Employee rights during probation
Question: What are the normal rights of employees during a probationary period? Can the employer dismiss a probationary employee without cause or notice?
Answer: The purpose of a probationary period is to give the employer a chance to assess a new employee’s suitability for continuing employment. The rights and obligations of the employer and the probationer will be determined by the contract of employment or, for unionized workers, the collective agreement.
While the employment standards statutes in most Canadian jurisdictions allow an employer to dismiss a new employee without notice or severance within the first three months of employment, a probationary period will not be implied into an employment contract or a collective agreement. Employers should therefore ensure employment contracts and collective agreements not only provide for a probationary period, but also describe the standard against which the employee will be assessed. The length of the probationary period must also be clearly defined.
Unionized employees
In the absence of a provision in the collective agreement to the contrary, unionized employees on probation are typically granted all the rights and benefits enjoyed by permanent employees. This includes sick pay, overtime assignments, layoff and recall rights and the right to file grievances. Denying probationary employees access to the grievance/arbitration procedure is prohibited by labour legislation in many jurisdictions.
Unless the collective agreement expressly provides otherwise, it is only the security of a probationer’s employment that is affected.
The onus of justifying the discharge of a probationary employee is on the employer. In most cases, the collective agreement will specify the standard for the evaluation and discharge of probationary employees — their suitability for continued employment. Where this occurs, an arbitrator will usually respect the agreement of the parties.
If the collective agreement is silent on the standard for evaluating or dismissing probationers, a “somewhat less rigorous” standard than that used for seniority-rated employees will apply. The employer may discharge a probationary employee if it reasonably determines she is unsuitable for continued employment because she does not meet the standards normally and reasonably required for regular employees. This is in contrast to a permanent employee, who may be dismissed only for just and reasonable cause.
When evaluating the employee’s suitability, the employer may consider a variety of factors, as long as they are relevant to the employment relationship. The factors may include the employee’s work performance, character, compatibility with co-workers, attitude towards safety, dependability, ability or willingness to accept supervision and the reasonable rules of the workplace, potential for advancement and capacity to meet production requirements.
The employer must give the employee a fair opportunity to prove her suitability.
Specifically, the employer must:
•Establish reasonable and legitimate standards of work performance.
•Communicate the standards to the employee.
•Provide appropriate direction.
•Give the employee a reasonable opportunity to meet the standards.
•Evaluate the employee properly and fairly.
It is not necessary for an employer to state expectations concerning general characteristics which any employee would be expected to demonstrate — a positive attitude, the ability to get along with fellow employees and the need to behave properly. However, some arbitrators have said before a probationary employee may be discharged for alleged deficiencies in areas such as “attitude,” the employer must first warn the employee of its dissatisfaction and provide her with an opportunity to improve.
The employer must not assess the employee in a manner that is arbitrary, discriminatory or in bad faith, or base its decision on improper grounds — grounds that would violate the applicable human rights or labour relations legislation. As long as these tests are satisfied, an arbitrator will normally defer to the employer’s judgment on suitability, even if the arbitrator may have reached a different conclusion.
Non-union employees
In the non-union context, a probationary period will not be implied into the employment contract at common law. Rather, the existence of a probationary period, and the rights and obligations of the employer and employee during the probationary period, must expressly be set out in the contract.
The employer will bear the onus of proving it had the right to dismiss the probationary employee without notice of severance compensation. A court will usually uphold an employer’s decision on an employee’s suitability, provided the court is satisfied the employer made its assessment fairly, in good faith and on lawful grounds.
