Williams HR Law LLP

PROBATIONARY EMPLOYEES AND THE DECISION TO TERMINATE

December 5, 2016

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Facts

Nagribianko v. Select Wine Merchants Ltd. was a wrongful dismissal action brought in Small Claims Court by the Plaintiff, Alexander Nagribianko (“Mr. Nagribianko”). Mr. Nagribianko signed an employment contract with the defendant, Select Wine Merchants Inc.

(“Select Wine”) on May 14, 2013. The contract entitled Mr. Nagribianko to various perquisites, including an annual salary of $65,000, benefits, a car allowance, vacation days accrued at 6% of earnings, use of a company laptop and $150 per month for the business use of his personal cell phone. The contract also contained a probationary period of six (6) months.

Mr. Nagribianko commenced employment on May 27, 2013. His employment was terminated by Select Wines on November 21, 2013, for lack of suitability. Mr. Nagribianko brought his claim for wrongful dismissal damages in Small Claims Court and was awarded four (4) months’ salary and benefits in lieu of reasonable notice. That award was based on the trial judge’s findings that the meaning of “probation” in the employment contract was unclear in light of Mr. Nagribianko’s subjective understanding of the term and that Select Wines induced Mr. Nagribianko to leave his former employment in order to join them.

The Appeal

Select Wines appealed to the Divisional Court, which corrected the trial judge’s failure to find that Mr. Nagribianko was a probationary employee. It also took the opportunity to clarify the meaning of “probation” in employment law.

The Divisional Court explained that the purpose of probation in employment is to serve as a testing period for the employer to assess an employee’s suitability. Probation, it found, offers the employer the opportunity to see whether an employee will fit with the organization if hired permanently, considering such factors as the employee’s character, ability to work with others, and ability to meet the employer’s present and future needs. The Divisional Court recognized that while the employment relationship is unstable and tentative during the probationary period, the employer must nonetheless ensure that it extends the employee a fair opportunity to demonstrate his or her suitability for permanent employment. However, absent bad faith, the employer can still terminate a probationary employee’s employment for any reason during the period.

Conclusion & Takeaways

The Divisional Court found that Select Wines had not acted in bad faith, and that it gave Mr. Nagribianko a fair opportunity to demonstrate his suitability. As per Mr. Nagribianko’s employment contract, Select Wines was entitled to terminate Mr. Nagribianko’s employment when it did and for the reason it did, that being lack of suitability.

This case demonstrates the latitude that employers have when dealing with probationary employees. At common law, as long as a probationary employee is given a fair opportunity to demonstrate his or her suitability for long-term employment, an employer will be able to terminate the employee’s employment at any time during the probationary period without providing reasonable notice or damages in lieu.

 

This blog is provided as information and a summary of workplace legal issues.

This information is not intended as legal advice.

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