Many a wise employer will contractually commit to a prospective employee only for a predetermined period of time during or after which the employer can summarily end the employment contract due to his or her opinion as to the suitability of the prospective employee.

It gives the employer a chance to see if the employee is a fit.

For the probationary employee, it is a nerve-wracking period of time during which they do not benefit from the full gamut of rights as a regular employee.

Key is the period of the probationary period, the period of time agreed to between employer and probationary employee during which the employer has that opportunity to assess and determine the suitability of the probationary employee.

A probationary period has to be specified by the employer from the start of the employment as no probationary period will be later read into the employment contract by the court.

In Markey, at para. 63, Justice Scott of Ontario wrote:

"The plaintiff was a probationary employee and the defendant during such period of probation was entitled to discharge him without notice or reason. So long as the defendant was satisfied the plaintiff, in its opinion, was unlikely to meet the company's standards in all respects and in addition its rights to ascertain his suitability as a permanent employee, the decision was the company's alone as to whether or not to terminate his services. This is the very essence of having a probationary period."

probationary employmentA Saskatchewan case, Ritchie, set the tone for probationary employees in 1982 when Justice Noble wrote:

"... where (a probationary employee) is fired, it seems to me that the only onus that rests on an employer to justify the dismissal, is that he show the Court that he acted fairly and with reasonable diligence in determining whether or not the proposed employee is suitable in the job for which he was being tested.

"So long as the probationary employee is given a reasonable opportunity to demonstrate his ability to meet the standards the employer sets out when he is hired, including not only a testing of his skills, but also his ability to work in harmony with others, his potential usefulness to the employer in the future, and such other factors as the employer deems essential to the viable performance of the position, then he has no complaint. As for the employer, he cannot be held liable if his assessment of the probationary employee's suitability for the job is based on such criteria and a fair and reasonable determination of the question. In my opinion the law does not require the employer to do anything more."

In his difficult-to-read law book on Just Cause, author Justice R. Scott writes:

"Although this area of the law remains somewhat unsettled, the following would appear to reflect the current state of the law respecting the dismissal of a probationary employee.

"The onus is on the employer to justify the dismissal of a probationary employee; the employer must show it has cause. (But) cause with respect to probationary employees is a lower standard that just cause respecting regular or permanent employees. Unsuitability would be sufficient grounds, and may be based on reasonable considerations such as character, compatibility ... and standards of conduct reasonably imposed by the employer."

In 2007, the Alberta Court of Appeal, in Lust, clarified the law to a great extent by adopting these words:

"To establish justification for the dismissal of a probationary employee, the employer need only establish that (1) he had given the probationary employee a reasonable opportunity to demonstrate his suitability for the job; (2) he decided that the employee was not suitable for the job; (3) 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.

"In cases of a probationary review, the court will not require that the employer establish actual cause, just that the employer decided that the employee was unsuitable, on the criteria indicated above."

The the old common law orphaning of the probationary employee to the whim of the employer, based on his assessment of suitability, has given way to a small victory for probationary employees.

Now, at least, if they press the employer, they are entitled to know why they were unsuitable and to be treated in that regard, fairly.

A practical difficulty facing probationary employees is the dearth of cases which go forward since most dismissed probationary employees would not find it financially worthwhile to sue for damages since, even if they are successful, the severance award is likely to be minimal - not enough to justify taking a legal stand.

Under all the circumstances not just of the law or probationary employment, but also the activist role the courts have taken on ringing up a large severance pay load onto employers, all employers should realize that probationary employment is one of their greatest tools in ensuring that all members of an incoming pool of new employees fit.

An employer has nothing to lose and everything to gain by stretching the period of employment probation as long as possible because during that period of time, it is so much easier, and less expensive, to cut an ill-fitting employee.

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