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If I’m fired during my probation period, do I have any recourse?

THE QUESTON

I was terminated from my job during a six-month probation period. I had roughly three weeks left until probation was finished, and had no complaints from the company or management. I was proving to be a valuable asset and more than met expectations. After using sick time – three days total of 12 allotted for the year – I was dismissed. There was no ask for a doctor's note, nor performance issues. I'm having trouble finding information on whether I have a case based on signing a probationary-period agreement.

THE FIRST ANSWER

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Daniel Lublin

Whitten & Lublin Employment Lawyers, Toronto

It is a common misbelief that (a) all new employees are probationary at first; (b) probationary periods are customarily three months' long; and (c) an employer can terminate an employee on probation with no severance, for any reason it chooses.

All three suggestions are wrong.

A probationary period only exists if one is first agreed to in writing and even then it can only provide an employer with whatever specific rights are defined in that written agreement and no more. If such a clause states, "You are probationary for six months and can be fired during this period," that is meaningless language. You can sue for wrongful dismissal since the clause does not specify the right to terminate without any severance.

On the flip side, if the clause specifically allows an employer discretion to termination for any reason it chooses with no notice or pay, or only the minimum amounts required by application legislation, and no more, then the reasons for termination become irrelevant and your rights are limited to minimum statutory entitlements to termination pay, if any.

Judges pay attention to specific and well-defined employment clauses, probationary language being no exception, and prefer to overturn or overlook more ambiguous terms. Therefore, the strength of your case will depend almost entirely on the strength of the clause that you signed.

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THE SECOND ANSWER

Kyle Couch

President and CEO, Spectrum Organizational Development

Typically, if a longer-than-usual probation period presents itself, always be sure to seek out the organization's motives up front, in order to avoid an outcome such as yours.

The organization may have simply had trouble in the past finding the right fit for the particular role, and may want some extra time to see if you are truly the person they have been looking for.

On the flip side, companies may use probation periods to "pump and dump" temporary employees in the hopes of acquiring short-term boosts in creativity, sales leads and engagement. Their goal is to get the best out of people quickly and move on to the next person in line.

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The key is being able to identify which case you are facing.

Ask the hiring officer how the role typically evolves past the probation, and how other employees who have been in this role have succeeded long term in the organization.

If they can produce tangible examples, it is more than likely worth the extra time on probation.

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About the Author
Globe Careers employment law expert

Daniel is a nationally recognized workplace law expert and a partner at Whitten & Lublin (www.toronto-employmentlawyer.com), where he represents both individual and corporate clients. Daniel frequently writes and appears in the media as a commentator for workplace legal issues. Since 2008, he has been named as one of Canada's top employment lawyers. More

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