No one likes to lose a case. But losing a termination of a probationary employee case really stings. The reason is because, subject to any language in the collective agreement, the test for terminating a probationer is less stringent than when terminating a permanent employee (one who has successfully passed the probationary period).
The recent case of GDI Services (Canada) LP 2014 CanLII 65200 (ON LA) and now reported at (2015), 249 L.A.C. (4th) 213 (Hayes) emphasizes that terminating a probationary employee is not without risk or consequence. In this case, two probationary cleaners were “summarily terminated without warning without even a verbal explanation” and on the basis of unsubstantiated, second-hand information from people who did not directly supervise the grievors.
The Arbitrator commented on the test:
There is no question that arbitral review of a probationer termination should be conducted on a lesser standard than the usual 'just cause' standard applicable to permanent employees. Nor do I question, that the familiar 'arbitrary, discriminatory, or bad faith' formulation is the presumptively appropriate baseline test. Nor do I believe that employer review of probationary performance should be encumbered by arbitral imposition of the level of due process safeguards typically required in cases where seniority rated employees are concerned. I also accept that an employer's assessment of "suitability" or "qualifications" should be given a wide berth. I agree as well that there will be many situations where what is expected of a probationary employee should be self-evident.…
The collective agreement in this case also contained a provision that required that “in the exercise of each of their rights and in the administration of this Agreement, they shall endeavor to do so in a fair and reasonable manner”. The arbitrator adopted the reasoning from an earlier case of Professor Weiler where he said that the employer had to "take a reasonable view of the problem and arrive at a thoughtful judgment about what to do after considering the various relevant and conflicting considerations”.
The Arbitrator made a number of stinging findings. Among others, the manager “did not conduct an investigation worthy of the name” and chose tor proceed on the basis of second-hand information “of people without direct responsibility for the grievors, which concerns amounted to little more than patently unreliable gossip”.
The information from those who directly supervised the grievors testified that they “performed well and without incident throughout their probationary period.”
While the collective agreement contained broad language allowing the employer discretion to assess the suitability and qualifications of a probationary employee, the circumstances, taken in their totality, led the arbitrator to conclude that the “litany of failures in this case provides a composite portrait of unacceptable unfairness and arbitrariness.” He went on:
It surely does not require an arbitrator to excuse a decisionmaker who renders himself blind because he chooses to trust those whom the arbitrator finds should not have been relied upon, I cannot accept the Employer submission that, if Greg had spoken to Alex, Susana and the grievors, he would inevitably have reached the same conclusion and that, therefore, his failure to speak to them should be overlooked. Having heard all of the witnesses, I would like to think better of Greg. More generally, acceptance of such reasoning would only serve to invite entirely hypothetical ex post facto 'justifications' of otherwise inexcusable failures of process; if someone is 'obviously' guilty, we still bother with a trial.
The arbitrator reinstated the grievors, with full backpay and seniority status.
The Moral of the Story
The case is a tough one for the employer. But it is a lesson and another case in a long line of cases where arbitrators have found that an incomplete investigation or one lacking in thoroughness and vigour will seriously jeopardize any conclusion that the employer might make. Many years ago I wrote an Article for the Canadian Bar Association called How a Rushed Investigation Can Double Your Trouble. While some law has changed and evolved since I wrote the article, the cases continue to move in a direction that require the employer to be thorough and doggedly investigate any issue that comes to their attention promptly, completely and fairly. A failure to do so will have consequences.