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From a Canadian employment-law perspective, the safest starting point is to assume that no enforceable probation clause exists and that the employee was employed under an implied contract with full common-law notice rights (subject to statutory minimums). The best remediation is not to try to “fix” the past record to support probation, but to align the employer’s position with what can actually be proven: that the employee was hired without a clearly agreed probation term. Practically, this means assessing termination exposure based on reasonable notice (or ESA minimums at a minimum) and, if the termination has already occurred, considering whether a severance adjustment or settlement is appropriate to mitigate risk.
The onboarding form completed on the day of termination is problematic, particularly because it asserts that probation was verbally discussed without supporting contemporaneous evidence. In a dispute, timing matters: documents created after the fact—especially on the termination date—can be given little weight or even undermine credibility if they appear self-serving or inconsistent with earlier records. This doesn’t automatically imply bad faith, but it does expose the employer to arguments of poor HR governance, unreliable record-keeping, or retroactive justification.
In terms of correcting the record, best practice is transparency rather than alteration. The employer should not backdate or revise the original document in a way that obscures its creation date. Instead, HR can add a clear, dated annotation or memo to file explaining when the form was actually completed and acknowledging that there is no contemporaneous documentation confirming that probation was discussed at the offer stage. If the employee has requested their file, any clarification should be factual, neutral, and consistent across all records to avoid compounding inconsistencies.
Legally, this situation significantly weakens the employer’s ability to rely on probation to justify a termination without notice. Courts require clear agreement on probation terms, and ambiguity is interpreted in favour of the employee. Combined with the timing of the documentation, the employer would likely face increased exposure to wrongful dismissal claims and potentially higher damages if credibility is questioned. While aggravated or bad-faith damages are not automatic, inconsistent or after-the-fact records can contribute to such arguments if the employee alleges unfair dealing.
From an HR governance standpoint, the focus now should be on risk containment and process correction: ensure future offers are documented and signed before start, implement controls so onboarding forms are completed contemporaneously, and train hiring managers on communicating and documenting key terms like probation. In the current case, a measured, good-faith approach—grounded in accurate records and, if needed, a reasonable settlement posture—will do more to reduce legal and reputational risk than attempting to defend a probationary framework that is not well supported by the evidence.
Note: I am not a lawyer nor am I an HR director, and in a case as complex as this, I would advise speaking with legal counsel or your HR team before proceeding.
-HRInsider Staff
A binding employment contract is very likely formed once a candidate accepts a verbal offer and begins work, even if nothing is put in writing. In Canadian employment law, contracts do not need to be written to be enforceable. The terms of that contract are based on what was agreed verbally and any implied terms under common law, such as reasonable notice of termination. If key terms like probation or conditions were not discussed before the employee started, they are generally not considered part of the agreement.
A “welcome letter” sent after the employee has already started work typically cannot impose new or different terms on its own. For new terms to be enforceable, the employee must clearly agree to them, and there must usually be fresh consideration (something of value in exchange). A document that does not require a signature or explicit acceptance—especially one sent after employment begins—will likely be treated as informational rather than contractual.
This situation creates meaningful legal risk for the employer, particularly if they later rely on terms like probation. Courts in Canada interpret probation clauses strictly, and if such a term was not clearly agreed to before employment began, it may be unenforceable. As a result, an employee terminated during “probation” could still be entitled to statutory or even common law reasonable notice, increasing the employer’s liability.
The absence of a properly executed written agreement also means the employer may not be able to rely on termination-limiting clauses. Instead, the employee defaults to common law entitlements, which can be significant for management-level roles—often several months of pay. Additionally, introducing terms after the fact can raise fairness and credibility concerns if the situation is challenged.
Best practice for HR is to ensure that a written offer or employment agreement is provided and signed before the employee starts work. This document should clearly set out key terms such as compensation, probation, termination provisions, and any conditions of employment. Allowing an employee to begin work before these terms are documented and accepted significantly reduces the employer’s ability to enforce them and increases legal and financial risk.
-HRInsider Staff
in reply to: Duty to Inquire #99138General resources pertaining to available site content on HRInsider and OHSInsider, such as policies and tools, as I understand people predominantly use this resource to aid them in navigating our sites.
-HRInsider Staff
You should continue to treat the role as full-time unless and until the employee formally requests a change. If a request for part-time hours is made, it should be assessed objectively based on legitimate business needs such as scheduling, service levels, and operational coverage. Since attending school is not a protected ground under the Ontario Human Rights Code, there is no legal duty to accommodate the request, but it should still be considered in good faith and documented carefully.
If the request is denied, you should clearly communicate that the position requires full-time availability and that this requirement is based on business needs, not the employee’s personal choice to attend school. It is important to avoid any language that could be interpreted as discouraging the employee from remaining employed or suggesting resignation. The focus should remain on the requirements of the role rather than the employee’s request.
At that point, you should allow the employee to respond and confirm whether they can continue to meet the full-time requirements of the position. This step is critical, as it ensures that any next steps are based on the employee’s stated ability to fulfill the role, rather than assumptions or pressure from the employer. Maintaining this distinction helps reduce legal risk.
If the employee confirms they are unable to meet the full-time requirements, you can then consider appropriate next steps. While the employee may choose to resign voluntarily, this should never be presented as an expectation or preferred outcome. If the employee does not resign and cannot meet the role’s requirements, you may proceed with a termination without cause, providing appropriate notice or pay in lieu.
Throughout the process, you should ensure consistency, clear documentation, and a neutral, business-focused rationale for all decisions. Care should also be taken to watch for any potential human rights considerations that may arise indirectly. By keeping a clear separation between the employee’s personal choices and the organization’s operational requirements, you can manage the situation in a fair and defensible manner.
I hope this helps!
-HRInsider Staffin reply to: Benefits Extension during stat Notice Period #99116Across Canada, employers are generally required to continue employee benefits (such as health coverage) during the statutory notice period, although the legal wording varies by jurisdiction. Ontario is the clearest example, as its legislation explicitly requires employers to maintain benefit plan contributions throughout the notice period. Other provinces like Alberta and British Columbia do not state this as directly but prohibit employers from reducing wages or changing terms and conditions of employment during notice—this has been interpreted to include benefits, meaning they must be continued.
In the remaining provinces, territories, and under federal jurisdiction, the same principle effectively applies: employees must not be disadvantaged during the statutory notice period. As a result, employers are expected to either maintain benefits or provide equivalent compensation if continuation is not possible (for example, due to insurer limitations). Overall, there is no Canadian jurisdiction where employers can simply stop benefits during statutory notice without providing some form of replacement value.
Check out these resources:
Prior Ask The Expert on this topic
Severance Best Practices
and this section of the Canada Labour CodeI hope this helps.
-HRInsider staff
in reply to: expediting resignation under probationary period #99054This situation is governed by the Alberta Employment Standards Code, and the key issue is that your organization chose to end the employment earlier than the employee’s stated resignation date. Although the employee provided two weeks’ notice, releasing them immediately is treated as the employer ending the employment at that earlier date.
Because the employee had only been employed for about a month, they were still within the 90-day probationary period recognized under Alberta law. During this period, either the employer or the employee can end the employment relationship without providing notice or pay in lieu of notice.
As a result, you are not required to pay the employee through to their intended resignation date. Your obligation is limited to paying them for all wages earned up to their final day worked, along with any applicable vacation pay that has accrued.
One important consideration is whether there are any contractual terms, workplace policies, or collective agreements that provide greater entitlements than the minimum standards. If such provisions exist and promise pay through a notice period, they could override the default rules and require additional payment.
I hope this helps!
-HRInsider StaffYes—under Ontario’s Employment Standards Act, you can have some employees on an overtime averaging arrangement and others on the standard (non-averaged) system, as long as each employee (or group) has a valid, compliant written averaging agreement in place where required. The ESA does not require averaging to be applied uniformly across all employees—it’s permissible to tailor it to specific roles or programs, such as those involving frequent travel.
That said, the distinction should be based on legitimate operational differences (e.g., travel demands, scheduling variability) and applied consistently within each group. You’ll also need to ensure all ESA requirements for averaging agreements are met (including any necessary approvals and limits), and avoid any perception of unfair or discriminatory treatment between groups. Going forward, I highly recommend working with legal counsel or hiring an HR team to be available to you at your workplace so you can go over these questions in depth with them.
-HRInsider Staff
In Ontario, an employer can use a 4-week overtime averaging period, but only if there is a valid written averaging agreement that complies with the ESA. Under such an agreement, overtime is calculated based on the average weekly hours over the period, not on each individual week. This allows excess hours in one week to be offset by fewer hours in another, with any overtime owing determined at the end of the averaging period and paid or provided as time off in lieu (where agreed).
That said, this is not truly “day-to-day netting.” Ontario does not have a daily overtime threshold, so working extra hours one day and fewer the next is generally irrelevant in itself. What matters legally is the total hours across the averaging period. The flexibility you describe is achievable in effect, but only through proper averaging—employers cannot retroactively adjust schedules or informally net hours to avoid overtime.
In Quebec, the framework is different. Overtime is generally calculated on a weekly basis (over 40 hours), and while employers often have scheduling flexibility that allows hours to fluctuate within or between weeks, there is no equivalent, widely used statutory averaging mechanism like Ontario’s. As a result, similar outcomes may be possible in practice, but they depend more on how schedules are structured and less on a formal averaging regime.
In Manitoba, your proposed approach would not work under default rules because overtime applies after 8 hours in a day or 40 hours in a week. This means extra hours worked on a given day trigger overtime immediately and cannot be offset by working fewer hours later. To achieve averaging or “netting” of hours, the employer must have a valid flex-time or averaging agreement in place; otherwise, daily overtime obligations apply regardless of later schedule adjustments.
-HRInsider Staff
in reply to: Vacation Pay Calculation #98749Yes, the second piece I linked to does. Just by searching gross wages calculated on the site I was able to find this PDF – look around! If you still have a specific question to a certain province that you cannot find an answer to, drop a line here.
-HRInsider Staff
in reply to: Vacation Pay Calculation #98747Here is a handy tool on how to calculate vacation pay and vacation pay requirements by province – take a minute to peruse the site, we have tons of resources for this!
-HRInsider Staff
in reply to: Overtime start and end #98746In Alberta, overtime is based on “hours of work,” and the key question with travel is whether that time is considered work. Not all travel qualifies. Time counts toward overtime only if the employee is performing duties, is required to travel as part of their job, or is under the employer’s control (for example, driving between job sites or working during travel).
Travel that is considered passive—such as commuting to a regular workplace, sitting on a plane, or waiting at an airport—generally does not count as work time under minimum standards. This means that, in most cases, simply travelling (even on a weekend) does not automatically trigger overtime unless the employee is actively working during that time.
In your example of Sunday travel to the airport and taking a flight, most of that time would not be considered work under Alberta law unless the employee is required to perform duties (e.g., making calls, preparing materials). As a result, overtime would typically not begin during that travel period based on minimum legal requirements alone.
However, employers have flexibility to go beyond the minimum standards, and many choose to compensate travel time for fairness and retention. A clear policy should define what counts as “work during travel,” how passive travel is treated, whether weekend travel is paid, and explicitly state which hours count toward overtime.
We’ve had similar questions about business travel policies and have available policies on this site about travel for and at work – check them out!
-HRInsider Staff
in reply to: payroll bi weekly semi monthly issues #98744For a short-term (90-day) full-time contract, hourly is often the cleaner and lower-risk approach—especially if the role may involve any variability in hours, overtime, or schedule changes. Hourly pay ensures you’re automatically compliant with Alberta’s rules around overtime, general holiday pay, and accurate earnings tracking without needing to “reverse engineer” an equivalent hourly rate from a salary. It also aligns well with paying vacation pay out each period, which is common for short-term or temporary roles and avoids accrual/termination payout complexities at the end of the contract.
That said, salary can still make sense if the employee will work consistent, predictable hours with little to no overtime and you want a simpler, fixed compensation structure. The hesitation around salary for short contracts usually comes from administrative edge cases—prorating partial periods, ensuring compliance with minimum standards for hours worked, and handling any overtime that might arise. If those risks are minimal, salary isn’t inherently wrong—it just requires tighter controls.
In your case, hourly with vacation paid out semi-monthly is likely the most straightforward and defensible option. It keeps everything transparent, reduces compliance friction, and avoids cleanup at the end of the 90-day term. Salary could work, but it doesn’t offer a clear advantage unless there’s a strong operational reason for it.
-HRInsider Staff
You can follow up to ask whether the absence is related to their accommodation, since you’re actively managing a return-to-work plan and need some clarity for scheduling. If it’s not related, it’s generally reasonable to remind them to follow your usual process for requesting vacation or personal time in advance. The key is to keep the tone neutral and focused on planning rather than discipline. That said, I’m not a lawyer — this is general guidance based on typical Canadian HR practices, so you may want to check with legal counsel if the situation becomes more complex or sensitive. An ongoing conversation like this is often a good sign that you need an HR department or legal counsel in place for your workplace.
Best of luck –
HRInsider Staffin reply to: Termination #98725Yes, proceeding with termination immediately after receiving a medical note could expose you to a human rights complaint based on disability (or perceived disability), even if the termination is performance-based.
Once an employee provides a medical note, the employer is on notice of a potential disability. Under Canadian human rights law, you now have a duty to accommodate to the point of undue hardship. Terminating right after that disclosure can look like the medical issue was a factor—even if your intent is unrelated.
However, termination is still possible—but only if you can clearly demonstrate that:
-The decision was already made (or inevitable) before the medical leave.
-There is strong, well-documented evidence of performance issues and prior discipline (which you have).
-The harassment incident was investigated and substantiated.
-The employee was given a fair opportunity to improve and clear warning of termination risk.Best practice approach:
Pause the termination while the employee is on leave.
Do not finalize or communicate termination during the leave unless there is urgent business justification and airtight documentation.
When they return, assess fitness to return and resume the PIP/disciplinary process.
If termination proceeds, ensure the rationale is clearly disconnected from the medical leave.Key risk trigger to avoid:
Terminating because of absence or immediately after disclosure without demonstrating accommodation efforts.I hope this helps.
-HRInsider Staffin reply to: Termination within probation period #98604Important note: This situation involves potential exposure under BC employment law, human rights legislation, and WorkSafeBC prohibited action provisions. While the above guidance reflects best practices, you should consider having your response reviewed by an HR professional or employment lawyer to ensure it aligns with current case law and minimizes organizational risk.
You are in a generally defensible position, particularly given that the termination occurred during the probationary period, performance concerns predated the injury, and you made documented efforts to offer modified duties and communicate with the employee. From a risk-management standpoint, the primary areas of exposure are human rights (disability discrimination) and potential WorkSafeBC prohibited action claims, so your response should be carefully framed to show the decision was unrelated to the reported injury while avoiding overly definitive or defensive language.
It is important to maintain the position that this was a without-cause probationary termination, and avoid language that could be interpreted as justifying termination for cause. Performance and attendance concerns can be referenced as context, but the core message should be that the employment relationship was not progressing satisfactorily during probation. Overemphasizing misconduct or non-compliance may unintentionally invite a higher legal threshold or dispute.
When addressing the injury, use neutral and measured language that demonstrates reasonable efforts to accommodate without appearing dismissive. Emphasize that modified duties were offered and that attempts were made to communicate, while noting that no medical information was received to guide accommodation. Avoid framing this as the employee’s failure; instead, position it as a lack of information and engagement that limited your ability to proceed.
Keep the response concise, factual, and non-inflammatory. Avoid overly detailed timelines, emotionally charged language, or statements that could be perceived as argumentative. The tone should reflect a closed, professional position that does not invite further debate, while clearly documenting that the organization acted reasonably and in compliance with its obligations.
Overall, your approach is sound; the key refinement is ensuring the response is carefully worded to reinforce a probationary, without-cause decision, while demonstrating good-faith efforts around accommodation and minimizing risk related to human rights or WorkSafeBC considerations.
-HRInsider Staff
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