Embarking on a new job can be an exciting yet uncertain journey for employers and employees. During the initial phase of employment, a probationary period typically serves as a trial run. Both parties can assess the fit and performance before further solidifying the employment relationship. However, within this probationary period lies a complex web of rights, obligations, and potential legal implications, particularly concerning wrongful dismissal.

This blog will shed light on Alberta’s complex landscape of probationary periods and wrongful dismissal claims. It will explore the rights of both employers and employees, the significance of fair evaluations, and the avenues available in case of a dispute or claims arising from dismissals during the probationary period.

Defining the Probationary Period

Generally, a probationary period is a set period of time during which a new employee will be assessed by their employer for their suitability in the role they were hired for. When an employee is hired on a probationary basis, an employer must stipulate in the employment contract that a probationary period will be applicable. 

While many employees are familiar with a three-month probationary period, they can be shorter or longer, subject to the employer’s discretion. As such, the particular details about the probationary period should be outlined and communicated to the employee at the commencement of their employment agreement and for further insurance included in the employment contract.

Employee Rights During the Probationary Period

Most non-union employees in Alberta are entitled to the minimum rights outlined in the provincial Employment Standards Code. This legislation sets out employee’s minimum entitlements, including minimum wage, work hours, holidays, and notice requirements on termination. As such, an employer cannot hire someone and attempt to contract out of these minimum entitlements. Employers can, however, provide employees with greater rights and entitlements than are provided in the Employment Standards Code through the employment agreement. 

The Employment Standards Code does not define or use the term “probationary period,” however, many of the rights contained within the Employment Standards Code are available to employees after 90 days of employment, including an employee’s right to notice of termination. In other words, an employer may terminate an employee within the first 90 days of employment without notice. 

Termination Notice Under the Employment Standards Code

The Employment Standards Code provides that the minimum notice an employee must be given upon termination is based on their length of employment with the employer. For example, an employee terminated within the first 90 days of employment must only receive one week’s notice. 

Once an employee has been employed for longer than 90 days will be entitled to additional protections under the Employment Standards Code. These additional rights include the right to notice of termination and the right to be paid within a specific period after termination occurs and will be available even when a probationary period lasts longer than 90 days. Employers may pay an employee termination pay instead of providing notice to compensate for the wages an employee would have otherwise earned during the notice period.   

Dismissal During the Probationary Period

Understanding the nuances of probationary periods and the rights and responsibilities of employees and employers is crucial when determining whether a termination constitutes a wrongful dismissal. While the probationary period provides a window for evaluation, there are also legal boundaries and implications to consider when the employment relationship does not proceed as anticipated. 

Do Employers Need a Reason to Dismiss an Employee During the Probationary Period?

An employer can generally terminate an employee’s employment at any time during the employment relationship, including the probationary period. However, sufficient notice or termination pay in lieu of notice must be provided. An employer may also terminate an employee “with cause” or for “just cause” without notice. Further, an employer cannot dismiss an employee on any discriminatory ground under the Alberta Human Rights Act.

Alberta courts have distilled this down further by indicating in various decisions that there is a presumption that employees are entitled to reasonable notice, even if they are terminated within the first 90 days of employment unless they are deemed unsuitable for the role. 

Terminated During the Probationary Period

If an employee is abruptly terminated during the probationary period, they may be unclear on their rights or entitlements. However, an employee’s rights during this period may be impacted by the unique circumstances of their employment agreement and the termination. If an employee feels they have been wrongfully dismissed or did not receive adequate notice or pay in lieu of notice, they may be entitled to damages due to a wrongful dismissal action. 

Key Takeaways for Employees

Probationary periods are not just a time to “pay your dues” when entering a new workplace. Rather, this is essentially a trial run period during which the employer has fewer obligations to you while assessing your fitness for your new role. While employers do not necessarily have as many obligations to you during this time, they must still abide by minimum standards to protect employees. If you are an employee who believes they have been wrongfully dismissed, particularly during the probationary period of a new employment relationship, consulting with an experienced employment lawyer can help you determine whether you may have a basis to advance a claim for damages. 

Key Takeaways for Employers

Employers must remember that the probationary period is not a free pass to terminate an employee for any reason. The probationary period is intended to be a time period during which both parties, particularly the employer, can assess the employee’s fitness for the position they have been hired for. If the employer does determine that a new employee’s termination is necessary, they must prove that a fair assessment was conducted. Otherwise, the employer may expose themself to liability for a wrongful dismissal claim. Working with a trusted employment lawyer can help employers proactively navigate the complexities of the legal requirements regarding employee terminations. Employers can also seek advice on defending such claims and limiting their liability if an employee has commenced a wrongful dismissal claim. 

Contact Getz Collins and Associates in Calgary and Strathmore for Advice on Employee Terminations During the Probationary Period

When an employee is terminated, it can be a complex and confusing time for employees and employers if they face a wrongful dismissal claim. The skilled employment lawyers at Getz Collins and Associates help alleviate these pressures and uncertainties by providing employees and employers with sound legal advice about wrongful dismissal claims and terminations. Whether you believe you have been wrongfully terminated during the probationary period or are an employer facing a wrongful dismissal claim from a previous employee, it is important to obtain legal advice as quickly as possible. To schedule an initial consultation with a member of our team, contact us online or call us at (587) 391-5600.