Dismissal During a Probationary Period

Written on behalf of Peter McSherry

In Nagribianko v Select Wine Merchants Ltd, 2016 ONSC 490, the Ontario divisional court clarified the meaning of a probationary period.

In this case, Alexander Nagribianko signed an employment contract with Select Wine Merchants Ltd. (“Select”), which expressly provided for a 6-month probationary period. A few days before the expiry of the probationary period, Select terminated Mr. Nagribianko’s employment after determining that he was unsuitable for regular employment. Mr. Nagribianko brought a wrongful dismissal claim in Small Claims Court against Select. At the trial, the Deputy Judge ruled in favour of Mr. Nagribianko because he found that the meaning of “probation” was not clear on the face of the contract. Mr. Nagribianko was awarded 4 months’ salary and benefits in lieu of notice under common law.

Select appealed the decision to the Divisional Court, which found that the term “probation” does have a recognized meaning in employment law. In interpreting the contract, the Deputy Judge should have considered what a reasonable person in the same circumstances would have understood the probationary period to mean. According to the Divisional Court, “A reasonable person in the same circumstances as [Mr. Nagribianko] would have understood the term ‘probation’ to mean a period of tentative employment during which Select would determine whether [he] would be a suitable employee and would decide whether or not to make him a regular/non probationary employee” (para 40).

Since an employer was entitled to terminate the probationary employment in good faith during the probation period, the Divisional Court found that Select had acted properly and did not owe Mr. Nagribianko reasonable notice or pay in lieu thereof. The action was dismissed.

The employment of a probationary employee is different from that of a non-probationary employee, and the Deputy Judge erred in failing to recognize that fact.

To find out more about probationary periods or dismissals without cause, contact employment lawyer Peter McSherry online or at 519-821-5465.

To read the full decision, click here.