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As an employer, do you rely upon probationary periods to terminate newly-hired employees who don’t work out, but where you don’t have “cause” in the normal sense? Do you rely on your probation language to avoid liability for pay in lieu of notice? If so, would your probationary period stand up to scrutiny by a court? Too many employers believe that simply advising employees when hired that they will have to complete a probationary period is enough. They are often wrong!
 
 
The first (and most important) hurdle that an employer must overcome when terminating a probationary employee is to establish the clear existence of a probationary period. Did the employee understand that she would have a probationary period when hired? Did the employee understand the consequences of not successfully completing the probationary period? If not, the employer will be hard-pressed to find a judge willing to uphold a termination of that employee – without notice or pay in lieu – on the grounds of there being a probationary period.
 
 
Assuming that the employer can get over the first hurdle, is the employer then free to turf any employee for any reason whatsoever? Of course not . . . that would be just too easy! While it remains true that employers have a greater degree of discretion in dismissing probationary employees, courts have placed limits on that discretion. Employers are expected to give probationary employees a fair and reasonable opportunity to demonstrate suitability for the position for which they have been hired before they are fired.
 
As an employer, do you rely upon probationary periods to terminate newly-hired employees who don’t work out, but where you don’t have “cause” in the normal sense? Do you rely on your probation language to avoid liability for pay in lieu of notice? If so, would your probationary period stand up to scrutiny by a court? Too many employers believe that simply advising employees when hired that they will have to complete a probationary period is enough. They are often wrong!
 
The first (and most important) hurdle that an employer must overcome when terminating a probationary employee is to establish the clear existence of a probationary period. Did the employee understand that she would have a probationary period when hired? Did the employee understand the consequences of not successfully completing the probationary period? If not, the employer will be hard-pressed to find a judge willing to uphold a termination of that employee – without notice or pay in lieu – on the grounds of there being a probationary period.
 
Assuming that the employer can get over the first hurdle, is the employer then free to turf any employee for any reason whatsoever? Of course not . . . that would be just too easy! While it remains true that employers have a greater degree of discretion in dismissing probationary employees, courts have placed limits on that discretion. Employers are expected to give probationary employees a fair and reasonable opportunity to demonstrate suitability for the position for which they have been hired before they are fired.
 
So, this said, what’s an employer to do when it comes to probationary periods?
 
  • Clearly advise the prospective employee in writing that there will be a probationary period. Tell the prospective employer that, during that time, you will evaluate her suitability for full-time employment. Include information on the duration and terms of the probationary period, as well as information on what standards, duties and responsibilities the prospective employee will be expected to meet. Tell the prospective employee how she will be evaluated during this period.  
  • Clearly advise the prospective employee in writing that, if she is found to be unsuitable for employment during the probationary period, she will be terminated without advance notice or pay in lieu of notice (subject to any overriding statutory termination requirements).  
  • Ask the prospective employee if she understands, and/or has any questions about, the probationary period. Take detailed notes of any such conversations.  
  • Never tell the prospective employee that the probationary period is “really a formality” or “not to worry about it” or words to this effect. Good employees rarely refuse employment because of a probationary period, so don’t be afraid to be upfront with prospective employees about your probationary period. Failing to do so will do more harm than good!  
  • Have the prospective employee agree in writing to the terms of the probationary period as a condition of your offer of employment.  
  • Keep probationary periods to a reasonable period of time. Unduly short and unnecessarily long probationary periods are not advisable.   
  • Provide the probationary employee with a fair and reasonable opportunity to demonstrate her ability before you reach any conclusion to dismiss the employee.  
  • Address concerns with the probationary employee, verbally and in writing, when they arise about her performance during the probationary period. Do not wait until the end. Provide the probationary employee with assistance in improving her performance. Remind the probationary employee that she will be terminated if her performance does not improve.  
  • Only once the probationary employee has been provided a fair, honest, valid and properly motivated assessment of her suitability for employment can you, as an employer, properly dismiss the employee without cause and without notice or pay in lieu of notice.
 
Best of luck!
 
If you have any questions or would like more information on this topic, please contact Mary Lou Brady at [email protected] or call 519-672-2121.
 

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Siskinds Lawyers are experts in giving practical advice and representation concerning Employment Law, Labour Law  and Human Rights.

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