An Ontario Small Claims Court judge has ruled that a probationary employee fired after six weeks on the job is entitled to four months pay of $20,000 plus costs, for wrongful dismissal.
Tax accountant Suyi Cao sent her resume to a recruiter advertising a position at Toronto-based accounting firm SBLR LLP. The company was looking for a candidate working towards a professional accounting designation to prepare and review corporate, personal and trust tax returns.
After a two-stage interview she was hired and started work on August 18, 2008. Her contract was for an indefinite term, subject to a three month probation. A term of her employment was that she obtain the Certified General Accountant (CGA) designation, but this requirement was not subject to any time limit.
Cao was fired a month and a half later. The reasons given were that she was not performing at the required level and that she would not be able to complete the CGA program by the summer of 2009. This was the first time she heard there were concerns about her work.
Nevertheless, her record of employment (ROE) for Employment Insurance purposes said her termination was “involuntary…without cause.”
She sued for wrongful dismissal and at the June, 2012 trial, Judge Prattas accepted Cao’s evidence that she did not guarantee completion of her CGA designation by the summer of 2009. This was because her ability to complete the requirement depended on the availability of courses. He also recognized that Cao was on probation, but noted the company was still required to act reasonably and prove she was unable to perform her job.
The Ontario Employment Standards Act says employees with less than three months of service are not entitled to pay in lieu of notice. However the judge ruled that in this case these provisions did not apply because the employment contract did not restrict her to minimum statutory requirements or exclude her right to common law damages.
In determining damages, he took into consideration that after losing her job Cao applied for over 200 positions, but in a difficult economic climate it took her 14 months to find a comparable position.
Therefore he awarded her four months pay of $20,000, plus interest and costs fixed at $3,500, although she was represented by a lawyer who did not charge for his services.
In a company newsletter, Cassels Brock partner Laurie Jessome says that although a Small Claims Court decision may not be given a great deal of weight by higher courts, it contains a lesson for both employers and employees. She adds that an employment contract stating that new hires are on probation for three months is not enough to preclude a claim for termination pay if an employee is fired within the 90 day period.