The year-end senior leadership meeting made some big decisions about your staffing needs for next year, and you start making a to-do list to kickstart those decisions into motion. The one you are dreading is the matter of prematurely ending your employment relationship with André, the IT gig worker you employ.
Pulling up a file, you review the contract your organization signed with André. Your organization views him as an independent contractor. That means that your place of employment has entered into an entrepreneurial type of relationship with him. He relies on your employment contract with him to stipulate any entitlements he may have upon termination. As an independent contractor, André would typically not be entitled to any termination notice or pay in lieu of notice, nor would he have the right to sue your organization for termination without cause. All looks to be in order, right?
Not necessarily. There is a spectrum that exists in worker classification. Included in that spectrum is what is known as a dependent contractor, a newer classification whose employment rights are increasingly being expanded by the courts. Employers are now expected to provide standards similar to what they would provide to their regular employees when it comes to termination notice and/or pay in lieu. This shift is occurring because the courts have recognized that a power imbalance exists when a dependent contractor is economically reliant on one employer. The contractor is less able to diversify their risk of underemployment by undertaking additional work or developing skills to make them more employable.
What do the courts take into consideration?
When the courts examine cases of wrongful termination, they use the Bardal factors to determine what should have been the right amount of notice for a dependent contractor or employee to have received before being let go without just cause. Sixty years ago, the Supreme Court of Canada established these factors in the seminal case of Bardal v. Globe & Mail Ltd. The four key components that an employer needs to take into consideration are an individual’s age, their length of service, the character of their employment and the availability of similar employment. There is no steadfast formula used; rather, the reasonableness of the notice must be decided for each individual case.
With full-time employees, it’s not too difficult to determine what would constitute a reasonable notice of termination or pay in lieu. However, the Bardal factors were obviously not created with the realities of gig work in mind. As an example, how does one determine the length of service of a gig worker? Gig work can oftentimes include intermittent service, such as only working certain hours in a day, certain days in a week, or even certain weeks in a month for an employer.
Create clear termination clauses
Until employment legislation catches up with the gig-ification of our economy, it is important for employers to be very careful with the contracts they sign with their gig workers. Set a fixed term for the employment contract. Do not default to boilerplate clauses. Set a specific term that clearly provides the amount of notice that is to be given in the event of termination of employment.
If you are unsure if you are meeting all of your legal responsibilities, seek out legal counsel when drafting contracts for your gig workers to ensure they’re enforceable and/or when you are approaching the termination of one of your gig workers. For so many reasons, it’s important to be on the right side of the law.
Ensure the right off-boarding
In addition, consider improving the off-boarding experience for your gig workers when their contract wraps up. It is very likely that the number of gig workers your business will be hiring will only grow in the future. That may include “boomerang gig workers” who return to your organization. From a business perspective, how you treat departing gig workers (or any of your employees) matters greatly to your brand and, in turn, your ability to recruit the diverse, top-notch talent that you need to succeed. Conduct a comprehensive exit interview. Learn what worked well and what needs improvement then use this valuable information to improve the employment experience for your incoming gig hires. Take the time to thank your departing gig worker for their contributions and wish them well on their last day. You never know when your professional paths might cross again.
Ritva Nosov is the founder of TalentEd Consulting Inc., an advisory firm providing full-service support at the intersection of people, culture and the law. She was the leadership lab columnist for December 2020.
This column is part of Globe Careers’ Leadership Lab series, where executives and experts share their views and advice about the world of work. Find all Leadership Lab stories at tgam.ca/leadershiplab and guidelines for how to contribute to the column here.
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