Employee Dismissals and Wrongful Dismissal

Probationary Employees

Under the ESA, an employer is not required to provide notice or pay in lieu of notice during the first three months of employment. However, the ESA sets only a minimum level of notice period. The common law may still require some amount of notice (or pay in lieu) to be provided, even to employees who are within their first three months on the job, particularly if the employment contract does not state a probationary period.

In cases of probationary employees, the primary consideration is “suitability” (rather than “just cause”). An employer will be expected to have given the probationary employee a chance to meet the standards set by the employer at the time of hiring.  It is not permissible for the employer to impose new standards afterward, and seek to use those as a reason to dismiss a probationary employee without notice or severance. An employer who does not give the employee a fair chance to prove he/she can do the job may find itself owing a severance. Giving the employee a fair chance generally includes the following:

a. Making the employee aware of how he/she will be assessed during the probationary period

b. giving the employee a reasonable chance to demonstrate his/her suitability

c. communicate that suitability is based on considerations of the employee’s performance of the work required and also based on personal characteristics such as compatibility and reliability; and

d. act fairly and with reasonable diligence in assessing suitability.

Standards set by the employer must also be assessed in light of the Human Rights Code and the bona fide occupational requirement (“BFOR”) test, as considered in British Columbia (Public Service Employee Relations Commission) v British Columbia Government and Service Employees’ Union (BCGSEU), [1999] 3 SCR 3 (known as the “Meiorin case”). Performance standards  established by employers are not always upheld in court as being sufficient to meet the “bona fide occupational requirement” (BFOR) test, and may not be a sufficient basis upon which to justify a dismissal.

In cases involving an improperly dismissed probationary employee, it may be worth considering making a complaint with the Employment Standards Branch, or filing a wrongful dismissal claim Small Claims Court or the British Columbia Civil Resolution Tribunal, if applicable.

Consultations

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