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
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
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
Written with the assistance of Michael Viner, articling
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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