The other day I overheard someone talking about how they were no longer being scheduled for shifts at the restaurant where they work. This person happened to be a short term employee; they had two months of service at the restaurant, and they suspected that they had been let go. I say suspected because this employee was not advised as to their status, they just stopped getting shifts.
This got my employment lawyer’s senses tingling. Did this employee sign a written contract? What were its provisions regarding probation (if any)? Could the employer simply ghost them because they were not owed notice under the Employment Standards Act, 2000 (“ESA”)? These questions boil down to one line of inquiry: what obligations do employers have towards employees with less than three months of service?
In my past life, I worked in the restaurant industry and know this sort of situation all too well. Often, managers are either oblivious about employment standards, or they ignore employees’ rights altogether. When it comes to very short service employees, employers of all stripes make similar mistakes by assuming that, because the ESA requires no notice for employees with less than three months of service, they are “probationary” employees and thus have no obligations towards them.
This assumption can be a costly error for employers, and it may entitle employees to a host of remedies. The fact is that, even though no notice is required under the ESA, employers still have obligations towards these employees. These obligations come from the common law, and can include reasonable notice, as well the duty to act in good faith in the manner of dismissal. Moreover, the employer must still observe its other statutory obligations, such as issuing an accurate Record of Employment (“ROE”). The fact is that short-service employees can be entitled to extensive severance packages in some cases. This is particularly true if they are in senior roles, were recruited from another job, or are close to the traditional retirement age.
Obligations and Entitlements
While the ESA and its counterparts provide that notice is only required after a specific period of time has passed, employees are entitled to reasonable notice at common law by default. Absent an enforceable termination clause displacing the employee’s entitlement to reasonable notice, employees are entitled to notice even if they were dismissed before their statutory entitlement kicked in.
Probationary Status Is Not Established By Statue
As such, it is important to understand that probationary status is not established by statute but by contract. For instance, the ESA does not establish a probationary period, it just establishes when notice is required. Employers who wish to establish a probationary period must do so via contractual provisions.
Acting in Good Faith
Regardless of a probationary period, employers must still observe their obligation to act in good faith. When dismissing an employee not entitled to notice, this must still be done in a respectful manner – employers cannot just ghost an employee because they have no entitlements under the applicable employment standards statute. Bad faith in the manner of dismissal is an easy way for employers to expose themselves to unnecessary costs and can make a low cost dismissal very costly.
Other Obligations Imposed By Statues – ROE, Accrued Vacation Pay, Salary
Statutes also impose obligations on employers in these situations. A key one is that employers must issue a ROE for the dismissed employee, even if they were not entitled to notice. This must be done within the prescribed timeline. Likewise, while very short service employees may not be entitled to notice, they are still due their accrued vacation pay and salary up to the date of dismissal. Failure to observe these obligations is another source of risk for allegations of bad faith in the manner of dismissal.
The HR Takeaway
The bottom line is that even very short service employees, who may not be entitled to statutory notice, can be entitled to reasonable notice and other entitlements which the employer must provide. Employers do not have a license to, for example, stop scheduling an employee and go radio silent when the employee asks about their shifts. As a best practice, employers should advise the employee of the dismissal and ensure that they observe all their obligations as the employment relationship is terminated.
If you’re an employee and have been dismissed without notice, we can advise you as to your entitlements. You may be entitled to reasonable notice even if you had less than three months of service. We can also help ensure that you are provided with all your post-dismissal entitlements, and help you assess whether you have a potential claim against your employer.
If you’re an employer, we can assist you in implementing dismissals properly and help you avoid the risks present in this high risk part of the employment relationship. We can advise you as to your obligations and ensure these are observed as you execute the dismissal.