Worker's arguments of insufficient support, unfair standards not supported
A decision dismissing a federal public worker’s grievance that he was unfairly terminated during his probationary period was reasonable, the Federal Court has found.
The worker applied for a job with Service Canada in early 2021. Employment and Social Development Canada (ESDC) offered him the position of payment services officer on Jan. 11. The position had a fixed-term employment contract starting on Jan. 25 and running for one year, serving as a 12-month probationary period.
The position involved a four-phase structured training program. The first phase was classroom training, during which the worker had to take five examinations. ESDC informed the worker that in order to continue on as a payment services officer, he had to score a minimum passing grade of 75 per cent on three out of the five examinations.
The worker’s classroom training in February and March 2021 was mostly online due to the COVID-19 pandemic – training started with two or three days in person, then was online. He wrote the five examinations but only achieved a passing grade on two of them. He just missed on two others with grades of 73 and 72 per cent, while a fifth was 60 per cent.
An Ontario employer was entitled to dismiss an employee without cause or notice during the probationary period, an Ontario court ruled.
Employee support
After two of the examinations that he didn’t pass, the worker met with ESDC’s acting team leader to discuss the outcome, the reasons he didn’t pass, how he could improve, and where he could obtain support. ESDC offered him additional training assistance and personal support through the employee assistance program, but the worker refused.
After the worker failed to pass the fifth and final examination, leaving him with only two passes, ESDC released the worker from his probationary employment. The dismissal letter stated that he had not satisfactorily performed the duties of a payment services officer because he failed three out of the five examinations.
The worker filed a grievance alleging that his rejection on probation “was an action of bad faith.” He claimed that ESDC didn’t provide him with the necessary training and support and he had reached out for help and accommodation, which ESDC didn’t provide.
The worker argued that two of his examination scores were just below the passing grade of 75 per cent, so they should be “rounded up” so he could pass. He also argued that the online training didn’t account for employees’ differing needs during the pandemic and he received insufficient technical support during the training – he was in BC but technical support was in Ontario and only responded within 24 hours “fi they fell like it,” so he was “alone and working remotely.”
The worker added that he had experienced several personal stressors during the training, including the breakdown of his car, which contributed to poor sleep.
In a unionized environment, the standard to terminate a probationary employee is suitability rather than just cause, says a lawyer.
Grievance denied
ESDC denied the grievance at the first and second levels, so the worker and the union took it to the third and final level, involving a written submission and a consultation with the decision-maker – the assistant deputy minister for Western Canada and Territories for ESDC - her chief of staff, and a senior labour relations officer.
The worker requested confirmation of his examination scores, so ESDC reviewed and verified each of them. On Feb. 28, 2022, the senior labour relations officer provided an overview of the grievance and, two days later, the grievance was dismissed.
The decision-maker acknowledged the worker’s concerns but found that ESCD had ensured that the worker was provided with the necessary resources and support to become a payment services officer. ESDC gave him the opportunity to identify additional support and explore accommodation after two of his failed examinations, but the evidence showed that the worker declined, said the decision-maker, adding that his examination scores were reviewed and confirmed at the worker’s request. The evidence also showed that the worker was unable to consistently meet the required performance standards, which was “a legitimate employment-related reasons for his termination on probation,” the decision maker said.
The worker’s grievance was denied at the third level and the worker appealed to the Federal Court to set aside the decision as unreasonable. He reiterated to the court that his training was inadequate and to terminate him after just missing the passing score threshold during the pandemic was unfair.
A PEI court ruling showed that the existence of a probationary period does not give employers an unfettered right to terminate.
Reasonableness of decision
The court noted that much of the worker’s appeal was concerned over whether ESDC’s final decision on his grievance was correct on its merits. However, judicial review did not involve a re-examination of the evidence to issue a new decision – it was only tasked with determining if the decision was reasonable, said the court.
The court agreed with ESDC’s position that employer have “considerable discretion to assess the suitability of probationary employees.” It found that the decision-maker at the final level clearly outlined the grievance in its overview and there was no indication that she failed to address any of the worker’s arguments.
The court found that the standard of a minimum passing grade of 75 per cent on three of the five examinations was set at the outset of the worker’s employment and the worker didn’t provide any specific examples that showed bad faith on ESDC’s part. Given the evidence, it was open to the decision-maker to determine that the worker failed to prove that ESDC wasn’t candid, honest, or fair, or that the termination was made in bad faith, the court said in finding that the dismissal of the worker’s grievance at the final level was reasonable.
