Are employers required to let workers complete probation before assessment?

The Alberta Court of Justice dealt with an employment dispute where a worker argued that her promotion to a director-level position created a fixed-term contract, which her employer breached by terminating her after a week. She also claimed that the termination harmed her reputation in her small community.

The case revealed issues about probationary periods, employment contracts, and organisational authority in making job offers.

It also highlighted when employers can lawfully end probationary employment and what damages workers might receive when termination doesn't follow proper assessment protocols.

Background of the case

The dispute arose at a not-for-profit organisation that provided electronic monitoring safety devices to help seniors stay in their homes longer. The worker started there in April 2023 as a part-time customer service worker at $20 per hour.

In June 2023, she presented to the board, proposing a new position for herself as director of development of programming, stating she was no longer willing to work at her current rate.

After her presentation, the board initially offered her a position at $25 per hour for two months.

When she declined this offer and prepared to resign, the board made a second offer of $5,000 per month for two months, which she accepted. She began in this new role immediately but was terminated after approximately one week.

A key question was whether the board member who extended the offer had proper authority to do so. The Court found that the board had previously accepted this board member's authority to communicate employment decisions.

During the trial, one board member acknowledged "the vote was valid, even though it was held outside of the formal meeting."

The board member testified about communicating the second offer: "I didn't use the word review, but I did say well, let's see what happens in two months, if you could just give us two months so that everybody could believe in you or see what you could do or something like that, and then we'll see what happens."

Director’s contract, dismissal

While no written contract existed, evidence showed both parties understood the position would be reviewed after two months. The worker confirmed this during cross-examination, answering "Absolutely" when asked if she understood a review would occur in two months.

The board president later explained this meant "[the worker] would be on probation or trial – or try it out, see how it went."

The Court applied the test from Higginson v Rocky Credit Union Ltd, which required employers to provide probationary workers with "a reasonable opportunity to demonstrate suitability" and make "an honest, fair and reasonable assessment."

The evidence showed the organisation reconsidered the hiring because they didn't want to pursue the new direction or pay an increased salary.

The Court found: "[The organisation] did not give [the worker] a reasonable opportunity to demonstrate her suitability to do this work... Indeed, [the organisation] did not testify that they made an assessment of [the worker] based on the factors as set out in Higginson."

The worker brought substantial experience to the role, including 19 years in the Canadian Navy as an office manager, work as an executive assistant for a director of corporate and public services, and experience in grant writing and regional sustainability coordination.

Reasonable opportunity for probationary worker

The Court emphasised that probationary workers maintain common law rights even without statutory protections, stating "nothing in that act affects any civil remedy of an employee." The Court explained that employers must provide reasonable opportunities for probationary workers to demonstrate their capabilities before termination.

In determining damages, the Court considered the worker's experience and the probationary nature of the position.

It awarded her two weeks' salary ($2,500), noting that while statutory notice wasn't required for probationary workers employed less than 90 days, common law remedies remained available.

The Court concluded that "these are not valid reasons to terminate [the worker's] probationary employment," establishing that employers must base termination decisions on proper assessment of worker suitability rather than organisational changes of direction or salary concerns.