'We hardly knew you'

Employees on probation at the start of their employment aren’t that easy to fire

By Jeffrey R. Smith

When a new employee joins the ranks, she usually has to work through a probationary period before becoming a full-fledged staff member with all rights and privileges that go along with that status.

The idea of the probationary period is to give the employer — and perhaps the employee as well — a chance to see if the employment relationship is a good fit. If it’s not a good fit, then the employer can fire the new employee before the probationary period is up without any further obligations. Or can it?

Those who think a probationary employee can be cut loose quickly and easily may be mistaken. Though the probationary period is supposed to give the employer a chance to bail out before the employee gets too entrenched, it still has some obligations under employment law.

Last year, a Saskatchewan company ran into some legal trouble after it fired a probationary employee one week after hiring. The Saskatchewan Court of Queen’s Bench found the company didn’t have to prove just cause to terminate the employee — overturning a labour relations board decision finding otherwise — but also found the company showed bad faith by firing the employee so quickly. The short time the employee was with the company didn’t allow it to properly evaluate the employee’s ability to do the job or get him properly oriented, said the court in ordering the employee’s reinstatement.

However, there have been other cases where the firing of a probationary employee has been upheld where the employer was able to prove there were legitimate problems with the employee. In these cases, the employer showed it gave the employee a fair chance to prove herself and it had the chance to make a fair and reasonable evaluation. As with regular employees, the employer basically had to prove just cause. The difference between probationary employees and regular employees is the bar for just cause might not be quite as high for the former.

So an employer has to have just cause and give probationary employees a chance to show they can do the job. Sounds similar to regular employees. If that’s the case, is there much of a point to a probationary period other than perhaps waiting before full benefits are given? It’s difficult in Canada to fire an employee for just cause. Should an employer at least have the right to terminate an employee during the initial probationary period without difficulty before the employment relationship is locked in for the long haul?

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at [email protected]. For more information, visit www.employmentlawtoday.com.

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