It is surprising to me how many people are shocked when I inform them that probationary periods are not law. The bigger realization usually follows as these organizations are told that they do not have a probationary period in place for a certain employee.
Probationary periods are not mandated by the Employment Standards Act (ESA). Why does everyone think they are?
The ESA tells us that employers do not have to give any termination notice to an employee who has been continuously employed for less than 3 months. Once that employee has been around for 3 months to a year, employers are required to give 1 weeks notice to the affected employee.
Termination notice periods are not probationary periods. Termination notice doesn’t speak to giving reasons for a termination, only the amount of notice that needs to be given. Under a contract with no probationary period to speak of you would need to provide a reason to go along with that termination.
How do we avoid this?
Ensure that you have a probationary period clause in each employment contract that is signed for your organization – and spell out what that probationary period entails for the affected employee. By doing this you are doing your due diligence to certify that this is the right role for that employee and the right employee for that role.
Lee-Anne Vandenberg
Senior Associate
