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Know your Rights - Probationary Periods

Neil HardenAll members will be subject to a probationary period when they first enter the public service. The probationary period has been described as serving “…the legitimate interests of the employer in attempting to secure the most competent, compatible and suitable workforce it can acquire.... [He] must be entitled to an opportunity to view the new hire in the particular context of his own work environment.”

In the core federal public service, probation is covered by Sections 61 and 62 of the Public Service Employment Act. Section 61 establishes that a person hired from outside the public service is on probation for a period established by regulation. Such a period is generally one year, with the notable exception of Research and Defence Scientists who have a two-year probationary period. Section 62 establishes the right of the Deputy Head to terminate the employment of a probationary employee upon the requisite notice (30 days). For federal agencies such as the Canada Revenue Agency (CRA) and the Canadian Food Inspection Agency (CFIA), the legislation establishing the agency gives them the right to establish their own policies regarding probation, which are generally similar to the core public service. Members outside the federal public service are advised to contact their local PIPSC office regarding probationary rights because such rights will vary with the legislative regime and the relevant collective agreement.

Probationary employees enjoy the same rights as other federal employees with the exception of employment security. In Jacmain v. Canada, the Supreme Court held that “the employer’s right to reject an employee is very broad”. Section 211 of the Public Service Labour Relations Act bars the referral to adjudication of terminations of employment under the Public Service Employment Act (PSEA), of which release on probation is one such termination. Does this mean there is no recourse for a termination on probation in the federal public service? Fortunately for members, the answer to that question is no – broad as it is, the employer does not enjoy the unfettered right to reject an employee on probation.

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While the Public Service Labour Relations Act (PSLRA) bars adjudication of terminations under the PSEA, a federal adjudicator does have the jurisdiction to examine whether a purported release on probation was, in fact, a sham to disguise a different action or was done in bad faith. The employer has the initial onus to show that a termination was done for an employment-related reason. The Federal Court in Leonarduzzi v. Canada wrote: “The employer need not establish a prima facie case nor just cause, but simply some evidence the rejection was related to employment issues and not for any other purpose”. The Federal Court of Appeal in Penner v. Canada wrote “... adjudicators have ... accepted that they had no jurisdiction to inquire into the adequacy and the merit of the decision to reject, as soon as they could satisfy themselves that indeed the decision was founded on a real cause for rejection, that is to say a bona fide dissatisfaction as to suitability...”. Further, in Penner, the court also held: “In effect, once credible evidence is tendered by the employer to the adjudicator pointing to some cause for rejection, valid on its face, the discharge hearing on the merits comes to a shuddering halt.”

This is not the end of the matter, however. Also in Penner, the court held: “It is clear that ... an adjudicator seized of a grievance by an employee rejected on probation is entitled to look into the matter to ascertain whether the case is really what it appears to be. That would be an application of the principle that form should not take precedence over substance. A camouflage to deprive a person of a protection given by statute is hardly tolerable. In fact, we approach the most fundamental legal requirement for any form of activity to be defended at law, which is good faith.” Citing Penner, Adjudicator Quigley in Dhaliwal v. Treasury Board wrote: “... then the burden of proof shifts to the grievor to demonstrate that the employer's actions were, in fact, a sham or a camouflage or made in bad faith and, therefore, not in accordance with ... the Public Service Employment Act.”

In McMorrow v. Treasury Board, Adjudicator Chodos noted “It is trite to say that a determination of whether there is good faith or not must be gleaned from all the surrounding circumstances; there can be a multitude of sets of facts that may result in a conclusion of bad faith...keeping in mind of course that good faith should always be presumed...”. The determination of bad faith rests on the facts of each case. In Dhaliwal, the rejection was overturned as the adjudicator ruled that sick leave usage, when it was approved without question by the employer, could not be used as a reason justifying release on probation.

Grievances on rejection on probation remain very difficult to win. Employers need only demonstrate an employment-related reason for the decision to reject, made in good faith, to have the termination upheld. It is always difficult for the union to prove bad faith.

In most labour relations jurisdictions, probation rights can be the subject of collective bargaining and indeed most collective agreements in those jurisdictions contain probation clauses. The Public Service Labour Relations Act precludes bargaining of probationary rights for the core federal public service. The Supreme Court in June 2007 issued a landmark ruling that collective bargaining is a protected freedom under Section 2(d) of the Charter. In May 2008 PIPSC launched a constitutional challenge to the PSLRA seeking to invalidate the sections of the Act which prohibit negotiating critical workplace issues, of which probation would be one.

Contributor: Neil Harden, Employment Relations Officer, Winnipeg Office.


Publish Date: 03-JUL-2008 10:27 AM