CALGARY EMPLOYMENT LAWYERS – The Termination of a Probationary Employee
There exists a common misconception amongst employees that probationary employees do not receive the same level of protection as ordinary employees or they are somehow entitled to less consideration than ordinary employees. To better understand where this myth came from, we need to first take a look at the definition of a probationary employee.
In Mitchell v The Queen, 1979 CanLII 1922 (ONSC), 23 OR (2d) 65 at page 83, Justice Van Camp defined a probationary employee as follows:
… [T]he term is well understood in business and industry as an employee, who is being tested to enable the employer to ascertain the suitability of the employee for its purposes. Probation is a period when the employee may prove that he is suitable for regular employment as a permanent employee and will meet the standards set by the employer.
The Court in Buchanan v Introjunction Ltd, 2017 BCSC 1002, provided a similar definition that probation is a period of time, commencing at the start of the employment relationship, for the employer to make a good faith assessment of a new employee’s suitability.
In short, this idea of probation came to light so that employers are given an opportunity to make a fair assessment whether a particular individual is a good fit for their business. It is true that under the employment standards legislation, there is no statutory minimum termination notice an employer is required to provide when dismissing an employee on probation. While the length of probation varies from one province to another, it is typically around 3 months. For instance, in Alberta, employers do not need to give a termination notice, or pay in lieu thereof, when dismissing an employee who had worked for less than 90 days.
However, the employment standards legislation does not affect employees’ rights and entitlements under common law, and there may be circumstances in which the dismissed employee would be entitled to termination notice despite their short-lived service. Further, employers are always bound by the duty to treat all employees with good faith during their employment and at termination, and probationary employees are no exception to these obligations.
In Ly v British Columbia (Interior Health Authority), 2017 BCSC 42 at para 58, adopting the approach taken in Rocky Credit Union Ltd v Higginson, 1995 ABCA 132 at para 6, the Court held that in determining whether an employer acted in good faith, courts will consider the following:
- Whether the probationary employee was made aware of the basis for the employer’s assessment of suitability before, or at the commencement of, employment;
- Whether the employer acted fairly and with reasonable diligence in assessing suitability;
- Whether the employee was given a reasonable opportunity to demonstrate his / her suitability for the position; and
- Whether the employer’s decision was based on an honest, fair and reasonable assessment of the employee’s suitability, including not only job skills and performance but also character, judgment, compatibility, and reliability.
Canadian courts have made it clear that employers still need to act fairly and with reasonable diligence in determining whether or not the proposed employee is suitable for the job for which he or she is being assessed. If an employer sets an unobtainable goal for a probationary employee and terminates the employee on that very basis, the court will likely find that the employer lacked cause to terminate the employee and such a decision was made in bad faith.
In other words, probation periods are not a get-out-of-jail-free card for employers. As such, if you feel that your termination while on probation was unfair or unjust, we recommend you consult with an employment lawyer. The award-winning employment lawyers at Osuji & Smith are here to assist.
Author: Claire Lee