A probationary period gives an employer the chance to evaluate a new employee during the early days of the employment relationship. If things aren't working out from an employer's perspective, it can dismiss the employee before the probationary period expires and not have to provide advanced notice of the dismissal or establish that it had "just cause" (a high legal standard) to justify the dismissal.

The Employment Standards Code sets the ground rules for the length of an employee's probationary period. The Code says that an employer doesn't have to give an employee notice (or pay instead of notice) when the employee's period of employment is less than 30 days.

In a recent decision from the Manitoba Labour Board, an employer and the Director of Employment Standards had different interpretations about what "days" meant when talking about the length of a probationary period.

In Top Dog Courier v DM, the employee became employed on May 29, 2020, and was dismissed on July 8, 2020 – a period of 40 calendar days.

The employer argued that "days" meant days in which the employee actually worked. In this case, the employee had only worked for 29 days during that time and so was still on probation when dismissed.

The Director argued that "days" meant calendar days, and so the employee was not on probation when dismissed (and so was entitled to receive notice of dismissal, or pay instead of notice).

The Labour Board agreed with the Director's position. Using calendar days to calculate the probationary period was the logical approach. Calendar days are consistent with the Code's reference to the probationary period being measured by an employee's period of employment, which begins with the employee's start date and ends with their dismissal. The Labour Board noted the Code does not say that a probationary period is measured by days worked or days in which an employee is paid.

In my view, there is logic to the employer's argument from a practical, business perspective. If the point of a probationary period is to evaluate a new employee, shouldn't the probationary period be based on some measurement of time during which the employee is actually present and so can be evaluated?

But the bottom line is that's not what the Code says, as clarified by the Labour Board. And unless the legislation changes, employers should be cautious when dismissing who they may believe to be a "probationary" employee without notice or pay instead of notice.

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