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It is a common misconception that newly hired employees are automatically subject to a probation period upon starting a new position at a company. Further, employees may be unaware of their rights and entitlements during this time. 

Below, we discuss employee rights and how benefits, human rights and termination apply to probationary employees.

WHAT IS A PROBATION PERIOD?

Employers can offer jobs to employees on a “probationary basis”. This is essentially a trial period aimed at assessing whether the employee will be kept in the role permanently. This period is often three months in length. 

Employees are only on probation if they have expressly agreed to enter a position with a probation period. This is frequently agreed upon within an employment contract provided by the employer. Additionally, Ontario’s Employment Standards Act does not require any specific minimum notice for an employee to be terminated during their first three months of employment. This has led to a widespread misunderstanding that every new hire is on probation for their first three months of employment. However, this is not the case. 

A PROBATION CLAUSE IS NOT ALWAYS VALID

It is important for employees to know, that a probation clause in an employment contract is not always enforceable. 

Some of the factors that are considered in determining the enforceability of a probation clause are:

  • If the employee did not expressly agree to the probation period in the contract, this agreement cannot be implied;
  • If the probation clause is unclear – ambiguity of the expressed term in the contract could lead to the clause being invalid;
  • If the clause provides less than minimum employment standards under Ontario’s Employment Standards Act it may be deemed unenforceable – if these minimum standards are not upheld in the probation period clause, the probation is not valid.

WHAT ARE YOUR RIGHTS IN TERMS OF BENEFITS, HUMAN RIGHTS AND TERMINATION?

Potential Right to Workplace Benefits

While an employer may offer benefits to non-probationary employees, probationary employees may not be able to access them until their probation concludes.

Human Rights While on Probation

Simply put, an employee is still protected by human rights laws even while on probation. If a probationary employee was fired for a reason that violated human rights, they could potentially have grounds for human rights claim.

Termination Rights During First Three Months

The rights of employees during the first three months of probationary employment differ from the rest of the employees who have been employed for longer. What universally applies is that, depending on why an employee was fired, all employees (probationary or not) could sue their employer for wrongful dismissal, or have grounds for a human rights complaint as mentioned above. 

Outside of this, an employer can generally terminate an employee within the first three months of probation without notice and without termination pay. It is uncommon for courts to question an employer’s decision to fire an employee during probation unless it was deemed the employer failed to act in good faith.

An employer typically has the liberty to terminate an employee who is on probation when they have decided the employee is not “suitable” or “fit” for the position. This suitability is strongly based on the employer’s discretion. The employee is subject to the assessment of certain factors such as:

  • Employee character;
  • Ability to work with others; and 
  • Ability to meet the employer’s ongoing standards.

PROBATION PERIOD LONGER THAN THREE MONTHS

The Employment Standards Act states, if an employee is fired after 3 months of work (whether they are on probation after these 3 months or not), the employer must provide: notice of termination, or pay in lieu of notice.

While the minimum notice an employee is entitled to vary, the Employment Standards Act confirms that if an employee has worked between 3 months and a year, the employee is entitled to one week of notice.

EMPLOYER OWES YOU GOOD FAITH

As mentioned above, when terminating newly hired probationary employees, the employer must act in good faith. “Good faith” means the employer must:

  • Provide the employee with a fair chance to demonstrate if they are for the position;
  • Act fairly in the decision as to why the employee is not suitable for the position.

If termination is considered, the probationary employee has the right to termination made in good faith.

WHAT HAPPENS WHEN MY PROBATION ENDS?

If a probation period comes to an end and the employer does not say or do anything to change the conditions of employment, the employee’s probation period is complete, and their employment continues.

TORONTO EMPLOYMENT LAWYERS ANSWERING YOUR PROBATION PERIOD QUESTIONS

We encourage you to contact your Toronto employment lawyers at Sultan Lawyers, for a free call back or flat-rate consultation to better understand your rights and the options available to you in relation to employee rights during probation periods in the workplace. Please contact us by telephone at 416-214-5111 or via email at khayward@sultanlawyers.com.


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