Not all types of seasonal employment are equal in law, and employers and workers should know what type of agreement they’re signing

Although NHL players operate under unique rules governing their terms of employment, trades and contract negotiations, they still qualify as seasonal employees. While they may not appear to have much in common with agricultural workers, landscapers, golf course employees or ski instructors, all seasonal employees are subject to challenges and uncertainty as the off-season approaches.

It is critical that seasonal employees understand their rights — and that employers understand their obligation to uphold them. Seasonal employees may be exempt from certain entitlements and protections, but that does not mean employers should treat their work flippantly. Failure to exercise care in managing this particular group of employees can lead to serious, costly consequences.

Seasonal workers are protected under employment standards legislation. However, certain elements of that protection may not apply, depending on the governing statute. For example, Ontario’s Employment Standards Act exempts specific categories of employees — such as landscape gardeners or those installing swimming pools — from overtime pay requirements. It is unsafe to assume that these or other exemptions apply universally, however. If in doubt, consult an employment lawyer.

When it comes to laws governing health and safety, workers’ compensation and human rights, seasonal employees are fully protected. Employers must exercise the same diligence they would for permanent staff and comply with all applicable federal and provincial regulations.

A seasonal worker who suffers a workplace injury due to an employer’s negligence or non-compliance represents a costly legal and reputational risk. Proper health and safety training is essential no matter how short the employment term may be. Similarly, seasonal workers are entitled to the same level of protection under human rights legislation, so employers must apply consistent procedures to all hiring, firing and accommodation decisions.

In Galoglu v. A Wesley Paving Ltd., the Human Rights Tribunal of Ontario found that an employer discriminated against a seasonal worker by laying the employee off after they were injured on the job before the expected end of the season. Although the tribunal did not award lost wages due to a concurrent Workplace Safety and Insurance Board (WSIB) proceeding, it ordered the employer pay $10,000 in general damages for injury to the worker’s dignity, feelings and self-respect — as well as mandated human rights training for managers and supervisors.

The damages in that case were modest, but they can be much higher when lost wages or more egregious conduct are involved. And mandated human rights training does not exactly help the employer’s reputation both internally and externally.

A frequently contested issue is whether seasonal employees are entitled to notice or severance upon termination — and if so, how much? The answer depends on several factors.

Seasonal employees are not always temporary workers on fixed-term contracts. If there is no written agreement, or if a seasonal employee is rehired on a recurring basis year after year, a court may treat them as an indefinite employee and provide them with wrongful dismissal damages.

That was the case in Smith v. Lyndebrook Golf Inc., in which the employer failed to implement a carefully drafted employment agreement. The plaintiff, hired as a golf course superintendent, was terminated less than a month after starting.

The court held that, in the absence of a written agreement or supporting evidence to the contrary, seasonal workers are not necessarily fixed-term employees. Smith argued that he was subject to a fixed term, while the employer argued he was indefinite — likely because it believed any reasonable notice awarded by a court would be shorter than the remainder of the term.

The court agreed that Smith was an indefinite employee, but the employer ended up paying a greater notice period anyway due to the significant wrongful dismissal damages. Often, of course, paying to the end of the term will be much more than an employee would be entitled to for wrongful dismissal damages if their arrangement is not found to be a fixed-term contract.

In Smith, despite the plaintiff’s brief tenure, the court awarded five months’ notice due to his specialized role and the fact that his termination mid-season significantly reduced his chances of finding comparable employment. Golf clubs, ski resorts, summer camps and other seasonal operations typically hire well in advance and rarely mid-season — a reality the courts acknowledge and factor into their awards.

It is important to remember that even when a written agreement sets out a fixed term of employment, there can be an enforceable termination clause allowing the employer to fire the employee and pay less than they would have if paying to the end of the term.

Seasonal workers play a critical role in many industries. The law recognizes the unique considerations in their employment — and employers must, too.