Understanding employment laws in Canada can be confusing and frustrating. The most common questions that we receive from employees pertain to their legal rights or entitlements as a result of dismissals. This article was specifically prepared to decipher some of the fundamental legal concepts applicable to the without cause dismissals of probationary employees.
An individual who is impacted by a termination or layoff has potentially access to two layers of protection: one granted by statute (written law); and another granted by the common law (unwritten law). The statutory protections are minimum requirements that must be met by all employers, without exception.
Every province in Canada has a different statutory regime to deal with termination entitlements. The applicable regime will depend on the province in which you work. Also, depending on the nature of the business of your employer, a federal law (the Canada Labour Code) may apply rather than a provincial law. If you are unsure whether you are a provincially or federally regulated employee, you should consult an employment lawyer.
At the start of an individual’s employment, provinces allow for the termination of an employee without any notice or any pay (i.e. without providing a severance package). These are referred to as “statutory probation periods” and vary from province to province:
• Alberta: 3 months • British Columbia: 3 months • Manitoba: 30 days • New Brunswick: 6 months • Newfoundland and Labrador: 3 months • Northwest Territories: 90 days • Nova Scotia: 3 months • Nunavut: 90 days • Ontario: 3 months • Prince Edward Island: 6 months • Québec: 3 months • Saskatchewan: 3 months • Yukon: 6 months • Federal: 3 months
Employment contracts often have specific provisions that outline a probation period, and that specifically affirm that a dismissal can occur before the end of the probation without any notice or pay in lieu of notice (i.e. without a severance package). What many employees fail to realize is that if a contract does not specifically incorporate a probation period and does not address entitlements upon termination of employment, they may very well be entitled to a severance package even if a termination occurs during the applicable statutory probation period (as outlined in the list above). As a result, a contract that is silent about probation and termination entitlements is, in most circumstances, desirable for employees.
If your employment contract is silent about probation and termination entitlements and your employer does not offer you any notice or pay in lieu of notice at the time of termination, you should speak to an employment lawyer to determine your legal entitlements. Many workers who find themselves in this precise situation erroneously believe that they have no entitlements because their dismissals occurred in the first months of employment, and as a result unwittingly walk away from severance packages.
Also, if a probation period in a contract falls outside of the parameters of a probation period outlined by a statute, the individual will be entitled to receive a severance package, even if the organization has classified them as “probationary”. As soon as the statutory probation period has expired, an individual will automatically be entitled to receive notice or pay in lieu of notice upon their dismissal. For example, a probation period will not restrict a worker’s severance entitlement if it is longer than the statutory probation period, if it is introduced as part of a promotion, or if it is implemented as part of a disciplinary sanction.
A misstep that we unfortunately frequently encounter is that of the individual who leaves a job for another one, and as term of their new employment agree to be bound by a probationary period. After a few weeks on the job, the new employer does not find that they are a “good fit” and legally terminates their employment without any notice or pay, leaving the person unemployed and without any income protection. What many fail to realize is that this scenario can be easily avoided by asking the prospective employer to remove the probation period from the contract before they accept the offer. If the request is denied, this may very well influence their decision to leave their current job, depending on how much risk they are prepared to (or can afford to) take.
The implementation of probation periods in employment contracts is more and more common, and applies across the board: from entry-level positions to executive-level positions. As such, all individuals who receive employment offers in writing should carefully review the agreements and should ensure that they understand them fully before accepting them.
Cédric Lamarche is an employment lawyer and partner at Singh Lamarche LLP. He frequently advises employees and employers with respect to various aspects of employment contracts and legal entitlements both at the outset and at the end of employment relationships.
If you have any questions regarding an employment contract or your employment rights, Cédric can be reached by telephone at: 647-799-0499, or by email at: email@example.com.