Consider yourself stepping into a new job full of hope and passion, only to be unaware of your rights during probation. For many, probation is an important evaluation time, but it’s also when confusion about employment rights often arises. Employers use this period to assess whether a new hire is the right fit.
In Ontario, the probationary period typically lasts for a few months, but it can vary depending on your employment Lawyer contract. While probationary employees are often excluded from certain benefits or protections, many still have fundamental rights under the Employment Standards Act.
This blog explores probationary period rights in Ontario: everything you need to know, including your entitlement to notice upon termination and what happens if you’re let go. Stay informed, and ensure you’re not left in the dark regarding your legal rights in the workplace.
What is the Probation Period?
Employers use a probationary period to evaluate whether a new employee is a proper fit for a job. During this period, employers can terminate the employee without providing any notice or pay in lieu. It generally runs for three months but could be longer.
Is a 3-Month Probationary Period Mandatory in Ontario?
The Ontario Employment Standards Act, 2000 (“ESA”) does not define a precise legislative term for probationary periods. Instead, probationary periods are determined by the conditions of individual employment contracts.
It is important to note that, while the ESA does not require employers to provide obligatory termination pay for the first three (3) months of employment, this period is not considered probationary under the legislation.
Do You Have Any Notice From a Probationary Employee?
While terminating a probationary employee within their legal probationary period does not result in statutory notice of termination, they may be given reasonable notice by common law. Common law refers to the body of law that is developed through judicial decisions, as opposed to laws enacted by legislatures. This type of notice could be much more than the legal minimum.
Employers must consider several variables to establish whether a probationary employee is entitled to notice.
For example, whether the employee has an employment contract that specifies the probationary period and termination terms. Clear probationary period language in the employment contract might help clarify the employee’s entitlements in the event of termination during this period.
Employers must also verify that they acted fairly and reasonably in determining the employee’s criteria. This involves determining whether the employee was informed of the assessment evaluation before the start of the probationary period and given a reasonable opportunity to demonstrate their skills. For instance, this could mean being given specific tasks or projects to complete, or being provided with feedback and support to improve their performance.
If the employer cannot answer yes to these questions, they may be forced to offer common law reasonable notice of termination. Employers should be attentive since an unfair evaluation could lead to termination obligations exceeding the statutory minimum.
Termination with Notice or Pay in Lieu in Canada
In Canada, unless the employee is dismissed for reasonable cause, the employer must offer notice or pay in lieu thereof. The employee’s length of service determines the notice period’s duration. It is usually defined in the job contract or required by the Job Standards Act in each province.
Suppose an employer cannot provide the required notice. In that case, they must offer compensation in lieu of notice, simply a payment comparable to the employee’s wages during the notice period. This allows employees to find another job or adjust to the changes.
The notification requirements for probationary staff may vary slightly depending on the conditions of the contract. Even during the probationary term, employers are typically obligated to provide notice or compensation in lieu of notice.
The exception is if the employment contract has a clause that waives or stipulates a shorter notice time. In most circumstances, a fair and reasonable notice is still required, or an employer must offer compensation for the termination period.
Severance Pay and Probationary Period in Canada
In Canada, severance compensation is often provided to employees who have been with the company for a long and are terminated without cause. However, the right to severance pay is more complicated for probationary employees. While the employee’s length of service determines the duration of the notice period completed the necessary term of employment, they are still entitled to any statutory or contractual benefits that apply to their situation.
This means that if a probationary employee has been with the company for a longer time or is terminated after a significant probationary period, they may be eligible to receive severance pay based on the terms of their contract and their unique circumstances.
It is crucial to remember that the probationary period is usually not included in severance pay calculations unless specifically indicated in the employment agreement. Employers are still expected to follow provincial employment rules and pay appropriate compensation if the termination is without cause.
As a result, while probationary employees are generally not entitled to severance compensation in the same manner as permanent employees, the terms of their contract and the nature of their employment should always be considered to determine whether severance pay is applicable.
Your 5 Rights While You’re Under Probation
At the beginning of a new job, you must know your rights even while on probation. Although you may be on the spot for judgment, you do not lose your fundamental rights as an employee. Here’s what you deserve to have while being under probation:
Equal Pay and Benefits
You’re entitled to equal pay as a probationary staff member. Employers have to pay you a fair wage for the job you’re doing, as defined in your contract. Moreover, unless otherwise indicated in your contract, probationary staff are usually entitled to the same benefits as permanent staff.
This covers health insurance, paid time off, and pension contributions, so you’re treated relatively well while being evaluated for the position.
Employment Standards Protections
You are also afforded the same employment standards protections as other workers during even the probationary period. This means compliance with working hours, overtime payment, and holiday entitlement rules. Your employer has to abide by the Employment Standards Act, which guarantees that you are treated equitably for work hours and pay regardless of being on probation.
Access to Workplace Safety and Health Protections
You are entitled to a safe and healthy working environment even on probation. Employers must comply with workplace safety legislation, which ensures that all staff, including probationary staff, receive the relevant equipment, training, and procedures to safeguard their health and safety. This also includes freedom from harassment or hazardous working conditions that may impact your physical or psychological well-being.
The Right to Fair Treatment
Probationary workers have the right to fair treatment in the workplace. This means a right to be judged on fair and transparent grounds. Your employer should not treat or discriminate against you unfairly based on race, gender, or age. You also have a right to be given feedback regarding your performance, and any judgments made about whether to terminate or retain you must be based on objective judgments.
Right to Join a Union or File a Complaint
Even while you are on probationary status, you are entitled to union membership or complaint filing in case you feel your rights are being infringed upon. Being a union member gives you bargaining power as a group, and your employer cannot stop you from joining or participating in union activities. Also, if you feel you’ve been discriminated against or have been subjected to illegal practices, you can file a complaint with the relevant labor board or regulatory body.
Conclusion
The probationary period can be tricky, but understanding your rights as an employee in Ontario is essential. From equal pay and workplace safety to access to union membership, you are entitled to a range of protections even during your probation.
If you face challenges or uncertainties during your probationary period, or if you feel your rights have been violated. Dharsi Law provides the guidance and support to ensure fair treatment and protect employment rights.
Contact Dharsi Law today to discuss your situation and take the necessary steps to safeguard your future in the workplace. Don’t navigate this alone—let us help you understand and assert your rights.
