April 4th, 2017
Court Says Give Probationary Employees a Chance

Many employees and employers believe that the first few months of employment are a probation period.   Many employers believe that during a probation period, they can fire an employee for no reason and without notice or severance.

However, these beliefs are not entirely correct.  Employers have to give probationary employees a fair chance to show they can do the job.

In Ly v. British Columbia (Interior Health Authority), the BC Supreme Court considered whether an employer could fire an employee without cause (and without any severance or notice) during a probation period.

The employee in the Ly case had a probation clause in his employment contract.  The probation clause said the company could fire the employee without any severance during the probation period.

The company fired the employee after two months (during the probation period) and didn’t pay any severance.

The employee felt he didn’t get a fair chance to show he could do the job.  The employee sued for a severance.  He argued that the company didn’t tell him the expectations of his role, and didn’t give him a reasonable chance to prove he could fill the position.

The BC Supreme Court agreed with the employee.  The court held that employers need to assess a probationary employee’s suitability for the job in good faith, before firing the probationary employee without notice or severance.

The court found that the company in the Ly case didn’t set out job expectations, and didn’t give the employee a fair chance to prove he could do the job.   The court awarded a three month severance as a result.

Fair Chance

The Ly case teaches us that if a company wants to fire an employee on probation, it should give the employee a fair chance to prove he or she can do the job.

In order to give an employee a fair chance to prove he or she can do the job, companies should do the four following things.

  1. Make the employee aware of how he or she will be assessed during the probation period.
  1. Give the employee a reasonable chance to demonstrate his suitability.
  1. Think about the employees suitability based not only on work performance but also on personal characteristics such as compatibility and reliability.
  1. Act fairly and with reasonable diligence in assessing suitability.

Options for unfairly dismissed probationary employees

If a company fires a probationary employee without giving the employee a fair chance to prove he or she could do the job, the employee could sue for a severance.  The court can put the employer’s assessment of the probationary employee under the microscope, to determine if the company gave the employee a fair shot.

If you have been fired during a probation period and don’t think it was fair, you can get in touch with the lawyer who won the Ly case, Fred Wynne.

If you’d like to read the entire case, click on the link here: Ly v. British Columbia (Interior Health Authority)

Click here to read CBC’s story about the case.

If you have any questions about probation or severance, contact the writer, Jonas McKay, or any of the HHBG Lawyers at 604-696-0556 to schedule an appointment.  If you live outside of Metro Vancouver or don’t have time to visit one of our offices but still need legal advice, try our virtual legal services.  Help is only a phone call or email away.

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