Another Probation Case from Lethbridge
Last week, we discussed the probationary dismissal of Ms. Dalskog. Yesterday, another similar case was released by the Alberta Provincial Court, again out of Lethbridge.
Mr. Christensen was hired as a senior accountant by Tollestrup - a group of companies that operates a number of Tim Hortons franchises. He began working on July 6, 2017, and was dismissed as of September 27, 2017.
There are parallels to the Dalskog case: Like Ms. Dalskog, Mr. Christensen argued that he was not appropriately trained and did not receive the necessary support or feedback from the employer. In this case, however, the Court did not accept that position.
The employer argued that the termination decision was motivated by errors and missed deadlines in Mr. Christensen's work, and that he was not the right "fit" for the organization.
On the Court's summary of the evidence, the conclusions are not surprising: On the one hand, Christensen justified omissions in his work on the basis that he "didn't have the time". On the other hand, he took time off work on false pretenses (representing to the employer that he had medical appointments, when in fact he was engaged in other job-seeking activities), and promised to work while away - and did not do so. The overall picture these facts paint is not one of a diligent employee trying his best to get his work done in a difficult situation.
As such, Judge Oishi applied the suitability test, and concluded that Mr. Christensen had been given an opportunity to demonstrate his suitability, that he failed to do so, and that the dismissal was based on a "fair determination". It's a slightly different articulation of the test from that described in Dalskog and Higginson, but it captures the same spirit.
However, on my review of the decision, I find myself left wondering about one critical factual element: What is the basis for the finding that Mr. Christensen's employment was subject to a three month probationary period?
There is a pervasive myth that all employees are subject to at least a three month period of probation. This is not true. Probation is something for which employers must expressly contract. And they don't always do so - and when they do, the contractual terms aren't always valid. As such, in any probation case, the first issue to scrutinize is the basis upon which the employer asserts the existence of a period of probation.
Judge Oishi's reasons don't spell that out. She notes that Christensen "was hired on a 3 month probationary basis", and that he "knew the probation was 3 months long"...but she doesn't explain how or why. Was it put to him in a verbal or written offer of employment? Integrated into the terms of a duly-executed employment contract? There (arguably) doesn't need to be much, but there needs to be something.
To be clear, even if Mr. Christensen himself assumed there to be a three month probationary period (pursuant to the above-noted "pervasive myth"), without some contractually binding term to that effect, such an assumption doesn't give the employer an entitlement to rely upon it. (It bears noting, again, that Mr. Christensen was self-represented. If he simply assumed the probationary period to be automatic, it is entirely plausible that he would not have thought to challenge the assertion of a probationary period.)
As I highlighted in the Dalskog case, scrutiny of the contractual probation provisions there leave real doubts as to whether the plaintiff in that case was actually probationary in the first place. This isn't something that can be taken for granted, and the fact that it's not addressed at all in Judge Oishi's reasons in Christensen raise a red flag for me to wonder if there's the requisite support on the evidentiary record for a probationary period at all.
*****
Dennis Buchanan is a lawyer practicing labour and employment law and civil litigation in Edmonton, Alberta.
This post does not contain legal advice, but only general legal information. It does not create a solicitor-client relationship with any readers. If you have a legal issue or potential issue, please consult a lawyer.
Mr. Christensen was hired as a senior accountant by Tollestrup - a group of companies that operates a number of Tim Hortons franchises. He began working on July 6, 2017, and was dismissed as of September 27, 2017.
There are parallels to the Dalskog case: Like Ms. Dalskog, Mr. Christensen argued that he was not appropriately trained and did not receive the necessary support or feedback from the employer. In this case, however, the Court did not accept that position.
The employer argued that the termination decision was motivated by errors and missed deadlines in Mr. Christensen's work, and that he was not the right "fit" for the organization.
On the Court's summary of the evidence, the conclusions are not surprising: On the one hand, Christensen justified omissions in his work on the basis that he "didn't have the time". On the other hand, he took time off work on false pretenses (representing to the employer that he had medical appointments, when in fact he was engaged in other job-seeking activities), and promised to work while away - and did not do so. The overall picture these facts paint is not one of a diligent employee trying his best to get his work done in a difficult situation.
As such, Judge Oishi applied the suitability test, and concluded that Mr. Christensen had been given an opportunity to demonstrate his suitability, that he failed to do so, and that the dismissal was based on a "fair determination". It's a slightly different articulation of the test from that described in Dalskog and Higginson, but it captures the same spirit.
However, on my review of the decision, I find myself left wondering about one critical factual element: What is the basis for the finding that Mr. Christensen's employment was subject to a three month probationary period?
There is a pervasive myth that all employees are subject to at least a three month period of probation. This is not true. Probation is something for which employers must expressly contract. And they don't always do so - and when they do, the contractual terms aren't always valid. As such, in any probation case, the first issue to scrutinize is the basis upon which the employer asserts the existence of a period of probation.
Judge Oishi's reasons don't spell that out. She notes that Christensen "was hired on a 3 month probationary basis", and that he "knew the probation was 3 months long"...but she doesn't explain how or why. Was it put to him in a verbal or written offer of employment? Integrated into the terms of a duly-executed employment contract? There (arguably) doesn't need to be much, but there needs to be something.
To be clear, even if Mr. Christensen himself assumed there to be a three month probationary period (pursuant to the above-noted "pervasive myth"), without some contractually binding term to that effect, such an assumption doesn't give the employer an entitlement to rely upon it. (It bears noting, again, that Mr. Christensen was self-represented. If he simply assumed the probationary period to be automatic, it is entirely plausible that he would not have thought to challenge the assertion of a probationary period.)
As I highlighted in the Dalskog case, scrutiny of the contractual probation provisions there leave real doubts as to whether the plaintiff in that case was actually probationary in the first place. This isn't something that can be taken for granted, and the fact that it's not addressed at all in Judge Oishi's reasons in Christensen raise a red flag for me to wonder if there's the requisite support on the evidentiary record for a probationary period at all.
*****
Dennis Buchanan is a lawyer practicing labour and employment law and civil litigation in Edmonton, Alberta.
This post does not contain legal advice, but only general legal information. It does not create a solicitor-client relationship with any readers. If you have a legal issue or potential issue, please consult a lawyer.
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