Ask the ExpertContract for Term Employee
hri_Admin Staff asked 3 years ago

Hi there,
Now that the laws have changed regarding the length of time someone can take maternity/parental leave, do you have any recommendations on whether you can include a clause in a term employees contract that states you can terminate the employment relationship if the employee comes back from leave early?

As an example, if someone says they are going on leave for 18 months, but decides to come back after 13, then do we still have to keep the term employee until 18 months? My understanding of term positions has always been that if you want them to leave before the term is up, you have to pay them until the end of the term. But if we can add a clause this would be helpful. If you happen to have any resources on this that would be great. If it it something we could do I would contact a lawyer to draft specific wording. Thanks

2 Answers
Glenn Demby Staff answered 3 years ago

To answer this, I need to know if you’re federally regulated or subject to Manitoba ESC laws. You can reply directly to me at glennd@bongarde.com, if you want. Glenn

Glenn Demby Staff answered 3 years ago

From our payroll guru, Alan. Sorry to keep u waiting over the weekend.
Unfortunately, the laws in Manitoba aren’t helpful to the employer in this situation.
There are two exceptions to the requirement to provide notice which might be useful, but which the employer probably can’t rely on in the situation described below.
Clause 62(1)(b), exempts a person from the notice requirements if they are hired for a fixed term. However, it requires the person to work that whole term for the exception to apply.
Clause 62(1)(c) exempts a person if they are hired for a specific task, i.e. a mat leave replacement, but the catch here is that the period of employment can’t exceed 12 months.
If neither of these apply, the normal notice requirements apply, i.e. 2 weeks for 13 months of service.
It would seem there’s no escaping these notice requirements in the situation described. The best advice I can offer is to ensure that the common law requirements are limited in the letter of offer to these employment standard minimums.

Serena Traa replied 3 years ago

Thanks for your help. Just to clarify, the first clause then is really somewhat useless, as they would then be working the entire term. And the second clause is still that way even though they have changed the amount of time someone can go on maternity/parental leave? Because of some overlap, our term position would most likely be for 14 months. So therefore the second clause does not apply to us?

Mike Battista replied 3 years ago

is there a termination clause in their offer letter?
This contract may be terminated at any time in the following manner:
By you; on giving one (1) week notice to the Company, which the Company may waive in whole or in part.
By the Company; by giving you minimum notice or pay in lieu of notice required by applicable employment legislation

Serena Traa replied 3 years ago

Hi Mike,
We do, however were told by legal counsel that it would not be enforceable for term employees, and that we would have to pay until the end of the term regardless of whether there was a clause in there like that. That if the individual persued litigation, common law would say we pay for the whole term.