Written by Daniel Standing LL.B., Editor, First Reference Inc.
These are two words no employee wants to hear. If job security goes together with seniority, then probationary employees walk a fine line every day they go to work. Most employers with collective agreements that allow for probationary periods rightly view them as a condition of hire during which they can closely observe the new employee and decide whether the person is a good fit. Many would likely say that the organization can dismiss the probationer for next to no reason at all, provided they don’t treat the person too badly in doing so. But is the bar for firing someone who is on probation really that low? A recent federal government case, Ebada v. Canada Revenue Agency, 2021 FPSLREB 94, sets out the law on disguised discipline in probationary terminations.
Under the rubric of its Information Technology Apprenticeship Program (ITAP), the Canada Revenue Agency hired the grievor, Mohamed Ebada, into an IT Developer CS-01 position in 2013 with the objective of eventually promoting him to a CS-02 position. He was subject to a 12-month probationary period which, under the terms of the ITAP, could be extended. Unfortunately, the employer rejected him at the end of his year-long probation in April 2014, citing “performance gaps” and substandard interactive communication skills. The termination letter mentioned that management had taken various steps to help the employee improve, including additional training, coaching, meetings and a performance improvement plan.
Although the employer insisted that its decision was not disciplinary, case law holds that a decision-maker (here, the Federal Public Sector Labour Relations and Employment Board) is entitled to look into the situation to determine if it is really as it appears. The Board explained the shifting legal onus, beginning with the employer’s burden of proof. As soon as there is evidence that the employer is dissatisfied with the employee for bona fide, good faith reasons, the employer can reject the employee on probation. At that point, the onus shifts to the grievor to prove that the alleged rejection of probation was really a disguised disciplinary action.
The Board stated that the case law for rejections of probation can be done for bona fide dissatisfaction with the grievor’s suitability for the job. If that is not the case, then it is seen as a sham or a camouflage, making it a disguised disciplinary action. Unsurprisingly, this determination requires one to look at all of the circumstances involved in the dismissal, starting from the presumption that the employer acted in good faith.
At the hearing, it became evident that the grievor’s employment was terminated based on negative comments that management received about him from his teammates. The actual managers were unable to explain why Mr. Ebada’s performance did not meet the requirements; instead their evidence was non-specific and was mostly hearsay. The adjudicator explained that if there is no substance behind the reasons the employer listed for the termination, the Board may find there was no bona fide dissatisfaction, making it a disguised disciplinary action.
Mr. Ebada’s performance improvement plan and his mid-year performance review showed that he had some problems at the start of his probationary period, but that he mostly met expectations. The employee’s performance shortcomings were not enough to cost him his job in the Board’s estimation since most new employees have a learning curve. Also, the evidence, in this case, showed that it would be 12-18 months before he would have been expected to progress to a CS-02.
Adding insult to injury, the employee’s uncontradicted evidence was that he was never told that there were problems with his performance, and he was denied technical training that impacted his work performance. If there were problems with his performance, then the ITAP required the employer to consider extending the probationary period. Since the employer failed to do that, it cast doubt on its true intentions. A review of these factors led the Board to conclude that the dismissal was arbitrary and not based on a bona fide dissatisfaction with Mr. Ebada’s ability to do his job.
The arbitrator declined to issue a remedy in the absence of submissions on that point. She directed the parties to try to agree on an appropriate remedy, failing which mediation was prescribed to assist them in resolving the dispute.
What exactly does the employer have to show to terminate a poorly performing probationer? As in any case, the facts dictate the result, but at least in the federal sector, the concept of good faith reigns supreme. Good faith is a broad concept that essentially means dealing fairly and exercising discretion reasonably.
Even in a case where a probationary employee is denied the protection of the ‘just cause’ standard of evidence leading to termination, they are still entitled to protection against arbitrary or unreasonable dismissal. Consider, for example, whether the context requires a performance review at some point before the end of the probationary period. Probationers can be set up to succeed with appropriate training, coaching or other tools. It goes without saying that employees must know the standard that’s expected to be met. Nothing could be more demoralizing than being fired for reasons that went unaddressed during the probationary period. Employers who shroud their intentions in trumped-up allegations of the poor performance run a real risk of falling into the trap of ‘disguised disciplinary action’. Transparency about performance problems during probationary periods is critical to avoiding this outcome.