'Frustration just can't factor in when it relates to the employee's legal rights': lawyer
The firing of a worker during her probationary period was an unlawful reprisal related to her protected sick leave absences due to COVID-19, the Ontario Labour Relations Board has ruled.
“It's really important for employers to understand the importance of acting in accordance with [employees’ statutory] rights - in this case, it was about the employee’s leave entitlements,” says Joel Smith, an employment lawyer at Williams HR Law in the Greater Toronto Area.
“And it's so important that employers provide the right information not only to their HR people and senior management, but their frontline managers as well, to understand what they can and can't take into account when having issues with employees.”
The worker was employed as a divisional sales supervisor with APGN Consulting - operating as The BridgGroup of Companies, a property investment consulting and property management company. She was hired on a two-year fixed-term employment agreement with a start date of July 11, 2022.
The position was a new role with APGN and the employment agreement set out a probationary period of 180 days. In addition, APGN stipulated in the offer letter that there would be no time off granted during the first 90 days of the worker’s employment and the company made it clear that she was to be physically present in the office during the workday.
In August, the worker contracted COVID-19. She worked from home for four days on Aug. 14, 15, 16, and 17 and missed work due to COVID-related illness on Aug. 30 and 31. She also had to go home early on Sept. 1 because she was unwell. She informed the company of the reason for her absences and APGN paid her for two of the days she worked from home.
Performance appraisal
On Aug. 23, she received a 30-day performance appraisal, which identified areas of improvement in “attitude, accountability, and assertiveness (in obtaining results).” There also a comment that the worker needed to “fulfill attendance requirement.” According to the worker, it was mostly a positive assessment and there was no mention of problems with her software skills or that she was away from her desk when staff were looking for her. She didn’t receive any verbal or written warnings at any other time.
The next day, APGN provided an amended employment agreement that added additional duties for the worker to perform.
The worker was also absent due to illness on Sept. 21 and 22. She also took an approved half-day off on Sept. 23 for her birthday, as per company policy.
On Sept. 26, APGN terminated the worker’s employment for cause. The termination letter didn’t provide a reason for dismissal and no specific verbal explanation was given other than that it was a business decision made by management.
The worker filed a complaint under the Ontario Employment Standards Act, 2000 (ESA), alleging that APGN failed to pay her for three days of infectious disease emergency leave (IDEL) under the ESA and that her termination was an unlawful reprisal for exercising her right to statutory leave.
Statutory sick leave
An employment standards officer determined that APGN had not engaged in a reprisal against the worker and her termination was for reasons unrelated to her leave. However, the officer ordered the company to pay for three days of IDEL in accordance with the ESA.
The worker filed an application for review of the employment standards officer’s decision, maintaining her position that her termination was a reprisal. APGN maintained that the worker was terminated for “gross incompetence” and she was “chronically tardy.”
During the hearing, APGN’s senior human resources manager testified that the worker’s software skills were inadequate for the position and she had to ask basic questions to people she was supervising, making APGN think that she “oversold” herself. The HR manager also said that they were unable to locate her at times and she was often not in the office when her direct reports were looking for her.
APGN also had a document of the worker’s “contractual breaches” that identified the worker’s absences as part of the rationale for her termination. The HR manager stated that the absences during the first 90 days of her employment was “one of the things we reviewed but it was not the sole purpose or reason for the termination.”
The vice-president of The BridgGroup testified that he saw the worker using her cellphone at her desk during work hours – contrary to APGN’s cellphone policy – and he was aware of occasions when staff were looking for her and she couldn’t be found, although he couldn’t say specifically when either had happened. He didn’t work directly with the worker, but he was part of the executive team that decided to terminate her employment because her qualifications weren’t what the company was expecting.
Worker’s attendance a concern
APGN’s president and chief visionary officer testified that the worker’s position required someone who was available at all times during the workday, outside of breaks, and the worker was “centered on her own goals.” She said that the worker’s COVID-related absences didn’t play a significant role in the decision to terminate, but she was often gone for one to two hours at a time and that was a factor.
The Board found that APGN’s witnesses provided inconsistent explanations regarding the role of the worker’s absences in her termination. While they maintained that her performance was the reason for dismissal, the board noted that there was no contemporaneous documentation of performance issues beyond the probationary review – which didn’t mention any details about serious shortcomings in the worker’s skillset - and the worker’s absences were considered part of her issues without consideration of the specific reasons for them.
It’s understandable that APGN may have been frustrated, given its requirement of no time off during the first 90 days, according to Smith.
“Supervisors can have valid frustrations with employees missing time, whether they're probationary or not, as it can create workload and morale issues for co-workers and make it harder to meet performance targets,” says Smith. “But the reality is, frustration just can't factor in when it relates to the employee’s legal rights under the ESA, and similarly under the Human Rights Code or Occupational Health and Safety Act - the statutory rights of the worker have to take priority.”
The board found that APGN failed to prove that the worker’s termination wasn’t at least partially motivated by the worker’s absences, some of which were protected as IDEL under the ESA. It noted that if the exercise of a right under the ESA is even one factor in a termination, it constitutes a reprisal.
Probationary employees
While employees who have a valid probationary clause in their contract may not be entitled to statutory termination pay, they still have other employee rights, says Smith.
“There are certainly limitations on the rights of probationary employees, but they still have the same rights as other employees when it comes to things like reprisal,” he says. “Certain entitlements only kick in after a period of time of employment, but as a general concept, probationary employees are employees like any other and it's really important that employers understand that concept.”
Although the worker was on a two-year fixed-term contract, she was still on her probationary period, so the two-year term wasn’t yet guaranteed, said the board.
The board determined that APGN had failed to meet its burden of proving that the worker’s termination was unrelated to her taking protected leave under the ESA. APGN was ordered to pay the worker a total of $23,038.46 in damages, including: $18,846.15 for loss of wages from her termination to Jan. 2, 2023, when she secured alternate employment; $2,692.31 for loss of the job’s inherent value, and $1,500 for emotional pain and suffering.
The case is a good warning for employers to make sure that everyone in their organization who’s leading and supervising people is trained on statutory rights of employees such as protected leaves, says Smith.
“Provide true, in-depth training to make sure that your managers understand, because they're the ones who are dealing with employees and that's where a lot of the liabilities can come from,” he says. “Make sure that they're trained on all the things that they can and can't do, and should and shouldn't consider, around discipline and termination decisions.”
“And at the same time, make sure that things are being documented - HR should be managing the employee files and ensuring that, as managers go through that probationary period with new employees, they're documenting things properly,” adds Smith. “So if the employer does have to make a decision to move on, then it has the evidence to show that it had a legitimate basis.”
