Some non-unionized construction workers in Canada aren’t sure whether they’re owed severance pay when they are terminated.
As an employment lawyer, I’ve gotten a lot of questions about construction workers’ right to severance. The confusion stems from the fact that an employee’s rights can be governed by both provincial legislation and what our courts have determined through decades of legal decisions, or common law.
Provincial legislation governs minimum employment standards for employees, such as hours of work, overtime pay and vacation pay. There are, however, exceptions, and these rules don’t apply all the time or to every type of worker.
Although most employees are covered under provincial entitlements when it comes to severance pay, construction workers are not. But this doesn’t automatically prevent them from pursuing substantial compensation through a common law legal claim. Through the legal process, an employment lawyer can often negotiate a much more generous sum than the minimum provincial amount.
Which factors need to be considered for severance pay
Even if construction workers are excluded from minimum severance pay under provincial employment standards, the legislation should not be the sole factor that determines if the employee is entitled to a full severance package.
An employment lawyer will ask whether it’s industry standard that employees can be fired or laid off without severance pay, how long the employee has worked in the role, and whether there is a pattern of regular temporary layoffs or a slow work season.
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Lawyers will also consider whether the workplace is known for its transient employment, or if the employer, or its competitors, ever paid termination pay to similar employees.
READ MORE: Check the contract, talk to a lawyer: 5 things to do if you’re laid off temporarily
If an employee is aware they may be laid off due to a foreseeable and customary slowdown of work, they may not be entitled to full severance, which could be as much as 24 months’ pay.
How is a severance package calculated?
If it’s established that a construction employee is entitled to a full severance package, the next step is to assess how much the individual is owed.
Employment contracts often have termination clauses specifically designed to reduce or eliminate the amount of severance an employee can get when they lose their job. These clauses, however, are not always enforceable, so employees who have them may still be able to get full severance.
Employment contracts are also less common in construction than in many other industries.
READ MORE: What you need to know before you sign a contract — even if your employer asks you to
If there is no enforceable termination provision in your contract, then your age, job position and other factors should be used to determine how much severance you’re owed.
Severance is meant to provide financial relief between jobs, so the time it takes to find new employment and the availability of similar opportunities should also play a role in determining the amount someone should receive.
The amount of time you have spent working for the company is also an important factor when considering severance. Where the construction industry is concerned, court rulings in provinces like Ontario and B.C. have set precedents for short-service and long-serving employees alike.
READ MORE: 5 of the most common work situations where getting an employment lawyer can help
Why you need an employment lawyer
If you are fired from your job in the construction industry, I recommend speaking to an employment lawyer, like my colleagues at Samfiru Tumarkin LLP, before you sign any documentation from your employer.
Employment lawyers understand how provincial and common law applies to your workplace, and resolve similar matters with employers all the time — often without ever having to go to court.
Have you been let go from your job in construction? Are you trying to figure out how much severance pay you should get?
Contact the firm or call 1-855-821-5900 to secure assistance from an employment lawyer in Ontario, British Columbia or Alberta. Get the advice you need — and the compensation you deserve.
Jennifer Corbett is an employment lawyer at Samfiru Tumarkin LLP, Canada’s most positively reviewed law firm specializing in employment law and long-term disability claims. The firm provides free advice on Canada’s only Employment Law Show on TV and radio.