Continued employment was expected: Adjudicator
A Saskatchewan employee whose fixed-term contract wasn’t renewed is entitled to severance pay befitting a permanent employee — after 27 consecutive one-year contracts, an adjudicator has ruled.
Kim Latoski was hired to be a teacher at Bernard Constant Community School in Melfort, Sask., by James Smith Cree Nation (JSCN) in August 1987. Latoski was hired with one-year contract for the school year. JSCN only gave its teachers one-year contracts because of budget uncertainty for each year, which was based on the number of students and government funding.
JSCN offered Latoski another one-year contract the following year, and her employment continued for 27 consecutive years. Each year, JSCN would either offer Latoski a new contract, offer an extension to her existing contract, or offer her a new teaching position. On a few occasions, JSCN didn’t notify her of her new contract and both sides assumed things would continue as usual.
Each year’s contract was called “Employment Contract — Teacher” or “Definite Term Contract — Teacher” and outlined the term of employment as running from late August to June 30 — the length of the school year. They also indicated “the employer may, at its sole discretion, by notice in writing to the employee, offer the employee a further contract for an additional term or terms."
A typical contract also contained a clause stating that if funding to the program was terminated or reduced, the contract would terminated with tone months’ pay.
Despite the fact she was on a series of one-year contracts, Latoski considered herself a permanent employee. Every year, teachers were evaluated and it was assumed a good evaluation meant contract renewal — and Latoski received positive evaluations. She initially lived in an apartment at JSCN — in which she continued to live during the summer — and eventually moved into a mobile home on JSCN land. She also was a member of the JSCN pension plan and was allowed to carry over unused sick leave.
In 2014, JSCN lost some funding for the special education program — in which Latoski had taught for the previous 10 years — and was faced with a budget deficit. JSCN decided to not renew the contracts of three senior teachers, including Latoski.
In May 2014, JSCN advised Latoski her contract wouldn’t be renewed and her last day of work would be the end of her current contract — June 27. Latoski requested severance pay equaling two days of regular wages for each of her 27 years of employment, but JSCN argued she wasn’t entitled to severance pay as she was a fixed-term employee whose contract was ending.
Latoski filed a complaint under the Canada Labour Code, claiming she had continuous employment and was a permanent employee. An inspector investigated and determined Latoski was a fixed-term employee whose contract had ended and she wasn’t entitled to notice of dismissal or severance pay. Latoski appealed, arguing that the JSCN’s personnel and policy manual had a clause stipulating that educational program employees with more than five consecutive years “shall be offered an indefinite contract in their sixth academic year.”
The adjudicator noted that Latoski had never specifically been offered indefinite employment as described by the manual. Other provisions in the manual were also not strictly followed, such as that employees were supposed to give written notice by April 1 each year regarding their desire to continue employment — instead, JSCN usually started things by making an offer.
The adjudicator found that Latoski’s contracts didn’t provide for automatic renewal. However, over 27 years, the process was mostly treated as automatic by both Latoski and JSCN. A couple of years this didn’t even happen and Latoski continued her employment the following school year. This was inconsistent with JSCN’s insistence that it could only employee teachers on a year-to-year basis, said the adjudicator.
“Had the fixed-term nature of the contracts been of such importance to JSCN, one would expect that more attention would have been paid to presenting, signing, and retaining the contracts,” the adjudicator said. “The relaxed approach taken by the parties tends to support my conclusion that the contracts were more of a formality than a necessity.”
The adjudicator also pointed out that JSCN providing a pension and benefits, along with allowing Latoski to live year-round on JSCN land, was more consistent with a permanent employment relationship.
The adjudicator found that the reality of the contractual relationship was that Latoski was an indefinite-term employee who was entitled to severance. While in theory her contracts were fixed-term, the cumulative effect of 27 consecutive years of employment along with the other factors made the employment relationship more permanent.
