Some useful thoughts on probationary employee terminations

Grant Machum and Sean Kelly of Stewart McKelvey note in their article “You gotta have (good) faith: terminating without notice during the probationary period” the struggle that employers may face in choosing between different ways of terminating probationary employees.

In examining two recent BC and Alberta cases, “these decisions suggest that, provided there is a valid contractual term limiting notice of termination, it may be more predictable to simply terminate without cause, as opposed to relying on the `unsuitability’ of a probationary employee”.  This is so because `unsuitability’ carries inherent uncertainty and will be closely scrutinized” by a court or tribunal.  They posit that “properly drafted clauses limiting notice of termination will be upheld”; “employers [can] terminate employment, without notice, if an employee is found to be `unsuitable’, subject to a good faith assessment and provision of any applicable statutory notice”.

Where the clause limiting notice of termination is “properly drafted” no explanation needs to be provided when electing to terminate the employment relationship without cause.  Of course, the devil will be in the details of “properly drafted”: as the authors note, care must be taken to ensure that a termination term complies with applicable employment standards legislation.  The courts have also been somewhat expansive of late as to what an employee is entitled to during a termination period, so care must be taken to be cognizant of the most current common law requirements.

It would be wise, when considering either an employment contract or termination to consult with your business’ lawyer so that all of the most up-to-date considerations are applied to the process.

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