Hired and Fired Before You Even Started Gets You 6 Weeks Pay in Lieu, Tax Free:

In Buchanan v Introjunction Ltd ( 2017 BCSC 1002) Justice Skolrood awarded 6 weeks  notice to a 27 year old Senior Software Engineer who was supposed to make $125,000 per year in this new job.

The Employer purported to ” retract” the offer of employment after it was accepted, which the Court found was a dismissal.

The employment agreement had an probationary clause , which the Defendant tried to rely upon, however the Judge rejected that argument saying as follows:

16      The defendant submits that the probation clause should be found to apply because it would be illogical for the plaintiff to have better rights before he commenced employment than once he started work, given that as of November 1, 2016, the defendant had an unfettered right to terminate the plaintiff without notice or cause.
17      I find that the defendant cannot rely on the probation clause to support its termination of the plaintiff without notice. I reach this conclusion for the following reasons.
18      First, on its face, the probation clause provides that the three month probation period commences as of the effective date of November 1, 2016. Thus, it was not in force on October 29, 2016 when the defendant retracted the Contract. Had the defendant intended to maintain a right to terminate the Contract without notice at any time after execution, it could have included a term to that effect. In DeGagne, Madam Justice Dardi similarly found that a probation clause had no application prior to the employee actually starting work (at para. 45).
19      Second, I reject the defendant’s argument that had the probation clause applied, it gave the defendant an unfettered right to terminate the plaintiff without notice or cause. The purpose of a probationary period is to permit the employer to engage in a good faith assessment of the employee’s suitability for the position in issue.
20      This point was recently confirmed by Madam Justice Morellato in Ly v. Interior Health Authority, 2017 BCSC 42 (B.C. S.C.) where she said at paras. 57-58:
[57] As addressed above, the test for dismissal in the context of probationary employment is suitability. Just cause need not be established. An employer needs only to establish that it acted in good faith in its assessment of the probationary employee’s suitability: Jadot.
[58] In determining whether an employer acted in good faith, courts have examined the process through which the employer determines whether the employee is suitable for permanent employment. While an employer is not required to give reasons for the dismissal of a probationary employee, that employer’s conduct in assessing the employee is reviewed by the court in light of various factors such as: 1) whether the probationary employee was made aware of the basis for the employer’s assessment of suitability before, or at the commencement of, employment; 2) whether the employer acted fairly and with reasonable diligence in assessing suitability; 3) whether the employee was given a reasonable opportunity to demonstrate his suitability for the position; and 4) whether the employer’s decision was based on an honest, fair and reasonable assessment of the suitability of the employee, including not only job skills and performance but also character, judgment, compatibility, and reliability: See Geller v. Sable Resources Ltd., 2012 BCSC 1861at para. 33; Ritchie; Jadot; Longshaw v. Monarch Beauty Supply Co., [1995] B.C.W.L.D. 2945 (S.C.); Rocky Credit Union Ltd. v. Higginson (1995), 27 Alta. L.R. (3d) 348 (C.A.); Jacmain v. Attorney General (Can.) et al., [1978] 2 S.C.R. 15 (S.C.C.); Gebhard v. Board of Education of the Wilkie School Division No. 59 (1986), 52 Sask. R. 272 (Q.B.).
21      Here, there was no good faith assessment by the defendant of the plaintiff’s suitability for the job for which he was hired. Suitability was not a factor at all; rather, the defendant changed its mind about its business and staffing needs. This is apparent from Mr. Nabavi’s October 29, 2016 letter to the plaintiff where he said:
This decision is due to further evaluation of our business priorities and resource needs. It, needless to say, has absolutely no reflection on you. We simply made a mistake of hiring too many front-end people.
22      While it was open to the defendant to do so, it cannot rely on the probation clause to escape its obligation to pay damages in lieu of notice.
Here is a little known tax fact. Because the Plaintiff was fired from his job before he actually started, his damages are not taxable. ( Schwartz v The Queen [1996] 1 SCR 254.