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Probationary Employees

Many collective agreements state in clear black and white that management shall have complete freedom to discharge probationary employees.  There are several good reasons to take up the grievance of a fired probationer, regardless of such language.

 First, the union owes a legal duty of fair representation to all bargaining unit employees.

 Second, other legislation may over-ride the clause.  Suppose a probationer exercised the right to refuse unsafe work and was fired in reprisal.  This would be contrary to the occupational health and safety act.  Suppose a woman worker on probation objected to sexual harassment was fired in reprisal. This would be contrary to the human rights act.  The union must fight in cases like these.

 Third, collective bargaining legislation itself may have something to say.  For example, in Ontario, one of the changes to the Ontario Labour Relations Act (Bill 40) under the NDP government, had to do with the right of probationers to grieve and go to arbitration on a firing.

 Section 43.1 (1) and (2) read as follows:

 43.1 (1)  Every collective agreement shall be deemed to provide that no employee shall be discharged or disciplined without just cause.

 (2)  Despite subsection (1), the parties may agree to establish a probationary period for new employees and a lesser standard for discharging employees may apply during that period.

 This is now repealed (thanks to Conservative goverment Mike Harris!) but it is useful to know that the Ontario law once said:

       Probationary employees had the right to grieve and the union may have their discharge arbitrated.

If the collective agreement was silent on the standard of cause for the discharge, that standard would be “just cause”.

 The employer could demand a lesser standard of cause for firing a probationer, but if the union agreed to a lesser standard, a lesser standard cannot mean there is no standard!

The following is acceptable if the union is prepared to agree to a lesser standard of cause for discharge of probationers:

 The termination of a probationary employee shall be considered for just cause unless the termination is contrary to the provisions of the Human Rights Code, or if the termination is arbitrary, discriminatory, or in bad faith.

 

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