Tag Archives: Kevin Thompson

Avoiding Issues with Seasonal Employment: Minimum Standards for Employees in the Turfgrass Industry

By Chelsea Gibson, BA, LLB and Kevin Thompson, B.Sc.

In Ontario, there are varying minimum standards depending on the class of worker. Statutory benefits (such as overtime pay, minimum rest periods, etc.) do not necessarily apply to all workers. This article focuses on the two classes of workers the majority of seasonal employees in Ontario would likely fall under: landscape gardener, and persons whose employment is directly related to the growing, transporting, and laying of sod.

A landscape gardener is a person who is engaged in work that is directly involved in the modification or maintenance of land for a purpose that is substantially esthetic.

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Avoiding Issues with Seasonal Employment: Terminology is not the Determining Factor

By Chelsea Gibson, BA, LLB and Kevin Thompson, B.Sc.

The type of contract the employment relationship falls under is not determined solely by the terminology used in the contract itself. The overall character of the employment is the determining factor for whether a contract is considered fixed-term or one of indefinite duration. A written employment agreement, regardless of duration, is prudent from a business perspective. Establishing the nature of the employment from the outset in clear and understandable language will help alleviate issues when the season ends and employment must end for the winter in one way or another.

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Avoiding Issues with Seasonal Employment: Indefinite Duration Versus Fixed-Term Employment Contracts—What is the Difference?

By Chelsea Gibson, BA, LLB and Kevin Thompson, B.Sc.

In contracts of an indefinite duration, employment is one of continuous service and intended to last for an indefinite period of time, with no specified or foreseeable end to the relationship. This type of contract is accompanied by a number of rights and obligations, most notably the right to reasonable notice or pay in lieu, upon termination.

In fixed-term contracts, the employment relationship is intended to last for only a specific and definite length of time or until a specific project is completed. Once the term or project is finished, the fixed-term employment relationship ends. Such employees are often referred to as being in a ‘contract’ position. Where there is a validly constituted fixed-term contract, an employer is not required to provide the employee with reasonable notice since the employment relationship naturally comes to an anticipated end at either a specified time or upon the completion of a specified project.

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Avoiding Issues with Seasonal Employment: Seasonal Workers Ramifications

By Chelsea Gibson, BA, LLB and Kevin Thompson, B.Sc.

Generally, the groundskeeping, landscaping, and turfgrass industries are especially vulnerable to the termination provisions of employment legislation as the hiring of seasonal workers is so prevalent. Some employers make a habit of hiring staff for the busy season, then laying off those staff and calling them back to work if they are needed. Unfortunately, Ontario law provides that after 13 weeks of layoff in a 20-week period, the layoff is deemed a ‘termination,’ requiring the laid-off employee to receive termination pay. Further, without an express or implied agreement between the employer and employee permitting the temporary layoff, the courts have deemed such layoffs as akin to ‘constructive dismissal’ for which employers can be liable.

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Avoiding Issues with Seasonal Employment: Written Notice of Termination and Termination Pay

By Chelsea Gibson, BA, LLB and Kevin Thompson, B.Sc.

When an employee is terminated, they are generally entitled to written notice of termination or payment in lieu thereof. The written notice required is generally determined by how long someone has been employed by an employer, and this varies from province to province. Notice of termination of employment, once given, cannot be withdrawn without the consent of the employee.

The following chart specifies only the minimum periods of statutory notice required. If there is no employment contract in place, which limits the obligations to the minimum notice, the entitlements of the employee are significantly higher and the employer should consult with legal counsel to determine the reasonable notice period. As the maximum obligations at common law are considerably longer, there is great benefit to employers having a lawyer draft binding employment contracts, which include a termination clause that works for both the employer and the employee.

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