Does resigning from your job interrupt continuous service for statutory notice purposes – even if you never actually leave? “Yes” says Ontario’s top court in the case of Theberge-Lindsay v. 3395022 Canada Inc. (Kutcher Dentistry Professional Corporation), 2019 ONCA 469
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A typical term of any significant asset purchase agreement, which sees the employees of the vendor continue in employment with the purchaser, is that the purchaser will make offers of employment on substantially similar terms to the vendor’s employees. As is more fully explained in my post Continuity of Employment Following the Sale of a Business, pursuant to the provisions of Part IV of the Ontario Employment Standards Act, 2000:
If an employer sells a business or a part of a business and the purchaser employs an employee of the seller, the employment of the employee shall be deemed not to have been terminated or severed for the purposes of this Act and his or her employment with the seller shall be deemed to have been employment with the purchaser for the purpose of any subsequent calculation of the employee’s length or period of employment.
But what if one (or more) of the employees (unreasonably) refuses the purchaser’s offer? Is that employee still entitled to ‘severance’ pay? The answer will surprise most employers.
What is the legal effect of being “on probation”? While this blog has looked at the issue of an employee being employed pursuant to a written employment contract containing a period of probation, (see Ontario Court Awards Four Months Notice to Employee Fired while “On Probation”), a recent decision from the Ontario Divisional Court provides a new wrinkle to this issue.
In Nagribianko v Select Wine Merchants Ltd., 2016 ONSC 490 the Ontario Divisional Court, sitting as the court of appeal from a decision of the Ontario Small Claims Court found that “in the absence of bad faith, an employer is entitled to dismiss a probationary employee without notice and without giving reasons.”
For the reasons argued below, I would respectfully submit that the court in this case got it wrong.
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What exactly does it mean to be “on probation” or in a “probationary period” under Ontario employment law? With respect to an employer’s obligation to provide notice of termination or severance pay, it typically refers to an employee’s first three months of employment during which most employers assume that they do not have any legal obligation to provide such notice; nor must they provide severance. As will be seen, that assumption may be incorrect.
Many employees who become chronically ill, are injured in a workplace accident, or get hurt in some other type of accident and are unable to return to work for medical reasons often believe that they have no option but to quit their job. By the same token, it is not uncommon for employers to take the position with their employees that the employee must either return to work or quit.
However, as this post will demonstrate the forced options of “return to work or quit” are, in fact, a false dichotomy. Employees have other options and employers have further responsibilities.
