Problem
The employee, Tom, was hired as a delivery truck driver by a distributor. His employment contract included a three-month probationary period. Tom was terminated after only six weeks on the grounds that he was "unreliable." His attendance issues primarily related to two incidents. In the first incident, he took several days off work to stay home with his children, aged one and four, because his wife-who normally took care of them during the day-was ill. The second absence occurred when the day after he returned to work (from staying home with his children) he had to leave due to a sharp pain in his side. He was diagnosed with a hernia and was scheduled for surgery two weeks later. Tom was terminated shortly thereafter.
Tom filed an application with the Human Rights Tribunal, claiming discrimination based on family status and disability. The employer responded that Tom had been terminated during the three-month probationary period and therefore they had a right to do so.
Does the employer have a valid defence based on the probationary clause or on any other grounds? Will the Tribunal rule in Tom's favour?