The question
I started a new job recently that had a three-month probation period. My employer extended the probation by another three months because he said I wasn’t performing as he expected. He now wants to extend the probation again by another three months. Is this legal? I feel like he’s taking advantage of me, even though I’ve proved myself.
The first answer
Balraj K. Dosanjh, labour and employment lawyer, Cavalluzzo LLP, Toronto
A probationary period is a period in which an employer can terminate an employee without providing any notice or pay in lieu of notice. Whether your employment is subject to a probationary period will depend on the terms of your employment contract. In any event, your employment contract cannot provide less than your statutory rights under the applicable employment legislation.
In Ontario, for example, though the Employment Standards Act (ESA) does not establish a probationary period for new employees, the act stipulates that employers must provide notice or pay in lieu of notice for employees with more than three months of service. Most jurisdictions in Canada have a similar requirement for notice after three months of service.
Therefore, in Ontario, even if your employment contract provided for a probationary period longer than three months, your employer must provide you with notice or pay in lieu of notice after three months of continuous service unless it is a termination for wilful misconduct.
Depending on the terms of your employment contract, you may also be owed reasonable notice, which tends to be longer than the minimum notice requirements under the ESA. Thus, if by extending your probationary period, your employer is seeking to maintain its right to terminate your employment without any notice, then the employer cannot extend that period beyond three months without running afoul of the notice requirements under the ESA.
If there are no notice concerns with the extension, then your employer’s rights to extend the probationary period will depend on the specific terms of your original employment contract and if it specifically contemplates such extensions.
The second answer
Cynthia Lazar, lawyer and workplace investigator, Taylor McCaffrey LLP, Winnipeg
The purpose of probation is to allow an employer the opportunity to assess a newly hired employee’s suitability for the job, without being obligated to provide notice of termination or pay instead of notice if the employee proves to be unsuitable.
The length of probation varies by jurisdiction and is contained in each province or territory’s employment standards legislation, or the Canada Labour Code for federally regulated employees. For example, in Manitoba, notice is required from the 30th day of employment, and in PEI it is owed after six months. Most jurisdictions provide for a three-month or 90-day period.
If you work past the end of the statutory probationary period, then you will be owed notice or pay instead of notice upon dismissal. Therefore, if you are in a province that provides for notice of termination or pay instead after three months of employment (such as Ontario or B.C.), you are entitled to that notice after three months, regardless of what your employer says about probation.
So, can your employer extend your probation past the end of the statutory probationary period? You may be called “probationary” by the employer, but you will have to be treated the same as a permanent employee for the purposes of dismissal.
If you are in a unionized workplace, consult your union or read your collective agreement, as the rules around probation may be different than the statutory minimum. Many provinces allow for a longer probationary period when it is specified in a collective agreement.
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Andrea Yu