Termination During Probation: When and How to Challenge an Unjust Decision

Have you recently been terminated during your probation period and feel that it was unfair? It's important to know that even during this phase, you have rights. Contrary to popular belief, probation does not give employers free reign to terminate you without a valid reason. Every year, employees in similar situations successfully challenge their dismissals by proving that their employer failed to meet certain obligations. Here’s how and when you can act to protect your rights.

1. What is the Probationary Period?

The probationary period is a phase where the employer evaluates the employee’s skills to determine whether they are fit for the role. In Quebec, it generally lasts three months but can be extended under certain circumstances, especially if specified in a contract or collective agreement.

However, probation does not give the employer the right to dismiss an employee without cause or arbitrarily. Quebec law imposes certain obligations, such as the duty of good faith. Employers must ensure that the evaluation is conducted fairly and that the employee has every chance to succeed.

2. Signs of Unfair Dismissal During Probation

If you’ve been dismissed during your probationary period, it’s important to assess whether the decision was legitimate or if it can be challenged. Here are some situations where the dismissal might be considered unfair:

• Lack of Clear Instructions: The employer never clearly explained their expectations.

• No Training or Support: You weren’t given the necessary training to perform your tasks correctly.

• No Evaluation or Feedback: You were never informed of your performance or areas needing improvement.

• Discrimination: If the dismissal was based on discriminatory factors (gender, age, race, pregnancy, etc.), it is automatically illegal.

• Arbitrary Criteria: The dismissal was not based on objective criteria or a serious evaluation of your work.

  
  

3. Dismissal and the Employer’s Duty of Good Faith

Even during probation, employers have a legal duty of good faith. This means they must act honestly and fairly, giving the employee a genuine opportunity to succeed. The employer must:

• Provide Clear Expectations: The employee should understand what is expected in terms of performance and behavior.

• Offer Adequate Support: The employer must provide the necessary training and tools to complete assigned tasks.

• Avoid Discriminatory Reasons: The employer cannot dismiss an employee for reasons related to age, gender, ethnicity, or any other factor protected by law.

  
  

4. How to Challenge a Termination During Probation

If you believe your dismissal was unjust, here are the steps you can take to challenge the decision:

• Gather Evidence: Keep all relevant documents (emails, evaluations, warnings). These can show that you tried to meet your employer’s expectations and highlight the lack of support from the employer.

• Talk to Your Employer: If possible, try to resolve the issue directly with your employer. Ask for an explanation of the reasons for the dismissal and discuss what could have been done differently. Sometimes, an open conversation can clear up misunderstandings and avoid more formal actions.

• Internal Recourse: If you are covered by a collective agreement or if your company has internal procedures for disputes, follow these first. Some contracts include mediation or arbitration mechanisms before going to court.

• File a Complaint with the CNESST: If internal efforts fail, you can file a complaint with the CNESST (Commission for Standards, Equity, Health, and Safety at Work). The process is straightforward: you fill out a form online or in person, explaining the circumstances of your dismissal. The CNESST can offer mediation to resolve the conflict. If the situation cannot be settled amicably, they may assist you in taking further action.

• Legal Action: If administrative measures are not enough, a lawyer specializing in labor law can advise you on the best course of action.

  
  

5. Case Study: Rossy v. 9091-4539 Québec inc., 2015 QCCA 1997

In this case, an employee on probation was dismissed for "unsatisfactory performance." However, the employer had never provided the employee with clear instructions or regular feedback. The employee challenged the dismissal in court, citing a breach of the employer's duty of good faith.

The court ruled in favor of the employee, stating that the employer had failed to provide a fair work environment and sufficient support. The dismissal was deemed abusive, and the employer was ordered to pay compensation.

Even during probation, your employee rights are protected under Quebec law. If you believe your dismissal was unfair, don’t give up. There are ways to challenge the decision and seek justice. Whether through discussion with your employer, mediation, or filing a complaint with the CNESST, you can protect your rights.

Have you been dismissed during your probationary period? You have rights, and it’s possible to challenge an unfair decision. If you’ve experienced a similar situation, share your story in the comments or contact us for more information about your rights and potential recourse.