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What rights does an employee on probation have?

When you start a new job, you are often required to undergo a probation period in order for your employer to evaluate whether you are a good fit for the company.

Have you ever wondered what the legalities surrounding probationary employees are? Do employees on probation have any rights?

What a lot of people don’t know is that there is actually no specific legislation on probationary employment periods. However, each province and territory has employment standards acts which set out how much notice an employee is to get if they are terminated.

If you are under a certain amount of months then the statute may say that you can be terminated with no notice.

A new employee should not assume he or she is on probation. The probation should be made clear by the employer before employment, upon hiring or as a condition of employment.

Contractual probation period

Most often, the employer will set out the probation period in the employment contract. Usually probation periods last from three to six months. However, depending what the employment standards act of your province/territory says about when the statutory minimum notice requirement kicks in while you’re under probation, then you may be entitled to the statutory minimum.

The clause describing the probationary period should be clear, because if it is vague the courts may not interpret it as a clause that sets out a probation period.

Case law about employment probation

Though case law is not quite consistent in regards to work probation with some cases having found it’s enough for a probationary period to be implied in the contract and other courts finding that it should be clearly spelled out.

An important Court of Appeal decision from Alberta set out how employers must justify the dismissal of a probationary employee. As long as they gave the probationary employee a reasonable opportunity to prove his or her suitability to the employment, a dismissal will likely be justified.

The employer has to show that:

  • He had given the probationary employee a reasonable opportunity to demonstrate his suitability for the job;
  • She decided that the employee was not suitable for the job;
  • That his decision was based on an honest, fair and reasonable assessment of the suitability of the employee, including not only job skills and performance, but character, judgment, compatibility, reliability, and future with the company.

Can an employer terminate me for any reason?

No. Though the employer can likely terminate you for just cause during the probation period, they cannot terminate you for reasons that go against human rights legislation. An employer has the duty to act in good faith.

If a person is dismissed for reasons that go against human rights legislation, then they have the right to file a complaint with the human rights board of their province or territory or else sue for wrongful dismissal.

If you are having issues with your probationary period or you feel your dismissal may have been against the human rights code of your province or territory you should consult an employment lawyer.

Read more:

Employees on Probation

Are Probationary Periods Legal in Canada