Dismissing A Probationary Employee

It is not uncommon for employment agreements to include a probationary clause. The rationale behind a probationary period is to enable the parties to determine whether a continued employment relationship is viable. While some employees may decide to leave of their own volition during the probationary period, in the vast majority of cases, the decision to continue or discontinue employment, is made by the employer.

Length of Probationary Period

Typically, the probationary period chosen by employers is three months. However, a probationary period could even be as long as 12 months (for very senior positions), or some other length of time in between.

The reason employers in British Columbia most often select a three-month probationary period is because the Employment Standards Act (British Columbia) does not require notice, or pay in lieu of notice to be given to an employee who is terminated within three months of being hired.

Employer obligations during Probation

While employers are not required to give reasons when dismissing an employee during the probationary period, they still have an obligation to the employee to act in good faith in assessing the employee's suitability for permanent employment.

An employer is also obliged to provide an employee with at least the minimum notice required by statute.

In the recent decision of Ly v. British Columbia (Interior Health Authority), 2017 BCSC 42, the BC Supreme Court clarified the law relating to dismissing a probationary employee.

Brief Facts

The Interior Health Authority ("Interior Health") hired Mr. Ly in the position of Manager of Quality and Patient Safety and Client Experience at a salary of $98,000 per year. Mr. Ly's offer letter stated "... Employees are required to serve an initial probationary period of six (6) months for new positions..." The offer letter was silent on the issue of notice.

Interior Health terminated Mr. Ly's employment approximately two months into the job without giving him any notice, or pay in lieu and Mr. Ly sued for wrongful dismissal.

At trial, the evidence also showed that Interior Health did not make any good faith attempt to assess Mr. Ly's suitability for continued employment during the two-month period. This was despite the fact that Mr. Ly had proactively sought constructive direction and clarity regarding his position from his supervisor.

Decision

The court held that Interior Health had not given Mr. Ly...