Many employers have as part of their employment agreements a probationary period for all new hires for the first three months of employment.  Often employee benefits and other employment perks like accruing vacation time or being entitled to participate in a bonus program don’t crystallize until after this probationary period ends.

The reason most employers do this is because they believe that they can fire their employees without cause and without severance if they feel the employee is just not a good fit, or any other reason, if it is done within the probationary period.  Since employers view this time as a chance to test out the employment relationship without any obligations upon termination, they also hold off on setting up the employee’s benefits, etc. until they know the employment relationship will move on past the initial probationary period.

The problem with this view of the employer relationship is that it is wrong.

Good Faith & A Fair Shake

The belief that you can fire someone during a probation period and that they have no recourse is not a correct belief. In British Columbia the law is clear that if an employer advises an employer that their employment is subject to a probation period then that employer has a good faith obligation to actually evaluate the employee’s performance during this period.  Probation periods cannot be used as a proverbial “free kick of the can” for the employer to see if they want to engage an employee in an employment relationship, despite already having done so, and leaving them free to terminate that employee with no repercussions.  In fact, by creating a probationary period, employers are increasing their obligation to their employees under law, not decreasing them.

While this list is not exhaustive, some of the steps employers are required to take during probation periods are:

• Evaluating the employer during the probationary period in a fair, reasonable, and timely fashion
• Make sure the evaluation is based not only on work performance but on other factors like interpersonal relationships, timeliness/tardiness, etc.
• Advise the employee of the expectations of the job and how their performance will be evaluated
• Give the employee a fair chance to demonstrate their suitability for the position

Failure to evaluate an employee during a probation period in good faith, or failure to let the employee know what you expect as an employer or how you will be evaluating their performance during the probationary period is not viewed as a fair approach to the employment relationship by the Courts and it will be construed as bad faith on behalf of an employer.  If such an employer were to terminate the employment relationship in light of such bad faith dealings, they could be held liable for severance damages.

Probation Period Takeaways

If you are an employee and feel you have been terminated during your probationary period without being given a fair chance and your evaluation and termination was not done in good faith, you may have a claim against your former employer.

For employers, understanding your obligations and responsibilities during the probationary period is an important step to take to ensure your business is practicing proper litigation avoidance strategies.

Employers would do well to consider what benefit, if any, there is to them by having a probationary period in the first instance. Contact the experienced employment lawyers at Taylor & Blair LLP for a consultation today to ensure your business is taking the right steps.