Common Misconceptions About Probationary Periods
By Renee Boyda
A probationary period is a period of time during which an employee and employer can make a determination if a job is a good fit. For the employee, this is their opportunity to assess whether the job meets their expectations and career goals. The employer uses this time to evaluate the employee’s skills, performance, and overall suitability for the role. However, there are some common employer misconceptions surrounding probationary periods and not fully understanding the risks involved can lead to compliance issues, wrongful dismissal claims, human rights complaints and sanctions under occupational health and safety laws.
One common misconception about probationary periods is the duration. Probationary periods typically range from one to six months depending on the province. For instance, Manitoba’s probation period is 30 days, Alberta’s probation period is 90 days, while New Brunswick’s probation period is six months. Employers must ensure that they are following their province’s employment standards statutory probation period lengths to be compliant.
Employers sometimes place an employee on an extended probationary period beyond the original probation term to allow more time to assess suitability for the role. A common misconception is that an employee on extended probation can be terminated without notice. This is incorrect. Employers cannot avoid termination notice obligations by simply extending the probation period. Once an employee has passed the statutory probationary period set by provincial employment standards legislation, the employer is required to provide notice of termination or pay in lieu, even if the employer has labelled the employee as being on “probation.” Each province sets its own probation length and minimum notice requirements, and employers must comply with the applicable rules in their jurisdiction. Failing to provide proper notice after the probation threshold has been crossed can result in claims for unpaid entitlements, financial penalties, and enforcement action by provincial employment authorities.
While probationary periods are considered a trial phase, it does not reduce the employer’s legal obligations regarding terminations. There is a common misconception that an employee can be terminated during probation for any reason without repercussion. An employee’s performance during this period must still be evaluated in good faith. Termination cannot be arbitrary or discriminatory; it must be justified. To demonstrate good faith, employers must document performance issues in an objective manner, provide clear feedback and reasonable opportunity for the employee to improve their performance. Terminations without this process risk wrongful dismissal claims if lacking objective grounds. Also, when employees from protected groups, such as those with disabilities or pregnancy, are terminated while other employees in similar positions are retained, discrimination may be inferred. Without documented performance issues, a court could assume that a protected ground was a factor in the termination decision which can support a claim of discrimination.
This leads to the common misconception that probationary employees do not have the same rights as non-probationary employees. Regardless of probationary status, all employees have human rights protections, which include the right to request reasonable accommodation. Employers must approach all accommodation requests in the same manner right from the employee’s first day of employment. As well, many employers assume that probationary employees are exempt from the fundamental occupational health and safety rights such as the right to refuse dangerous work if it poses a risk to themselves or others, the right to know the hazards within the workplace, and the right to participate in safety decisions. Reprisals for exercising these rights are unlawful and that includes terminating a probationary employee for health and safety related complaints. All employees must receive safety training, hazard prevention and proper supervision regardless of their tenure, and probation does not release an employer from their duties.
Having a clear understanding of probationary periods helps employers make fair, legal and informed decisions. In essence, probationary employees have all core employment rights from their very first day of employment. The only difference is the limited termination notice entitlements. All provincial employment standards minimums, such as overtime and vacation pay apply, as well as human rights protections and health and safety standards. Employer misconceptions about duration, extensions and employee rights can lead to costly mistakes. Be aware of employer obligations and avoid using probation periods to circumvent employment standards or statutory rights.
If you need assistance with this, or any other HR related matter, please contact us at TIPI Legacy HR+: tipilegacyHR@tipipartners.com
Renee Boyda is a human resources consultant with Legacy Bowes. She is a CPHR candidate, received her Bachelor of Arts in Sociology from the University of Manitoba, and received both Human Resource Management and Management Development Certificates with Honours from Red River College. She is focused on building HR structures and processes to create consistency and fairness in workplaces across Canada. Renee is a proud Metis, with over 12 years of human resource experience in both union and non-union environments. She can be reached at (204) 947-5525.
