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a counterclaim against S that was
highly specious in nature as a form
of litigation hardball tactics.
In the final decision, the judge
awarded S damages of just under
$40,000.
LESSONS FOR GOLF COURSE
OWNERS AND OPERATORS
For golf courses owners and
operators, this case should be
viewed as a warning of the perils
of failing to use well-drafted
written employment contracts.
The following are four essential
considerations when hiring
seasonal employees:
1.  Use written contracts: Clearly
define the term, end date and
rehire conditions. Specify that
employment is seasonal and
clarify termination terms to
avoid ambiguity.
2.  Progressive discipline: Address
performance issues formally
before termination to avoid
claims of wrongful dismissal.
3.  Understand notice obligations:
Courts may award notice for the
remainder of the season, even for
brief employment, especially for
specialized roles.
4.  Careful termination practices:
Provide sufficient notice
and support employees in
transitioning to avoid disputes.
The case illustrated what
judges look at when deciding
whether a contract is a fixed or
indefinite term agreement in the
seasonal context. They will want to
see that the golf course employer
represented that it would last until
the end of the season, and that the
employee would not be re-hired
the following year.
Absent both of these things,
a court may well find that a
seasonal employee is under an
indefinite term contract. The best
way, of course, to satisfy these
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requirements is with a written
employment contract that spells
them out explicitly. If the parties
want absolute clarity on a seasonal
fixed term contract being just for
that season, it is best to specify
the end date in the contract and
also stipulate in the contract that
there is no guarantee of rehire the
following season.
Assuming the parties agree,
a good employment contract can
also serve to clarify termination
entitlements either to align with
ESA standards (although courts
in Ontario and many other
provinces are reluctant to enforce
them in all cases) or to a fixed
notice formula that goes above
the ESA requirements. It can also
have a probationary period and a
non-inducement clause, i.e., one
stipulating that the employee has
not been induced to leave secure
employment. In this case, all these
features would have assisted the
parties in providing them clarity
about the nature of their bargain
and resolving their dispute early
before it ended up in court.
Another important point
for golf course owners and
employees to take from this case
is that, for golf course and other
seasonal employees, short-term
employment does not necessarily
mean short notice of termination.
This case demonstrates that even
if a seasonal employee works only
one month, they can still come
away with common law notice
equal to the length of the rest
of the season if the employee is
terminated partway through. This
is so despite the usual rule under
the ESA with fixed term contracts:
while notice or pay in lieu is owed
where the employee is terminated
before the end of the term, there is
no notice owing if the termination
occurs at the expiry of the term,
except where “the term expires
… more than 12 months after the
employment commences.”
The decision also shows that
even if an employee is within the
3-month ESA probationary period,
they can still get substantial common
law damages. Of importance here
is the nature of the job and the
timing of the termination are key
in assessing notice. The judge held
that, for example, an employee in
a labourer position may not end
up warranting the end-of-season
result that S got on the theory that
they would stand a better chance of
getting a new job mid-season than
would a managerial employee.
The case also sheds light on the
importance of managing employee
departures carefully. It would
be useful to avoid costly legal
disputes, so where it appears a
seasonal employment engagement
is becoming suboptimal for both
parties, it is recommended to adopt
a process that accounts for the
realities of seasonal employment
for both parties. Where possible,
it may be more prudent to give
the employee ample working
notice of termination and even
assist them with finding a new
job before officially bringing their
employment to an end.
MITIGATE THE RISK
This case1 stands as a cautionary
tale for golf industry employers and
their managerial and professional
staff, that short-term seasonal
employment can sometimes
result in major legal disputes if
the circumstances allow for it.
However, as mentioned above, the
parties can mitigate against this
risk by careful contracting practices
as well as sound termination
decisions and procedures.
G Gol olf f
B Bu usi sin ness ess
Canad Canada a
1 Smith v Lyndebrook Golf Inc.,
2024 CanLII 103671 (ON SCSM),
at https://canlii.ca/t/k7jpk.