Workers on Probation: Know Your Rights

It is a common misconception that employers can fire workers who are on probation, during or at the end of their probationary period, or extend the probationary period, without following any proper procedure.

Workers on probation have the rights not to have their probationary period unfairly extended, and not to be unfairly dismissed during or at the end of the probationary period.

Employers must treat probationers fairly and give them a reasonable opportunity to establish themselves and earn the permanent position. In order to do this, employers have several obligations that they must fulfill when dealing with workers on probation. 

When managing probationers, employers must:

1. Provide an accurate job description at the start of the employment (and not make any unilateral changes to the probationer’s role/job description thereafter).

2. Provide the probationer with training, mentorship, guidance and supervision.

3. Provide the proper tools, support and facilities for the probationer to perform the job adequately.

4. Regularly communicate, interact, monitor, assess, guide, assist and warn the probationer.

5. Conduct regular performance assessments/appraisals.

6. Raise any concerns/issues with the probationer’s performance, and issue written warnings if underperformance continues. 

7. Provide further training, support and assistance to help the probationer correct any identified deficiencies.

8. Give the probationer time to improve. If the probationer is warned that his performance is being monitored or that his performance needs to improve, he must be given adequate time and opportunities to improve after the warning is made. 

9. Conduct a final assessment; and if necessary, issue a final warning if underperformance has continued. 

10. Give notice if the probation has been unsuccessful and state whether the probation is being extended or the employment is being terminated.

11. Honour the terms of the contract. If the employment contract states that the probationary period must not exceed a certain number of months, it would be unfair for the employer to extend the probation beyond that timeframe.

To be clear, an employer is not obligated to grant a probationer the permanent position, nor is an employer obligated to allow a probationer to complete the entire probationary period. But an employer must fulfill his obligations owed to a probationer and give the probationer a fair opportunity to establish himself and earn the permanent position.

If an employer fails to fulfill these obligations when dealing with a worker on probation, the worker would not have been given a fair opportunity to establish himself.

And if the employer fails to give the worker a fair opportunity to establish himself and then decides to extend the worker’s probation or dismiss the worker, this may be unfair and the worker may be entitled to compensation.