Vet was resistant to training and complained of harassment by supervisors but continued to make same mistakes
No need for cause during probation
New employees usually begin their employment under probation for a set period of time during which employers can evaluate the employee’s performance before making her a full-fledged employee. Probationary employees don’t have a lot of the same protections as regular employees and employers usually have more leeway in dismissing them, as long as it is for a legitimate employment-related reason.
Decision-makers are unlikely to second guess an employer’s right to assess an employee’s ability to perform the necessary duties of a job, as long as there’s no bad faith or non-job-related reason underlying it. The employee in the case below found out that no improvement in almost seven months of probation — and being difficult on top of that — didn’t leave him in a good position for continued employment.
A federal agency had the right to terminate an employee who showed little improvement or ability to do his job after more than six months on probation, the Canadian Public Service Labour Relations Board has ruled.
Dr. Sameh Salib was a veterinarian originally from Egypt who immigrated to Canada. Though his training was in Egypt, he received a certificate of qualification from the Canadian Veterinary Association in 2002 that qualified him to practice in Canada after passing certification exams.
On March 9, 2007, Salib was hired by the Canadian Food Inspection Agency to work at a hog plant in Brandon, Man. His duties included inspecting animal unloading and penned animals and inspecting carcasses to determine if they were fit to be used as food. Salib had no previous experience working with hogs and hog production but the agency thought he was enthusiastic and eager to stay at the plant, which was a priority since it was having trouble recruiting and retaining entry-level veterinarians.
On-the-job training during probationary period
As was normal practice, Salib started working on a probationary period so the agency could evaluate his skills and receive on-the-job training. The supervising veterinarian at the plant, Dr. Yvette Neumier, was in charge of the training, which focused on teaching new hires how to apply their veterinary skills to food hygiene by checking for and identifying diseases that could affect fitness for consumption. Normally, Neumier found probationary employees were capable of working on their own after two weeks of training, with the longest going five weeks.
Salib started working May 7, 2007, and was given a tour of the equipment, facility and a list of reading material. However, Neumier found she often had to repeat herself when instructing Salib and he sometimes made incorrect diagnoses. He often had difficulty differentiating between healthy and diseased tissue, which was a major concern.
Neumier told the agency’s inspection manager of her concerns with Salib’s performance and, by his sixth week of training, she didn’t feel he was capable of working alone. She said she never saw him read and wondered if he had vision problems.
Neumier tried retraining Salib but found he was often argumentative. When she went on a vacation, she arranged for other veterinarians to supervise him since she didn’t trust him on his own. The others also observed his problems with misdiagnosing or missing serious conditions in the hogs.
When Neumier returned from vacation on June 22, she intended to meet with Salib to discuss his problems. However, Salib found her first and said he wanted to file a harassment complaint against one of the veterinarians who had been supervising him in Neumier’s absence. Salib claimed he had been insulted when the veterinarian said if he was cold, he should go back to Prince George after Salib wanted to raise the temperature in the plant. Upon further investigation, Neumier found Salib’s request unreasonable because changing the temperature affected the entire plant and there were coats available.
Resistant to training
Neumier emailed Salib a list of areas where he needed to improve. When they met to discuss the concerns, Salib was receptive to her concerns and didn’t disagree, though he kept trying to move the conversation back to his harassment complaint. He believed the other veterinarian disliked him and Neumier made up the performance concerns after he made the harassment complaint. When the other veterinarian was brought in to discuss the complaint, he mentioned the joke but insisted it was good-natured.
After the meeting, Neumier observed Salib working in the plant and didn’t see any change in his work. He was still too hasty in identifying problems and missing others. However, Salib didn’t agree with her evaluation and believed he was doing a good job.
Written warning to improve
On July 10, 2007, the inspection manager sent Salib a letter warning him he needed to “demonstrate flexibility and willingness to learn as you develop your job skills.” The letter reminded him he was still on probation and wouldn’t pass unless he was “deemed fully proficient.”
Salib responded by asked the inspection manager to assess him to see if he had improved, but the manager told him to take it up with his supervisor, Neumier. However, Salib disagreed with Neumier’s assessments and wanted the manager to reassess him.
The next day, Neumier met with Salib again and they discussed areas for improvement. Salib again disagreed with her, despite the fact she continued to document incidents where he made mistakes identifying conditions in the animals and she never saw him reading the informational materials. At times, when he was alone in the office, Neumier observed Salib “doing absolutely nothing, just staring into space.”
In August, Salib requested to be transferred to Toronto because his wife was studying there, though he admitted later he didn’t want to work with Neumier or the others anymore.
In late October, Neumier investigated reports Salib had said any carcasses that fell on the floor should be condemned. This was not policy and confronted him with it. It turned out Salib was not the source of the comment and Neumier apologized to him. However, Salib didn’t accept the apology and filed a harassment complaint against her.
The agency found Neumier was “exercising her managerial responsibility” in attempting to coach and counsel Salib and she apologized after the truth came out. Neumier’s actions didn’t meet the agency’s definition of harassment, so it denied the complaint.
The agency assessed Salib’s performance in late November and Neumier said she didn’t see the point of trying to retrain Salib as there had been no change in his performance in seven months. Neumier reported he was having the same problems identifying conditions in the animals and it put food safety at risk.
On Dec. 3, 2007, the agency terminated Salib’s probation and gave him one month’s pay in lieu of notice. The termination letter stipulated Salib was unable to meet performance standards and he didn’t posess the competence to continue with the agency.
Salib grieved the termination, claiming it was done in bad faith and in retaliation for his harassment complaints. He also said he wasn’t given any formal warning his employment was in danger because his last written indication that he needed to improve was in July, more than four months before his termination.
The board noted that probationary periods are designed to assess an employee’s suitability for employment and the employer is entitled to reject a probationary employee for an employment-related reason, as long as it was not done in bad faith. The board found the nature of the veterinary work at the agency’s plant was very technical and specialized with a public safety aspect.
Over Salib’s probationary period, the board found the agency was consistently concerned with Salib’s ability to make correct observations and make the right decisions. Neumier made detailed lists of her concerns and she had no reason to fabricate anything, as Salib charged, especially since the agency had difficulty recruiting and retaining veterinarians at the Brandon plant. Salib, however, didn’t want to accept guidance suggestions for improvement unless they could prove him wrong, said the board, which made training him “extraordinarily challenging and exhausting.”
The board also found Salib’s harassment complaints were “trivial,” about both the temperature in the plant and the way Neumier was supervising him.
The board also found that, despite the lack of any formal warnings after July 10, Salib received verbal feedback regularly from Neumier. This was borne out in the fact he said he was feeling pressured and wanted a transfer. The reality, said the board, was that Salib didn’t accept Neumier’s feedback because he wanted evidence he was wrong.
The board ruled the agency terminated Salib’s employment over legitimate concerns about his ability to do his job, for which he had more than six months to demonstrate his competence. Given the seriousness of the concerns and the importance of the job requirements, the board deferred to the agency’s right to evaluate Salib and terminate his probationary period.
