Canadian HR Reporter

CANADIAN HR REPORTER May 16, 2016 NEWS 11 provide the employer with the ability to avoid reasonable no- tice, in a sympathetic case, then the employer may well be held to some of those procedural ele- ments if the judge doesn't want to send the plaintiff away empty- handed, he said. Risks and responsibilities Probationary periods in some cas- es can be tricky because there isn't always a common understanding of what they mean, said Doug Ma- cLeod, principal at MacLeod Law Firm in Toronto. "Does it mean that there's an enhanced monitoring of the em- ployee during that period? I think for some big organizations, there probably is a special process for probationary employees where maybe there is some kind of training or orientation program, or maybe some kind of regular meeting to make sure that they're getting the support they need and dealing with performance issues before they become a problem," he said. "But... I don't think really there's much extra done. I think most employers have a proba- tionary period because they want to be able to terminate the person during the probationary period without having to pay them any (notice)." Some employers likely imple- ment probationary periods just because they think they should — they haven't really given it much thought, he said. But that could potentially pres- ent a risk if there is a termination that's about personality clash — not about suitability for the job, said MacLeod. "The interesting thing about this case is I take a completely different take on it than the judge did," he said. "He had some inter- esting language in there about the employee being given an oppor- tunity to show they are suitable… with small and medium employ- ers, I don't think that's necessarily the case. I think sometimes there's supervisors who arbitrarily just don't like somebody, and they don't really talk to them about why and they can't really put a finger on why." In some cases, employers will terminate without telling a person why there's a concern, he said. "is may open the door for employees to say the onus is on the employer to show that they gave the employee an opportu- nity. So I think you'll start seeing employees saying, 'I thought ev- erything was going fine, nobody said anything to me, I did a good job and they didn't meet their legal burden,'" said MacLeod. "Up until this case, I don't think many employees would think about contesting or think about looking to get termination pay if they were terminated during their probationary period — it wouldn't occur to them. But I think, ironi- cally, this case sort of opens the door a little bit (to that)." Best practices Another important consideration is when the probationary employ- ee has been recruited from anoth- er organization, said Nieuwland. "If you recruit someone from secure employment and termi- nate them quickly thereafter, if you don't have an enforceable ter- mination clause in your contract, you could be on the hook to pay severance based on the years of service not only with you as the new employer, but with the for- mer employer. And sometimes that can be quite a bit," he said. e first thing employers need to be aware of when they recruit someone is to make sure they have an enforceable termination clause in their contract, said Nieuwland. "Generally, with probationary employees, the lesson from this case is if you want to fall within the test that the judge described, you have to make sure you give the employee a fair chance to demon- strate their skills and abilities," he said. "Basically, what that means is you don't engage in bad faith assessment. Bad faith assessment would be a number of things, like not actually doing the assessment — terminating without assessing the person at all, which is often done with short-service employ- ees… another problem potentially is if you're not clear about what the standard is to meet as an employ- ee. at can arise when you don't have written job descriptions that clearly set out what someone's roles and responsibilities are that they'll be measured against. "en, of course, there are the standard things you can think of, like discriminatory decisions." Another best practice? Don't rely solely on the probationary clause, said Rousseau. "Also include a termination clause," he said. "(And) whether or not you have a separate termi- nation clause, you still should be articulating clear standards and giving employees feedback (on) where they're not meeting those standards." at's also going to be helpful in terms of pre-emptively dealing with potential claims of discrimi- nation or bad faith, said Rousseau. "That's just generally a good HR practice," he said. "e other thing is the trouble with proba- tionary clauses in practice is if it's a three-month clause, a six-month clause, employers are busy, you're running a business, often I see people doing the evaluation just after the end of the probationary period — in which case, you've missed your chance. And that is all too common." Don't engage in bad faith assessment: Lawyer PROBATION < pg. 3 "Sometimes, supervisors arbitrarily don't like somebody."

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