Does the Ontario Human Rights Code apply to employees and employers during a probationary period?

Employment contracts in Ontario typically include a clause about a probation period lasting three months. Such a clause explains that the employer does not owe the employee any notice of termination or pay in lieu of notice before 90 days. In general, under the Ontario Employment Standards Act employers do not have an obligation to provide notice or pay in lieu of notice before 90 days of employment. This provincial legislation sets minimum standards of employment law, such as 1 week of notice or pay in lieu of notice for employees who worked between 3 to 12 months for an employer.

The probationary period of a contract may allow an employer to terminate a new employee without notice and without pay in lieu, but it does not waive responsibilities set out by the Ontario Human Rights Code. In Brillinger and Edery, 2016 HRTO 1450, an applicant was fired from her job during a probationary period after an absence caused by her disability. During her third month of employment she had suffered a serious concussion. The Tribunal found that her disability was a factor in the employer’s decision to terminate her, and ordered the employer to pay her $10,000.00 as compensation for damage to dignity, feelings, and self-respect.

Lane v ADGA Group Consultants Inc., 2007 HRTO 34 is another case about a new employee under probation. He was fired after only 8 days of work for reasons related to a mental disability, so the Tribunal ordered the employer to pay the worker $35,000.00 for discrimination, $10,000.00 for causing mental anguish, and $34,278.75 in lost wages. Plus, the employer had to hire training for all its employees, supervisors, and managers, and develop and post a written anti-discrimination policy.

In such cases, probation was not a defence to the claim of discrimination and the Tribunal ordered remedies requested by the applicants.