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Can I Fire My Employee During Their Probationary Period?

April 28, 2014, by HR à la carte | Performance Management|Dealing with Difficult Employees

Frequently Asked Questions Series

Entering our fourth year of business, we’ve received a lot of questions from clients over the years and have noticed that there are several questions that recur over and over again.  We decided to create a Frequently Asked Questions Series of blogs and will tackle one question per blog.  This month’s question is

Can I Fire My Employee During Their Probationary Period?

The short answer is yes.  However, there is a big BUT.  Read on to find out how much more complex this question really is. 

Many Canadian jurisdictions, including Ontario, do not require an employer to provide notice of termination to an employee if they have worked for less than 3 continuous months.  However, your new employee has to agree to the fact his or her first 3 months are probationary.  The best way of obtaining this agreement is by having it in writing in the offer letter.  If you did not get their agreement up front, the employee is entitled to notice or pay in lieu of notice if you terminate them within 3 months. 

Another consideration is if your new employee was head-hunted away from a position with another company and you terminate him within 3 months of starting at your company, you may also be liable for common law severance that takes into account his tenure at his previous company.

What if 3 months is too short of a probationary period for the role?

You can make the probationary period as long as you like.  Many businesses choose 6 months as many jobs cannot be learned within a 3 month period.  Again, it has to be agreed to by the employee.   Just realize that if it is longer than 3 months, the statutory notice requirements do kick in after 3 months.  Just because you call it probation does not mean you can let someone go without providing them with appropriate notice or pay in lieu of notice if it’s a without cause termination. 

Can I extend the probationary period?

If you feel your new employee is doing well but is still not quite up to a “meeting expectations” level in his/her first three months, you can extend the probationary period and provide a letter explaining this. However, if you do decide to end the employment relationship after the three-month mark, you will still be required to provide the appropriate notice period as per provincial employment standards.

Set Measurable Expectations

Regardless of how long or short you make your probationary period it is a good practice to have a measurable way of determining if an employee has met the goals of the probationary period.  Both you and your employee should be on the same page as to what is expected and how success will be measured. 

Weekly monitoring of performance, with a monthly performance conversation during this time frame is extremely helpful. For this reason, we strongly recommend having a 30/60/90 Day Plan for your new employee, to carefully set training goals and performance-related goals at the one-month, two-month and three-month anniversaries.

If during the course of the probationary period, you feel the employee is not working out, you must still be able to show objective evidence of the employee’s inability to perform the role or their lack of suitability for the position in order to terminate their employment.

As always, consult with an HR professional before making the decision to terminate.

Note:  this article is not meant to take the place of professional advice regarding specific situations.

Other items of interest:

Tips on Successfully Onboarding Your New Employees

Onboarding – How to Get the Greatest ROI in the Shortest Amount of Time

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