Understanding the Probationary Period
A probationary period is a designated phase at the beginning of employment during which an employer evaluates a new hire’s suitability for the role. This period allows employers to assess performance, compatibility, and fit before making a long-term commitment. While probationary periods offer flexibility, they are governed by provincial employment standards legislation, which dictates their length and legal implications. Employers must approach probationary periods carefully to ensure compliance with these laws and minimize potential liabilities.
Many employees falsely believe that employers can freely terminate employees during probation and extend a probationary period indefinitely. However, employment laws impose certain restrictions on how probationary periods are managed and extended.
Length of Probationary Periods
The length of a probationary period depends on the employment standards legislation in the applicable province in which the employee works. This means the statutory length of probationary period differs by province.
A comparison of the statutory probationary periods across Canadian provinces is below:
Province | Probationary Period Length |
British Columbia | 3 months |
Alberta | 90 days |
Saskatchewan | 13 weeks |
Manitoba | 29 days |
Ontario | 3 months |
Nova Scotia | 3 months |
New Brunswick | 6 months |
Newfoundland & Labrador | 3 months |
Prince Edward Island | 6 months |
Good Faith Obligations
Despite popular belief, an employer cannot simply terminate an employee freely during the probationary period. Even during probation, employers must terminate in good faith, which includes:
Conducting fair and objective evaluations of the employee’s performance.
Providing regular feedback to give the employee a reasonable opportunity to improve.
Avoiding arbitrary or discriminatory decisions when terminating employment.
Employers should maintain records of the employee’s performance during the probationary period, including any coaching/feedback, performance evaluations, and records of misconduct or performance issues.
Extensions to the Probationary Period
Employers may consider extending a probationary period in some situations to allow more time to evaluate an employee’s performance. However, extending a probationary period beyond the statutory minimum, in short, has no legal effect under Canadian employment standards legislation.
Once an employee surpasses the statutory probationary period (commonly three months in most provinces), they are entitled to termination pay or notice, as outlined in applicable legislation, regardless of whether their probationary period is extended. In practical terms, this means extending the probationary period does not alter the employer’s legal obligations or reduce liability for termination.
For the same reasons, an employer cannot place a long-serving employee back on probation as a performance improvement or disciplinary measure. Doing so has no legal effect and could expose the employer to claims of bad faith or constructive dismissal. Once an employee has passed their probationary period, their entitlements are based on their total years of service, and probation cannot be reimposed.
Best Practices for Extending Probationary Periods
To ensure a fair and transparent process, employers should follow these best practices:
Clear Communication – Discuss the reasons for the extension with the employee, setting clear expectations for improvement.
Document the Extension – Provide a written confirmation outlining the extension period, performance expectations, and the review process.
Provide Support and Feedback – Offer additional training, mentoring, or resources to help the employee succeed during the extended period.
Set a Definite Timeline – Avoid open-ended extensions; clearly define the additional period (e.g., one to three months) and schedule a final review.
Assess Objectively – Use measurable criteria to evaluate progress, ensuring decisions are based on performance and business needs rather than subjective opinions.
Conclusion
Extending a probationary period can be a valuable approach for ensuring that employees are given a fair opportunity to demonstrate their abilities while allowing employers to make informed decisions. However, it must be handled carefully to remain legally compliant, transparent, and fair. By following best practices and maintaining open communication, employers can effectively manage probation extensions while fostering a supportive and legally sound workplace.
For more information on HR best practices, download the HireEase HR Essentials Guidebook today.
For template employment agreements with legally compliant draft probationary periods, visit https://www.hireease.ca/ to ensure your business is protected today.
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