Many employers assume that a new hire on a ‘probationary period’ can be let go at any time, for any reason, without notice or cost. A recent Ontario Small Claims Court decision, Yadav v. Ahangama, confirms that this assumption is wrong, and it is a mistake that can be expensive. For any employer building hiring practices, or any employee who has just been let go early in a new job, the case is a useful reminder of what probationary status actually means at law.
Background
Ashish Yadav was hired as a law clerk by Ahangama Law Professional Corporation under a one-page offer letter that made his position ‘conditional on the successful completion of an initial probationary period of three months, during which time your performance will be reviewed.’ He started work on February 1, 2021. Ten days later, he was dismissed without cause, without notice, and without any payment in lieu of notice.
The firm’s position was straightforward: because Mr. Yadav was still within his probationary period, it could end his employment at any time, for any reason, at no cost. The firm’s own principal candidly acknowledged at trial that this was his understanding of the law. He was wrong.
| “Unless the employment contract specifies otherwise, probationary status enables an employee to be terminated without notice during the probationary period if the employer makes a good faith determination that the employee is unsuitable for permanent employment, and provided the probationary employee was given a fair and reasonable opportunity to demonstrate their suitability.”
– Deputy Judge Sharp, quoting Nagribianko v. Select Wine Merchants Ltd., 2017 ONCA 540 |
The Issues
| ISSUE 1
Was the employer entitled to dismiss a probationary employee without notice after only 10 days? |
ISSUE 2
If not, what notice period applies to a short-service, probationary employee? |
ISSUE 3
Was the employee entitled to damages for mental distress or a breach of the Human Rights Code? |
The Court’s Analysis
Probation is not a licence to terminate at will
Courts have long held that a probationary clause does not cancel out the right to reasonable notice. It only changes what the employer must show to skip that notice: a good faith, good-process decision that the employee is not working out, made after a real chance to prove themselves. Mr. Yadav received no feedback, minimal training, and no warning his job was at risk. When he was let go, the stated reason (needing someone more senior) had nothing to do with any documented performance issue. The Court found he was never given a fair opportunity to succeed, so the firm could not rely on his probationary status to avoid notice.
A short tenure does not mean a short notice period
The Court then had to decide how much notice was owed, and the answer is counterintuitive: a very short job can actually justify longer notice, not shorter. An employee let go within days of starting has usually turned down other opportunities to take the job, and now has to explain a near-instant departure to the next employer. Weighing comparable cases, the Court set Mr. Yadav’s notice at 3 months. It’s also worth noting the Court called out defence counsel for submitting only one page of a five-page ‘comparable cases’ document, one that, in full, actually supported a much higher award.
No award for mental distress or punitive damages
Mr. Yadav also sought damages for emotional distress and punitive conduct. Those claims were dismissed for lack of medical evidence and lack of any bad faith conduct beyond the mistaken belief about probation itself. His award was limited to 3 months’ pay, unpaid wages for days worked, and pre-judgment interest.
Key Takeaways
| For Employers | For Employees |
| A probationary clause is not a waiver of notice.
Absent a properly drafted termination clause that displaces the common law, a probationary period only changes the standard for justifying an early dismissal without notice. It does not eliminate the obligation to provide reasonable notice or pay in lieu. Document the review process you promised. If an offer letter says performance will be reviewed during probation, be prepared to show that it actually was. Give feedback, keep records, and be able to point to a genuine assessment before ending the relationship. Short service can mean a longer notice period, not a shorter one. Courts recognize that a dismissal within days or weeks of hiring can be harder to explain to future employers than a longer tenure. Do not assume a brief employment relationship caps your exposure. Get advice before relying on ‘probationary’ language. A written employment agreement, properly drafted by an employment lawyer, can define what happens on termination during probation. Relying on the word ‘probationary’ alone, without a clear contractual term, is a common and costly mistake. |
Being on probation does not strip you of your rights.
If you are dismissed during a probationary period without any real chance to demonstrate your suitability for the role, you may still be entitled to common law notice or pay in lieu, regardless of what your offer letter implies. Lack of feedback matters. If your employer promised an ongoing performance review and never gave you any indication your job was at risk, that absence of feedback can support a finding that you were not given a fair opportunity to succeed. A short job does not mean a small claim. Courts have awarded proportionally longer notice periods to employees dismissed very early in their tenure, recognizing the added difficulty of explaining a brief stint to the next employer. Speak with a wrongful dismissal lawyer before accepting a token payment. Employers sometimes offer only the statutory minimum, or less, believing probation removes any further obligation. Before accepting a small payout, get advice on what you may actually be owed. |
Why This Decision Matters
Probationary periods remain a standard feature of Ontario employment offers, and this decision is a clear signal that the label does far less legal work than most employers assume. The test set out in Nagribianko, Ritchie, and Mison, and applied again here, requires more than a probationary clause on paper. It requires a genuine, documented, good faith assessment of suitability, delivered after a fair opportunity to succeed. For employees, the case is a reminder that a dismissal in the first days or weeks of a job is not necessarily a dead end, and that the common law’s protections apply well before any probationary period ends.
Whether you are an employer building compliant offer letters and termination provisions, or an employee who has just been let go early in a new role, this is precisely the kind of fact pattern where early legal advice changes the outcome.
| Talk to an employment lawyer
Rozek & Co is a Toronto employment lawyer serving employers and employees across Ontario in wrongful dismissal, probationary termination, and employment contract matters. If you are drafting hiring documents or have just been dismissed, contact our office for a direct, practical assessment of where you stand. |
