By Ralph Ikechi Epelle
Sometimes, employees hired in one province are transferred to another province during the course of their employment. Often, these transfers are made with limited written terms and conditions, even where the initial employment contract states that the terms, including applicable provincial legislation, will “remain the same.”
However, after the transfer, and especially upon termination, confusion often arises regarding which province’s employment legislation applies. Employers typically choose to apply the legislation that governed the original employment contract at the time of hire.
Nonetheless, it is the writer’s opinion that employment terms do not remain the same once an employee is transferred out of the original province of hire. Subsection 3(1) of the Ontario Employment Standards Act states that the Act applies to an employee and their employer if:
- a) The employee’s work is to be performed in Ontario; or
b) The employee’s work is to be performed in Ontario and outside Ontario, but the work to be performed outside Ontario is a continuation of work performed in Ontario.
To put subsection 3(1)(b) differently, an employee hired and working in Ontario who also frequently travels outside Ontario to perform job duties would have their employment considered a continuation of “work done” in Ontario.
Conversely, where the same employee is transferred to carry out the employer’s operations in another province, thus continuing their employment in that new province—the work cannot be said to be a continuation of work performed in the original province of hire.
In Flint Canada Inc. v. Bonokoski (1997) CanLII 17784 (ABCJ), the court indicated that the Alberta Employment Standards Code could not confer rights on extra-provincial employment, even though the employer was based in Alberta.
Moreover, in Genesta Inc. (c.o.b. as Spectrus) v. Union of Needletrades, Industrial and Textile Employees (Ontario Council), Local 2508G (Severance Pay Grievance) [2007] O.L.A.A. No. 9, it was held that in determining whether an employer has a payroll of $2.5 million or more, the payroll of employees outside Ontario was not to be included in the determination of the magnitude of the payroll. It was further reiterated that “payroll,” in the context of the Ontario Employment Standards Act, refers to the total of all wages payable to employees in Ontario.
Thus, upon transfer, the provincial legislation in force in the new jurisdiction becomes the applicable law in the employment relationship. As a result, employers should ensure that the terms of the initial employment contract do not become redundant due to the application of different legislation in the new province.
Minimum Standards
Upon transfer, the employer is expected to comply with the minimum standards set out in the provincial legislation of the new location where the employee will continue their employment.
Termination Notice Requirements
The employer must also comply with the minimum notice requirements stipulated in the legislation of the new province. Clauses seeking to limit common law benefits must be unambiguous and clearly communicated to the employee.
Limiting Common Law Reasonable Notice
Following a transfer, employers are encouraged to ensure that termination clauses in the original employment contract do not contravene the employment standards legislation of the new province. Furthermore, any such intention must be clearly expressed.
Conclusion
Employees and employers alike are strongly encouraged to seek legal advice when navigating extra-provincial employment situations.