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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 firm 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 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, pipe lines, 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), the court discussed section 4(1) which clearly states that the employment standards outlined 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.
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 not 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 any 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 the says 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 the 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.
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