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Wrongful Dismissal and the Seasonal Employee

While the employment relationship is a contractual one, often the parties never enter a formal written contract, nor do they set out all of the conditions governing the relationship.  In the absence of a formal contract, our law implies certain obligations into the employment relationship.  For example, the employee must show up on time, follow reasonable instructions and act honestly in his employer's best interests.  For his part, the employer must pay the employee his wages for work performed and provide a safe and appropriate work environment.

It is another implied term of an employment contract that neither party may terminate the employment contract without just cause unless they provide reasonable notice of their intention to do so.  Practically speaking, employers rarely sue employees for quitting without reasonable notice.  It is not at all uncommon, however, for an employee to sue his employer for failing to provide adequate notice of termination.  This is called "wrongful dismissal".  When an employee brings an action for wrongful dismissal, he is saying that his employer did not give him an adequate amount of time to find replacement employment and therefore the employer should pay him the money he would have earned if the employer had given a proper amount of notice.  The Courts will determine the appropriate amount of notice on a case-by-case basis having regard to the nature of the work performed, length of service and personal circumstances of the employee.  Generally, it is a calculation whereby the employee is entitled to so many weeks of notice per year of employment. 

While this proposition is fairly straightforward in most cases, there is one particular type of employment relationship that does not fit neatly into the rules described above, and that is the case of the seasonal employee.  Seasonal employees, such as landscapers, road construction workers and golf course or park maintenance workers are usually hired in the Spring and laid off in the Fall.  Often, the same individual is hired back year after year.  What happens when, after several successive years of work for the same seasonal employer, the employee is not rehired in the Spring?  Does this employee have a claim for wrongful dismissal?  To answer this question, the Courts must determine whether there was a continuing open-ended employment relationship on a seasonal basis, in which case the employer has an obligation to hire back the employee each year, or whether there was merely a series of relatively fixed-term annual employment contracts, in which case the employer has no obligation to rehire the employee each year, nor must the employer give notice of his intention not to hire back the employee.  To decide this question, the Courts will look at the length of the employment relationship, the nature of the industry, the manner in which employees are recalled to work each year, the number of employees who return each year, as well as any interactions between the employer and the employee, or between the employer and third parties which indicate whether there was a mutual understanding between the parties that the employer intended to bring the employee back for the following seasons. 

If it is determined that there is a continuing employment relationship of indeterminate length, then in the absence of just cause for dismissal, the employer must either rehire the employee or provide reasonable notice of his intention not to have the employee back for the next work season.  If the employer fails to re-employ the employee under these circumstances, and if he fails to give reasonable notice, then the employee has a claim for wrongful dismissal and is entitled to receive from the employer what he otherwise would have earned during the notice period.  In this way, our law affords some job protection to employees who work in industries that are seasonal in nature.

By Craig Shworan
February 6, 2002