Employment Law Myths: Implied Probationary Periods

In accordance with section 54 of the Employment Standards Act, 2000, employees employed continuously for three (3) months or more must be provided with statutory minimum notice. But does this mean that employers can automatically deny employees of less than three (3) months with termination pay, or reasonable common law notice?

The common law says that they can, provided that there is a contractual provision that contemplates a probationary period of this duration. If there is not, the probationary period cannot be “implied”, thus entitling the employee to reasonable common law notice.

What that means, is that unless you actually have a written contract, that properly sets out a ‘probationary period’ (of 3 months or less) then you don’t have actually have a probationary period.

If you don’t have a probationary period you might get a number of months’ notice, even if you are terminated after as little as a week or less.

Case Law

The decision in Easton v. Wilmslow Properties Corp.[2001] O.J. No. 447 is instructive on this issue. In Easton, the Plaintiff was terminated after two (2) weeks of employment and was provided with the same amount of termination pay. She was previously employed with the Canadian Imperial Bank of Commerce (“CIBC”) for nine (9) years and alleged inducement. When the Plaintiff sued for wrongful dismissal, the Defendant alleged that she was a “probationary employee” and that the two weeks provided to her was sufficient. The court disagreed, finding that the Plaintiff was entitled to reasonable common law notice. While the Plaintiff’s employment contained a probationary period clause which specified that the employment relationship within the first ninety (90) days of employment was “probationary”, it was not sufficient, as there were no further details. Lederman J. speaking for the court noted that the express inclusion of this provision was necessary when employers were attempting to limit entitlements but found the Defendant’s provision insufficient to limit the Plaintiff’s entitlements because it merely specified the duration of the probationary period, and did not further elaborate on the Plaintiff’s limitations in terms of notice or the reasons for the probationary period (to determine suitability for further employment).

The courts have also found that an employer should provide the probationary employee with the tools and opportunity to succeed prior to jumping to termination. As per the decision of Ritchie v. Intercontinental Packers Ltd. (1982), 14 Sask. R. 206,

So long as the probationary employee is given a reasonable opportunity to demonstrate his ability to meet the standards the employer sets out when he is hired, including not only testing of his skills but also his ability to work in harmony with others, his potential usefulness to the employer in the future, and such other factors as the employer deems essential to the viable performance of the position, then he has no complaint.

Further, instances outside of the notice period context (i.e human rights issues) have been found to “stay” the dismissal of a probationary employee past the probationary period. In Bertrend v. Golder Associates, 2009 BCHRT 274, the Complainant, a probationary employee who suffered from depression and had several emotional encounters with colleagues, was terminated without notice. There was evidence led at the hearing that her termination was pre-meditated, and consisted of an email exchange between her superiors that because she was within the probationary period that they could “cut their losses” and terminate her because they had “done her enough favours”. The employer and Respondent to the complaint had attempted to persuade the Complainant to take a temporary layoff but this offer was not accepted. The Tribunal condemned the Respondent’s actions in jumping to termination and utilizing the probationary period as an explanation for the necessity of doing so. The Tribunal remained of the opinion that, if an investigation into the Complainant’s suitability for employment was required that the probationary period should have been extended, rather than jumping to a hasty termination. Because the Respondent did not act in such a manner, it was penalized, found to have engaged in discrimination on the basis of disability, and damages for wage losses (20 weeks), expenses associated with the proceedings, and $12,500.00 in human rights damages were awarded.

The above authorities demonstrate that the jurisprudence on employee rights is entirely progressive. In older decisions, for instance, Mitchell v. The Queen (1979) 23 O.R. (2d) 65 (H.C.J.), the judiciary has implied that probationary periods are to be expected and entitlements reduced. In Mitchell, Van Camp J. stated,

“The term [probationary period] is well understood in business and industry as an employee, who is being tested to enable the employer to ascertain the suitability of the employee for its purposes. Probation is a period when the employee may prove that he is suitable for regular employment as a permanent employee and will meet the standards set by the employer.”

If you have been terminated within a probationary period and have been refused termination pay and reasonable notice, its best to contact an employment lawyer. Certain factors, such as your contract, can limit your entitlements, so it is best to have a professional assess your options going forward.

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