The termination clause decides everything
Without an enforceable termination clause, an employee dismissed without cause is entitled to **common-law reasonable notice** — assessed on service, age, role and comparable job availability, and frequently far more than the statutory minimum. Employers write termination clauses specifically to cap that.
Here is the leverage: a termination clause that could, in any circumstance, pay less than the employment-standards minimum is generally **void in its entirety** — and voiding it restores full common-law notice. Canadian courts have struck down a great many clauses on this basis. That is why a termination clause should always be reviewed by a lawyer before you accept an offer *and* again on dismissal.
Bonus, commission and equity on the way out
The question is whether you are entitled to amounts that would have been earned during the notice period. A bonus described as discretionary but paid consistently for years is frequently found to be an integral part of compensation and payable.
Language purporting to require 'active employment' on a payout date has been narrowly construed where it was never clearly brought to the employee's attention. For equity, the plan documents govern, not the offer letter — request them before signing, and check what happens to unvested awards on termination without cause versus resignation.
Probation, fixed terms and constructive dismissal
Probation is not a free pass. Statutory minimums still apply and, in most provinces, an employer must still assess suitability in good faith. A fixed-term contract is riskier for the employer than an indefinite one — ending it early can mean paying the entire remaining term, with no duty to mitigate in some cases.
**Constructive dismissal** arises where an employer unilaterally makes a fundamental change — a significant pay cut, demotion, or forced relocation. It is a genuine claim but a dangerous one to assume: resigning and calling it constructive dismissal when the threshold was not met leaves you with nothing. Get advice before resigning, not after.
Restrictive covenants and what to negotiate
Non-competes are unenforceable or heavily restricted in a growing number of jurisdictions; non-solicitation and confidentiality obligations are far more likely to bind. Scope, duration and geography are negotiable, and boilerplate is usually accepted only because nobody asks.
The highest-value things to negotiate at offer stage are, in order: the termination provision, the treatment of bonus and equity on exit, and the restrictive covenants. Salary is the most visible term and the least consequential over the life of the relationship.
Frequently asked questions
- Can my termination clause really be void?
- Yes. If it could pay less than the employment-standards minimum in any circumstance, courts have commonly struck it entirely — which restores full common-law reasonable notice. Always have it reviewed on dismissal.
- Is my discretionary bonus really discretionary?
- Not necessarily. A bonus paid consistently over years is often found to be an integral part of compensation and payable through the notice period.
- Can I be let go during probation with nothing?
- No. Statutory minimums still apply, and in most provinces the employer must assess suitability in good faith.
- Should I resign if my job changed fundamentally?
- Not without advice. Constructive dismissal is real but the threshold matters — resigning when it is not met leaves you with no claim.
- What should I negotiate hardest?
- The termination clause, the treatment of bonus and equity on exit, and the restrictive covenants. Those decide far more money than salary does.
This guide is general information, not legal advice. Laws, costs, and procedures vary by state, province, and your specific situation — speak with a qualified employment law lawyer about your circumstances before acting.