Court finds ex-employee unfairly awarded damages after being let go during probationary period

Select had given Nagribianko notice before the six month deadline and told him that they found him to be “unsuitable for regular employment.”
Select had given Nagribianko notice before the six month deadline and told him that they found him to be “unsuitable for regular employment.” iStock.

Most employees are familiar with the concept of a probationary period.

Generally, it means when you start a new job there is a period of time as per the terms of the employment contract where your employer will assess whether you are a suitable employee. If you’re not found to be a good fit, then the employer has the right to ask you to leave without penalties to the employer.

Apparently, not everyone understands that though.

In the Ontario Superior Court of Justice Divisional Court case Nagribianko. v. Select Wine Merchants Ltd., Select appealed a small claims court decision that awarded its former employee Alexander Nagribianko damages in lieu of four months’ notice on termination of his employment. Nagribianko had sued Select for wrongful dismissal.

There was only one small problem with the small claims court ruling: Nagribianko had been dismissed while he was still under his probationary period.

In reviewing the small claims decision, Judge Mary A. Sanderson notes that employers have probation periods in order to evaluate whether an employee is suitable for employment.

Accordingly, the court used the case Jadot. v. Concert Industries, and Markey. v. Port Weller Dry Docks Ltd, to make the point that where there is no bad faith on the part of the employer, they have the right to terminate a probationary employee without giving notice and without having to give reasons.

Nagribianko had signed an employment contract with Select that stated that his probationary period was to last for six months. However, at the time the employment contract was signed he was not given a copy of the employee handbook, which was referenced in the employment contract. The handbook explained that Select could terminate a probationary employee either by giving written notice or payment in lieu of notice.

Select had given him notice a few days before the six month deadline and told him that “after careful consideration” they found him to be “unsuitable for regular employment.”

So why did the small claims court still award Nagribianko damages? According to the deputy judge: “…there is no way I am going to determine what probationary period means just by the contract.”

Sanderson didn’t buy the small claims court’s reasons for awarding damages and found that the deputy judge erred in not enforcing the contract, which clearly set out that the probationary period was six months.

The court concluded that a reasonable person in the same circumstances as Nagribianko would have understood that during probation his or her employment was tentative and unstable.

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