Probationary periods serve an important role in ensuring that
employers hire the right person for the job, but what are an
employer's legal obligations when terminating a probationary
employee? Specifically, if an employer ultimately decides to
terminate a probationary employee, is that employee entitled to
reasonable notice of his or her dismissal? Unfortunately, there is
no clear answer.
However, a recent decision of the British Columbia Supreme Court
("BCSC") held that an employer was not required to
provide notice to a probationary employee prior to terminating her
employment. In rendering its decision, the BCSC cited Jadot v Concert Industries Ltd for
the proposition that the standard for dismissing a probationary
employee is "suitability" as opposed to just cause.
Accordingly, the Court held that the employer was justified in
dismissing the probationary employee, without notice, for her
failure to fit in with the other employees.
Ultimately, an employer's legal obligations in a given
situation will depend on the specific facts of the employment
relationship, including any contractual provisions and requirements
under applicable employment legislation. However, this decision
makes for an interesting addition to the case law addressing
reasonable notice for probationary employees and supports the
argument that employers should benefit from a degree of flexibility
when it comes to assessing an employee's fit within an
Written with the assistance of Samantha Cass, articling
Norton Rose Fulbright Canada LLP
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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