Canadian HR Reporter

CANADIAN HR REPORTER May 16, 2016 NEWS 3 your career in focus When it comes to practicing human resources, membership matters. Only HRPA offers Certified Human Resources Professional, Leader, and Executive designations: the new global standard for HR excellence and professionalism. The CHRP, CHRL and CHRE designations demonstrate an HRPA member's commitment to their career and the success of their organization. P U T Y O U R C A R E E R I N F O C U S hrpa.ca/infocus Ontario case shows termination during probation could be risky business Most employers consider it 'safe' termination – but that may not be the case BY LIZ BERNIER MANY employers generally as- sume that terminating an employ- ee who's still in his probationary period is a clear-cut process — so no reasonable notice is necessary. But that may not be true, if a recent Ontario case is any indication. In Nagribianko v. Select Wine Merchants, Alexander Nagribi- anko was a probationary employee of Select Wine Merchants who was terminated in 2013 during his six- month probationary period after the employer said he was "unsuit- able for regular employment." In 2014, Nagribianko sued for wrongful dismissal. And in 2015, he was awarded notice equivalent to four months' salary and benefits as the court said the employer had "induced" Nagribianko away from a secure job elsewhere, and he was never provided with an employee handbook, which held important information about probationary periods with that employer. But upon appeal, the On- tario Superior Court of Justice Divisional Court dismissed the lawsuit, saying Select Wine Mer- chants applied the suitability test properly and in good faith. "A probationary employer must extend to the probationary employee a fair opportunity to demonstrate suitability for per- manent employment. However, in the absence of bad faith, an employer is entitled to dismiss a probationary employee without notice and without giving rea- sons," said the judge. "Probation- ary employment, on its face and by its nature, is inconsistent with any inducement or promise of long-term employment." Issues for employers e case is interesting for a num- ber of reasons, said Hendrik Nieuwland, partner at Shields O'Donnell MacKillop in Toronto. "First is you don't often see people litigate when they've been terminated during the probation- ary period. There's not a lot of law on the subject," he said. "e amount of money at stake is often too small, so most employers… are not as concerned about be- ing sued when they fire someone within the probationary period. But, of course, employers need to be concerned about that when they actively recruit someone from se- cure employment, which appears to have been the case here." at this particular case was ap- pealed is not surprising, said Aar- on Rousseau, founding partner at Rousseau Mazzuca in Toronto. "It was pretty obvious that the trial judge got it wrong," he said. "Probation normally is going to defeat any claim of inducement, so there was no way that the plain- tiff should have been getting four months' (notice). "I do think that the judge has moved Ontario a little closer — in terms of the importance of proba- tion — to the line that's generally been taken in B.C." Probation is not as neat and tidy as a lot of employers would like it to be, said Rousseau. "is employer had exactly the right instinct, which was not to stop with just saying in the con- tract that there was probation, but to actually spell out how long of a notice period would be required during the probation period. But they didn't implement it properly because they didn't put that into the main body of the contract, and then they didn't give him the handbook that contained that line," he said. "Probation has some hurdles if you want to rely on it as an em- ployer, which is why it's better to have the one-two punch of a termination provision as well as a probationary clause." e trouble with probation is it tends to require the employer to demonstrate the employee did lack suitability, and the employee had a fair chance to prove herself, said Rousseau. "at is not necessarily a ter- ribly high bar to meet, but it is a bar to meet. So there are cases, for example, which say that the employer needs to articulate some kind of standard, and it also needs to give the employee feedback on whether he or she is meeting that. So that's something that often is actually not happen- ing in the first few months of em- ployment, where the employer may just be thinking of one re- view near the end of the proba- tion period," he said. "To take advantage of a proba- tionary clause often requires some work on the part of the employer." Given that probation could DON'T > pg. 11

• Cover