Ontario Probation Period: What It Actually Means Legally

What Does Probation Mean Under the ESA?

Under the Employment Standards Act, 2000, employees who have been employed for less than 3 months are not entitled to termination notice or pay in lieu of notice. This is what most employers mean by "probation."

Rights You Have From Day One (Regardless of Probation)

• Minimum wage and overtime protection
• Public holiday pay
• Protection against discrimination and harassment (Ontario Human Rights Code)
• Workplace safety rights under OHSA
• Protection from reprisal for asserting ESA rights
• Right to receive a written record of hours worked

Probation Periods Longer Than 3 Months

Some employers set 6-month probation periods. Under the ESA, you are only exempt from notice requirements for the first 3 months. After 3 months, you are entitled to 1 week's notice (or pay in lieu) regardless of what the employment contract says about a longer probation period.

Common Law Protections During Probation

Separate from the ESA, common law may still offer protection — even within the first 3 months. If an employer:

• Made specific representations about job security during hiring
• Induced you to leave a secure job with promises
• Terminated for a discriminatory or bad-faith reason

...you may have a claim despite being within the ESA exemption period. Courts have found employers liable for damages where dismissal during probation was clearly made in bad faith.

After Probation: What Changes?

What Employers Must Do During Probation

The probation period should be used to genuinely evaluate fit for the role. Employers who terminate during probation for discriminatory reasons (age, gender, disability, pregnancy, etc.) face liability under the Ontario Human Rights Code, regardless of the ESA exemption.