Many employers use a probationary period with new employees to
assess whether or not a new hire is a good fit for their
organization. When an employer determines that the employee is not
a good fit during the probationary period however, it is often
thought that the employer can terminate the employee for any reason
so long as it is not a reprisal under an employment related
statute. A new case from British Columbia should change that way of
thinking. An employer terminating an employee during a
probation period needs to exercise some caution in light of the
recent decision of Ly v British Columbia (Interior Health
In Ly the plaintiff was hired into the
position of Manager where his role was the management of six
consultants and an administrative assistant. He began working in
the position on November 6, 2014. Once working the employer began
to doubt Mr. Ly's ability to perform the job as he was
complained about, the consultants bristled at teambuilding efforts
and two consultants even threatened to quit. As a result, the
employer decided to terminate Mr. Ly two months after he began work
in January 2015.
The Court in this case confirmed that Mr. Ly's contract had
a valid and enforceable probationary clause. We have previously
blogged on the enforcement of probationary clauses here. It is critical that a probationary
clause be enforceable in order to terminate on this basis. The
employer however was not successful in relying on the probationary
term as a result of their conduct during Mr. Ly's
The British Columbia Interior Health Authority was faulted for
providing Mr. Ly with contradictory instructions, failing to
respond to Mr. Ly's requests for a meeting to obtain feedback
and improvement and never providing Mr. Ly with a meeting to
discuss his progress. Instead of providing guidance to Mr. Ly the
Interior Health Authority only ever scheduled one meeting with him
– his termination meeting.
As a result of the Interior Health Authority's conduct Mr.
Ly was awarded reasonable notice of termination – which was
set at three months. The basis for this award was that the employer
did not meet the legal obligation to carry out a good faith
assessment of suitability for continued employment. For employers
going forward this case suggests that employers cannot terminate a
probationary employee for any reason or no reason at all. Although
this case is from British Columbia, in order to have the best
chance of upholding a termination of a probationary employee
without an award of damages it is recommended that employers
document and communicate their performance concerns to probationary
employees and act in good faith when deciding not to continue
employment past the probationary period. As a general approach,
probationary employees should be given a reasonable opportunity to
Probationary periods are an important tool for employers in
assessing employees and limiting entitlements to employees who are
not successful in the role. The
lawyers at CCP can assist in drafting enforceable
probationary period clauses and in navigating an unsuccessful
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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The arbitrator's decision covered a number of issues including whether the termination was appropriate and whether the City had breached the grievor's human rights. The following, however, will focus on the privacy issue raised.
In my December 15, 2016 article, Federal Government's Cannabis Report: What does it mean for employers?, I noted the Report's1 suggestion that there was a lack of research to reliably determine when individuals are impaired by cannabis.
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