Garden leave in Canada: Employee rights

What is garden leave?

Garden leave is a paid leave that is designed to limit the actions of a departing employee.

It’s often used as a transition period for individuals who give or are given working notice of termination—keeping them on the payroll, but away from the workplace.

The rationale is that departing staff members won’t be able to harm the company (i.e. sabotage the work environment) or take proprietary information to a competitor.

Is garden leave illegal in Canada?

The short answer is no. Garden leave hasn’t been declared illegal in Canada.

If an employment contract contains a properly drafted garden leave clause, the agreement might be legally enforceable.

WATCH: Employment lawyer Lior Samfiru breaks down everything you need to know about employment contracts on an episode of the Employment Law Show.

However, if the employment contract you signed doesn’t contain this provision, and you are forced to go on garden leave, contact an experienced employment lawyer at Samfiru Tumarkin LLP.

We can determine if you have grounds for a constructive dismissal claim and help you pursue full severance pay.

ADDITIONAL RESOURCES
• Changes to your job in Ontario: What you need to know
• Job changes in Alberta: What employees need to know
• Changes to your employment in B.C.: Your rights

How is severance pay calculated?

In Canada, severance for non-unionized employees can be as much as 24 months’ pay.

The amount of compensation you are entitled to is calculated using several factors, including:

However, there are some situations where non-unionized workers could be owed more than 24 months of severance pay.

To figure out how much you could be owed, use our firm’s free Severance Pay Calculator. It has helped millions of Canadians determine their entitlements.

If your employer’s offer falls short of what our Severance Pay Calculator says you are owed, it’s likely that you have been wrongfully dismissed and should contact our firm.

We regularly resolve wrongful dismissal claims and can help you secure proper severance.

LEARN MORE
• Severance pay for provincially regulated employees
• Rights to severance for federally regulated workers
• Severance pay in a recession

My boss is pressuring me to sign a new employment contract, what should I do?

If the employment contract you initially signed doesn’t give your employer permission to put you on garden leave, you might be asked to accept a new agreement that does.

In the event that you are provided with a new employment contract, don’t sign anything before seeking legal counsel. Your boss can’t legally force you to accept it immediately or a few days after receiving it.

In most cases, these agreements take away key protections that would otherwise be available to non-unionized employees in Canada.

Our experienced employment lawyers can review the contract and ensure that your workplace rights are properly protected.

SEE ALSO
• Starting a new job? Here’s how an employment contract could limit your rights
• ’60 days or more’: Is it an enforceable termination clause?

Validating a new agreement

In order to validate a new employment contract, employers in Canada must provide non-unionized workers with an additional “benefit”.

Potential benefits could include:

• A signing bonus
• Extra vacation days
• More flexibility working remotely

If your company didn’t include an additional benefit in the new agreement, or you aren’t sure that one has been provided, don’t sign anything before contacting Samfiru Tumarkin LLP.

Can my boss punish me for refusing to go on garden leave?

If the employment contract you signed does include a properly drafted garden leave clause, then you could face punishment for refusing to go on paid leave.

However, you should contact a member of our team if you face any kind of retaliation (i.e. unwanted changes to your job) in connection with your refusal to go on garden leave.

We can determine if you were the victim of a workplace reprisal and whether you have grounds for a constructive dismissal claim.

ADDITIONAL RESOURCES
• Reprisals at work in Ontario: Know your rights
• What Albertans need to know about workplace reprisals
• Workplace reprisals in B.C.: Employee rights

My boss is pressuring me to quit after refusing to go on garden leave, what should I do?

In Canada, a resignation must be voluntary, clear, and unequivocal.

No matter how upset your employer is that you refused to go on garden leave, the company can’t pressure or force you to quit.

If your boss is influencing you to step down, document their attempts. Keep any letters, emails, or text messages that show how your employer is pressuring you to quit your job.

Once you have gathered all of the relevant documents, don’t resign before contacting our firm. You might have grounds for a constructive dismissal claim.

Already resigned?

If you were forced to quit your job for any reason, connect with an experienced employment lawyer at Samfiru Tumarkin LLP as soon as possible.

In addition to severance pay, you could be owed compensation for any damages associated with the end of your employment.

LEARN MORE
• Can you rescind a resignation in Ontario?
• Employment Law Show: Facts about forced resignations
• Employment Law Show: What your employer legally can’t do

Can my boss fire me for refusing to go on garden leave?

The short answer is yes. Employers in Canada can fire non-unionized workers if they refuse to go on garden leave.

This is known as a termination without cause. You can be let go for any reason, as long as:

• You are provided proper working notice of termination or severance pay
• The reasons for your dismissal aren’t discriminatory

It’s very unlikely that your boss would be able to fire you “for cause” in this situation—meaning no severance package or access to Employment Insurance (EI) benefits.

Considered the harshest punishment in an employer’s arsenal, it’s reserved for the worst workplace transgressions, such as serious insubordination, theft, or assault.

However, to justify firing you for cause, the company must prove progressive disciplinary measures were applied and that a lesser penalty wouldn’t be acceptable, which is very difficult to do.

In our experience, most non-unionized employees don’t meet the conditions necessary for this type of dismissal and are entitled to severance pay.

SEE ALSO
• Do I have to look for a new job after getting fired?
• Can I get my job back if I am fired?
• Employment Law Show: Facts about the termination process

Lost your job? Talk to an employment lawyer

If you lost your job after refusing to go on garden leave, or for any reason, contact the experienced employment law team at Samfiru Tumarkin LLP.

Our lawyers in Ontario, Alberta, and B.C. have helped tens of thousands of non-unionized individuals resolve their workplace issues.

We can review your situation, enforce your rights, and ensure that you receive the compensation you are owed.

Disclaimer: The materials provided in this article are for general informational purposes only and do not constitute legal advice. For advice specific to your situation, please consult a legal representative at Samfiru Tumarkin LLP.