Canadian Employment Law Today

with Tim Mitchell Ask an Expert NORTON ROSE FULBRIGHT CALGARY Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com Canadian HR Reporter, a Thomson Reuters business 2016 2 | June 22, 2016 Answer: e employment standards legis- lation in most Canadian provinces only re- quire the employer to provide statutory no- tice of termination after the employee has been employed for more than a specifi ed period of time. For instance, in Alberta, an employee who has been employed for three months or less is not entitled to termination notice. e probationary term specifi ed by employers often aligns with this statutory period. However, it is important to note that a probationary period of employment must be expressly agreed upon and can never be implied. Without an express agreement of a probationary term, an employer will be re- quired to provide common law notice even if the employee's dismissal occurs within the statutory "grace period." As the purpose of a probationary term is to enable the employer to determine the em- ployee's suitability for permanent employ- ment, an employer is not required to meet the test of just cause to justify the summary dismissal of a probationary employee. Pro- bationary employees have low expectation of job security, and may be discharged during the term of probation if that employee fails to meet the criteria set by the employer and is deemed to be unsatisfactory. Courts have found that if an employee was hired on a pro- bationary basis and was dismissed in good faith within the probation period, the em- ployee would have no action for breach of any implied term as to reasonable notice. at said, the employer still cannot dismiss a pro- bationary employee arbitrarily so long as the dismissal is not motivated by discriminatory factors. Rather, the employer must demon- strate that it did not act in bad faith (or with an ulterior motive or intention to cause the employee loss or harm), and the employee had been given a fair, honest and reasonable assessment of suitability for the job. As set out by the Alberta Court of Appeal in Rocky Credit Union Ltd. v. Higginson, to establish justifi cation for the summary dismissal of a probationary employee, the employer is required to meet the following criteria: • e employer has given the probation- ary employee a reasonable opportunity to demonstrate her suitability for the job. • e employer decided that the employee was not suitable for the job. • e employer's decision was based on an honest, fair and reasonable assessment of the suitability of the employee. For this assessment, the employer is not limited to only the grounds that support the dismissal of a regular employee (i.e. job skills and per- formance), but may also consider factors such as character, judgment, compatibility, reliability and future with the company. In the event the employer is able to meet the above criteria, the employee would have no action for reasonable notice of termina- tion during the probationary period. As the onus is on the employer to prove a probationary term, it would be prudent for the employer to enter into a written em- ployment contract with the new hire that clearly specifi es the probationary period. e employment contract should specify the amount of notice the employee would receive if dismissed during the probationary period, or refer to the statutory minimum set out in the applicable employment standards legislation. Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com Dismissing a probationary employee Question: Is there any reason other than discrimination that an employer cannot summarily dismiss a non-unionized employee who is still on probation? Insulting customers on social media Question: Does an employer have the right to discipline an employee for making insulting remarks about a customer or client on the employee's personal social media page? Answer: Off -duty social media and Internet postings by employees may warrant disci- pline in some circumstances, and summary dismissal in exceptional cases. While an employer cannot discipline an employee for off -duty behaviour that does not relate to or interfere with the employer's business, it is an implied term of the employ- ment relationship that an employee will not engage in conduct that is prejudicial to the employer's interests or reputation. Negative comments about an employer's customers or clients, posted on social media where they may be viewed by many people, can be dam- aging to the employer's business and reputa- tion, and warrant discipline. e severity of the discipline is determined using a contextual analysis, taking into ac- count the nature of the employee's position and job duties, the employer's expectation, the nature and seriousness of the employee's conduct and the impact that the conduct has upon the business of the employer. In Maxam Bulk Services and IUOE, Local 115 (Lebrun), Re, the British Columbia labour arbitrator found that an employee's miscon- duct, which consisted of a brief but off ensive campaign on his personal Facebook page criticizing the employer, the employer's cus- tomer and a supervisor, warranted discipline but did not justify summary dismissal, con- sidering the employee's clean disciplinary record, his apology and remorse. More severe discipline may be justifi ed where the employee is in a position of trust, holds sensitive information about custom- ers or clients, or occupies a senior position where she is regarded as the employer's direct representative. e nature of the in- sult must also be taken into account. For in- stance, in Wasaya Airways LP v A.L.P.A., an arbitrator found that the employer had suffi - cient cause to dismiss the employee for post- ing damaging remarks about the employer's customers on Facebook, where the remarks were disrespectful to First Nations people, and the majority of the employer's custom- ers and stakeholders were First Nations peo- ple. e arbitrator found that the Facebook posts were damaging to the employer and had poisoned the employment relationship to such an extent that it could not continue. While it is an implied term of the employ- ment contract that the employee must not engage in activities prejudicial to the em- ployer's reputation, insulting remarks on personal social media about the employer's customers may justify discipline even in the absence of any policies on social media usage. It would still be prudent for employ- ers to have written policies on social media conduct which clearly set out the employer's expectations and specifi es the disciplinary measures in the event of a policy breach. For more information see: •Rocky Credit Union Ltd. v. Higginson, 1995 CarswellAlta 90 (Alta. C.A.). •Maxam Bulk Services and IUOE, Local 115 (Lebrun), Re, 2015 CarswellBC 2277 (B.C. Arb.). •Wasaya Airways LP v A.L.P.A., 2010 Car- swellNat 6233 (Can. Arb.). Tim Mitchell practices management-side labour and employment law at Norton Rose Fulbright in Calgary o ce. He can be reached at (403) 267- 8225 or tim.mitchell@nortonrosefulbright.com.

• Cover