March 23, 2022



Starting a new job can be daunting and exciting. It is always a bag of mixed feelings. But when you are on probation, things are bound to get a little bit stressful. As long as you are in that period, you might find yourself feeling extremely stressed about this uncertain period. Often people catastrophize and think about what will happen to them after the period is over. We are here to help you put your mind at ease. Also help you understand what is a probationary period in Ontario?

What is understood by a probationary period?

The probationary period is the time utilized by the employer to evaluate whether the new employee is a proper fit or not. During this period the employer can terminate the employee without giving them any notice or pay in lieu. The probationary period is usually for about three months. It can also be longer than that.

As per the Employment Standards Act is the three-month probationary period mandatory?

As per the Ontario Employment Standards Act, 2000 (ESA) there is no definite statutory term prescribed. They are not a statutory mandate as the probation periods arise only due to employment contracts. The probationary period clause is put in place by the employers so that they can rely on it.

Can the probationary clause always be enforced?

The clause is not enforceable when the clause is present in the employment contracts with less than minimum entitlements as per the ESA. As per the ESA, employers can’t terminate the employee without giving them a notice or pain in lieu of it when employed with the company for three months or more. It is only within the first three months of hiring can the employers terminate the employee without providing notice or pay in lieu. In situations, where the probationary period is longer, the employers are required to give the ESA minimum notice or pay in lieu when terminating the employee without a cause after the first three months.

What is one entitled to when they are terminated by the employer and, there is no probationary clause, or the clause is ambiguous?

Such a situation is definitely stressful. When there is no probationary period, or it hasn’t been explicitly stated in the employment contract, you are entitled to reasonable notice or pay in lieu. It holds valid even when you have been terminated within the first three months of the employment.

Is there any standard followed for dismissing a probationary employee?

According to the common law, employers are to act in good faith during the employment period. This implies that the employer has to be reasonable and should be correctly motivated. Character, compatibility and ability to meet productions standards are some of the expectations set by employers. When the employee has been dismissed without giving a fair chance to show their capabilities and capacities, it is unfair to dismiss them. The standard for dismissal set is based on sustainability.

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