Short-Service Employees in Ontario: Why Less Time Does Not Mean Less Risk for Employers

One of the most persistent and expensive misconceptions in Ontario employment law is that terminating a short-service employee carries minimal legal risk. It does not. Ontario employment law protects employees from their first day of work. Human rights obligations, health and safety duties, and the risk of common law notice exposure for employees without valid termination clauses all apply regardless of how long the person has been employed. Understanding where the real risks lie before you terminate a new or probationary employee is far less costly than managing a claim after the fact.

Are you about to terminate a short-service or probationary employee in Ontario?

ESA compliance is only the starting point. Human rights, common law notice exposure, and invalid termination clauses can all create significant liability even for employees who have been with you for weeks. Get advice before you act.

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ESA notice for short-service employees: what the minimums actually say

Under Ontario's Employment Standards Act, 2000, the statutory notice requirements for short-service employees are as follows.

Length of service	ESA minimum notice
Less than 3 months	No statutory notice required
3 months to less than 1 year	1 week

These minimums reflect the statutory floor only. They say nothing about common law reasonable notice, human rights obligations, or the enforceability of your termination clause. ESA compliance does not protect you from a wrongful dismissal claim unless your employment contract contains a valid, enforceable termination clause that clearly limits entitlement to those statutory amounts.

Five areas of legal risk for short-service terminations in Ontario

Risk 1

Common law notice exposure without a valid termination clause

Where your employment contract has no termination clause, or where the clause is defective under the current standard of Ontario case law, common law reasonable notice applies even for employees with only a few months of service. Courts have awarded months of notice to short-service employees where seniority, inducement, or role warranted it. The absence of a valid clause is the most common source of unexpected liability in short-service terminations.

Risk 2

Human rights claims from day one

Ontario's Human Rights Code applies from the first day of employment. A termination that coincides with or follows a protected ground event a disability disclosure, a pregnancy announcement, a human rights complaint creates a serious human rights risk regardless of how short the service has been. "Not a good fit" framing does not provide a defence where a protected ground is in play. Human rights tribunals regularly award injury-to-dignity damages for terminations that lasted only weeks.

Risk 3

Probationary period misuse

Probation is not a statutory right in Ontario it exists only where clearly established by contract. Even where a valid probationary clause exists, the employer must assess the employee's suitability honestly, in good faith, and without discrimination. Using probation as a liability shield rather than a genuine assessment mechanism increases, not reduces, legal risk. A poorly documented probationary dismissal is regularly treated as a wrongful dismissal.

Risk 4

Health and safety obligations for new workers

Under Ontario's Occupational Health and Safety Act, employers owe full safety duties to short-service and new workers. New workers are statistically more likely to be injured and more dependent on supervision and training. Failure to provide proper instruction, supervision, and hazard identification before work begins exposes employers to regulatory penalties and WSIB liability regardless of how briefly the employee has been employed.

Risk 5

Inducement increasing the notice period

Where you recruited an employee away from secure employment to join your organization, courts treat that inducement as a factor that can significantly increase reasonable notice even where service is short. An employee who left a stable long-term role at your invitation and was terminated months later may be entitled to substantially more notice than their service period alone would suggest.

The most common failure point in short-service terminations is not the ESA compliance it is the termination clause. Many Ontario employment contracts contain clauses that have been struck down under the evolving standard of post-Waksdale and post-Dufault case law. Where the clause is void, common law notice applies regardless of how briefly the employee worked for you. If your employment contracts were drafted more than a few years ago or use a standard template, have them reviewed now rather than at the time of the next termination.

What Ontario courts have said about short-service notice

Minott v. O'Shanter Development Company Ltd. (1999 ONCA)

Short service does not bar meaningful notice awards

The Ontario Court of Appeal confirmed that short length of service does not automatically translate to minimal notice entitlement. Courts assess all Bardal factors together. A short-service employee in a senior role or one who was specifically recruited may receive notice well beyond what the service period alone would suggest.

Love v. Acuity Investment Management Inc. (2011 ONSC)

Role and inducement can drive notice significantly higher

A senior employee with just over two years of service received 9 months of reasonable notice. The Court emphasized that the character of the employment and the circumstances of the hire including whether the employee was specifically recruited can override the relatively short service period in the notice calculation.

Nagribianko v. Select Wine Merchants Ltd. (2017 ONCA)

Recruitment and expectations increase notice even where service is brief

The Court of Appeal confirmed that where an employer actively recruits an employee and creates reasonable expectations about the role and its permanence, those circumstances increase the reasonable notice period even where the ultimate employment is short. Inducement is not a minor factor it can materially change the notice calculation.

Are you terminating a short-service or probationary employee in Ontario?

ESA compliance is the starting point, not the finish line. Human rights obligations, common law notice exposure, and termination clause enforceability all apply regardless of tenure. Our team advises employers on employee terminations across Ontario. Get advice before you act.

Get Legal Advice Or call us: 1-800-771-7882

Practical steps for Ontario employers managing short-service terminations

Have all employment contracts reviewed against the current Ontario standard post-Waksdale and post-Dufault case law has raised the bar for enforceable termination clauses significantly and many older or template clauses are now void

Before terminating a probationary employee, document the performance assessment process courts require good faith evaluation, not just a decision not to continue

Assess whether any protected ground is in play before terminating a short-service employee a coinciding disability disclosure, pregnancy, or human rights complaint creates serious exposure regardless of service length

Ensure full safety training and orientation are completed before any new worker begins work OHSA obligations apply from day one and new worker injuries are a known WSIB and Ministry of Labour focus

Where the employee was recruited away from stable employment, treat the notice calculation with the same care you would for a long-service employee inducement is a material factor that courts take seriously

Get legal advice before terminating any employee where no valid termination clause exists, where a protected ground may be involved, or where the employee was specifically recruited the cost of advice is minimal compared to the cost of a claim

Preparing to terminate a short-service or probationary employee in Ontario?

Our team advises employers across Ontario on employee terminations, probationary dismissals, and employment contract compliance. Contact us for a confidential consultation before you act.

Call us at 1-800-771-7882 or fill out the form below and we will be in touch.

The article in this client update provides general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Achkar Law Professional Corporation and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Achkar Law Professional Corporation. ©

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