Highly qualified employee must still show ability to do job during probationary period or else: Board
No exemption from probation expectations
Probationary periods are meant to give the employer a chance to evaluate a new employee’s ability to do the job once hired. There can be legal trouble if the new employee isn’t given a fair chance to prove himself, but on the other hand, the employee must demonstrate he can meet expectations.
A highly skilled employee with valuable experience — such as a helicopter pilot — isn’t exempt from those expectations. That skill and experience won’t save him during the probationary period if he can’t do the job.
An employee on probation must show an ability to do the job. If not, the employer is free to dismiss him before the probationary period is up, regardless of the high level of qualifications the employee has, the Canadian Public Labour Relations Board has ruled.
Robert Dyck was hired by Transport Canada on Sept. 11, 2008, to be a civil aviation inspector for its commercial and business aviation agency based in Vancouver. When he initially applied, Dyck’s application was misplaced and when he called to inquire, the initial screening process had already been done. However, the regional manager was familiar with Dyck and knew he had rare expertise with helicopters, so he accepted Dyck’s application late.
As part of the job offer, Dyck was informed he would have a probationary period of 12 months from his start date of Sept. 22, 2008. Transport Canada’s standard direction for managers was to use the probation to “conduct a more in depth assessment of the employee than was possible during the initial selection process” to determine the employee was suitable for the job.
Not long after he started the job, Dyck told his regional manager that his instrument reading rating (IFR) had lapsed some time ago. The manager was surprised because this was an essential qualification for the position and his resume had said Dyck’s was valid. Dyck said he must have sent an older resume and he was ordered to complete new training and write the exam at his own expense, which he did by late October 2008. The manager later determined this got through the hiring process because Dyck’s application was accepted after the initial screening process.
In December 2008, inspectors were sent to be tested and certified on multi-engine helicopters in Florida. Dyck failed his first test and his supervisor, Shona Hirota, arranged for him to take a second test, which he passed. Around the same time, Dyck also expressed reservations about flying a certain type of helicopter because they were small and he was “a big guy.” Hirota was concerned about whether he was unwilling or unable to fly that type of helicopter because it was used frequently in training but Dyck didn’t give her a firm answer on whether he would, though Dyck claimed he would if given proper training.
Growing list of problems in first few months
By the time of Dyck’s employee performance report in April 2009, this and other issues made Transport Canada determine Dyck was not yet ready for full or partial ministerial delegation, which is authority to make judgments and issue orders in the name of the Ministry of Transport. In particular, it noted the lack of currency in his IFR at the time of hiring and concerns with his decision making on several occasions.
Transport Canada documented the occasions where his decision making showed a need for improvement, including:
•Failing to report an accident in October 2008 that damaged a helicopter he was riding in during a simulated emergency. Industry protocol was to immediately disclose “unusual operational events” that could affect safety.
•Failing to follow clear directions from his supervisor regarding travel arrangement on a trip to Yellowknife in February 2009, resulting in more than $600 in overtime pay.
•Filing an expense claim for an unplanned hotel stay because of weather after attending a course in February 2009. There were no reported road closures and other employees made it home. The claim was denied.
•Failing to follow verbal and written instructions on travel and overtime arrangements for a pilot examiner course in March 2009.
•Arriving late and without having planned for a program validation inspection on a helicopter in July 2009. Dyck had just completed a course for such an inspection and had been told by his supervisor he would be taking part in the in inspection.
•Taking a photograph of a co-worker against her wishes and acting disrespectfully when she requested he delete it.
•Ignoring his supervisor to stop and talk with co-workers while she was waiting to give him some information he had requested.
Hirota met with Dyck about his performance report, concerned about his reaction. However, Dyck surprised her by simply saying, “There’s nothing new here” and “I look like an ass.” Hirota indicated they were trying to get him to improve so he could achieve ministerial delegation status. Dyck said some of the problems were from miscommunication and he would be happy to fly the smaller helicopters “as long as everything is in accordance to the regulations.”
The regional manager also met with Dyck and reiterated Dyck had some areas where he needed to improve, to “pull up your socks” and listen to his supervisor. For many of the issues, Dyck simply said he didn’t know why he did them and for some explained there was a misunderstanding.
In July 2009, another performance review was done, which looked at Dyck’s time with Transport Canada and the issues that had come up with his performance. The report concluded that Dyck had received all the requisite training for the position of civil aviation inspector but he had “failed to demonstrate the required attributes” of the position. Though Dyck insisted each time the issues were raised that he would improve, he failed to show consistent improvement, said the report.
Employee wouldn’t accept responsibility in job that needed a lot of it
Transport Canada determined Dyck had a pattern of behaviour that involved disobedience and disrespect for his colleagues and supervisor. He was initially apologetic when confronted with it, but then would try to justify his misconduct and eventually repeat it, disrupting the department and causing a lack of trust in him by both management and his co-workers. It was recommended that Dyck be rejected on probation for being unable to do the job of civil aviation inspector.
In August 2009, Hirota agreed there were grounds for rejection and prepared a rejection on probation report. On Aug. 24, 2009, Dyck’s employment was terminated effective Sept. 23, 2009.
Dyck claimed his strong qualifications and high requirements for the job required a different standard than other probationary employees. Because he had a lot of experience and was near the end of his career, he argued there should be a more rigorous test for the employer to prove there was justification to terminate his employment. He also claimed management acted in bad faith in several of the incidents, not communicating properly with him and setting him up to fail.
The board found that even though a high amount of qualifications and experience was needed for the position, a probationary civil aviation inspector had to meet certain standards to successfully complete the probationary period, as with any probationary employee. Several of the incidents of concern to Transport Canada showed culpable misconduct and his attempts to explain it away showed a failure to acknowledge the consequences, said the board. As a result, it found the failure to prepare and showing up late for the July 2009 inspection, and the failure to report the damaged helicopter in October 2008 were both employment-related reasons to reject Dyck on probation.
The board found the other incidents showed tendency in Dyck to be reluctant to follow directions and policy, which raised concerns for his continued employment. In addition, the fact he applied for the job while lacking an essential qualification — his lapsed IFR rating — and presenting inaccurate information on his status was serious and he knew the importance of it, particularly since he came to the regional manager with it soon after he was hired.
The board found Transport Canada was entitled to evaluate Dyck’s job performance during the entire 12-month probationary period and make a decision at that point about whether he could do the job. Dyck’s arguments that the employer acted in bad faith to set him up were unsupportable, said the board, and further proved the employer’s observation that he usually tried to justify and downplay his misconduct. In fact, management frequently discussed his need for improvement through performance reports and meetings, giving Dyck ample opportunity to improve, said the board.
“(Dyck) obviously disagrees with his rejection on probation but it cannot reasonably be said that his rejection was a surpise,” said the board. “His performance problems were identified in considerable detail at an early date and they were discussed with him. Unfortunately, although he was given a reasonable opportunity to demonstrate his competence he could not do so.”
The board upheld Dyck’s dismissal, finding his inability to follow directions, poor planning, inability to accept responsibility in a position requiring a high level of it and his application under false pretences were legitimate grounds to reject him on probation.
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