Employment law applies to golf clubs and tourist attractions, and it isn’t relaxing

Kelly VanBuskirk, KC, PhD, C. Arb.

Recently in my Employment Law course at the University of New Brunswick, we talked about employment law in the context of the oncoming summer sports, entertainment, and tourist seasons. Seasonal employment is critical to some industries, but the rights of employees in May to October workplace relationships are frequently misunderstood. Three Atlantic Canadian golf club cases (and one tourist destination case for good measure) serve as reminders that employer responsibilities to seasonal employees may not end just because summer does.

The cases of Saunders v. Fredericton Golf & Curling Club, Levy v. Ken-Wo Country Club, Brander v. Northumberland Golf Club, and Foster v. Van Horne Estate on Ministers Island establish a consistent and well-developed body of law governing the rights of long-term seasonal employees in Atlantic Canada.

The central question in each case was whether a worker whose employment ended each fall was simply a seasonal worker that could be rehired (or not) at the employer's discretion. In each case, the court concluded that the mere fact that the employees were laid off seasonally did not determine the workers' legal entitlements to notice of termination. Where the employment relationship is characterized by long and uninterrupted service, a mutual expectation of return each spring, and a consistent pattern of recall without requiring a new application, the employee is characterized as a permanent employee working seasonally — and is therefore entitled to the protections of reasonable notice if dismissed.

On the question of what constitutes reasonable notice, the cases establish that one season's earnings is often the appropriate measure for long-term seasonal employees. The rationale is that a season represents the natural unit of employment in this context, and one season's notice gives the employee a realistic opportunity to find comparable replacement work.

Equally important is the timing of that notice. All four cases emphasize that notice of non-renewal must be given at the end of the preceding season — not in the spring when the employee arrives to return to work. The reason is practical: an employee informed at season's end has the winter months available to seek other employment.

What this means for employers:
a. Recheck your written seasonal employment contracts to maximize clarity of the beginning and end of the relationship.
b. Don't relax your approach to re-hiring at the beginning of each season: if the employee is automatically hired every year, that practice may create an expectation/entitlement.
c. Decide at the end of each season (and not the beginning of the next) whether a seasonal employee will be re-hired, and notify them accordingly.