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If an employee works less than 3 months are they entitled to any notice before being fired without cause? Does it matter if they're given some kind of warning or explanation?

I was reading this website but IMHO it gives contradictory information:

The BC Employment Standards Act requires employers to provide a minimum amount of notice to employees in the event of their termination without cause specifically no notice if termination occurs within the first 3 months of employment

but then it also cites the case where an employee being fired after 2 months with no notice was found to be illegal.

For the purpose of this question assume nothing was explicitly agreed to in writing i.e. a probation period was not included in the employment contract. As an aside, I heard that employees performing a federal service automatically have a 6 month probationary period, though I can't find a reference to this. Assume this is not a government job.

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No

If an employee works less than 3 months are they entitled to any notice before being fired without cause?

Ah! I see your confusion! Yes, they don’t need notice - that’s what probation means. However, they can’t be fired without cause. Probation doesn’t allow arbitrary dismissal.

Does it matter if they're given some kind of warning or explanation?

Absolutely. People on probation still need to be treated fairly and can only be dismissed in the same way as non-probationary employees; just without a notice period.

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  • I'm having trouble understanding. So you can be terminated with no notice before the probation is up, but they must prove they have a reason? Oct 1 '20 at 21:07
  • @oneonetwothree yes, probation in BC does not give the employer the right of “at will” firing - termination must still be for a valid reason.
    – Dale M
    Oct 1 '20 at 21:25
  • But wouldn't the employer have no liability before 3 months? Oct 1 '20 at 22:39
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The BC Employment Standards Act only provides a statutory minimum threshold that employment contracts must meet in terms of giving notice of termination. For an employee that has worked less than three months the there is no statutory minimum notice period. However this doesn't prevent a contract from specifying a greater period. If the contract doesn't specify a notice period, or one that doesn't comply with the ESA, then common law can provide for a greater period than the statutory minimum.

In the case you're referring to through the linked news article, Ly v. British Columbia (Interior Health Authority), there was a contractually agreed to probation period. Interior Health was determined to have fired Phuc Ly in bad faith. While the probationary period meant that they would have been able to fire Ly without notice for not being suitable for the job, he wasn't given a reasonable chance to show that he was suitable.

In a case where someone was fired after only being employed for two months but there was no contractually agreed probationary period or notice period, then common law could require reasonable notice despite the BC ESA not requiring any. It's hard to say what a reasonable notice period would be however, a lot would depend on the employee and the nature of the employment.

If there was no probationary period but the contract expressly provided for termination without notice for an employee employed for less than three months, then no notice would be required. Since there was no probationary period, the employer wouldn't need to determine if the employee was suitable or not. Not having a contract like this was essentially Interior Health's mistake.

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  • I'm a bit confused. So if there was no contractually agreed upon probation period, must an employee be given any notice or warning before being terminated assuming he had worked there less than 3 months? Oct 1 '20 at 21:11
  • @oneonetwothree It would ultimately depend on what a judge decides would be the notice period required by common law. There no statutory law saying what the required notice period is. The ESA only sets a minimum notice periods that neither common law nor a contract can override with a shorter notice period. The ESA doesn't actually set the required notice period. Common law or a contract can set a longer notice period..
    – Ross Ridge
    Oct 1 '20 at 21:45

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