Probationary Periods

Probationary Periods: Employment Law

Both employers and employees often misunderstand probationary periods. These periods protect employers from financial obligations on termination of the employee. This allows an employer to take the chance on hiring an employee without consequence if it was the wrong decision in hindsight. However, certain rights do exist for employees under this time frame. In addition, employers require specific language in employment contracts to protect themselves. Learn more here. The employment lawyers at Kahane Law Office, with both Calgary and Edmonton locations, help both employers and employees with all employment related legal matters.

What Are Probationary Periods?

A probationary period typically consists of the first three months of employment with a new employer. If the employment contract expressly provides for a probationary period, employers retain the legal discretion to terminate employees.  Such terminations occur without notice only under two situations. Firstly, if the termination occurred in good faith. Secondly, if the termination occurred, in the employers opinion, due to the employee’s “unsuitability” for the position hired for. A probationary period only exists as an express term within the employment contract. Otherwise, no such period exists at law.

Can Employers Extend Past Three Month Probationary Periods?

Yes, employers can. An employer’s ability to extend the probationary period for an employee exists if it is clearly written into the employment contract. However, once the employee has been employed for at least 90 days they will be entitled to many rights and protections set out in the Employment Standards Code RSA 2000.

Do Employers Have Complete Discretion To Terminate Employees During Probationary Periods?

Employers lack the ability to terminate employees arbitrarily. Certain requirements exist to allow for such terminations without consequences to the employer. For example, to establish justification for the dismissal of a probationary employee, the employer needs to establish that,

1. The probationary employee had a reasonable opportunity to demonstrate suitability for the job;
2. The employer found the probationary employee was not suitable for the position; and lastly
3. The decision by the employer was based on an honest, fair, and reasonable assessment of suitability.

Further, all employees are protected under the Alberta Human Rights Act RSA 2000. Therefore, an employer cannot terminate an employee or refuse to continue to employ an employee based on a protected ground as set out in the Act. Specifically, the act states:

“7(1) No employer shall (a) refuse to employ or refuse to continue to employ any person, or

(b) discriminate against any person with regard to employment or any term or condition of employment,

because of the race, religious beliefs, colour, gender, gender identity, gender expression, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status or sexual orientation of that person or of any other person.”

Employment Contract Requirements For Probationary Periods For New Employees

Firstly, an employer needs to clearly define the terms and conditions of the probationary period. As mentioned above, an employer has a legal right to terminate a new employee if deemed “unsuitable” for the position. Therefore, it is important that the employer sets out their expectations in the employment agreement during the probationary period. This will allow the employer to determine suitability based on defined expectations which will lessen the likelihood of a probationary employee making a claim that the employer has acted in bad faith.

Legislated Rights Of A Probationary Employee

Within the Employment Standards Code RSA 2000 the term “probation” nor “probationary employee” is defined. However, many of the protections for an employee within the Code firm up after the expiry of a 90-day period. For instance, an employer lacks any obligation at all to give termination notice to an employee employed for 90 days or less. The legislation in Alberta states that:

“56 To terminate employment an employer must give an employee written termination notice of at least

(a) one week, if the employee has been employed by the employer for more than 90 days but less than 2 years,”

An employee who has not been employed for at least 90 days will not be entitled to maternity leave,

“45 A pregnant employee who has been employed by the same employer for at least 90 days is entitled to unpaid maternity leave.”

Additionally, an employee employed for 90 days or less lacks certain normal employee rights provided under Alberta law. For example, employees under probationary periods lack rights for:

• Parental leave;
• Compassionate care leave;
• Death or disappearance of child leave;
• Critical illness of child leave,long-term illness and injury leave; and lastly
• Bereavement leave, and other rights and protections as set out in the Code.

Probationary Employee Recourse If Wrongfully Dismissed

Legally, a wrongful dismissal claim exists in certain situations with new hires. If the termination of a probationary employee occurred in “bad faith” or in violation of the Human Rights Act RSA 2000, as mentioned above, the probationary employee receives protections under the law for a claim for “reasonable notice” per the common law. In addition, any Human Rights violation exposes the employer to a complaint to the Alberta Human Rights Commission. Although a probationary employee may lack entitlement to “termination notice” within the Employment Standards Code RSA 2000, they retain a right to seek notice, or payment in lieu of notice, per the Common Law. An employment lawyer assists you with determining your rights in these situations.

Help From Alberta Employment Lawyers

Employers looking to clearly define a probationary period require inclusions in their contracts. Specifically, they need to ensure that the terms and conditions include clearly defined language within the employment contract. For employers looking to have their employment contracts reviewed or employees who are unsure of their rights, you can contact our Calgary and Edmonton office. To make things easier, we offer in person, telephone and video consultations in Alberta. For the fastest service, please email our office with a brief outline of your situation. This allows us to provide you with feedback, information and / or the ability to set up a meeting with the appropriate lawyer. This email connects you with our employment law team. Alternatively, call our Calgary office at 403-225-8810 and or Edmonton office at 780-571-8463.