Extending a probationary period

Wanting more time to evaluate a new employee

Question: Can an employer extend a new employee's probationary period multiple times if it feels like it needs to evaluate the employee more? If probationary employees receive lower pay and no benefits, does this affect liability?

Answer: It is well established 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. In some cases, this probationary period may be extended to give the employer further time to evaluate the employee. The general principle is that if an employer wishes to extend the probationary period, it must specifically advise the employee of that fact during the course of the probationary period. The particular work context might also influence if, how, and when probationary periods may be extended.

In the context of a unionized workplace, the parties will sometimes spell out the rules applicable to probationary employment within the collective bargaining agreement. Often, the collective agreement will set out the requirements for extensions of a probationary period. As such, it is important to keep in mind if and how a collective bargaining agreement addresses the extension of probationary periods.

The right to extend the probationary period may also be found in a written employment contract. If an employment agreement does in fact contain an explicit right to extend the probationary period, employers can extend them provided that they comply with any contractual requirements for such extensions.

The implications of extending a new employee's probationary period are that the employer's assessment of the suitability of the employee will extend over a longer period of time than would otherwise have been the case. An extended probationary period would have to be for the same purposes or reasons as the initial period of probation, and the employer's conduct in assessing the employee's suitability would be subject to the same considerations. Further, an employer cannot extend a probationary period unilaterally, in particular if the probationary period has already expired. In other words, any extension of a probationary period must be express and must occur prior to its expiration. The reasons for and the length of the extension should be clearly stated. It is also prudent practice to ensure that the employee is given written notification of the employer's assessments and, particularly, those areas where the employer has judged the employee's performance and character to be unsuitable for the job. It would also be prudent to obtain an employee's express consent to the extension. Finally, the extension should not be on an arbitrary basis, but be as a result of a need 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.

Multiple extensions of probation periods

In addition to the general considerations for extending probationary periods, further considerations come into play when considering multiple extensions of probationary periods. Firstly, to determine whether multiple extensions are possible, it is important to consider whether an employment contract or collective bargaining agreement addresses the number of times or the method in which probationary periods can be extended. If multiple extensions are permitted, it would be important to ensure such extensions are made with the considerations of reasonableness, good faith, and non-discrimination in mind. Unilateral or arbitrary extensions of probationary periods will likely be subject to challenges by employees.

Lower pay and no benefits for probationary employees

The practice of multiple extensions of probationary periods is likely subject to an increased risk of challenges by employees. In addition to increasing the risk of liability, this practice can lead to unexpected costs and outcomes. Firstly, even if a particular context allows for such extensions, employers engaging in this practice should pay particular attention to any relevant wage increment provisions. For example, the employment agreement or collective agreement might provide for wage increments in terms of time worked, which could affect the wage entitlements of probationary employees in unexpected ways. Secondly, although employers might consider employees to be probationary, there is a risk that such employees will be seen to be regular employees by courts or arbitrators. This would affect the employees' rights and responsibilities, and might also affect the employees' claims to wages and benefits. This can lead to unexpected costs and outcomes for employers. Thirdly, there are various decisions supporting the idea that the practice of unlimited extensions does not serve the purpose of probation. As such, the practice is likely to be subject to increased scrutiny. This is particularly problematic for employers if their practices can be seen as attempts to limit an employee's wages or benefits. Therefore, employers should carefully consider all decisions to extend probationary periods, especially if the probationary period has already been extended. Finally, there may be employment standards legislation or regulations in effect in a given jurisdiction that would need to be considered, as they could require certain minimum benefits and likely minimum wages to be provided to employees, including probationers.

Brian Kenny is a partner with MacPherson Leslie and Tyerman LLP in Regina. He can be reached at (306) 347-8421 or [email protected]

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