The truth about probation periods for employees in Ontario

What exactly is a probation period?

A probation period is essentially a trial run at the start of employment. It gives employers a chance to evaluate whether you’re the right fit for the position, and it gives you time to decide whether the role works for you.

Many people assume probation is automatically imposed by law when starting a job, but in Ontario, that’s not the case. Under provincial law, probation only applies if your written employment agreement includes a valid clause. Without that clause, you’re protected by the same rights as any other employee from day one of your employment, including the right to severance if you’re terminated.

As Samfiru explains, “No probation clause, no probation. If you’re dismissed without cause, even in your first weeks, you’re still owed severance.”

How long can probation last?

In Ontario, probation can only last up to three months if it’s clearly written into your employment contract. During this time, your employer can end your job without paying severance.

If an employment contract comes with a probation period that is longer than three months (such as six months, for example), the law still requires that you receive full severance pay after the three-month mark. In other words, a probation period can’t stop you from getting severance after the first three months.

Calculating the probation period is straightforward: count three months from your first day of work. For example, if you begin on January 15, your probation ends on April 15. If you’re terminated on or after April 16, you’re entitled to severance. And remember, once you pass the three-month mark, Ontario’s severance rules apply, regardless of what your contract says.

Your rights during probation

Even within a valid probation period, you still have rights. Employers can’t dismiss you for discriminatory reasons, such as age, disability, race, or gender. Human rights protections always apply.

If your contract includes a valid probation clause, your employer can end your employment within the first three months without compensation. But Samfiru says many probation clauses he has seen over the years are poorly written and legally unenforceable, meaning you are not actually on probation at all. If that’s the case, or there’s no probation clause, you’re owed severance pay in Ontario, even if you’ve only worked a short amount of time.

“I recently represented a middle manager who was recruited away from a secure job, then fired just six weeks in,” says Samfiru. “The company waved a probation clause and said he wasn’t owed a dime. But the clause was a mess — completely unenforceable. Not only did we prove he was entitled to severance, but because he’d been recruited, his package was worth even more. Instead of walking away empty-handed, he walked away with months of pay.”

Can employers extend probation?

Some employers attempt to extend probation periods beyond the three-month limit. While contracts may include language related to an “extended probation” period, it doesn’t change the fact that after three months, you’re protected under Ontario law. Additionally, probation can only apply at the very start of a job – an employer can’t suddenly decide to put you “on probation” after you’ve already begun working.

As Samfiru notes, “After three months, probation is over, no matter what your contract says. At that point, your employer must provide proper severance pay if they let you go. And if they try to sneak in probation later on, that’s not legal either. Attempts like these often lead to wrongful dismissal claims.”

WATCH: 5 common questions about probation periods

Probation and severance pay

The key question for most employees is, “Do I get severance if I’m fired during probation?”

Here’s the answer:

If your contract has a valid probation clause and you’re let go within the first three months, you generally aren’t owed severance. However, most clauses are improperly drafted.
If your contract does not include a probation clause, you’re entitled to severance, even during the first few weeks of employment.
Severance in Ontario can be significant – up to 24 months’ pay depending on factors like your age, position, length of service, and how long it may take to secure comparable work.

To learn more about your rights as a non-unionized worker, check out the Pocket Employment Lawyer. Explore your options and learn about related issues like severance pay and probationary periods.

What happens when probation ends?

If you remain employed for longer than three months, you’re no longer considered to be on probation. You become a regular employee and are entitled to full severance protections under Ontario law.

“Probation is a one-time deal. It only applies when you start a job,” says Samfiru. “An employer can’t hit reset and put you back on probation. If they want to end your role later, they have to follow proper termination and severance rules.”

Probation in Ontario is not a default condition of employment. It only applies if you’ve signed a contract with a valid probation clause. Even then, your rights are strongly protected by law.

For employees, this means you may have more severance entitlements than you think. For employers, it means probation periods must be handled carefully and in line with the Employment Standards Act.

If you’ve been let go during probation, or your employer is unfairly extending probation, contact Samfiru Tumarkin LLP for advice. Their team can explain your rights and ensure you get the compensation you’re owed.

Recognized as Canada’s leading employment law firm, Samfiru Tumarkin LLP represents non-unionized employees in Ontario, Alberta and B.C., and handles denied long-term disability benefits in all provinces (excluding Quebec).

Discover your rights by watching Lior Samfiru on Ask a Lawyer every Monday and Wednesday at 9:00 p.m. on CP24.