End of work permit
Can the foreign worker be fired for failing to notify the employer that is work permit is expired?
The employer is justified to terminate the employment if the work permit of his foreign worker is expired. This is a question of loyalty to the employer.
The foreigner, before working in Canada or continuing to work in Canada, must obtain a work permit issued by Immigration, Refugees and Citizenship Canada (IRCC), except when exempted by the Immigration and Refugee Protection Act (IRPA). He must maintain this permit valid throughout the employment period. If the permit expires and is not renewed, the foreign worker loses the right to work and to be paid.
The expiry date of the work visa determines the applicable rights. Before the deadline, the foreigner must submit an application for the renewal of his work permit.
A renewal application made on time and according to the requirements of the law could grant the worker an implied worker status, while failure to do so could force the foreigner to apply for reinstatement of his worker status.
If the work visa application has been forwarded and received by IRCC before the expiry date of the said visa, the foreign national has an implied status to continue employment under the same terms and conditions as those set out in the previous work visa, and this legally. The foreign national must inform the employer of the renewal application made and give him the proof of it, if necessary.
Reinstatement of status
An application for reinstatement of status will have to be made if the extension application of the foreigner’s status reaches IRCC AFTER the expiration date of the work permit, but within the ninety (90) days grace period provided by law.
This request made after the expiration date of the work permit but within the grace period grants the right to obtain the reinstatement of his status at the time of the decision, if the conditions are satisfied.
If the reinstatement request is made before the expiration date of the foreigner’s status, but reaches IRCC after the expiration date of the status or if the application is made after the expiration of the foreigner’s status, but within the ninety (90) days period, the foreigner has no implied status and must immediately stop working. The employer must lay him off immediately, otherwise exposing both to the penalties provided for in the legislation.
Work during the reinstatement period
If the foreigner continues to work during the reinstatement period, he is in violation of the law and is subject to measures up to and including removal measures from Canada. The employer, on the other hand, faces a fine of up to $50,000 and two (2) years imprisonment or both, as it is deemed to know that the employer has made the necessary verifications to ensure that his employee holds the work authorizations required to hold the job.
A foreign worker who holds a valid work permit is covered in Quebec by the Act respecting industrial accidents and occupational diseases and the Labor Code, subject however to the existence of a collective agreement. In the event of a lay-off, he or she may apply for Employment Insurance benefits if the eligibility criteria are met in accordance with the Employment Insurance Act. Status in Canada remains valid until the end of the validity period of the work permit.
In order to be able to keep his/her job, to challenge the reason for his/her dismissal or to claim benefits as a foreign worker, the foreign worker must hold a valid work permit on the day the event occurred granting a right under the law providing the right to a challenge. Otherwise, the foreign worker is no longer a « worker » within the meaning of the law and therefore, cannot benefit from the indemnity provided by the applicable law.
Obtaining a new work permit after the date of the relevant issue (dismissal or accident) does not change the situation of the foreign worker. It is the fact of being an employee at the time of the event which gives opening to keep one’s job, to grant a recourse to recover a lost employment, to exercise a right to a compensation in the event of an work-related accident or to obtain employment insurance benefits.