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"Suitability" the standard for dismissal during probationary periods rules Ontario Divisional Court


In a recent case, the Ontario Divisional Court clarified the standard required for dismissal of employees during probationary periods. Employers are reminded that probationary periods are to serve as a time for determining the "suitability" of the employee for employment, but employers must be fair in their assessment. 

In Nagribianko v Select Wine Merchants Ltd., an employee started employment with Select Wine Merchants on a six-month probationary period and was dismissed just before the end of the trial period. The employee filed a wrongful dismissal suit.

The Ontario Divisional Court held that the standard of dismissal for probationary employees is "suitability". The employer has discretion in determining "suitability", which cannot be questioned, but must act fairly in determining whether the employee is "suitable", and give the employee fair opportunity to demonstrate their ability. The presumption of a reasonable notice requirement for dismissal will be rebutted if the employer set job-performance criteria that were reasonable in connection to the employment, informed the probationary employee of these criteria, allowed the employee reasonable opportunity to satisfy the criteria, and met with the employee to discuss job performance. As such, the court rejected Mr. Nagribianko's claim by pointing out that Mr. Nagribianko knew that his employment was subject to probationary conditions. The fact that the employee was not presented with a hard copy of the employee handbook had no impact on these facts. Further, employment which is subject to a probationary period cannot by itself be considered as "inducement' away from another form of secure employment.

While probation allows employers broad discretion in decisions regarding a probationary employee's long-term employment, one of the takeaways from this decision is that this discretion is not unlimited, as employers must act fairly in their decision making. Employee rights are further protected by the requirement that probationary periods must be explicitly contracted for, and cannot violate the Employment Standards Act.

If you believe that you have not been treated fairly by your employer, do not face your struggle alone. De Bousquet PC has a proven track record of fighting for the rights of employees and we will help you obtain the best results in your case.

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