Employees on probation.

• Author: Bowal, Peter

Since it takes away an employee's usual rights, a probationary period must be expressly agreed to by the employee. It cannot be implied into the relationship. The [employer] must clearly indicate what will happen if the relationship ends before the probation terminates. -Easton v. Winslow Properties Corp., [2001] O.J. No. 447 Introduction

When we hear the term that an employee is "on probation" it sounds like the employee committed a crime. However, "probation" comes from the verb "to prove." Many employers choose to start new workers in probation to prove themselves, allowing the employers to evaluate performance and assess the suitability of the new hires for long-term work.

Employment contracts often stipulate a period of probation, during which new employees can be dismissed without notice or cause. This article describes the law of probationary employment.

Legislation

While there is no specific legislation creating employment probationary periods, most provincial employment standards legislation states that termination notice is not required when an employee has been employed for three months or less. Likewise, employees do not have to give notice of quitting if they have worked for an employer less than three months.

It is important to remember that this is the statutory minimum, and the common law (judge-made) notice principles about reasonable notice are more generous.

Common Law

In 1955, an arbitrator in Re United Electrical Workers & Square D Co., Ltd. [6 L.A.C. 289] described probation thus (at para. 8):

An employee who has the status of being "on probation" clearly has less job security than an employee who enjoys the status of a permanent employee. One is undergoing a period of testing, demonstration or investigation of his qualifications and suitability for regular employment as a permanent employee, and the other has satisfactorily met the test. The standards set by the company are not necessarily confined to standards relating to quality and quantity of production, they may embrace consideration of the employee's character, ability to work in harmony with others, potentiality for advancement and general suitability for retention in the company. However, judicial decisions and arbitrations on the issue are not consistent. For example, in MacLennan v. Freedom Ford Sales 2002 ABPC 87 (CanLII), the court found the employee was hired indefinitely and that his termination without notice and pay was justified because a probationary...