The probation period myth that costs Ontario employers
Probation periods work. I have used them, recommended them, and written them into contracts. Ninety days to see whether someone can actually do the job before you are locked in ... that is a fair, sensible thing for any employer to want.
Here is the part nobody tells you. In Ontario, the word "probation" does almost none of the legal work people think it does. Most owners treat a probation period as a free window to let someone go with no notice, no pay, and no risk. It is not. And the gap between what people believe and what the law says is where the expensive surprises live.
I will implicate myself first. For years, the shorthand I gave managers was some version of ... they are on probation, if it is not working out we can just cut them loose. It felt true. It is also, in Ontario, wrong in three specific ways, and each one can cost you.
What does a probation period actually mean under Ontario law?
Start with the thing that surprises people most. The word probation does not appear anywhere in Ontario's Employment Standards Act. There is no statutory probation period.
What exists is a threshold. The ESA does not require notice of termination or pay in lieu for an employee who has been continuously employed for less than three months. That is it.
So the mythical ninety-day window is real, but it is not a probation clause. It is a general ESA rule that applies to every new hire, whether or not you ever wrote the word probation into their contract. That distinction matters, because everything people hang on the word probation is actually doing something else, or nothing at all.
Do you still owe termination pay during a probation period?
Yes, the moment someone crosses three months. This is the first place the myth breaks.
The ESA notice schedule starts at three months of continuous employment. Under three months, no statutory notice. Three months to under one year, one week. One year to under three years, two weeks. After that it climbs by roughly a week per year of service, up to a maximum of eight weeks.
Here is the trap. Plenty of Ontario employers run a six-month probation period and assume the whole six months is notice-free. It is not. If you let someone go in month four or five, still inside your contractual probation, you have already passed the ESA three-month line, so you owe statutory notice or pay in lieu. An extended probation clause does not override the ESA. You cannot contract below the statutory floor.
Can you actually be sued for firing someone on probation?
This is the second and larger break in the myth. Yes, and the exposure is bigger than the ESA number.
If your contract does not contain a valid probationary clause, a dismissed employee can claim common-law reasonable notice, which is almost always far more than the ESA minimum ... often months of pay, not weeks. The Ontario Court of Appeal confirmed in Nagribianko v. Select Wine Merchants Ltd. that a probationary clause can hold an employee to a lower standard, but only if it is actually in the contract and the employer acts properly.
And properly is the operative word. Even with a valid clause, you cannot fire a probationary employee on a whim. The standard is suitability. You have to make a good-faith assessment that the person is not suitable for the role, and you have to have given them a fair and reasonable opportunity to show that they are. Suitability is a lower bar than just cause, which is the fair trade-off of probation, but it is not no bar.
Then there is the floor under all of it. The Ontario Human Rights Code applies from the first hour of employment. There is no probationary exemption. If a termination is based even in part on a protected ground ... a disability that surfaced, a pregnancy, age ... probationary status protects you from nothing. It can become a human rights claim regardless of tenure.
This is general HR information, not legal advice. Confirm your own contracts and any specific termination with employment counsel.
Sales leaders, this one lands on you harder than most, because probation and sales ramp collide. The instinct is to cut a new rep at ninety days when the numbers are not there. Sometimes that is the right call. But if the ramp quota was never realistic, if the person was never handed the accounts, the training, or a fair runway, then a fast probationary cut is exactly the arbitrary, no-real-assessment termination the courts look at twice. You also do it in a small market where reps talk. A sloppy probation exit is a bad reference and a recruiting headwind you handed yourself.
How should you run a probation period the right way in Ontario?
1. Put an actual probationary clause in the written contract, signed before the first day, and make sure it preserves at least the ESA minimum notice. A clause that tries to give less than the ESA can be struck down entirely.
2. Define what suitable looks like for the role in advance. Write down the standards, the check-in points, and who is doing the assessing. The case law rewards a genuine, good-faith assessment and punishes an arbitrary one.
3. Give real feedback during the period, not a surprise at the end. A fair and reasonable opportunity to demonstrate suitability is part of the legal test, not a courtesy.
4. Track the three-month line separately from your contractual probation length. Past three months you owe ESA notice or pay, full stop, even mid-probation.
5. Never let a protected ground touch the decision. If a disability, an accommodation request, or a leave is anywhere near the timing, stop and get advice before you act.
6. When you do end it, keep the conversation short and respectful. Confirm the decision, deliver the paperwork and any pay owed, and do not improvise reasons on the spot. Confirm the wording with employment counsel first.
I still believe in probation periods. Used honestly, they protect everyone ... the employer from a bad fit, and the new hire from being strung along in a role they were never set up to win. The problem was never the tool. The problem is that in HR, mine included, we let the word probation carry a promise it does not legally make, and then we act surprised when the bill arrives.
Probation is a real assessment window. It is not a liability-free one. Both of those are true at the same time, and the employers who do well are the ones who stop pretending only the first half is.
In short
In Ontario, a probation period is not a legal free pass. The word probation does not appear in the Employment Standards Act, statutory notice or pay is owed once an employee passes three months even inside a contractual probation, and without a valid probationary clause and a good-faith suitability assessment a dismissed worker can claim common-law reasonable notice worth far more than the ESA minimum. The Human Rights Code protects employees from the first day, probation or not.
Key takeaways
- The ESA never uses the word probation. It only exempts employers from termination notice for employees continuously employed less than three months.
- ESA notice begins at three months: one week (three months to one year), two weeks (one to three years), then about a week per year of service up to a maximum of eight weeks. A six-month probation clause does not extend the notice-free window past three months.
- A probationary employee can still claim common-law reasonable notice, often months of pay, unless the contract contains a valid probationary clause (Nagribianko v. Select Wine Merchants Ltd., 2017 ONCA 540).
- Even with a valid clause, dismissal requires a good-faith assessment of suitability and a fair opportunity to demonstrate it. Suitability is a lower bar than just cause, not no bar.
- The Ontario Human Rights Code applies from the first day of employment. There is no probationary exemption for discrimination.
Frequently asked questions
Does the Employment Standards Act have a probation period?
No. The ESA does not use the word probation. It exempts employers from providing termination notice or pay only for employees who have been continuously employed for less than three months.
Do you have to pay termination pay to someone on probation in Ontario?
Not in the first three months. After three months of continuous employment you owe at least one week of ESA notice or pay in lieu, even if the person is still inside a longer contractual probation period.
Can a probationary employee sue for wrongful dismissal in Ontario?
Yes. Without a valid probationary clause in the contract, they can claim common-law reasonable notice, usually far more than the ESA minimum. A valid clause can limit this, but the employer must still act in good faith.
What is the legal standard to fire someone on probation?
Suitability. The employer must make a good-faith assessment that the employee is not suitable for the role and must have given a fair, reasonable opportunity to show they are. It is a lower standard than just cause, but it is not no standard.
Does the Human Rights Code apply during probation?
Yes, from the first day of employment. A termination based even partly on a protected ground can be a human rights claim regardless of how long the person has worked.
References
- Government of Ontario. (n.d.). Your guide to the Employment Standards Act: Termination of employment. Ontario.ca. https://www.google.com/url?q=https://www.ontario.ca/document/your-guide-employment-standards-act-0/termination-employment&source=gmail&ust=1789553764018000&sa=E
- Nagribianko v. Select Wine Merchants Ltd., 2017 ONCA 540 (CanLII). https://www.google.com/url?q=https://canliiconnects.org/en/summaries/54758&source=gmail&ust=1789553764018000&sa=E
- Ontario Human Rights Commission. (n.d.). Human rights issues at all stages of employment. https://www.google.com/url?q=http://ohrc.on.ca&source=gmail&ust=1789553764018000&sa=E. https://www.google.com/url?q=https://www.ohrc.on.ca/en/iv-human-rights-issues-all-stages-employment/13-ending-employment-relationship&source=gmail&ust=1789553764018000&sa=E
Notes: No company-reported or unaudited statistics were used in this piece; all claims are statutory or case law. This is general HR information, not legal advice. Confirm specific contracts and any individual termination with employment counsel.
