Probationary Periods and Notice

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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.

Resignation Letters Not Always Determinative

“You can’t fire me, I quit!”  is a common movie refrain and one that many employees have probably repeated – at least in their own heads.  But what about the reverse?  Can one claim that he has not quit, but rather was fired – even if he has tendered a letter of resignation?

That question was at the heart of the recent decision of the British Columbia Supreme Court case in Chan v. Dencan Restaurants Inc., 2011 BCSC 1439.

The Law can be an Asset Sale

In an earlier post this blog commented upon the issue of successor companies and severance policies. However, another frequent occurrence is where an employer (what I will call “Old Co.”) only sells the assets of the company. In most cases the employee continues to work for the purchaser of Old Co’s assets, with a company that I will call “New Co.” What happens when the employee is terminated from New Co.? Is the dismissed entitled, for the purposes of calculating her notice and severance entitlements, to treat her employment with New Co. as starting when she started with Old Co.?

The recent decision of the Ontario Superior Court of Justice in Drake v. Blach, 2012 ONSC 1855, a decision of the Honourable Justice Ray may appear to signal otherwise.

Successor Co. Severance Policies

A frequent occurrence in what some once called “Silicon Valley North” is the overtaking of one company whose fortunes have changed (let’s say Nortel) by another.  For some employees the change is minor as they are fortunate enough to be hired on by these successor companies.  That is, however, until they are fired by these new companies.  As some employees of these new ‘grey knights’ are discovering not everything is necessarily the same as it was.

Some of these successor companies have attempted to insert “severance policies” into their employment agreements.  A frequently asked question I receive is whether or not these severance policies are enforceable.

Tort Damages Place in Wrongful Dismissal Cases

In November of 2010 I was asked to present at the annual Carleton County Law Association's annual civil litigators conference on the topic of workplace burnout.  Although my full paper can be found here, this post will focus on the issue of adding tort damages to a claim for wrongful dismissal in Ontario.

The most exciting, some have said “sexy”, but no doubt controversial part of employment law as of late has been whether or not significant tort damages can result from wrongful dismissal.  An excellent summary of the law is found in Elgert v. Home Hardware Stores Limited, 2010 ABQB 65.