Probation: not a free pass to fire employees

Just like with regular employees, good faith and fairness are required

Probation: not a free pass to fire employees

“Paying your dues.”

It’s a phrase that often applies when someone starts a new job. Whether it’s seniority in a unionized workplace or experience in a non-unionized one, new people generally start at the bottom. And if the employer starts them off on a probationary period, it also means the nature of the employment relationship is a little different.

A probationary period isn’t just a time when a new hire has to “pay their dues” – it has a legitimate purpose that allows the employer to assess the employee’s fitness for the job. It can be a kind of trial period before the worker becomes a full-time employee. Generally, the employer has fewer obligations during this period and fewer potential liabilities if the employee is dismissed during this time – of course, with some legal limitations.

It's true that it may be a little easier to fire an employee during a probationary period, but it doesn’t mean there aren’t any obligations for the employer. Since this time is intended to evaluate someone’s fitness for a position, the employer has to be able to prove there was a fair assessment before any dismissal. If not, there will be liability for wrongful dismissal damages.

Fair assessment and clear standards

Recently, the dismissal of a probationary employee in the federal public sector was upheld, as the employer was able to clearly demonstrate clear standards that the employee was unable to meet. The employee was told that he had to pass at least three of five exams during his training, but the employee only passed two. The employee made arguments that he was close on a couple of them and he had other issues, but the Federal Court found that the evidence showed that the worker was unable to consistently meet the required performance standards.

Often, a fair assessment of a worker’s fitness for a position involves coaching and warnings to improve, much like a regular employee. Another federal employee, a veterinarian for the Canadian Food Inspection Agency, was provided with retraining and given warnings to improve, but he was resistant to all of it. After a little over six months, his probationary employment was terminated with pay in lieu of notice. The Canadian Public Service Labour Relations board found that there was adequate time for a legitimate assessment and the worker received enough feedback, upholding the dismissal.

The pay in lieu of notice for that worker is important to note, as it is often required, despite what some employers may think. The Ontario Employment Standards Act, 2000, for example, allows the dismissal of employees with less than three months of service without notice, but beyond that even probationary employees may have entitlement to notice. One Ontario court decision reiterated that employees must be given a reasonable opportunity to demonstrate an ability to meet the employer’s standards, and if not, there could be damages for wrongful dismissal.

However, if an employee is given a fair assessment and it doesn’t work out, notice may not be required. After all, the concept of a probationary period, in a way, gives an employee a kind of notice that they will be let go if they are found not to be suitable for the position. Several years ago, another Ontario court said that “the nature of the employment relationship during probation is tentative” and probationary employees could be dismissed without notice as long as the employer acts in good faith in its assessment.

Disproportionate notice

It's important to note that, if notice is required such as in a wrongful dismissal situation, damages may be disproportionate to the employee’s service time. It’s common that in cases of very short employment terms with no just cause, courts are more favourable to employees. And probationary employees are always short-term employees, so ensuring a good-faith evaluation is key. For example, in one case, the PEI Court of Appeal awarded a wrongfully dismissed probationary employee three months’ notice for two months of service. In a recent Ontario decision, a court awarded a probationary worker one month’s pay for eight days’ service.

In a unionized environment, workers who are wrongfully dismissed can often be reinstated rather than given pay in lieu of notice. This can apply to probationary workers too, as evidenced by one arbitration decision that reinstated a worker who was fired after completing 22 days of his 30-day probation. The arbitrator found that the worker was not told of issues with her performance or given an opportunity to “correct any misunderstandings.” He was reinstated for the remainder of his probationary period.

Probationary periods can be useful for evaluating new employees before committing to them as permanent members of a workforce, but they don’t necessarily give employers the unfettered right to terminate those employees. As with regular employment, good faith and an awareness of the legal liabilities are key to avoiding trouble. If things go awry, then it’s the employer who may have to pay some dues.

Latest stories