Update March 26 2020 related to COVID-19
Construction employees and employers face a particularly challenging situation in the face of the pandemic. Unfortunately, recent government measures have only worsened their uncertainty.
The Ontario government’s emergency measures included the construction sector on the list of essential workplaces. The description is broad and seems to indicate that all construction, including residential construction, is essential.
At the same time, certain parts of the construction industry appear to carry significant risks of contagion, given the difficulty of social distancing and hygiene on some construction sites.
What if a construction employee feels that it is unsafe to report to work?
The recent amendments to the Employment Standards Act do not provide any assistance. There is nothing in those provisions to entitle the employee to unpaid leave for this circumstance. The employee may or may not be able to rely on the Occupational Health and Safety Act, which allows employees to stay away from conditions they view as dangerous.
What if the construction employer itself is cautious, and wants to close down so as to give the employees unpaid leave?
The employer faces the risk of being on the hook for damages for unpaid wages if employees claim that they were constructively dismissed. The employees could argue that the shut down was not foreseeable, as the government itself has declared construction an essential service.
If you are concerned, you should contact an employment lawyer to discuss the specific circumstances of your workplace. Call us for a free 30-minute phone consultation at 416-007-9249 or submit a callback request.
The following information was updated March 26, 2020
Although many employees are protected by the Employment Standards Act, 2000 (“ESA”), there are a few categories that remain an exception to some or even the entirety of the statute. Some examples of such occupations include temporary workers, fixed-term employees and construction workers.
These employee-employer relationships, by nature, tend to have a foreseeable date/period when both parties understand the relationship will be terminated. In particular, construction employees are usually hired for a specific project and usually terminated at the end of the said project. For this reason, under the O. Reg. 288/01 of the ESA, these employees are not entitled to notice of termination or severance pay.
Despite this exclusion, construction employees may still be entitled to common law notice.
Are you a construction employee?
The ESA provides a clear definition as to who is considered a construction employee, which tends to rely strongly on the nature of the job itself as well as the relationship between the employer and employee:
“construction employee” means,
(a) an employee employed at the site in any of the activities described in the definition of “construction industry”, or
(b) an employee who is engaged in off-site work, in whole or in part, but is commonly associated in work or collective bargaining with an employee described in clause (a); (“employé de la construction”)
“construction industry” means the businesses that are engaged in constructing, altering, decorating, repairing or demolishing buildings, structures, roads, sewers, water or gas mains, pipelines, tunnels, bridges, canals or other works at the site; (“industrie de la construction”)
Are you entitled to notice?
Although the ESA plainly exempts what it deems to be a “construction employee”, the courts still embrace ways to protect such employees by considering their entitlement to common law notice, which can be significantly more than one’s ESA minimums.
In the case of Scapillati v. A. Potvin Construction Ltd., 1997 CanLII 12420 (ONSC), (affirmed, 1999 CanLII 1473 (ON CA)) the court applied the principle that the employment standards provided in the Act are only a minimum requirement. Therefore, a construction worker’s exclusion from the ESA should not be the sole factor considered when contemplating if the employee is entitled to reasonable notice.
In addition, another important factor considered was whether the employee was aware of their impending termination. If an employer has a customary practice of terminating the employment relationship and the employee is aware of this practice, then the employee is unlikely to receive notice of termination. Unfortunately, the Plaintiff had never received notice of termination at any point, and it was never the employer’s practice to do so. Subsequently, the court concluded that there was no implied term within the employment contract that entitled the Plaintiff to any notice or severance pay.
The Court of Appeal in Scapillati stated that the key determining factor is foreseeability:
The parties are agreed that the slow down in work and the end of work is foreseeable. In the circumstances, where the plaintiff admittedly can foretell his lay off, is there still a duty on the part of the employer to give notice? … I would answer in the negative and agree with the trial judge that the usage, at least in these circumstances, is reasonable.
This principle has been applied in a number of similar cases by the Ontario Labour Relations Board. Since Scapillati, the courts have been able to better assess how a construction employee may be entitled to common law notice despite their exception to the ESA as well as the customary practice of employers terminating employees without notice.
In Kuntz v. Dordan Mechanical Inc. (2014 CarswellOnt 433), the Plaintiff was laid off three times throughout his employment in order to attend school to assist in his qualification as a journeyman apprentice plumber. In 2012, the Plaintiff was laid off indefinitely and the court distinguished Scapillati by relying on the fact that in the case at bar, there was no significant evidence of a pattern of regular temporary layoffs. This gave way to the fact that an employee must have a sense of when a layoff may occur. Since the Plaintiff’s termination was unexpected, he was entitled to common law notice.
How much notice are you entitled to?
Once established that a construction employee is entitled to reasonable common law notice, the next step is to determine how much notice is owed to that individual.
As an employee who is entitled to common law notice, the factors outlined in the 1960 decision of Bardal v. Globe & Mail Ltd. are greatly considered when determining notice length. The Bardal factors are age, length of service, character of employment, and availability of similar employment. In addition, as previously mentioned, the customary practice of not providing notice upon termination is also considered in this determination.
Typically, when determining common law notice, these factors may be considered and or interpreted in different ways. In Krewenchuk v. Lewis Construction Ltd., 1985 CanLII 679 (BC SC), the court stated that in the absence of any term within the contract that says the contrary, an individual who is a construction employee would be entitled to common law notice. The court also found that for long-service employees, there was not a customary practice for employees to be terminated without notice of termination. Therefore, based on the length of service and lack of substantial employment interruption, the Plaintiff was entitled to 12 months’ notice.
There is the chance that an employee, based on the factors outlined above, may be entitled a reasonable notice period of no notice at all. In Scapillati v. A. Potvin Construction Limited, 1999 CanLII 1473 (ONCA), the court of appeal considered several factors and came to the conclusion that based on the employee’s short 9 months of service and nature of their employment relationship, the Plaintiff was entitled to a reasonable notice period of nothing.
Although explicit contracts are a rarity in such industries, it may be quite valuable in protecting the liability of employers of construction employees. Including termination provisions that entitle a worker to the ESA minimums within a contract will limit them to just that, nothing. Without this provision, employers leave themselves exposed to the provision of common law notice by the courts.
It is important for construction employees to understand that despite their exclusion from the ESA, there may be an opportunity for them to obtain notice of their termination. If your employment contract does not limit you to ESA minimums, then there is a possibility that a court may find that you are entitled to reasonable common law notice. If you would like more information regarding your entitlements to notice of termination, contact Monkhouse Law today for a free consultation and information regarding your situation.
To find out more about workers’, employees’ and employers’ legal rights during this difficult time go to “Information for Employees and Employers During Coronavirus“. We are trained in employment issues it is our duty to help anyone who is anxious about their employment during this situation.