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
Chan v. NYX Capital Corp.
2025 ONSC 4561 (CanLII) · 2025-08-06Wrongful Dismissal: Probationary Employee Entitled to Notice
A wrongful dismissal case where the plaintiff, terminated one day before the end of a probationary period, was awarded three months' notice based on Bardal factors. The court found the termination clause void for non-compliance with the Employment Standards Act, and no aggravated or punitive damages were awarded due to the employer's conduct not being high-handed or malicious.
Urbanski v Corporation of the Township of Ramara
2016 ONSC 111 (CanLII) · 2016-01-06Wrongful Dismissal: Probationary Employee Terminated During Medical Leave
A wrongful dismissal case involving a probationary employee terminated by a municipality. The court assessed whether the termination was due to poor performance or disability discrimination, and whether the employer acted reasonably. The case also involved a summary judgment application regarding the appropriateness of terminating an employee on medical leave.
Posner 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.
McNeil 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.
Re Toronto Hydro-Electric System and Canadian Union of Public Employees, Local 1
1980 CanLII 1784 (ON SC) · 1980-04-15Probationary Employees and Collective Agreement Arbitration Rights
A labour and employment case addressing whether probationary employees are excluded from grievance and arbitration procedures under a collective agreement, and whether such exclusion conflicts with the Ontario Labour Relations Act, particularly section 37(1), which requires arbitration of all differences arising from a collective agreement.
Re Gillingham and Metropolitan Toronto Board of Commissioners of Police
1979 CanLII 2023 (ON SC) · 1979-08-20Probationary Police Constable Forced Resignation and Procedural Fairness
A merits decision involving a probationary police constable who was forced to resign without being given an opportunity to respond to allegations. The case examines whether this constitutes a dismissal requiring procedural fairness and whether the Nicholson principle applies to probationary employees.
Mitchell v. The Queen
1979 CanLII 1922 (ON SC) · 1979-02-19Public Servant Wrongful Dismissal: Crown Prerogative and Probationary Employees
A wrongful dismissal case involving a public servant who challenged the Crown's right to dismiss probationary employees at will under the Public Service Act. The court ruled that the Crown retains the prerogative to dismiss employees without cause, provided the dismissal is not discriminatory or unreasonable, and no wrongful dismissal was found, resulting in no damages awarded for mental distress.
Markey v. Port Weller Dry Docks Ltd.
1974 CanLII 671 (ON SC) · 1974-04-10Probationary Employee Dismissal: No Damages for Wrongful Termination
A wrongful dismissal case involving a probationary employee, addressing whether an employer can dismiss a probationary employee without notice or reason, and whether the employee's conduct constituted just cause for dismissal. The court considered the employer's discretion during probation, the employee's duty to obey reasonable orders, and whether insolence or disobedience justified termination. No damages were awarded for dismissal during the probationary period.