Worker claims employer's concerns about performance, attitude came after she complained about sexism
“You can't say something is discriminatory just because you might have the characteristics of a person who may experience discriminatory behavior. There has to be more.”
So says Madeleine Loewenberg, an employment lawyer, workplace investigator, and mediator at Loewenberg Psarris Workplace Law in Toronto, after an Ontario arbitrator ruled that the termination of a worker’s probationary employment wasn’t arbitrary and the employer showed it had legitimate reasons to end the probation.
The worker was hired by York University in Toronto on Oct. 3, 2022, as a security watch official. As per the collective agreement, she was subject to a probationary period of 1,440 hours, with an extension allowed if both parties agreed.
At the beginning of her employment, York provided training for one month and conducted a series of tests in which the worker had to get a 75-per-cent score to continue with her probation. The worker received more training in January 2023.
On April 5, 2023, management held a meeting with the worker at which they raised concerns from other employees that the worker was doing patrols on her own – contrary to policy - and was being distant from others. The worker said that people were against her and didn’t want to pair up with her.
Allegations of bias, sexism in hiring process
During her probation, the worker applied unsuccessfully for two higher-level security watch official positions. After being notified on April 20 that she hadn’t been selected for the second posting, the worker expressed concerns to management about the hiring process, alleging cheating by other candidates, bias, and sexism. She indicated that she wanted to file a formal complaint because she believed she was the most qualified candidate.
On May 3, York made a request to the union to extend the worker’s probationary period for another six months to Nov. 9, due to ongoing concerns about her professionalism in the workplace. The union accepted the request.
When it comes to extending probationary periods, there’s a distinction between unionized and non-unionized environments, says Loewenberg.
“In a non-unionized workplace, you're not permitted to extend the probationary period – the [Ontario] Employment Standards Act says that within three months you can terminate someone and essentially not give them any notice, but you can't extend that window unless you're prepared to pay someone,” she says. “But in the unionized environment, if it's set out in the collective agreement, you are permitted to do that as long as the union agrees - even collective agreement rights can't be exercised in a discriminatory or arbitrary way.”
A few days later, the worker filed a grievance about the second job posting, but the union didn’t advance it to arbitration. On May 12, the worker attended a non-disciplinary meeting of concern, at which she was informed of the probation extension. She claimed that she hadn’t received the email notifying her of the extension.
A couple of weeks later, on May 23, the worker went on unpaid leave for approximately three months for personal reasons. Shortly before she returned, York sent her an email to confirm her return date was Sept. 1, to which the worker responded that she didn’t have to provide a response because she had already given a definitive date of return.
Colleague filed complaint against worker
On Sept. 28, a colleague filed a formal complaint against the worker alleging that her actions were creating a toxic work environment and that she had used a gendered slur about her. York conducted a fact-finding meeting on Oct. 13 to address the allegations. At the meeting, the worker didn’t respond to most questions and called the process “a total joke” that was “wasting my time.”
On Oct. 27, York gave the worker a letter stating that she was being terminated within her probationary period for being an “unsuitable candidate” for the security watch official position, in accordance with the collective agreement.
The worker filed another grievance alleging that the termination was discriminatory, arbitrary, and in bad faith. She said that York only raised performance concerns after she made her complaint about sexism and bias in the university’s hiring practices. She also claimed that York didn’t perform regular evaluations during her probation, which denied her a reasonable opportunity to prove her suitability.
The arbitrator noted that in probationary termination cases, the standard isn’t just cause but rather the absence of arbitrariness, discrimination, or bad faith in the employer’s exercise of its discretion in determining suitability.
The arbitrator found that the evidence – both from the employer’s documents and the worker’s testimony – showed that the worker had received both formal and informal evaluation and coaching, including a first-month training and the series of tests. The worker’s responses to evidence of additional training and feedback opportunities were “evasive and argumentative” and the work’s own evidence confirmed that opportunities for further learning and feedback were offered by York but avoided by the worker.
Records proved concerns of behaviour during probation
The arbitrator also found that York was able to show a pattern of unprofessionalism and confrontational behaviour from the worker through its records of meetings, emails from the worker, and the extension of her probationary period. As a result, York’s assertion of the worker’s lack of professionalism and her disinterest in improving were well-supported, said the arbitrator.
Although the union argued that performance issues were only raised after the worker initiated a grievance alleging sexism and unfairness, the arbitrator found that performance concerns were documented before the grievance and York’s decision was motivated by “legitimate and lawful considerations.”
The arbitrator also found that the worker’s “dismissive and hostile exchanges” at meetings on their own would have been sufficient to justify ending her probationary employment.
York’s documentation of everything made its defense strong, says Loewenberg.
“The worker was someone who required a lot of coaching, who would break off on her own and not work in a team, who wouldn’t follow the employer's rules around safety and interactions in the workplace, so all the employer had to show was that when they terminated her, they didn't rely on irrelevant factors,” she says. “[York] kept very clear records of her training, feedback she was given, and notes of meetings they held with her - for a probationary employee, they had to prove not whether they had cause, but whether the termination was arbitrary, and that's an important distinction for a probationary employee.”
“They took notes of everything they spoke about and they had justifiable reasons for being concerned about her performance,” adds Loewenberg. “Maybe you could disagree with them if this was a just-cause case, but the union just wasn't able to demonstrate that it was arbitrary based on York’s recordkeeping.”
No evidence of discrimination, bad faith in termination
While acknowledging that the workplace was a male-dominated environment, the arbitrator found “no direct or credible evidence” to sustain allegations of discrimination or bad faith, noting that another woman was offered one of the positions for which the worker applied and all successful candidates had more seniority.
“There was no one else to whom the worker could point who was treated differently than her on non-protected grounds,” says Loewenberg. “It's a nice call-back to a principle that sometimes we have to defend, which is just because you are someone who associates with a protective ground, it doesn't mean that you're treated negatively for that reason.”
The arbitrator determined that York’s termination of the worker’s probationary employment wasn’t arbitrary, discriminatory, or in bad faith, and dismissed the grievance.
The case drives home the importance for employers to document everything, particularly during a probationary period that requires evaluation to determine suitability, according to Loewenberg.
“If you're unhappy with any employee’s performance, don't just discuss it with your management team, make sure you discuss it with the employee, take notes of what's discussed, and hold follow-up meetings with emails confirming the nature of those discussions,” she says. “And if you're supposed to be evaluating performance, make sure you actually conduct those evaluations - that doesn't necessarily mean a formal performance review, but it can include coaching discussions, opportunities to train, mini-quizzes, one-on-one meetings - but all of that is only as good as the documentation that you collect to demonstrate these things happened.”
