Dismissal of probationary employees: What are the rules?

Question: Can an employer truly terminate a probationary employee with no notice?

Dismissal of probationary employees: What are the rules?
Colin Gibson

Answer: The short answer to both questions is — it depends. There are certain steps an employer needs to take to ensure that the dismissal of a probationary employee is handled properly.

A probationary period is designed to give an employer the opportunity to determine whether the employee is suitable for employment in its organization. If the employer reasonably determines that a probationary employee is unsuitable, it should be able to discharge the employee during or at the end of the probationary period, provided the appropriate steps have been followed.

The law does not imply the existence of a probationary period, so it is important to ensure that the existence, duration and terms and conditions of the probationary period are clearly spelled out in the applicable employment contract, policy manual or collective agreement.

The standards an employer uses to measure a probationer’s suitability should be the same as those required of other employees in the same position. Factors that may go into this evaluation include such things as work performance, skill, efficiency, attitude, behaviour, compatibility with coworkers, attendance, willingness to accept supervision, compliance with the rules of the workplace and dependability. Deference will be given to an employer’s evaluation of these factors, provided it is done in a manner that is reasonable and is not arbitrary, discriminatory or in bad faith.

The termination of a probationary employee should not come as a surprise. To put itself in the position where it will be able to dismiss a probationer for unsuitability during or at the end of the probationary period, an employer should put the necessary mechanisms in place to ensure its assessment will withstand scrutiny. This will usually include such steps as: communicating the requirements of the position and the employer’s expectations clearly and unambiguously; providing the necessary orientation and guidance; giving the employee a reasonable opportunity to demonstrate their ability to meet the standards; bringing any difficulties or issues to the employee’s attention and providing a reasonable chance to correct them; and informing the employee of the consequences if they don’t correct the issues in a timely way.

In most cases — and subject to the requirements of the employment contract or collective agreement — a probationary employee may be terminated without notice or severance compensation, provided the steps described above have been taken.

For non-union employees, it is important to keep in mind the requirements of the applicable employment standards legislation regarding termination without cause. In British Columbia, for example, s. 63 of the Employment Standards Act requires an employer to provide a minimum of one week’s notice or compensation for length of service to an employee who is dismissed without cause after three consecutive months of employment. This means that if the employment contract or policy manual contains a probationary period that is longer than three months, it should also specify that if the probationer is terminated without cause after the completion of the first three months of employment, they will receive at least the amount of notice or compensation that is required by the legislation. Otherwise, the entire termination clause could be struck down.

Colin Gibson is a partner with Harris and Company in Vancouver. He can be reached at (604) 891-2212 or cgibson@harrisco.com.

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