Continuance of employment

Hiring a dismissed employee back following dismissal
By Brian Johnston
|Canadian Employment Law Today|Last Updated: 07/06/2016

Question: If an employee is dismissed, receives her entitlement to pay in lieu of notice, and then successfully applies for a different position with the same employer before what would be the notice period is up, does the employee’s previous service have to be counted?

Answer: As with almost all employment law litigation, the cases are fact specific; therefore the answer is “maybe.” In this question, the employee is still in receipt of pay in lieu of notice when hired for a different position by the same employer.

Courts generally say that short breaks in service do not automatically amount to a break in continuous service. For example, in Beach v. IKON Office Solutions, Ltd., an employee who had two breaks — one of 14 months in 1970-1971 and one of 16 months in 1982-1983 — were not significant enough in the context of his overall years of employment — approximately 31 years — to constitute a break in service for the purpose of determining reasonable notice. Notably, the court said: