Page 29 - GBC Fall 2024 ENG

aggrieved party has the right to claim the contract has been broken. A meaningful change to employment terms can include a reduction in hours, a demotion, a reduction in pay, essential responsibilities being removed from the employee, etc. Essentially, should an employer unilaterally amend those terms that were negotiated and agreed to, by both parties, in the employment agreement, it may give rise to a breach of contract, or rather, the con- structive dismissal of the employee.
However, it is not only the terms of the employment agreement that cannot be unilaterally changed. The conditions and expectations of employment (conditions of employ- ment) must always remain reason- able and safe for the employee, as it would be in any other reasonable work arrangement or environment. For example, when an employee accepts a new job, it is not a reasonable expectation of employ- ment that they would be laid off, without pay, for any length of time.
In Canada, a layoff is cause for constructive dismissal. It is also not a reasonable or safe condition of employment for an employee to be subject to continuous harassment or subject to a poisoned work environment. Upon being made aware of these hazards, should an employer not adequately address the issue(s), this again may give rise to a claim of constructive dismissal.
EXAMPLES OF CONSTRUCTIVE DISMISSAL FOR GOLF COURSES
Decisions that would give rise to constructive dismissal are not necessarily specific to any one industry. However, there are some situations that may be more common to the golf course industry, that we will cover in this article. Later in this article, we will discuss how to protect yourself against this liability.
Layoffs: Layoffs are most common in Canada in those industries that are deemed seasonal. Many seasonal industries are exempt from case law that governs constructive dismissal in so much that layoffs in a seasonal industry ‘are’ a reasonable expectation of employment. In most jurisdictions, this is not the case for golf courses. Although employment legislation across Canada has established rules around temporary layoffs in the applicable Employment Standards Act (ESA) or Code (ESC), there is nothing in the ESA/ESC which gives you the right to do so. Laying off an employee, regardless of the reason, is constructive dismissal.
Seasonal Hours: Many may assume that having hours that vary from week to week is a reasonable expectation of employment in the golf course industry. After all, if we could predict the weather, running a golf course would not be near the challenge that it is now. Regardless, if you have committed to a set amount of hours per week or a set salary in an employment agreement, variance away from those hours could give rise to a claim of constructive dismissal.
Discipline and Demotions: A benefit of managing a golf course, from an HR perspective, is the varied positions and abilities required of your staff to run a golf course successfully. This is an ideal opportunity for golf course management to be adaptable, cross train, reward and promote and even succession plan. What it should not be is a discipline tool. The option to reduce hours, eliminate shifts or demote a worker to a position that is less substantial or desirable is a common question I get from our golf course clients. There are specific and effective processes at the disposal of all employers to appropriately discipline staff. Unilaterally changing the terms of employment is not one of them.
Health & Safety: You might think the most dangerous hazard on a golf course is the 30-handicap golfer, swinging a club around after having a few adult beverages. In fact, golf courses have numerous hazards and equipment, which if not trained to use and or operate
Golf Business Canada 29