In Dalskog v. Crowsnest Pass Ecomuseum Trust Society, 2019 CarswellAlta 255 the Alberta Provincial Court held that if an employer was aware of an employee’s limitations when they were hired and promised, then failed to provide training and support it may not properly terminate a probationary employee whose performance was not satisfactory.

Background

Ms. Dalskog, was hired as the executive director for the employer, the Crowsnest Pass Ecomuseum Trust Society. Prior to the end of her probationary period, Ms. Dalskog’s employment was terminated.

The employer, which operated a decommissioned mine as a tourist attraction, relied upon grants for a significant portion of their revenue.

The relevant employment contract stated that the employee’s responsibilities included researching and writing grant applications. It was agreed that the departing executive director would train the employee for two weeks with respect to certain grants. A clause in the employment contract specifically acknowledged that the employee was not a qualified bookkeeper and stated that it was the responsibility of the board of the employer to retain a bookkeeper.

The previous executive director was unable to train the new executive director due to illness. In addition, a bookkeeper resigned shortly after being hired and no replacement bookkeeper was hired by the employer. As a result, Ms. Dalskog became responsible for the bookkeeping work. These bookkeeping responsibilities diminished Ms. Dalskog’s capacity to perform her other employment duties.

Prior to her dismissal, Ms. Dalskog asked the employer’s board members several times about applying for a municipal grant. Ms. Dalskog was informed that she would receive assistance when it was necessary. The promised assistance was not provided and a deadline for applying for the grant was not met. Ms. Dalskog was then terminated in a meeting where various board members of the employer criticized her decisions and asserted that she was incompetent and disrespectful. Ms. Dalskog filed an action for wrongful dismissal.

Alberta Provincial Court confirms test for terminating probationary employees

In its decision, the Alberta Provincial Court confirmed the test for having a sound basis to terminate a probationary employee. The Court held that in order for the termination of a probationary employee to be upheld the employer must be able to prove:

  • that the employee was given a reasonable opportunity to demonstrate their suitability for the job;
  • that the employee was found not to be suitable for the job; and
  • that the decision to terminate employment was based on an “honest, fair and reasonable assessment of the suitability of the employee”.

The missed deadline for the grant application was the primary justification the employer provided for the termination. The Court held that the missed deadline was not solely the employee’s fault. The Court also found that the employee was entitled to rely on the promise of timely help from the employer’s board members. Moreover, she could not be held entirely responsible for her shortcomings regarding bookkeeping since it was understood from the beginning of the employment relationship that she did not have relevant experience and training.

The Court awarded the employee damages of $9,150.00 and aggravated damages of $3,500.00 after finding that the employee’s probationary term was wrongfully terminated, that the employer’s assessment of the employee was unfair, and that the employer did not provide the employee with a reasonable, honest, and fair opportunity to demonstrate her suitability for the job.

Takeaways for employers

For a proper and defensible termination of a probationary employee an employer must be able to establish:

  • that the employee was given a reasonable opportunity to demonstrate their suitability for the position;
  • that the employee was found not to be suitable for the position; and
  • that the decision to terminate employment was based on an honest, fair and reasonable assessment of the suitability of the employee.

Employers should be fair with respect to their expectations of employees. In this circumstance, fairness dictated that an employer could not properly terminate the probationary employee’s employment on the basis of incompetence after accepting and understanding that the employee had limited experience and qualifications, promising to provide training and then failing to fulfill that promise, and breaching its obligation to hire a qualified bookkeeper.