Broadly speaking, employees in Ontario are entitled to notice of the termination of their employment or pay-in-lieu of that notice. However, it is common practice in the construction industry for workers to be employed for the summer months, or on a project-by-project basis, and then be terminated or laid off. The Employment Standards Act specifically exempts “construction employees” from being entitled to notice of termination. The policy behind this exemption reflects the seasonal and often inconstant nature of the construction industry in Ontario.
Although the Employment Standards Act does not require employers to provide their construction employees with notice of termination, however, this does not mean that all construction employees can be terminated without notice. The common law rule that all employees are entitled to “reasonable notice upon termination” stands. This common law rule will come into play when there is no enforceable written termination clause in an employment contract. In these circumstances, the appropriate questions to ask when considering the termination of a construction employee is, “what would be a reasonable period of notice for this particular construction employee?”
Although it may be the case that, in practice, most construction employees will not be entitled to any reasonable notice of termination, the law is clear that it is not a blanket exclusion. The custom of not providing reasonable notice of termination is just one factor to consider when determining what a reasonable period of notice is in the circumstances (Scapillati v A Potvin Construction Limited, 1999 CanLII 1473 (ON CA)). For example, in Kuntz v Dordan Mechanical Inc, 2014 CanLII 836 (ON SCSM), the Court awarded the construction employee with five months’ reasonable notice, holding that the employee had not received any true prior layoffs. The Court found that the employee was in no position to be able to foretell his layoff as many other construction employees can. The Court did not find that custom played a large role in determining the reasonable notice period.
As such, what appears to be crucial in determining whether a construction employee will be entitled to any period of reasonable notice is whether the employee has experienced layoffs in the past or could otherwise foretell that a layoff or termination was coming. These decisions emphasize the importance of having properly drafted termination clauses in an employment agreement so that both the employer and employee can have reasonable expectations when it comes to termination.
Written by Nicolas Guevara-Mann