In Canada, there is a unique clause in employment that many people outside of Canada don’t know about: the employee probationary period. During the first stretch of employment, a Canadian new hire has limited employee protections. They can be dismissed without notice and without pay in lieu, provided that the probationary period was accurately used as a good-faith effort to assess the abilities of the new hire.
Recent developments are increasing employee rights during the probationary period to protect professionals who have just started a new job – especially if they were hired away from other secure employment. You do not have to engage in a probationary period, but if an employer chooses to exercise this option, they may ask a new hire to accept the probationary conditions for the first 90 days to six months, depending on your province or territory within the Canadian borders.
Employee Probationary Period Duration in Canada By Province
How long are employee probations in Canada? The typical answer is “3 months”, however, this is not a safe universal answer in terms of legal advice. The length of a permitted probationary period for new hires varies depending on your state or province. Further, the variance is between 90 days and 6 months, a vastly significant difference that you could get in trouble for misunderstanding and hiring incorrectly in the wrong province.
3-months is the typical answer because Ontario’s probationary period is 3 months, and 3 months is the most common duration across Canada. However, 3 provinces and territories have longer probationary periods. One province and two territories allow only half that duration.
|Prince Edward Island
How Does an Employee Probationary Period Work in Canada?
The Canadian probationary period is an interesting legal detail in our labor laws. The probationary period is intended to protect the employer from a bad fit when hiring. During the employee probation, the employer can dismiss the new hire without notice and for any non-discriminatory cause. However, it’s not a “blank check” policy that employers can use without oversight or consideration. This legal policy provides some protection on both sides of the line.
Define Probation in the Employment Contract
The probation period does not start automatically. The employee contract must outline this. Only the first three months (or local probationary duration) can include termination without notice or pay in lieu of notice. You may write a contractual probationary period that goes beyond the legal duration, but you must provide termination notice or pay in lieu even if other duties or continued employment are still being assessed.
Good Faith Assessment
In order for a probationary termination to be legal, the probation must have been in good faith. This means that during the probation period, the employee can display their skills and capabilities for the role. Failing to assign the employee exemplary tasks and terminating them within the probation will be considered bad faith and unlawful termination, as in the case of Cao v. SBLR LLP.
In this case, Cao had five assignments, and none of them allowed her to display the skills stated as essential to the job before termination.
Probation Periods: Put It In Writing
The ultimate answer to the probationary period in Canada is to write any desired probation into the employment contract. Know the permitted period in your province for terminating an employee without notice or pay in lieu of notice, but also define your specific probation terms and duration. This helps creates the probationary period on your terms instead of relying on legal permission. It also makes terms clear to your new hires so they know just how must job security they have – and what they are being assessed for during the probationary period.
Learn More About Canada’s Employee Probationary Period
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