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In Ontario, the letter of the law says you can be fired during probation for any or no reason (modulo human rights legislation), but in practice an employer can

In Ontario, the letter of the law says you can be fired during probation for any or no reason (modulo human rights legislation), but in practice an employer can still be sued for wrongful dismissal if the employer terminates an employee without demonstrating cause. It’s best to have experienced employment law advice when devising any scheme around using probation as a kind of hiring scheme, as opposed to as a last resort if things go very badly. I will not give legal advice, but for example I would be very careful before implementing a “Survivor: Tech Island” scheme where the company hires more people than it genuinely expects to keep following their probationary period. I have been told that if I hire someone I think is questionable with the thought that “if it doesn’t work out, we’ll just let them go during probation,” that can backfire as I make a conscious choice to hire them despite my reservations. Again, INAL, but I would tread carefully around using probation for winnowing candidates out.

twic 6y ago
IANAL either, but my understanding is that wrongful dismissal is breach of contract, whereas unfair dismissal is illegal [1]. So if you write this procedure into your contracts, and then follow it, it's not wrongful dismissal. To be unfair, for a probation period of less than two years, it would have to be meet one of the criteria for being "automatically unfair", which are basically about the employer doing illegal things, or be discrimination [2]. I would also be very careful before implementing a scheme like this - as you say, you would want to have it thoroughly checked by legal and HR experts. [1] https://my.ucu.org.uk/app/answers/detail/a_id/280/~/unfair-dismissal-and-wrongful-dismissal https://my.ucu.org.uk/app/answers/detail/a_id/280/~/unfair-d... [2] https://www.citizensadvice.org.uk/work/leaving-a-job/dismissal/check-if-your-dismissal-is-fair/#h-3-check-you-ve-been-dismissed-for-a-reason-that-s-definitely-unfair https://www.citizensadvice.org.uk/work/leaving-a-job/dismiss...
- braythwayt 6y ago
  I think you’re right about the distinction between wrongful and unfair dismissal, but if I understand Ontario common law correctly, even in cases where the dismissal during probation is not illegal, and even when you have it in writing that the candidate can be dismissed for any or no reason, you may find yourself on the wrong side of a wrongful dismissal judgment and forced to pony up money. It’s probably easier to structure such a thing as contract-to-permanent, and I suspect this is why there are a lot of such contracts around. Or at least, I have seen a number of such things in Ontario. And now the counter-example: My brother is the principal Tuba with the National Arts Centre Orchestra. He had to win multiple auditions, resulting in two finalists being selected. Each of them then went and rehearsed and played a concert with the orchestra, they spent some weeks on contract, expenses and compensation paid. They selected my brother. Full-time job? Nope! He then went on probation, either for a full year or two, I can’t remember. I’m sure he’d laugh at my worrying about 90 day probationary periods.

twic 6y ago

IANAL either, but my understanding is that wrongful dismissal is breach of contract, whereas unfair dismissal is illegal [1]. So if you write this procedure into your contracts, and then follow it, it's not wrongful dismissal. To be unfair, for a probation period of less than two years, it would have to be meet one of the criteria for being "automatically unfair", which are basically about the employer doing illegal things, or be discrimination [2]. I would also be very careful before implementing a scheme like this - as you say, you would want to have it thoroughly checked by legal and HR experts. [1] https://my.ucu.org.uk/app/answers/detail/a_id/280/~/unfair-dismissal-and-wrongful-dismissal https://my.ucu.org.uk/app/answers/detail/a_id/280/~/unfair-d... [2] https://www.citizensadvice.org.uk/work/leaving-a-job/dismissal/check-if-your-dismissal-is-fair/#h-3-check-you-ve-been-dismissed-for-a-reason-that-s-definitely-unfair https://www.citizensadvice.org.uk/work/leaving-a-job/dismiss...

braythwayt 6y ago
I think you’re right about the distinction between wrongful and unfair dismissal, but if I understand Ontario common law correctly, even in cases where the dismissal during probation is not illegal, and even when you have it in writing that the candidate can be dismissed for any or no reason, you may find yourself on the wrong side of a wrongful dismissal judgment and forced to pony up money. It’s probably easier to structure such a thing as contract-to-permanent, and I suspect this is why there are a lot of such contracts around. Or at least, I have seen a number of such things in Ontario. And now the counter-example: My brother is the principal Tuba with the National Arts Centre Orchestra. He had to win multiple auditions, resulting in two finalists being selected. Each of them then went and rehearsed and played a concert with the orchestra, they spent some weeks on contract, expenses and compensation paid. They selected my brother. Full-time job? Nope! He then went on probation, either for a full year or two, I can’t remember. I’m sure he’d laugh at my worrying about 90 day probationary periods.