There is often a level of uncertainty as to the parties' respective rights when new employees are subject to a probationary period. Do employers have an absolute discretion when it comes to employee performance evaluations and whether or not to maintain employment after the probationary period? In Union des employées et employées de service, section locale 800 v. Limocar Estrie Inc. (PDF - available only in French), where the business in question was unionized, one arbitrator says they do not.
The employee had very little experience when she was hired as a bus driver by the employer, a private passenger transportation business. After taking the training offered by her employer, she was subjected to a probationary period marked by several incidents, which included two minor collisions with the bus she was driving (no passengers on board and no injuries) and failure to warn a person who was consuming alcohol on a chartered trip. Her employment was terminated during her probationary period on the grounds that she did not meet the business's requirements.
The arbitrator first established that he was bound to verify whether the employer gave the employee a real opportunity to show she was able to hold down a regular job with the employer. He then referred to a test developed in case law that usually applies to regular employees whose performance the employer deems to be unsatisfactory:
- the employee must be aware of the employer's expectations;
- the employee's performance must be significantly unsatisfactory compared to that of the other employees;
- the employee must have been warned that his or her performance is unsatisfactory;
- the employee must have received the assistance and support needed to remedy the situation;
- the employee must have been warned of the consequences that failing to improve would have on the employment relation;
- the employer's decision must not have been made in bad faith.
To these criteria the arbitrator added that employers have the obligation to be rigorous in their employee performance evaluation processes. That evaluation must also be conducted taking the employee's status into consideration, which in this instance was someone who was starting a new job, with the level and type of experience that she already had.
Here, the arbitrator ruled that the employee's performance was not significantly unsatisfactory compared to that of the other drivers. He pointed out that the employer should not have compared her performance with that of the other more seasoned drivers seeing as, according to him, this would have effectively misrepresented the real objective that must be set for probationary periods. He noted, moreover, that there was a lack of documented or supervised training, and no performance profile on which an objective or rigorous evaluation might have been based. The employer made its decision to terminate the employment based solely on opinions and impressions, not on facts established by means of a serious and rigorous evaluation. The employer's evaluation of the employee should have taken into account not only the difficulties that are normal in cases where someone with limited experience takes on a new job, it should also have considered the future outlook.
By being lax in its evaluation of the employee's performance, the employer abused its managerial right and thus deprived her of a fair evaluation and a real opportunity to demonstrate her ability to satisfactorily hold the position of bus driver.
The employer was therefore ordered to reinstate the employee so that she could pursue the remainder of her probationary period.
The Lesson for Employers
The arbitrator insisted that it was normal to expect employees who are beginning a new job to make mistakes, whether those are due to inexperience or because the employees have not yet fully integrated the objectives and expectations of the business.
Although this decision may be surprising, it illustrates the importance for employers of giving new employees a real chance to demonstrate their abilities by relying on an objective and rigorous evaluation of their performance. Employers have an interest in establishing a specific and supervised procedure that includes documentation and a performance profile on which an objective evaluation may be based. In the end, an evaluation should be grounded on verified or verifiable facts, not only on perceptions or opinions that have not been validated.