By: Stephanie McDonald and Baljinder (Bal) Singh Tiwana
Many employees in Ontario believe that being “on probation” means they have no rights—that their employer can fire them at any time, for any reason, and walk away without consequence.
That’s simply not true.
The Employment Standards Act, 2000 (ESA) and the common law protect all employees in Ontario from their very first day on the job, probation or not. Your employer can’t contract out of those rights, and they certainly can’t use the word “probation” as a free pass to ignore them.
What Is a Probationary Period in Ontario?
A probationary period is a trial period at the start of employment that allows the employer to assess whether you’re a good fit for the role. It is usually a period of 3 or 6 months.
The Probationary Period Must be in your Employment Contract
If your employment contract doesn’t mention a probationary period, you are not on probation. Employers must include a clear, written, and legally compliant probation clause in the contract for it to apply to you.
There are no provisions in the ESA that automatically place all employees on a probationary period.
Probationary Clauses Must Comply with the ESA
Probationary clauses have to follow the law to be enforceable. Ontario Courts scrutinize probationary clauses just as closely as termination clauses, when deciding whether the employer can rely on the probationary clause.
If a clause is unclear or fails to meet ESA minimum standards, the Court will decide not to enforce it. Once that happens, the standard that the employer has to meet to justify a termination without notice becomes higher.
Common Illegal Probationary Clauses in Ontario
Many employment contracts include probationary clauses that contravene the ESA. Watch out for these red flags:
- “Employment may be terminated at any time, for any reason, without notice.” This provision attempts to give employers too much discretion and may contravene employment standards.
- A probationary clause that removes the right to termination pay for employees with 3 months or more of service. If a probationary period is 3 months or more and the clause states your employment could be terminated without notice during the probationary period, this would be contrary to the ESA.
Ontario courts have repeatedly confirmed that any clause that could provide less than ESA minimums, is void, even if the employer intended to comply.
Termination During Probation: Suitability vs. Just Cause
During your probationary period, employers can terminate your employment without notice based on suitability. However, employers must act in good faith. They must give you a fair and reasonable opportunity to demonstrate your suitability and make an honest assessment of your suitability. If they don’t, you are entitled to common law reasonable notice, even during probation.
If the probationary clause is illegal or the probationary period is over, the standard the employer has to meet to terminate your employment without notice is just cause. Just cause is reserved for serious misconduct that causes a breakdown in the employment relationship.
Legal Probationary Clauses: The Suitability Test
If the probationary clause in your employment contract is legal, then the only situation you can be let go within the probationary period without notice is if:
- Your employer gave you a fair and reasonable opportunity to demonstrate your suitability (or “fit”)
- Your employer assessed your suitability for the role in good faith
If this has not happened, you are entitled to common law reasonable notice.
ESA Termination Requirements During Probation
Here’s what the Employment Standards Act (ESA) says about notice and termination during the probation period:
- If you’ve worked less than 3 months:
The employer can terminate you without notice or termination pay, unless the contract provides otherwise. - If you’ve worked 3 months or more (but less than 1 year):
The employer must provide at least one week’s written notice or pay in lieu, even if you’re still considered “on probation.” - If the probation clause is invalid or non-compliant: you are entitled to common law reasonable notice, which usually exceeds ESA minimums.
Conclusion: Probation Doesn’t Cancel Your Legal Rights
Probation never removes your employment rights in Ontario. The Employment Standards Act (ESA) always applies. Any contract clause that limits or removes your ESA entitlements is illegal and unenforceable.
If your employer ends your job during your probationary period, review your employment contract immediately. If the clause is illegal, you are entitled to common law reasonable notice.
To protect your rights and understand your legal options, contact Workplace Sage Legal. Our employment lawyers will help you assess your situation, challenge unfair clauses, and pursue the compensation you deserve under Ontario employment law.
Knowing your rights gives you power—and helps you move forward with confidence. Book a consultation today.
DISCLAIMER: This article/blog is provided for educational/informational purposes only. The views expressed are solely those of the author(s) and should not be attributed to any other party not listed as the author(s).
While reasonable efforts have been made to ensure the accuracy of the content provided, it does not constitute legal advice. Prior to relying on any aspect of this article, you should consult with a suitably qualified legal professional promptly in your relevant jurisdiction, to obtain advice tailored to your individual circumstances
Nothing in this article should be interpreted as forming a solicitor-client relationship or construed as a solicitation for legal services.
