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Wait! Don’t Fire that Probationary Employee Yet!!!

By June 28, 2018November 5th, 2019Employment Law

You spent weeks finding the best receptionist for your practice. You posted. You interviewed. You did follow ups. You got the contract signed. You hired!

But the new employee isn’t living up to your training and standards.

So you reassure yourself: “It’s less than 3 months, I can just fire them with no pay and no notice and start over.”

This is not always true! This is a myth! Employers do not always have the absolute right to terminate an employee without any pay or notice. Especially for probationary/new employees. One employer in PEI found out the hard way.

Important Case from PEI

In Pound v iWave Information Systems, the employee was hired as a full-time marketing and communications manager. In his contract, he agreed to a 3 month probation period.

Interestingly, the employer had a written policy that specifically said “(on) a termination of employment… the employee will be given a letter detailing the reason for termination.” The policy also set out a process for further training and improving performance (kind of like a progressive discipline policy).

When the employer decided to terminate the employee after only two months on the job and before the end of the probation period, the employer thought it was following the law and following its own contract. And after all, the employee had specifically agreed to the 3 month probation period, right?

Well, PEIs highest court disagreed. That court said that the employer’s policies also formed a part of the employment contract, and therefore the employee was entitled to the promised warnings, further training, and a full explanation of the reasons for termination (even if his probation period had not yet expired).

So the employer was in the wrong here because it failed to provide the entitlements provided in the employment contract. So the PEI Court of Appeal gave the 2-month employee 3 months of pay.

Lessons Learned

Hopefully this case will serve as an important reminder for all dentists about how probation periods really work. Here are some things to keep in mind.

  • If your contracts are not crystal clear, the minimum “3 month probation period” may not necessarily apply to your new employee.
  • A crystal-clear employment contract with a good probation period will help you terminate that new employee, but there is more you need to keep in mind if you want to terminate a new employee:
    • DOCUMENT what the employee is doing wrong;
    • TELL the employee in writing what they are doing wrong;
    • SHOW the employee how to do their job correctly, and document that as well;
    • WAIT for the employee to absorb what they have learned and see if their performance improves;
    • DO MORE coaching if there is still no improvement, and document that;
    • WARN the employee that if their performance does not improve, their employment will be terminated; and
    • BE GOOD and reasonable to your employees, or in other words, act in good faith towards all your employees.

Steady readers of our blog will notice that the above sounds a lot like how to terminate a poor performing employee – and that is on purpose.

REMEMBER: Terminating a probationary employee is essentially terminating an employee FOR CAUSE. That is consistently a high bar for employers to reach. Terminating a probationary employee because they are not suitable for their job is therefore a tough (but not impossible) task.

As always, call an employment lawyer if you ever have questions about employment law, and get a legal opinion before you terminate an employee.

P.S. If you want more reading about probationary employees, check out this post.

DMC