Reasonable notice period for terminated employees might be longer than expected if they had earlier stints with same employer
Sometimes they come back
In a mobile labour market, it is fairly common for people to try multiple careers over the course of their working life. This can not only mean changing jobs, but also leaving an employer and returning later, either in the same capacity or in a different one. This can make things more complex when an employer decides to terminate the employee and is trying to determine the proper notice period. However, both common law precedents and employment standards legislation can lend some guidance in figuring out the proper course of action in terminating an employee with a break in service.
ConsultCarswell’s Brian Kreissl takes a look at this issue and what employers should keep in mind when terminating an employee with multiple stints as an employee.
An employee’s service time is an important factor in determining the proper notice period for termination, but things can get more complicated if the employee left the company at some point and came back. Does the employer have to take into account the employee’s full tenure or only the service time since she came back?
There are several situations where a break in service can be taken into consideration when determining the appropriate notice period, either at common law or under employment standards legislation.
Under common law, one of the main considerations in determining a reasonable notice period — or calculating a fair termination package — is length of service. While no longer considered an exhaustive list, the Bardal factors — the employee's years of service, age, character of employment and availability of similar employment — are the main considerations used by the courts in determining reasonable notice. Even where there has been a significant break in service, a court will be prepared to look at an employee's total years of service in calculating reasonable notice under certain circumstances.
In Krewenchuk v. Lewis Construction Ltd., the employee was hired as an apprentice carpenter in 1960. He became a journeyman and worked for his employer until 1972, at which time he left to start his own business. By 1975, the employee decided he no longer wished to work for himself and was rehired by his previous employer. He was temporarily laid off several times during the next few years and the layoffs were short, with the exception of one that was fairly lengthy because the employee had taken on other work and could not immediately come back when he was recalled. In 1982, he was again laid off and eventually was terminated.
The British Columbia Supreme Court determined the employee’s full service time with the employer should be used in determining the notice period, which, it ruled, should be 12 months.
"Here I view the interruptions in employment as being relatively unimportant and look on the (employee) as being a long-term employee who was trusted sufficiently by his employer that he was named foreman on many projects,” the court said.
In Fisher v. 668824 Alberta Ltd., however, the British Columbia Provincial Court was not prepared to aggregate the entire period of employment of a salesman who had twice worked for the employer, a retailer of consumer electronics. The employee worked at the store from October 2001 to May 2003, and from June 2004 to March 2006, when his employment was terminated. The employee left the country for six months in 2003, returned to Canada and worked elsewhere for a further six months prior to his return to the electronics store.
The employee claimed he had taken a leave of absence from the store, but the court rejected this claim, finding the period of employment was only 21 months. Of particular importance was the fact the employee worked elsewhere upon his return to Canada before going back to the electronics store. The court also ruled, since the employee was "not a particularly long-term employee, as in Krewenchuk," the previous period of employment would not be taken into consideration in determining reasonable notice, which it ruled was two months.
Family-related breaks in service
When an employee takes time off to raise children, courts are likely to credit her with service time before the break, especially if the employee continues to do some work on a part-time basis for the employer or if she is invited to return to work by the employer.
This was the case in Cronk v. Canadian General Insurance Co., where the employee started working for the employer in 1958 and resigned in 1971 to raise a family. During four of the seven years she was absent from the company on a full-time basis she continued to do some work for it part-time through a temporary agency and then directly in her final year of absence, eventually returning to work full-time in 1978. Her employment was terminated in 1993.
The Ontario Court of Appeal ruled the length of service was 28 years and, based on the Bardal factors, an appropriate notice period would be 12 months.
"Where the employee left full-time employment to raise a family while continuing to work part-time in the employer's business, and particularly where her resumption of full-time employment was at the invitation of the employer, the period of notice should take into account the employee's total service," the court said.
Leaves of absence, such as maternity and parental leave, are not counted as interruptions in service. Some jurisdictions also have legislative provisions which provide that seniority continues to accrue during a maternity or parental leave. The Ontario Ministry of Labour, for example, advises that "employees on leave have the right to continue participation in certain benefit plans and continue to earn credit for length of employment, length of service and seniority. An employer cannot penalize an employee in any way because the employee is or will be eligible to take a pregnancy or parental leave, or for taking or planning to take a pregnancy or parental leave."
Seasonal employees
Whether a seasonal employee's entire period of employment is taken into consideration depends on whether the employee is employed on a succession of fixed-term contracts or is indefinitely hired for work of a seasonal nature. No notice is normally required to terminate a fixed-term employment contract unless the contract is terminated early, the employee continues to work past the original date or task agreed upon in the contract or, in some jurisdictions, where the contract is for longer than 12 months in duration.
In Levy v. Ken-Wo Country Club, a seasonal groundskeeper at a golf course was laid off each year in November and returned the following April for 24 years. In 1999, he was told he would not be recalled that year, so he sued for wrongful dismissal. The employer argued the employee was a seasonal employee with no right of recall and he could therefore be terminated without notice. The Nova Scotia Supreme Court disagreed, ruling he was an indefinite term employee who was entitled to advance notice of one full season that he was not being kept on. The following factors were determinative of his status as a permanent employee: he had worked there for 24 years; he was laid off and recalled on a consistent basis; every year he was reassured that he would be recalled; and there was an expectation he would wait and be willing to return to work each season with only a few days' notice.
Newfoundland and Labrador is one jurisdiction where seasonal employees’ employment history is addressed in employment standards legislation. Its Labour Standards Act stipulates seasonal employees are continuously employed when they are "engaged under a contract of service of two or more consecutive seasons of at least five months in each season during which the employee is occupationally engaged."
Statutory temporary layoff periods
Employment standards legislation in most Canadian jurisdictions includes deemed termination provisions, meaning that temporary layoffs lasting longer than the statutory temporary layoff period would amount to termination. Any layoff for a shorter duration than the temporary layoff period does not constitute termination and such a layoff would therefore not count as a break in service, at least from a statutory perspective .
For further information see:
•Bardal v. Globe & Mail Ltd., 1960 CarswellOnt 144 (Ont. H.C.).
•Krewenchuk v. Lewis Construction Ltd., 1985 CarswellBC 787 (B.C.S.C.).
•Fisher v. 668824 Alberta Ltd., 2008 CarswellBC 548 (B.C. Prov. Ct.).
•Levy v. Ken-Wo Country Club, 2001 CarswellNS 200 (N.S.S.C.).
Brian Kreissl is the managing editor for Consult Carswell. He can be reached at (416) 609-5886 or [email protected] For more information visit www.consultcarswell.com.
