An employee’s certification does not necessarily mean they’re competent to perform the tasks required, according to a recent arbitration ruling that dismissed a grievance alleging wrongful termination and discrimination.
The case involved an individual grievance filed by LIUNA Local 183 against Ontario Transit Group after the company terminated L.E., a 66-year-old Black man who had been referred through the union’s hiring hall to operate a skid steer at a subway construction site in Toronto.
The incident
L.E. was dispatched along with another worker to the Osgoode subway station construction site on Jan. 30, 2024. The company had requested two general labourers from the union, with one qualified in flagging and concrete/steel fixing, and the other qualified to operate a “Bobcat” (also known as a skid steer) and mini-excavator.
On his first day at the site, L.E. admitted to his supervisor that while he was certified to operate a skid steer, he didn’t have much recent experience. His certification from Local 183 dated back to Dec. 9, 2022.
What happened next became the central dispute in the case. L.E. claimed he successfully performed all assigned tasks, including briefly operating the skid steer without any issues or concerns raised by management. However, company witnesses testified that the general superintendent was called to the site specifically because of concerns about L.E.’s ability to operate the equipment.
The general superintendent testified that L.E. had significant difficulty operating the skid steer safely and efficiently, describing his operation as “very jerky, uncontrolled” and noting multiple instances where the machine stalled. He also claimed L.E. was unable to locate the correct button to change attachments and had other operational difficulties.
After witnessing these issues, the company decided to terminate both L.E. and the other worker who had been dispatched with him. L.E. learned of his termination when he reported for his second day of work on January 31.
The test opportunity
Following the terminations, the company and union had a phone conversation where they agreed to give both workers another opportunity to demonstrate their competence on Feb. 1. However, while the union representative informed the second worker about this opportunity, he did not tell L.E., later claiming this was because management had indicated L.E. “had no chance of passing the test.”
The second worker attended the test and, while he also failed to demonstrate competence on the skid steer, was kept on as a labourer because he “demonstrated an ability to follow instructions and a strong work ethic,” according to company testimony.
The arbitrator’s findings
In dismissing the grievance, the arbitrator rejected L.E.’s version of events, finding the company’s account more credible.
“(L.E.’s) testimony that he performed all of his tasks without any concern expressed by the Company does not seem probable unless [the general superintendent], and to a lesser extent, [the health and safety manager], largely fabricated their evidence,” wrote the arbitrator.
The arbitrator determined this was a discharge case rather than simply a rejection of a union referral, noting that L.E. had been hired, received orientation training, and completed one day of work before being terminated.
While acknowledging that construction industry employers have “far less discretion with respect to the selection of their workforce” than those in other industries due to the hiring hall system, the arbitrator found that L.E.’s case wasn’t merely about unsatisfactory performance.
“What distinguishes this case is that the Grievor’s operation of the skid steer was not a question of merely unsatisfactory performance. I am satisfied on the evidence that he simply did not appear to have the capacity to run the equipment,” the arbitrator wrote.
The ruling determined that a warning would have had “no practical utility” in this case because it wasn’t a matter of carelessness or inattention that could be remedied.
“The Union had undertaken to supply a competent skid steer operator. The Employer did not obtain the benefit of that undertaking,” the arbitrator noted, adding: “The Grievor simply could not do what was asked of him.”
Discrimination claim rejected
The arbitrator also dismissed allegations that anti-Black discrimination played a role in L.E.’s termination, finding that the union failed to establish even a prima facie case of discrimination.
The ruling noted that both L.E. and the other worker (who was white) were initially dismissed for incompetence following brief assessments. The fact that only the other worker was later rehired was attributed to L.E.’s absence from the retest opportunity — a situation the company had no knowledge of.
“There is no objective evidence upon which I might draw such an inference,” the arbitrator wrote regarding the allegation of preferential treatment for the white worker. “There is no prima facie case made out that [L.E.] was subjected to anti-Black racism, intentionally or unintentionally (pursuant to unconscious bias).”
Collective agreement provisions
The case turned partly on the interpretation of the collective agreement, which gave management the right “to judge the qualifications of the employees” and to “hire, discharge, classify, transfer, promote, demote, layoff, suspend or otherwise discipline employees.”
While employees had protection against discharge without “reasonable cause,” the agreement contained no specific language describing how the employer might reject a worker referred by the union’s hiring hall.
The arbitrator concluded that no violation of the collective agreement occurred and dismissed the grievance in its entirety.
For more information, see Ontario Transit Group v LIUNA Local 183, 2025 CanLII 43693 (ON LA).
