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THE QUESTION
I am only two months into a six-month probation period, but I want to get a new job because I know my current workplace isn’t right for me. If I get a new job and give my employer two weeks’ notice, can they decide to terminate me immediately without pay, because I’m still on probation? I can’t afford to go two weeks without income. What’s the best way for me to navigate a job transition while I’m still on probation?
THE FIRST ANSWER
Sarah Coderre, partner, Bow River Law LLP, Calgary
Under employment standards legislation, if an employee provides notice of resignation, the employer can make the employee leave sooner by paying out the employee’s regular pay for the resignation notice period. If the resignation notice provided by the employee is longer than the minimum termination notice that the employer would be required to provide the employee under employment standards legislation, then the employer can choose to pay the employee their minimum termination pay to end their employment earlier.
Given that you have been employed for less than 90 days, there is no statutory requirement for you to give any notice of resignation or notice of termination. As such, once you give your notice of resignation, your employer could legally ask you to leave and would not be required to pay out your resignation period or provide you with any termination pay.
That said, in some industries, there is an unwritten rule that an employee will provide at least two weeks’ notice of resignation, regardless of how long they have worked for. In that case, an employer will typically pay out the employee’s regular pay for the remainder of the resignation period if they want the employee to leave sooner. It is unclear whether there is an unwritten “two-week notice” rule in your industry.
I recommend that you wait until you have a new job offer before you provide any resignation notice. Once you have a job offer and a proposed start date, speak with your employer and let them know that you are prepared to continue to work for the next two weeks. If they do not want you to continue to work for them, go back to your new employer and try to negotiate an earlier start date to help bridge the gap in pay between your old job and your new job. If you’re afraid of losing income, you can wait until the day before your new job starts before you quit your old job, so long as this happens before you’re employed for more than 90 days.
THE SECOND ANSWER
Lior Samfiru, employment lawyer and co-founding partner, Samfiru Tumarkin LLP, Toronto
The first thing to remember is that there is no such thing as an automatic probation period in Ontario. Just because you start a new job, it does not mean you are on probation. Probation only exists if you signed an employment agreement which includes a valid probation clause and which allows the company to let you go without notice. Even then, it’s limited to three months. A six-month probation period is legally meaningless because your employer must still provide severance after the third month.
If you signed an agreement with a valid probation clause and you resign with notice, your employer can let you go immediately without further obligation. On the other hand, if you did not sign such an agreement, your employer would have to pay you for the duration of the notice given.
It is also important to remember that if you did not sign an agreement with a probation clause and you are let go in the first few months of employment, you could have significant severance entitlements, which will be measured in months, not weeks.
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