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"Ambiguous" probationary period leaves employer liable for notice damages

A recent Ontario decision points again to the fact that, where a provision in an employment contract takes away an employee's rights, it will be subject to close scrutiny in court. At issue in Easton v. Wilmslow Properties Corp. (February 9, 2001) a decision of the Ontario Superior Court of Justice, was the termination of a bookkeeper after only two weeks on the job.

Donna Easton had held a position as a personal and small business banker for nine years when she left her job to work at Wilmslow. Easton testified that she accepted the new job on the understanding that she would start at a salary of $32,000, but that her salary would be increased following a three-month period during which she would be trained to take on all the duties of the position.

Easton's contract indicated that the "Probationary Period" was to be "90 days from start date". With respect to the "Post Probationary Period", the contract said the following:

"Upon successful review and completion of the outlined duties, the salary shall be adjusted upward to $45,000 per annum. Failure to completely and satisfactorily fulfill the prescribed duties will result in re-negotiation of the salary structure."

After starting her new job, it became apparent that Easton could not master the computer skills her position required. She was terminated with two weeks salary in lieu of notice.

Easton succeeded in persuading the court to award her three months' notice, having regard to the fact that she had left a secure job on the understanding that her new position would be reasonably secure. On the question of the allegedly probationary nature of her employment at the time of dismissal, the court held that the provision in question was not sufficiently clear to be relied on by the employer:

"[T]he use of the phrase "Probationary Period" in the letter offer is ambiguous. It does not spell out that it is meant to be a period when the employee must demonstrate that she is suitable for regular employment as a permanent employee and that she is to go through a period of assessment to determine whether she is suitable for the job."

It was clear, the court held, that Easton was to be treated as a permanent employee from the outset. The mere fact that the word "probationary" was used did not make Easton a probationary employee. Rather, it appeared that only her salary level was probationary in the sense that, if she successfully completed her training, her salary would rise from $32,000 to $45,000.

For further information, please contact Lynn Harnden at (613) 563-7660, Extension 226.