Probationary Employees — Ontario Employment Law
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About Probationary Employees
In Ontario, a 'probationary period' is a common feature of new employment, but its legal meaning is often misunderstood. It is not an automatic right for employers; rather, it is a specific contractual term that must be included in a written employment agreement to be valid. The primary purpose of a probationary period is to allow an employer to assess a new employee's character, competence, and overall suitability for the role. The standard for dismissal during this period is lower than the 'just cause' required for a long-term employee. An employer only needs to determine, in good faith, that the employee is unsuitable for the position.
However, this does not mean an employer can terminate a probationary employee for any reason at all. The decision must be related to suitability and cannot be based on grounds protected by the Ontario Human Rights Code (OHRC), such as disability, family status, or ethnic origin. The OHRC applies to employees from their very first day of work. Furthermore, the employer has an obligation to act in good faith, meaning they must give the employee a fair opportunity to demonstrate their abilities. A termination motivated by bad faith or dishonesty could still lead to legal challenges.
Many people confuse the contractual probationary period with the rule in the Employment Standards Act, 2000 (ESA). The ESA states that an employee with less than three months of service is not entitled to statutory notice of termination or pay in lieu. While many probationary periods are set at three months for this reason, they can be longer if the contract specifies. If an employment contract does not have a valid, enforceable probationary clause, the employee is considered a regular employee from day one and is entitled to common law reasonable notice upon termination without cause. Because the enforceability of these clauses and the circumstances of a dismissal can be complex, understanding your specific situation may require a detailed review of your contract and the facts leading to termination.
Frequently Asked Questions
Can my employer fire me for no reason during my probation in Ontario?
No. While the standard is lower than 'just cause,' the termination must be based on a good faith assessment of your unsuitability for the role. It cannot be for a discriminatory reason under the Ontario Human Rights Code or an act of bad faith.
Is a 3-month probationary period automatic for all new jobs in Ontario?
No, it is a common misconception. A probationary period only exists if it is explicitly and properly written into your employment contract. The three-month threshold you're thinking of comes from the Employment Standards Act, 2000, which removes the right to statutory termination pay for employees with less than three months of service.
What's the difference between being fired for 'unsuitability' versus 'just cause'?
Unsuitability is the standard for probationary employees and relates to a broader assessment of skills, performance, and compatibility with the workplace culture. Just cause is a much higher standard for non-probationary employees, requiring proof of serious misconduct like theft or insubordination.
My contract has a 6-month probationary period. Is that legal?
Yes, a probationary period can be longer than three months if it is clearly defined in your employment contract. However, after three months of employment, you gain entitlement to minimum notice of termination under the Employment Standards Act, 2000, even if you are still on probation.
Can my employer extend my probation?
An employer cannot unilaterally extend a probationary period unless the original employment contract specifically allows for it. Otherwise, any extension would require your agreement and, in most cases, fresh 'consideration' (something of new value) to be legally binding.
When should I talk to a lawyer about being fired on probation?
You should consider seeking legal advice if you believe your termination was discriminatory, done in bad faith, or if your employment contract did not contain a probationary clause. An employment lawyer can review the facts and your contract to determine if you might have a claim for wrongful dismissal damages.
Common Scenarios
- A graphic designer is terminated two months into a three-month probation for 'not being a good fit,' despite having received no performance feedback or warnings.
- A new hire informs their manager they need a workplace accommodation for a recently diagnosed medical condition and is terminated the following week for 'performance issues.'
- An employee is dismissed one day before their 90-day probation ends, but their signed offer letter never mentioned a probationary period, potentially entitling them to common law notice.
- A sales associate is let go after four months of a six-month probationary period and is given only one week's pay, as per the ESA, but the contractual clause may be unenforceable, suggesting more is owed.
- A unionized employee is dismissed during probation and is told by their employer that the collective agreement prevents them from filing a grievance to challenge the termination.
What You Should Know
- Before you start a new job, carefully read the employment contract to see if it includes a probationary clause and understand its duration and terms.
- Keep a personal record of all performance reviews, emails with feedback, and project outcomes during your probation to document your performance.
- If terminated during probation, ask for the reason in writing. The employer's response, or lack thereof, can be important evidence.
- Remember that your rights under the Ontario Human Rights Code are not suspended during probation; a termination based on disability, family status, or other protected grounds is illegal.
- If you are dismissed from a role where you had a senior position or were induced to leave secure employment, consult a lawyer, as your notice entitlements may be greater even if a probationary clause exists.
Featured Cases
B. v. Human Rights Tribunal of Ontario et al.
2026 ONSC 3624 (CanLII) · 2026-06-29Judicial Review: Human Rights Tribunal Employment Decision
This is a judicial review of a Human Rights Tribunal of Ontario decision regarding employment-related human rights complaints. The Divisional Court reviewed allegations of sex discrimination, a poisoned work environment, and reprisal in the context of the applicant's termination during a probationary period. The Court applied the Vavilov standard of reasonableness to the Tribunal's findings that the employer had valid, non-discriminatory reasons for termination and that the workplace environment allegations were unsubstantiated.
Y. v A.
2026 CanLII 48313 (ON SCSM) · 2026-05-04Probationary Employee Wrongful Dismissal: 3 Months Notice
This wrongful dismissal case concerned a probationary employee with only ten days of service who was terminated without notice. The court affirmed that common law reasonable notice applies to short-service employees, adapting the Bardal factors to the probationary context, and awarded three months' notice. However, claims for mental distress, aggravated, and punitive damages were dismissed due to a lack of evidence regarding the manner of dismissal and employer misconduct.
C. v. NYX Capital Corp.
2025 ONSC 4561 (CanLII) · 2025-08-06Wrongful Dismissal: 3 Months Notice for Void Clause
This wrongful dismissal case involved a plaintiff terminated one day before the end of a probationary period, where the termination clause was found void for non-compliance with the Employment Standards Act. The court awarded three months' notice based on the Bardal factors, rejecting claims of retaliatory termination or bad faith, and denied aggravated or punitive damages due to lack of evidence of high-handed conduct.
V.W. v. Thumper Massager Inc.
2018 ONSC 6622 (CanLII) · 2018-11-07Probationary Employee Wrongful Dismissal Appeal
This is an appeal to the Divisional Court from a motion judge's summary judgment decision in a wrongful dismissal case involving a probationary employee. The appellant challenged the binding nature of a probation clause, claimed inducement to leave prior employment, and alleged bad faith during probation. The appeal was dismissed as the court found the probation clause binding, no inducement was established, and the employer met its obligations without bad faith.
B. v. Dennison Associates
2017 ONSC 6384 (CanLII) · 2017-10-24Probationary Employee Wrongful Dismissal Appeal
This is an appeal from a trial judge's decision in a wrongful dismissal case involving a probationary employee. The Divisional Court dismissed the appeal, finding that the trial judge's reasons were adequate and that there was no palpable and overriding error in upholding the termination for good faith reasons related to the employee's failure to comply with workplace policies.
V.W. v Thumper Massager Inc.
2017 ONSC 4436 (CanLII) · 2017-07-20Probationary Employee Unjust Dismissal Claim
This is a wrongful dismissal case involving a probationary employee who brought a claim for unjust dismissal. The court addressed the legal standards applicable to probationary employment and considered issues regarding costs on a substantial indemnity basis.
V.W. v Thumper Massager Inc.
2017 ONSC 3909 (CanLII) · 2017-06-27Probation Clause Upheld: Wrongful Dismissal Claim Dismissed
This wrongful dismissal case concerned a plaintiff terminated during a six-month probationary period who argued the probation clause was unenforceable and that the plaintiff was entitled to reasonable notice. The court found the plaintiff bound by the clear probationary terms, which rebutted common law reasonable notice, and determined there was no evidence of bad faith in the termination. It assessed four months' notice only in the alternative and dismissed the action.
N. v. Select Wine Merchants Ltd.
2017 ONCA 540 (CanLII) · 2017-06-27Probationary Employee Termination: Good Faith Unsuitability
The Court of Appeal for Ontario heard an appeal concerning the termination of a probationary employee who was dismissed without notice after the employer determined in good faith that the employee was unsuitable for permanent employment. The court addressed whether the common law meaning of 'probation' permitted termination without notice upon a good faith determination of unsuitability and whether the employer complied with statutory notice requirements under the Employment Standards Act, 2000. The court held that contractual terms are interpreted objectively and that statutory notice requirements cannot be contracted out of, finding the employer's provision of one week’s pay in lieu of notice satisfied the ESA.
N. v Select Wine Merchants Ltd.
2016 ONSC 490 (CanLII) · 2016-01-25Probationary Dismissal: Good Faith and Notice
This is an appeal from a trial judge's decision in a wrongful dismissal case involving a probationary employee. The central issue was whether the employer acted in good faith and applied the correct suitability test when terminating the employee during a six-month probationary period, and whether the employee was entitled to common law reasonable notice. The Divisional Court found that the trial judge erred in awarding damages, holding that probationary employment is inherently tentative and does not guarantee long-term employment.
U. v Corporation of the Township of Ramara
2016 ONSC 111 (CanLII) · 2016-01-06Wrongful Dismissal: Probationary CAO Termination
This is a summary judgment motion in a wrongful dismissal case involving a probationary employee terminated by a municipal corporation. The employer alleged poor performance and incompatibility, while the employee claimed wrongful dismissal, procedural unfairness, and disability discrimination under the Ontario Human Rights Code. The court applied the Hryniak v. Mauldin framework to determine if genuine issues requiring a trial existed regarding the employee's suitability and the municipality's compliance with procedural and contractual obligations.
Workplace Safety and Insurance Board v. Canadian Union of Public Employees, Local 1750
2013 ONSC 4292 (CanLII) · 2013-06-20Judicial Review: Arbitration Decision Quashed
The Workplace Safety and Insurance Board sought judicial review of an arbitration decision reinstating a probationary employee. The Divisional Court applied the standard of reasonableness and quashed the arbitration decision, finding that the findings of arbitrariness and discrimination were unsupported by evidence.
R. v Ontario
2010 ONSC 3156 (CanLII) · 2010-06-02Judicial Review: 8-Year Delay in Probationary Dismissal
This is a judicial review application concerning the dismissal of a probationary employee. The applicant delayed nearly six years in commencing the application and over seven years in perfecting it, failing to provide sufficient justification for the inordinate delay. The court found that granting reinstatement would cause significant prejudice to the respondents due to workplace changes and staff disruption.
S. v. National Film Board of Canada
2008 ONCA 87 (CanLII) · 2008-02-06S. v. National Film Board: Court Jurisdiction Upheld
This was an appeal to the Court of Appeal from a motion judge's order dismissing an action for lack of jurisdiction. The plaintiff, a probationary employee in a managerial position, brought an action raising whistle-blowing allegations after her termination. The defendant employer moved to dismiss the action three years later on the basis that the grievance procedure under the Public Service Staff Relations Act was the appropriate forum. The motion judge dismissed the action. The Court of Appeal allowed the appeal, finding the Superior Court retains residual jurisdiction and it would be a miscarriage of justice to leave the plaintiff without a remedy since it was too late to grieve.
Loyalist College of Applied Arts and Technology v. Ontario Public Service Employees Union
2003 CanLII 29709 (ON CA) · 2003-03-06Labour Law: Individual Bargaining vs Collective Agreement
This is an appeal to the Court of Appeal from a Divisional Court decision dismissing a judicial review over an individual hiring condition. The employer college hired a unionized teacher on the condition she pursue graduate studies, but fired her when she failed to enroll during her probationary period. The arbitration board and the Divisional Court found the condition invalid and ordered the teacher reinstated. The Court of Appeal dismissed the employer's appeal, ruling that employers cannot negotiate individual conditions of employment that threaten job security when a collective agreement is in place. The arbitration board's order reinstating the employee stands.
P. v. Regional Municipality of Peel Police Services Board
2003 CanLII 8396 (ON SCDC) · 2003-01-10Probationary Police Officer Termination: Procedural Fairness
This is a judicial review of a decision by the Peel Police Services Board regarding the termination of a probationary police officer. The applicant challenged the Board's failure to require sworn evidence or allow cross-examination of witnesses, alleging a breach of procedural fairness and natural justice. The Divisional Court upheld the Board's decision, finding that the statutory framework under the Police Services Act did not require such procedural safeguards and that the oral hearing and written submissions provided sufficient procedural fairness.
W. v. Serviplast Inc.
1998 CanLII 4846 (ON CA) · 1998-04-03W. v. Serviplast: Probationary Dismissal Appeal
This is an appeal to the Court of Appeal for Ontario concerning the dismissal of a probationary employee. The case addresses the legal standards applicable to the termination of employment during the probationary period.
P. v. Seymour Epstein Enterprises Inc.
1996 CanLII 8141 (ON SC) · 1996-02-21Probationary Employee Termination: Fair Opportunity and Notice Period Awarded
A wrongful dismissal case involving a probationary employee who was terminated without notice or feedback. The court considered whether the employer provided a fair opportunity to perform and assessed the appropriate notice period for a probationary employee, awarding four weeks’ notice, less one week’s pay already received.
M. v. Bank of Nova Scotia
1994 CanLII 7383 (ON SC) · 1994-09-19Wrongful Dismissal During Probation: Senior Banking Employee Terminated After Two Weeks
A wrongful dismissal case involving a senior banking employee who was terminated after two weeks of employment during a six-month probationary period. The court examined whether the employer had just cause for termination, the enforceability of the probationary term, and the sufficiency of evidence to support the dismissal. The employer was found to have reasonable cause for termination, and the court denied punitive damages due to lack of malice.
Brampton Hydro Electric Commission v. C.A.W., Local 1285
1993 CanLII 8488 (ON SC) · 1993-10-28Arbitrator Jurisdiction: Probationary Employee Grievances
This is a procedural ruling concerning the jurisdiction of a grievance arbitrator in a labour relations dispute. The case addresses whether an arbitrator has jurisdiction to hear grievances alleging bad faith and arbitrariness in the discharge of probationary employees, despite a collective agreement clause excluding such grievances, and whether the arbitrator exceeded their authority by ordering remedies beyond reinstatement and compensation.
M. v. Burns International Security Services Ltd.
1990 CanLII 4054 (ON SC) · 1990-01-19Wrongful Dismissal of Probationary Employee: Two Weeks Notice Awarded
A wrongful dismissal case involving a probationary employee who was dismissed for alleged insubordination. The court determined the employer must provide a reasonable opportunity for the employee to demonstrate suitability and awarded two weeks' notice based on industry standards. The plaintiff's claims for aggravated and punitive damages were dismissed as no independent actionable wrong was found.