No rule limiting reasonable notice for seasonal workers; normal factors apply
The Nova Scotia Court of Appeal has upheld a determination that a worker who was suspended and then laid off for a lack of work was constructively dismissed in bad faith.
The 45-year-old worker was employed with Elmsdale Landscaping Limited, a landscaping company in Elmsdale, NS, since 2003. He worked mostly as a sod layer and later worked as a sod cutter. It was seasonal work that usually ran from June until December, when Elmsdale would lay him off for the winter. The worker normally received employment insurance benefits during his winter layoff, although sometimes the company gave him small jobs during the winter if there was work available.
On June 4, 2020, Elmsdales vice-president – who was the daughter of the company’s owner and president – texted the worker to ensure the sod field was cleared of any broken pallets. However, the owner found the site not sufficiently cleaned up, so the vice-president texted the worker again to say that he should stay home the next day.
Three days later, the vice president texted the worker again to say that his supervisor wasn’t returning to the sod field, so the worker should stay home as the owner was still angry.
Abusive phone call
On June 8, the vice-president texted him with an offer to return as a sod layer, but the worker was unhappy because it was a lower-paying position that the sod-cutter role he had been performing. Later that day, the owner called the worker and said he was the “worst employee,” he was “bad with money,” and his lack of care at the sod field “would cause an accident and possibly death to another employee.” The worker felt ashamed and embarrassed, particularly since he considered the company and its staff like family.
The worker responded to the vice-president to accept the sod-laying assignment, but she replied that the owner didn’t want him in the sod field. He asked if he was being fired, but the vice-president didn’t directly answer the question.
A week later, the company posted a notice for new employees and they soon hired sod cutters. The worker still didn’t know his employment status.
By June 19, the worker hadn’t heard from Elmsdale, so he assumed that he had been fired. Elmsdale issued him a record of employment (ROE) stating he had been temporarily laid off due to a shortage of work, which the company confirmed in a July letter.
No response to recall offer
On Aug. 9, Elmsdale reached out to the worker with a recall offer, but he didn’t respond. A second attempt asked him to confirm if he was refusing the recall, and the worker said that the owner’s comments to him and the fact that the recall offer wasn’t for the job he had been doing made him think he wouldn’t be brought back, so he found a job performing carpentry work.
The worker sued Elmsdale for constructive dismissal and the Nova Scotia Supreme Court agreed with him, awarding him 12 months’ pay in lieu of reasonable notice plus $15,000 in aggravated damages for Elmsdale’s bad-faith conduct in the manner of dismissal.
Elmsdale appealed, arguing that the trial court made four legal errors – the court failed to properly apply the legal test for constructive dismissal, it erred in awarding a notice period beyond the end of the landscaping season, it erred in finding that the worker’s failure to accept the recall was not a failure to mitigate his damages, and it erred in finding that the manner of dismissal warranted aggravated damages.
The Court of Appeal found that the worker’s layoff was not due to shortage of work. It was in the middle of the landscaping season and Elmsdale was advertising for and hiring new employees. However, both his ROE and the company clarified his status as being laid off temporarily for shortage of work.
Substantial change to terms of employment
The Court of Appeal agreed with the trial court that “Elmsdale was not candid” with the worker about his employment status and the company demonstrated an intention not to be bound by the employment contract by breaching it with an “unauthorized administrative suspension” that amounted to a substantial change in the terms of employment. The company also showed its intention with its course of conduct over the summer of 2020, with its lack of communication about continuing the employment relationship and not recalling him when work was available, said the appeal court, finding no issue with the trial court’s determination that the worker was constructively dismissed.
As for the reasonable notice period, the Court of Appeal disagreed with Elmsdale’s contention that it should not extend beyond the landscaping season. The appeal court noted that there was no case law supporting such a principle for seasonal employees and the Supreme Court of Canada made it clear in its landmark Bardal decision that “categorization of notice periods for particular classes of employment is not permissible.”
As a result, the Court of Appeal found that the trial court’s awarding of 12 months’ reasonable notice was reasonable for an employee of 17 years and consistent with the circumstances and precedent.
The appeal court also agreed with the trial court that the worker’s failure to accept the recall notice wasn’t a failure to mitigate, as his attempt to accept the sod laying assignment in June 2020 was rebuffed and his only information over the next two months was an ROE. It made sense that he took steps to find alternate employment and, by the time Elmsdale reached out to him, he had found it, said the appeal court.
Aggravated damages
Elmsdale was also unsuccessful in its appeal of aggravated damages, as the Court of Appeal agreed that the company’s conduct after it told the worker to stay home – unauthorized suspension, the offer of a lower-paying position, the owner’s abusive phone call, and the ROE identifying a layoff for lack of work – constituted actions in the manner of dismissal that were in bad faith.
The appeal court noted that the worker had provided evidence from his doctor and his wife that he had suffered from distress and anxiety, so it was reasonable for the trial court to find that Elmsdale’s bad-faith conduct contributed to psychological injuries beyond what would normally be expected from a dismissal. The $15,000 aggravated damages award was reasonable, said the appeal court.
The company’s appeal was dismissed in its entirety. See Elmsdale Landscaping Ltd. v. Hiltz, 2023 NSCA 56.
