It is quite common for new employees to undergo a 3-month
probationary period when beginning new employment. But when an
employer terminates an employee within the 3-month probation
period, is the employee entitled to any termination pay?
Yes. While the employee may not be
entitled to reasonable notice or termination pay in lieu of notice
under Ontario's Employment Standards Act
("ESA"), the employee is entitled under common
law.
In the recent Small Claims Court
decision of Deacon v. Moxey, 2013 CarswellOnt 5354, Deputy
Justice J. Sebastion Winny decided this issue. 46 year old Mr.
Deacon was fired by his employer from his sales position just 2
weeks after commencing employment. The employer defended Mr.
Deacon's claim for wrongful dismissal claiming an entitlement
to dismiss Mr. Deacon without cause during a probationary period of
3 months. The employer argued that section 54 of the ESA provides
that an employer has a general right to terminate an
