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I would like feedback on an HR situation involving how a management‑level hire was handled.
A candidate was verbally offered a full‑time management position and verbally accepted. There was no written offer letter at the time of acceptance, no written contract, and no written record of a discussion of probation before the candidate started working
The candidate began employment and worked in the role. A “welcome letter” was later sent to the employee’s work email. This letter set out the salary, start date, probation period, and some conditions (including the requirement for a criminal record check), but it did not ask for any signature or formal acceptance. The employee had already provided identification and confirmation of no criminal record, a few days after starting work, in line with that requirement.From an HR and employment‑law perspective, is an implied employment contract already formed once the candidate starts work based on a verbal offer and acceptance, even if no written offer letter exists at that time?
Can a welcome letter sent after the employee has already started, and not requiring a signature, validly impose a probation period or other key terms that were not clearly agreed to in writing before the start date?
Does sending such a letter after the fact create legal or procedural risk for the employer (for example, if they later rely on the “probation” mentioned in that document to justify termination)?
What would be considered good practice for HR in this type of situation to ensure that offers, probation, and conditions (like criminal checks) are properly documented and agreed to before employment begins?
In this type of situation, what kinds of legal or financial risk does the employer face (for example: wrongful dismissal exposure, inability to rely on the probation clause, or additional damages if the employee is terminated and challenges the process)? I am looking for general HR‑best‑practice guidance and how this type of situation is usually treated in Canadian employment contexts.
A binding employment contract is very likely formed once a candidate accepts a verbal offer and begins work, even if nothing is put in writing. In Canadian employment law, contracts do not need to be written to be enforceable. The terms of that contract are based on what was agreed verbally and any implied terms under common law, such as reasonable notice of termination. If key terms like probation or conditions were not discussed before the employee started, they are generally not considered part of the agreement.
A “welcome letter” sent after the employee has already started work typically cannot impose new or different terms on its own. For new terms to be enforceable, the employee must clearly agree to them, and there must usually be fresh consideration (something of value in exchange). A document that does not require a signature or explicit acceptance—especially one sent after employment begins—will likely be treated as informational rather than contractual.
This situation creates meaningful legal risk for the employer, particularly if they later rely on terms like probation. Courts in Canada interpret probation clauses strictly, and if such a term was not clearly agreed to before employment began, it may be unenforceable. As a result, an employee terminated during “probation” could still be entitled to statutory or even common law reasonable notice, increasing the employer’s liability.
The absence of a properly executed written agreement also means the employer may not be able to rely on termination-limiting clauses. Instead, the employee defaults to common law entitlements, which can be significant for management-level roles—often several months of pay. Additionally, introducing terms after the fact can raise fairness and credibility concerns if the situation is challenged.
Best practice for HR is to ensure that a written offer or employment agreement is provided and signed before the employee starts work. This document should clearly set out key terms such as compensation, probation, termination provisions, and any conditions of employment. Allowing an employee to begin work before these terms are documented and accepted significantly reduces the employer’s ability to enforce them and increases legal and financial risk.
-HRInsider Staff
In this situation, the recruiter and hiring manager did not document any discussion of a probation period at the offer stage. The only place where “probation” appears is in an internal external‑onboarding form that HR completed, which includes a statement that “probation was verbally discussed with the candidate.” There is no corresponding email, signed offer, interview note, or other contemporaneous record showing that probation was actually explained to and accepted by the employee. The welcome letter mentioning probation was sent only after the employee had already started and did not request a signature.
What is especially concerning is that this employee, who was treated as being on probation, was terminated after approximately six weeks of work. The external‑onboarding form, which should have been completed as part of the initial hiring/onboarding process, was in fact completed and signed by HR on the same day as the termination. The employee has since requested her employee file, and this form—with its statement that probation was verbally discussed—now appears inconsistent with the actual sequence of events and the absence of earlier documentation.
Questions:
From an employment‑law and HR‑governance perspective, what is the best way for the employer to remediate this situation, given that there is no real evidence that probation was discussed before the employee started, and the only “record” is an internal HR form completed on the day of termination?
How damaging is it that the external‑onboarding form (completed and signed by HR on the termination date) contains information that appears to contradict the actual events and other documentation in the file, especially now that the employee has a copy of this form?
What steps should HR take now to correct the record (for example, amending or annotating the onboarding form, issuing a clarification, or acknowledging that probation was not properly agreed), and how might this affect the employer’s ability to rely on probation or reduced notice if the employment is terminated or has already been terminated?
Does the existence and timing of this inaccurate internal form increase the employer’s legal and credibility risk if the matter is challenged (for example, could it be viewed as poor record‑keeping, negligence, or an attempt to retrofit documentation), and how should HR address that risk?
From a Canadian employment-law perspective, the safest starting point is to assume that no enforceable probation clause exists and that the employee was employed under an implied contract with full common-law notice rights (subject to statutory minimums). The best remediation is not to try to “fix” the past record to support probation, but to align the employer’s position with what can actually be proven: that the employee was hired without a clearly agreed probation term. Practically, this means assessing termination exposure based on reasonable notice (or ESA minimums at a minimum) and, if the termination has already occurred, considering whether a severance adjustment or settlement is appropriate to mitigate risk.
The onboarding form completed on the day of termination is problematic, particularly because it asserts that probation was verbally discussed without supporting contemporaneous evidence. In a dispute, timing matters: documents created after the fact—especially on the termination date—can be given little weight or even undermine credibility if they appear self-serving or inconsistent with earlier records. This doesn’t automatically imply bad faith, but it does expose the employer to arguments of poor HR governance, unreliable record-keeping, or retroactive justification.
In terms of correcting the record, best practice is transparency rather than alteration. The employer should not backdate or revise the original document in a way that obscures its creation date. Instead, HR can add a clear, dated annotation or memo to file explaining when the form was actually completed and acknowledging that there is no contemporaneous documentation confirming that probation was discussed at the offer stage. If the employee has requested their file, any clarification should be factual, neutral, and consistent across all records to avoid compounding inconsistencies.
Legally, this situation significantly weakens the employer’s ability to rely on probation to justify a termination without notice. Courts require clear agreement on probation terms, and ambiguity is interpreted in favour of the employee. Combined with the timing of the documentation, the employer would likely face increased exposure to wrongful dismissal claims and potentially higher damages if credibility is questioned. While aggravated or bad-faith damages are not automatic, inconsistent or after-the-fact records can contribute to such arguments if the employee alleges unfair dealing.
From an HR governance standpoint, the focus now should be on risk containment and process correction: ensure future offers are documented and signed before start, implement controls so onboarding forms are completed contemporaneously, and train hiring managers on communicating and documenting key terms like probation. In the current case, a measured, good-faith approach—grounded in accurate records and, if needed, a reasonable settlement posture—will do more to reduce legal and reputational risk than attempting to defend a probationary framework that is not well supported by the evidence.
Note: I am not a lawyer nor am I an HR director, and in a case as complex as this, I would advise speaking with legal counsel or your HR team before proceeding.
-HRInsider Staff
The Contract Review Process Tool is an excellent preventative measure.
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