Summarily dismissing an employee on probation
Question: What are the implications in extending a new employee’s probationary period? We have it written in the letter of employment the probationary period is three months with the possibility to extend it for another three months. Is this legal and can the employer still fire the employee without cause during an extended probationary period?
Answer: It is well established in law that the purpose of a probationary period is to permit the employer to assess the character and abilities of a person in the performance of particular tasks with a view to determining her suitability for a particular job. It is inherent in the nature of probationary employment that it may be terminated whenever the employer reasonably concludes the employee has failed to live up to company standards or is otherwise unsatisfactory for the position. While it is true an employer does not require just cause to terminate a probationary employee, it is not true it has a completely unfettered right to terminate without notice and without reason. The prevailing view in Canada is consistent with the judgment of Justice Ted Noble of the Saskatchewan Court of Queen's Bench in Ritchie v. Intercontinental Packers Ltd., which allows an employer to terminate a probationary employee as long as it can show the employee was given a reasonable opportunity to demonstrate her skills and show she was right for the job or not.
In a unionized workplace, the parties will sometimes spell out the rules applicable to probationary employment in the collective bargaining agreement. Often, the collective agreement will set out the requirements for extensions of a probationary period. It would seem, however, the circumstance above deals with a non-union workplace. In the non-union setting, the right to extend the probationary period may well be found in a written employment contract. If the employment agreement does contain an explicit right to extend the probationary period, the employer is within its rights to extend it provided it complies with any contractual requirements for such extensions. An extended probationary period would also have to be for the same purposes or reasons as the initial period and the employer's conduct in assessing the employee's suitability would be subject to the same considerations as well. It would also be prudent to ensure the extension of the probationary period is dealt with prior to the expiry of the initial period. The reasons for and the length of the extension should be clearly stated. It is also prudent to ensure the employee is given written notification of the employer's assessments and, particularly, those areas where the employer has judged the employee's performance or character to be unsuitable for the job.
Even in situations where there is no explicit right in the employment contract to extend the probationary period, it is open to the employer to do so, provided the employee agrees to the extension and continues in her job. The case law is also clear that an employer does not have the right to unilaterally extend a probationary period if the initial period of probation has already come to an end.
The implications of extending a probationary period are simply that the employer's assessment of the employee will extend over a longer period of time than would otherwise have been the case. As mentioned, the extension should not be arbitrary, but must be borne of a desire to more fully evaluate the employee's suitability over a longer period of time and there should be good reasons for seeking such an extension. If an employer seeks to justify the dismissal of a probationary employee, it should establish the following:
•The probationary employee has been given a reasonable opportunity to demonstrate her suitability for the job.
•There are justifiable reasons for the determination of unsuitability.
•The decision was based on an honest, fair and reasonable assessment of the suitability of the employee.
It is not true probationary employees can be terminated without notice and without any cause or reason whatsoever. However, it is clear the standard for justifying the dismissal of a probationary employee is lower than would be required for an employee who has passed their probation. Finally, it is usually fairly easy to obtain an employee's consent to an extension. After all, if they are not willing to agree to the extension, they may be forcing the employer's hand to terminate more immediately. In addition, as in most matters pertaining to personnel management, it is very important to maintain and retain a record of the management of the probationary period.
For more information see:
•Ritchie v. Intercontinental Packers Ltd., 1982 CarswellSask 29 (Sask. Q.B.).
