Terminated During Probation in Ontario employees are often surprised to learn that losing a job during a probationary period does not mean they have no rights. Being “on probation” does not automatically disqualify you from Employment Insurance (EI) benefits or remove other legal protections available under Ontario employment law.
In Ontario, probation is often misunderstood. It is important to separate what “probation” means under your contract from what it means under Ontario’s Employment Standards Act, 2000 (ESA) human rights laws, and federal EI rules.
This article explains what probation really means, whether you qualify for EI after termination, and when you may still have a legal claim despite being let go early in your employment.
TL;DR: Can you get EI if you are fired during probation in Ontario?
Yes, you can qualify for Employment Insurance (EI) if you are terminated during probation, as long as you did not lose your job due to misconduct and you have enough insurable hours.
Key points:
- Ontario law still protects you from discrimination or wrongful dismissal
- Probation does not affect EI eligibility on its own
- You must have enough insurable hours to qualify
- Termination for “poor fit” or performance usually qualifies for EI
- Misconduct or quitting without just cause can disqualify you
Even during probation, employees may have legal rights depending on how the termination occurred.
Can you get EI if you are fired during probation in Ontario?
Yes, you can qualify for Employment Insurance (EI) if you are terminated during probation, as long as you did not lose your job due to misconduct and you have enough insurable hours.
Key points:
- Probation does not affect EI eligibility on its own
- You must have enough insurable hours to qualify
- Termination for “poor fit” or performance usually qualifies for EI
- Misconduct or quitting without just cause can disqualify you
- Ontario law still protects you from discrimination or wrongful dismissal
Even during probation, employees may have legal rights depending on how the termination occurred.
What does “probation” mean in Ontario?
In Ontario, a probationary period is often described in the employment contract as a trial period at the start of employment, frequently up to three months, where the employer decides if you are a good fit.
Contractual probation gives the employer a bit more flexibility in assessing suitability, but it does not erase your basic statutory and human rights protections. Even during a contractual probationary period, an employer cannot terminate you for discriminatory reasons or in reprisal for asserting your statutory rights.
ESA rules: the three-month threshold for termination pay
Separately from the contract, the ESA itself contains a three-month threshold for termination pay that is often referred to as a “probationary period.”
Under the ESA:
- an employee who has been employed for less than three months is not entitled to statutory notice of dismissal if the employer ends the employment.
- Once you pass the three-month mark, you become entitled to at least the ESA minimum notice or termination pay if you are dismissed without cause.
That ESA three-month rule does not depend on whether your contract uses the word “probation” at all. You can have no written probation clause and still have no entitlement to ESA notice if you are let go with the first three months of your employment.
Conversely, you might have a six-month contractual probation clause even though your ESA notice rights begin after three months.
Does probation affect EI eligibility?
Employment Insurance is a federal program with its own criteria. Being on probation does not in itself disqualify you from EI.
Service Canada focuses on:
- Whether you have enough insurable hours
- Why your employment ended
To qualify for regular EI, you must:
- Have lost your job through no fault of your own, such as being dismissed without cause for not being a good fit or a restructuring.
- You must have accumulated the required number of insurable hours in the 52 weeks before your claim or since your last EI claim.
The hours threshold varies with the regional unemployment rate, but there is a minimum, and if all you have is a very short probationary job with no other recent work, you may not meet the hours requirement.
What counts as misconduct for EI?
Misconduct is more than ordinary poor performance or not being a good fit during probation. It usually involves:
- Wilful or reckless behaviour
- Repeated violation of clear rules after warnings
- Conduct the employe knew could lead to termination like theft or serious insubordination
When EI may be denied?
You can be denied EI if Service Canada concludes that you:
- Were terminated for misconduct
- Voluntarily left your job without just cause
A common problem arises when someone quits a secure job to take a new position, is then dismissed during probation at the new workplace, and applies for EI.
Depending on the facts, Service Canada may treat leaving the first job as a voluntary quit without just cause and may not credit those earlier hours, which can leave the person short of the necessary insurable hours.
Steps to take if you are terminated during probation
If you are terminated during probation, steps to take include:
- Apply for EI as soon as possible. Allow Service Canada to assess your eligibility.
- Do not assume you are disqualified just because the employer used the word probation.
- Collect all relevant documents
- including your employment contract, offer letter, any policy documents, your Record of Employment, and any emails or letters explaining the reasons for the termination.
- Consider speaking with an Ontario employment lawyer
- Review whether you may have claims for severance, human rights remedies, or other damages despite being labelled probationary.
- Review whether you may have claims for severance, human rights remedies, or other damages despite being labelled probationary.
Do you have legal rights during probation?
Yes. Even during probation, employees are protected under:
- The ESA
- Human rights legislation
- Federal EI rules
You may still have a claim if:
- The termination was discriminatory
- You were terminated for asserting workplace rights
- The employment contract is unenforceable or unclear
Frequently asked questions
Can I get EI if I was fired during probation in Ontario?
Yes. You may qualify for EI if you were terminated without misconduct and have enough insurable hours.
Does probation mean I have no rights?
No. Employees on probation are still protected by employment standards and human rights laws.
Do employers have to give notice during probation?
Generally, no statutory notice is required if you are terminated within the first three months. After that, minimum notice applies.
What is considered misconduct for EI?
Misconduct involves serious or wilful behaviour, such as theft or repeated rule violations, not simply poor performance.
What happens if I quit a job and then get fired during probation at a new job?
You may have difficulty qualifying for EI if your initial resignation is considered a voluntary quit without just cause.
Should I apply for EI even if I was on probation?
Yes. Always apply and let Service Canada assess your eligibility.
Can I sue if I was fired during probation?
In some cases, yes, especially if the termination involved discrimination, bad faith, or an unenforceable contract.
Know your rights after termination
Being terminated during probation can leave you feeling like you have no recourse but that is often not the case. Your eligibility for EI and your legal rights depend on the specific circumstances of your termination, not just the label of “probation.”
If you are unsure where you stand, getting clear advice early can make a meaningful difference in your outcome.
Whitten & Lublin can help you understand your options and take the next step with confidence. Contact us online or by phone at (416) 640-2667 today.
