While many employers believe their obligations to employees in terms of accumulated continuous service benefits end with their fixed-term contracts, this is not always the case. Employees could be considered to be in continuous service when they fulfill a fixed-term contract every year and then return to work for the same employer in subsequent years.
What is continuous service?
Continuous service refers to the uninterrupted period when employees are linked to their employer by a contract of employment or by a succession of fixed-term employment contracts. It is considered continuous service even if the worker is absent for paid leave, unpaid leave, sick leave, strike, lock-out, or industrial accident.
Seasonal work and continuous service
In determining whether continuous service accrues after the termination of a seasonal worker’s contract, consideration must be given to the intention of the employer and the employee to renew the employment contract on an annual basis. A number of elements must also be taken into consideration in order to establish whether or not there is continuous service:
- What does the record of employment indicate?
- How many “seasons” did the employee work for their employer?
- Has the employer had any discussions with the employee about the length of employment and the possibility of returning to work?
- At the end of their employment, does the employee have any doubt about the possibility of returning to work or simply on the date of returning?
- Do the employers conduct an interview every year or do they consistently include the same people as employees?
- Do employees have to submit their application each year?
- Is the length of the employee’s work sufficiently long to justify the “continuous” nature of the employment relationship?
- Do the employer and the employee have the common desire to continue the employment contract?
None of these elements individually determines whether or not there is continuous service. All of the elements must be taken into consideration.
Termination of employment: What are the deadlines for giving notice?
When an employer decides to terminate an employee’s employment contract, the length of continuous service guides the employer in establishing the time between the employee’s written notice of termination and departure (please see the table below). If this notice is not delivered within the prescribed time limits, the employer must pay the employee compensation.
Deadlines for giving notice of termination
|
Duration of continuous service |
Time between notice and departure |
Vacation pay |
|
Less than 3 months |
No time required |
4% |
|
3 months to less than 1 year |
1 week |
|
|
1 year to less than 5 years |
2 weeks |
|
|
5 years to less than 10 years |
4 weeks |
6% |
|
10 years and over |
8 weeks |
Vacation pay: 4% or 6%?
Upon termination of employment, the employer will need to know the employee’s continuous service to calculate their vacation pay. On this occasion, employees must receive payment from their employer for the vacation they have accumulated but not yet taken. Depending on the length of continuous service, this amount represents the standard 4% or 6% of the gross salary earned during the reference year (please see table above).
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