Worker claimed he was promised 40 hours per week, but he worked sporadically before termination
An Ontario worker is entitled to termination pay based on average hours worked, not an alleged 40-hour work week guarantee of which there was no concrete evidence, the Ontario Labour Relations Board has ruled.
The worker was a temporary foreign worker employed as a packer with Matt & Steve’s, a food and beverage company in Mississauga, Ont. When the worker started his employment in August 2023, the company advised that he would be an hourly employee and would be paid by the hour. It also said that he would work 40 hours per week, which the worker took as a guarantee regardless of the worker available, although he didn’t receive this in writing.
According to the company, all packers were hourly employees and the work was seasonal and dependent on the amount of produce it obtained to make its products. It strove to give 40 hours per week to as many employees as possible, but it wasn’t always possible outside of the growing season.
Hours of work
Over the next several months, there were unexpected issues with crops that led to produce being unavailable and slowing down the business. The company placed some employees on temporary layoff during these periods, and recalled and scheduled them on a day-to-day basis depending on the amount of production. The worker received limited shifts during this period, sometimes only one or two per week and some weeks with none.
The company had a practice of scheduling reliable and productive employees first, and sometimes other employees were scheduled during weeks when the worker didn’t have any shifts.
The worker was scheduled to work on March 4, 2024, and arrived ready to work. However, a supervisor told him that he wasn’t scheduled and he should leave. It turned out that the supervisor misunderstood that schedule, so the company tried to call the worker and ask him to return to work, but he was unable to come back once they reached him.
Shortly thereafter, Matt & Steve’s terminated the worker’s employment.
Termination pay
The worker filed an employment standards claim claiming eight hours of unpaid wages for a shift in December 2023 and termination pay based on his promised 40 hours per week. He also claimed that he was owed three hours’ pay for March 4, 2024, under s. 21.2(1) of the Ontario Employment Standards Act, 2000 (ESA), which requires an employer to pay an employee for three hours if the employee regularly works at least three hours and is required to report for work, but works less than three hours.
An employment standards officer found that the worker was entitled to eight hours’ wages for the December 2023 shift - $137.70 - and termination pay of $296.04 based on the worker’s average weekly earnings.
The worker appealed the decision, maintaining that his termination pay should be calculated based on a guaranteed 40-hour work week and he was owed the three hours’ pay for his last shift when he reported for work but was mistakenly sent home.
The board noted that the worker wasn’t scheduled for or work 40 hours per week, and he was often scheduled sporadically. When he wasn’t scheduled, he was free to do what he wanted as he wasn’t on call, the board said.
Wages for work
The board found that there was no evidence of an agreement guaranteeing 40 hours of weekly work, other than the worker’s impression at the beginning of his employment. There was no documentation of this guarantee, the worker was paid hourly with no written contract, and the company’s operations were seasonal and reliant on produce availability -which didn’t support a consistent work schedule, said the board, adding that the worker wasn’t entitled to wages for days in which he didn’t perform work.
The board affirmed the employment standards officer’s calculation of $296.04 in termination pay based on average weekly earnings.
However, the company acknowledged that the worker hadn’t been paid for an eight-hour shift worked in December 2023 due to a clerical error.
As for the three-hour rule under s. 21.2(1) of the ESA, the board found that the worker was entitled to compensation after being sent home in error. The worker was entitled to three hours of wages at his regular rate with vacation pay, the board said.
The board upheld most of the employment standards officer’s decision, with the addition of the three hours of pay for being called into work and then sent home. The company was ordered to pay the worker $485.38 in total, plus a $100 administrative fee. See Khan v. 1426828 Ontario Inc., 2025 CanLII 50746.
