In a recent decision, the Oshawa Small Claims Court awarded a one-month service employee five months of common law reasonable notice. The decision confirms that although length of service is often the predominate factor in determining reasonable notice, there are other factors which can result in even a short-service employee being awarded a lengthier period of notice. In this case, the seasonality of the employee’s employment was the chief factor that led to an unexpectedly high award.
What happened?
The court heard a wrongful dismissal claim[1] from a golf superintendent, Michael Smith, who was hired at Lyndebrook Golf Club on May 7, 2022, shortly after the start of the 2022 golf season.
Less than one month after he started work, Smith was dismissed, after a dispute with the owner. He was given two weeks’ pay in lieu of notice. Smith viewed this payment to be inadequate, and sued, asking to be paid out the remainder of the 2022 golf season.
After finding the dismissal to be without cause, the judge heard arguments from counsel as to whether Smith’s employment was for a fixed term (guaranteeing that Smith would receive a payout of the contract), or for an indefinite term (meaning that Smith’s employment was terminable on reasonable notice.
The judge ruled that Smith’s employment was terminable on reasonable notice.
What was the appropriate notice period?
The court awarded five months reasonable notice. In reaching this conclusion, the court considered the usual factors – length of service, age, character of employment, and availability of similar employment. However, it also noted that the level of reasonable notice for a seasonal worker is dependent on the type of position the employee held and when in the season (or off-season) employment was terminated.
The judge noted the following:
…in determining the appropriate notice period, the factors [to be considered include] unique circumstances of seasonal employment, such as the length of time remaining until the season begins or until the season ends and the limited employment prospects in the off-season.
In the present case, Smith was a very short-term employee, fired early mid-season. Clearly not an ideal time to be fired from this type of job. In my view, the level of reasonable notice for seasonal workers, is very dependent on when in the season (or off-season) their employment was terminated, and the type of position that they held. The amount of reasonable notice for a short-term general labourer in a seasonal position will, in my view, be much more modest than for a long-term skilled worker, in a seasonal position. A general labourer groundskeeper at a golf course, for example, can more readily transfer their shovel, wheelbarrow, and tractor driving skillset to a broad range of alternative jobs, whereas a specialist, like Smith, can only replace his work at another golf course, and those positions would not be readily available, especially mid-season.
Working against Smith is his short tenure with Lyndebrook. Working in his favour, however, is his very skilled position with the employer, and being fired mid-season which would… make reemployment in his field very difficult: something that Lyndebrook didn’t hotly contest, and nor could they, in my view, given O’Brien’s concession that these positions should be shored up before the season, and her admission that Smith was the only Golf Superintendent to respond to her late employment posting.
[emphasis added]
Of additional interest, by finding the contract not to be a fixed term agreement, Smith was subjected to the duty to mitigate – a reduction in his claim, on account of earnings realized from alternative employment.
Takeaway for employers
In the law of wrongful dismissal, one cannot automatically assume a short-service employee will have no significant claim. There are a myriad of factors that can be taken into consideration, and employers can be exposed any time a termination of employment occurs.
The most effective way for an employer to be protected against an employment claim is through an enforceable employment agreement that defines an employee’s entitlements in the event of termination of employment, drafted by an experienced and knowledgeable employment lawyer.
To learn more and for assistance, contact your Sherrard Kuzz LLP lawyer or info@sherrardkuzz.com.
[1] Smith v Lyndebrook Golf Inc., 2024 CanLII 103671 (ON SCSM).
