Termination

[Doaa Elrayes]

#95326

Forum: Private

We have an employee who recently completed their 3-month probation period. They were originally hired by a manager who left the company just two weeks after the employee’s start date. At the time of hiring, the former manager informally mentioned that if the employee performed well, they could be allowed to work remotely after the probation period.

Following the manager’s departure, the employee began working from home. However, since then, performance issues have surfaced — including consistent errors and a lack of accountability with their tasks and responsibilities.

The employee was also told at the time of hiring that they would be eligible for a salary increase after three months, contingent on performance. We now have a new manager in place, who has observed the performance issues and does not support a salary increase. The new manager also believes the employee is not a good fit for the role, especially in a remote setup, and would prefer to terminate the employment. Additionally, the employee has informed the new manager that they are actively looking for another job and intend to leave.

Given this context, would terminating the employee’s contract now be considered a wrongful dismissal under Ontario employment law, especially considering the informal remote work agreement and the performance-related concerns?

[Haley O’Halloran]

#95327

Hello! Given that your situation is occurring in Ontario, here’s a detailed breakdown of how the law generally treats such cases and the key considerations you should keep in mind regarding potential wrongful dismissal claims in the province:

Probation and Termination in Ontario
Probation period legalities:

Under Ontario’s Employment Standards Act, 2000 (ESA), employees can be terminated without notice or pay in lieu during the first three months of employment (assuming no contract provides otherwise).

After the three-month mark, even probationary employees are entitled to at least one week’s notice or pay in lieu, unless termination is for just cause.

“Probation” doesn’t mean automatic termination rights — employers must still act in good faith, and the employee must be given a reasonable opportunity to meet expectations, especially beyond the 3-month mark.

Performance Concerns and Just Cause
Just cause termination — the standard required to terminate without notice — is very high in Ontario. It typically requires:

Serious misconduct (e.g. dishonesty, insubordination, gross incompetence),

Documented progressive discipline (i.e., warnings, opportunities to improve),

Clear evidence of failure to meet expectations despite support.

From your description: The employee’s issues relate to consistent errors and lack of accountability, but unless you’ve documented these with warnings, coaching, or performance improvement plans (PIP), just cause is unlikely to be upheld. The fact that they are job searching is not cause for dismissal, unless it’s accompanied by misconduct (e.g., job searching during work hours or disclosing confidential information).

So, unless you have robust evidence of misconduct and have followed due process, it is safer to terminate with notice or pay in lieu, not for cause.

Informal Remote Work Agreement
You mentioned that the original manager informally stated that remote work could be possible post-probation, and the employee began working remotely, seemingly without formal authorization.

Key points here:

Even if the agreement was informal, continued acceptance of remote work (i.e., no objections from the employer) may be seen as implicit approval.

However, since no written policy or offer letter guaranteed remote work, and performance concerns have surfaced, it is unlikely to form a contractual entitlement.

Thus, withdrawal of remote privileges is unlikely to be considered a breach — especially if the role can be reasonably expected to be onsite.

Salary Increase Expectations
Promises of salary increases contingent on performance are not guaranteed entitlements.

If performance is objectively lacking and no formal contract promises a raise, withholding the raise is lawful.

Ensure communications about this are clear and supported with performance evaluations or manager notes.

Risk of a wrongful dismissal claim? I would say there is high risk if you claim just cause termination because your lack of documentation weakens your defense, and if you claim the termination was due to the employee working remotely, there is a moderate risk whether the court finds your informal agreement binding. However, I am not a lawyer and these are very legal questions.

Here is what you need to do next:
Document the employee’s performance issues and any conversations about expectations or warnings.

Consult legal counsel before proceeding, especially to determine the length of notice or severance required under ESA or common law.

Prepare a termination letter that:

Avoids mention of “just cause” unless legally justified.

Clearly outlines final pay, any severance, and return of company property.

Be respectful and consistent in all communications to minimize risk of reputational harm or claims.

I hope this helps!
-HRInsider Staff

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