Can You Terminate an Employee During Probation in Canada?
Yes, you can terminate an employee during their probationary period in Canada. But being “on probation” does not mean an employer can automatically terminate someone without notice, pay or other legal considerations.
This is one of the most common misconceptions we hear from employers.
Someone isn't working out. They're only two months into the job. Their employment agreement says they have a three-month probationary period.
So the assumption is:
"They're still on probation. We can just let them go."
Sometimes the termination may be relatively straightforward.
But a probationary period isn't a free pass, and the rules aren't quite as simple as “three months means no obligations.”
Here's what Canadian employers should know.
What Is a Probationary Period
A probationary period is generally a defined period at the beginning of employment when an employer assesses whether a new employee is suitable for the role and organization.
It gives both sides an opportunity to determine whether the employment relationship is working.
Employers may use this time to assess things like:
whether the employee can perform the work;
whether they have the skills represented during hiring;
reliability and attendance;
how they respond to feedback;
their ability to learn the role; and
overall suitability for the position.
Probationary periods are commonly three months, but employers sometimes use longer periods, such as six months.
The important part is that your company's probationary period and the minimum termination requirements under employment standards legislation are not necessarily the same thing.
Is There an Automatic Three-Month Probationary Period in Canada?
No.
This is where employers often mix up two different concepts.
Your employment agreement may establish a probationary period.
Separately, provincial employment standards legislation establishes when an employee becomes entitled to minimum termination notice or pay.
Those are not interchangeable.
For example, Alberta generally does not require statutory termination notice for an employee who has been employed for 90 days or less. In Ontario, employees generally become entitled to statutory notice or termination pay once they have been continuously employed for three months. B.C. similarly establishes compensation or notice requirements after three consecutive months. Manitoba, however, generally requires notice once an employee has worked more than 29 days.
So simply putting “six-month probationary period” in your handbook doesn't mean you can terminate an employee five months into employment without considering termination entitlements.
In fact, Manitoba's Employment Standards guidance specifically warns employers against relying on their own probationary period instead of the statutory termination rules.
Can You Fire Someone During Their Probationary Period?
Yes.
An employer can decide that a new employee isn't suitable for the position and end the employment relationship.
But before doing so, there are a few separate questions to consider:
Is there a valid probationary provision in the employment agreement?
How long has the employee actually been employed?
What does the applicable provincial or federal employment legislation require?
Does the employment agreement address termination entitlements?
Why is the employee being terminated?
Are there any human rights, accommodation, leave or other protected-right considerations?
Being on probation doesn't eliminate those questions.
Do You Have to Give a Probationary Employee Termination Pay?
Possibly.
It depends on the jurisdiction, how long the employee has worked, the employment agreement and the circumstances.
For example:
Province | When statutory termination notice/pay generally begins |
Alberta | More than 90 days |
British Columbia | After 3 consecutive months |
Ontario | After 3 months of continuous employment |
Manitoba | After 29 days |
These are employment standards minimums, not a complete assessment of everything an employee could potentially be entitled to when employment ends. Employment contracts and common-law principles can also matter, depending on the circumstances and jurisdiction.
That's why employers shouldn't assume:
Probation = no termination pay.
The correct answer depends on the employee's situation.
What If Our Probationary Period Is Six Months?
You can establish a longer period for assessing an employee's suitability, subject to applicable law.
But extending your internal probationary period doesn't automatically extend the period during which statutory termination notice isn't required.
Imagine an employer has a six-month probationary period and decides at month five that the employee isn't working out.
The employee may still be considered probationary under the employer's policy or employment agreement, but they may already have statutory termination entitlements.
Those are two separate issues.
This is one reason employment agreements should be drafted carefully rather than relying on a generic statement such as:
“All employees are subject to a six-month probationary period.”
Do You Need a Reason to Terminate Someone During Probation?
Employers should have a legitimate, non-prohibited reason for ending the employment relationship and should understand the legal basis on which the termination is being made.
Maybe the employee doesn't have the skills required for the position.
Maybe there are significant performance concerns.
Maybe reliability has become an issue.
Or perhaps you've reasonably concluded that the employee isn't suitable for the role.
But probation doesn't override other workplace protections.
For example, terminating someone because of a protected human rights characteristic, because they require accommodation, because they took a protected leave, or because they exercised an employment standards right can create a very different issue.
Ontario's Employment Standards guidance, for example, specifically notes that an employer cannot terminate or otherwise penalize an employee for exercising rights protected by the legislation.
Do You Need to Give a Probationary Employee Warnings First?
Not every unsuccessful probationary period needs to become a formal performance-management process.
If someone clearly isn't suitable for the role early in employment, it may not make sense to put them through a lengthy Performance Improvement Plan simply so you can eventually terminate them.
But that doesn't mean managers should ignore problems until the last day of probation.
If the issue is something the employee could reasonably correct, tell them.
If they're misunderstanding expectations, clarify them.
If they need reasonable training to do the job, provide it.
If you're seeing concerns, document them.
And if you're genuinely assessing someone's suitability during probation, actually assess it.
A calendar reminder that pops up two days before the end of probation asking, “Are we keeping them?” isn't much of a probationary process.
Don't Wait Until the Last Day of Probation
This is one of the easiest problems for employers to avoid.
If you use probationary periods, build checkpoints into them.
For a three-month probationary period, that might mean checking in around:
30 days: How is onboarding going? Are expectations clear?
60 days: Is the employee progressing as expected? Are there concerns that need to be addressed?
Before the end of probation: Is the employee demonstrating the skills and suitability required for the role?
That gives managers time to address problems rather than discovering at the last minute that nobody has actually evaluated the employee.
It also creates a much better employee experience.
Passing probation shouldn't happen accidentally.
Can You Extend an Employee's Probationary Period?
This is another area where employers should be careful.
An employer might want more time because an employee has been away, hasn't had enough opportunity to perform certain duties, or has shown improvement but still needs further assessment.
Whether a probationary period can or should be extended depends on the employment agreement, applicable legislation and circumstances.
Most importantly, extending the probationary period does not necessarily postpone statutory termination entitlements.
If you're considering an extension, don't assume that simply getting the employee to sign a form saying “probation extended another three months” resets the clock.
It doesn't necessarily work that way.
What If the Employee Just Isn't a Good Fit?
Be careful with the phrase “not a good fit.”
Sometimes it means:
They aren't demonstrating the skills or behaviours reasonably required for the role.
That's something an employer can articulate.
But sometimes nobody can explain what “fit” actually means.
That's where the phrase becomes problematic.
Instead, identify the actual concern.
Are they unable to perform an essential part of the role?
Are they repeatedly missing expectations?
Are there reliability issues?
Is there a behavioural concern?
Did the position turn out to require different skills than anticipated?
Specific reasons help employers make better decisions and reduce the risk of subjective or inconsistent treatment.
Before Terminating an Employee During Probation
Before ending the employment relationship, check a few things:
Review the employment agreement and probationary language.
Confirm the employee's exact start date.
Check the employment standards requirements in the applicable jurisdiction.
Identify the actual reason for termination.
Review any performance or suitability concerns that have been documented.
Consider whether disability, accommodation, protected leave or another human rights issue could be involved.
Determine whether notice, termination pay or other entitlements may be owed.
Get HR or legal advice if the situation isn't straightforward.
The fact that someone is new doesn't mean these considerations disappear.
The Bottom Line
Yes, Canadian employers can terminate employees during probation.
But there is no universal rule that says every employee in Canada can simply be terminated without notice or pay during their first three months.
Your organization's probationary period, provincial employment standards requirements and the employee's termination entitlements are different considerations.
Use probation for what it's actually intended to do: assess whether the employment relationship is working.
Set expectations early. Check in during the probationary period. Address concerns when they arise. And if you decide the employee isn't suitable for the role, make sure you understand your obligations before ending their employment.
Need Help With a Probationary Employee?
A&A supports employers with performance concerns, probationary reviews, difficult employee situations and terminations. We can help you assess the situation and determine a practical next step.
This article provides general information only and is not legal advice. Employment standards, common-law principles and termination requirements vary across Canada and individual circumstances matter. Employers should obtain legal advice where appropriate.
