A new job means new experiences. Before starting a new job, there is a lot that needs to be done. The very first step is signing the employment contract. We are often told to read the contract thoroughly. As it helps us to be sure about what we are getting into. There are many clauses in an employment contract and probation tends to be one of them. The company doesn’t need to have a probation law in their employment contract but they often do. You might wonder, what are my rights during 3 months probation period in Ontario?The following post will clear some of the basics about it.
What is meant by probation?
During the probation period, the employer utilizes the time to evaluate the new employee and determine whether they are in the right fight. When an employee is on probation, they can be terminated from their job without any notice or pay in lieu. Often the period is about three months long, but sometimes it is also longer.
Is the three-month probation a compulsion under the Employment Standards Act (ESA)?
There is no statutorily defined term provided by the Ontario Employment Standards Act, 2000 (ESA) about the probation period. Hence, it is a creation of the employment contract and not something mandated statutorily. It is on the employer whether they want to include the probationary period clause or not?
When is the probationary clause enforceable?
A probationary clause ceases to be enforceable when the employment contract provides less than minimum entitlements as stated by the ESA. The employers don’t have the right to terminate the employee without providing notice or pay in lieu when the employee has been working with the company for at least three months. Within the first three months, the company has the right to terminate without notice or payment in lieu. When the probationary period is longer than three months, the employers have to give an ESA minimum notice or pay in lieu when terminating the employee after the first three months.
What happens when there is no probationary clause or is ambiguously stated?
The employee is entitled to reasonable notice or pay in lieu even when they have been terminated within the first three months of employment. It holds true when there is no probationary clause or the clause has been ambiguously stated.
What is the standard of dismissal followed for a probationary employee?
The standard set for dismissal is sustainability. As per the common law, employers have to act in good faith throughout their employment. When the employer decides about the termination, it should be reasonable and correct motivation. When deciding about termination factors like character, compatibility and ability to meet standards should be considered. To dismiss an employee before giving them a fair chance to demonstrate their ability can be unfair.
Is there any advice for the employers?
For the probationary clause to be effective in court, it should be described clearly and at length in the agreement contract. The agreement should state that the notice or pay in lieu will be provided in case of termination.
