There is no probationary period in Ontario employment law. There is a three-month window in the Employment Standards Act, 2000 where no notice is required, and whatever your written contract says beyond it. If the contract is silent, common law reasonable notice applies from day one.
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Section 54 of the Employment Standards Act, 2000 says no employer shall terminate an employee who has been continuously employed for three months or more without written notice or pay in lieu. Under three months, no ESA notice is owed. That is the whole of it. The Act never uses the word probation, and the three-month mark does not switch off any other law.
Past three months the schedule in section 57 starts: one week's notice under a year of service, two weeks from one year, three weeks at three years, and then a further week for each additional year up to eight weeks at eight years or more. Section 60 requires you to keep paying regular wages and keep making benefit plan contributions through the notice period. Pay in lieu under section 61 has to match what proper notice would have delivered, benefits included.
The Human Rights Code, ESA reprisal protection and Occupational Health and Safety Act reprisal protection all apply from the first shift. Dismissing a two-week employee because she disclosed a pregnancy, filed a wage complaint or refused unsafe work is unlawful no matter how the probation clause is worded.
A probation clause only binds if it is in a written agreement the employee accepted before starting work. Handing over the agreement on day one, after the offer was accepted by phone, usually means there was no fresh consideration for the new terms and the clause may not bind at all. Signed before the first day, or supported by something genuinely new of value.
Where a valid clause exists, courts allow dismissal during probation for unsuitability — a lower bar than just cause. But the employer has to act in good faith and give a real opportunity to demonstrate suitability: a described standard, actual supervision, feedback, and a written record of both. "It wasn't working out," with no notes, loses.
If there is no probation clause, the common law fills the gap and a short-service employee is not entitled to nothing. Reasonable notice for a recruited manager with a few months of service can run to several months. That is the single most expensive assumption small employers make about new hires.
A termination provision that could pay less than the ESA at any point is void, and Ontario's Court of Appeal has held that if one part of the termination language breaches the Act, the whole termination scheme falls — not just the offending words. A clause promising "no notice or pay during the first six months" is exactly that failure, because notice is owed from three months.
Other common breaks: cutting benefits off at the termination date instead of the end of the statutory notice period; language letting the employer terminate at its sole discretion; a probation clause that quietly dies when the employee is promoted onto a new contract that never mentions it. When the clause is void, the employee gets common law notice instead — the opposite of what the clause was for.
Extending probation is possible, but it is an amendment to the contract. It needs the employee's written agreement and something in return; continued employment on its own is generally not enough. Do it before the original period expires, not after.
Under the ESA, yes — section 54 only requires notice once an employee has been continuously employed for three months or more. But if the contract promises more, the contract governs. And if the real reason is a Human Rights Code ground or a reprisal for asserting a workplace right, length of service is irrelevant. Pay out earned wages and accrued vacation pay and issue the record of employment promptly.
You can agree to one, but it cannot suspend ESA notice past three months. A clause worded to deny notice or pay for six months is likely void, and in Ontario voiding the termination language usually hands the employee common law reasonable notice instead. The fix is a clause that says plainly the employee will receive at least their ESA entitlements at all times, and that any greater contractual amount is inclusive of them.
Only by agreement, in writing, before the existing period ends, and with consideration — a bonus, a raise, something real. Unilateral extension is a change to the terms of employment. If the employee objects and resigns, that can be constructive dismissal, which is a worse outcome than simply making the decision on time.
No. Probation limits nothing except, at best, the notice owed on termination. A probationary employee can file a human rights application, an ESA claim, an OHSA reprisal complaint, or a wrongful dismissal action. Short service reduces the damages in a wrongful dismissal claim; it does not reduce them in a discrimination claim.
Yes. Section 60 requires the employer to keep making benefit plan contributions through the statutory notice period and not to reduce the wage rate or alter other terms. Cutting benefits on the last day worked is a common breach and an easy one for an employment standards officer to find, because the insurer's records prove it.
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