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What Not to Say to a Probationary Employee

By November 3, 2016November 5th, 2019Employment Law

A dentist was brought in front of the Ontario Labour Relations Board by a probationary employee this summer, and the case was just released publicly (Elliott A. Schwartz Dentistry Professional Corp. v. Lee, 2016 CarswellOnt 9360).  Here are the important parts of the case as a cautionary tale for dentists managing probationary employees.

The dentist had been practicing for about 38 years, and so presumably he had been hiring employees for a while.  But in any event, an employee he terminated went to the Ministry of Labour to argue that she deserved more termination pay (5 weeks of pay) and money for pain and suffering ($50).

The background is this: the dentist hired an employee through a placement agency and later offered her full-time work.

The dentist had a quirky payroll setup: he paid employees bi-monthly (twice a month), but the pay was always two days short of the time actually worked in the two preceding weeks. The missing pay would be included on the next cheque.

When the probationary employee noticed this anomaly, she asked the dentist about it.  The dentist told her this was the way that payroll was done in the office for many years.  The dentist then referred the employee to his spouse who managed the books.

The dentist ultimately decided to terminate the probationary employee after only working for about one month.

And here’s where he made a big mistake

When he was terminating the new employee, the new employee said the dentist said all of the following:

  • that she was an “exceptional” worker
  • he would give her a good reference
  • he was trying to build a team, but her questioning of the payroll system was problematic.  No one had ever questioned the payroll practice, and her continued employment simply “won’t work”

The dentist, on the other hand, told the Labour Relations Board the following about the employee:

  • she did not “fit in” or “fit-in well” with his team
  • her chairside skills were not adequate
  • her communication and engagement skills with children and their parents, as well as with disabled adults were very poor
  • her x-ray skills were “not good” and often required retakes
  • his staff told him she developed “no bond” with them
  • she texted in the stairwell when she should have been working
  • she had a negative attitude
  • she criticized “how we do things” (but later denied that he brought up the payroll issue with her)
  • she was a bad influence on other employees
  • the associate dentist said that the employee “was not happy working” there

The Labour Relations Board sided with the employee in this case, essentially because the Vice-Chair who heard the case believed her more than the dentist.

Without cause means without reason – so do not feel pressured to give a reason!  Yes, “fit” is a term used in dental practices (and law firms for that matter) as a catch-all term to approve or disprove of an employee.  But the reasons for a termination only really matter if you are terminating an employee for cause (which is difficult and you should really talk to an employment lawyer before doing so).  Otherwise, without cause = without reason.  And don’t forget to give proper notice.

Probationary employees especially do not need to be given a reason to be terminated.  That is the whole purpose of the standard 3-month probation period – and what is clearly stated in any good employment contract.  It’s a trial period for both the employer and employee.  If they are terminated before the end of the first three months, that’s a clear indication that it did not work out.  If they continue working past three months, then the relationship is working out.  Giving any sort of reasons (or praise) during a termination meeting of a probationary employee is not mandatory.   Try and avoid it.

Luckily for this dentist, the outcome was not totally negative. The Board decided that a probationary employee does not actually deserve a whole lot of notice, and thus she was only given 2 out of the 5 weeks of pay she sought, plus the $50 for pain and suffering.

The Content of this post is provided for informational purposes only. It is not intended to be legal, financial, tax, or other professional advice of any kind. You are advised to contact DMC (or other counsel) to seek specific legal advice concerning your individual situation.