Employment Probation Period Explained
When starting a new job in British Columbia, many employees are told they are “on probation.” Employers often use probation to evaluate a new hire’s performance and fit. But what does probation in B.C. actually mean under the Employment Standards Act (ESA)? And what rights do employees have during this period?
This article explains what probation really means in B.C., clears up common misconceptions, and outlines what both employers and employees should know about probationary employment.
What the ESA Actually Says About Probation
The term “probation” does not appear in the ESA. Probation is created by contract, typically as a clause in the employment agreement.
What the ESA does provide is a clear three-month threshold for statutory termination entitlements (ESA, s.63):
- Less than 3 months of service: An employer may terminate without ESA notice or termination pay (assuming no unlawful reason or reprisal and the process is in good faith).
- After 3 months of service: The employee is entitled to at least one week of written notice or termination pay in lieu, increasing with service, up to eight weeks.
💡 Bottom line: Probation is contractual, but ESA minimums still apply once the employee reaches 3 months of service.
As Christopher Achkar, employment lawyer and founder of Achkar Law, explains:
“Probation periods can be a useful tool for employers and a source of uncertainty for employees but both parties have important rights and obligations during this stage. Before making any decision to terminate or contest a probationary dismissal, speak with an employment lawyer to understand your legal position.”
What Probation Does and What It Doesn’t
What Probation in B.C. Really Means
- A trial period: Employers use probation as a trial to assess suitability for the role.
- ESA exemption (first 3 months): If a valid probation clause exists, employees with under 3 months of service generally have no ESA termination entitlement.
- Good-faith assessment: B.C. courts expect a fair, honest, and reasonable evaluation of suitability (clear expectations, feedback, opportunity to improve).
What Probation Doesn’t Mean
No “free pass” for employers: Human rights, health and safety, and anti-reprisal protections apply during probation. Termination cannot be discriminatory or retaliatory.
- No escape after 3 months: Extending probation past 3 months does not avoid ESA s.63. After 3 months, statutory notice/termination pay applies regardless of the contract.
- No automatic just cause: Probation does not equal “cause.” The standard is suitability assessed in good faith, not misconduct. Employers still need to act reasonably and consistently with the contract.
💡 Important: If there is no clear, enforceable probation clause, the employee may be entitled to common-law reasonable notice even within the first three months.
Termination During and After Probation in B.C.
During the first 3 months (with a valid clause):
- The employer may end employment without ESA notice/termination of pay.
- The decision must be made fairly and in good faith, applying a suitability standard.
After 3 months:
- ESA minimums apply (at least one week’s notice or termination pay in lieu, increasing with service).
- The employee may also claim common-law reasonable notice (often more generous than ESA) unless a valid, enforceable termination clause limits it.
Just cause dismissals (any time):
- Serious misconduct requires proof. Saying “not a good fit” is not just cause.
Probation and B.C. Courts
B.C. courts have reinforced that probation is not a blank cheque:
Ly v. British Columbia (Interior Health Authority), 2017 BCSC 42: Employers must conduct a good-faith assessment of probationary employees, clear expectations, fair feedback, and a real opportunity to meet standards.
Courts may decline to enforce probation or termination clauses that conflict with ESA minimums or where the employer fails to act fairly and transparently.
💡 Takeaway: Probation must be exercised reasonably, not arbitrarily.
Practical Examples
Example 1: Within probation (2 months)
Sonia is hired with a valid three-month probation clause. At 2 months, after clear expectations and documented feedback, she was let go for unsuitability. The employer does not owe ESA termination pay/notice.
Example 2: After probation (4 months)
James is dismissed at 4 months under a contract that says he is on a 6-month probation. The employer refuses to pay notice. This violates ESA s.63: James is owed at least one week of termination pay or notice, regardless of the contract.
What Employers Should Do
- Use a clear probation clause in the offer letter/contract (presented before start date).
- Limit probation to a reasonable length (commonly 3 months; if longer, ensure ESA s.63 is honoured after month 3).
- Communicate expectations and provide fair, timely feedback.
- Document performance and coaching during probation.
- Provide ESA notice/termination pay once the 3-month threshold is passed.
- Avoid discriminatory or bad-faith dismissals at all times.
What Employees Should Know
- You remain protected by the Human Rights Code, OHS laws, and anti-reprisal rules during probation.
- After three months, you are entitled to ESA notice/termination pay at a minimum.
- If your probation/termination clause is unclear or unenforceable, you may be owed common-law reasonable notice.
- You can challenge discriminatory dismissals, in bad faith, or in breach of contract.
How a Lawyer Can Help
- Draft/review probation and termination clauses for ESA compliance.
- Assess whether a probationary termination was lawful.
- Represent employees in wrongful dismissal or human rights claims.
- Help employers avoid disputes by implementing fair, compliant probation practices.
Final Thoughts
Probation in B.C. is often misunderstood. It is not automatic, and it does not eliminate employee rights. It’s shaped by the employment contract, the ESA’s three-month threshold, and the duty of good faith.
For employees, probation still comes with meaningful protections.
For employers, it must be managed fairly and lawfully.
Contact Achkar Law
At Achkar Law, we help employers and employees across British Columbia understand their rights and obligations during probation and beyond.
Contact us to discuss your situation confidentially.
Call toll-free: 1-800-771-7882 | Email: [email protected]
The article in this client update provides general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Achkar Law Professional Corporation and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Achkar Law Professional Corporation. ©