Sunday, 23 December 2012

Right to a Fair Opportunity on Probation

Christmas is time where some industries, such as retail, become exceptionally busy. In order to meet customer demand employers take on extra, seasonal staff. While some employers are upfront about the nature of the employment relationship, others inform potential employees that they will be employed on a trial, or "probationary" basis, and if things ‘work out’ they may be hired on full-time.

This blog has previously considered the issue of what it means to be on a “probationary period” at Ontario law in the post Probationary Periods and Notice . This post will look at employers’ rights to terminate employees on probation and employees’ rights to be afforded a fair opportunity to demonstrate their talents.

Starting Point

As discussed in the earlier post, under Ontario law there is no automatic “probationary period” in an employment contract. Unless the employer specifically sets out to the employee in his or her employment agreement that the employee will be “on probation” for a specific period of time and what the implications of that probationary period will be (which provisions themselves must not offend the minimum requirements of the Ontario Employment Standards Act, 2000), the employment contract will be deemed to commence without a probationary period. Therefore, simply telling an employee that he or she will be “on probation” may not be sufficient to create the situation desired by employers.

Right to a Fair Chance

Even if an employer does satisfactorily create a probationary period, that does not allow an employer to terminate an employee within that period simply because the employer wants to.

In Mison v. Bank of Nova Scotia (1994), 6 CCEL (2d) 146, 1994 CanLII 7383 (Ont. C.J. (Gen. Div.)),  the Honourable Justice Gloria Epstein (now of the Court of Appeal) decided a case involving a short-service employee terminated by the Bank. As set out in Her Honour’s recital of the facts:
In June 1990, the plaintiff, Robert J. Mison (“Mison”), applied for a position with the defendant, the Bank of Nova Scotia (the “Bank”). In January 1991, the Bank offered Mison a senior position in its trade finance department. Mison started work February 25, 1991. His employment was terminated two weeks later on March 8, 1991. Mison is 43-years-old and a career banker. (Para. 1.)

On the issue of whether the employment agreement had created a probationary period Justice Epstein held that:
From the evidence it is clear that Mison was on probation for the purpose of assessing whether he would fit into the Bank’s organization. There was no need to test Mison’s technical skills but there was a need to test his character. The net result is that the relationship was, albeit in this limited way, provisional. Even though there was no uncertainty about Mison’s expertise, there was a need to examine his ability to work within the Bank itself. To this end, Mison assumed the risk, when he formally accepted the Bank’s offer on February 15, 1991, of being involved in a less secure employment arrangement for a period of six months. (Para. 40.)

Citing earlier cases from Manitoba and Saskatchewan, Justice Epstein set out an employer’s right to terminate a probationary employee as follows;
[A]n employer can only dismiss a probationary employee for just cause. However, during probation, “just cause” can be based on a decision that the employee is unsuitable for the job. Such a conclusion must be a reasonable one and properly motivated. In addition, it is a conclusion that must be reached after the employee has been given a fair opportunity to demonstrate his ability. (Para. 43.) [Emphasis added.]

On the facts of the case Justice Epstein found that Mr. Mison has been appropriately dismissed for cause. However, as required, she also found that, were she wrong on the issue of cause, Mr. Mison would have been entitled to one month of notice – or, more than the minimum amount required by the provisions of the then Employment Standards Act.

Commentary and Takeaways

A probationary employee is an employee who, by the very label, is one known to be with fewer rights. The first question, however, must always be whether the employee is, truly a probationary employee.

Second, as mentioned, even if the employee is properly on probation the next question is whether he or she was given “a fair opportunity to demonstrate his ability.” In cases of exceptionally short service this criterion will be questionable.

Finally, as Mison demonstrates, even if an employee is on probation, unless the employment agreement specifically says so, the employment relationship can only be brought to an end on the provision of “reasonable” notice, not only statutory notice. (For the difference between the two, and/or for more on wrongful dismissal see What is Wrongful Dismissal?)

If you are an Ontario employee and have been told that you’re “on probation”, if your employer tries to end your employment without providing you reasonable notice, it may be prudent to seek professional legal advice; the employment lawyers at Kelly Santini LLP would be happy to be of service to you. I can be reached by email at

If you are an Ontario employer and are considering hiring new staff, whether seasonal or not, it is always prudent, for a number of reasons including probation periods, to use well-drafted employment agreements. The employment lawyers at Kelly Santini LLP have considerable experience drafting such agreements and would be happy to be of service to you.

As always, everyone’s situation is different.  The above is not intended to be legal advice for any particular situation and it is always prudent to seek professional legal advice before taking any decisions on one’s own case.

Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP, and part-time professor at Algonquin College teaching Trial Advocacy for Paralegals. He is a trustee of the County of Carleton Law Association for 2013.

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