Probation and Termination in BC: What Employers Owe

Many BC employers assume a new hire can be let go within the first three months at no cost. This is not accurate.

In June 2024, a Victoria company dismissed its corporate controller without cause after less than 11 weeks. The BC Supreme Court awarded four months of reasonable notice — approximately $40,296.81. (Ho v. Monk Office Supply Ltd., 2026 BCSC 1324.)

The ESA minimum is usually not the amount you pay

The BC Employment Standards Act sets minimum termination notice or pay, and that entitlement generally does not apply before three consecutive months of employment.

But the statutory minimum is usually not what an employer pays. Unless an enforceable contract limits it, a dismissed employee is owed common-law reasonable notice, which is typically higher. This is the default, and it can apply from the first day of employment when an employee is dismissed without cause and no enforceable contractual limit applies. So an employee dismissed at week ten can still be owed pay in lieu of notice, even though no statutory termination pay applies yet. Final wages and accrued vacation are payable in any case.

Do not treat the three-month mark as protection. It settles the statutory minimum, not your full exposure.

Short service can still mean significant notice

For short service in professional or managerial roles, BC courts have sometimes used two to three months as a starting point. This is not a guaranteed floor — each case depends on its facts. The notice period considers factors such as the availability of comparable work and the circumstances of the employment; mitigation may affect the final amount payable. The court considered evidence about the availability of comparable positions, including the employee's unemployment and subsequent pay reduction.

The "one month per year of service" estimate is unreliable, particularly under about five years of service.

Treat short tenure as a real cost, and limit it through the contract.

A written, enforceable clause is what limits exposure

Only a clear, enforceable contractual term — preferably in writing — can limit exposure beyond the ESA minimum.

A properly drafted termination clause can limit an employee to defined amounts instead of open-ended common-law notice, if it is enforceable under its exact wording and the circumstances. A probation clause may displace common-law notice during the early period, if properly drafted and applied through a genuine, good-faith assessment of suitability.

In the Monk case, the employer had an offer letter, but the court found it did not displace the common-law right to reasonable notice. A document alone does not limit what an employer owes; the clause within it must, or a court may find it unenforceable. The exact drafting is what matters — our post Employment Contracts in BC: What Small Businesses Get Wrong covers the most common mistakes.

Two points on enforceability:

• A termination clause must preserve all applicable ESA minimum entitlements at all times and address any contractual benefits or compensation payable during the notice period. Falling short on any point may make it unenforceable.
• A probation clause is not automatic. Courts expect a genuine assessment of suitability, not an arbitrary dismissal labelled "probation."

Have an enforceable termination clause (and a probation clause, if you want probationary protection) drafted and reviewed by a BC employment lawyer. New hires should sign before their first day. For an existing employee, a new contract generally requires fresh consideration (something of value in return) to be enforceable.

The manner of dismissal

For a without-cause dismissal of a non-unionized employee, an employer generally need not give a reason, warning, or progressive discipline.

This is limited. The dismissal cannot be discriminatory or retaliatory, or based on a protected ground under the BC Human Rights Code. The employer must not mislead the employee about the reason for the dismissal or their entitlements, and must act in good faith in the manner of dismissal. In the Monk case, the employer acted privately and provided a reference letter, and the court declined to award aggravated damages.

Keep the process private and respectful, give no misleading reasons, and do not act on a discriminatory or retaliatory basis. In BC, an employer that terminates an employee generally must pay final wages and vacation pay within 48 hours; issue the Record of Employment within the applicable federal deadline.

Summary

The three-month rule applies to the ESA termination-notice/pay minimum only. It does not limit common-law reasonable notice. Employers reduce their exposure by putting proper contracts in place before they are needed.

FREE CHECKLIST

The BC Termination & Contract Health-Check — download this free checklist to assess whether your contracts and termination process would hold up. Also available on our Resources page.

Senterra HR helps BC employers put defensible contracts and termination processes in place. Book a free consultation.

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