ARTICLE
12 April 2024

Human Rights Considerations When Dismissing Probationary Employees

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Lawson Lundell LLP

Contributor

Lawson Lundell is a leading full-service law firm, known for our strategic approach to legal services. With over 160 lawyers, and offices in Vancouver, Calgary, Yellowknife and Kelowna, we are widely recognized for our depth of experience and innovative solutions to complex business law and litigation matters across various sectors.
Employers often rely on probationary periods when dismissing new employees who are not a good "fit" for their organization. But can probationary employees...
Canada Employment and HR
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Employers often rely on probationary periods when dismissing new employees who are not a good "fit" for their organization. But can probationary employees be dismissed for any reason? A recent decision from the BC Human Rights Tribunal provides a valuable reminder that human rights obligations apply to all employees, including probationary employees.

Facts

The Complainant was hired as a car salesperson at the Respondent car dealership, and was subject to a three-month probationary period. The Complainant had weekly meetings with the General Manager, and daily meetings with the Sales Manager, where the importance of learning the Respondent's sales method was emphasized to the Complainant. The General Manager testified that the Complainant continued to have issues learning and memorizing the sales method, and his performance suffered. Notes from one of the meetings indicated that the General Manager warned the Complainant that if he did not have the sales method memorized by the next Monday, his employment would be in jeopardy.

The General Manager testified that the Complainant had still not memorized the sales method on the next Monday, so the management team decided to terminate the Complainant's employment due to continued performance issues. The team decided to delay the termination until the end of the week, after their regular month end duties were completed. In the meantime, the Complainant continued working.

Two days later, the Complainant became emotionally distraught at work and was taken to the hospital (the "First Incident"). Five days later when the Complainant returned to work, his behaviour was "erratic" and paramedics were called (the "Second Incident"). The General Manager summoned the police, who attended and apprehended the Complainant under the Mental Health Act. On the same day as the Second Incident, the General Manager gave the Complainant a letter terminating his employment.

Relying on the timing of his termination, the Complainant testified that his dismissal was related to the two mental health incidents that took place at the workplace. The Respondent applied to dismiss the Complaint on the basis that the Complainant had no reasonable prospect of proving that his mental disability was a factor in the decision to terminate his employment.

Findings

The Respondent was not able to persuade the Tribunal that the decision to terminate the Complainant's employment was made before the First Incident, and was not affected by the events thereafter. Critically, there were no notes, emails, or records of the termination decision being made before the First Incident, and the only evidence on this point was from the General Manager – there was no evidence from any other member of the management team who were part of this decision. The Respondent provided only minimal evidence about why the termination was not completed right away, and why the Complainant was permitted to continue working in the interim. The Tribunal decided that a full hearing was required to determine whether the Complainant's mental disability was a factor in his dismissal, and denied the Respondent's application to dismiss the Complaint.

Key Takeaways

Although this was a preliminary step in the case and is not a decision on the merits, the Tribunal's decision provides important insights for employers when dismissing probationary employees:

  • Human rights obligations apply when dismissing all employees, even probationary employees. Consider whether protected grounds under human rights legislation could be considered a factor in any employment-related decisions.
  • Review the probationary clause language in your employment agreements.
  • If your organization is having issues with a probationary employee, provide feedback to the employee and set clear expectations for improvement.
  • Ensure that you carefully document any discussions and the issues with the employee's conduct or performance.
  • If your organization decides to dismiss a probationary employee, carefully document the reasons for the dismissal.
  • Complete the dismissal promptly to avoid issues with intervening events. If this is not possible, carefully document the reasons for the delay and your plan to complete the dismissal in the future.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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