Probationary employees can be fired, but employer must still make the case

Case shows importance of giving employee a bona fide trial period
By Lorna Harris
|Canadian HR Reporter|Last Updated: 09/20/2004

Laurianne Bouvier was stunned when she received a letter dismissing her from her job. At the time, she was still on probation at Jeanne Sauve Family Services, a centre for troubled young people in Kapuskasing, Ont.

According to the employer, she was fired because she showed up for work with alcohol on her breath, was confrontational with clients and co-workers and did not follow routines correctly. The union launched a grievance on Bouvier’s behalf.

At the subsequent arbitration, Bouvier explained that just three days before she was fired, she had met with Jean Raymond, her supervisor and the person who had originally recommended she be hired. They discussed a client’s complaint about her and how she should handle a problematic situation with a client. She said she had found the meeting with Raymond both agreeable and helpful.

However, Raymond had come away with a very different view. He decided within the next day or so to terminate her employment — according to his records, because of her poor attitude and limited skills.

But, when asked by Bouvier why she had been dismissed, Raymond said he was not required to offer any explanation because she was on probation.

The employer argued it was completely within its rights — as laid down in its collective agreement with its workers — to dismiss Bouvier without just cause and at its sole discretion during her probationary period. She was simply unsuited to the position she had been hired for and that was that.

The union countered that the termination of her employment was both arbitrary and in bad faith. Not only had conflicting reasons been given at various times for her dismissal, but, it claimed, there was no factual basis for these reasons to begin with.

The arbitrator agreed with the union.

The chief problem was that the employer had not given Bouvier a bona fide trial period. The arbitrator explained that the employer failed on two accounts: it did not make “any reasonable effort” to ascertain if its concerns were based on real facts, nor did her managers talk with her about their concerns.

Not enough evidence

Raymond, the supervisor who decided to fire Bouvier, had heard from a co-worker that she had shown up for work under the influence of alcohol but only several weeks after it supposedly occurred. He didn’t ask Bouvier about the allegation. The arbitrator also heard employee accounts alleging Bouvier to work after consuming alcohol. But Bouvier and another co-worker strongly denied these charges. The arbitrator believed them, finding Bouvier had not come to the workplace under the influence of alcohol.

Moreover, Raymond had not allowed her to tell her side of a story about allegedly screaming at a resident one night shortly before her dismissal. Not only that, but at the arbitration hearing, none of the residents allegedly subject to her mistreatment, were called as witnesses.

Her immediate supervisor, Linda Desbiens, said that “from her own observation,” Bouvier had been doing fine in her power struggle situations with the troubled youth she had been dealing with. She had no first-hand knowledge of Bouvier’s apparent performance deficiencies. Instead Desbiens relied on the observations of others to conclude that Bouvier did not take criticism well, had a confrontational attitude and poor intervention skills, the arbitrator noted.

In any event, no one discussed performance problems with Bouvier. The arbitrator observed, “She was given no help whatsoever to improve, if in fact there was some deficiency.” He noted that Desbiens had been instructed to help Bouvier set goals, improve her interventions with clients and learn how to deal with situations more effectively. However, he found that Desbiens did none of those things, but instead “consciously stayed away from discussing them” with Bouvier.

The arbitrator stated bluntly that an employer “can’t leave an employee in the dark about serious concerns the employer has, and then dismiss the employee when the employee fails to live up to the unknown standards.”

Calling the employer’s treatment of her both high-handed and arbitrary, the arbitrator went on to question whether other facts were accurate. There was some evidence that there were problems with Bouvier’s performance during the first month or so, but by the third month, aside from the complaint still under investigation at the time of the dismissal, there was nothing written in her file about any problems. The arbitrator found that there was “no shred of evidence” anywhere to suggest that, “when told what to do, (she) didn’t do it.”

Exercise discretion properly

The arbitrator was hard pressed to find an appropriate remedy given that is was unlikely either of the parties would find a return to the workplace particularly comfortable. As well, Bouvier had moved back to her home town and might not want to uproot herself yet again. He suggested instead a financial settlement.

Although the decision to dismiss an unsatisfactory probationary employee is ostensibly at the sole discretion of the employer, as this arbitration shows, the employer must “exercise this discretion properly.” In a situation like this, to give a prospective permanent employee a proper trial period, the employer is obliged to conduct a reasonable investigation of sub-standard behaviour by collecting clear evidence of misbehaviour rather than relying on hearsay reports.

The employer must also inform the probationary staff member about concerns and allow time for amendment of the unsatisfactory behaviour.

For more information: Jeanne Sauve Family Services and the Ontario Public Service Employees Union , Ontario Labour Code Arbitration, Joseph W. Samuels — Sole Arbitrator, Jan. 6, 2004.

Lorna Harris is the assistant editor of CHRR’s companion publication CLV Reports, a newsletter that reports on collective bargaining and other issues in labour relations. She can be reached at (416) 298-5141 ext. 2617 or lorna.harris@thomson.com.

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