Termination process can be a little different
Question: Does the employer have to provide a reason for termination to a probationary employee?
Answer: The short answer is no. The purpose of a probationary clause is to give both parties an opportunity to assess whether the employee is a good fit for the workplace. Contrary to popular belief, probationary terms are not implied in all contracts of employment. When hiring a new employee, employers who want to characterize the first several months of employment as a “probationary period” must have a probationary clause explicitly written in the employment contract. A probationary period will typically have a significant impact on an employee’s entitlements if her employment ends during this period.
The principles surrounding the interpretation and enforcement of a probationary clause in an employment agreement were dealt with in a relatively recent Ontario Court of Appeal decision, Nagribianko v. Select Wine Merchants Ltd. Justice Sanderson confirmed that, provided that a probationary employee is given “a fair opportunity to demonstrate suitability for permanent employment,” an employer is entitled to terminate the employment of a probationary employee without notice (beyond that required by statute) and without giving reasons.
Where an employer has terminated the employment of a probationary employee for unsuitability, Justice Sanderson noted that “the employer’s judgment and discretion in the matter cannot be questioned.” The employer must only demonstrate that it acted fairly in determining the suitability of the probationary employee.
Where an employer intends to rely on a probationary clause to terminate an employee’s employment without cause, the employer should ensure that:
•The probationary clause is clear and unambiguous.
•The probationary clause complies with employment standards legislation.
•The employer exercises its discretion in good faith and provides the employee with a fair and reasonable opportunity to demonstrate her suitability.
For more information see:
•Nagribianko v. Select Wine Merchants Ltd, 2017 CarswellOnt 9969 (Ont. C.A.).
