My seasonal employment is over. Am I entitled to severance?

posted in: Employee | 0

By Daniel Sorensen

As is often the case, the answer is that it depends. In particular, it depends on the nature of the employment agreement between you and your employer.

When your employment ends at the end of a season, subject to the exceptions below, there is typically no entitlement to severance at that time.

If you are terminated for just cause, then you would normally not be entitled to severance.

However, if your employment is terminated part way through the season without just cause, then you may be entitled to severance. In some cases, if your employment is ended part way through the season, you may even be entitled to severance pay equal to your pay to the end of the season.

If you have been rehired for multiple seasons, then it may be that your employment is no longer considered seasonal at law. This is especially true if your employer treats your employment as being continuous by giving you promotions, pay raises and increasing benefits. Seasonal work is also more likely to be considered permanent or indefinite where there is no application process each season, and you are simply rehired for each subsequent season. In these circumstances, the courts have also given great importance to whether the employee is noted as returning on the Record of Employment issued to them each season. If the Record of Employment suggests that the employee will be returning, it is more likely that the employment will be considered permanent in nature.

Other relevant factors in determining whether employment is actually seasonal or permanent include:

  • the expectations of the employee and employer;
  • whether the employee’s position is advertised prior to each season;
  • the amount of work performed by the employee relevant to other employees; and
  • whether the employee’s title and responsibilities were the same each season.

If you are considered to be permanently or indefinitely employed, although your employment is seasonal in nature, then you may be entitled to severance when your employment is terminated. In this instance, your employment would not be considered to be terminated at the end of a season, but when your employer advises you that you will not be required going forward. In these cases, a termination can even take place where a multi-season employee is not brought back for another season.

If your employment is considered to be indefinite or permanent, then your severance entitlement is determined using the same factors as regular employees. In particular, the courts will consider:

  • the employee’s length of service;
  • the character of the employment;
  • the employee’s age; and
  • the availability of alternative employment.

However, case law also suggests that the courts will consider the seasonality of work and pay when determining severance. So if you were not traditionally paid during a month, you may not be entitled to severance pay during that month.

If you are an employee wishing to obtain more information on severance entitlements or seasonal employment, please contact us today to schedule a consultation.