Probationary Periods Just Got Muddy

Uncertain stressed woman during her job interview

Whose probationary period is it, anyway?

The Cambridge online dictionary definition of “Muddy the Waters” is “To make a situation confused and less easy to understand or deal with.”

Well, this is what is happening in Canadian employment law, especially in regards to employment probationary periods. An employer in British Columbia has just been ordered to pay 3 months’ pay in lieu of notice to an employee who was terminated after working for just two months, and he was on a standard probationary period.

What gives? Isn’t the point of an employment probationary period to test or trial a person’s character or conduct, which has been an accepted practice since the early 1500s? Well maybe not anymore in Canada; probationary periods just got very muddy!

Click here to read the latest legal precedent in probationary periods.

In this case, it seems the Interior Health Authority who was the employer failed to meet the test of sufficient feedback to the employee on probation. The employer only met with the employee once about his poor performance, which in fact was the termination meeting. The employer’s conduct did not give the employee any opportunity to improve his performance prior to being terminated, even though the employee was on probation.

Just because the employee is on a probationary period this does not give the employer carte blanche to terminate the employment relationship. All actions in the workplace must be reasonable: the rule or natural justice and progressive action are still required even with a probationary employee. HR Departments must ensure their probationary period contracts will be defendable in court, by ensuring proper HR practices are implemented during the probationary period.

Discussion Questions

  1. Research and identify three different employment probationary period clauses, once you have reviewed them, create your own probationary clause.
  2. After reading the attached case, develop a probationary review program which would avoid paying unnecessary termination payouts.

Costly Consequences

One of the perils of working in Human Resources is getting blamed when things go wrong.  This seems to be the case in a recent costly settlement scandal, unfolding at Concordia University in Montreal.

Man Holding Money
Source: Bacho/Shutterstock

Click Here to Read the Article.

How does one jump to the unfortunate conclusion that the reason for this settlement at termination, comes from a fault in the hiring process?  Before we begin to speculate, let’s be clear in our understanding that none of the facts related to this situation have been acknowledged or identified by the two primary parties in this case.

It does seem evident, however, that there are a few costly lessons to be learned from this case.

First and foremost, no matter how senior the position may be, is the person selected for the role truly skilled and qualified to meet the requirements of both the position and the organization?  Good human resource practices should ensure that hiring decisions are based on more than just professional reputation alone.

Second, are the terms of the employment contract, which solidifies the employment relationships at the time of hiring, reasonable and mutually beneficial? Typically, reasonable termination clauses are included in the employment contract signed and agreed to by both parties at the time of hire.  In this case, it seems that the benefit in the form of the amount of severance, which was provided as a result of the ‘mutually agreed’ termination of the employment relationship, rests with the departing employee.  From the perspective of an outsider to this particular situation, it appears to be out of proportion to the benefit gained by the university based on the amount of time the individual was employed.

Third, what is the organizational risk assessment and risk tolerance for a hiring decision that does not go as planned?  As HR practitioners, we do not spend enough time in the recruitment planning and hiring process to gauge the consequences of poor hiring decisions.  We should definitely be doing our due diligence homework at the time of hiring and include the risk of impact on organizational reputation when these types of situations do not go exactly as planned, especially when they end up in the public domain.

Discussion Questions:

  1. As the HR advisor in this case, what processes or steps would you have put into place to prevent this situation from happening as it did?
  2. Do you think this level of executive severance pay out is appropriate? Why or why not?
  3. Identify three additional lessons learned from this case in relation to employment contracts and the hiring process.

Investing in the Employment Relationship

One of the most effective employee training programs, that HR Professionals can provide, is new employee Onboarding.

Bringing new employees into an organization represents a significant commitment.  Not just from a monetary cost perspective, but more importantly, from a long-term investment into the employment relationship.  HR recruitment and selection programs spend an immense amount of time and money ensuring that the right person is hired into our organizations.  That investment must continue to be nurtured by ensuring that the newly hired employee is integrated into the cultural fit of the organization for the long term.

Click here to read the article.

This particular program, outlined in the article above, requires a high investment of time and focused commitment within the first 90 days of employment.  Is that enough time to assess the success of employee integration?  Many provinces have employment legislation that has a similar probationary period.  It makes sense to make use of a 90 day framework in the most cost-effective way possible.

When we invest in any relationship, we want to be sure that there is an equivalent return.  The same applies for employer-employee relationships.  By checking in with our employees at the beginning of their employment journey we are checking in on our investment with the hope for a very high and long-term commitment in return.

Discussion Questions:

  1. What is the cost-benefit of having a new employee buddy program?
  2. Have you left a position or a workplace within the first year of your employment because you did not feel welcome? What influenced your decision to leave? What would have influenced you to stay?
  3. Identify three new employee engagement/training activities that an HR department can provide at little to no cost, within the first 90 days of employment.
  4. Identify cost-related losses that occur when an employee leaves an organization within the first year of employment.