A probationary term is not presumed and must be agreed between the parties. Although the Ontario Employment Standards Act allows for no notice within the first three months of employment, the employment relationship requires an agreement for any probationary period.

The Ontario Court of Appeal in Shah v Xerox found that the employer’s conduct in assessing the performance of the plaintiff, including the imposition of a probationary term, allowed for a finding of constructive dismissal. There is also a Divisional Court decision ¹ in which the court concluded that "the employee plaintiff would have been entitled to treat the imposition of probationary status as a constructive dismissal". ²

For these reasons, the agreement must set out a probationary period and the employer’s right to use it as a performance monitoring technique.

As a parenthetical point, the Ontario Court of Appeal contemplated, yet discarded the concept that it would be fair to imply into a promotion that it would be subject to an implied term of probation. This would be a difficult proposition to accept as prior decisions have seen a probationary term as grounds for a constructive dismissal.

A policy manual which states that employment will be probationary will likely not be enforceable unless it formed part of the original contract of hiring. This issue is reviewed here.