October 29, 2003by Israel Foulon LLP
Question: Two months ago we hired an employee for a position in our company. Unfortunately we have found this employee’s performance to be substandard, and that overall she is not a good fit with the organization. Are we allowed to dismiss her because she is technically still on probation?
Answer: It is important to realize a probationary period does not automatically exist, but rather it must be clearly established by the company. Probationary periods typically run from three to six months. It is also recommended that an employer indicate in writing prior to the start of employment the circumstances under which a probationary employee may be dismissed and the amount of notice that would be given.
As the employer, it is up to you to inform the employee that being on probation means that if the employee does not live up to your expectations within the probationary period, you are entitled to dismiss her without notice or pay in lieu of notice, in accordance with any statutory minimums. Furthermore, you should ensure that your employee agrees to the probationary period prior to beginning her employment. Without clear language to this effect the common law applies, under which the probationary employee is entitled to reasonable notice where there is no cause for dismissal.
When determining the amount of notice to provide, employers must ensure they comply with the minimum statutory requirements for notice. For example, an employee in Ontario who has worked for more than three months is entitled to receive one week’s notice of termination or pay in lieu of notice under the Employment Standards Act, 2000. Failure to comply with the statutory requirements will result in the employment contract being unenforceable and the employer having to provide common law reasonable notice which is usually more than the statutory minimum.
Even if you have met all the above requirements, your decision to terminate an employee during the probationary period must be a reasonable one and properly motivated. It must be a fair, honest and valid assessment of the employee’s suitability for her new job. There must be clear evidence to support your position. Moreover, it is incumbent on you to be able to show the decision to terminate employment is job related, and is not on the basis of some prohibited ground of discrimination.
Peter Israel is the senior partner in the Toronto law firm of Israel Foulon LLP – Employment and Labour Lawyers. He can be reached at 416-640-1550 or firstname.lastname@example.org. A version of this article originally appeared in the Carswell publication, Canadian Employment Law Today