4 important facts about probation periods in Ontario
Sabrina Feldman
However, in many cases, probationary periods are not explained in detail. Many employees are not fully informed of their rights, and consequently, some employers may not have the right legal posture when it comes to probation policies.
Although probation periods are usually used to gauge new hires, they are also accompanied by legal implications that both employers and employees need to know about.
1. Probationary periods aren’t clearly defined by law
Today, there is no specific provision regarding probation periods in the Employment Standards Act of Ontario. But according to Section 54 of the ESA, it is possible to understand that a three-month probation period is understood as an employee must work for at least three months consecutively to be eligible for statutory notice of termination.
What this means:
- An employee who has worked for less than three months is unlikely to be entitled to statutory notice or pay in lieu of notice.
- An employee who has worked more than three months is entitled to the minimum notice as provided for by the ESA even if the employee is still on probation.
👉 Key Employer Tip: It is always important to have a proper probation policy in employment contracts in order to define the probabilities and the notice periods.
2. Probation period lengths can vary
It is a common perception that probation periods are three months. It doesn’t have to be. The length of time for a probation period depends on the employment contract, and can differ based on the nature of the position, industry, and employer policies.
Important considerations
- Longer probation periods (e.g., six months) do not prejudice an employee’s right to notice after three months.
- There may still be expectations for shorter probation periods that should be made explicit in a contract.
👉 Key Employer Tip: If the probation period is to be extended beyond three months, it is very important that this is well defined and in compliance with the ESA notice provisions.
3. Common law protections still apply
One may not be entitled to statutory notice by the ESA, but they may be entitled to reasonable notice by the common law. This depends on the language of the probation clause in their contract:
- Whether the employer has sufficiently assessed the employee for the position.
- If a probation clause is too vague or unenforceable, the employee may be entitled to reasonable notice from the court despite not meeting the ESA entitlements.
👉 Key Employer Tip: It is legal for a company to include a probation clause in an employment contract to avoid being sued for wrongful dismissal.
4. Employees still have legal protections
A probationary employee has no right to statutory notice from the ESA before three months, but they do have rights under other laws including:
- the Ontario Human Rights Code: Prohibits dismissals on the basis of discrimination.
- the Occupational Health and Safety Act: To ensure that employees work in a healthy and safe environment.
If an employer fires a probationary employee in violation of these laws, the employer remains liable for the consequences.
- 👉 Key Takeaway for Employees: If you think you have been unfairly dismissed during a probation period, then there are other legal remedies that can be pursued in addition to the ESA notice period.
- ✅ Employers: Make sure your employment contracts are consistent with the ESA and common law.
- ✅ Employees: If you have been dismissed and have any questions or concerns about the process, please seek legal advice.
Contact Greenwood Law today to discuss your situation.
