Section 67 of the Act allows for an employment agreement to contain a probationary arrangement. A probationary arrangement is a provision that informs the employee that his or her performance is to be reviewed for a specified period of time and if necessary the employer is obliged to train and supervise the employee’s work so that throughout the probationary period the employee makes sufficient improvement.
Once the probationary period has concluded the employee becomes a permanent employee or, if the improvement was not to the degree expected, his or her employment may be at an end.
There is nothing in the legislation that prevents the use of a probationary arrangement following a trial period. However, as is good practice in employment law, one should apply the obligation of good faith under section 4 of the Act in assessing whether a probationary period can follow a trial period.
In my view, in light of the legislative ability under trial periods to dismiss an employee without reason, I think it is relevant that at before the end of a trial period an employee can be dismissed without just cause. It seems to me that a more favourable alternative is to place such an employee on a probationary period and give him or her an opportunity to improve.
However this argument would depend very much on the facts on the case, and it may be that a fair and reasonable employer would not have put an employee on a probationary period in the circumstances.
So in other words – I don’t know. If a case comes up I will let you know.
