What notice does an employer have to give an employee still on probation?

Stuart Rudner
Question: Would you please advise what notice is required during a probationary period of employment from both the employer and employee perspective.

• If the employment contract states that one month notice is required, is the employee obligated to provide one month during the probationary period (e.g. the employee has only been employed with the company for six weeks and has a six month probationary period)?

• If the employee provides one month notice upon resignation, can the employer ask the employee to leave immediately, and if so are they obligated to pay the employee wages based on the notice the employee provided?

• My assumption is that from the employer’s perspective, if they were to terminate the new hire’s employment, notice or pay in lieu would be required based on ESA legislation.

Answer: Employers and employees can agree that their relationship will include a probationary period. Typically, this is to allow the employer an opportunity to “try out” the employee and see if they are suitable for the position, and/or to allow the employee to see if the job is really what they want. A probationary period can also be imposed on existing employees in certain circumstances. The exact obligations between the parties with respect to issues such as notice of termination are dependent upon what has been agreed upon.

The definition of “just cause” is different for probationary employees than it is in ordinary circumstances. In the case of a probationary employee, the employer need only show that, in the opinion of the employer, the employee is unsuitable for the job. The suitability or unsuitability can include considerations such as character, compatibility and ability to meet standards and expectations. In recent times the courts have implied a requirement of fairness into the probationary relationship, so that an employer that terminates a probationary employee must show that it acted fairly and without any improper motive. Where there is no just cause, the employer must provide notice of termination.

With respect to the second portion of your question, much would depend upon the wording of the agreement. If the employee has truly agreed to provide one month of notice, then he would be required to do so even during the probationary period. The employer, upon receiving such notice, may well decide not to keep the employee on during this notice period. However, it would then be obligated to provide pay in lieu of notice. Which gets us to the third portion of your question…

Like any employment relationship, the amount of notice required for a probationary employee is governed initially by the agreement. If there is no agreement in writing, or if the agreement is silent with respect to notice, there is an implied duty on the part of the employer to comply with applicable legislation and common law requirements of reasonable notice.

Stuart Rudner practices commercial ¬litigation and employment law with Miller Thomson LLP’s Toronto office. He can be reached at (416) 595-8672 or by e-mail at srudner@millerthomson.ca. Address questions for Ask an Expert to carswell.celt@thomson.com.

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