Does employer have to give a reason for terminating worker during probationary period?

Is the employer legally required to provide a reason to the employee for termination?

Tim Mitchell
Question: When a collective agreement is clear that a probationary employee does not enjoy grievance rights if the employee is released during the probationary period due to unsuitability, is the employer legally required to provide a reason to the employee for termination?

Answer: The question whether an employer is under an obligation to give reasons for dismissal of a probationary employee will normally be answered by the specific language of the collective agreement. Denial of a right of access to the grievance procedure does not itself relieve the employer of an express or implied obligation to give reasons for dismissal of a probationary employee.

In the absence of language to the contrary, probationary employees will normally be entitled to all of the rights enjoyed by permanent employees under a collective agreement. If the agreement contains a provision requiring the employer to provide reasons for dismissal and does not expressly or impliedly exclude probationary employees from its application, a probationary employee will also be entitled to reasons. The fact the sufficiency of the reasons cannot be challenged at arbitration does not mean that they need not be given.

Many collective agreements will expressly preclude a grievance and provide that a probationary employee can be released during the probationary period “for any reason” or for “unsuitability.” Where the agreement gives the employer the right to dismiss for “unsuitability” or “for any reason,” arbitrators have inferred that the employer is required to have a reason for the dismissal. Some have also suggested that the employee be notified of the basis for the employer’s decision.

Without a basic understanding of the employer’s reasons, the employee has no way of knowing whether the decision can be challenged as either lacking a factual foundation or as being discriminatory, arbitrary or made in bad faith (factors which, if proven, will typically trump a clause precluding a challenge to dismissal of a probationary employee).

However, in the absence of an express requirement in the collective agreement, there is no hard-and-fast rule requiring an employer to expand on the reasons for the employee’s “unsuitability” at the time of dismissal.

If the collective agreement gives the employer the right to discharge a probationary employee “without giving any reason for doing so,” no reasons need to be given. If the employer does give reasons in the face of such a clause, it may be found to have waived its right to dismiss without reasons and be held to the reasons given.

Tim Mitchell is a partner with Laird Armstrong in Calgary who practices employment and labour law. He can be reached at [email protected] or (403) 233-0050.

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