Imagine you’ve just started a new job, and your boss says you’re on a “three-month probation.” Or perhaps you’re an employer welcoming a new hire and wondering what you can and can’t do during their probationary period. In Alberta, probationary periods carry a specific legal meaning and some common misconceptions. Understand how probation works, what rights and responsibilities everyone has, and how to navigate this trial period fairly and legally, here.

What Is a Probationary Period?

A probationary period is a trial phase at the start of employment, typically used to assess if a new employee is a good fit for the role and the company. It’s a time when the employer evaluates the employee’s suitability, performance, skills, and ability to integrate with the team. If everything works out, the employment relationship continues as usual. If not, the employer may dismiss employees during the probationary period with more flexible notice or termination requirements than for non-probationary employees.

However, a probationary period is not something the law automatically imposes. It only applies if it’s clearly stated in the employment contract or job offer. If your contract doesn’t mention probation, then you aren’t considered to be on a formal probation period under your agreement. That said, whether or not your contract includes a probation clause, Alberta’s employment law has specific rules that affect new employees during their first 90 days of employment.

How the First 90 Days Work Under Alberta Law

The Employment Standards Code, which governs employment in Alberta, does not actually use the term “probation” at all. However, it does establish a significant rule about the first 90 days of employment. During this time, an employer can legally terminate an employee without providing notice, termination pay, or severance pay according to the code. This applies to all new hires, whether or not their contract mentions a probationary period.

The reason for this 90-day rule is to give employers a grace period to decide if a new employee is suitable for the job, without facing the standard termination obligations that apply after the first three months. Employers can apply workplace policies on attendance, conduct, performance standards, and other internal rules during probation, just as they would for regular employees.

However, it’s important to understand that this rule doesn’t give employers a free pass to dismiss employees for improper reasons. Even during the first 90 days, employers must act in good faith, assess suitability honestly, and avoid discriminatory practices.

Once an employee has been with the company for more than 90 days, Alberta law requires that the employer provide notice of termination or pay in lieu of notice if they decide to end the employment. For example, employees who have worked more than 90 days but less than two years are entitled to at least one week’s notice or one week’s pay instead of notice. The notice period increases with longer service. The important takeaway is that passing the 90-day mark grants employees additional protections, regardless of any probation clause in their contract.

Many companies have a policy that benefits will only vest after the probation period ends. Probationary periods allow employers to save money on contributions and employee benefits typically required for full-time employees. Upon successful completion of the probation period, employees often transition to full benefits eligibility.

Can an Employer Extend the Probation Period?

Yes, an employer can extend an employee’s probationary period, but there are important conditions and limitations. In Alberta, an initial probationary period can be extended only if it is written into the employment agreement with a clause that permits extensions or if the employee agrees to it in writing. Employers sometimes choose to extend probation if they feel they need more time to fairly assess an employee’s performance or fit within the organization.

However, even if a probationary period is extended, Alberta’s employment laws still apply. The most critical point is that once an employee passes the 90-day mark. If the probationary period extends beyond 90 days, the employer must provide notice or pay as per the Employment Standards Act, regardless of whether the probationary period is formally extended.

For employers, it’s good practice to ensure any extension is communicated clearly, in writing, and for a specific, justified reason. For employees, understanding the implications of a probation extension can help you know where you stand in terms of job security and legal rights.

What Happens If You Are Let Go During Your Probationary Period?

For a termination during the first 90 days of the probationary period to be fair and legally defensible, an employer generally needs to meet these conditions:

• The employee must have been given a fair shot at performing the job and enough time to show their abilities.
• The employer must have genuinely assessed the employee’s performance and concluded, based on real observations or concerns, that the employee wasn’t the right fit for the position.
• The decision to let the employee go must be made honestly, using fair judgment, and should not be based on bias, bad faith, or any improper reasons.

If an employer terminates a probationary employee without following these principles, there is a risk that the employee could pursue a wrongful dismissal claim. Employers do not have the right to dismiss probationary employees on a whim or for improper reasons, such as discrimination or personal bias.

For employees, this means you still have rights during your probationary period. If you believe you were dismissed unfairly. For example, without being given a real chance to succeed or based on discriminatory reasons, it may be worth seeking legal advice from an employment lawyer or wrongful dismissal lawyer.

For employers, this is a reminder that terminating an employee during probation still carries responsibilities. Acting with fairness and clear documentation can protect your business from legal consequences.

Can I Take a Sick Day During My Probation Period?

Yes, you can. Even if you’re on probation, you are entitled to take sick leave. Alberta’s Employment Standards Code allows employees to take job-protected sick leave after 90 days of employment. However, before that 90-day mark, you may not have job protection for taking sick days under the code. Despite this, most employers understand that illness happens and have internal policies about short-term absences. It’s a good idea to review your employment contract or company handbook for specifics on sick leave during probation. If you do fall ill, communicate clearly and promptly with your employer.

Can I Take Vacation During My Probation Period?

Legally, vacation entitlements in Alberta begin accruing as soon as you start working, but you typically don’t have the right to take paid vacation until you’ve worked for a full year. During probation, it’s common for employers to ask employees not to take a vacation unless it was pre-approved or arranged before starting the job. Some companies may allow unpaid time off during probation, but that’s at the employer’s discretion. Always check your contract and discuss with your employer if you’re hoping to take time off during probation.

Am I Entitled to Job-Protected Leaves During My Probationary Period?

Most job-protected leaves under Alberta law, like maternity leave, parental leave, compassionate care leave, death or disappearance of child leave, critical illness of a child leave, long-term illness and injury leave, and bereavement leave, require at least 90 days of employment. This means that if you’re within your first 90 days, you may not be eligible for these protected leaves under the Employment Standards Code.

However, human rights protections still apply. For example, you cannot be fired for being pregnant, even if you’re still in your probationary period.

Whether you are an employer looking to create clear and fair probationary terms under Alberta’s employment law or an employee unsure about your rights during your probation period, our team of employment lawyers at DLegal Law Office can help.

We can review your employment agreement and help you understand your legal obligations in Alberta. Protect your business or your career by ensuring your probationary period terms are legally sound and clearly communicated. Contact our employment lawyers today.

The content of this article is intended to provide a general guide to the subject matter and should not be considered legal or other professional advice. To get detailed information regarding your specific circumstances, please discuss your situation with a lawyer or other professional. Refer to our Legal Notice  for more details.