Employees on probation can't be fired arbitrarily, court rules

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In a new job that was going very wrong, Phuc Van Ly did everything right.

And while he lost the job, he won the lawsuit.

Ly successfully sued Interior Health for wrongful dismissal, and the decision released this week by B.C. Supreme Court holds useful lessons for anyone starting a job on probation.

Ly was hired by Interior Health in September of 2014. He lived in Vancouver, but had all the skills the health authority was looking for. He applied for a job managing a tight-knit team of nurses in Kamloops.

Six-month probation period

One of those nurses applied for the job, but her interview went badly. Ly's interview went well and he got the job.

As is the case for many new employees, the job offer was contingent upon him completing a period of probation, in this case 6 months.

Ly moved to Kamloops, but court documents recount how the job quickly went sour.

The other team members complained about him behind his back. They bristled at his teambuilding efforts, and two of them threatened to quit.

His supervisor gave him contradictory instructions and wondered aloud, in his presence, how long he would last.

Nevertheless, the court found that Ly "made a concerted effort to understand the expectations of his position." He emailed his boss to ask for guidance. He asked for a meeting to discuss his progress.

His supervisor ignored that request for weeks, but eventually did schedule a meeting.

At that meeting, instead of helping Ly, she fired him. He was just two months into his six months probation.

When it came time to defend that decision in court, Interior Health argued that Ly wasn't suitable for the position. It accused him of disrespect and insubordination.

Employers must act in good faith

The court dismissed those allegations out of hand.

Instead, the court found that Interior Health "did not meet its legal obligation to carry out a good faith assessment of Mr. Ly's suitability for continued employment."

Other employers would be wise to take heed of this case, says Kelowna employment lawyer Alf Kempf.

Employers often believe that they can fire an employee on probation for any reason whatsoever. According to Kempf, however, the bar is much higher than many realize.

"I think it's a good reminder of the obligation to document concerns and to communicate those concerns to probationary employees."

Employers have to act in good faith, says Kempf.

In short, he says "they have to be fair, and they can't be arbitrary."

Employees need to be proactive

There is a lesson in this case for employees starting out on probation as well.

"I  think the most important thing Mr. Ly did was that he was very proactive in seeking feedback and trying to address the situation," said Fred Wynne, Ly's lawyer.

The court found that Ly tried to learn about his new role. He sought the advice of his team. He asked for his superior to clarify her expectations, and to assist him in meeting them. And he kept a record of it all.

On the job, those efforts were in vain. But in court, they bore fruit.

In the end, the judge found that "Mr. Ly was simply not given a reasonable opportunity to demonstrate his suitability for his job as manager."  

No appeal

He was awarded three months severance pay.

Interior Health did not appeal the decision. It declined an interview request, instead sending a written statement.

It says the health authority "respects the ruling of the Supreme Court." It also says Interior Health immediately amended its policies in order to provide "greater clarity on the probationary period and its purpose."

According to his LinkedIn page, Ly now works for the Winnipeg Health Authority.

After Ly was fired, the nurse whose application was initially unsuccessful was given the job.