However, for an employer to rely on a trial period, recent case law suggests that one or the other: Simmons v. Collins Stainless Steel Fabricators Ltd is an example of the second caveat and was decided after Smith v. Stokes Valley. In this case, the court ruled that the employee had been prevented from filing a personal complaint of unfair dismissal. This happened even though they signed their employment contract with the probation period (of which they had received a copy before the start of work) after the start of their work. The court held that the difference in this case was that the employee had been informed prior to the commencement of work that his employment was subject to a 90-day probationary period and that he had consented to it. The moral of the story is this: if you want to rely on a 90-day probationary period as an employer, make sure that each new employee signs their employment contract with the probationary period before the start of work. While you can still be protected if an employee has not signed an agreement during this period, you apparently need to make sure (at least) that you have proof that the employee has received a written agreement with the probationary period, that they have been expressly notified of the probationary period, and that they accept it. all this before they start working. Smith v.
Stokes Valley Pharmacy is an example of the first warning. The employee had been employed by the former owner of the pharmacy until the sale of the business and the transfer to a new employer. The new employer interviewed the employee, told her orally that she had « got the job » and gave her a draft contract. This draft contract, which the employee brought home, included a probationary period of 90 days. The employee started working the day before the employment contract was signed. After some problems in her employment, the employee was fired, approximately 70 days after the expiry of the 90-day period. The court ruled that the employee had not been prevented from filing a personal complaint of unfair dismissal for several reasons. This included the finding that the employee was not a new employee at the time the agreement was signed and the 90-day probationary period, as she had started with the new employer the day before. The probation period must begin « at the beginning of the employee`s employment ». .