5 Common questions about probation periods in Canada | Employment Law Show TV – S6 E08

Episode Summary

5 COMMON QUESTIONS ABOUT PROBATION PERIODS, employer refusing a doctor’s note, fired for refusing a pay cut, and more on Season 6 Episode 08 of the Employment Law Show with employment lawyer Lior Samfiru, Partner at Samfiru Tumarkin LLP.

Watch above to discover your workplace rights and learn everything you need to know about employment law in Ontario, British Columbia, and Alberta, on the only employment law show on both TV and radio in Canada.

Episode Notes

Severance after six months of employment

I was hired as a production supervisor at a plant during COVID-19. I was let go after six months as there was not enough work. I was given two weeks’ pay. Is this right?

• Short-service severance pay: In some situations, short-service employees can be owed disproportionately more severance entitlements than longer-service employees. Employees can at times receive more severance than their entire period of employment. Employees can be owed more severance as the law does take into account the possibility of future employment.

Employee or an independent contractor after 16 years of employment?

I’ve been working for the same company for 16 years. They determine my scheduling, and vacation time, provide me with a laptop and work phone, and I don’t work for anybody else. Am I actually an employee?

• Misclassified as a contractor: Many employees are mistakenly labelled independent contractors by their employers. Individuals who have been doing a regular job, in which the employer dictates the schedule as well as the compensation, are in fact employees according to employment law. Mislabeled employees are owed vacation pay as well as sick days, and severance entitlements upon termination. Employers cannot dictate whether or not an individual is an employee or a contractor, only the law can.

Declined a severance offer of 14 weeks after 14 years of employment

I was laid off from my job as a software development manager after 14 years. They offered me 14 weeks of severance pay, plus another 2 weeks’ pay as a bonus. I declined so I could double-check their offer. Did I make a mistake?

• Severance calculations for managers: Employees do not have to accept the initial severance offer that their employers are willing to give. Before agreeing to a severance package, employees can and should contact an employment lawyer for some legal advice. Employees who accept an inadequate severance offer cannot pursue additional entitlements once an offer has been accepted.
  • LEARN MORE
    Severance Pay in BC
    Severance Entitlements Ontario
    Severance Pay in Alberta

5 Common Questions about probation periods in Canada

• Automatically put a new employee on a probation period: It is important to remember that probation is not automatic and an employee has to agree to a probation period at the start of their employment. Employees who have not agreed to a probation period, cannot be considered to be on a probationary period.
• How long can somebody be on probation: For employees who have agreed to a probation period, in most cases the standard probation period is 3 months. After the probation period, if an employee is let go they are owed severance. Employers cannot impose unrealistic probation periods.
• Can an employer extend the probation period: Employees generally are not able to extend probation periods and it is considered meaningless if they do. After the initial three months of probation, employees who have been let go are owed severance entitlements.
• Severance if an employee is let go during a probation period: Generally, employees who have signed an employment agreement that stipulates they are on a probation period and will not receive severance can be let go and do not have to be offered severance by their employers. An employment agreement, however, has to stipulate that employees let go during a probation period will not be offered severance.  Employers can let an employee go for virtually any reason as long as it is not discriminatory.
• Put an employee on probation as a form of discipline: Employers cannot put employees on a probation period after they have already passed the initial probationary period. Employees’ years of service cannot be eliminated. Employees can be terminated for cause if they have exhibited serious misconduct and will not be owed severance.

The employer refused a doctor’s note concerning mental illness

My friend is asking her employer for two weeks off work to deal with minor depression. When she provided a doctor’s note, her boss said it wasn’t good enough and wanted more information. What are her rights?

• Accommodating an illness: Employers have no say in whether or not an employee is able to do their job or if their medical condition is serious enough. Employees who have their doctor’s support are able to take leave and cannot be penalized for it. Employers cannot penalize employees due to a medical condition or illness as it is a human rights violation. Employers are permitted to ask employees about their prognosis but not their specific diagnosis.
  • LEARN MORE
    • Depression and Long-term Disability Claims
    • Doctor’s notes in Ontario
    • B.C. employees and sick notes
    • Alberta employers and sick notes
    

Threatened with termination for voicing concerns about harassment

My friend is having issues with a coworker, but her supervisor isn’t doing anything about it. When she suggested that she would tell upper management about the problem, she was told she would be fired.

• Disciplined for voicing complaints: Employers are obligated to provide a healthy and safe work environment, free of harassment, for all employees. Employees are within their rights to communicate and file complaints regarding abuse and harassment and cannot be penalized for doing so. Employees should put all incidents and records of complaints in writing. Employers who fail to rectify or investigate allegations of harassment can face serious legal consequences.

Fired for cause for refusing a pay cut

My employer implemented a 10% pay cut for all staff, citing lower sales due to the pandemic. When I refused, I was fired “for cause”. No severance and I also can’t apply for EI. Do I have any options?

• Constructive dismissals: Employers cannot impose significant changes to the terms of employment without an employee’s consent. A significant change to the terms of employment is considered a reason for constructive dismissal. Employees who refuse to accept major changes to their employment cannot be terminated for cause and are owed their severance entitlements upon termination.

NEXT EPISODE: Employment Law Show S6 E09 – 5 workplace myths that need to be banished

PREVIOUS EPISODE: Employment Law Show S6 E07 – 5 Facts about Temporary Layoffs