Area of Law: Employment Law
Answer # 593
Rights of an employee on probationRegion: Ontario Answer # 593
Ontario’s Employment Standards Act does not require any specific minimum notice for an employee dismissed in his or her first three months of employment. For this reason, there is a common misconception among employees and employers that every worker is on “probation” for the first three months on the job.
In actual fact, new employees are only on probation if they agree to it before being hired or if it is a condition of hiring. And, if an employee is dismissed in that time period, that does not mean the employee has no rights. Depending on the reason for the firing, an employee can sue for wrongful dismissal or launch a human rights complaint.
If the employee is hired with the understanding that there is a period of probation, the employer could dismiss him or her without ‘just cause.’ That doesn’t mean, however, that the employer can act recklessly or violate human rights laws, such as the protections provided for religion, race, creed or other factors. An employer should still have a good reason to terminate employment, such as poor performance.
If an employee does want to sue, it is important to know that a court would likely not award a great amount in damages unless the individual was recruited from another position or false promises were made to induce the worker to take the job.
In other cases, an employer will sometimes place an employee on probation for a specific period of time longer than the three months set out in the Act. This is done mostly by employers trying to deal with the issue of poor performance. Some employers, however, use this tactic to later fire an employee without financial compensation, but the employee is still protected against dismissal without just cause or proper notice.
It is important to note that a probation clause is not always enforceable. If the probationary clause in the employment contract provides someone with less than minimum entitlements under Ontario’s Employment Standards Act, it is not enforceable.
For more information, contact the Ministry of Labour, Training and Skills Development. You can also view the Ministry Guide to the Employment Standards Act which details the rights and obligations of employees covered under the ESA regarding minimum wage, hours of work, termination of employment, vacation and more. For legal help and assistance, contact an employment lawyer.
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