Offices in Ottawa and Perth
(613) 722-1500

CONTACT US (613) 722-1500

“Extra Breathing Room”: Dangers And Benefits Of Extending The Probation Period

“Extra Breathing Room”: Dangers And Benefits Of Extending The Probation Period

By:

Mann Lawyers

Posted May 14, 2019

Many employers require employees to agree to a probationary period (usually 3 months, but sometimes longer) during which the employer can dismiss the employee for any lawful reason whatsoever without notice or pay in lieu. The purpose of the probationary period is to allow the employer an opportunity to assess the new employee and determine whether the employee is doing well in his/her job. Probationary periods are not automatic; rather they must be provided for in the employment contract. While the Employment Standards Act, 2000 does not require the payment of mandatory termination pay during the first 3 months of employment, it is not a “probation period” as such.

Trouble can sometimes arise when an employer is unsure about a particular employee. The employer may want to give the employee a further opportunity to prove him/herself without foregoing the right to dismiss him or her without notice or pay in lieu.  In other cases, an employer may wish to dismiss the employee without notice or pay in lieu but needs the employee to work beyond the probation period set out in the contract for business reasons. In these situations, employers may consider extending the probationary period. However, employers must exercise caution. Much like the probationary period itself, the right to extend a probationary period is not automatic and must be set out in the original employment agreement. Failure to stipulate a right to extend the probation period can result in a constructive dismissal of the employee and give rise to an action in damages. Where a contract does contain such a provision, the provision must be exercised honestly and in good faith. If the probation is extended beyond 90 days, the Employer must still pay mandatory termination pay under the Employment Standards Act, 2000.

Probation periods are not as simple as the fabled “3-month rule.” A valid probationary clause (with or without an extension clause) is required. Employers who are unsure about their obligations to newer employees should seek out an employment lawyer before dismissing employees or extending their probation. Employees who have been dismissed without severance and told “but it’s within your probation period” may want to consider speaking to an employment lawyer to find out if they are entitled to damages.

This blog post was written by Nigel McKechnie, a member of our Employment Law team.  Nigel can be reached at 613-369-0382 or at nigel.mckechnie@mannlawyers.com.

 

More Resources

Blog |
Employment, Labour, and Human Rights, Commercial Litigation

By: 

Posted May 23, 2023

Both in my commercial and employment litigation practice, I encounter Ontario business owners faced with serious charges laid against them under the Provincial Offences Act[...]
Blog |
Family Law

By: 

Posted May 18, 2023

The recent Supreme Court of Canada decision in Anderson v. Anderson, 2023 SCC 13, provides guidance on domestic contracts and the enforceability of an informal[...]
Blog |
Environmental Law

By: 

Posted May 16, 2023

When many people think of contaminated sites, they think of the usual suspects such as industrial properties and gas stations.  They may not think of[...]
Blog |
Business Law

By: 

Posted May 9, 2023

Often business owners reach a point where they are considering the sale of their business either through the sale of shares or the sale of[...]
Blog |
Family Law

By: 

Posted May 2, 2023

Overview of Tort Claims in Family Matters Tort claims can be made in family law matters, so as to prevent a multiplicity of proceedings and[...]
Blog |
Employment, Labour, and Human Rights

By: 

Posted April 25, 2023

In a case that recently was decided from the Court of Appeal of Ontario called Celestini v Shoplogix Inc., 2023 ONCA 131, the Court had[...]

Subscribe to Our Newsletter

"*" indicates required fields

Name*
Consent*
This field is for validation purposes and should be left unchanged.