Where language may seem to block a grievance by a dismissed probationary employee, a grievance may still be allowed to proceed if the Union can show a prima facie case that the Employer has acted arbitrarily, illegally or if the decision to dismiss has been made in bad faith or is discriminatory.
In OPSEU (Bouvier) and Services Familaux Jeanne Sauvė Family Services, award released January 6, 2004, (Samuels) the most significant contract language relied upon by the employer stated:
An employee who has not completed his probationary period may be discharged without just cause and at the sole discretion of the Employer.
The Employer relied on this language to dismiss the Grievor without providing any reason to her or the Union.
This Employer objected to an arbitration on this dismissal and the parties first argued whether the Union had a prima facie case that the employer was acting arbitrarily. The Union, represented by Regional Grievance Officer, Will Presley, won the first round, and the case proceeded on its merits.
The arbitrator held that a decision to dismiss a probationer must have been made “after giving the employee a bona fide trial during his probationary period” and “the termination of the services of the probationary employee must have been for a reason which was, in the view of the company, an adequate one and which was related to the failure by the
probationary employee to meet the standards required by the company.”
The arbitrator further stated:
In my view, the Employer did not give Ms. Bouvier a bona fide trial. I say this for a number of reasons.
Firstly, the Employer deliberately did not raise with her major concerns about her performance and did not make any reasonable effort to ascertain if some of these concerns were based on real facts….
Secondly, a bona fide trial involves judging the employee after a reasonable effort to ascertain the real facts. Even though the decision is left “at the sole discretion” of the employer, the employer must exercise this discretion properly. It is arbitrary to simply accept as fact incidents or reported conduct. The employer must base its
decision on the facts it finds after a reasonable investigation.
The arbitrator found the Employer’s conclusions were arbitrary and that the case should proceed to determine the appropriate degree of compensation payable to the grievor.
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