'For seasonal workplaces, when the employee is terminated, it can really be the determining factor'
An Ontario worker who was fired after one month of employment has been awarded wrongful dismissal damages equal to five months’ pay by an Ontario court.
Lyndebrook Golf Course is a small, family-owned and operated nine-hole golf course in Whitby, Ont. In early 2022, Lyndebrook’s golf superintendent left, leaving them stuck, as they couldn’t operate the golf course without a golf superintendent but golf courses usually filled those positions the previous year, with the latest being January or February.
The company posted an advertisement for the position with the Golf Superintendent Association in April. The worker, who had 15 years of experience in the role, responded to the advertisement as he wasn’t happy at the golf club where he was currently working. He was the only person to respond to the job posting.
On May 7, Lyndebrook hired the worker for the golf superintendent position. There was no written employment agreement, but they verbally agreed to a salary and vacation pay.
The worker felt that things went well at the start, but the owner received complaints about his behaviour and attitude towards patrons and staff. The worker also implemented policies and strategies that made staff members uncomfortable to the point where all the grounds crew were prepared to quit, according to one particular long-term employee. However, this employee had been the head of golf course maintenance before the worker’s hiring and had been sent home by the worker for insubordination on one occasion. The employee later admitted to misrepresenting the situation to the owner.
Concerns about workers’ performance, attitude
Lyndebrook also had issue with the fact that the worker seemed unable to repair the outdated irrigation system, although within a few weeks he was able to outsource replacement parts that got it working everywhere except for one small area of the course.
The owner became convinced that the worker wasn’t a good fit and, during an exchange on June 3 – four weeks after he was hired – she asked the worker to leave and said his time with Lyndebrook was over as “employees were complaining.” She didn’t elaborate further.
The worker was upset and texted the owner on the Monday following his Friday dismissal, asking for a meeting. However, the owner replied, “I’m sorry, I’m not interested. I’m done.” Lyndebrook paid the worker two weeks’ salary and vacation pay as severance.
The worker sued for wrongful dismissal, asserting that he was induced to leave his old job for Lyndebrook and he was on a fixed-term contract and therefore entitled to be paid until the end of the golf season. He argued that, at his hiring, it was expected by both parties that he would work until the end of the golf season so, even if it wasn’t a fixed-term contract, his reasonable notice should be the remainder of the season.
Lyndebrook denied there was a fixed-term contract or that any human rights grounds were a factor in the termination. The company filed a counterclaim for $20,000 for costs incurred to fix equipment damaged by the worker’s alleged incompetence, but it later withdrew it.
No fixed-term contract
The court found that there was nothing in the discussions or actions of the parties that indicated the job was only for the 2022 season, and there was no indication that Lyndebrook promised that it was a “one-and-done” agreement for that season. As a result, it was an indefinite term of employment, the court said.
“Absent written terms, courts are going to look to the intention of the parties and here the intention appeared to be that the worker was going to be hired for multiple golf seasons because there was nothing explicit suggesting that he was only going to be hired for the one season,” says Jeff Rochwerg, an employment lawyer and workplace investigator at Turnpenney Milne in Toronto. “It's a good reminder for employers to document the terms of employment at the beginning of the relationship, so there isn't any dispute.”
The court also found that the worker was fired abruptly without prior warnings, and in such circumstances the employer has to prove gross incompetence to justify dismissal without reasonable notice. Although there were issues with the irrigation system, the evidence indicated that the worker was able to get most of it working, despite it being antiquated. Given his short term of employment, the worker was fired before he could get everything fixed, said the court in finding the worker was fired for his management style, not incompetence.
The court noted that Lyndebrook didn’t give the worker an opportunity to change his behaviour if there were complaints from staff, so dismissal wasn’t proportional to the alleged problems. Without just case, the company owed the worker reasonable notice, the court said.
“It sounds like the employer received a number of complaints from individuals about working with the worker, but it didn't really document those complaints or interview the people who made them,” says Rochwerg. “And then it didn't call any of those people as witnesses, so the court wasn't able to rely on any concerns with the worker's performance, attitude, or the allegations that he was causing trouble with staff, just because there wasn't enough evidence for it.”
No inducement
The court also found that there wasn’t any inducement, as the worker responded to the job posting because he didn’t like where he was working and there was no direct recruitment by Lyndebrook.
The court assessed Smith’s entitlement to reasonable notice using the Bardal factors, considering his specialized role, age, and limited mid-season employment prospects, determining that five months’ notice was appropriate given the unique challenges faced by seasonal golf course superintendents. Despite the worker's short tenure, the court said that two weeks’ notice, which Lyndebrook had already paid, was insufficient under common law standards.
The court also awarded Smith $100 in moral damages because Lyndebrook's handling of his termination violated the company’s duty of good faith. Although Lyndebrook’s counterclaim was withdrawn, it included unsubstantiated allegations of dishonesty and incompetence as a tactic intended to discourage the worker from pursuing his wrongful dismissal claim, said the court, adding that the token amount of damages was because the worker had no evidence that he suffered any harm beyond the normal distress and hurt feelings from dismissal.
“There have been some cases where an employer's litigation conduct in bringing forward baseless cause accusations as a tactic to try to dissuade the employee from asserting their rights, where $100,000 in aggravated damages or $25,000 in punitive damages have been awarded,” says Rochwerg. “The court here really focused on the fact that the worker didn't provide any proof of injury, which goes against the established law that no medical evidence is required in order to succeed in proving a case of bad faith damages.”
“It will be interesting to see if that's appealed - I would expect that if it was, we might see a higher [aggravated damages] award based on the facts,” he adds. “The court in this case wanted to punish the employer, but it took the position that, because there wasn't any evidence of mental distress, it wasn’t able to award more than a nominal amount.”
Seasonal work a factor
Lyndebrook was ordered to pay the worker five months’ salary and vacation pay, minus income the worker earned at another golf course during the notice period and the severance pay the company had already paid. The total damage award was just over $34,000.
Employers should be aware that the Bardal factors used to determine reasonable notice can lead to a disproportionately long notice period for short-term, seasonal employees, says Rochwerg.
“Courts will look at all those factors - age, tenure, character of employment – and, in this case, it was the availability of similar employment which really was the key consideration,” he says. “The court relied on some previous cases which said that for seasonal workplaces, when the employee is terminated during the season, it can really be the determining factor.”
“The court was prepared to penalize the employer, just because the worker was unlikely to find similar work until the golf season was over,” adds Rochwerg. “It's a warning to employers in seasonal industries to exercise caution and also to get advice before they terminate an employee with short service, because they could be on the hook for significantly more damages than they anticipated – the worker here was essentially was awarded the same damages as he would have had it been a fixed-term contract, because of the seasonal nature of the work.”
