of their employment through the grievance procedure. Such a clause, however, is not entirely watertight as its existence does not preclude a grievance being filed if it is alleged that such a termination has violated a rule of public order.
For example, an arbitrator can decide to hear such a grievance if the union claims the employment termination measure violates the duty of good faith applicable to all employers, which is deemed to be a rule of public order.
With that being said, what criteria must be applied by an arbitrator in determining whether an employment termination measure violates the duty to act in good faith?
The answer to that question can be found in the decision handed down on May 9, 2017 by arbitrator François Hamelin in Beaulieu Canada and Union des employés de service, section locale 1585-1.
This was a classic case of an employer terminating a probationary employee because it was not convinced the employee had the desired skills and attitude.
On at least two occasions, the employee delivered disappointing work when assigned simple tasks. The employer therefore had grounds to doubt the employee’s skills and resourcefulness.
Moreover, the employee displayed an authoritarian and confrontational attitude in dealing with some of his co-workers. In the words of the arbitrator, the employee’s attitude “[translation] undermined his ability to respect the company’s values and integrate with existing staff.”
The termination was challenged through the filing of a grievance alleging the dismissal was arbitrary, excessive and contrary to good faith. The union argued before the arbitrator that the action taken by the employer violated the latter’s duty to act in good faith, as such duty is circumscribed in Limocar Estrie inc.,1 and, as a result, the dismissal should be cancelled.
In his decision, the arbitrator starts by explaining that the probation period is a “[translation] period intended to test a new employee’s ability to obtain permanent status in the position for which he was hired.” In this sense, he states that the probation period is an integral part of the hiring process and falls under the employer’s discretionary managerial rights.
The arbitrator adds that, as a consequence, during his or her probation period, the employee is evaluated according to the standards set by the employer, particularly as regards to work quality (know-how) and the ability to work in harmony with others (interpersonal skills).
As for the arbitrator’s role with respect to a collective agreement provision such as the one described earlier, the arbitrator indicates that a termination can only be cancelled if the employer’s decision was made in bad faith—i.e. if it was tainted with dishonesty or grossly erroneous.
In other words, the arbitrator does not have to evaluate the grounds for termination as such; his role is limited to making sure the employer has not committed an abuse of right.
In the case at hand, the arbitrator determined, in keeping with the majority opinion in case law in similar matters, that the employer’s decision was legitimate.
Finally, this decision refutes a recent decision regarding the termination of a probationary employee, namely Limocar Estrie inc.2 The arbitrator in that case affirmed that, in order to terminate the employment of a probationary employee, the employer must ensure that it: (i) has informed the employee of the company’s policies and its expectations for said employee, (ii) has apprised the employee of his or her shortcomings, (iii) has provided the employee with the support needed to remedy the situation and achieve his or her objectives, (iv) has given the employee reasonable time to adjust and (v) has warned the employee that he or she could be dismissed if his or her performance does not improve.3
According to arbitrator Hamelin in Beaulieu Canada, such an approach applies to permanent employees who underperform or are in a trial period in another position and has no application in the case of probationary periods. It is thus reassuring that arbitrator Hamelin rejected the erroneous and rigid approach of Limocar Estrie inc.
In conclusion, it is important to underscore that some arbitrators have used a middle-ground or “Costco light” approach in the case of probationary employees who are terminated for incompetence. For example, arbitrator Lamy, in Commission scolaire New Frontiers,4 states that employers must have made probationary employees aware of what is expected of them and the work to be performed, provided them with orientation and training for the job, given them support during their probation period and informed them of improvements to be made (without, however, having to constantly warn them that they may be terminated if they do not improve).
1 Union des employées et employés de service, section locale 800 and Limocar Estrie inc., 2015 QCTA 385.
3 Commonly referred to as the “Costco” criteria.
4 Union des employées et employés de service, section locale 800 (FTQ) and Commission scolaire New Frontiers, D.T.E. 2012T-397.