You can’t just fire a probationary employee?
July 27, 2023
Many employers don’t realize that dismissing a probationary employee requires adherence to a specific process that upholds fairness. If employers don’t understand and follow this process, they may be liable to pay the employee common law notice of termination.
The proper process involves making a good faith determination of an employee’s suitability for permanent employment and granting them a fair and reasonable opportunity to demonstrate their suitability for the role.
Employers and employees can both greatly benefit from understanding the intricacies of dismissing probationary employees.
The Importance of a Fair and Reasonable Opportunity
When it comes to probationary employee dismissal, employers must make a genuine effort to assess an employee’s suitability for permanent employment. This requires giving them a fair and reasonable opportunity to prove themselves within the given probationary period. The evaluation should be based on relevant criteria and job-related performance indicators.
In White v Ownersbox, the court emphasized the significance of providing a fair and reasonable opportunity to probationary employees. This decision reiterated the test set out in Nagribianko v. Select Wine Merchants Ltd. reinforcing the need for employers to follow due process.
Making a Good Faith Determination:
Before terminating a probationary employee, employers must conduct a good faith evaluation of their suitability for the role. This evaluation should be based on legitimate reasons and should not be influenced by any discriminatory factors. Employers should consider factors such as the employee’s job performance, work ethic, ability to meet job requirements, and compatibility with the company’s culture.
By following this process, employers can demonstrate that they have acted fairly and reasonably in assessing the employee’s suitability for the role. It ensures that the decision to terminate is not arbitrary but is supported by valid justifications.
As Justice Papageorgiou stated, at paragraph 31 of White v Ownersbox, “the test involves a determination as to whether the employer made a ‘good faith assessment of the suitability’ of the employee for permanent employment.”
Benefits for Employers and Employees:
Understanding the intricacies of dismissing probationary employees can bring numerous benefits for both employers and employees.
Fairness and Transparency: Adhering to a defined process ensures fairness and transparency throughout the dismissal procedure. Employees can have confidence that their termination is based on legitimate reasons and not influenced by personal bias.
Clear Expectations: Having a well-defined probationary period and evaluation process helps set clear expectations for both employers and employees. This clarity fosters a more productive work environment and enables employees to understand the benchmarks they need to meet for continued employment.
Reduced Legal Risks: By following the prescribed steps, employers can minimize the risk of legal repercussions. Failure to provide a fair and reasonable opportunity or making decisions based on discriminatory factors can lead to costly legal disputes.
Talent Development: The probationary period serves as a valuable opportunity for employees to showcase their skills and potential. By providing constructive feedback and guidance, employers can facilitate the growth and development of their employees, leading to a more skilled and competent workforce.
By understanding the intricacies of probationary employee dismissal, employers can create a work environment that values fairness, clear expectations, and talent development. Such an environment not only benefits the employer but also empowers employees to showcase their potential and grow professionally. By embracing these principles, employers can navigate the dismissal process with confidence, knowing that they have acted in accordance with the law and upheld fairness for all parties involved.