Terminations during the Probationary Period: Three Common Assumptions

Many employers like to take the first few months of a new employee’s employment to decide whether their new hire is the right addition to the team.   Some like to call it a probation, others, a trial or evaluation period. Irrespective of what it is called I have noticed three recurring assumptions about this initial period that are worthy of attention by both employees and employers.   Employers relying on these assumptions may believe themselves better protected against claims for payment of reasonable notice than may in fact be the case. Employees for their part may assume that they have no recourse following a termination during their probation period which again, may not always hold true.

Assumption #1 – An employer can automatically terminate an employee during the first three (3) months of employment without providing the employee notice or pay in lieu.

The right to terminate without notice during the probation period is not automatic. Although the Employment Standards Act, 2000 (“ESA”) stipulates that an employee who is terminated within the first three (3) months of their employment is not entitled to notice or pay in lieu, a court will not simply infer that the employee has agreed to these terms.   Justice Lederman in Easton v. Wilmslow Properties Corp [2001] O.J. No 447 reasoned:

The existence of a probation period is a question of fact in each case. Since it takes away an employee’s usual rights, a probationary period must be expressly agreed to by the employee. It cannot be implied into the relationship…

Assumption #2 – In the absence of a clear probationary period clause, the amount of notice that a short service employee is entitled to receive is necessarily very minimal.  

Some employees who have had their employment terminated within the probation period (and who did not have enforceable probation clauses in their contracts) have been awarded some relatively lengthy notice periods. To give three examples: In the case of Easton, the plaintiff who was terminated after two weeks was awarded three (3) months’ notice because she had left a reasonably secure job to work for the defendant employer.   Likewise, in the case of Rejdak v.The Flight Network, the employee was awarded four (4) months of notice after eleven (11) weeks of work.   Similarly in Deacon v Moxey, 2013 CanLII 54099 (ON SCSM) the employee was awarded three (3) months of notice after working two (2) weeks.

Assumption #3Extending a probation period provides the employer a longer period within which they can terminate the employee without notice.

While an employer can stipulate a longer probation period (i.e. 6 months) in an employment contract, this does not automatically extend the window that an employer can terminate the employee without notice or pay in lieu. Employers will want to ensure that the probation clause is drafted to ensure that there are no violations of the ESA.

Whether you are an employee or an employer, if you have questions about drafting or the enforcement of a probation clause our employment lawyers would be pleased to assist.

Updated Workplace Legal Obligations

There have been developments in the laws regulating the workplace since we originally posted this article. With many of the changes coming into effect, including new Employment Standards Act, 2000 posting requirements, we thought it a good time to update and re-post this article.

In addition to reaching sales goals, managing expenses, marketing, and a myriad of other obligations, business owners have a number of legal obligations that they must meet in respect of the workplace.  Recognizing that time and resources are at a premium, we have put together a list of some of the key statutory obligations, along with free tools designed to assist Ontario employers meet those obligations. Depending on the type of work your company does, and the number of employees you employ you may have additional or different obligations but the following are good building block resources for Ontario employers.

1: The updated Employment Standards Act, 2000 poster must be posted and distributed

The Employment Standards Act (“ESA”) poster has been updated. All employers covered by the Employment Standards Act (“ESA”) in the province (excluding the Crown) must display this poster in the employer’s workplace where it is likely to be seen by employees. To find more information about this free poster, titled ”What You Should Know About the Ontario Employment Standards Act“, you can visit the Ministry of Labour website here for a free copy.  Key dates include the following:

  • May 20, 2015 employers must post the new ESA poster;
  • Beginning May 20, 2015 employers are required to provide any new employees with a copy of the new poster within thirty days of being hired;
  • June19, 2015 employers must provide all existing employees a copy of the new ESA poster.

2:  Occupational Health and Safety:

a) Employers need to post a copy of the Occupational Health and Safety Act

The Occupational Health and Safety Act is Ontario’s law that governs health and safety in the workplace and establishes legal duties and minimum responsibilities for employers, supervisors and workers. Employers are required to post a copy of the Occupational Health and Safety Act in a prominent placeA useful tool for employers is “A Guide to the Occupational Health and Safety Act

b) Employers must develop Health and Safety Policy

Employers with six or more employees must prepare and review at least annual a written Occupational Health and Safety Policy and must develop and maintain a program to implement that policy. An example of a Health and Safety Policy is available at www.labour.gov.on.ca

c) Employers must provide Health and Safety Training

As of July 1, 2014 the Occupational Health and Safety Act also requires employers to provide health and safety awareness training for every workers and supervisor and to document that training. Training program resources are available on line at www.labour.gov.on.ca. New Supervisors must receive the health and safety awareness training within seven (7) days of being hired. Employees must receive the training as soon possible after their hire date.

3:  Employers must have a Harassment and Violence in the Workplace Policy

The Occupational Health and Safety Act also requires all employers in Ontario to have a Harassment and Violence in the Workplace Policy. A useful resource called “Developing Workplace Violence and Harassment Policies and Programs: A Toolbox“ has been developed to help Ontario employers meet the Act’s requirements and is a great starting point for employers.

4: Employers must provide employees with proper training and protective equipment

The Workplace Safety and Insurance Act requires employers to provide specific first aid equipment and training for your workers. The following is a link to the First Aid Requirements brochure.

5: Employers must put up the WSIB Poster   

Employers are also required to post the WSIB Poster in a prominent place. The poster is available online or can be ordered in by calling 1-800-387-0750.

6: Employers must comply with the Accessibility for Ontarians with Disabilities Act 

As of 2012 all businesses in Ontario have new obligations under the Accessibility for Ontarians with Disabilities Act. In an effort to assist employers meet their obligations under this Act, the Ontario Ministry of Economic Development, Trade and Employment has put together a reporting tool as well as a the AODA Compliance Wizard which is designed to help employers know what they need to do to help them comply Ontario’s accessibility law.

7: Employers must have a Privacy Plan

The Personal Information Protection and Electronic Documents Act (“PIPEDA”) requires organizations to take reasonable steps to safeguard the personal information in their custody or control from such risks as unauthorized access, collection, use, disclosure, copying, modification, disposal or destruction. The Office of the Privacy Commissioner has prepared an online tool to assist small and medium sized business develop a Privacy Plan as well as a self-assessment tool for organizations to evaluate how securely they protect individuals personal information.

8 (Voluntary): Employers should promote good mental health in the workplace

Described as a world first and entirely voluntary, the Mental Health Commission of Canada launched the National Standard, designed to help employers of all sizes, and in all sectors, promote good mental health and prevent psychological harm for every employee. It does this by providing the guidelines, resources and tools needed to build a mentally healthy workplace. You can download the one-page FAQ here.

9:  Other requirements include the obligation to develop an Emergency Procedures Policy and Fire Safety Policy for the workplace. 

The $10,000 wage recovery cap has been lifted

One of the key changes brought about by The Stronger Workplaces for a Stronger Economy Act, 2014 comes into effect today. Specifically, if an employer does not pay their employee for their work, the Ontario Ministry of Labour can now award employees for the full amount of their unpaid wages. Previously the Ministry was limited by a $10,000 cap on the amount of wages it could award to an employee for unpaid wages. The period of recovery for those unpaid wages has also been increased to two years.

While one may wonder why an employee would keep working if they were not getting paid, the situation can often be less straightforward. Alternative employment options are not always plentiful. An employer might promise an employee that they will be paid as soon as some funding comes through or payment on a big project is received. An employer may also make partial payments so that the employee is not without any income but, over time, the amounts can add up to well over $10,000 in unpaid wages.

One of the reasons behind these changes are to allow employees to bring a claim for the full amount of any unpaid pages without having to pursue their employers in the Courts.

The Act has brought into other changes with more to come including:

  • On May 20, 2015 employers will be required to provide their employees with copies of the most recent Employment Standards Act poster within 30 days of the day the employee becomes an employee.
  • On October 1 of every year starting in 2015 the minimum wage will be adjusted in accordance with the Consumer Price Index.

We will provide more information about these new changes and what they mean for employees and employers alike in the days and weeks to come.

You can also access the Act by going here

http://www.ontla.on.ca/web/bills/bills_detail.do?locale=en&BillID=3010&detailPage=bills_detail_the_bill

“Waiving” Goodbye: Can an employer waive the employee’s notice of resignation without paying any indemnity?

The Supreme Court of Canada is hearing a case today that could represent significant change for employers.

The Supreme Court of Canada is hearing a case today that could represent significant change for employers.

The Supreme Court of Canada is scheduled to hear the case of Asphaltes Desjardins c. Commission des norms du travail, 2013 QCCA 484 today, March 28, 2014. This case could represent significant change for employers in terms of employee resignations and notice period payments.

THE FACTS

This Quebec matter involved a gentleman by the name of Mr. Guay who worked for Ashphalte Desjardins Inc. (“Ashphaltes”) between the years of 1994 and 2008.  Mr. Guay initially worked as a surveyor and then became project manager. His duties included supervising and managing tenders; he had access to information Ashphaltes considered confidential.

On Friday February 15, 2008, Mr. Guay provided his employer with a letter of resignation which stated that he intended that his last day of work would be March 7 of that year.  The three weeks’ notice was, according to Mr. Guay, to help transition his responsibilities to his successor.  Mr. Guay disclosed that he intended to work for one of the respondent’s competitors.

When Asphaltes was unable to convince Mr. Guay to stay, it decided to terminate his employment immediately without providing any pay in lieu of notice.  Proceedings were started against Asphaltes.

THE LEGAL ISSUE

The central question before the court was whether an employer can waive the employee’s notice of resignation without paying any indemnity.

Until this decision, the case law in Ontario and Quebec suggests that when an employer receives a resignation, if they induce the employee to leave before their proposed resignation date, the employee will be considered “dismissed,” and the employer would have to pay severance.

In the present case, two out of the three Quebec Court of Appeal judges concluded that since the termination was initiated by Mr. Guay, the employer did not have a duty to pay severance or any other form of compensation.  In other words, the employer could waive the notice period without paying any indemnity. 

IMPACT ON EMPLOYERS

If the Quebec Court of Appeal decision is confirmed, this will represent a significant change for employers.  It would mean that employers could accept their employee’s resignation and send them home immediately without having to pay the employee during the notice period. For employers in a competitive market and who do not want the soon to be competing employee having continued access to their confidential information during the notice period, this decision may be particularly welcome.

IMPACT ON EMPLOYEES

For employees, this decision could represent a difficult change.  There is a duty on employees to provide reasonable notice of resignation.   An employee who, in good faith, finds a new job and negotiates a later start date may find themselves without work and without income if the employer waives the notice.

UP FOR DISCUSSION

If employees began to feel they may be “penalized” for giving notice, will they cease giving advance notice of their departure?

We will follow up when the Supreme Court renders its decision.

Working in Retail? Ontario is trying to protect your employment rights.

Ontario helping protect retail workers' rights

Ontario helping protect retail workers’ rights

The Ontario Ministry of Labour posted a bulletin on October 16, 2013 about how Ontario is trying to protect the rights of retail workers by promoting safety and fairness at the workplace. You can read about it here:

NEWS

Ontario is taking action to protect retail workers’ rights and promote fairness in the workplace by launching a province-wide employment standards retail inspection blitz this fall.

Ministry of Labour inspectors are visiting retailers — such as grocery stores, gas stations and shopping malls — between October and December to make sure workplace rights are being protected in areas including public holiday pay, overtime pay, hours of work, and vacation pay.

The Ontario government has also invested an additional $3 million this year to double the number of inspectors and double the number of businesses inspected to make sure workers safe and are treated fairly.

Protecting workers on the job and ensuring all workers are treated fairly through the Employment Standards Program and Safe At Work Ontario strategy is part of the government’s economic plan to invest in people. The province’s economic plan also includes investing in infrastructure and supporting a dynamic and innovative business climate.

QUOTES

“The retail sector is a vital engine of Ontario’s economy that creates jobs, and promotes investment and economic growth. To ensure that growth, we are standing up for workers to make sure their rights are protected – no matter where they work, no matter their line of work.”
Yasir Naqvi, Minister of Labour

QUICK FACTS

  • The inspections are part of a risk-based strategy that focus on sectors that employ vulnerable workers, have a prior history of employment standards violations and represent a significant part of the workforce in Ontario.
  • Since 2004, Ontario’s Employment Standards Program has recovered more than $100 million in wages and other monies owed to employees through inspections, claims and collections.
  • Since 2008, Ministry of Labour inspectors have conducted more than 345,000 field visits, and 58 health and safety and employment standards inspection blitzes.

LEARN MORE

Learn more about the ministry’s proactive inspections.

Watch a video on what to expect during an employment standards inspection.

Find out more about the resources available to employers and employees to help them understand the ESA.

Ontario Providing More Support for Families

Back in March, 2013, I wrote about what job protections are available when a family member gets sick and you need to take leave from work.

Currently, if a family member is terminally ill, an employee is entitled to 8 weeks of job-protected unpaid leave.  This is called “Family Medical Leave”.  An employee who takes Family Medical Leave is also eligible to apply for up to 6 weeks of Compassionate Care Benefits under the Federal Employment Insurance Act.

As I had written, the Ontario Government is once again proposing to add additional unpaid job-protected leave for caregivers, attempting to create “Family Caregiver Leave” and allow an employee up to 8 weeks of unpaid leave to care for a family member who has a serious medical condition.

Below is a news release from the Ministry of Labour from September 25, 2013 saying that the Bill has passed a second reading:

Family Caregivers Bill Passes Second Reading

Today, Bill 21, the Employment Standards Amendment Act (Leaves to Help Families), 2013, passed second reading after debate in the Ontario legislature.  If passed, the bill would allow caregivers to focus their attention on what matters most — providing care and support to their loved ones — without the fear of losing their job.

The act would build on the existing Family Medical Leave by creating three new job-protected leaves:

  • Family Caregiver Leave: up to eight weeks of unpaid, job-protected leave for employees to provide care and support to a family member with a serious medical condition.
  • Critically Ill Child Care Leave: up to 37 weeks of unpaid, job-protected leave to provide care to a critically ill child.
  • Crime-Related Child Death and Disappearance Leave: up to 52 weeks of unpaid, job-protected leave for parents of a missing child and up to 104 weeks of unpaid, job-protected leave for parents of a child that has died as a result of a crime.

Bill 21 has now been referred to the Standing Committee on General Government and public hearings are expected the week of December 4, 2013.

Allowing caregivers to focus on what matters most is part of the Ontario government’s plan to protect workers and strengthen their rights while helping people in their everyday lives.

Quick Facts

  • The proposed legislation would create leaves separate from the current Family Medical Leave.
  • A doctor’s note would be required to qualify for Family Caregiver Leave and Critically Ill Child Care Leave.
  • The Critically Ill Child Care Leave and Crime-Related Child Death and Disappearance Leave are necessary to give families access to new Federal benefits.

Quotes

Yasir Naqvi

Our government is committed to passing these leaves because what Ontarians need most when caring for seriously ill or injured family members is the time to be with their loved ones. These Leaves to Help Families would strengthen job security and is the right thing to do for Ontario families.”

Yasir Naqvi

Minister of Labour

Companies will be fined under Criminal Code if found liable for worker injury or death

Metron Construction plead guilty to the deaths of 4 workers in 2009. Credit: Carlos Osorio / Toronto Star File Photo

Metron Construction plead guilty to the deaths of 4 workers in 2009. Credit: Carlos Osorio / Toronto Star File Photo

Workers safety is paramount – see the below article written by  Lisa Stam on her blog “Employment and Human Rights Law in Canada” for a breakdown of a recent decision by the Ontario Court of Appeal regarding the safety of workers:

Criminal Code Convictions for Worker Safety

Yesterday, the Ontario Court of Appeal tripled the fine awarded against a construction company that failed to ensure the safety of its workers:  R v Metron Construction.

Facts

In the late afternoon of December 24, 2009, five workers who were restoring the concrete balconies of a high rise in Toronto fell from a fourteenth floor swing stage platform. Four of the five workers died, the fifth worker who survived suffered serious permanent injuries. The sixth worker – the only one who was properly attached to a safety line – did not fall and survived uninjured.

Details of the original judgment are set out in the July 2012 trial judgment of R v Metron Construction Corporation.

Criminal Conviction – Trial Judge

The company was the first in Ontario to be charged and convicted under the new Criminal Code provisions that make it a criminal offence to direct a worker to perform a task without taking reasonable steps to prevent bodily harm to that worker. See sections 217.1, 219 and 22.1(b) of the Criminal Code for the specific provisions upon which the crown relied.

The trial judge fined the company $200,000 plus the Victim Fine Surcharge of 15% or $30,000, which was over 3 times the net earnings of the business in its last profitable year. The trial judge concluded that the penalty was “the appropriate disposition in this case and should send a clear message to all businesses of the overwhelming importance of ensuring the safety of workers whom they employ.”

Court of Appeal Triples the Fine

Yesterday, the Court of Appeal tripled the penalty, fining the company $750,000. The Crown had sought a fine of $1 million, arguing that the court should not restrict itself to the range of penalties under the Occupational Health and Safety Act. The Court agreed with the merits of that argument:

[87] Section 718.1 of the Code states that “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”. A range of sentences established under the OHSA regulatory regime does not reflect the gravity of the offence of criminal negligence causing death. The OHSA cases that attracted fines of between $115,000 and $450,000 and that were relied upon by the sentencing judge are of limited assistance.

The Court also concluded that the penalty for such a serious offence with such a tragic consequence must be increased to ensure deterrence:

[115] A sentence consisting of a fine of $200,000 fails to convey the need to deliver a message on the importance of worker safety. Indeed, some might treat such a fine as simply a cost of doing business. Workers employed by a corporation are entitled to expect higher standards of conduct than that exhibited by the respondent. Denunciation and deterrence should have received greater emphasis. They did not. The sentence was demonstrably unfit.

The Court of Appeal has sent a very clear message to employers: worker safety is paramount, and companies will pay dearly under the Criminal Code if found liable for worker injury or death.

-Article written by Lisa Stam.

Colleen Hoey is an Ottawa-based lawyer practicing in the areas of Employment Law, Human Rights Law, and Civil Litigation at Mann & Partners, LLP. The articles on this blog are not intended to provide legal advice. Should you require legal advice, please contact Mann & Partners, LLP at 613-722-1500 or fill out our form to be contacted within 24 hours.