What is the meaning of a "probationary" period for an employee? This is the question the Ontario Divisional Court wrestled with in the recent case of Nagribianko v. Select Wine Merchants. The facts of the case are fairly straightforward. Upon agreeing to work for the defendant, the plaintiff agreed to an employment contract that expressly provided for a 6-month probationary period. The plaintiff had been working for the defendant for just under 6 months when his employment was "after careful consideration" terminated on the grounds that the plaintiff was deemed "unsuitable for regular employment". The plaintiff subsequently sued the defendant for wrongful dismissal.
The trial judge sided with the plaintiff and awarded him common law damages equivalent to four months' salary and benefits in lieu of reasonable notice. In reaching this decision, the trial judge relied on the defendant's Employee Handbook to determine the meaning of a "probationary period", stating he could not determine what the probationary period means "just by the contract".
On appeal, Justice Sanderson found that the meaning of a "probationary period" should be based on what a reasonable person in the circumstances would understand it to mean. A "probationary period" is reasonably understood to mean a testing period during which an employer assesses an employee's suitability for permanent employment. An employee's suitability, Justice Sanderson added, includes considerations of the employee's character, ability to work with others and overall performance. In this instance, the defendant acted in good faith in determining the probationary employee was unsuitable for regular employment and was therefore entitled to dismiss the plaintiff without notice.
This is a good case for employers as it indicates that, absent clear evidence to the contrary (contractual or otherwise), courts will likely be inclined to define a "probationary period" as it is ordinarily understood – a test period during which an employer assesses an employee's suitability for regular employment and limiting notice if the employee is found to be unsuitable.
Written with the assistance of Michael Viner, articling student.
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