First Published in The Bermuda Chamber Of Commerce Newsletter (Chamber Insider), August 2019
New employment is not always a smooth process. The employer and employee both need to adjust to new conditions and dynamics. Employees must learn new duties and methods of operation, while employers must learn the work habits, strengths and weaknesses of the new employee. Probationary periods are helpful to both parties as a 'getting to know you' phase in what most hope to be a mutually beneficial relationship. However, no relationship is perfect.
In Jerome Robinson (1609 VIP Executive Limited) and Kaenori Burchall (Robinson v Burchall): Burchall brought claims for being unfairly dismissed. Robinson defended citing the authority to dismiss an employee for any reason during the probation period. The Hon. Assistant Justice Pettingill (Pettingill AJ) noted that "if the end of the contractual probation period is approaching and an employer is not yet sure whether to dismiss the employee or not, the probation period can be extended if the contract includes an express right for the employer to do so or if the employee agrees to an extension." Probation periods can be extended if an employer believes an employee has not reached a satisfactory threshold. Ultimately though, under Bermuda law, an "employer is legally entitled to terminate the contract of employment for any reason without notice in accordance with section 19 of the Employment Act 2000 (Act). But what an employer cannot do is extend the probationary period after the initial probation has expired.
In Robinson v Burchall, Pettingill AJ stated that "the law on probationary periods is quite clear...and an employee cannot be placed on a probation period once an initial period has expired, which was for a month in this instance, without the employer giving prior notice of the intention to extend the probation, even in circumstances where such period is agreed as it was in this case.... s.19 in setting out probation for a "new employee" does not give statutory flexibility to reinstate a period of probation at a later date in time as a convenience to the employer. The reason being obvious as it would give a "license" to employers to impose a probationary period as they wished and obviate the more stringent provisions of the Employment Act required for full time employees." If the employer fails to exercise any right to extend the probation period before its expiration, the employee automatically passes the probation and can no longer be dismissed without cause.
Pettingill AJ ruled that, as Ms. Burchall was not terminated on any of the grounds for unfair dismissal noted in s. 28 of the Act, and was in fact summarily dismissed by s.19, the termination was 'wrongful' "as she was a de-facto employee and should have been given a written warning and appropriate notice in accordance with s.24 and s.27 of the Act if there were issues with her conduct."
Robinson v Burchall is a cautionary tale for both employers and employees when it comes to managing probationary periods. We would always advise that an employer should take care when considering extending an employee's probationary period. If there is any doubt, then advice should be sought prior to the probationary period expiring.
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