HR Home Forums Community Termination of ill employee within their probation

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  • Conner Lantz
    Keymaster
    Post count: 4836

    Hi there,
    We are a federally regulated company, so we fall under Canada Labour Code, we are located in Ontario. We have a new hire who started in February. She has been off for over a week due to illness. Upon follow up, I found out she has just been diagnosed with cancer and she stated that she doesn’t know if she will be able to return. I feel so terrible for this employee and feel heartless for even proposing we terminate as she is within her probationary period. What do you recommend we do in this situation as she is still within her probationary period. Benefit entitlement also kicks in after the 3 month probationary period.
    Thank you

    Conner Lantz
    Keymaster
    Post count: 4836

    Oh my! I know how you feel but you have to do your job. These are the situations that make me feel that HR directors are underpaid. Before I answer the question, I want to stress that this is my personal opinion and NOT legal advice, which I’m neither allowed nor qualified to provide. So, if you can run this by counsel, you should.
    Heartless as it may sound, I believe you may terminate the employee for lack of suitability since the employment is still probationary and her CLC benefit entitlements haven’t yet vested. This is assuming that there are no employment contracts or other written agreements promising the employee benefits more generous than the CLC minimums. Another risk to consider is whether you made any verbal promises or assurances of benefits. If so, the employee may seek to hold you to them.
    Of course, there’s more to these things than having the law on your side. I usually urge questioners to do what they feel is right, even if it’s not legally required. The problem is that it’s tough to figure out what the right thing to do with an employee who was with you for only such a period of time. I just hope this little analysis contributes in some way to alleviating what is truly a brutal situation. Lets hope that she makes a full recovery and is able to return to work for you in the near future. Take care.

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