Probationary Period 
Responsibilities: Employer V.S. Employee

Starting a new job is both an exciting and stressful time in a person’s life. Whether you’re taking up a new position within your field, or venturing into a completely new area of work, it’s incredibly important to begin your employment relationship on a solid foundation and to understand your legal rights at the commencement of the employment relationship.

The beginning of the employment relationship is a critical time in which many employers and employees misunderstand their legal rights and obligations.  It is a common myth that an employer’s risks are limited at the beginning of the employment relationship as a result of the applicable provisions in the Employment Standards Act regarding termination of employment.  To the contrary, the common law imposes additional obligations on employers during the probationary period that could be costly for those employers who are not aware of all of the risks associated with terminating an employee during the initial stages of the employment relationship.

If there is no written employment agreement in place that specifically addresses a probationary period, an employer has a common law obligation to advise you of the length of the probationary term (which could be set out in an employment agreement), and to advise you of the terms and conditions of the probationary period.

In addition, during a probationary period an employer is still obligated to advise the employee of any shortcomings in his or her performance, and to provide direction and support to the employee to improve his or her performance.  Further, the employee must be afforded a reasonable opportunity to demonstrate progress to determine if he or she is a fit for the position.

If there is a contractual provision between an employer and employee concerning a probationary period, courts have held that to be enforceable the probationary clause should clearly state that an employer “may terminate the employment relationship during the probationary period at its sole discretion without notice or severance or pay in lieu of notice to the employee”.  Without clear language to this affect, its possible the probationary clause could be deemed unenforceable.  However, even a properly drafted probationary clause might be unenforceable if the employer cannot demonstrate that it provided the employee with a reasonable opportunity to perform the job – common law dictates that the legal onus is still on the employer to justify the termination, even if its a lower standard than just cause.


So what if you start a new job and then you’re dismissed during the probationary period?

Well, depending on the language of the contractual probationary clause in your employment agreement, you could be entitled to notice or severance pay.  A simple clause stating a “probationary period of 3 months” with nothing further will usually not be deemed enforceable by a court.  Aside from language in a probationary clause, your employer must still provide you with a reasonable opportunity to perform the job.  If it has not, again, it could be found by a court to be a wrongful dismissal.

The point is, don’t assume that all rights and obligations during a probationary period are limited to the applicable provisions set out in the Employment Standards Act.  Furthermore, a contractual probationary clause is only valid if it clearly sets out the terms and conditions of the probationary period, and furthermore that an employer has made clear what is expected within the prescribed term of probation.  A probationary period is not meant to allow employers the opportunity to dismiss staff for any reason and without being obligated to proper notice or pay in lieu of notice.

It is imperative that employers and employees are aware of their legal obligations at every step of the employment relationship, including the beginning stages.  Certain missteps by an employer during the initial stages of the employment relationship could suddenly lead to a wrongful dismissal claim, with the employer facing the prospect of costly litigation.