Probation Bulletin

What is a probation period?

The probation period begins upon an employee’s initial appointment in the public service or on the day on which the required accommodation is made for a disabled employee in need of accommodation measures in the workplace. The probation period does not apply to persons employed on a casual basis or under a Student Employment Program.

The probationary period is established by the Regulations establishing periods of probation and periods of notice of termination of employment during probation. For most employees, the duration of the probationary period is 12 months. This period remains in effect, should the employee be appointed or deployed during the probationary period, and starts all over again when an employee who has left the public service is rehired on an indeterminate or term basis. The probationary period for new employees hired for a specified period of one year or less is 12 months or the period of the term, whichever is shorter.

The probation period does not include:

  • any period of full-time language training;
  • leave with pay of more than 30 consecutive days;
  • any period during which a seasonal employee is not required to perform the duties of the position owing to the seasonal nature of the duties;
  • any period of leave without pay;
  • the time required to make the necessary job accommodation for a disabled employee; the probation period begins on the day on which the required accommodation is made.

The accumulation of these days/months must be carried over to the end of the probation period. Managers must notify employees, in writing, of the new probation period end date and modify the information about the probation period under Section I in the employee’s profile of the Public Service Performance Management Application.

What is the Manager required to do when hiring an employee on probation?

Upon appointment, managers must provide relevant information with regard to the employee’s probation period under Sections A and I of the Public Service Performance Management Application.

Managers must ensure that an employee on probation:

  • knows the specific job duties and requirements of the position;
  • is aware of the required standard(s) of performance and appropriate conduct;
  • receives feedback when performance or conduct require improvement; and
  • receives the appropriate training for the position.

Managers should use the probationary period to assess the suitability of the employee for the position for which he or she has been hired. This assessment may include an evaluation of the following, as appropriate:

  • the employee’s reliability, including attendance at work;
  • the employee’s compatibility with colleagues or clients;
  • the employee’s ability to meet work requirements, including those associated with the workload (performance); and
  • the employee’s ability to adhere to established practices, procedures, and codes of conduct (discipline).

Duty to accommodate

When performance issues arise during the probation period, managers must confirm with the employee whether his/her disability might be contributing to the performance issues identified.

If the employee on probation had not previously indicated requiring accommodation measures, managers must ask if something could be justifying the performance issues. The employee could then indicate having a disability, personal or family issues, etc that may require accommodation.

Managers have to be very careful not to terminate an employee on probation because of any incapacity associated with a disability for which accommodation was not provided. The Workplace Management Unit (Labour Relations) can assist management with the Duty to Accommodate process.

Authority to terminate employment during the probationary period

Subsection 62(1) of the Public Service Employment Act (PSEA) provides the deputy head of the organization with the authority to terminate employees on probation. Employees must be provided with a notice period or be paid an amount equal to the salary he or she would have been paid during the notice period. The notice period is established by regulations of the Treasury Board.

In addition, ESDC’s Table of Human Resources Authorities indicates that consultation with HR (Labour Relations) is required prior to termination of an employee on probation. It is recommended that management communicate with the Workplace Management Unit as soon as they start noticing issues with an employee on probation.

Decision to terminate that employment

The decision to proceed with a termination of employment during the probationary period should be based on objective and demonstrable grounds and must not be made arbitrarily, in a discriminatory manner or in bad faith. When considering the termination of employment, managers should be satisfied that the employee is not suitable for the position.

 

Long Description

The principle of fairness

Although they are not binding in a case of termination during probation, the principles of fairness that govern the exercise of authority to terminate the employment of a non-probationary period employee provide a solid framework to establish an employment-related reason for termination during probation.

The principles of fairness are as follows:

  • the duty to act in good faith and in a fair and transparent manner;
  • the duty to fully inform the employee of what is expected from him or her from the beginning of employment (i.e. performance and standards of conduct);
  • the duty to inform the employee, as soon as possible, that he or she is not meeting the requirements of the position, to inform him or her of the nature of the shortfall;
  • the duty to inform the employee of the consequences of continued failure to meet the requirements of the position;
  • the duty to provide the employee with the opportunity to make the necessary adjustments and the assistance needed to meet the requirements (i.e. proper training);
  • the duty to explore reasonable alternative solutions before terminating employment;
  • the duty to properly supervise the employee, which is different from just telling him or her that she does not meet the requirements of the position.

 

 

Long Description

The Adjudicators’ View on Termination of Employment During Probation

In the Tello decision, the adjudicator confirmed that under section 62 of the Public Service Employment Act (PSEA), a deputy head may terminate the employment of an employee on probation for any employment-related reason, as long as the decision was made in good faith, within the probationary period and the employee was provided with notice or payment in lieu of notice. The adjudicator also established that the burden is on the griever to demonstrate that the rejection on probation was a sham or a camouflage; that the termination of employment was not based on an employment-related reason.

In the Dhaliwal decision, the adjudicator agreed with the employer that there was an employment-related reason for the termination, but found that the employer had not followed its own policies with respect to good faith. The adjudicator defined good faith as “a manner of conduct based upon honesty of intentions and fairness of treatment.”

In addition, subsequent to the Dhaliwal decision, adjudicators explained that the Treasury Board’s Guidelines are only to be used as an illustration of some principles of good faith and are not binding in cases of termination during probation, as outlined in the Chaudhry and Tarasco decisions.

In the Dyson decision, the Federal Court of Appeal confirmed the conclusion of the adjudicator who determined that the employer had acted in bad faith with respect to Mr. Dyson’s rejection on probation, as it was not based on a bona fide dissatisfaction with respect to employment suitability. The Court found that the employer failed to provide evidence or facts to support its decision to terminate Mr. Dyson’s employment; they did not demonstrate whether the griever received proper training or whether he was aware of the policies in place. This decision demonstrates the importance of documenting files to establish the employment-related reasons for termination.

 

Probation period quiz!

  1. 1. What is management’s responsibility towards an employee on probation?

    Management must ensure that the employee knows the specific job duties and requirements of the position, is aware of the required standard(s) of performance and appropriate conduct, receives feedback when performance or conduct require improvement and receives the appropriate training for the position.

  2. 2. In case of misconduct, can management choose to terminate an employee during probation instead of imposing disciplinary measures?

    Yes, management can terminate an employee during probation instead of imposing disciplinary measures. Nothing prevents management from using progressive discipline with employees who are on probation in cases where it feels that it would correct the behaviour. However, management does not have to apply progressive discipline up to and including termination for cause if it believes that it has an employment-related reason to sever the employment relationship. Management must be able to establish that the employee’s actions demonstrate that he or she does not have the ability to adhere to established practices, procedures, and/or codes of conduct. Therefore, the employee is not suited for the position for which he or she has been hired.

  3. 3. When can management make the decision to terminate employment during the probationary period?

    Please contact your Branch/Regional Coordinator.

  4. 4. An indeterminate employee’s employment was terminated in 2012 following a workforce adjustment exercise. The same employee was rehired on an indeterminate basis three months ago. Is this employee subject to a new probationary period?

    Yes, the employee is subject to a new probationary period since this employee is considered as being appointed from outside the public service.

  5. 5. Management observed performance issues with an indeterminate employee who was hired four months ago. It informed him of the specific job duties and requirements of the position and of his work objectives during the first weeks of his employment. It also provided him with the required training and regular feedback on his performance. What would be the next steps?

    First, management must ask the employee whether he requires accommodation measures and whether there is anything that could be justifying his poor performance.

    If that is the case, management has the duty to accommodate the employee and should initiate the ESDC Duty to Accommodate 5-Step Process. Once the employee has been properly accommodated, management must provide him with the opportunity to improve his performance. Then, if the employee’s performance does not improve, management can start thinking about termination and should communicate with its Labour Relations Consultant.

    If the employee indicates that he does not need to be accommodated and that nothing can justify his performance, management can start thinking about termination and should communicate with its Labour Relations Consultant.