It is common for employers to terminate a new employee during a probationary period when there is a bleak outlook on the employee’s performance.

However, probationary employees cannot be terminated for just any reason during this period. The recent decision of the BC Human Rights Tribunal (the “Tribunal”) (Varghese v. Dueck Richmond Chevrolet Buick Cadillac GMC Ltd., 2024 BCHRT 43) serves as a reminder to employers that probationary employees cannot be terminated at will; other factors must be considered.

Facts of the Case

In this case, a salesperson began working for the employer, under a three-month probationary period. The expectation was that the salesperson would make 6-8 sales in his first month. However, the salesperson only sold one car in the first five weeks and was only able to secure a single appointment despite being provided the contact information for 26 long-term customers.

The general manager met with the salesperson weekly, and the sales manager met with him daily. The employer testified that from the start, the salesperson struggled with the dealership’s sales process. Despite receiving constructive feedback and support, the salesperson did not improve and was unable to memorize the sales process.

On March 2, the employer decided to terminate the salesperson due to these performance issues but delayed the termination until after the regular month-end duties were completed. The salesperson continued working. Two days layer, the salesperson became emotionally distraught at work, leading to paramedics being called and taking him to the hospital. The salesperson returned to work the following week, but had another emotional episode, prompting paramedics and the RCMP to respond.  The salesperson was apprehended under the Mental Health Act. That same day, the employer terminated the salesperson and provided a termination letter.

The employee argued that his mental disability was a factor in his termination due to the timing. The employer disputed this, arguing that the decision to terminate was made before the mental health incidents occurred.

The Tribunal’s Reasoning and Findings

The Tribunal confirmed that the employee only needed to prove that his mental disability, real or perceived, was one factor in the termination decision. It did not have to be the overriding factor. This means that even if the employer had serious concerns about the employee’s performance, it could still be liable for discrimination if the employee’s mental health issues influenced the termination decision. The Tribunal noted that there were no notes, emails, or records of the termination decision being made on March 2nd and minimal evidence explaining why the termination was delayed or not completed later in that week as planned. Instead, it occurred after two mental health episodes, leading to an inference that the episodes factored into the termination decision.

The Tribunal ruled that a full hearing was necessary to determine whether the salesperson’s mental disability was a factor in his termination and denied the employer’s application to dismiss the case.

Employer Takeaways

The Tribunal’s findings offer valuable guidance for employers dealing with the termination of probationary employees:

1. Employers must adhere to human rights obligations even when terminating probationary employees. Consider whether any factors related to protected grounds under human rights legislation might influence the termination decision.
2. If your organization encounters challenges with a probationary employee, provide constructive feedback and establish clear expectations. Document all discussions and issues concerning the employee’s performance or conduct.
3. Execute the dismissal promptly to prevent complications from intervening events. In cases where immediate action is not feasible, document the reasons for the delay and outline a plan for completing the dismissal soon.
4. Review the probationary clauses in your employment contracts.

For further information on how to structure your employment contracts to limit exposure to probationary period concerns or any other workplace law issue, contact our Workplace Law team. We’re here to help.