Probationary Employees

You have worked for Company A for six years doing an excellent job. In the course of this employment you meet and work with a manager of Company B. This manager is impressed with you and speaks to the president of company B extolling your virtues. The president of Company B realizing that you are just who Company B has been looking for, directs the manager to meet with you. In your first meeting with the manager and a vice president who both clearly want you to join the company, you advise them that you are not looking to leave Company A. They persist. At the end of the interview you are offered a better position than what you have now and $2,000 more than your current salary. They tell you that your “potential with Company B is high”. At the end of the meeting, you are excited and accept the new job with Company B. You give Company A two weeks notice of your resignation.

One week before starting at Company B, you are asked to meet with the Plant Manager and another vice president, so that these two people could get to know who you are. At this meeting, the VP mentions a probation period. Surprised, you say nothing in response. You later raise this issue of a probation period with the manager you met with initially. He told you not to worry about it because as he puts it, the other two people were incorrect in thinking that there was a probation period.

You start work on the appointed day and work for five weeks during which you receive positive appraisals from your superiors. Then, the company terminates your employment for the stated reason that your performance was deficient. They provide with you no notice or pay in lieu. Moreover, the company says you are not entitled to notice because your dismissal occurred during the probation period. It takes you nine months to find a new position that is not in the same industry. You sue for damages for wrongful dismissal.

What I have just described is an actual case decided in the Ontario Court of Justice in 1997: Lalingo v. A. & A. Jewellers Ltd. In this case, the Court found in favour of the employee and made a number of important points. Firstly, the Court stated that Lalingo was not a probationary employee as he did not agree to a probation period when he accepted the position. The Court restated the little-known principle that a probation period is not implied within the employment contract. It is a term of the contract like every other and must be agreed to by the parties at the commencement of the relationship.

Secondly, the Court reviewed the reasons given for Lalingo’s dismissal. Given that Lalingo was given nothing but positive appraisals during his five weeks the Court found that the company failed to make out its defence of just cause. The Court then was required to determine the length of notice that Lalingo should have received. One of the factors reviewed was Lalingo’s length of service. The Court found that he was induced from a secure position and enticed by prospects of job advancement warranting additional damages. The Court commented that it was precisely the six years at his previous position that made Lalingo attractive to A & A Jewellers. The Court awarded Lalingo four and one half months of pay in lieu of notice as damages for wrongful dismissal.

If this situation or something similar has happened to you, please call me. I have dealt with this situation many times before and have succeeded at trial on the issue of probationary employees.