A seasonal landscape worker in Nova Scotia has been awarded $15,000 in aggravated damages, on top of 12 months’ notice, after he was suspended without pay and without an independent investigation.
James Hiltz was a labourer with Elmsdale Landscaping. After 17 years on the job, his employment came to an end in 2020. But the way it ended was in dispute.
Hiltz said he was wrongfully dismissed, without notice or pay in lieu. Elmsdale, though, said Hiltz quit after he refused to return following a layoff. Further, even if he had been dismissed, he was a seasonal worker and not entitled to substantial notice under common law.
The background
Hiltz began working for Elmsdale in 2003, when he was about 24 . There was no written employment contract, but he was a general labourer tasked with cutting sod in the fields cultivated by the company.
He was paid $22 per hour for the heavy physical labour, averaging about 55 hours per week in the landscaping season, with a “per pallet loaded” bonus of another $75 to $100 per pay. He also had use of a company truck.
Hiltz was typically hired in June and would work until the end of December. He would then receive a layoff notice, make a claim for EI, and then resume work when called back to Elmsdale in the spring.
This pattern of employment was regular, except for one year when he worked through the winter clearing snow for Elmsdale.
Argument with owner
On July 3, 2017, Hiltz got into an argument with George Coupar, the owner of Elmsdale. He was given a two-day unpaid suspension and required to apologize to management.
Hiltz also said the company made numerous accommodations to him, including finding work when requested and extending loans in the form of pay advances with zero per cent interest.
More like ‘family’
He saw Elmsdale as more than an employer and “more like family,” wrote Justice Rowe of the Nova Scotia Supreme Court.
The company, though, characterized Hiltz as having an issue with “attitude” and aggression toward management when instructed to perform job tasks, the court said.
“Their evidence is that he did not respond positively to reassignment, with management decisions being based on this experience,” the court said.
The termination
In March 2020, Hiltz was receiving employment insurance benefits — it was also the start of the COVID-19 pandemic, with public health restrictions and employment disruptions occurring. He was called back in the spring of 2022 to return to sod cutting, as that industry did not shut down.
Laura Coupar, vice-president of Elmsdale, sent a text to Hiltz on the afternoon of June 4, 2020. She reminded him to clean up any broken pallets in the sod field. Otherwise, George Coupar (her father and the president) would do it himself, something he had done the night before.
Hiltz responded with: “So you want us to stay here all night? There’s not even a mess here???”
Hiltz cleared the field, which was “not too bad” in his opinion and texted Laura at 5:35 p.m. with “All done clean as we can see.” She thanked him.
But later that night, Coupar texted Hiltz to let him know that her father had reached out to her to express dissatisfaction with the work. Hiltz was told to stay home the following day. Hiltz was upset that other workers at the site that day were not told to stay home.
He texted: “I’m doing what’s right on my end not sending out crap sod I thought that was my job.”
Testy text exchanges
Three days later, on Sunday, June 7, another text exchange took place. Hiltz was told by Laura not to come in to work on Monday and that she would call him in the afternoon.
Hiltz’ responses included: “So you want us to stay all night and day I’m not the only one who works there, this is gonna change that’s for sure…… 17 years and you treat me like I’m nothing we will see”.
Laura’s response? “Your reply with attitude is a big part of the problem. I already told you I’m just the messenger I’ll talk to you tomorrow.”
She didn’t take the messages personally, nor show them to her father. She asked for Hiltz to give her another day to “calm this whole situation down.”
On June 8, Laura texted him and offered him a return to work as a sod layer, rather than a sod cutter. That would result in loss of the sod bonus, with work done at varying locations rather than the fields. He perceived this to be a demotion.
Shortly after, Hiltz got a call from George Coupar. Hiltz said the tone of the call was “vicious” and that Coupar called him the “worst employee,” said he “sucked with money” and that his lack of care on the site would cause an accident and possibly even kill a co-worker. George Coupar did not give evidence about this phone call.
Hiltz then texted Laura and tried to lighten the mood with a “LOL” and inquiring what time he should show up to work as a sod layer.
By that point, George said he no longer wanted Hiltz working with “Jeremy” and Laura told him “we’ll call you if something comes up.” She also let him know another employee was on the way to pick up the company truck.
Hiltz asked if he was being fired, and was told by Laura that George “didn’t want you back in the sod field and then you didn’t want to work with Jeremy where we need people. That’s all I know.”
Hiltz responded by saying the behaviour was bullying.
Labour Standards complaint
Nine days later, on June 17, Hiltz filed a complaint with the Labour Standards Board. At that time, he was unsure of his employment status as Elmsdale had posted that it was seeking new employees.
On June 19, after not hearing from the company, Hiltz assumed he had been fired. He texted Laura asking her to sign a document that would allow him to withdraw his RRSP held with the company. She took this as notice of his intent to resign and processed his request.
“Her experience was that employees drew upon their deposits if they retired or if they left the company,” the court said. “She also gave evidence that Mr. Hiltz did not say anything about what he thought his employment status was, whether he would be recalled, and she did not speak to him about it. She stated she had no knowledge of the Labour Standard complaint at that time.”
On June 29, Elmsdale issued an ROE noting “shortage of work/end of contract or season” as the reason for the employment ending. Laura said this was done, rather than stating he quit, so he could receive EI.
That summer, Elmsdale hired three people as sod cutters and labourers, but did not recall Hiltz.
As this happened, the Labour Standards complaint process continued. There was communication between it and Elmsdale. On July 28, Laura wrote a letter to Hiltz clarifying that he was “temporarily laid off due to a shortage of work.”
The court said this behaviour appeared to be “an attempt to create a record, in service to the particular narrative that Mr. Hiltz was laid off due to a shortage of work.”
On Aug. 9, 2020, Hiltz was offered work via a phone call, but he did not respond. On Aug. 11, Laura texted him. The following is the text exchange:
Ms. Coupar: Hi Jamie, Further to us notifying you last week of recall to work, you did not contact anyone to say you wouldn’t be in August 10 as discussed, nor did you show up to the office for work at 5:45 am. … If you are refusing to be recalled please let us know…
Mr. Hiltz: George told me I was the worst employee of Elmsdale Landscaping.. Further more you aren’t even offering me my original job back and I feel like you won’t call me back after layoffs… I feel like I’ve been a devoted employee for the last 17 years working the busiest time of year 6 days a week. I don’t feel like I was treated in a way that I would want to come back to. I start a new job this week so unfortunately I’m not interested in what your offering,
Ms. Coupar:…. We have started the new job yesterday and need all the people we can on that site This recall work is at the same rate of pay and same job duties you have done many times before that are part of your job position with Elmsdale Landscaping. Sorry to hear that you don’t want to return to work with us, and best of luck at your new position.
The ruling
The court found the decision to tell Hiltz to stay home (an unpaid suspension of indeterminate length) after the argument on June 4 was a breach of his employment agreement.
Two weeks later, he asked for payment from his RRSP deposit held at the company as he did not have an ROE and was unable to claim EI.
Elmsdale said that, although Hiltz was difficult and argumentative, it did not terminate him and intended to reassign his duties. It had no other role for him, so he was laid off — but it still considered him to be an employee.
It said it issued the ROE with layoff as the reason on June 29, even though it was confused by his request for a payout from the RRSP. Ultimately, Elmsdale took his text on Aug. 11 that he had found a job elsewhere as confirmation of his resignation.
“However, if the company presumed that Mr. Hiltz had resigned in June 2020 because he asked for his RRSP deposit then it is illogical for it to have sent a clarifying letter confirming layoff on July 28th, 2020, and to then make him an offer of work on August 9th, 2020,” the court said.
In short, the court said a reasonable person would have concluded, as Hiltz did, that by August 2020 he should take steps to find other employment.
Notice
The court looked at the Bardal factors in determining notice — character of the employment, the length of service of the servant, the age of the servant and the availability of similar employment, having regard to the experience, training and qualifications of the worker.
Hiltz was 43, working in low skilled labour. There was an implicit agreement he would continue as a seasonal labourer with the company, reflected by the 17 years of history, the court said.
“In the event that notice were given to Mr. Hiltz at the end of a landscaping season, he would have had roughly five to six months to obtain similar employment, if available, before the beginning of the next landscaping season,” the court said.
It found 12 months to be a reasonable notice period, taking into account the remainder of the 2020 landscaping season of seven months, and the ensuing five months prior to the beginning of the next year’s season.
His annual salary was $57,154 – or $4,762.83 per month.
Aggravated damages
The court found Hiltz had been placed on indefinite suspension, implemented without independent investigation
The company was not candid with him about the suspension, its duration or any conditions that may have ended it, the court said. The phone call from George Coupar created anxiety and uncertainty, and it was clear that Hiltz was not to be recalled – even as work was available.
Elmsdale had intimate personal knowledge and experience with this worker developed over the course of 17 years, the court said. It had made meaningful accommodations to him over that time to support his personal circumstances.
“It was an act of bad faith for those personal accommodations to be the subject of Mr. Coupar’s call to Mr. Hiltz by calling him ‘bad with money,'” the court said.
The court, leaning on the decision in Honda v. Keays, noted that losing a job will normally result in distress and hurt feelings. Those are not compensable. But it noted that his doctor said that Hiltz lost “a stable framework for an individual who is otherwise not highly resilient.”
The company’s bad faith in the manner of his termination warranted $15,000 in damages, which the court said was on the lower level of the scale.
For more information see Hiltz v. Elmsdale Landscaping Ltd., 2022 NSSC 243 (CanLII)
