What to Know About Firing a Probationary Employee

It takes a lot to hire and onboard employees. As much as a company intends to keep each addition, an employee may not work out.

In the case that they’re still on probation, what should an employer know before letting them go?

Employee Probation
At common law, a clear meaning has generally been attached to the term ‘probationary employee.’

However, unbeknownst to many employers, the terms ‘probation’ or ‘probationary period’ do not actually appear in the minimum standards legislation of many Canadian jurisdictions. Nonetheless, many of these pieces of legislation do exclude employers from having to give employees notice of termination if the employee has not completed a specified amount of service with the employer.

Length of Period
While generally three to six months, the statutory probationary period varies depending on the jurisdiction that governs the employment relationship.

For example, under Ontario’s Employment Standards Act, an employer must provide an employee with notice of termination if the employee has been continuously employed for at least three months. In other words, while the legislation doesn’t refer to the first three months as ‘probation,’ there is no statutory requirement to provide pay or notice if an employer fires someone before they reach the three-month mark of employment.

In British Columbia’s Employment Standards Act, an employee is entitled to notice of termination if they have been consecutively employed for more than three months.

Notice is only owed to an employee whose employment is governed by Alberta’s Employment Standards Code once that employee has been employed for more than 90 days.

Under the Employment Standards Act in New Brunswick, an employer is required to provide the employee notice of termination if the employee has a continuous period of employment of at least six months.

Employee Notice
Even though terminating an employee during their statutory probationary period may disentitle an employee from receiving notice of termination, the employee may be entitled to common law reasonable notice, which can be quite a bit more. Calculation of this period is based on case law. In assessing the common law notice period of an employee, courts will consider factors like the employee’s age, length of service, character of employment and availability of similar employment. The courts are ultimately attempting to determine the amount of time it will take an employee to find comparable employment by looking at cases of employees in similar circumstances.

To determine what notice period a probationary employee may be entitled to, consider the following: Does the employee have an employment contract? If so, is there a clause regarding a probationary period?

Though some courts have taken a fairly barebones view of what qualifies as an ‘enforceable’ probationary period, employers will want to include the length of the probationary period and the employee’s entitlements on termination during this period in their employment contracts.

Assuming the probationary period clause is enforceable, consider the following questions:

• Was the employee made aware of the basis for their assessment before it began?
• Did you, as the employer, act fairly and with reasonable diligence in assessing the employee?
• Was the employee given a reasonable opportunity to demonstrate their suitability? (For example, has anyone talked to the employee about their performance? And was the employee given a chance to understand the expectations that would be used in assessing their suitability?)
• Was your decision based on an honest, fair and reasonable assessment of the employee’s suitability, taking into consideration performance, job skills, character, judgment, compatibility and reliability?

An employer that cannot answer ‘yes’ to these questions but wishes to terminate their employee during the probationary period may be on the hook for common law reasonable notice of termination.

Longer Probationary Period
An employer may contract with their employee for a different probationary period. Typically, this period is no longer than six months; however, what is a reasonable period will depend on the circumstances.

Employers must keep in mind that regardless of an employee’s entitlement to their common law reasonable notice period, they are always due the period of notice in the minimum standards legislation if fired after the statutory probationary period. This means even if six months of probation is included in the contract, employees in most provinces are entitled to statutory termination notice or pay after approximately three months.

Emily Siu is in her fourth year of lawyering at SpringLaw. Emily comes from a litigation background to help grow and support the Toronto-based firm’s employment litigation practice. She has appeared before the small claims court, Ontario divisional court and Ontario Superior Court of Justice, and has successfully represented domestic and international clients at settlement conferences, mediations, hearings, private negotiations and motions.