All too often short service employees are overlooked in terms of an employer’s potential liability. After all, such workers can often be dismissed with minimal severance and without great fear of litigation. However, there are always exceptions and even for the shortest service employee, making mistakes can prove costly. The next time your organization moves to terminate the employment a short service worker, give some prior consideration to the following list of factors:
Probation
The Employment Standards Act, 2000 (“ESA”) does not contain a provision that explicitly addresses the use of probationary periods. Instead, section 54 provides that “no employer shall terminate the employment of an employee who has been continuously employed for three months” absent provision of mandated notice.
In light of this language, many employers opt to create a three-month probationary period, whereby, should the new employee not be considered a good-fit the relationship can be ended without any obligation to provide statutory termination pay.
That said, some employers choose to implement a longer probationary period, say of six months or one year. In such circumstances, the employer must be diligent and remember to still comply with the ESA and provide required notice, despite the fact that the dismissal occurs during a probationary period.
Obligations under the Ontario Human Rights Code
Regardless of how long an employee is in your workplace, they are entitled to receive the protection of the Ontario Human Rights Code. Specifically, all employees are entitled to work in an environment free from sexual harassment or solicitation, and to receive reasonable accommodation of needs arising from, amongst other things, physical disability or religious belief.
Employers can be exposed to increased liability if they fail to accommodate a short-service employee’s needs or terminate employment in response to an employee bringing forward legitimate concerns around sexual harassment. This is all the more important as human rights damages have, in the past few years, slowly been on the rise.
Obligations under the Occupational Health and Safety Act
Short-service employees are also entitled to protection under the Occupational Health and Safety Act. As such, employers should ensure that they have in place an anti-harassment and violence policy and a process by which to investigate and address any allegations as to this type of misconduct. In addition, it is important to remember that regardless of length of tenure, an employee can never be dismissed in reprisal for bringing a health or safety concern forward.
Common law reasonable notice
Absent a enforceable written employment contract with a carefully-drafted termination clause that limits entitlement to the mandatory payments under the ESA, a short-term employee may be entitled to significant common law notice.
In Love v. Acuity Investment (2011 ONCA 130), the Ontario Court of Appeal confirmed that short tenure of service should not take on disproportionate weight in a determination of the appropriate notice period for an employee.
A recent case from Ottawa which demonstrates this principle is Wellman v. The Herjavec Group Inc. (2014 ONSC 2039). Mr. Wellman was employed for just shy of a year in the position of a Pre Sales/Post Sales/Data Services Engineer with the employer’s Data Centre Services Team.
Despite his short tenure of service, Mr. Wellman received a four (4) month reasonable notice period.
Inducement
Further to the discussion of common law reasonable notice is the issue of an inducement to join an employer. In such situations, even if the employee has only worked there for a short period of time, he or she may be entitled to a significant bump to the period of reasonable notice that may otherwise be awarded. This is to recognize that the employee was lured away from stable and ongoing employment, in many cases, giving up accrued seniority, good-will and severance entitlements.
Good faith in the manner of dismissal and exemplary damages
Finally, all employees have the right to have their employment ended in good faith. As such, employers should ensure that termination is carried out honestly, candidly and with compassion. While most employers are not required to provide reasons for a ‘without cause’ termination, it is important to not proffer disingenuous grounds or carry out the termination in anything less than a professional and polite fashion. Failure to comply with these rules can result in additional damages being claimed against an employer.
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If the quote from the Act: “no employer shall terminate the employment of an employee who has been continuously employed for three months” is complete, it is a very strange one given the tendency toward literal interpretation. I should say “may” rather than “shall” and “employed three months” is an exact time, it should say “may not terminate an employee who has been continuously employee for three months OR MORE.” I’m surprised that someone has not amended the wording by now!