Terminating Part-time, Casual, or Irregular Hour Employees.

Terminating Part-time, Casual, or Irregular Hour Employees.

employment contract

We are frequently asked by employers how to end the employment of employees who are part time or work irregular schedules. Most Canadian employers understand the need to provide notice of termination of employment, as set out in the employee’s contract or under the common law (click here for a post on terminating employment contracts). But there are some unique factors that can apply when dealing with workers who do not work a regular full-time schedule.

 

Part-time Employment

In general, ending a part-time employment contract is the same as ending a full-time contract. The employee receives working notice, a payment in lieu of notice, or a combination of the two in respect of the applicable notice period. If the employee works 20 hours per week at $20 per hour and is entitled to six weeks’ notice but is being paid out, then they will receive $2,400.00 (6 x 20 x $20).

 

Irregular Hour Employees

Irregular hour employees are not as simple. We divide them into two categories:

1) Where the employee has irregular hours assigned, an “irregular hours” employee; and

2) Where the employee is asked about availability and may choose to accept or decline some or all of the hours given, a “casual” employee. For both of these categories, an employer must examine both the Employment Standards Code minimum requirements AND the contractual or common-law requirements for notice of termination of employment.

Under Alberta’s Employment Standards Code, irregular hours workers who are not given working notice are to be paid the applicable notice period (in weeks) multiplied by the average weekly wages over the previous 13 weeks.[1] If given working notice, the irregular hours should not be reduced based on average earnings. For casual workers, no minimum notice is required under the Code.[2]

 

Employment Contracts

So long as an employment contract provides at least the minimum notice requirements and is otherwise enforceable, employers can avoid unexpectedly long or expensive notice periods. If an employment contract is silent on termination provisions or contains unenforceable termination terms, the common law applies and sets a reasonable notice period based on the expected earnings during the notice period. Expected earnings are based on average past payments and contractual entitlements to payments during the notice period (ie: earned commissions, bonuses, etc.).

Final note: In Alberta it is important to know that “Drilling Season” is not a season recognised by law and does not apply to the “seasonal worker” exemptions found in the Employment Standards Code.

If you have questions about how to manage a potential termination of employment please contact us to discuss your unique situation and we can discuss both the legal and practical elements that will allow everyone to move forward.

 

 

[1] Section 57(3) “If the wages of an employee vary from one pay period to another, the employee’s termination pay must be determined by calculating the average of the employee’s wages during the previous 13 weeks in which the employee worked preceding the date of termination of employment.”

[2] Section 55(2)(g) “Termination notice is not required…when the employee is employed under an agreement by which the employee may elect either to work or not to work for a temporary period when requested to work by the employer,…”