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Termination of a probationary employee was neither arbitrary nor discriminatory

The Ontario Superior Court of Justice Divisional Court just quashed the grievance settlement board’s decision that a probationary employee’s termination was arbitrary and discriminatory and granted the application for judicial review. The evidence was clear that the employer’s decision to terminate the probationary employee was neither arbitrary nor discriminatory. In fact, the decision to terminate came after numerous reviews of the employee’s work and conversations about performance concerns.

What happened?

The employer had a probationary employee who was subject to a nine-month probationary period. There were concerns about her job performance, so the probationary period was extended for a further two months and then her employment was terminated.

When the employee grieved the decision at arbitration, the grievance settlement board decided the employee’s supervisor decided to audit the employee’s work right after the employee disclosed she had depression-this was no coincidence.

That said, the board noted that there was no ill-will or malice or that the employee’s supervisor acted out of an improper motive. Similarly, the board noted that there were in fact deficiencies in the employees work and the employer’s concerns were legitimate.

Notwithstanding the findings, the board decided that the employer’s decision to terminate the employee was both arbitrary and discriminatory. The employee was reinstated with a probationary period of 90 days attached.

The employer made an application for judicial review to the Ontario Superior Court of Justice. Here, it was found that the decision of the board was unreasonable:

The employer’s decision to terminate was not arbitrary. “Arbitrary” meant without reason. The evidence showed the employer’s decision was not arbitrary. It was clear from the evidence that the employee’s supervisor repetitively reviewed the employee’s performance and found that she did not meet the majority of the performance standards. The performance issues were legitimate, and the findings of the board were unquestionable that there was no ill-will, malice or improper motive. None of the factors relied upon by the board, whether viewed separately or cumulatively, supported a finding that the employer’s decision was arbitrary.

The employer’s decision was not discriminatory. The evidence was clear that the termination was not for a discriminatory reason. Also, although one of the directions given to the employee was different compared to directions given to other employees, there were valid reasons for giving the direction because of concerns about job performance; identical treatment of individuals was not mandated when those individuals were having different performance issues,

Consequently, the finding of the board with respect to the termination being arbitrary and discriminatory was unreasonable. Therefore the decision was quashed and the courts awarded costs to the employer in the amount of $5,000.

What can employers take from this case?

As can be seen from this case, when the standard of review is reasonableness, a decision being reviewed need only fall within a range of reasonable outcomes. In this case, there was nothing arbitrary or discriminatory in the employer’s treatment of the employee. Therefore, the employer was not on the hook for discrimination.

What helped the employer was the extensive documentation that could easily be provided to show that there were legitimate performance concerns. Therefore, one lesson to take from this case is to be consistent with your performance reviews and probationary processes. It is always important to document any performance issues, discussions and follow-ups with the employee regarding the performance concerns and the steps asked, taken and required by the employee.

In addition, if wrongful dismissal actions are to be avoided, the employer should ensure that any termination of a probationary employee is conducted fairly and reasonably. When an employer wants to terminate an employee during the probation period, the employer must show that he or she acted fairly and with reasonable diligence in determining whether or not the employee was suitable in the job for which he or she was hired and being tested.

Christina Catenacci
First Reference Human Resources and Compliance Editor

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Christina Catenacci

Christina Catenacci, BA, LLB, LLM, was called to the Ontario Bar in 2002 and has since been a member of the Ontario Bar Association. Christina worked as an editor with First Reference between February 2005 and August 2015, working on publications including The Human Resources Advisor (Ontario, Western and Atlantic editions), HRinfodesk discussing topics in Labour and Employment Law. Christina has decided to pursue a PhD at the University of Western Ontario beginning in the fall of 2015. Read more
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