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Do Seasonal Employees Have Rights? YES!

Anyone who has searched for work has come across job listings specifying a seasonal term with the “opportunity” to extend or gain full-time employment. While there are many mutually beneficial employment opportunities to be found in a variety of seasonal sectors, it goes without saying that seasonal employees are more vulnerable than permanent employees. 

If you work seasonally in the fishing, forestry, or agricultural industries during their peaks, retail and hospitality during the holidays, or one of the many other industries that hire seasonal workers, you understand that vulnerability firsthand. 

So, what can you do as a seasonal employee to protect yourself? The first step is understanding your rights, when they have been infringed and what you can do about it. 

What is a Seasonal Employee?

In section 1 of Ontario Regulation 285/01, “seasonal employee” is defined as an employee who works not more than 16 weeks in a calendar year for an employer. Seasonal employees have the same right under the Employment Standards Act (ESA) as regular employees except in some specific circumstances. 

Fixed-term Contracts and Indefinite-term Contracts

When hiring seasonal employees, employers often prepare fixed-term contracts or indefinite-term contracts. A fixed-term contract is for an employee who works for one season and never returns to work. A contract with an indefinite-term contract is just that. It continues until the employer ends it by terminating the employee, or the employee ends it by resigning. This is the standard type of employment contract almost everyone, seasonal or non-seasonal, has. 

Fixed-term Troubles

A fixed-term contract needs to be clear and unequivocal on the length of employment. The wording of a fixed-term contract must show the parties’ expectation that the employment period is fixed and definite. It will not be interpreted as fixed-term if it does not do this or adds additional clauses to these terms. 

In Michela v. St. Thomas of Villanova Catholic School, what the employer presented as a fixed-term contract provided by the employer was later interpreted by the Ontario Superior Court of Justice as an indefinite-term contract. The employer, in this case, set out a one-year term in the contract, but it was open to renewal and early termination. The contract contemplated that it may operate for a longer or shorter period, and this ambiguity, created by the renewal and early termination provisions, led to the Court deciding the term was not fixed and final in addition to the evidence the employer also made allegations to the employees that their employment contracts could be renewed annually.

This case highlights one key difference between a fixed-term contract and an indefinite-term contract: a fixed-term contract normally ends when the term ends, while an indefinite-term contract does not. As a result, fixed-term employees usually receive no termination notice or severance pay, and reasonable notice is unnecessary since both the employer and the employee know the date the employment relationship ends. 

Terminated While Working Fixed-Term

So, what if you were terminated while under a fixed-term contract? Does that mean your employer gets the benefit of not having to give you termination notice or severance pay in addition to being able to terminate you at will? No! If this has happened to you, please contact our team at De Bousquet PC, as you may be entitled to be paid for the remainder of the contract, unless terminated for one of the very narrow categories under the ESA

For example, if you are working as a seasonal employee with a 16-week employment contract and your employer no longer needs the additional help and decides to terminate you only four weeks in, the damages owed to you, the terminated employee, will be the wage of the remaining twelve weeks or the notice you would be entitled to as an indefinite term employee. 

Indefinite-Term Entitlements

In some industries, employers tend to rehire the same seasonal employees on a yearly basis, which is hugely beneficial for training and safety purposes. Employers who hire and retain seasonal employees in this fashion use indefinite-term contracts. The seasonal employees they hire with these indefinite-term contracts can be entitled to statutory or common law notice of termination and severance pay if the employee’s total service equals five years or more. 

How Can De Bousquet PC Help Seasonal Employees? 

However, if you are a seasonal employee and are facing confusion over your employment or have found yourself taken advantage of and treated unfairly, do not hesitate to reach out to us. You may be owed severance pay or other entitlements under the ESA.

If you are a seasonal employee experiencing employment-related problems or have questions about your treatment, please contact the team at De Bousquet PC today. 

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