Contractor fights for permanent job offer

Contract employee argued employer's decision to make him permanent was a job offer

This instalment of You Make the Call features a dispute over whether a contract employee had become a full-time employee or not.

Dean Fontaine was an advisor on security, gang prevention and policing issues in the national chief’s office for the Assembly of First Nations, the national delegated forum for First Nations in Canada. Fontaine’s employment consisted of a series of short-term contracts of varying lengths, starting in 2005. Sometimes he received notice that his current contract was being renewed and sometimes he received a new contract.

On June 12, 2009, the AFN’s national executive considered moving Fontaine to permanent employment status. This issue was put off until the next meeting on July 19, when a motion was passed to offer him permanent employment. There was concern over funding, so there was some dispute over whether the offer should be dependent on funding.

The next day, the CEO of AFN emailed Fontaine to tell him a move to permanent employment was discussed at the meeting. The CEO then recommended to the new incoming Grand Chief and CEO to seek funds to facilitate the move. On July 31, the expiration date for Fontaine’s current contract, the new CEO gave him a one-month extension and told him the funding situation was going to be addressed. Fontaine’s contract was extended another month to Sept. 25.

Fontaine’s contract was extended again until Oct. 30, but he was told at this point there would be no further extensions. When his employment ended, Fontaine asked for severance pay. This was denied because, under Ontario employment standards legislation, he needed five years of employment to qualify. However, the AFN offered to pay Fontaine another eight days’ of wages. Fontaine also signed a release for all claims under other legislative provisions. AFN actually paid him for 10 additional days, but Fontaine filed a complaint claiming unjust dismissal because he had become a permanent employee when the national executive passed the motion to offer him permanent employment on July 19, 2009, entitling him to additional compensation. Fontaine also argued he had received no consideration for signing the release, so it wasn’t valid.

You Make the Call

Was Fontaine a permanent employee entitled to reasonable notice?


Was he still a contract employee with no entitlements once his contract expired?

If you said Fontaine was still a contract employee, you’re right. The adjudicator found the national executive and the chief had agreed on July 19, 2009, to offer him permanent employment and informed Fontaine that was their intention. However, the AFN didn’t actually implement the change. No funding for the position was found and no actual offer of employment was extended to Fontaine, said the adjudicator.

“Prior to any offer of permanent employment actually being made, the national executive changed its collective mind and (Fontaine) remained on the term contracts,” said the adjudicator.

Since Fontaine wasn’t a permanent employee and remained under contract until the term ran out, the adjudicator found he had no jurisdiction to consider any issues of unjust dismissal under the Canada Labour Code.

For more information see:

• Fontaine v. Assembly of First Nations, 2012 CarswellNat 2483 (Can. Labour Code Adj.).

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