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