Probation gives an employer an opportunity to assess a new employee against the requirements of the job. It should not become a period in which expectations are left unstated and the employee receives the first meaningful criticism with a termination letter.
Hugh Raichlin Attorneys assists employers with contracts, performance processes and employment disputes. The aim is a usable record of the standard, the shortfall, the support provided and the employee’s response - not paperwork manufactured after a decision has already been made.
Set the standard at the beginning
Describe the role, the expected outputs and the assessment period in terms the employee can understand. Requirements should be reasonably connected to the job. Where an output depends on access to systems, information, training or approvals, record those dependencies too.
A probation clause does not remove the need for a fair reason and process. Avoid a formula stating that employment may be ended for any reason during probation. Assess the current legal requirements and the actual employment arrangement rather than relying on a historical article as a ready-made dismissal checklist.
Give specific feedback while improvement is possible
“Not a good fit” does not explain missed deadlines, errors or unmet standards. Give examples and explain what acceptable performance would look like. Ask about obstacles and consider appropriate instruction, guidance or other assistance.
Keep dated notes of meetings and agreed actions. Allow the employee to correct an inaccurate account or explain why a target was not achievable. A record that contains only management’s conclusions can miss the reason for the performance problem.
Distinguish performance from misconduct
Inability to meet a standard is not necessarily a refusal to obey a reasonable instruction. Equally, deliberate conduct should not be disguised as incapacity merely because the employee is new. Health, disability, discrimination or protected activity may raise additional considerations.
The source article discussed a probation-related dispute in which the employer’s meetings and assessment record mattered. Its factual outcome should not be used as blanket authority for extending an expired probation period or bypassing the current applicable code. Obtain advice before relying on an extension or termination step.
Make an assessment file that can be understood later
- The signed contract, probation terms and job description.
- The standards communicated at commencement and any later clarification.
- Examples of satisfactory and unsatisfactory work.
- Feedback, support and training provided, with dates.
- The employee’s explanations and responses.
- Any extension proposal, its reason and the decision-making authority.
Consistency matters. Compare the expectations applied to the role, not the personal preferences of different managers. Do not introduce a new criterion retrospectively because the original concerns were not documented.
Address the outcome before the deadline
Schedule a meaningful assessment in time to consider the options. Where an extension is appropriate and lawful, make its purpose, duration and improvement expectations clear. Do not assume that silence produces the result you intended or that a new agreement can safely be backdated.
Before a decision to dismiss, give the employee a fair opportunity to respond to the concerns and the proposed outcome. Consider the response and record the reasons. The process should fit the circumstances without pretending that probation is either unregulated or necessarily identical to every other performance procedure.
Questions employers ask
Does probation mean we can dismiss without explanation?
No. The employer must be able to justify the decision and the process applied. A probation clause is not an exemption from employment protection.
Must every concern result in an extension?
No automatic rule follows. Consider the job, the assessment, the assistance already given and the applicable requirements. The reasons should be specific rather than formulaic.
Can we fix an incomplete record after dismissal?
Contemporaneous records are far stronger than reconstructed reasons. Obtain advice while a fair assessment can still influence the outcome.
Get the process reviewed before acting
Bring the contract, role standards, meeting notes and work examples. HRA can help assess the appropriate procedure, clarify documents and prepare for a dispute without promising that a particular form guarantees a defensible dismissal.
Related legal assistance
General information, not legal advice on a particular matter. The documents, facts and applicable law determine the appropriate next step.