Employers 'should always take all their employees seriously, whether they're probationary or not'
Establishing a probationary period for new employees can help if things don’t work out, but such periods are meant to determine the suitability of the new employee, not serve as a window when it’s easier to fire the employee, according to Christopher Achkar, an employment lawyer and principal of Achkar Law in Toronto.
“It's an exciting time to hire employees, and having a probation period embedded in a contract is a safe way for an employer to see how much of a ‘fit’ an employee is.”
An Ontario hospital didn’t seem to keep this concept in mind when it fired a probationary employee after eight days of work without directly checking out concerns about the employee – leading to an award of one months’ pay in wrongful dismissal damages.
One week of shadowing after training
The Ontario Shores Centre for Mental Health Sciences is a public hospital in Whitby, Ont., that provides assessment and treatment services to people with serious mental health issues. Ontario Shores hired the worker as a repetitive transcranial magnetic stimulation (rTMS) technician, starting as a probationary employee on Nov. 19, 2019.
The collective agreement provided Ontario Shores with the discretionary right to release a probationary employee for reasons based on “suitability” for the job.
Orientation for rTMS technicians included a mandatory one-week training period and an optional second week of job shadowing at the Centre for Addiction and Mental Health (CAMH) in Toronto.
The worker’s grandmother passed away on the worker’s first day. She attended orientation on the first two days and then went to the funeral.
On the day of the funeral, Ontario Shores emailed the worker to advise that the additional week of shadowing would be available. The worker responded that she would like to attend the additional training from Dec. 9 to 13.
The worker had to have emergency surgery on Nov. 29, so she began her training on Dec. 2. She began her optional week of shadowing a technician at CAMH on Dec. 9.
Probationary periods may be more harmful than helpful to employers, say experts.
Absent from training
On Dec. 9, the worker emailed the technician that she was to shadow to advise that she had a medical appointment the next day at 11 a.m. She didn’t advise Ontario Shores of the appointment.
On Dec. 10, the worker again emailed the technician to say her appointment was running long and she wouldn’t be able to start until 2:30 p.m. The technician replied that she should wait and come the next morning.
The worker said she wasn’t available on Dec. 11 but in a later email indicated that she was. However, shortly after that, Ontario Shores management called her with feedback about her performance and pointed out that she hadn’t advised the centre that she would miss training because of an appointment.
When can a probationary employee not be summarily dismissed?
Earlier that day, Ontario Shores had received a call from a senior manager at CAMH who outlined concerns that the trainers had raised about the worker during the first week of training, such as an inability to keep pace, a lack of insight, not willing to perform treatments as outlined, and saying that she didn’t need training.
Employer decided worker wasn’t suitable
Based on this information, Ontario Shores advised the worker that it had the impression that the worker was confused and not taking accountability for her shortcomings. The worker was surprised, as she hadn’t received any criticism or coaching from the trainers.
Management told the worker not to attend the job shadowing on Dec. 11 and instead come to her manager’s office on Dec. 12.
On Dec. 12, Ontario Shores terminated the worker’s employment because the centre deemed that she had “failed to meet the probationary standards for an rTMS technician.”
The union filed a grievance, alleging that the termination was arbitrary, discriminatory, and inappropriately relied on “second and third hand” reports without proper investigation.
The arbitrator noted that “the probationary period is an opportunity for the employer to assess the suitability of an employee for long-term employment in the particular work environment” and a decision to terminate a probationary employee “must not be arbitrary or capricious.”
Contrary to popular belief, there is no automatic probation period, according to an employment lawyer.
High standard reasonable
The arbitrator found that Ontario Shores had a responsibility to have well-trained staff that could meet the specific needs of its patients. In addition, there was no reason to believe that there was any bad faith in the feedback from CAMH and treating the concerns with the worker’s performance as serious.
The arbitrator also found that it made sense that Ontario Shores was upset with the worker for not advising that she would be absent for some of the training. The hospital’s concern was about that failure to advise, not the absence itself, so there was no discriminatory reason for the decision to terminate, the arbitrator said.
However, although the termination wasn’t discriminatory, the arbitrator still had issues with it. Ontario Shores may have had honest and good-faith concerns about the worker’s suitability, but its decision was based entirely on the CAMH feedback – which consisted of second- and third-hand reports from another facility. CAMH may have been a trusted source, but that didn’t satisfy the employer’s responsibility to determine the worker’s suitability on its own, the arbitrator said.
The arbitrator found that there was no first-hand assessment of the worker’s performance or direct contact with the CAMH trainers, and the only meaningful contact with the worker before the termination meeting was the phone call on Dec. 10. When the worker appeared surprised at the feedback, it should have prompted further investigation, the arbitrator added.
In addition, Ontario Shores didn’t follow the purpose of probation, which is for the employer to determine whether the employee is suitable and give the employee a fair chance at permanent employment. Since the worker only had two days of orientation before her bereavement leave and a medical emergency before her off-site training, there were only eight days of active employment before termination. There was no opportunity for Ontario Shores to observe the worker directly or for the worker to implement her training, said the arbitrator.
A P.E.I. court ruling showed that a probationary period does not give employers an unfettered right to terminate.
Opportunity to succeed
Employers have the right to make decisions that are suitable for their own business, and probationary employees are in a grace period during which the employer should have leeway in what they want to do, says Achkar – but determining that suitability means giving the employee a real chance to show what they can do.
“[Employers] should always take all their employees seriously, whether they're probationary employees or not, and they should give them adequate training and a proper chance to succeed,” says Achkar. “Because when they're signing them on, these employees are letting go of other opportunities that could potentially be more suitable and that would provide more training.”
The arbitrator upheld the grievance on the basis that the termination was arbitrary. However, she declined to reinstate the worker. During the brief period of employment, the worker didn’t demonstrate a suitability for the job and it wasn’t the arbitrator’s place to second-guess the employer’s decision by bypassing the probationary period with full reinstatement, the arbitrator said.
Although the union requested reinstatement with seniority, full compensation, and damages, it wasn’t appropriate with such a brief period of employment and Ontario Shores already determining the worker was unsuitable, says Achkar.
“The [arbitrator] found that the employer already made their decision that this person's not suitable – they made it in an uncalculated way and they didn't do their proper investigation, but it's not up to [the arbitrator] to essentially take the autonomy [away from] the employer when it comes to who should and who shouldn't be employed,” he says. “And it was so new that the relationship might just be irreconcilable at this point.”
Ontario Shores was ordered to pay the worker one month’s salary in wrongful dismissal damages.
Ackhar notes that good documentation applies to most parts of the employment relationship, but particularly where a probationary employee must be given a fair opportunity to prove their suitability.
“If the employer documented their efforts and their investigation into whether [the worker] was suitable or not, they may have had a better chance at showing that their decision to terminate wasn't arbitrary,” he says. “But the [arbitrator] found that they didn't do their own personal investigation and there was no proof of it all.”
“For employers, I would say make sure you have probation clauses in [the employment contract] and make sure you properly document the onboarding process,” Achkar adds. “And you know what you're giving them and at what time you're giving it to them to make the case that you did everything you can to allow this person to succeed.”
See Ontario Shores and OPSEU, Local 331 (A.A.)., Re, 2022 CarswellOnt 14769.