Canadian Labour Reporter

LABOUR FORCE NUMBERS Demotion deserved after previous discipline didn't help Employer remains entitled to evaluate, discharge new hires decide whether it wished to retain an employee in the plant, the de- partment, or the job concerned." Algoma hired a new worker in 2018 to be a production operator. The worker's duties involved op- erating a crane in the mill's plate and strip department, where there was heavy machinery in a safety-sensitive industrial envi- ronment. About two months into the worker's employment, on Nov. 22, a coworker whose job was to assist him in loading cut material for transfer wasn't able to contact him over the radio. A supervisor overheard the coworker's efforts and went to see what was going on. The supervisor observed the worker with his feet up and his seat tilted back. He tried to rouse the worker on the radio and by whistling but the worker only stirred when the supervisor blast- ed an air horn. The worker said he was fine and "keen to return to work," so the supervisor told him to resume work through the end of his shift. The supervisor gave the worker a "record-keeping" slip but discipline was beyond his authority. Four days later, the worker at- tended a meeting with Algoma's labour relations manager and HR advisor, where he admitted to falling asleep in his crane, say- ing it was because of how hot the crane cab was. He was asked if he had any substance abuse issues because coworkers had men- tioned he had smelled of alcohol at times. The worker said no and thought the smell may have been from beer he'd had the night be- fore. After the meeting, the worker spoke privately with the labour relations manager and said he would seek treatment in order to get his job back. The manager said that wasn't the right reason to seek treatment and the worker said she had misunderstood him. Algoma Steel terminated the worker's employment for falling asleep on the job only two months into his employment. The union grieved the dismissal, arguing Al- goma didn't follow the proper dis- charge process requiring union representation and there was no such thing as a probationary employee under its terms. It also said the dismissal was discrimina- tory because Algoma should have been aware the worker may have had a problem with alcohol. The arbitrator disagreed with the union on all counts. Though the collective agreement didn't use the specific term "proba- tionary employee," it set out an "establishment period" for new hires that was intended to allow Algoma to determine whether it wished to retain an employ- ee. Therefore, it was within the company's rights to decide if the worker was fit for continued em- ployment. There was no require- ment to follow normal discharge procedure or provide union rep- resentation in the meeting, said the arbitrator. "The employer has complete discretion to end an employee's probationary employment sub- ject only to the requirement that the decision is not arbitrary, dis- criminatory or made in bad faith," said the arbitrator. The arbitrator also found there was no discrimination, as the worker denied having a sub- stance abuse problem and his conversation with the labour relations manager added more doubt to the issue. He did enter a residential treatment program for a substance abuse disorder in January 2019 and declared he had a disability, but this was all after the fact and not something Algoma should have considered without medical evidence, the arbitrator said in dismissing the grievance. Reference: Algoma Steel and USW. Dana Randall — arbitrator. Jennifer Hodgins for employer. Marino DeGregorio for union. May 21, 2020. 2020 CarswellOnt 7244

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