Guide to probation periods | Employment Law Show TV – S8 E13

Episode Summary

GUIDE TO PROBATION PERIODS, a company files for bankruptcy, called back to the office and more on Season 8 Episode 13 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 about employment law in Alberta, Ontario and British Columbia, on the only employment law show on both TV and radio in Canada.

Episode Notes

Forced to retire by employer

I worked for the same company for almost 30 years, and I am 66 years old. Management informed me that I should be retiring and offered what they believe is a generous severance package. What can I do here?

• Discriminatory terminations of employment: Employers do not have the right or ability to force employees to resign or retire. A forced resignation is considered to be a termination of employment, and the employee would be owed severance. A termination based on discriminatory grounds, such as age, could lead to additional legal consequences for the employer.
  

Severance if a business downsizes

I’ve been with the company for 35 years, and I’m 53 years old. They seem to be downsizing again and have announced a plant closure. What kind of severance package should I be receiving?

• Severance packages and downsizing: Severance for long-service employees can be up to 24 months of pay. Severance is based on an employee’s age, position, and length of service. Business closures do not interfere with severance obligations. Severance must include all elements of compensation including potential car allowance, pension, etc.
  • Learn more about severance pay
    • Severance in Alberta
    • Severance packages in Ontario
    • Severance entitlements in B.C

The company lies about filing for bankruptcy to employees

For the past 2 years, I’ve been a truck driver exclusively for a sole employer. They classified my work as a contractor. After failing to receive several pay cheques, I was told they’d gone bankrupt. I later discovered they had yet to file for bankruptcy.

• Misclassifications of an employee: Employees, like truck drivers, are often misclassified as independent contractors when they are truly employees. Misclassified employees miss out on vital employment rights, such as severance pay upon termination.

Remote worker is forced into the office

I’ve worked remotely for the past 4.5 years and done my job efficiently. Management is now requesting everyone return to the office or lose their jobs. Should I ask for severance in this situation or just resign?

• Changes made to the job: Employers cannot legally impose major changes to the terms of employment without an employee’s consent. Employees can refuse the imposed change and are considered to have been terminated without cause.
• Requesting a return to the office: Many employees who began working remotely as a result of the pandemic have now been asked to return to the office. If health restrictions were lifted for the public sometime before the employer requests an employee come into the office, they could argue to remain working remotely.

Guide to probation periods

• Probation periods are not automatic: Probation periods are not automatic at the start of new employment. Employment law states that an employee is only on probation if they have agreed to one in an employment contract. This is particularly significant for those who are terminated from their positions early on in a new job.
  
• Standard probation period: A standard probation period is 3 months long for all employees. After 3 months, employees who are let go without cause are owed severance pay.
• Extending probation periods: Employers generally cannot extend a probation period past 3 months; it is illegal and pointless.
• A means of discipline or performance management: Employers cannot implement probation as a means to discipline or manage an employee’s performance in the workplace.
• Terminated without cause: Employees terminated without cause during a probation period might still be owed severance pay. The severance period can be longer than the probation period itself as often short-service employees are treated comparatively better than longer-service employees regarding severance.

Accepting an initial severance offer

I was recently let go from my position after 6 years in a tech role. I was not offered severance but have heard that the company will be adding 2 weeks’ pay to my final pay cheque. If I accept the money, does that mean I have agreed to accept this as my severance?

• Severance packages and deadlines: Employees who accept the initial deposit of severance given by the employer are still able to pursue legal action as they have not given up their rights to more severance. Individuals who have lost their jobs should seek legal advice before signing off on a severance agreement.
  

Resigned after harassment from manager

Over a year ago, a manager started behaving inappropriately towards me. Some extremely derogatory comments and slurs were made. After filing a complaint with HR, my pay was slashed, and I eventually resigned.

• Workplace harassment: All employees are entitled to work in a safe and harassment-free work environment. Employees should first inform their informs of the incidents of bullying. Employers must investigate complaints of harassment and resolve the issue. A failure to do so, or penalize an employee for voicing a complaint is considered a reprisal and is illegal.

Employee rights

• Recalled from a layoff: Employers do not have the right to place employees on a temporary layoff. By accepting a layoff, employees have permitted their employers to implement another layoff in the future.
• Electronically monitor employees: Employers can monitor employees during work hours and in a reasonable manner, such as by using a tracker on company devices.
• Extend an employee’s probation: Employers cannot extend an employee’s probation period, and it isn’t very sensible to do so as the law does not acknowledge extended probation periods.
• Provide notice before resignation: Employees should provide reasonable notice to an employer before resigning. Typically an employment contract stipulates how much notice is required.
• Honouring annual bonuses: Employers are obligated to honour annual bonuses as they are considered a part of regular compensation. A revoked bonus can lead to constructive dismissal.
• Bought by another company: Companies do not have to keep employees if they are bought by a new owner. Employees who have lost their employment due to the sale of a business are owed severance pay.

PREVIOUS EPISODE: Employment Law Show S8 E12 – What to know about taking stress leave