How Should We Handle Termination During Extended Probation for Poor Performance?

I am facing an issue where the management wants to terminate an employee during probation. The employee joined in April, and we have a 3-month probation period. At the end of 3 months, his probation was extended by 2 months as his performance was subpar. Now in August, he is still performing poorly despite receiving detailed feedback and support from the managers.

Probation Period

Below is what is mentioned in the contract:
"Probation - There would be a 3-month probation period with effect from the commencement date. The employer may extend the probationary period for up to a maximum of 3 more months with confirmation from the employee and employer."

Termination of Employment

"This employment may be terminated by the Employee or by the company, in writing, giving the other party a 2-month notice period."

Based on my understanding, the employee will need to serve a 2-month notice period from the date of termination. Please provide your suggestions if this is the only legal way out.

Hi, Since termination is the company's decision, there is no need for employees to serve a 2-month notice period. However, the employer is required to provide a 2-month notice before termination occurs.

Normally, an employer can terminate an employee during the probation period without any notice and without assigning any reason. However, in your case, the appointment order clearly states that a 2-month notice is required to terminate an employee. In the absence of termination during probation, it should be treated as including the termination of a probationer. Therefore, give him two months' notice now and terminate him upon the expiry of the said two months' time.

Your company requires a 2-month notice during probation? That seems a bit unusual, especially since the probation period itself is 3 months. However, if those are the terms provided, you must adhere to them. You need to inform him that he is being terminated with a 2-month notice or compensate him for the notice period.

I don't know where you are, but here in Ontario, regardless of whether the employer extends the probation period or if it is stated in the contract, the employer will have to provide 1 week's notice. However, because this employer did not specify the minimum under the ESA and is acting unclearly, the employee can sue for common law.

Employment Standards in Ontario
In Ontario, Canada, the law is strict; if the employer sets a termination clause that is below the minimum requirement, the courts will disregard that clause and apply common law instead.