In Ontario, many employers include probationary periods in employment contracts to assess a new hire’s performance before confirming their position. While probationary periods can provide flexibility for employers, they do not override employees’ legal rights. Understanding the legal limits of probationary periods is essential for both employers and employees to ensure fair treatment and compliance with Ontario’s employment laws.

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What is a Probationary Period?

A probationary period is a trial period at the start of employment, typically lasting three to six months, during which an employer evaluates whether a new employee is suitable for the job. This period is often outlined in the employment contract and is meant to allow for easier termination if the employer decides the employee is not a good fit. However, employers cannot use probation to ignore basic employee rights, such as those under the Employment Standards Act, 2000 (ESA) and the Ontario Human Rights Code (OHRC).

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Can an Employer Terminate an Employee Without Notice During Probation?

Under the ESA, an employer can terminate an employee without providing notice or severance pay if the employee has worked for less than three months. This means that if you are let go within the first 90 days of employment, your employer does not owe you termination pay.

However, if the probationary period extends beyond three months, employees become entitled to at least one week’s notice or termination pay, depending on the length of employment. Some employment contracts may require additional notice, so it is important for employees to review their agreements carefully.

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What Protections Do Employees Have During Probation?

Probationary employees still have rights under Ontario law. Employers cannot use probation as an excuse to violate legal protections, including:

• Human Rights Protections: Employees cannot be terminated during probation for reasons related to race, gender, age, disability, religion, or any other protected ground under the Ontario Human Rights Code.
• Bad Faith Termination: An employer cannot dismiss a probationary employee in a way that is misleading, dishonest, or done in bad faith. Courts have ruled that employers must still act fairly, even during probation.
• Employment Contract Terms: If an employment contract outlines specific procedures for probationary termination (such as requiring performance evaluations), the employer must follow those terms before terminating an employee.

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Common Misconceptions About Probationary Periods

Many employees and employers misunderstand the legal scope of probation. Some common misconceptions include:

 “Probationary employees have no rights.” – False. Probationary employees are still protected by employment laws, human rights regulations, and workplace policies.

 “Employers can extend probation indefinitely.” – False. While an employer can extend probation if agreed upon in writing, indefinite probation is not legally valid.

 “If you’re fired during probation, you can’t challenge it.” – False. If the termination violates human rights laws or the employment contract, an employee may have a legal claim.

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What to Do If You Are Terminated During Probation

If you are let go during probation, here’s what you should do:

1. Review Your Employment Contract: Check if your employer followed the probationary terms outlined in your agreement.
2. Ask for a Reason: Employers are not legally required to give a reason for termination during probation, but you can request an explanation.
3. Seek Legal Advice: If you believe your termination was unfair, discriminatory, or violated your contract, consulting an employment lawyer can help determine if you have a wrongful dismissal claim.

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Conclusion

While probationary periods give employers flexibility to evaluate new hires, they do not remove employees’ fundamental rights. Employers must comply with Ontario’s employment laws, including notice requirements and human rights protections. If you have been terminated during probation and believe your rights were violated, legal advice can help you determine your next steps.

For expert legal guidance on probationary termination and employment rights, contact Randy Ai Law Office at (365)-536-2474 or fill out our contact form. Our employment law team can assess your situation and help you navigate your legal options