Seasonal Workers in Canada

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Seasonal Workers

Love it or loathe it, the holiday shopping season is on its way. The glitter, the baubles, the candy canes and tinsel are coming to a shopping centre near you. It’s the most wonderful time of the year – so they say – and for retail businesses, it’s the most profitable.

But more shoppers buying more things also means that many employers need more workers to keep up with increasingly busy business hours.

Hiring seasonal workers is one way in which retail businesses can cope with increasing consumer demands during the holiday shopping season. So, what does hiring seasonal workers mean for retail businesses? And what does it mean to be a seasonal worker?

Rights of Seasonal Workers

Seasonal workers are entitled to most of the same rights under the Employment Standards Act (ESA) as any other employee. As a seasonal worker, you are entitled to the same rights regarding minimum wage, hours of work, rest and eating periods, overtime and vacation pay. Furthermore, seasonal workers are also covered by health and safety legislation and common law.

Employers can, however, provide different entitlements regarding things such as benefits and RRSP contributions.

Seasonal Workers and Statutory Holidays

Many seasonal retail workers are hired to work during some of the busiest shopping days of the year – including Boxing Day. Since Boxing Day is a statutory holiday in Ontario, retail workers have the right to take this day off.

While seasonal workers employed in hotels, resorts and restaurants can be required to work on a statutory holiday, retail workers can refuse to work on a statutory holiday even if they agree to do so in their employment contract as long as they give their employer 48 hours’ notice.

Seasonal Workers and Fixed Term Contracts

Since seasonal workers are entitled to the same notice entitlements upon termination as any other employee, employers usually choose to hire seasonal workers on a fixed-term contract. As explored in this blog, employers do not have to give notice or pay in lieu thereof to employees on a fixed-term contract since they effectively know when the last day of their employment will be at the time they sign their employment contract.

Although it does sometimes happen, employers are under no obligation to extend a fixed-term contract for a seasonal worker into a permanent contract. Furthermore, employers are not obligated to rehire a seasonal worker one year after another. Having worked a season for an employer one year does not entitle you to work for this employer the following year. That said, many employers find it advantageous to rehire seasonal workers year after year because they are already familiar with business operations and duties and are therefore quicker to train than a new employee.

Things to include in a seasonal worker’s fixed-term contract

Seasonal worker contracts should include, first and foremost, the length of the employment and compensation. The number of shifts/hours an employee can expect to work or information that no shifts or hours are guaranteed can also be useful to include in an employment contract but are not necessary. An employer may also have an employee agree to work on statutory holidays however, as you read above, you cannot always obligate an employee to do so even if they agree to when they sign their contract.

Final considerations

Hiring seasonal workers is a great way for businesses to meet the temporarily-increased business demands of the holiday shopping season. However, it is important that employers honour seasonal employees’ rights under the ESA and other employment legislation. A qualified employment lawyer can ensure your fixed-term contracts are both fair and enforceable and provide guidance on any legal concerns you may have regarding employing seasonal workers.

For legal advice and assistance with your rights as a seasonal employer or worker, Call us today to book your consultation at 905-639-0999 or connect with us online by filling out a consultation request form.

What is a reprisal?

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A reprisal occurs when an employer or manager, penalizes or threatens to penalize an employee. Examples of reprisals include an employer or manager:

  • Firing or threatening to fire you
  • Suspending or disciplining you (or threatening to do so)
  • Intimidating or coercing you
  • Imposing a penalty (such as a transfer or reduction of hours)

Based on the case of Noble v. York University, there are three factors needed to establish a reprisal complaint:

  1. An action or threat against the complainant
  2. This action or threat was made in relation to the complainant claiming or attempting to enforce a right under the Human Rights Code.
  3. The respondent intended to retaliate for the complainant’s claim or attempt to enforce a right.

Limits on Reprisals

There are plenty of circumstances in which an employer may have just cause to discipline one of their employees. However, according to section 74 of the Employment Standards Act:

No employer or person acting on behalf of an employer shall intimidate, dismiss or otherwise penalize an employee or threaten to do so, because the employee:

  1. asks the employer to comply with this Act and the regulations,
  2. makes inquiries about his or her rights under this Act,
  3. files a complaint with the Ministry under this Act,
  4. exercises or attempts to exercise a right under this Act,
  5. gives information to an employment standards officer,
  6. testifies or is required to testify or otherwise participates or is going to participate in a proceeding under this Act,
  7. participates in proceedings respecting a by-law or proposed by-law under section 4 of the Retail Business Holidays Act,
  8. is or will become eligible to take a leave, intends to take a leave or takes a leave under Part XIV

Should a court find that an employer has unlawfully reprised an employee, the employer may be ordered to reinstate the employee and compensate them for any losses they suffered as a result of the reprisal. In the event that an employer faces an accusation of giving an unlawful reprisal, the onus to prove that no reprisal occurred rests with the employer.

What to do if you believe you have been unlawfully reprised

If you experience a reprisal shortly after taking any of the actions described above, you may have a claim for reprisal. An employment lawyer can examine your case and determine if you have a viable complaint to file with the Ontario Labour Relations Board and represent your case.

KCY at LAW helps employees stand up for their rights and take action against illegal employment practices. Our professional team will be your advocates and advisors from the moment you step into our office until your final settlement. Call us today to book your consultation at 905-639-0999 or connect with us online by filling out a consultation request form.

 

What is Severance Pay?

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The term ‘severance pay’ is often thrown around quite loosely as a way to describe money and other benefits an employee is owed upon termination of their employment. However, severance pay refers to a specific type of payment to which only some employees are entitled.

In the event that an employee is terminated without cause, he or she is always entitled to reasonable notice or termination pay in lieu thereof. Termination pay depends on the length of an employee’s service and its statutory minimums are set out in the Employment Standards Act (ESA).

On the other hand, severance pay refers to additional pay and benefits meant to compensate long-serving employees for intangible losses (such as seniority) if they are dismissed.

Who is entitled to Severance Pay?
Not all employees are entitled to severance pay upon dismissal. In order to qualify for severance pay, you must have been with your employer for five or more years. Furthermore, your employer must have a payroll over $2.5 million or have terminated the employment of 50 or more employees within a six-month period due to the permanent closure of all or part of their business.

How is severance pay calculated?
Severance pay is equivalent to one week’s pay for each year of your employment with the dismissing employer to a maximum of 26 weeks. For example, if you earned $1,000 per week and were terminated after 7 years and 6 months of employment you would be entitled to $7,500 severance pay ($1,000 x 7.5 years = $7,500).

When do you receive severance pay?
Severance pay must be paid within seven days of the end of your employment or on the your next regular pay day, whichever comes later. It is usually paid in one lump sum but it may be paid in installments with your written permission or approval from the Ministry of Labour.

Why is it a good idea to have a lawyer review your severance package?

Unfortunately for employees, there is a good chance that the severance package you are offered will be less than your legal entitlements. Your right to reasonable notice will often entitle you to longer notice than that which the ESA provides. Seek legal counsel before accepting a severance package as you may be entitled to more than what is being offered.

In the event that your severance package falls short of your entitlements, an experienced employment lawyer can help you begin an action for wrongful dismissal. Most cases will result in a voluntary agreement with your employer. However, if an agreement cannot be reached then it will be a judge who will decide your notice period.

If you have been offered a severance package from your long-time employer, have it reviewed by the employment law experts at KCY at LAW. We can advise you of your rights and advocate on your behalf to ensure that you receive the settlement you deserve. Call 905-639-0999 to book your consultation. Or, fill out an online form here.