Probation in Alberta: Can You Fire an Employee During the First 90 Days?
The candidate looked great on paper. The résumé showed strong experience, and the interviews went well. After months of searching, the employer thought they had finally found the right person.
Seven weeks later, the situation changed.
The new hire missed deadlines and required constant supervision. A client complained, and coworkers quietly finished the incomplete tasks. The manager spent evenings fixing errors that never should have reached that stage.
By Friday afternoon, the owner reached a breaking point.
The employment agreement included a three-month probationary period. The employee had only worked for the company for 52 days. The owner pulled up the agreement and asked:
“They are still on probation. We can just let them go, right?”
In many jurisdictions, this seems straightforward. However, navigating probation in Alberta requires a deeper understanding of employment law.
The Problem With the “First 90 Days” Rule
Many employers mistakenly believe the first 90 days serve as a risk-free trial period. They assume that because the employee worked less than 90 days, the law requires no notice or severance. While a kernel of truth exists here, relying entirely on this assumption creates significant legal risk.
Under the Employment Standards Code, employers generally do not owe statutory termination notice or termination pay to employees with 90 days of service or less. However, this exception does not give employers an absolute right to terminate anyone in their first 90 days without further legal consideration.
You must navigate three distinct concepts: the minimum requirements under the Employment Standards Code, the specific terms of the employment contract, and the employee’s rights at common law. These three areas often operate independently. Calling the first 90 days “probation” does not magically merge them.
A Statutory Threshold Does Not Automatically Create Probation in Alberta
The Employment Standards Code establishes minimum statutory termination entitlements. The fact that a short-term employee does not qualify for statutory notice does not automatically create a contractual probationary period.
Employers and employees must establish probation as part of the initial employment relationship. Therefore, you should check the employment agreement before you check the calendar. Does the contract expressly create a probationary period? How long does it last? What happens if the employer finds the employee unsuitable? Does the agreement address termination during this period? Alberta courts closely examine these provisions when employers rely on probation to justify a dismissal.
Probation Does Not Mean Employers Can Fire Without Reason
The Alberta Court of Appeal established the leading authority on this issue in Higginson v. Rocky Credit Union Ltd. (1995). To justify dismissal during a valid probationary period, the employer must prove they provided a reasonable opportunity for the employee to demonstrate suitability. They must also show they made an actual decision regarding unsuitability based on an honest, fair, and reasonable assessment.
The employer assesses suitability based on performance, character, judgment, compatibility, reliability, and the employee’s prospective future with the organization. This legal framework demonstrates that probation does not grant an unrestricted license to terminate. Employers enjoy greater latitude during a genuine probationary assessment than they do when proving just cause, but this latitude does not permit arbitrary decisions.
A Recent Case Highlighting the 90-Day Misconception
The Alberta Court of Justice recently revisited this issue in Sprong v. Chinook Lifecare Association (2024). The employee initially worked part-time in customer service before accepting a new role. Days after she started the new position, the employer fired her.
The employer argued that because she remained within her first 90 days, she was probationary and unentitled to severance. The Court rejected the argument that the 90-day statutory rule ended the analysis. The employer failed to give the employee a reasonable opportunity to demonstrate her suitability for the new role.
Consequently, the Court awarded damages equal to two weeks of salary. While this decision does not guarantee a two-week payout for every dismissed probationary employee, it illustrates a critical point: the 90-day statutory exception does not erase contractual or common-law exposure if the employer fails to validly exercise a probationary termination right. To understand more about financial exposure during terminations, review our guide on Understanding Severance Packages in Alberta.
Reassessing the 52-Day Employee
Should the business owner fire the employee on Friday? Perhaps. But the owner must ask different questions first to evaluate the last 52 days.
Did management tell the employee what the role expected of them? Did the company set reasonably clear performance standards? When the new hire missed deadlines, did a supervisor address the problem directly? Did the organization provide enough time, training, and opportunity for the employee to learn the role? Did managers document the complaints? Most importantly, does the decision genuinely stem from suitability, or did another factor influence the outcome?
Human Rights Apply During Probation in Alberta
Consider a slight change to our story. The employee performed acceptably for the first month. Then, they disclosed a medical condition and requested schedule flexibility. Two weeks later, the employer labeled the employee “not a good fit” and terminated the contract.
This scenario creates a severe legal problem because the Alberta Human Rights Act applies forcefully during probation. The Act prohibits employers from terminating or discriminating against individuals based on protected grounds. Employers must carefully review probationary terminations if performance, attendance, or reliability concerns connect to a disability, pregnancy, family status, religious belief, gender, or another protected ground.
The Alberta Human Rights Commission confirms employers hold accommodation obligations toward probationary staff. An employer cannot disguise a discriminatory termination as a simple performance failure. If a performance issue looks like an accommodation request, you must investigate it immediately.
Best Practices for Managing Unsuitable Probationary Employees
The best time to manage probation is before the employee’s first day. Draft a clear employment agreement that identifies the probationary period, its length, the assessment criteria, and the applicable termination rights.
Once the employee starts, use the period for genuine assessment rather than treating it as a meaningless calendar date. Managers must understand their assessment metrics. If concerns arise, supervisors must identify and document them immediately. Employers must communicate expectations clearly and give the worker a fair chance to succeed. Finally, someone must read the employment agreement before scheduling the termination meeting. Spending a few minutes reviewing the contract prevents expensive legal mistakes later.
The Final Verdict on Firing During Probation
Yes, an employer can terminate a probationary employee. However, the legal safety of that decision depends heavily on the specific circumstances, the employment contract, the fairness of the assessment, and strict adherence to human rights obligations.
Do not treat the first 90 days as a legal free zone. You can often terminate a probationary employee without common-law notice, but only if you use a valid probationary contract and exercise your rights lawfully. Before you act on an assumption, review your agreements and ensure you have properly assessed the employee’s suitability.
Considering Terminating a Probationary Employee? If you have a new employee who is not working out as expected, consider having the employment agreement and proposed termination reviewed before the meeting takes place. Contact KedgeAnchor Law at info@kedgeanchorlaw.ca to discuss your situation and determine the appropriate next steps.
This article provides general legal information and is not legal advice. Employment matters are fact-specific. Employers and employees should obtain legal advice about their particular circumstances.
Authorities
Employment Standards Code, RSA 2000, c E-9.
Alberta Human Rights Act, RSA 2000, c A-25.5.
Higginson v. Rocky Credit Union Ltd. 1995, 162 A.R. 369 (C.A.)
Sprong v. Chinook Lifecare Association, 2024 ABCJ 163.
