tag:blogger.com,1999:blog-7916767120530431852.post8008739842972883612..comments2024-03-23T13:03:48.917-04:00Comments on Labour Pains: Employee "On Probation" Terminated Without Cause after Five Months of Employment Not Entitled to Any Notice: Div CourtSean Bawdenhttp://www.blogger.com/profile/12478582658843470140noreply@blogger.comBlogger1125tag:blogger.com,1999:blog-7916767120530431852.post-1013107333983979572016-05-16T15:23:58.713-04:002016-05-16T15:23:58.713-04:00Agreed, Sean.
I also take some issue with the cou...Agreed, Sean.<br /><br />I also take some issue with the court's contention that "The term "probation" has a recognized meaning in employment law"...and I think that this case is a great example of why that's a challenging thing to say - because the "recognized meaning", as applied by the Divisional Court, turns out to be plainly inconsistent with the ESA.<br /><br />Even assuming that the court's right that the intention of the parties, in using the term 'probation' was to permit dismissal without notice, the clause would be void altogether on that interpretation.<br /><br />One might argue that the use of the term 'probation' somehow builds in ESA minimums - thus entitling the plaintiff to one week, but no more. But my view is that this is the type of logic that the Supreme Court rejected in Machtinger: If the employer wants to be able to dismiss on the basis of the ESA minimums, contract expressly for that right.<br /><br />In my own entry on the subject, I highlighted that most of the case law setting out the 'suitability test' is in union contexts - interpreting and applying collective agreements, which usually do expressly define probation. While there's no question that probationary dismissals in non-union contexts are subject to a similar type of my analysis, we have to be cautious when importing labour principles into employment law, simply because labour principles so frequently derive from terms of collective agreements which are frequently not present in individual contracts of employment.<br /><br />http://lawyerbuchanan.blogspot.ca/2016/01/the-suitability-test-wrongful-dismissal.htmlDennis Buchananhttps://www.blogger.com/profile/02338198640943823828noreply@blogger.com