TERMINATED ON THE FIRST DAY OF EMPLOYMENT. What are your Rights

WITHDRAWAL OF EMPLOYMENT BEFORE COMMENCEMENT REQUIRES REASONABLE NOTICE.

It is common for employers to decide that they do not need the just hired employee(s)- after rigorous interviews, an unconditional offer made and then accepted by the new employee. The employer may realize after making a job offer that they have insufficient budget for a new employee or that a more experienced fit was found for the position. For a new employee, who may have already submitted a resignation notice to a current employer, a last-minute withdrawal can be disheartening. Therefore, question becomes what recourse, if any, is available to the new employee?

Under Canadian case laws, the short answer remains that a new employee fired before the actual commencement of the employment, is entitled to a reasonable notice just as an employer that has already begun their employment with the company.  Once the new employee accepts the offer (whether written or not), a binding contract with the employer is established. Nothing limits the new employee from receiving a reasonable notice even if the employment becomes terminated before the first day of the job.

What if the employee signed a contract with a Probationary Term?

Often, we see employers include a probationary term defining what the new employee receives upon an early termination. A written employment contract that includes a probationary term is wise. It may limit the new employee’s entitlement upon an early termination if signed with the acceptance of the employment offer.

Three years ago, however, the British Columbia Court found in Buchanan v Introjunction Ltd., 2017 BCSC 1002 (CanLII)[Buchanan] that a limitation of entitlement by probationary term is not automatic. In this case, the employer included a probationary clause in the employment contract but failed to make the probationary clause start before employment was to begin. The Court noted that even though the probationary clause provided that the three-month probation period commences as of the effective date of November 1, 2016, it was not in force on October 29, 2016, when the defendant retracted the employment contract. The Court found that the employee was entitled to six weeks’ severance.

Buchanan makes it clear that a probationary clause that starts on the day an employee is supposed to start work may be limiting but will not displace an employee’s right to severance if terminated before they start work. In that case, the employer will still owe a reasonable notice of termination.

If you have been terminated before or during a probationary period, please contact Osuji & Smith today to help you with any questions about your legal entitlements.

Author: Calista Nwaiwu