Summer is definitely here in Ontario and with the warm weather comes an uptick in seasonal and fixed-term employment. Ontario students seek summer employment and seasonal operations such as golf courses and amusement parks hire additional staff. These types of seasonal arrangements often lead employees to wonder when, if ever, a fixed-term contract converts into indefinite employment and what that means (usually an entitlement to reasonable notice of termination).
The short answer is that it depends on the reasonable expectations of the parties. While the law varies from province to province (and can be quite different in Quebec), Canadian courts have identified a number of factors that will be considered in determining whether or not employment will be deemed to be indefinite:
- Whether or not the employee believed his or her position was one of an indefinite term;
- Whether the employee was treated by the employer as an indefinite term employee;
- Verbal representations or conduct indicating that the employment relationship was indefinite;
- Whether or not there was a link between positive performance reviews and renewal of contract;
- The existence of formal arrangements for determining whether or not the employee would be hired back;
- Whether or not a record of employment is issued at the end of the term and what the date of recall is; and
- The number of times a fixed-term contract has been renewed.
The key for both employees and employers is to be clear and explicit about expectations from the beginning, negotiate contractual terms that reflect those expectations and make sure those terms are respected.