'If the worker wasn't in the probationary period, this conduct probably wouldn't amount to just cause'
A federal public sector worker’s firing while on probation was due to a lack of suitability for the position and not related to a disability revealed several months after she started work, according to the Federal Public Sector Labour Relations and Employment Board.
The worker was hired in December 2020 by Employment and Social Development Canada (ESDC) to the position of payment services officer. As she was appointed from outside the public service, the Public Service Employment Act (PSEA) required that she be subject to a probationary period – which Probation Regulations stipulated as 12 months.
The worker’s job involved taking calls from people who were applying for or receiving employment insurance.
From March to May 2021, the worker’s team leader met with her to discuss her performance on phone calls, and the worker disclosed that she had medical conditions that negatively affected her performance. She provided a doctor’s note on May 21 explaining her conditions and requesting accommodation for workflow tasks, along with an ergonomic assessment.
On June 1, the worker’s manager sent her a letter saying that her probationary period for performance management was being interrupted while accommodation measures were assessed. The manager understood that the Probation Regulations state that “the probationary period for an employee who is disabled and requires job accommodation begins on the day on which the necessary accommodation is made.”
The manager also arranged one-on-one coaching sessions to help the worker improve. These sessions were conducted through Microsoft Teams on audio with no video.
Investigation into workers’ comments
On June 16 and 17, the worker was chatting with a co-worker who was coaching her between calls and made several comments that disturbed the co-worker, including comments about COVID-19 not being serious and masks not being necessary, along with comments downplaying the significance of a Muslim family that had been murdered in London, Ont., the graves of children found at Indigenous residential schools, and the Black Lives Matter movement. The comments made the co-worker uncomfortable, but she didn’t ask the worker to stop because she wanted to avoid conflict.
The co-worker reported the comments to the manager, and the manager asked her to send him an email with her full account their conversations. ESDC interviewed the worker and she didn’t deny saying the comments, but she said she was simply complaining about the volume of emails she had received, some of them about the issues she mentioned.
“When [ESDC] got a sense that the worker was making these comments, they asked for the witness to summarize the conversation in an email, so it was useful to have that evidence available and time stamped in a reliable way,” says Mike Hamata, a labour and employment lawyer at Roper Greyell in Vancouver. “The employer also conducted an investigation with the employee before making a decision – it put these allegations to the worker and allowed her an opportunity to respond - I think those were really good steps.”
During this time, ESDC was continuing the accommodation process, including ordering an ergonomic assessment for the worker and asking her doctor to prepare fitness-to-work and functional abilities assessment forms. The forms recommended that worker work four days per week due to her disability and ESDC implemented this schedule immediately.
However, before the accommodation process was complete, ESDC determined that the worker’s comments during the coaching sessions demonstrated that she wasn’t a good fit for the job. It terminated the worker’s employment.
Probationary period
The worker filed a grievance contending that she wasn’t a probationary employee at the time of her dismissal because the probationary period had been suspended until the accommodation process was completed. She also argued that her rejection on probation was in bad faith or discriminatory because her comments weren’t related to the job and her dismissal was due to ESDC’s desire to avoid accommodating her.
The board found that the worker was still in her probationary period at the time of dismissal. While she disclosed a disability several months after beginning her employment and ESDC was making accommodation efforts, this didn’t pause her probationary period under the Probation Regulations, said the board.
The board found that the regulations apply only to employees who disclose a disability before or at the start of employment, noting that they state that the probationary period “begins on the day on which the necessary accommodation is made.” The board emphasized that the use of the word “begins” precludes its application to employees already in their probationary period. In addition, there was no explicit language stating that the probationary period “does not include” an accommodation period after someone starts work, while such language is used to exclude other periods of time, the board said.
The adjudicator applied a classic statutory interpretation framework to find ESDC’s interpretation was correct, according to Hamata. But he thinks that from a policy perspective, the pause in the probationary period would make more sense.
“I suspect that this is explained by legislation that was poorly drafted and doesn't say what it was intended to say, because a properly functioning probationary period is a benefit to both employee and employer,” he says. “The employer is supposed to have a period of time to assess the employee's suitability for employment, so what if something happens that prevents the employer from assessing that?”
“If the probationary period isn’t extended, the employer has an incentive to say, ‘I haven't had enough time to evaluate their performance, so rather than risking losing my ability to terminate at the lower standard of suitability after the probationary period, I'm just going to exercise my right to terminate for suitability now,’” adds Hamata. “It's a rationale for having an automatic extension to a probation.”
Pausing for accommodation
The board also found that the letter from the manager stating that the worker’s probationary period was “interrupted” had no legal effect. Probationary terms in the federal public service are set by statute and can’t be altered by the employer, the board said.
The legislation saved the employer with regard to the manager’s letter in this case, but for employers who aren’t in the federal public sector, the outcome would be different, says Hamata.
“A promise by a manager that probation would be paused during the process of accommodation would likely be binding for employees who are just subject to the common law and regular employment statutes,” he says. “There's a bit of a cautionary note for managers about making promises to employees about what’s part of probation and what's not.”
As for the worker’s claim that the termination decision was based on the comments she made to the co-worker that reflected negatively on her suitability for continued employment. Since the worker had no problem making such comments to someone she didn’t know and whose face she couldn’t see on the call, there was “a real risk that she might blurt out these same views to clients, particularly difficult callers who say things that may trigger a reaction from someone working at a call centre,” the board said.
“I think in most places, [the worker’s comments] would be contrary to respectful workplace requirements and probably amount to a breach of human rights legislation,” says Hamata. “If the worker wasn’t in the probationary period, this conduct probably wouldn't amount to just cause, but they were enough to meet the lower standard of suitability to give ESDC a basis to end this worker’s employment.”
Termination not linked to disability
The worker argued that her comments were linked to her disability, but the board found insufficient evidence to establish a nexus between her condition and the comments, as the medical information from her doctor didn’t indicate that her medical condition impaired her impulse control or was connected to the statements.
“Employers facing allegations of discrimination should carefully assess whether there’s a nexus between the alleged adverse treatment and the protected characteristic, and whether there's medical evidence to support that nexus,” says Hamata. “We see fairly frequently where these sorts of claims are made, but the missing middle isn’t supported by medical evidence.”
The board added that ESDC was required to accommodate employees with disabilities, but the accommodation process was already underway and hadn’t been completed by the time of the worker’s dismissal, and her conduct was unrelated to the accommodation measures.
The grievance was denied and the dismissal upheld.
Although this case involved a public-sector employer with legislation setting the probationary period, it’s a good reminder for all employers to look at their agreements and policies around probationary periods, says Hamata.
“You want to make sure that you have wording in your employment agreements or collective agreements that allow you to extend probationary periods during periods of absence,” he says. “It's always good for employers to remember that probationary periods can be extended by consent of a union or employee - and when presented correctly, it's in everybody's interest to agree to that sort of extension.”
