Canadian Employment Law Today

Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com RUDNER LAW TORONTO Canadian HR Reporter, a Thomson Reuters business 2018 2 | July 18, 2018 with Stuart Rudner and Nadia Zaman Ask an Expert Answer: All employees are entitled to statu- tory leaves, but some have eligibility require- ments that include a minimum length of em- ployment. Accordingly, whether or not an employee is entitled to a particular statutory leave often depends on her length of service with the company, regardless of whether or not the employee is a probationary employ- ee. As a result, an employment offer cannot include a provision that probationary em- ployees are not entitled to any type of leave for the duration of their probation, since excluding the leaves would be in breach of employment standards legislation such as Ontario's Employment Standards Act, 2000 (ESA). Contracting out of the ESA is prohib- ited and any attempts to do so would be un- enforceable. e following are examples of statutory leave entitlements in Ontario, for example, and how they may affect probationary em- ployees (other jurisdictions have varying but in many cases similar types of leave): •Vacation — Employees are technically not entitled to vacation time pursuant to the ESA until their first year of employment has been completed. However, employees are statutorily entitled to receive vacation pay, regardless of their length of service with the employer. •Personal Emergency Leave — All em- ployees who are covered by the ESA are entitled to 10 "Personal Emergency" days, of which the first two days must be paid. Employees need only be employed for one week before being entitled to the two paid days. If a personal emergency day is required in the first week of employment, it is taken from the eight unpaid days the employee has available, unless the contract of employment provides a greater benefit to the employee. •Family Caregiver Leave — All employees who are covered by the ESA are entitled to take family caregiver leave. ere is no re- quirement that an employee be employed for a particular length of time, or that the employer employ a specific number of em- ployees for the employee to qualify for this leave. Family caregiver leave is unpaid, job- protected leave of up to eight weeks per calendar year per specified family member in respect of whom a qualified health prac- titioner has issued a certificate stating that the family member has a serious medical condition. •Family Medical Leave — All employees who are covered by the ESA are entitled to take family medical leave. ere is no re- quirement that an employee be employed for a particular length of time, or that the employer employ a specific number of em- ployees for the employee to qualify. Fam- ily medical leave is unpaid, job-protected leave of up to eight weeks in a 26-week period. is leave may be taken to provide care or support to certain family members and people who consider the employee to be like a family member in respect of whom a qualified health practitioner has issued a certificate stating that he or she has a seri- ous illness with a significant risk of death occurring within a period of 26 weeks. • Pregnancy and Parental Leave — A fe- male employee who has completed at least 13 weeks of continuous employment is entitled to a 17-week job protected preg- nancy leave without pay. An employee who has completed at least 13 weeks of employ- ment, who is the parent of a child (natural or adoptive), and who has not taken preg- nancy leave, is entitled to up to 63 weeks of job protected parental leave without pay. An employee who has taken pregnan- cy leave is entitled to 61 weeks of parental leave and, therefore, up to 78 weeks (17 weeks plus 61 weeks) of combined preg- nancy and parental leave. We note that there is no entitlement to be- reavement leave under the ESA for any em- ployee, though Personal Emergency Leave might apply in certain circumstances. For further information regarding statu- tory leave entitlements, employers should consult the applicable employment stan- dards legislation. Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com Leave entitlements for probationary employees Question: Do statutory leave entitlements apply to probationary employees? Can an employment offer include a provision that probationary employees are not entitled to any type of leave (bereavement, family, vacation, etc.) for the duration of their probation? Reason for terminating probationary employee Question: Does the employer have to provide a reason for termination to a probationary employee? Answer: e short answer is no. e pur- pose of a probationary clause is to give both parties an opportunity to assess whether the employee is a good fit for the workplace. Contrary to popular belief, probationary terms are not implied in all contracts of employment. When hiring a new employ- ee, employers who want to characterize the first several months of employment as a "probationary period" must have a proba- tionary clause explicitly written in the em- ployment contract. A probationary period will typically have a significant impact on an employee's entitlements if her employ- ment ends during this period. e principles surrounding the interpre- tation and enforcement of a probationary clause in an employment agreement were dealt with in a relatively recent Ontario Court of Appeal decision, Nagribianko v. Se- lect Wine Merchants Ltd. Justice Sanderson confirmed that, provided that a probation- ary employee is given "a fair opportunity to demonstrate suitability for permanent em- ployment," an employer is entitled to termi- nate the employment of a probationary em- ployee without notice (beyond that required by statute) and without giving reasons. Where an employer has terminated the employment of a probationary employee for unsuitability, Justice Sanderson noted that "the employer's judgment and discre- tion in the matter cannot be questioned." e employer must only demonstrate that it acted fairly in determining the suitability of the probationary employee. Where an employer intends to rely on a probationary clause to terminate an em- ployee's employment without cause, the employer should ensure that: •e probationary clause is clear and unam- biguous. •e probationary clause complies with em- ployment standards legislation. •e employer exercises its discretion in good faith and provides the employee with a fair and reasonable opportunity to dem- onstrate her suitability. For more information see: •Nagribianko v. Select Wine Merchants Ltd, 2017 CarswellOnt 9969 (Ont. C.A.). Stuart Rudner is the founder of Rudner Law, an employment law firm in Markham, Ont. He is the author of You're Fired: Just Cause for Dismissal in Canada published by Carswell, a omson Re- uters business. He can be reached at stuart@rud- nerlaw.com or (416) 864-8500. Nadia Zaman is an associate at Rudner Law in Toronto.

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