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In Praise of the Probation Period

In these days of modern psychological testing methods, more humble aspects of hiring such as the probation period are prone to being overlooked. But, such old-fashioned selection techniques can produce far superior results as compared to the crystal ball gazing of standardized testing.
 
I have written previously that the probation period can be viewed as one long audition for a job. It reveals an individual’s true skills and attitude. In my view, there simply is no substitute for viewing an individual on the job in real work situations.
 
A recent B.C. Supreme Court decision demonstrates the utility of the probation period. Pekrul was hired by Flexmaster Canada Ltd. in late 2004. During the pre-hiring discussions, Flexmaster insisted (verbally) on a probationary period. Pekrul later denied that she had accepted the imposition of a probation period.
 
Within a short time after the commencement of Pekrul’s employment, Flexmaster identified numerous issues with her performance and conduct. Flexmaster alleged she had: broken the company’s smoking policy; attempted to exert authority she did not have; attended a job interview with another employer; been bossy, argumentative, and disrespectful with other staff; handled customers in an aggressive and abrupt fashion; and failed to follow instructions.
 
Pekrul’s employment was terminated pursuant to the probation clause less than three months after it commenced. She sued Flexmaster for wrongful dismissal.
 
The Court stated that the distinguishing feature of probationary employment is that the employer may terminate it on the basis that the employee has proven unsuitable for the job. The judge upheld Flexmaster’s position that a probation period had been imposed. It also found that Flexmaster had acted fairly and reasonably in determining that Pekrul was not suitable for continued employment. Pekrul’s action against Flexmaster was dismissed.
 
As a lawyer, I should emphasize my view that Flexmaster was fortunate to have obtained this result. The pre-hiring discussions relating to the probation period were not reduced to writing and this is probably the reason why the matter resulted in litigation and got all the way to a trial. Flexmaster left itself in the undesirable position of hoping the judge would accept its evidence over that of Pekrul.
 
The employer and employee should agree, in writing, prior to the commencement of the employment, on the terms of a binding probationary period. There are a number of recommended components of an enforceable probation clause.
 
First, the parties should define the standard of review (as the Court in Pekrul’s case noted, the normal standard is “suitability”). That’s a fancied-up way of saying the employee must be a good fit for the job. 
 
Because suitability is a somewhat hazy standard, the parties should then go a step further and set out the primary criteria on which the employee will be measured.  These might include, for instance, attitude, compatibility with co-workers and clients, ability to follow directions, demonstrated progress in acquiring the necessary skills of the job, good attendance, overall efficiency and output, adherence to company policies, etc.
 
Second, the length of the probation period should be clearly stated. The period is sometimes defined in terms of time worked rather than just the passage of calendar time (because time on the job is what’s required to assess the individual’s suitability for continued employment). 
 
I prefer to define the probation period using the words found in the B.C. Employment Standards Act, being the first “3 consecutive months of employment”. It is critical to ensure that the contractual terms, including the probation period, are compliant with the applicable employment standards legislation.
 
Third, documentation should be kept, during the probation period, of the employee’s progress in relation to the agreed-upon criteria. A good rule of thumb is that there should be at least one interim review of the employee’s performance and conduct before the final decision on suitability is made.
 
During the probation period, the employer should be pro-active in counseling the employee on her shortcomings. This eliminates surprises for the employee when the final review is performed. Specific instructions should be provided to the employee on achieving the desired standard. All of this should, of course, be documented.
 
Finally, the employer should conduct a final review, making a reasonable decision about suitability, prior to the expiry of the probation period. Court decisions indicate employers should, to whatever degree is possible, apply objective criteria in performing a good faith assessment of the probationary employee.
 
An employer following all these steps will find itself with an insurmountable defense against claims by dismissed probationary employees. By relying on the old technology of the probation period, the employer will be able to assess employees on the job with minimal risk.
 
 
 
Robert Smithson is a partner at Pushor Mitchell LLP in Kelowna practicing exclusively in the area of labour and employment law. For more information about his practice, log on to http://www.pushormitchell.com/.