Probation decided by days not total hours: Arbitrator

A fired worker was a probationary employee but his employer didn’t have just cause to dismiss him, an Ontario arbitrator has ruled.

Andre Ouellette was a track maintainer with Ontario Northland Transportation Commission (ONTC), a provincial Crown company providing transportation services in Northern Ontario based in North Bay. Ouellette was hired on June 5, 2019, subject to a probationary period specified in the collective agreement as “120 working days’ service,” during which ONTC could terminate him for cause without investigation.

On Dec. 2, Ouellette called his supervisor to say he would be absent the next day because his truck was getting repaired. The supervisor accepted the absence as Ouellette had called in advance as per company policy.

The next day, Ouellette called again to say the repairs were continuing and he wouldn’t be able to attend work on Dec. 4. He called a third time on Dec. 4, saying that the truck still wasn’t fixed, so he would be absent for a third consecutive day on Dec. 5.

Another supervisor called Ouellette on Dec. 5 to ask him why he had been absent without leave for three days. Ouellette replied that his truck had been in the shop but the supervisor said he needed to be at work “no matter what it took, bus, rent a car, or cab.”

ONTC decided to terminate Ouellette’s employment for cause, as he had completed 103 days of work and was still a probationary employee.

The union contested the termination, arguing that Ouellette wasn’t a probationary employee and deserved an investigation before dismissal. It said that the collective agreement defined a workweek as 40 hours consisting of five eight-hour days, which meant that a workday was an eight-hour period of time. Therefore, the probationary period constituted 960 hours worked. Ouellette had worked some extra hours that brought his total to 984, surpassing the probationary period threshold, the union said, adding that the collective agreement used the term “working” days, not “calendar” days.

The union also argued that ONTC didn’t have grounds for termination, as Ouellette had called his supervisor before each of the days he was absent and was never told his absence wasn’t approved.

The arbitrator found that the collective agreement’s wording was “working days’ service,” meaning it referred to the service — not hours — belonging to 120 days by using the possessive apostrophe. As a result, Ouellette was still on probation when he was dismissed, said the arbitrator.

The arbitrator noted that the union argued this could create a situation where someone could work one hour per day for 120 days and pass their probation while someone who worked 10 hours per day for 119 days would still be probationary, but found that this wasn’t necessarily unfair because some employees might choose to work varied hours.

The arbitrator agreed that the worker hadn’t been told he didn’t have permission to be absent on the first two days, but on the third day a supervisor told him that he needed to be at work. However, termination of a probationary employee should still be related to the employee’s suitability for the job and there was no evidence Ouellette’s reason for being absent wasn’t true or that ONTC looked into it.

The arbitrator determined that Ouellette didn’t willfully breach the attendance policy. There was no evidence to indicate that he was denied leave for the first two days, nor any evidence to indicate he was unsafe or unreliable, said the arbitrator.

“Employers are expected to demonstrate that an employee has a fair opportunity to demonstrate suitability,” said the arbitrator in ordering ONTC to reinstate Ouellette to his probationary employment. “ONTC is therefore required to clearly communicate what standard it expects, record deficiencies it observes and establish that the standards used are reasonable.”