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Fairness for probationary employees?

The recent decision by an Ontario Small Claims Court (Cao v. SBLR LLP ), even though only at the small claims court level and unlikely to set any legal precedent, is nevertheless a reminder to employers and employees alike that we often tend to assume things about the law which are not true, only to be surprised by the facts when an aggrieved employee decides to challenge an employer’s action.

In the Cao case, not only was the doctrine of “just cause” for probationary employees reinforced but the plaintiff was also awarded reasonable notice of four months’ pay, despite the fact that as an employee of only one month, she was not entitled to “notice of termination” under the Employment Standards Act and was well within the probationary period of employment defined in her employment contract.

Many assume that an employee can be terminated “at will” during the probationary period, however, the Deputy Justice in the Cao case noted that employers have a duty to show just cause for probationary employees and to treat probationary employees fairly and reasonably in determining whether the employee is suitable for the job and in giving the employee the opportunity to demonstrate his or her fitness for the job.

Despite the Employment Standards Act provision that employees with less than three months of employment are not entitled to notice of termination, the Deputy Justice in Cao found that common law notice of four months’ pay was reasonable.

Many of the issues raised in Cao could have been avoided or resolved with good policies and practices dealing with employment contracts, probationary employment, termination, performance reviews etc. As with non-probationary employees, employers must be diligent in ensuring that the terms and conditions of an employee’s employment, including, but not limited to, the scope of employment, the probationary period, notice of termination within the probationary period as well as the post-probationary period, any expected deliverables, and the performance review procedures are carefully outlined in the employment contract.

Having carefully drafted contracts is, of course, only one step in the process. An employer must also ensure that it adheres to the obligations it has under the contract and that it applies all of its other policies and procedures to the probationary employee, including its policies and procedures for fair discipline, accommodation, evaluation and termination.

A more detailed discussion and sample policy on the probation period is available in the Human Resources PolicyPro, Alberta, British Columbia, Manitoba & Saskatchewan, Ontario, Atlantic and Quebec Editions.

Michele Glassford
Editor of Human Resources PolicyPro
published by First Reference Inc.

Michele Glassford

President and Managing Editor at DRH and Lawyer at MacKinnon Law Associates
Michele Glassford, is a lawyer, researcher and policy analyst with a background in employment and labour law.In addition to a part-time law practice in Stoney Creek, Ontario, Michele has worked in the field of labour adjustment for the Health Sector Training and Adjustment Program and has been a Researcher for the Canadian Broadcasting Corporation. Michele also holds the position of President and Managing Editor at D.R. Hancocks & Associates Inc., author of the Human Resources PolicyPros. Read more
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