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Probationary Periods

Discipline and Dismissals

In the recent case of Van Wyngaarden v Thumper Massager Inc., the Ontario Divisional Court confirmed that unless a dismissal is in bad faith, an employer is entitled to dismiss an employee during the probationary period without cause and without notice.

The employee (“Van Wyngaarden”) was working for a company developing battery-related products for high-efficiency usage. In February 2015, he received an unsolicited email from Thumper Massager Inc. (“Thumper”), inviting him to contact them if he was unhappy with his current employment. Van Wyngaarden contacted Thumper and they advised him that they were considering hiring a full-time in-house designer. Negotiations proceeded via email, and Van Wyngaarden ultimately accepted an offer of employment. The offer was subject to a six month probationary period which read:

“There is a 6-month probation period associated with this role. During this time we will review your performance and development. This work offer will automatically become permanent upon successful completion of your probation period.”

On October 5, 2017, just two days before the end of the probationary period, Van Wyngaarden’s employment was terminated for unsatisfactory performance.

As a result, Van Wyngaarden brought an action against Thumper for wrongful dismissal. He then brought a motion for summary judgment which was dismissed along with the action.

The motion judge held that Thumper was not required to provide reasonable notice in order to terminate Van Wyngaarden’s employment without cause during the probationary period unless the dismissal was done in bad faith. The Judge found that Thumper provided Van Wyngaarden with a fair opportunity to demonstrate his suitability for the role and had not acted in bad faith. The Judge also found that Thumper had honestly and without ulterior motive considered matters relevant to Van Wyngaarden’s suitability for continued employment.  

Van Wyngaarden appealed the decision.

The appeal was dismissed. The Court noted that the employment agreement was one page long, the probation clause was a stand-alone clause in the middle of the page and it was stated in plain language. It would not have been credible for the Plaintiff to say that he was not aware of it or that he did not understand its importance. As a result, the Court held that Van Wyngaarden was bound by the probation clause.

The Court also agreed with the Motion Judge that Thumper did not act in bad faith and was therefore entitled to dismiss Van Wyngaarden during the probationary period without cause and without notice.

This decision confirms that an employer does not have to prove just cause to terminate an employee during the probationary period. All that is required is that the employer shows that it did not act in bad faith, that it gave the employee a fair opportunity to demonstrate his/her suitability for the role, and it acted fairly in determining that the employee was unsuitable for the role.

Our team is here to help you. If you are an employer with concerns about your obligations, you can contact us for advice. Similarly, if you are an employee with questions about your rights and entitlements, you can also contact us for advice.

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