Can an employer impose a longer probationary period than 3 months?

| October 17th, 2017 | No Comments »

It is common knowledge for employment probationary periods to last for three months from the commencement of the employment relation. Under minimal standards employment law (for example, the Employment Standards Act in Ontario), employers do not owe any notice or pay in lieu before 90 days. This is often believed to constitute the probationary period. Minimal standards legislation, however, does not contain any provisions on probationary periods, and as such, they may extend past 3 months.

Employers that implement probationary periods past 3 months must consider additional factors. If the probationary period extends past three months, employers will at the least owe an employee a week of notice or pay in lieu for termination of the employment contract. In the event that no termination clause is agreed upon or the clause violates minimum standards law, ‘reasonable’ notice established through common law will apply, which may entitle the employee to considerable more notice or pay in lieu. Employers that wish to limit the termination pay to the legal minimum of 1 week between 3 -12 months of employment would require a termination clause that complies with minimal employment legislation.

It is also advisable to include the probationary period within the employment contract. This way it can be shown that both parties contemplated an extended probation period and that it was mutually agreed upon. Otherwise, an extended probationary period may constitute a breach of contract by the employer.

Always seek services from an employment lawyer when seeking to implement the aforementioned clauses and limitations.