Hiring and firing probationary employees

Probation periods are an asset to employers but they’re not legally bulletproof, says one labour lawyer. Managers must put other safety nets in place.

Hiring and firing probationary employees
Probation periods are an asset to employers but they’re not legally bulletproof, says one labour lawyer – managers must put other safety nets in place, especially if they’re in a non-unionized environment.

Unionized 

“Generally, in labour law context, collective agreements provide that probationary employees do not enjoy just cause protection,” says Meaghan Hughes – as such, “there is no onus on a unionized employer to establish just cause upon termination.”

Essentially, unionized employers enjoy more freedom when it comes to firing probationary employees – they would rarely be required to prove just cause, says Hughes.

However, the Cox and Palmer lawyer says employers do still have to show reasonable discretion.  

“The decision to terminate cannot be arbitrary, discriminatory, or made in bad faith,” she explained.

Non-unionized 

For non-unionized employers, there’s slightly more to consider, says Hughes.

Non-unionised employers do actually have an obligation to demonstrate just cause – but just cause for a probationary employee is much easier to establish than just cause for a permanent employee.

Simply, “Cause will be established if the employee is found to be unsuitable for permanent employment.”

Tips for non-unionized employers

To establish just cause, Hughes says an employer must prove they “acted fairly and was reasonably diligent in determining the person’s suitability for a permanent position.”

She offered three tips to anyone looking to take on new staff with a probationary period:
  • Review the conditions of probationary employment with the employee at hiring and have the employee sign off on their understanding and acceptance of these conditions.
  •  Assess the employee’s performance and suitability for the position during the probationary period in relation to the requirements of the specific position. Suitability for the position may include an assessment of character and compatibility in the workplace.
  • Notify the employee during the probationary period of any deficiencies and give the employee a reasonable opportunity to improve performance/meet expectations. The employee should be informed that failure to improve may result in termination of their probationary employment. The scope of the evaluations and assessments will depend on the length of the probationary period.

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