A 39-year-old programmer recently called me after being fired just over five months into a new job.
The company gave no detailed reason. It simply pointed to a probation clause in his contract and told him there would be no compensation.
He wanted to know whether the employer could really terminate him after more than five months and pay him nothing.
The answer is: not necessarily.
Once an employee has worked for at least three months, minimum termination rights generally apply in Ontario. Whether this employee is owed significantly more than those minimums depends on the wording and validity of his employment contract.
What happens after three months of employment?
The three-month mark is important in Ontario.
Once an employee has completed at least three months of employment, minimum termination rights generally apply if they are let go without cause.
That means an employer can’t simply rely on the word “probation” to assume it owes nothing.
But those minimum standards are only the starting point. Depending on the wording of the employment contract, a non-unionized employee also has greater severance rights under common law.
That is why someone who is fired after only five months should not assume that short service — or a probation period — means they are entitled to little or no compensation.
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Employment standards are only the starting point
In Ontario, an employee who has worked at least three months but less than one year is owed at least one week of pay when fired.
But that one week is only the minimum.
For non-unionized employees, common-law severance pay can be much greater — up to 24 months’ pay — unless a valid employment contract limits it. The analysis looks at factors such as age, position, length of service and the availability of comparable work.
That is why severance should not be reduced to a simple “one week per year” formula.
Someone can spend only a few months with a company and still have a potential severance package measured in months.
READ MORE: Severance for short-service employees could be more than you expect
How much severance could a five-month employee receive?
In this case, the employee is 39, worked as a programmer and had just over five months of service.
At a minimum, he should not assume that being called “probationary” means he is entitled to nothing.
If his employment contract does not validly limit his common-law rights, a short-service employee in his circumstances could potentially be entitled to significantly more than the minimum required under employment standards.
Using our Severance Pay Calculator, someone with his age, position and length of service could potentially be owed around three months of compensation.
But the employment contract matters. A valid probation clause could affect that amount.
That is why employees should have their contract reviewed before accepting an employer’s claim that they are owed nothing.
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Probation can affect your rights, but it does not automatically wipe them out.
A five-month employee may be owed far more than the employer’s first offer suggests, especially if the contract does not validly limit full severance.
You can use the severance pay calculator to get an initial sense of what may be owed, but have your employment agreement and termination package reviewed by an employment lawyer at Samfiru Tumarkin LLP before signing away your rights.
If you are fired after only a few months, do not assume you are owed little or nothing. Find out what the contract says and what the law may still provide.
Contact Samfiru Tumarkin LLP or call 1-855-821-5900 for a consultation with an employment lawyer. Get the advice you need and the compensation you deserve.
Lior Samfiru is an employment lawyer and co-founding partner at Samfiru Tumarkin LLP, Canada’s most positively reviewed law firm specializing in employment law and long-term disability claims. He provides legal insight on Canada’s only Employment Law Show on TV and radio.
