Probation is considered to be an introductory period of employment for nearly all private sector employees in BC. Employers often think that due to their probationary status, these employees can be dismissed or terminated for any reason, at any time. However, doing so could qualify as wrongful termination during probationary period, formally known as wrongful dismissal.
Interpretations of the primary law regulating employment in BC, the Employment Standards Act (ESA), have determined that probationary employees have rights that employers can’t ignore based on probationary status. When these rules aren’t followed, it could lead to legal consequences for the employer resulting in monetary damages owed to the employee.
What Does Employment “Probation” Mean?
Probation is used to describe an introductory period of employment, during which the employee is learning the job and the employer is determining their suitability for it.
Provisions in the ESA that define employee rights during probation are intended to give employers a standard by which to conduct employee relationships during this period. Under no circumstances can employers:
- Terminate employees during probation without just cause.
- Extend probation to avoid a minimum notice period or severance pay.
- Refuse to give justification when employees are terminated for cause.
- Place established employees back on probation to avoid notice or severance.
Probation Periods, Severance, and Just Cause
To properly dismiss an employee, the ESA requires a period of sufficient notice of termination, or pay in lieu of notice. Only in select circumstances can employers forgo this responsibility.
Two of the most common circumstances are “for cause” (or “just cause”) firings and when an employee is on probation. However, recent employment court rulings and interpretations of the ESA require employers to adhere to certain obligations when dismissing a probationary employee.
Probationary Periods and Employer Obligations
What constitutes a legitimate dismissal is based on a variety of factors but the ESA sets legal minimums. According to the ESA, employees are considered to be probationary for the first three months of their employment. Terminating probationary employees includes working to remedy deficiencies in work performance. Additionally, a worker’s probationary status does not allow employers the right to let go of employees without the ESA’s required justification, severance pay, or sufficient notice.
ESA Probation and Severance Minimums
If the employer waits to terminate an employee immediately following the end of their three-month probation, they owe the employee a minimum of one week’s pay or notice.
Some employers may choose to “extend” their new employee probation as a means of signaling to that individual they remain in training or will continue to receive additional work support. However, the one week’s pay or notice standard remains in this instance, based on the ESA’s three-month guideline.
For employees outside of the probationary window, the ESA defines minimum notice and severance pay based on length of service, position, and the employee’s current total compensation at the time of dismissal. It is not out of the question that this is also the case for probationary employees, meaning that, depending on different factors, probationary employees could be owed more than ESA minimums.
Employer Obligations to Probationary Employees
If these guidelines are not followed, your termination could be deemed a wrongful dismissal by BC courts. In this case, the dismissed employee could be owed damages, even if they were within the job’s probationary period.
With the help of a lawyer, you may be able to show your employer wrongly dismissed you during your probation period.
Human Rights Dismissals
Discrimination and harassment are never ethical or legal. Probationary periods do not give employers the right to mistreat employees for the reasons forbidden in the Canadian Human Rights Act.
This could include employees with disabilities not being provided proper, disability-specific employer support. If you suspect an employer has dismissed you during (or after) your probation period due to a disability, you can bring legal action against them.
Generally, wrongly dismissed employees may file a human rights complaint if they suffered discrimination at the hands of an employer. Common examples include discrimination based on declared gender, religion, or age. For example, someone dismissed for their disability or a person living with a disability who had been inadequately supported during their probation could have a wrongful dismissal case. This is both due to the discriminatory firing and the lack of support as defined by the ESA.
Employment Contracts and Agreements
Simply adding a probationary clause to an employment contract does not absolve the employer of its ESA-mandated obligations. In fact, these provisions could be viewed as improper and come with additional responsibilities on the employer’s part if used to circumvent the ESA.
Job or Position
For those in more advanced jobs, the law requires that additional notice and severance be paid beyond ESA minimums. It is possible that the courts consider a three-month probationary period insufficient for some jobs or determine that the severance owed at the end of probation (typically one week’s pay) is not sufficient in light of the employee’s higher-level position.
Contact the experienced employment lawyers at Stephens & Holman to determine if your case could constitute wrongful dismissal due to ESA guidelines or misconduct by an employer.