If you are terminating the employment of a seasonal employee, you’ll want to exercise caution. In some cases, seasonal employees will be entitled to advanced notice of their termination or severance. Such advance notice or severance will not necessarily be insignificant.
Generally speaking, when seasonal employment ends at the end of a season, there is no entitlement to severance at that time.
However, if you let an employee go without just cause prior to the end of the season, the employee may be entitled to their pay through to the end of the season.
Of course, if there just cause for dismissing an employee, that employee will not be entitled to any severance. This is regardless of whether the termination is mid-season or at any other time.
As mentioned, when employment concludes at the end of a season, there is typically no severance entitlement.However, employers have to be cautious with employees who have worked for them for multiple seasons.
The courts have held that in some cases where employees work multiple seasons, the employment is no longer considered seasonal. Instead, the employment is permanent and ongoing, even though the work itself may be seasonal in nature. Such employees, who are considered to be permanently or indefinitely employed, may be entitled to advanced notice of their termination or severance.
For permanent or indefinite employees whose work is seasonal in nature, the employment is not considered to be terminated at the end of a season. Rather, such employment is considered to be terminated when you advise the employee that he or she will not be required going forward. In these cases, a termination can take place where a multi-season employee is not brought back for another season.
There are a number of factors that can be used to determine the likelihood of employment being considered seasonal as opposed to permanent or indefinite. If your employee has received promotions, pay raises and increasing benefits over multiple seasons, then the employment is less likely to be considered seasonal. Seasonal work is also more likely to be considered permanent or indefinite where there is no application process each season, and the employee is simply rehired for each subsequent season without any competition or hiring process.
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 to be of a permanent nature.
Other relevant factors in determining whether employment is 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 are the same each season.
Where employees are entitled to severance, that amount is determined by reference to a number of factors, including:
- 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 an employee was not historically paid during a month, the employee may not be entitled to severance during that month.
To determine the actual notice of termination or severance that employee is entitled to, it is best to seek legal advice as the answer depends on many different factors. If you are an employer looking for advice with respect to the termination of a seasonal employee, please contact us today for a consultation.