March 10, 2016

Employer’s Discretion to Dismiss Probationary Employee “Cannot be Questioned”

A recent Ontario decision confirms that the term “probation” has a recognized meaning in employment law and that employers have wide discretion to determine an employee’s suitability during the probationary period.

In Nagribianko v. Select Wine Merchants Ltd., 2016 ONSC 490, an employee entered into an employment agreement which included a six-month probationary period. Mr. Nagribianko was terminated during that period after the employer determined he was “unsuitable for regular employment.” He commenced an action against his employer for wrongful dismissal.

The Court reviewed the law relating to “probationary periods” and relied on British Columbia cases, noting:

“Probation is a testing period for the employer to assess a probationary employee’s suitability. It offers the employer an opportunity to determine if the employee will work in harmony with the organization permanently. Suitability includes considerations of the probationary employee’s character, ability to work with others, and ability to meet the employer’s present and future standards.”

The Court emphasized that the nature of the employment relationship during probation is “tentative” and the employer’s judgment and discretion on the issue of suitability “cannot be questioned.” The only requirement is that the employer shows that it acted “fairly in determining whether the probationary employee was suitable and that he/she was given a fair opportunity to demonstrate his/her ability.”

Having come to this conclusion, the Court rejected Mr. Nagribianko’s argument that he should be awarded damages based on having been “induced” by the employer to leave his past job and take up employment with it. The Court stated, “probationary employment, on its face and by its nature, is inconsistent with any inducement or promise of long-term employment.”

(Note that in British Columbia, an employee who has served a minimum of three months’ service, even if subject to a probationary period, will be entitled to a minimum of one week’s pay or termination pay.)


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