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Probationary Periods in Employment Agreements - Should Employers Use Them?

22 May 2019

Now that employers with 20 or more employees do not have the ability to dismiss those employees who are ‘not working out’ under the 90 day trial period clause, they need to decide whether they should implement the less powerful but more labour intensive probationary periods in their employment agreements.

An employer may require a newly hired employee to serve a period of probation to give the employer an opportunity to evaluate the employee’s performance before confirming the appointment.

Duration

The period of probation needs to be specified in the IEA and must be of reasonable duration, determined with reference to the nature of the job.

Monitoring

During the probationary period, the employee’s performance needs to be monitored assessed and, if necessary, the employee should be given reasonable evaluation, instruction, training, guidance or counselling at the end of each month.

If the employer considers the employee’s performance below standard, the employee should be advised of any aspects in which the employer considers the employee to be failing to meet the required performance standards.

Extension or dismissal

If there is no improvement, the probationary period may be extended further, or the employee may be dismissed. It is very important to keep proper records of everything during this entire process and request the employee to sign off any minutes for review after each step.

Of particular note - if the employer dismisses an employee despite implementing a probationary period, it does not stop an employee from raising a personal grievance for unjustified dismissal.

Please do not hesitate to contact us if you need some assistance in developing a new probationary provision