What are probationary periods?
Probation is a period within which an employee is tested by the employer to determine his or her suitability for regular employment as a permanent employee. To pass such a test, the probationer must demonstrate that he or she can meet the employer’s workplace standards.
Does that probationary period have to be at the beginning of one’s employment only?
It is a possibility for an employer to place an employee “back on probation” when they fail to meet the employer’s workplace standards.
In some instances, a “temporary probation” period may be implemented by the employer until the employee once again meets company performance standards. During this time, the employee being disciplined is subject to the same factors applicable to probationary employees.
However, employers must exercise caution when imposing probationary status on a non-probationer. Failure to provide well reasoned grounds for the imposition of such a status could amount to a fundamental breach of the employment contract. A breach of this nature could entitle the employee to reject the implementation of the temporary probation period and to claim damages should his or her employment be terminated.
When does a probationary period end?
Determining when a probationary period ends can sometimes be confusing. For example, promotions and pay raises may serve to terminate a probation period of indefinite duration. On the contrary, a defined or fixed term probation period will not necessarily cease in the event of pay raises or promotions.
What are my rights during the probationary period?
The answer to this question is not a “one size fits all”.
Originally, the common law afforded probationers little to no rights if his or her employment was terminated during or immediately upon the conclusion of the probation period. However, the common law regarding the treatment of probationary employees has since changed, and softened.
The Supreme Court of Canada decision in Nicholson v. Haldimand Norfolk (Regional) Police Commissioners,  1 S.C.R. 311, Justice Noble in Ritchie v. Intercontinental Packers Ltd.,  S.J. No. 78 rejected the original position of the common law regarding the rights and treatment of probationary employees, and redefined the concept of probation.
Probationary periods should be afforded a fair and reasonable opportunity to demonstrate their suitability for the position.
This means that an employer must ensure its decision is informed by an “honest, fair and reasonable assessment…including not only job skills and performance but character, judgment, compatibility, reliability, and future with the company” as well.
The principle of “reasonable opportunity” also warrants an employer terminating a probationer’s employment upon the conclusion of the probationary period if the employer provided the probationer with a reasonable opportunity to demonstrate his or her suitability for the job.
In summary, the standards and expectations of the employer must be reasonable and the employer must inform the employee the acceptable standard.
The threshold to terminate an employee on probation seems to be lower than terminating an employee after their probation period is done. However, an employer must provide reasons and justification for its decision to terminate a probationer’s employment, or else, it will be difficult for them to prove that the decision to termination was “fair, reasonable and made in good faith”.
If you are an employee and have questions about your rights regarding being terminated while on probation, contact us today. We can help with examining the events that led up to your termination during your probation period. Reviewing and understanding the events that led to your termination can help in better determining if your termination during the probation period is fair and reasonable in the circumstances.
If you are an employer who wants to terminate an employee during the probation period, you are not immune from an employee taking civil action, contact us to devise a plan regarding your probationary employee.
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