There is sometimes uncertainty surrounding the evaluation of a probationary employee. Must an employer solely rely on objective criteria or can subjective criteria also be considered? According to arbitrator Nathalie Faucher in Syndicat des cols bleus regroupés de Montréal (SCFP, section locale 301) c. Montréal (Ville de), 2016 OCTA 151(PDF - available in French only), an employer is entitled to take into account subjective criteria.

The Facts

The complainant was hired by the City of Montreal as a gardener. As such, she was required to prepare flower beds, and to plant and trim the gardens. The complainant was subject to a probationary period of 520 working hours.

The City terminated the complainant's employment during the probationary period after she failed an evaluation. In that evaluation, the City concluded that the complainant showed little initiative and exhibited a flagrant lack of enthusiasm and motivation for her job.

The union grieved the complainant's termination of employment, claiming that the employer's decision was abusive and contrary to the requirement of good faith because it had been based on subjective and arbitrary reasons.

The Decision

At the outset, the arbitrator clarified that a probationary period is a period during which a new employee must demonstrate to the employer not only that she satisfies the requirements of the position for which she was hired, but also that she fits in well with her new work environment and team.

The arbitrator noted that while an employer's assessment of an employee's lack of enthusiasm and motivation is primarily based on a subjective evaluation, this fact does not automatically render the assessment arbitrary or an abuse of management rights. For example, an employee's failures in these areas can be observed by watching how the employee works or behaves with her team. In the arbitrator's eyes, while these observations may not be as tangible as, for example, failing a test, they are nonetheless aspects that can be evaluated by a manager. As such, the employer in this case could validly rely on these observations when evaluating the complainant.

The arbitrator then stated that every employer must give a probationary employee a real opportunity to prove themselves and demonstrate their ability to satisfy the job requirements. In addition, although not obliged to provide formal warnings, an employer should at least inform a probationary employee if she is not satisfying certain aspects of the job and identify those deficiencies precisely.

In this case, the employer's expectations had been communicated to the employee and she had been notified that she was failing to meet them. While these failings could have been explained more clearly to the employee, the fact remained that she could not credibly claim that she had been completely unaware of her new employer's dissatisfaction.

Finally, the arbitrator concluded that although the employer's criticisms would not have justified the dismissal of a permanent employee, the process followed by this employer in relation to a probationary employee did not constitute an abuse of its management rights. As a result, the arbitrator dismissed the grievance and confirmed the dismissal.

Lessons for Employers

This decision is of interest to all employers. First it confirms that when dismissing a probationary employee for incompetence, an employer is not required to abide by the same standards as those that apply when dismissing a permanent or regular employee. Only when an employer makes a decision without any evidence or based on a totally erroneous perception will it risk being found to have unreasonably exercised its management rights, with the result that the dismissal may be set aside.

Second, the arbitrator made it clear that an employer can rely on subjective criteria when evaluating employees during their probationary period, without this reliance automatically resulting in an abuse of its management rights. However, any reliance on subjective elements must be based on actual and verifiable observations, and must not be founded solely on unconfirmed perceptions or opinions.

In terms of best practices, every employer should develop a structured evaluation procedure for both probationary and permanent employees, which includes performance evaluation criteria with tangible and observable elements, whether or not those elements may also have a subjective aspect to them.