For the next few months, I will be answering some common questions that we get from clients related to immigration and employment matters. This one is a frequent source of confusion:
“What happens if an employee’s work permit expires—do I need to provide notice?”
Well, here comes the classic lawyerly answer: it depends!!
- No Extension = Likely No Notice Required
If an employee’s work permit expires and the employee did not apply for an extension before the expiry date, the employment relationship may be considered frustrated. That means the contract cannot be fulfilled due to unforeseeable circumstances – namely, the employee is no longer legally authorized to work in Canada.
In Manitoba, section 62(1)(f) of The Employment Standards Code supports this approach. It states that notice or pay in lieu is not required when:
“… the employee is employed under an agreement or contract of employment that is impossible to perform or has been frustrated by a fortuitous or unforeseeable circumstance.”
So, if an employee fails to take proper steps to maintain or restore their work permit, the employer will generally not be required to provide notice or pay in lieu.
- If the Employee Has Applied for an Extension – It’s a Different Story
If the employee has applied to extend their work permit before it expires, then they benefit from what is now called “maintained status” (formerly “implied status”).
Under sections 186(u) and 201(1) of the Immigration and Refugee Protection Regulations:
- The employee can continue working legally while the IRCC processes the application, provided they remain in Canada and continue to comply with the conditions of their expired permit:
186(u) “A foreign national may work in Canada without a work permit… (u) until a decision is made on an application made by them under subsection 201(1), if they have remained in Canada after the expiry of their work permit and they have continued to comply with the conditions set out on the expired work permit, other than the expiry date.”
201(1) “A foreign national may apply for the renewal of their work permit if (a) the application is made before their work permit expires; and (b) they have complied with all conditions imposed on their entry into Canada.
Takeaway: An employer cannot terminate employment just because the permit has expired, as the employee remains authorized to work. Doing so could lead to claims of wrongful dismissal or even human rights complaints.
- What Employers Should Do
Before taking any action, employers should:
- Ask the employee whether they applied for an extension before the expiry date;
- Request proof (e.g. IRCC acknowledgment of receipt);
- Document all communications and due diligence efforts to verify status; and
- Contact us!
⚠ Don’t rely on verbal assurances alone. Under section 124(c) of the Immigration and Refugee Protection Act, it is an offence to employ a foreign worker without valid work authorization.
Continuing to employ a foreign worker without proper authorization can expose employers to serious consequences, including fines, bans on hiring foreign workers, denial of applications, and damage to reputation.
- Protecting Yourself: Contract Language Matters
It is good practice to include immigration-related language in your employment contracts. Consider clauses that:
- Clarify the employee’s responsibility to maintain valid authorization to work;
- Acknowledge the employer’s limited role in immigration processes;
- Explain the consequences of losing status, including termination due to frustration.
Final Thoughts
Immigration status and employment obligations can get complicated – fast.
If you’d like help updating your employment contracts or navigating a specific situation, reach out to us. We are here to help!
Stay tuned for the next installment, where I’ll tackle another intersection between employment law and immigration compliance.
DISCLAIMER: This article is presented for informational purposes only. The views expressed are solely the author(s)’ and should not be attributed to any other party, including Taylor McCaffrey LLP. While care is taken to ensure accuracy, before relying upon the information in this article you should seek and be guided by legal advice based on your specific circumstances. The information in this article does not constitute legal advice or solicitation and does not create a solicitor-client relationship. Any unsolicited information sent to the author(s) cannot be considered to be solicitor-client privileged.
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