An Ontario arbitrator has ruled that the union representing a probationary employee terminated by Mainstay Community Housing can proceed with claims under the Human Rights Code and the Occupational Health and Safety Act (OHSA), and that the employer must present its case first when hearings resume.
The decision arises from the termination of R.K., a temporary worker serving a six-month probationary period, who was dismissed on Dec. 4, 2024. The Service Employees International Union (SEIU), Local 1 Canada, filed a grievance alleging the termination was discriminatory and retaliatory, and that R.K. was denied union representation in violation of the collective agreement.
While the arbitrator confirmed that he has no jurisdiction to determine whether the employer had just cause to terminate the probationary employee, he found he does have authority to consider whether the termination was arbitrary, discriminatory, or in bad faith — and whether Mainstay failed to uphold R.K.’s right to union representation under Articles 9.01 and 12.03 of the agreement.
No jurisdiction over just cause, but Code and OHSA claims can proceed
The employer argued that as a temporary and probationary worker, R.K. was excluded from just cause protections and could not grieve her dismissal under Article 4, Article 12.06, or Article 14.03 of the collective agreement. The arbitrator accepted this, stating, “I have no authority to consider whether her release or termination met the standard of just cause.”
However, both parties agreed the arbitrator could consider whether the dismissal contravened the Human Rights Code or section 50 of the OHSA, which prohibits reprisals against workers for raising safety concerns.
The employer also contended that the union could not rely on collective agreement provisions about union representation, because the termination was not disciplinary in nature. The arbitrator rejected that argument, finding that the rights in Articles 9 and 12 apply even to temporary employees and are not limited to just cause terminations.
“It is far from clear that the Grievor’s termination was non-disciplinary,” the arbitrator noted. “In any event, the issue of the denial of the Grievor’s representation rights may be a factor in concluding whether the Employer’s discharge or release of the Grievor was arbitrary or made in bad faith.”
Employer ordered to present its case first
The arbitrator also ruled on a key procedural question: which party should lead evidence when the hearing resumes.
Although the union bears the burden of establishing a prima facie case of discrimination or reprisal, the arbitrator found it appropriate to depart from the usual order of proceedings and require the employer to present its evidence first. That decision was based on two main factors: the employer is in the best position to explain its decision to terminate the employee, and it is already well aware of the union’s case.
“There is a sufficient documentary record,” the arbitrator said, and the union has provided detailed particulars of the incident at the heart of the grievance—a confrontation between R.K. and a tenant on Nov. 5, 2023. The employer’s manager allegedly dismissed R.K.’s safety and human rights concerns following the incident and later told her she might not be suited for the job.
On Dec. 4, 2024, R.K. was called to a meeting at the employer’s head office and terminated without union representation. She was allegedly told, “You have failed to meet your goals,” and when she asked what goals those were, the employer representative replied, “We do not have the time to go into this” and “You are just not a good fit.”
The arbitrator said these facts provide a clear and manageable framework for the hearing, distinguishing the case from others cited by the employer where allegations were vague or overly broad.
“In these circumstances it makes sense that the Employer put all its information forward first, and the Union respond. I so direct,” he wrote.
While the decision precludes the employer from bringing a non-suit motion, the arbitrator said he would allow the employer to request reply evidence, if appropriate.
Representation rights and employer conduct to be examined
The arbitrator’s interim award reinforces that even probationary employees are entitled to protection from discriminatory or retaliatory terminations, and that employers may be held accountable for failing to uphold union representation rights—even if the underlying dismissal is not subject to challenge under just cause provisions.
The ruling confirms that the hearing will continue, with the employer ordered to lead its evidence and the union permitted to respond. Any additional factual allegations not already disclosed must be provided by the union in writing 15 business days before the next hearing date.
The outcome of the case may depend in part on whether the employer’s decision to terminate R.K. was influenced by her race, her response to the tenant incident, or her attempts to raise safety concerns. The arbitrator has not yet made any findings on the merits of the grievance.
For more information, see Mainstay Community Housing v Service Employees International Union, Local 1 Canada, 2025 CanLII 47945 (ON LA).
