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	Probation Periods and Reference Letters: Some Recurring Issues Clarified
	by Bernard C. LeBlanc
	November, 2005 - Vol 7 No 2

	Many employers believe that if an employee is on probation, their employment can be terminated summarily, that is, without any notice or pay in lieu of notice. However, a recent case in British Columbia is consistent with a number of other cases that establish that even if an employee is on probation, he or she will still be entitled to some degree of notice or pay in lieu of notice unless the employment contract clearly stipulates otherwise. In Lipp v. First Nations Education Steering Committee Society, the court found that the plaintiff’s employer essentially prevented her from doing her job. Even though her employment was terminated within her six-month probationary period, the court in British Columbia awarded her pay in lieu of three months of notice. Given the fact that the plaintiff was employed for such a short period of time, this case demonstrates that there really is very little distinction between a probationary period and regular employment. Unless the employment contract very clearly stipulates otherwise, and is not inconsistent with employment standards legislation, probationary employees may very well be treated as if they were full time employees for purposes of terminating employment. In terms of reference letters, readers may recall that in the August 2005 issue of this newsletter, another trial judge in British Columbia, in Orlando v. Vancouver Coastal Health Authority, found that employees were entitled to know the purpose of the termination of their employment, even when their employment is not terminated for cause. A concern was raised about whether or not employers are therefore obliged to give a positive letter of reference. That issue was raised squarely in the more recent case of Ashby v. EPI Environmental Products Inc. In that case, the plaintiff Ashby, the senior legal officer for the defendant EPI Environment Products Inc., was terminated because EPI wished to outsource its legal services. Following some negotiations, it became clear the Ashby’s former employer was willing to provide a positive letter of reference only if Ashby agreed to a two-week severance. Ashby sued for considerably more notice, and claimed that his former employer’s refusal to provide a positive reference letter constituted bad faith, warranting a much greater damage award. While the court found in Ashby’s favour in terms of notice, awarding him five month’s salary, the court specifically found there is no obligation to provide an employee with a positive reference letter. In this regard, the court relied upon a 2001 B.C. Court of Appeal decision in which the court held that there may be many reasons why an employer may not wish to give a letter of reference, or a favourable letter of reference. The court specifically noted that a claim for increased damages could become an inducement to employers to give misleading references and that this was clearly not in the public interest. At least in British Columbia, therefore, there does not appear to be any positive obligation on the part of a former employer to provide a positive letter of reference to employees whose employment has been terminated. Ideally, where employment is terminated without cause, a reference letter is one of the matters that can be negotiated as between the employer and the former employee. However, where such negotiations are not fruitful, it appears that employers will not be forced by the courts to provide positive letters of reference in cases where they do not wish to provide them unless refusing to do so may jeopardize the former employee’s chances at securing alternate employment, in which case the employee may claim additional damages. [Professional Practice and Liability on the Net is a monthly Internet newsletter addressing issue of interest to a wide range of professionals. Please consult with a lawyer for specific legal advice. If you wish to be removed from the list of subscribers, please simply reply to this email. If you wish to reprint this article, please provide appropriate credit, and send a copy of the publication to, Steinecke Maciura LeBlanc, 393 University Avenue, Suite 2000, Toronto M5G 1E6. Or, call 599-2200, ext. 232, or email: bleblanc@sml-law.com. Visit our website at http://www.sml-law.com. Comments and suggestions are also welcome. ]



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	Professional Practice and Liability on the Net is a monthly internet newsletter addressing issues of interest to a wide range of professionals. Please consult with a lawyer for specific legal advice. If you wish to be removed from the list of subscribers, please simply reply to this email. If you wish to reprint this article, please provide appropriate credit, and send a copy of the publication to, Steinecke Maciura LeBlanc, 401 Bay Street, Suite 2308, P.O. Box 23, Toronto, ON M5H 2Y4. Or, call 599-2200, ext. 232, or email bleblanc@sml-law.com. Comments and suggestions are also welcome.