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This is a hypothetical question. I understand that in ordinary circumstances, when starting a new job, the probation period allows an employer to terminate the employee for any or no reason, provided it's not a form of illegal discrimination.

Does that freedom disappear for the new employer if a person was already working for a previous employer and is head hunted by the new employer? That is, what if a company goes out of its way to make an appealing job offer to someone who is already employed? Would there be cause for legal action if the employee quit his old job to start a new job, then was terminated from the new job without reason shortly after starting the new job?

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    Do you think the new company might be under a special obligation to not fire you arbitrarily during a probationary period because they sought you out? Hypothetically. Commented Jun 15 at 1:26
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    If you understand "the probation period allows an employer to terminate the employee for any or no reason" then why are you asking? Many people accept other offers while they are employed. You haven't articulated the root of your confusion in a meaningful way. i.e. why do you think it might be different if they were unemployed at the time of hire? Commented Jun 15 at 1:28
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    You would maybe have a case if you could prove the new company never actually intended to keep the employee, not even at the time of signing the contract. If it was just a scam to "fire" the employee from the first company and send them into unemployment without actually taking any action on the first companies part. That would maybe something a court would look at.
    – nvoigt
    Commented Jun 15 at 5:25
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    @GeorgeWhite basically yes, that is my question. Commented Jun 15 at 8:12
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    @Greendrake The question is about the new employer, not the old employer.
    – Barmar
    Commented Jun 15 at 21:14

2 Answers 2

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Pre-contract negotiations are not relevant

The employee agreed to a probation period? Then there’s a probation period.

The only cause of action would be if the new employer always intended to fire the new hire before entering the contract. That is, the plan was to deprive a competitor of the employee, not to acquire them themselves. Of course, this would have to be proved.

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  • Maybe I misphrased the question. The Employment Standards Act doesn't actually mention a "probation" period, but it does say that no compensation or notice is needed to terminate an employee who has been employed for less than 3 months. Does this change anything if there was no mention of probation in negotiations or paper work? In other words if the new employee was terminated in accordance with the Employment Standards Act after being persuaded to leave his old job for the new one? Commented Jun 17 at 8:08
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Under Canadian law, the probation period is mandatory and it would have to be given. It does not disappear.

The specifics of firing someone in Canada can differ based on the exact situation, so more would be needed to decide.

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